95-071

       Petitioners appeal from the decision of an impartial hearing officer which held that respondent had offered to provide an appropriate educational program to petitioners' child for the 1994-95 school year, notwithstanding an erroneous designation of the child's placement in his individualized education program (IEP), and which denied petitioners' request for tuition reimbursement for the private school which their child attended during that school year. The appeal must be dismissed.

        Petitioners' son is thirteen years old. The boy was enrolled in a preschool special education program, prior to entering kindergarten in respondent's Roslyn Heights Elementary School, in September, 1988. The child was classified as "speech/language impaired" (cf. 8 NYCRR 200.1 [mm][11]), and was placed in a self-contained special education class for kindergarten. The boy has remained classified as speech/language impaired, and his classification is not disputed in this proceeding.

        During the 1989-90 school year, the child was enrolled in a self-contained special education class for the first grade in respondent's Harbor Hill Elementary School. He received speech/language therapy four times per week. In a private psychological evaluation completed in June, 1990, the child achieved a verbal IQ score of 86, a performance IQ score of 86, and a full scale IQ score of 85. The psychologist who evaluated the child reported that the boy's auditory discrimination skills deteriorated markedly when there was background noise, and that his phonological processing skills were weak. In addition to weaknesses in his receptive language skills, the child evidenced delays in the development of his expressive language skills. Although the boy was completing the first grade when he was tested, his academic achievement in reading, spelling and mathematics was reported to be below the first grade level.

        The child repeated the first grade in the same self-contained special education class, and continued to receive speech/language therapy, during the 1990-91 school year. The child was educated in a self-contained class, with speech/language therapy and occupational therapy in the second grade, during the 1991-92 school year.

        For the third grade during the 1992-93 school year, respondent's committee on special education (CSE) recommended that the child remain in a 12:1+1 special education class in respondent's Harbor Hill Elementary School. The boy's IEP indicated that he was to be mainstreamed for regular education instruction in mathematics, art, music, physical education, and library, and that he would continue to receive speech/language therapy four times per week, and occupational therapy once per week. The child's mother reportedly agreed with the CSE's recommendation. However, petitioners unilaterally enrolled their son in the Vincent Smith School, a private school located in Port Washington, New York.

        In October, 1992, the CSE met, at petitioners' request, to recommend services to be provided to the child at the Vincent Smith School, where he was enrolled in a regular education third grade class. The CSE recommended that the boy be provided with small group speech/language therapy three times per week, and occupational therapy once per week. Petitioners reportedly accepted the CSE's recommendation. The child received speech/language therapy in a group of two children for the remainder of the 1992-93 school year.

        In a progress report dated April 18, 1993, respondent's speech/language therapist described the child as language impaired, with difficulties primarily in auditory processing and word retrieval. She also described the boy as being very distractible, and having little impulse control. The therapist reported that the child's disruptive behavior when taught in a group had precluded much progress, and that his behavior was much improved when receiving individual speech/language therapy. She noted that he was easily frustrated on difficult tasks. The speech/language therapist recommended that the child receive individual speech/language therapy which focused upon auditory and visual language processing activities, during the 1993-94 school year.

        On June 3, 1993, the CSE conducted its annual review to recommend the child's educational program for the 1993-94 school year. The CSE recommended that the child receive individual speech/language therapy twice per week. It did not recommend that the child receive any other service. The child's IEP indicated that he would continue to attend the Vincent Smith School for the fourth grade, during the 1993-94 school year. The CSE chairperson at the June 3, 1993 meeting testified at the hearing in this proceeding that the CSE did not recommend that the child attend the Vincent Smith School. Petitioners reportedly accepted the CSE's recommendation.

        In September, 1993, the boy's triennial psychological evaluation was performed by respondent's school psychologist. The child achieved a verbal IQ score of 78, a performance IQ score of 72, and a full scale IQ score of 78. The psychologist reported that the child's achievement had been hindered by deficits in his visual perceptual processing skills, receptive and expressive language skills, and attentional difficulties. Notwithstanding his visual perceptual processing skill deficits, the child was reported to learn better using visual, rather than auditory modalities. The child, who had just entered the fourth grade, achieved grade equivalent scores of 2.9 in letter-word identification, 1.9 in word attack, 2.0 in passage comprehension, 2.4 in spelling, and 3.1 in mathematics. Projective testing revealed that the child had little confidence in his ability to be effective in his world, and that he had developed an avoidant style to protect himself from failure. The school psychologist recommended that the child be educated in a self-contained special education class, and that he continue to receive speech/language therapy. He also recommended counseling for the child, and that a physician be consulted about the child's attentional difficulties.

        In February, 1994, the child's speech/language therapist reported that the child's behavior had dramatically improved during the 1993-94 school year. She indicated that the child was able to remain focused for longer periods of time, and could work more independently, than he had done previously. The therapist recommended that the child continue to receive speech/language therapy, with an emphasis on improving his processing skills and developing compensatory memory techniques.

        The child's next annual review was conducted by the CSE, on March 23, 1994. The child's IEP for the 1994-95 school year which the CSE prepared at its March meeting once again listed the child's placement as the Vincent Smith School, under the heading "Current Placement Data," and under the heading "Recommendations." However, the CSE chairperson testified that the CSE had not recommended that the child be placed in the Vincent Smith School. The CSE recommended that the child receive individual speech/language therapy in his regular education fifth grade placement in the Vincent Smith School. The child's IEP included three annual goals. Two of the goals involved improving the child's auditory "receptive and comprehension skills," and his auditory association skills. The third annual goal, which appeared under the heading of "study skills" involved improving the child's ability to maintain and improve his skill levels in regular education coursework" ... through resource room and/or consultant teacher approach." However, the CSE had not recommended either resource room or consultant teacher services for the child. Nevertheless, the child's speech/language therapist testified that she taught the child study skills within the speech/language therapy which she provided to the child. Once again, petitioners reportedly accepted the CSE's recommendation.

        On a group administered standardized achievement test which he took in the Vincent Smith School in April, 1994, the child achieved grade equivalent scores of 2.5 in word recognition, 3.3 in vocabulary, 2.5 in reading comprehension, 2.8 in spelling, 2.1 in language, 4.5 in mathematical computation, and 2.0 in mathematical problem solving. His independent reading level was reported to be at the second grade, while his instructional reading level was reported to be at the third grade.

        The child attended the Vincent Smith School during the 1994-95 school year. He was enrolled in a regular education fifth grade class. Respondent again provided the child with speech/language therapy. In a report dated May 1, 1995, respondent's speech/language therapist indicated that the child's attentiveness and behavior continued to improve, but that behavioral issues were addressed at every session of speech/language therapy. She described the child as being generally interested in completing his school tasks, but noted that deficits in the boy's auditory and visual processing skills severely impaired his performance. She further noted that the boy's short-term and long-term memory skills were very limited.

        On March 9, 1995, the CSE held a meeting for the purpose of revising the child's IEP for the 1994-95 school year. The CSE had apparently become aware of the inappropriateness of listing the private school in which the child was unilaterally enrolled by petitioners as the child's placement in the "Recommendations" portion of the child's IEP. At the March 9, 1995 meeting, the CSE recommended that the child be placed in a regular education fifth grade class in respondent's Harbor Hill Elementary School, and that he receive 40 minutes of resource room services eight times per week, in addition to individual speech/language therapy twice per week. The IEP which the CSE prepared at that meeting included the following comment:

"The CSE has approved an appropriate placement at Roslyn Public Schools, but the parent has opted to send the student to private school. Resource room and speech services will be provided."

        At the hearing in this proceeding, the CSE chairperson testified that the child was to have received resource room services only five times per week at the Vincent Smith School, rather than eight times per week if he enrolled in respondent's Harbor Hill Elementary School. However, he acknowledged that the child's IEP did not explicitly provide for reduced amount of resource room services at the private school. The CSE chairperson also acknowledged that the child had not, in fact, received any resource room services during the 1994-95 school year. He testified that resource room services were provided by another agency to children who attended the Vincent Smith School, but had not been provided to petitioner's son because of an apparent breakdown of communication between the CSE and the administrator of the child's private school.

        On May 18, 1995, the CSE conducted its annual review of the child, and made its recommendation for the child's program and placement during the 1995-96 school year. The CSE recommended that he be placed in a self-contained special education class in respondent's Roslyn Middle School, for instruction in English, social studies, science, mathematics and reading. The child was to be mainstreamed for other sixth grade subjects. The CSE also recommended that the child receive speech/language therapy in a group of three children, twice per week. In its answer to the petition, respondent has alleged that petitioners' child is enrolled in its schools for the 1995-96 school year.

        In a letter to the CSE chairperson, dated May 22, 1995, petitioners' attorney requested that an impartial hearing be held. The attorney's letter did not indicate the reason why a hearing had been requested. With the agreement of the parties, the hearing did not begin until July 18, 1995. At the hearing, petitioners requested that they be reimbursed for the cost of their child's tuition at the Vincent Smith School during the 1994-95 school year. The hearing concluded on July 21, 1995.

        The hearing officer rendered his decision on September 8, 1995. He found that the CSE should not have listed the Vincent Smith School as the child's recommended placement on his IEPs for the 1993-94 and 1994-95 school years, but that petitioners had not been misled by the CSE's error. He further found that petitioners had been orally offered public school placements for both school years. While acknowledging that parents may obtain tuition reimbursement under certain circumstances, the hearing officer held that petitioners were not entitled to reimbursement because they had placed their child in the private school without expectation of being reimbursed, and because the record did not demonstrate that the child had received appropriate special education services in the private school.

        Respondent argues that this appeal should be dismissed because petitioners served a defective notice of intention to seek review upon respondent. In material part, 8 NYCRR 279.2(a) provides that a notice of intention to seek review must indicate to the respondent Board of Education that:

"A copy of the transcript, of each exhibit submitted at the hearing, and of the decision of the hearing officer must be filed by the Board of Education with the Office of Counsel, New York State Education Department within 10 days after service of this notice."

        The notice of intention to seek review which petitioner served upon respondent erroneously indicated that the hearing transcript and the hearing officer's decision were to be filed with the State Education Department, with respondent's answer to the petition. In the absence of any prejudice to respondent because of petitioners' erroneous notice of intention to seek review, I find that there is no merit to respondent's argument that the appeal should be dismissed on procedural grounds (Application of a Child with a Disability, Appeal No. 93-45).

        A board of education may be required to pay for education services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        Petitioners argue that the hearing officer erred by finding that their child had been offered an appropriate public school placement for the 1994-95 school year. They contend that the record establishes that the CSE did not make any recommendation for a public school placement, until March, 1995, when the school year was more than one-half over. They also challenge the validity of the CSE's March, 1995 recommendation on procedural and substantive grounds. Petitioners argue that the March 9, 1995 CSE meeting was improperly conducted because a representative of the child's private school did not attend or participate in the meeting (cf. 34 CFR 300.349 [b]). They also argue that the CSE failed to obtain adequate evaluative data to support its recommendation that the child receive resource room services, and that the CSE failed to prepare appropriate IEP annual goals for reading, mathematics and other academic subjects.

        Respondent contends that the hearing officer correctly determined that petitioners had been orally offered an appropriate public school placement for their son. It further contends that the March 9, 1995 CSE meeting and the IEP which was prepared at that meeting were valid. Respondent asserts that it provided the child with transportation and speech/language therapy at the private school during the 1994-95 school year, and that petitioners had not expected, or asked for, any other assistance from respondent.

        State regulation provides that a CSE must make a written recommendation in the form of an IEP for each child with a disability who has been determined to be eligible to receive special education services (8 NYCRR 200.4 [c][2]). The IEP which was in effect for petitioners' child at the beginning of the 1994-95 school year indicated that respondent would provide the child with individual speech/language therapy, three times per week, while the child attended the Vincent Smith School (Exhibit 9). The unrebutted testimony of the CSE chairperson established that the CSE did not in fact recommend that the child be placed in the Vincent Smith School. Indeed, respondent could not have placed the child in that private school, which has not been approved by the State Education Department as a school for children with disabilities (See Section 4402 [2][b][2] Education Law).

        In making special education services available to the child at the private school in which he was unilaterally enrolled by his parents, respondent has met part of its obligation under Federal and State law (20 USC 1413 [a][4][A]; Section 3602-c of the Education Law). However, respondent must also offer the child an appropriate placement in either a public school, or an approved private school. There is no evidence of a written recommendation by the CSE for the child's placement during the 1994-95 school year. At the hearing in this proceeding, the CSE chairperson acknowledged that the CSE had not explicitly offered a public placement for the child at the March 23, 1994 CSE meeting at which the child's 1994-95 IEP was prepared. Nevertheless the hearing officer found that a public school placement had been orally offered at the CSE meeting. I need not determine whether an oral offer of a placement was made to petitioners because the CSE was required to make a written recommendation for a public placement, in the form of an IEP. In the absence of a written IEP for a public placement, neither a hearing officer nor I could find that a board of education had offered an appropriate educational placement to a child (Application of a Child with a Disability, Appeal No. 94-13).

        The CSE revised the child's IEP for the 1994-95 school year at its meeting on March 9, 1995. It recommended that the child receive resource room services and speech/language therapy while enrolled in a regular education fifth grade class in respondent's Harbor Hill Elementary School. However, I find that the revised IEP was both untimely and inadequate. This child was classified as "speech/language impaired". The record reveals that he has severe deficits in his expressive and receptive language skills. However, the IEP did not describe either the child's language performance or needs. Such a description is essential in order to draft appropriate annual goals and short-term instructional objectives for the child. The CSE's belated offer of a placement well after the school year had begun was clearly untimely, for the purpose of determining whether respondent had offered the child an appropriate placement for the 1994-95 school year. Upon the record before me, I find that respondent has failed to meet its burden of proof with regard to the first Burlington criterion, i.e., whether respondent had offered the child an appropriate program and placement for the 1994-95 school year.

        Petitioners bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at the Vincent Smith School (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet their burden, petitioners must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        At the hearing in this proceeding, the head of the Vincent Smith School testified that approximately 45 percent of the 90 children who were enrolled in that school were educationally disabled, but that school was not a special education school. The school provided regular education, including instruction in remedial reading, to small groups of children. She testified that petitioners' child was in a class of six youngsters for most of his instruction, and in a class of three children for remedial reading. The administrator testified that the Vincent Smith School had provided the child with a nurturing environment. The administrator described the child's general academic progress as slow, but steady, and testified that his avoidance behavior and acting out in class had both decreased. Respondent's speech/language therapist also testified that the child's behavior had improved during the 1994-95 school year.

        The record which is before me includes only limited information about the child's academic growth during the 1994-95 school year while attending the Vincent Smith School. The child's report card for the fourth quarter of the school year (the only report card in the record) merely revealed that the child had made satisfactory progress in reading, language, mathematics, social studies and science, and that his personal and social development were satisfactory. A comparison of the child's standardized achievement test results in April, 1995 with those which he achieved in April 1994 reveals that his academic improvement was limited, at best. However, a child's rate of progress is but one indication of the efficacy of the services which were provided to the child. More important to my decision is the fact that petitioners have not demonstrated how the Vincent Smith School addressed the child's language disability, or how the regular education curriculum which the Vincent Smith School provided was individualized to meet the child's needs. Therefore, I must find that petitioners have failed to meet their burden of proof with respect to the second Burlington criterion, i.e., whether the services which petitioners obtained for their child were appropriate (Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 95-65). In view of my finding with respect to the second Burlington criterion, I need not reach the third criterion.

THE APPEAL IS DISMISSED.