95-074

       Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioners' child be educated during the 1995-96 school year in a self-contained special education class of the Board of Cooperative Educational Services of Orange and Ulster Counties (BOCES), and which denied petitioners' request for reimbursement to them for the cost of their child's education in a private residential school. The appeal must be dismissed.

        Petitioners' daughter, who is twelve years old, has been classified as learning disabled since May, 1989, when the child was in kindergarten in respondent's Golden Hill Elementary School. The child's kindergarten teacher reported that the child had difficulty getting along with others, communicating, and paying attention. She also reported that the child frequently displayed verbal outbursts, and exhibited perseverative behavior. Prior to her classification, the child had been diagnosed as having an attention deficit disorder (ADD) by a neurologist, who prescribed medication for the child's ADD. The neurologist referred the child to a private learning disabilities consultant, who reported that the girl achieved a verbal IQ score of 92, a performance IQ score of 73, and a full scale IQ score of 81. The consultant reported that the child exhibited deficits in her attention span, expressive and receptive language skills, auditory memory skills, listening skills, information processing, concept development, visual motor and graphomotor skills, sequencing ability, and short-term memory. The consultant recommended that the child be referred to the CSE, and be evaluated by an occupational therapist.

        The child was also evaluated by a psychiatrist, prior to being classified as learning disabled. The psychiatrist reported that the child was easily distracted, impulsive, and socially disinhibited, and that her speech pattern and pencil grip were immature. He also reported that the child exhibited "soft" signs of a neurological impairment, such as an inability to perform rapid movements, involuntary finger movements, and a poor tandem walk. The psychiatrist diagnosed the child as having an attention deficit with hyperactivity disorder (ADHD) a developmental language disorder, and a separation anxiety disorder. He reported that the child also exhibited symptoms of either an obsessive compulsive disorder or Tourette's Syndrome.

        Respondent's CSE recommended that the child be classified as learning disabled, and that she receive speech/language and occupational therapy evaluations. The occupational therapist who evaluated the child recommended that the child receive occupational therapy once per week to improve her bilateral integration, posture control, motor planning, fine motor, and visual perceptual skills. The speech/language evaluator reported that the child's receptive and expressive language skills were below average, and that her spontaneous speech was telegraphic, i.e., choppy. She also reported that the child receive individual speech/language therapy, at least three times per week.

        For the 1989-90 school year, the CSE recommended that the child be placed in a BOCES special education class. However, petitioners opted to place the child in the first grade of the Bishop Dunn Memorial School, a private school for children with disabilities. The child reportedly made progress in developing her academic and social skills during the first grade. When tested in March, 1990, her academic skills were reported to be at the kindergarten level. She also benefitted from the speech/language and occupational therapy which she received at the Bishop Dunn Memorial School.

        The child continued to attend the Bishop Dunn Memorial School, at petitioners' expense, until the end of the 1992-93 school year. In May, 1992, the CSE completed the child's triennial evaluation. The child achieved a verbal IQ score of 64, a performance IQ score of 54, and a full scale IQ score of 55, but her evaluator cautioned in his report that the child's scores might not accurately reflect the child's cognitive ability. He noted that the child exhibited an attention deficit and perseverative behavior. Nevertheless, he reported that the child exhibited consistent deficits in the language and visually related cognitive domains, and he opined that those deficits would probably have been evident regardless of the child's ability to pay attention. The child exhibited a delay of approximately four years in the development of her visual motor integration skills. The evaluator noted that the child continued to evidence fine motor deficits. The evaluator reported that the child's social judgment, awareness and discrimination were significantly below age level, and that her interpersonal relationships were impaired by her language deficits and her stereotypical and compulsive mannerisms.

        The CSE reviewed the results of the child's triennial evaluation in June, 1992, as the child completed the third grade. The child's teacher in the Bishop Dunn Memorial School reported that the child required structure and routine. The girl's reading skills were reported to be at the first grade level, and her mathematics skills were reported to be at the beginning second grade level. The teacher reported that the child had made progress in the area of socialization. The child's occupational therapist recommended that occupational therapy for the child be discontinued. The CSE recommended that the child be placed in a self-contained special education class for the 1992-93 school year.

        Petitioners were dissatisfied with the results of the school district's psychological evaluation of the child, and they obtained an independent evaluation of the child by the private learning disabilities consultant who had evaluated the child in 1989. The consultant reported that the child had achieved a composite score of 70 on the Stanford Binet Intelligence Test, with scores of 78 in verbal reasoning, 83 in abstract/visual reasoning, and 63 in short-term memory, when tested in September, 1992. The child's reading skills were reported to be at the mid-first grade level. The child exhibited significant delays in visual motor integration and receptive language skills. The consultant opined that the child was more dependent upon rote learning than the average child because she had limited ability to comprehend and to generalize new information. She also opined that the child's ability to learn was impaired by deficits in her ability to retain and recall information. She reported that the child had made limited academic progress, and expressed concern about the child's emotional and behavioral delays. The consultant recommended that the child continue to be educated in a self-contained special education class, with the related services of occupational therapy, speech/language therapy, and counseling.

        A neurologist, who evaluated the child in January, 1993, reported that the child had normal vision and hearing, and that her cranial nerves were intact. She described the child's gait and muscle tone as normal. The neurologist reported that the child still exhibited some difficulty performing rapid movements, a moderate degree of motor overactivity, and some lack of coordination in gross motor activities. She described the child's speech as rapid, choppy, and perseverative. The neurologist referred to the child as being neurologically impaired, and as having a pervasive developmental disorder.

        In March, 1993, the Bishop Dunn psychologist evaluated the child. He reported that the child appeared to have made progress in her self-expression and control of her impulsivity. Nonetheless, he found that she continued to exhibit mild distractibility and impulsiveness, and to ask inappropriate questions. The child, who was in the fourth grade when evaluated, achieved grade equivalent scores of 1.1 in listening comprehension, K.6 in oral expression, 1.4 in basic reading, 1.8 in reading comprehension, 1.8 in spelling, K.3 in mathematical reasoning, and 1.4 in numerical operations. On another achievement test, the child demonstrated that she had made approximately three months of progress in reading, eight months of progress in mathematics, and no progress in general knowledge, in the year since that test was previously administered to her in August, 1991. The psychologist also reported that the child had not demonstrated any improvement in the development of her hand-eye coordination, fine motor control and attention to detail.

        The child was evaluated by a psychiatrist in the Westchester County Medical Center, at petitioners' request, in April, 1993. The psychiatrist diagnosed the child as having a pervasive developmental disorder because the child manifested various cognitive, language, behavioral, and social problems. While noting that the child was impulsive and distractible, he opined that the child's more significant symptoms involved her obsessive and perseverative behavior.

        For the 1993-94 school year, respondent's CSE recommended that the child be enrolled on a twelve-month basis in a BOCES special education class with a child to adult ratio of 12:1+1. The CSE also recommended that the child receive group counseling, individual occupational therapy, and group and individual speech/language therapy. The individualized education program (IEP) which the CSE prepared for the child included annual goals and short- term instructional objectives to improve the child's reading, mathematics, writing, interpersonal, motor, and special/language skills, and to develop her self-concept. Petitioners accepted the CSE's recommendation, and the child entered the BOCES program in July, 1993.

        In February, 1994, the CSE recommended that the child remain in the BOCES special education class for the 1994-95 school year. Once again, the CSE recommended that the child be instructed on a twelve-month basis, and that she receive the same related services which had been provided to her during the 1993-94 school year. The child's IEP goals and objectives was comparable to those for the 1993-94 school year. Petitioners accepted the CSE's recommendation.

        In June, 1994, the child's special education teacher during the 1993-94 school year reported that the child had made progress in developing her vocabulary and grammar, and her ability to write two or three related sentences. The child's skill in telling time also improved, as did her ability to perform the regrouping operation in mathematics. The teacher reported that the child's reading skills were at the late second grade level. Although the child had expressed an interest in social interactions, she was unable to interact with peers without adult involvement. The teacher reported that the child's interpersonal skills were severely limited. The child successfully completed pre-vocational training. Her speech/language therapist described the child's progress as inconsistent, while her occupational therapist reported that the child had made good progress. The child's counselor reported that the child had responded positively to group counseling.

        In a December, 1994 educational evaluation, the child achieved grade equivalent scores of 2.0 in letter-word identification, 2.0 in passage comprehension, K.8 in mathematical calculation, K.4 in applied problems, 2.0 in dictation, and 2.4 in writing samples. The child manifested significant delays in her visual and auditory skills.

        In a report in the middle of the 1994-95 school year, the child's special education teacher reported that the child was participating in a literature based reading program, using a multisensory phonics program. She also reported that the child continued to have difficulty comprehending what she read. In mathematics, the child was reported to be working at the third grade level. Her limited attention span had reportedly hindered her performance in social studies and science. The child's teacher also reported that the child had difficulty engaging in appropriate conversations, and that she avoided any peer interaction. The child's speech/language therapist reported that the child's speech intelligibility had improved by controlling her rate of speech. The speech therapist also reported that the child's performance was inconsistent in the development of her auditory skills, and that the child's area of greatest need was in pragmatic language skills. She noted that the child had trouble maintaining a topic of conversation, and found it difficult to relate to her peers.

        The CSE's annual review of the child's program and placement was scheduled to be held on February 14, 1995. By letter to the CSE chairperson, dated January 27, 1995, petitioners expressed their belief that the BOCES placement did not meet the child's needs. They alluded to the child's need for a structured environment at home, as well as in school, and asserted that the BOCES did not provide a "skill socialization curriculum." They also asserted that the needs of a child with a pervasive developmental disorder, such as their daughter, were different from those of the developmentally delayed children who were enrolled in the BOCES program. Petitioners requested that the CSE advise them of the location of the child's proposed 1995-96 placement at the annual review. They asserted that the Maplebrook School, a private school in Amenia, New York, could meet the child's educational and social needs, and they asked the CSE to consider placing the child in that private school.

        Prior to the CSE's annual review, the child was re-evaluated by the private learning consultant. The consultant reported that the child achieved a verbal reasoning score of 84, an abstract/visual reasoning score of 71, a short-term memory score of 70, and a composite score of 70 on the Stanford- Binet Intelligence Scale. The child achieved grade equivalent scores of 2.8 in oral reading accuracy and 2.5 in oral reading comprehension. The child's spelling skills were reported to be at the first grade level, and her mathematical skills were found to be at the second grade level. The consultant reported that the child continued to display uneven development and characteristics associated with neurologically based problems. Although the child's achievement was described as moderately below expectation in light of her IQ, the consultant opined that her more significant concern was in developing the child's social skills and social adaptive behavior. The consultant noted that children who aged out of the child's present BOCES program went into a junior high program for higher functioning children, or a developmentally disabled program for the lower functioning children. The consultant opined that neither BOCES program would be appropriate for the child, and recommended that the child be placed in a residential school which could provide academic instruction, life skill experiences, social adaptive training, and social interactions with peers who were also of low average intelligence.

        The child's triennial psychological evaluation was completed by respondent's school psychologist on February 12, 1995. The school psychologist reported that the child was cooperative during the evaluation, but that her difficulty with language skills, short-attention span, and perseverative behavior had affected the reliability of the child's test results. On the Stanford-Binet Intelligence Scale, the child obtained scores of 73 in verbal reasoning, 71 in abstract/visual reasoning, 68 in quantitative reasoning, 63 in short-term memory. Her test composite score was 65. Noting that the child's score in abstract/visual reasoning had declined by 12 points from her score in the 1992 triennial, the evaluator attributed the decline to the child's poor attention span and ability to concentrate. The child manifested a six year delay in her visual motor integration skills. An emotional and behavioral problem scale, which was based upon information provided by the child's teacher at the BOCES, revealed that the child continued to have many social/emotional and behavioral problems, despite many efforts at remediation. She reportedly called out inappropriately in class, and did not socialize with her peers. However, she reportedly related well to adults, and had positive self-esteem. The school psychologist recommended that the child be educated in a special education program which provided structure and used multi- sensory techniques, and which focused upon developing her life skills. He also recommended that the child continue to receive speech/language therapy and counseling.

        On February 14, 1995, the CSE met with petitioners and the private educational consultant to conduct its annual review of the child. The child's special education teacher reported that the child was functioning at a mid- second to beginning third grade level in reading, and that her oral reading skills were stronger than her comprehension skills. The teacher indicated that the child required much individual assistance to complete tasks in mathematics, social studies and science, and that she did not interact with the other children in the class. Petitioners and the educational consultant acknowledged that the child had made academic progress while in the BOCES program, but expressed concern about the low level of the child's social skills and the ability of the BOCES program to meet the child's needs. The CSE recommended that the child remain classified as learning disabled, and that she be placed in a 12:1+1 BOCES special education class on a twelve-month basis, for the 1995-96 school year. The CSE did not identify a specific class for the child. It did recommend that the child receive speech/language therapy three times per week in a small group, and once per week on a 1:1 basis. The CSE further recommended that the child receive 1:1 counseling once per week. The IEP which the CSE prepared for the child included academic goals which were consistent with those of the child's prior IEPs, and social goals for improved eye contact and interaction in the classroom. It also included counseling goals for the child's improved self-awareness, and for appropriate conduct in a variety of social situations.

        In a letter to the CSE chairperson, dated February 16, 1995, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The hearing began on March 22, 1995. Respondent's attorney acknowledged that the CSE's recommendation was incomplete because it did not include a specific placement at the BOCES (Application of a Child with a Disability, Appeal No. 93-15), and he asked for an adjournment of the hearing to enable the CSE to complete its recommendation. The hearing officer adjourned the hearing until April 4, 1995, upon the understanding that the CSE would reconvene on March 30, 1995.

        At its meeting of March 30, 1995, the CSE reviewed and revised the child's IEP annual goals and short-term instructional objectives. Goals and objectives for developing the child's prevocational and activities for daily living skills were added to the IEP. The CSE recommended that the child be placed in a BOCES special education class for higher functioning developmentally delayed children. At this meeting, petitioners expressed concern about the appropriateness of the grouping of children in the proposed class for their child. The CSE agreed to obtain additional information about the social skills and behavioral needs of the children to be educated in the proposed class, and to consider a social skills rating of the child by her parents.

        When the hearing in this proceeding reconvened on April 4, 1995, the CSE had obtained the additional information which it had agreed to obtain, but had not reconvened to discuss the information. Respondent's attorney again asked the hearing officer to adjourn the hearing. Petitioners opposed respondent's request. The hearing officer denied the request for an adjournment, but did not foreclose the CSE from reconvening. On April 26, 1995, the CSE reconvened. It reviewed a profile of the children who were to be enrolled in the BOCES class, and adhered to its prior recommendation that the child be enrolled in that class.

        The hearing in this proceeding concluded on July 24, 1995. The hearing officer rendered his decision on September 28, 1995. In his decision, the hearing officer found that the child did not require a residential placement, as petitioners had requested, and that the BOCES placement which respondent's CSE had recommended was reasonably calculated to provide the child with educational benefits. He denied petitioners' request that respondent pay for the child's educational placement in the private Maplebrook School.

        Before reaching the merits of this appeal, I must address respondent's request that I do not consider petitioners' memorandum of law because it was not served and filed in a timely manner. Section 279.4 of the Regulations of the Commissioner of Education provides that an appeal to the State Review Officer is to be initiated by filing, with the Office of Counsel of the State Education Department, the petition for review, memorandum of law, and any additional documentary evidence. The materials filed with the Office of Counsel are also to include proof of service of the petition and other documents upon the respondent. The petition is this proceeding was filed on November 6, 1995. However, petitioners' memorandum of law was not served upon respondent's counsel until December 4, 1995, and was received by the Office of State Review on December 6, 1995. As a result, it was served after the respondent's answer to the petition and respondent's memorandum of law were served. Inasmuch as petitioners have not offered any explanation for the late submission of the memorandum of law, I will not accept that document as part of the record before me.

        Petitioners challenge the hearing officer's decision. They contend that he erred in upholding the proposed BOCES placement because respondent failed to demonstrate that it would meet the child's social needs, or that petitioners' child would be appropriately grouped with children having similar needs and abilities in the BOCES class. They further contend that the Maplebrook School is the least restrictive alternative placement which is available.

        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 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]).

        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).

        The child's current functional levels were described in her IEP for the 1995-96 school year (Exhibit B) in terms of the results of the evaluations performed by respondent's school psychologist, the private consultant, a BOCES educational evaluator and respondent's speech/language therapist. In addition to information about the child's cognitive, perceptual, and academic skills, the IEP also described her speech/language skills and her social skills. It also described the child's management needs, in terms of her need for supervision and redirection. Since the primary area of disagreement between the parties appears to be with regard to the child's social skills, I note that the child's IEP indicated that the child does not socialize with peers, even when opportunities are created to facilitate her interaction with peers. The IEP also indicated that the child related well to adults, but frequently asked inappropriate questions. Although the child has been medically diagnosed as having, or exhibiting the symptoms of, a pervasive developmental disorder (PDD), that diagnosis would not per se require a different description of her educational needs. The limited information about PDD which is in the record before me indicates that PDD typically involves impaired reciprocal social interaction, and verbal and nonverbal communication, as well as restricted repertoire of activities or interests. I find that this child's IEP adequately described her special education needs, including academic, communication and socialization.

        The child's IEP included annual goals for language arts, mathematics, science, social studies, prevocational studies, and physical education. The child's short-term instructional objectives for language arts and mathematics indicated that she would be expected to perform at the second grade level in language arts, and at the third grade level in mathematics. Her teacher during the 1994-95 school year testified that the child's academic goals were realistic and achievable. The child's IEP also included two goals related to improving the child's communications and language skills, and one annual goal to develop and improve the child's social skills and behavior. The latter goals was to be achieved through five objectives which ranged from improving eye contact with peers to decreasing the frequency of her inappropriate comments and perserverative questioning, and from developing appropriate sensitivity to others' body boundaries to identifying appropriate conduct for different social situations. The child's social skill deficits would also have been addressed in the child's speech/language therapy program, which included an objective to have the child participate in responsive discourse. In addition, she was to receive counseling. One of the child's annual goals for counseling was to demonstrate an improvement in appropriate social skills and behavior. The IEP also included an annual goal for activities for daily living, with objectives which also focused upon the child's social skills. Petitioners have not challenged the appropriateness of these IEP goals, but they assert that the IEP provided only minimal focus upon the development of the child's social skills. However, I find that the IEP provided annual goals and short-term instructional objectives to address each of the child's identified special education needs.

        The primary disagreement between the parties is whether the special education services which the CSE recommended for the child were appropriate for her. Petitioners contend that there are "inherent limitations" in the BOCES program which would preclude the child from making adequate progress towards achieving her IEP goals. According to petitioners, the BOCES staff are not trained to work closely together and the BOCES does not provide the small group instructional setting which the child requires. In addition they contend that the BOCES cannot provide the structured environment which the child requires from awakening in the morning until bed-time in the evening. In essence, petitioners contend that the child has made only slight progress academically and socially while at the BOCES, and that she requires a more intensive level of special education services than can be provided in a day placement.

        Although the child's academic and social progress has been slow, it does not follow that the BOCES 12:1+1 class and the related services which the child has received have been inadequate. The record reveals that the child has progressed while at the BOCES, notwithstanding the fact that her academic performance and behavior have been inconsistent. The inconsistency of her performance reflects the nature and extent of her disabilities. Petitioners have not seriously disputed the accuracy of the final quarterly report (Exhibit 35), or the testimony of the child's teacher about the progress which the child made during the 1994-95 school year. At the hearing in this proceeding, petitioners' learning disabilities consultant acknowledged that the child had made a remarkable improvement in her social skills between 1992 and 1995. The consultant also testified that the child required a multisensory instructional program. A BOCES administrator testified that multisensory instruction would be provided to the child in the BOCES class which the CSE had recommended. With regard to class size, I note that the child's teacher testified that the child could adequately learn in a 12:1+1 class. I have considered petitioners' claim that the child requires a small class size, but I find that the record does not support their claim. Similarly, I find that there is no merit to their assertion that the BOCES staff are not trained to work together.

        At the hearing, the private learning disabilities consultant testified that the child required a program in which her behavior, interactions and perceptions could be developed and reinforced consistently, and that any day placement would be inappropriate for the child to develop her social skills. The consultant testified that the child required a residential placement in order to learn how to live with others, take turns, say how she feels, and smile at the appropriate time. However, she did not explain why these social skills could only be developed in a residential setting. The child's private counselor testified that a residential placement would be preferable, but she also opined that a BOCES 12:1+1 class could meet the child's educational and social needs. A board of education may be required to provide a residential placement to a child with a disability if the placement is necessary to provide special education and related services to the child (34 CFR 300.302). In essence, a residential placement is appropriate under Federal and State law only if it is required for the child to benefit from his or her educational program (Abramson v. Hershman, 701 F. 2d 223 [1st Cir., 1980]; Burke County Bd. of Ed. v.Denton, 895 F. 2d. 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d. 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition 30 Ed. Dept. Rep. 129; Application of a Child with a Disability, Appeal No. 95-33). Upon the record before me, I find that here is no basis for concluding that the child requires a residential placement in order to benefit from her educational program.

        At the hearing, petitioners challenged the appropriateness of the child's grouping with the other children who were to be enrolled in the BOCES class. State regulation requires that the composition of a special education class shall be based upon the similarity of individual needs of the students, according to their levels of academic achievement, social development, physical development, and management needs (8 NYCRR 200.6 [g][2]). I have reviewed the profile of he children in the proposed class (Exhibit 31), and have considered the testimony of the CSE chairperson and the BOCES supervisor about the needs and abilities of those children. I find that the similarity of academic, social, physical, and management needs in the proposed BOCES class was adequate to support the grouping, and to afford this child a reasonable opportunity to reach her IEP goals.

        I have considered petitioners' other arguments, and find that they are without merit. Upon the record before me, I find that respondent has met its burden of proof with respect to the appropriateness of the educational program and placement which it offered to provide to the child during the 1995-96 school year. Therefore, respondent has prevailed with respect to the first Burlington criterion. In view of that fact, it is unnecessary for me to determine whether the Maplebrook School is providing appropriate special education services to the child (the second Burlington criterion), or whether equitable considerations support petitioners' claim for tuition reimbursement (the third Burlington criterion). Petitioners' request for tuition reimbursement must be denied.

THE APPEAL IS DISMISSED.