95-072

       Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) for the placement of petitioners' daughter in respondent's "unified studies" special education program for the 1994-95 school year, and which denied petitioners' request for an order requiring respondent to reimburse petitioners for the cost of the child's tuition at the private school which she attended during that school year. The appeal must be sustained.

        Petitioners' daughter is fifteen years old. The child was classified as learning disabled upon her entry into kindergarten in the Merrick Union Free School District, in the 1985-86 school year. She remained classified as learning disabled throughout elementary school. In 1988, she was diagnosed at the Nassau County Medical Center as having an attention deficit disorder and a developmental language disorder. She obtained a verbal IQ score of 78, a performance IQ score of 85, and a full scale IQ score of 80, when tested in 1988. She reportedly manifested severe deficits in reading, as well as in expressive and receptive language. When re-evaluated by the CSE in 1991, the child achieved a verbal IQ score of 69, a performance IQ score of 81, and a full scale IQ score of 73. Her score on a test of her adaptive behavior skills was reported to be very low. In March, 1992, the child was evaluated by a private psychologist, who reported that the child had achieved a score of 90 on an entirely nonverbal IQ test.

        In June, 1992, the private psychologist described the child as having delayed development of her fine motor skills, deficits in attention and concentration, and problems with short-term auditory and visual memory, as well as difficulty retaining information and generalizing from what she had learned. The psychologist noted that speech/language evaluations of the child had revealed that there were delays in the child's development of age appropriate skills for social interaction, activities of daily living, and community living, and that her language deficits had impacted upon her academic development.

        At the psychologist's suggestion, petitioners had the child evaluated by pediatric neurologists of the Schneider Children's Hospital, in April, 1992, when the child was in the sixth grade. The neurologists noted that the child took the medicine Ritalin to moderate the effects of her attention deficit disorder. The neurologists reported that on an academic screening, the child's word recognition skills were at the mid-first grade level, her spelling skills were at the beginning first grade level, and her mathematics skills were at the mid- second grade level. On a test of oral reading for comprehension, the girl had achieved a score at the low first grade level, while her listening comprehension skills were reported to be at the third grade level. The child exhibited several "soft signs" of a neurological impairment, such as slow and incomplete finger movement and loss of balance while walking backward. However, the neurologists reported that the results of their neurological and physical examination were normal, and they opined that additional neurological testing of the child was not warranted.

        The child was enrolled in a full-day, self-contained special education class for kindergarten in the Lakeside Elementary School of the Merrick Union Free School District. She remained in self-contained classes through the sixth grade in the Lakeside School. At petitioners' request, the child was provided with one period per day of resource room services while she was in the fourth grade. An additional period of resource room services was provided to the child in the fifth grade. In the middle of the sixth grade, the child began to receive individual instruction in reading, on a daily basis.

        Respondent provides secondary school instruction for the residents of the Merrick Union Free School District. As the child entered the seventh grade in the 1992-93 school year, she came within the jurisdiction of respondent's CSE. In July, 1992, the CSE recommended that the child's classification be changed from learning disabled to multiply disabled. The minutes of the CSE meeting indicate that the child's new classification was recommended because the child had language, academic, fine motor and gross motor deficits, as well as ADD, and she exhibited soft neurological signs. The child has remained classified as multiply disabled, since 1992. Her classification is not in dispute in this proceeding.

        The CSE also recommended that the child be placed in 12:1+1 special education class for the seventh grade in respondents' LDC program in the Merrick Avenue Junior High school. The child was to be mainstreamed in regular education classes for special subjects, such as music, art, and physical education. The CSE further recommended that the child receive individual and small group speech/language therapy, and individual reading instruction. On her individualized education program (IEP) the child was described as having no reading decoding skills, and inconsistent word recognition skills. She was further described as being unable to focus and work consistently, and as lacking the prerequisite language processing skills for reading. The IEP also indicated that the child had almost no written language skills. Her mathematics skills were reported to be at the mid-second grade level.

        Petitioners unilaterally enrolled their child in the Eagle Hill School for the 1992-93 school year. She remained in that school, at petitioners' expense, for the entire school year. The Eagle Hill School, which is located in Greenwich, Connecticut, is a private school for learning disabled children. It has not been approved by the New York State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for the tuition of children who attend such school. However, that fact is not dispositive of a parent's claim for reimbursement by a school district for a child's tuition at the private school (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

        Petitioners requested that a hearing be held to review the CSE's recommendation for the 1992-93 school year. In July, 1993, an impartial hearing officer found that the educational program which the CSE had recommended would have been appropriate to meet the child's needs. However, she held that respondent had not met its burden of proving that it had offered the child an appropriate placement, because respondent had not operated the class to which the child was to have been assigned. The class, which was to consist of four children, was reportedly not established after petitioners indicated their intention to place their daughter in the Eagle Hill School. The hearing officer remanded the matter to the CSE.

        For the 1993-94 school year, the CSE recommended that the child be placed in an eighth grade skills class, using the consultant teacher model for English and social studies, and having the assistance of a remedial mathematics teacher for mathematics. The child was to be mainstreamed for special subjects, and was to receive speech/language therapy and individual remedial reading instruction. Petitioners requested that a hearing be held to review the CSE's recommendation. In March, 1994, petitioners and the Board of Education entered into an agreement, by which the Board of Education paid $50,000 to petitioners, in full settlement of all of their claims with regard to the 1992-93 and 1993-94 school years. The parties also agreed that petitioners would provide the CSE with information about the girl's educational achievement and progress at the Eagle Hill School, so that the CSE could prepare its recommendation for the child's program and placement during the 1994-95 school year.

        On June 1, 1994, the chairperson of respondent's CSE observed the child in her mathematics and literature classes in the Eagle Hill School, and discussed her academic performance with the girl's academic advisor in the private school. The CSE chairperson prepared a written report of her visit to the private school, in which she noted that the child had not done well in a small group mathematics class, and had received individual instruction in mathematics for most of the 1993-94 school year. She further noted that the child had found it necessary to draw pictures to illustrate each word problem in order to gain an understanding of the necessary mathematical computations. In the literature class, the CSE chairperson observed that the child needed approximately 15 minutes to read about 6 sentences from text material which was at or about the sixth grade level. The CSE chairperson reported that the child's teachers had indicated to her that the child's classroom performance in reading was between the second and third grade levels, while her instructional level was at the beginning fourth grade level. The CSE chairperson and the child's educational advisor agreed that the child was an appropriate candidate for an "IEP diploma" (see 8 NYCRR 100.6), rather than a local or Regents high school diploma.

        In its end-of-year report on the child, the Eagle Hill school included certain standardized test results for the child. She reportedly achieved grade equivalent scores of 4.9 in reading vocabulary, 4.3 in mathematical computation, and 3.5 in mathematical applications. On a test measuring her ability to read sight words in isolation, the child achieved a grade equivalent of 4.9, while on an oral reading test, she achieved grade equivalent scores of 3.8 in accuracy, and 5.1 in comprehension. At the hearing in this proceeding, the child's educational advisor testified that she had cautioned the CSE chairperson about the validity of the child's test results, and had explained that the child's functional levels were at the third to fourth grade in reading, and the second grade in mathematics.

        On July 14, 1994, the CSE conducted its annual review. The child's educational advisor in the Eagle Hill School participated by telephone in the annual review. The CSE recommended that for the 1994-95 school year, the child should be enrolled in the unified studies program for all instruction in respondent's Calhoun High School. The child was to receive direct special education instruction in ninth grade English and social studies, consumer mathematics, reading, and "introduction to occupations" (keyboarding), and supplementary instruction in a resource room for one period per day. She was also to receive one period per day of remedial reading instruction. Although the CSE did not expressly recommend that the child be mainstreamed for physical education, the CSE chairperson testified at the hearing that the girl would have been enrolled in a regular education physical education class. The child's IEP provided that she would receive individual counseling for 44 minutes, once per six day cycle, and small group speech/language therapy in 30 minute sessions, three times per week. The IEP also provided that the child was expected to earn her high school course credits in special education classes "providing (equivalent) instruction" in English 9, social studies 9, introduction to occupations and consumer mathematics. Her individual IEP annual goals included that she would not only earn passing grades in her respective courses, but would also pass the Regents Competency Tests in global studies, reading and writing, which must be passed to obtain a high school diploma (8 NYCRR 100.5 [a][4]). While a passing grade on the Regents Competency Test for mathematics must also be obtained to qualify for a high school diploma, the IEP did not address that issue, nor did it include any annual goal for the speech/language therapy which the CSE had recommended. The child's IEP did include as an annual goal that the child would participate in the assessment process, i.e., that she would have a Level II vocational assessment done at the local BOCES during the 1994-95 school year. A handwritten entry on the bottom of the first page of the IEP indicated that a "team conference" would be held no later than October 13, 1994 to discuss the child's progress in the unified studies program.

        The child remained in the Eagle Hill School, at petitioners' expense, for the 1994-95 school year. On or about July 14, 1994, petitioners requested that an impartial hearing be held to review the CSE's recommendation for the 1994-95 school year. The hearing officer in this proceeding was reportedly appointed by respondent on August 3, 1994. However, he was not notified of his appointment until April 3, 1995. The hearing began on May 10, 1995, at which time petitioners' attorney made a motion that the hearing officer provide petitioners with interim relief in the form of financial damages equal to the sum they had paid for tuition at the Eagle Hill School from September, 1994 through May 10, 1995, or beyond, on the ground that respondent had allegedly violated their procedural due process rights by not promptly arranging for a hearing, in accordance with Federal and State regulations (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). Respondent opposed the motion on the ground that at least part of the blame for the untimeliness of the hearing was attributable to the alleged delay of petitioners' attorneys. The hearing officer reserved decision on petitioners' motion. When the hearing reconvened on June 2, 1995, the hearing officer denied the motion for interim relief, on the ground that he lacked the authority to order respondent to reimburse petitioners for the cost of the child's tuition prior to a determination that they were entitled as a matter of decisional law to be reimbursed. Petitioners have not explicitly asked that the hearing officer's ruling on their motion be reviewed, and I will not address the issue.

        The hearing continued on June 6, 1995 and June 24, 1995, and concluded on July 25, 1995. In his decision, which was rendered on September 11, 1995, the hearing officer found that the child's IEP for the 1994-95 school year accurately identified her educational needs and present levels of performance, and that the IEP annual goals and short-term instructional objectives were related to her educational deficits. He also found that respondent's unified studies program would address the child's educational needs, and that she would be grouped for instructional purposes with children of similar abilities and needs (8 NYCRR 200.6 [g][2]). The hearing officer further found that the placement of the child in the unified studies program was consistent with the least restrictive environment requirement, and held that respondent had met its burden of proof of showing that it had offered the child an appropriate program and placement for the 1994-95 school year. In addition, he found that the Eagle Hill School would not have been the least restrictive environment for the child.

        Petitioners assert that the hearing officer erred in finding that the IEP which the CSE prepared for the child was adequate to meet her individual educational needs, and in finding that placement of the child in the Eagle Hill school was inconsistent with the least restrictive environment requirement. They ask that respondent be ordered to pay for the child's tuition at the Eagle Hill School for the 1994-95 school year. It should be noted that the record reveals that the child lived in an Eagle Hill School dormitory during the week, but went home on the weekends during the 1994-95 school year. Petitioners do not assert that the child required a residential placement, nor have they sought reimbursement for any expenditure but tuition in this proceeding.

        A board of education may be required to pay for educational 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 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]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Petitioners argue that the child's IEP did not accurately identify the child's educational needs. The IEP indicated that the child had been found to be educationally disabled because she had severe language processing deficits, academic deficits, and fine and gross motor disabilities. Although petitioners assert that the IEP should have indicated that the child had ADD, I note that the IEP did indicate that she was highly distractible and had a limited attention span. With regard to the three deficits which the IEP did identify, I find that the IEP did not provide adequate information about either the child's language processing disability, or her fine and gross motor disability, to prepare relevant annual goals and short-term instructional objectives. The IEP indicated that the child had an expressive and receptive language disorder, and that her written expression was "below expectancy," but did not indicate the extent of her language disability. I must also note that the IEP reported the child's score on a nonverbal IQ test, but did not indicate any verbal IQ score for her. This omission was significant because serious questions have been raised about her learning rate, in terms of her ability to achieve the IEP's annual goals and short-term objectives, and her placement in a high school diploma oriented program. Despite the fact that the IEP identified the child as having a fine and gross motor disability, there was no indication in the IEP of her present levels of performance (cf. 34 CFR 300.346 [a][1]; 8 NYCRR 200.4 [c][2][i]), or how that disability impaired her educational performance.

        Petitioners argue that the IEP was deficient because it did not include any annual goal or short-term instructional objective related to the child's severe language processing deficit. Respondent argues that the short-term objectives for the child's content courses, e.g., English, social studies, and mathematics, would have served as objectives for the child's speech/language therapy, and that the speech/language therapist would have prepared appropriate annual goals and objectives in the Fall of 1994. However, the CSE has the responsibility to prepare goals and objectives (8 NYCRR 200.4 [c][2][iii]). In addition, I find that there was no basis for determining whether the content course objectives were appropriate, or whether the child's achievement of those objectives would address her language needs, because the CSE failed to adequately identify the child's language needs and her levels of performance.

        Petitioners challenge the appropriateness of the IEP goals which proposed that the child would earn ninth grade high school credits in English, social studies, consumer mathematics and introduction to occupations. The IEP goals also indicated that the child would prepare to pass the Regents Competency Tests in reading, writing, and global studies. I note that in the child's IEP for the 1992-93 school year (the seventh grade) she was identified as an IEP diploma candidate, and that during her visit to the Eagle Hill School before the 1994-95 IEP was prepared, the CSE chairperson and the child's Eagle Hill academic advisor discussed the chairperson's perception that the child was probably an IEP diploma candidate. The CSE chairperson also testified that the child's academic advisor had expressed doubt whether the child would even take regular ninth grade courses, if she remained at Eagle Hill for the 1994-95 school year, because her skill levels were so far below those of other ninth grade children. Although the CSE chairperson further testified that the CSE had not determined whether the child was a candidate for either an IEP or a local high school diploma, I find that there is no factual basis in the record for proposing that the child would be earning high school credit and preparing for the Regents Competency Tests during the 1994-95 school year.

        The record reveals that, as a result of her severe language deficits, the child's language skills were not adequately developed to meet the IEP global studies instructional objectives which required the child to generalize, draw inferences, interpret, integrate, or contrast concepts. Similarly, the IEP objectives for the unified studies English class, which included strengthening her ability to correctly summarize reading material, recognize the main idea, recall events in proper sequence, and to effectively express thoughts and opinions in correct written form, do not appear to be relevant to the child's educational needs and present levels of performance. Although the child was to have received primary special education instruction in reading in her first period reading class, the CSE failed to include any annual goal or instructional objective for that instruction. Upon the record before me, I find that respondent has failed to demonstrate that the child's IEP goals were related to her educational deficits.

        The next issue to be determined is whether the IEP provided for the use of appropriate special education services to address the child's special education needs. The CSE recommended a combination of special education instruction in content areas and skill development. The child's content area instruction would be provided in unified studies special education classes having no more than 15 children and one teacher. At the hearing, the CSE chairperson testified that the class size during the 1994-95 school year ranged from four in reading to ten in English. Notwithstanding the child's difficulty in a mathematics class of two children at the beginning of the 1993-94 school year, the child's unified studies mathematics class would have included eight other children. The CSE chairperson acknowledged in her testimony that the child had ADD, but asserted that the child's management needs could be met by teachers who were aware of her need to be refocused. However, she failed to address how the child's academic needs, given her severe language processing deficits and ADD, could be met in a program with classes of up to 15 children, who were working to earn high school credit and pass Regents Competency Tests. With regard to the child's skill development, the CSE recommended that the child receive specialized instruction in reading and speech/language. However, it failed to include annual goals for such instruction, and respondent failed to provide detailed information about how the child's reading and language skills would be developed. I am compelled to find that respondent has not demonstrated that the child would be afforded a reasonable opportunity of achieving educationally relevant annual goals in the educational program which the CSE recommended.

        Having found that respondent has failed to meet its burden of proof with respect to the appropriateness of the educational program which it offered to provide the child, I now turn to the question of whether the educational program which petitioners obtained for her at the Eagle Hill School was appropriate during the 1994-95 school year. Petitioners bear the burden of proving the appropriateness of the services which they obtained for their child (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSE, Appeal No. 94- 34). To meet their burden, petitioners must show that the services which they obtained 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.

        The record reveals that the child has ADD and a developmental language disorder. As a result of her ADD, the child has deficits in attention and concentration, deficits in visual and auditory memory, and difficulty retaining and generalizing information. I find that the Eagle Hill School addressed the child's needs as a result of her ADD by providing individual instruction in mathematics, and instruction in small groups in other content areas. The child received content area instruction in mathematics, literature, writing and biology. The school provided the child with individual tutoring to develop her reading skills, and to reinforce the instruction provided in the content areas. Within her educational program, the child was exposed to a variety of learning modalities. For example, she was instructed in mathematics, with the use of manipulative and illustrative materials. The child was presented with information which had been broken down into small components, with frequent repetition, to accommodate her slow learning rate and memory deficits. The child's developmental language disorder has impaired her ability to engage in age appropriate social interaction, as well as to achieve academically. The record reveals that the private school worked with the child to enable her to recognize and articulate her needs for assistance in the classroom and in social interaction. In addition to individual tutoring in reading and specialized instruction in writing, the child also received speech/language therapy to address the difficulties caused by her developmental language disorder.

        The child's achievement, as determined by her performance on standardized tests administered by the Eagle Hill School for diagnostic purposes in September, 1994 and May, 1995 was mixed, at best. On the Slosson Oral Reading Test, which measures a child's ability to read sight words in isolation, the child achieved a grade equivalent score of 4.7 in September, but only 3.7 in May. However on the Gilmore Oral Reading Test, which assesses the accuracy of the child's reading and the child's short-term comprehension of the material, the child achieved grade equivalent scores of 3.5 in accuracy and 3.8 in comprehension in September, and 5.3 in accuracy and 5.4 in comprehension in May. In view of the nature of her disability and of the evidence of the private school's program, I find that the Eagle Hill School met the child's instructional needs during the 1994-95 school year.

        Respondent argues that the child's placement was inappropriate because the child did not require a residential school in order to receive appropriate educational opportunities, and that her placement was not the least restrictive environment. I find that respondent's argument is without merit. Petitioners have not requested reimbursement for a residential placement, and the record indicates that the child boarded at the private school during the week as a matter of convenience to petitioners. For the purposes of this proceeding, the child was in a day placement in a private school, where her peers were children with learning disabilities. In the program which the CSE had recommended, the child would also have spent virtually her entire school day in the company of children with disabilities. That program has been found to be inappropriate for other reasons. There is nothing in the record which is before me indicating that there was a less restrictive alternative to the Eagle Hill School available to petitioners.

        The third criterion for tuition reimbursement under the Burlington decision is whether equitable considerations favor the parents' reimbursement. The record reveals that petitioners have cooperated with respondent's CSE, at all times. I have also considered the fact that the resolution of this proceeding has been inordinately delayed by the long hiatus between petitioners' request for a hearing in July, 1994, and the commencement of the hearing in May, 1995. Although neither party appears to have vigorously pursued the matter, I must remind respondent of its obligation to ensure that these proceedings are expeditiously concluded. I find that equitable factors support the award of tuition reimbursement to petitioners.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the child's tuition at the Eagle Hill School during the 1994-95 school year, upon presentation of proof of those expenditures by petitioners to respondent.