96-001

      Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son be enrolled in a modified instructional services-I (MIS-I) special education class in respondent's J.H.S. 118 for the 1994-95 school year. The hearing officer denied petitioner's request for an order requiring respondent to reimburse petitioner for his expenditures for the child's tuition in the Eagle Hill School, a private school in which petitioner unilaterally enrolled the child for both the 1994-95 and 1995-96 school years, notwithstanding respondent's failure to offer any placement for the latter school year. The appeal must be sustained in part, to the extent of annulling the hearing officer's finding that respondent had offered the child an appropriate educational program for the 1994-95 school year.

        Petitioner's son, who is thirteen years old, has never attended respondent's schools. He attended the West Side Montessori School for preschool, and then attended the Columbia Grammar School for kindergarten, first, and second grades. The child reportedly had academic difficulty in the second grade, and was evaluated by a private psychologist in June, 1991. In that evaluation, he reportedly achieved a verbal IQ score which was in the high average range, while his performance IQ and full scale IQ scores were reportedly in the superior range. However, he was reportedly described as being emotionally disconnected from the learning process, and easily overwhelmed.

        The child reportedly repeated the second grade in the Lenox Hill School during the first semester of the 1991-92 school year. His parents enrolled him in the Eagle Hill School, as a residential student, in January, 1992. The boy has remained in the Eagle Hill School, at his parents' expense. The Eagle Hill School, which is located in Greenwich, Connecticut, is a private school which serves children with learning disabilities. 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 cost of educating children who are placed in that school.

        In a letter to the acting chairperson of the CSE, which was received on March 18, 1994, the child's mother stated that:

" I am writing to you in the hopes of obtaining the school bus service for my son ... [who] is presently attending Eagle Hill School in Greenwich Conn ... We are not asking for help with tuition. However help with the busing would be a tremendous financial help."

        The mother's letter was deemed to be a referral of the child to the CSE. On April 23, 1994, the child was evaluated by a school psychologist, who reported that the child had achieved a verbal IQ score of 98, a performance IQ score of 116, and a full scale IQ score of 107. The school psychologist noted that the child's IQ scores were lower than those which he had achieved in 1991, when a different test was used, but that the child's performance on the various IQ subtests was comparable to his performance in 1991. The evaluator also noted that the child's performance on tests which measured his attention and concentration skills was at the low end of the average range. Notwithstanding the child's relative strength in performing non-verbal tasks, he manifested a weakness in his visual organization skills. The school psychologist reported that the child manifested no sign of an emotional disorder, and opined that emotional issues were not responsible for the child's learning difficulties. The child's physician indicated that the child was well, and had no known health problems.

        The child also received an educational evaluation on April 23, 1994, when he was in the sixth grade. He achieved grade equivalent scores of 2.9 in "basic" reading, 4.3 in reading comprehension, 2.6 in spelling, 4.7 in numerical operations, 3.8 in numerical reasoning, 6.4 in listening comprehension, and 6.0 in oral expression. The educational evaluator reported that the child was somewhat distractible, but did not require refocusing, during the evaluation. She also reported that a short story written by the child as a writing sample revealed numerous spelling errors, little organization, simplistic vocabulary, and poor sentence structure.

        The CSE also considered information about the child which the Eagle Hill School had given to his parents. That information was consistent with the results of the child's evaluation by the CSE, eg. that the child had difficulty with reading decoding and writing, and had relative strength in oral expression. The child's "tutorial" teacher in the Eagle Hill School reported that the child possessed strong organizational and study skills, but was reluctant to participate in class discussion, on occasion. The Eagle Hill School reported that in September, 1993, the child had achieved grade equivalent scores of 2.5 in reading comprehension, 6.5 in vocabulary, 3.8 in numeration, and 4.7 in computation.

        A CSE meeting which was scheduled to be held on May 17, 1994, was held on May 18, 1994. Respondent's representative at the hearing could not explain why the meeting was not held on May 17, 1994, as indicated in the notice which had reportedly been sent to the boy's parents. In any event, the child's mother testified that she had not received the notice inviting her to attend the CSE meeting to be held on May 17, 1994. Neither the child's teacher, nor the child's parents attended the CSE (cf. Section 4202 [1][b][1] of the Education Law). The individualized education program (IEP) which was prepared at the May 18, 1994 CSE meeting indicated that the meeting participants included an educational evaluator, a school social worker, a psychologist, and a parent member. As respondent should well know by now, it must show that the educational evaluator was qualified to teach or supervise the provision of special education, if the educational evaluator is to serve as the required special education teacher or supervisor member of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child with a Disability, Appeal No. 95-4; Application of a Child with a Disability, Appeal No. 95-80). In this instance there is no evidence of the educational evaluator's license or certification areas.

        The IEP which was prepared on May 18, 1994 included the CSE's recommendations that the child be classified as learning disabled and that he be immediately placed in respondent's MIS-I program. The student/teacher ratio of the recommended special education class was 15:1. The CSE recommended that the child receive all of his instruction in the MIS-I class. It did not recommend that the child receive any related services. The child's IEP annual goals included improving his reading skills through phonetic analysis of two syllable words and long and short vowels, improving his mathematics skills, and successfully completing the fifth grade science and sixth grade social studies curricula. In a final notice of recommendation which was dated June 20, 1994, respondent offered the child's parents a placement in a MIS-I class in respondent's J.H.S. 118.

        On August 22, 1994, petitioner's wife signed a copy of respondent's PSF-1 form, which is a notice to be sent to the CSE indicating that she had received the final notice of recommendation, and intended to enroll the child, at her own expense, in the Eagle Hill School. In the PSF-1 form, petitioner's wife asked respondent to provide transportation for the child to the Eagle Hill School pursuant to the "Assembly Bill." The latter reference is apparently to Section 4402 (4) of the Education Law, which provides that:

"Notwithstanding any other provision of law, such board [of education] shall provide suitable transportation up to a distance of fifty miles to and from a non-public school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education."

        On August 22, 1994, petitioner's wife signed the final notice of recommendation, with the following statement:

"Thank you, but I decline the public school offered. I am requesting free busing to Eagle Hill School." (Exhibit 9)

        During the 1994-95 school year, the child attended the Eagle Hill School as a day student, with daily transportation to and from the private school provided by respondent. The child's parents did not challenge the CSE's recommendation of a MIS-I placement for the 1994-95 school year, until June 16, 1995, when their attorney asked for an impartial hearing.

        The hearing commenced on July 10, 1995. The parents sought, and respondent did not oppose, an interim order by the hearing officer directing respondent to continue providing transportation for the child to the Eagle Hill School. Respondent acknowledged that its CSE had not conducted an annual review of the child for the purpose of recommending a placement for the 1995-96 school year. The parties agreed to adjourn the matter until the Fall. On August 4, 1995, the hearing officer issued the requested interim order, and adjourned the hearing until October 2, 1995.

        At the hearing which reconvened on October 2, 1995, petitioner's wife testified that she learned from the parent of another Eagle Hill School student about the possibility of obtaining daily transportation of her child by respondent. She further testified that she had referred the child to the CSE for the purpose of obtaining transportation for him. Petitioner testified that he and his wife had not accepted respondent's offer of a MIS-I placement in J.H.S. 118 because they did not believe that their child would receive the individual instruction he needed in the MIS-I program. Petitioner's wife also testified that when she referred the child to the CSE in March, 1994, she did not believe that there was any school in New York City in which the child could receive the instruction he required. Petitioner argued that the CSE's May 18, 1994 recommendation was a nullity, and that the Eagle Hill School had provided the child with an appropriate educational program during the 1994-95 and 1995-96 school years. Petitioner's wife also testified that she was unaware of the possibility of seeking tuition reimbursement from respondent until the Spring of 1995.

        While conceding that it had not offered the child an appropriate and timely placement for the 1995-96 school year, respondent argued at the hearing that it had offered the child an appropriate and timely placement for the 1994-95 school year. Respondent also challenged the appropriateness of the Eagle Hill School's program for the child during the 1994-95 school year.

        The hearing officer rendered her decision on November 21, 1995. She found that although the child's parents may not have been given notice of the May 18, 1994 CSE meeting, they had received notice of the CSE's recommendation, and had not attempted to challenge the recommendation, or make any inquiry about the program which the CSE had recommended for the child. In essence, the hearing officer found that petitioner had waived his right to challenge the CSE's procedurally flawed recommendation. The hearing officer found that the child would have been appropriately placed with children having similar needs in the recommended MIS-I class in J.H.S. 118, and that the MIS-I program was comparable to the educational program of the Eagle Hill School. Although the class size in the MIS-I program was somewhat greater than the child's classes in the private school, the hearing officer found that there was no basis in the record to infer that the child could not have succeeded academically in the MIS-I program. The hearing officer denied the parents' request for tuition reimbursement during the 1994-95 school year on the ground that respondent had met its obligation to offer the child an appropriate public program. With respect to their claim for tuition reimbursement for the 1995-96 school year, the hearing officer found that the parents were not entitled to receive reimbursement because "...Eagle Hill School is a non-approved school which I have not found to be an appropriate placement." However, she did not explain why she had not found the private school to be an appropriate placement.

        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]).

        With regard to the appropriateness of the MIS-I program which respondent offered the child for the 1994-95 school year, I must find, as a matter of law, that respondent has failed to meet its burden of proof. State regulation requires that an evaluation of a child suspected of having any educational disability shall include an observation of the child in the child's current educational setting (8 NYCRR 200.4 [b][4][viii]), while Federal regulation requires that a child suspected of having a specific learning disability be observed in the regular classroom setting (34 CFR 300.542 [a]). There is no evidence in the record which is before me that the CSE conducted an observation. The fact that the child was not attending respondent's schools when he was referred to the CSE did not relieve the CSE of its obligation to conduct an observation (Application of a Child with a Disability, Appeal No. 91-11; Application of a Child with a Disability, Appeal No. 93-1). A CSE's failure to conduct an evaluation affords a basis for annulling the CSE's recommendation (Application of a Child Suspected of Having a Disability, Appeal No. 94-41).

        Even if an observation had been conducted, I would still be compelled to invalidate the CSE's recommendation because the CSE lacked its required members, as noted above (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-19; Application of a Child with a Disability, Appeal No. 95-5). Having found that the CSE's evaluation was incomplete, and that the CSE was invalidly composed, I need not reach the issue of respondent's alleged failure to give prior notice to the parents of the CSE meeting which was held on May 18, 1994, in order to determine that petitioner has prevailed with regard to the first Burlington criterion for tuition reimbursement for the 1994-95 school year. With respect to his claim for the 1995-96 school year, respondent has conceded that it did not offer a timely and appropriate placement. Therefore, petitioner has also prevailed with respect to the first Burlington criterion for the 1995-96 school year.

        Petitioner bears the burden of proof with regard to the appropriateness of the services which he obtained for the child at the Eagle Hill School for both the 1994-95 and 1995-96 school years (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet his burden, petitioner 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). The requirement that children with disabilities be placed in the least restrictive environment applies to unilateral parental placements (P. J. v State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub nom, Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [W.D.N.Y., 1994]). That requirement must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]).

        The record indicates that in the Spring of 1994, when the child was in the sixth grade, his reading skills were at or about the beginning fourth grade level, while his spelling skills were at the mid-second grade level. His primary academic weakness appeared to be in his decoding skills. Although he had weak reading decoding skills, he reportedly could compensate for that weakness by grasping the concept from the context in which unfamiliar words appeared.

        The child's educational advisor at the Eagle Hill School testified at the hearing that during the 1994-95 school year the child was in a twice per day "tutorial" class, with a 2:1 student to teacher ratio, for instruction in language arts, reading decoding and comprehension and vocabulary, in addition to his content area classes. A written report from the Eagle Hill School, which was prepared at the end of the 1994-95 school year, indicated that the child had been enrolled in separate courses for literature, writing and spelling, mathematics, and life science. However, the written report did not indicate the specialized techniques, if any, which were used by his teachers to address his below-grade level academic deficits, or demonstrate that the school's educational program had been individualized to meet the child's special education needs. I note that the child's "tutorial" teacher indicated that remedial instruction was provided to the child using written materials which were at the fifth to seventh grade level, while the private school also reported that in September, 1994 the child's phonics skills were at the 1.5 grade level and his comprehension skills were at the post-high school level. The tutorial teacher, who reported that she was primarily responsible for developing the child's reading skills, also reported that the child's classwork had revolved around having him rely on his background knowledge and the context in order to decode unfamiliar words. At the hearing, three representatives of the Eagle Hill School testified about the child, but none of them provided any other information about the child's educational program during the 1994-95 school year. Upon the record before me, I find that petitioner has not met his burden of proof with respect to the appropriateness of the educational services which he obtained for his son at the private school during the 1994-95 school year because he has not shown how those services addressed his son's special education needs. (Application of the Board of Education of the Hendrick Hudson Central School District, Appeal No. 95-49).

        Although petitioner's claim for tuition reimbursement for the 1994-95 school year must fail because he has not prevailed with respect to the second Burlington criterion, i.e., the appropriateness of the private school's services. I also find that petitioner's claim is not supported by equitable considerations (the third Burlington criterion). The record reveals that petitioner's wife was informed of her parental due process rights, and given a copy of the booklet, Special Education: A Guide for Parents, when she gave her consent for the child to be evaluated by the CSE on April 4, 1994 (Exhibit 2). While a copy of the booklet is not part of the record which is before me, I note that each CSE is required to provide the parents of children with disabilities with copies of either a state prepared or locally approved booklet describing educational, financial and legal rights and responsibilities (Section 4402 [7] of the Education Law). Although petitioner and his wife testified that they were not aware of their right to seek tuition reimbursement until the Spring of 1995, they also testified that they were not interested in a public school placement for their child. Their late request for an impartial hearing on June 16, 1995 effectively deprived respondent's CSE of any meaningful opportunity to correct its mistakes with respect to the child's evaluation, the lack of notice to the parents of the CSE meeting, and the composition of the CSE (cf. Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F 3d 149 [3d Cir., 1994]).

        With regard to the 1995-96 school year, the record reveals that when the child was administered standardized tests in the Eagle Hill School in May, 1995, he achieved grade equivalent scores of 3.2 in phonetic analysis, 10.1 in reading comprehension, 7.8 in total reading, 8.2 in numeration skills, 6.3 in mathematical computation skills, and 6.0 in mathematical application skills. On the Gilmore Oral Reading Test which reportedly measures the accuracy of a student's reading and short-term comprehension, the child achieved grade equivalent scores of 6.2 in accuracy and 9.8 in comprehension. On the Slosson Oral Reading Test which reportedly measures a student's ability to read sight words in isolation, the child achieved a grade equivalent score of 6.3. His academic advisor in the Eagle Hill School testified that the child was enrolled in the private school's "accelerated curriculum" program for the 1995-96 school year. The advisor further testified that the purpose of the program was to prepare students to function in larger groups and more traditional settings. The child was enrolled in classes for study skills, grammar and composition, world history, mathematics, and literature, in addition to a "tutorial" class. Instruction in the tutorial class reportedly reinforced the instruction presented in the child's grammar and composition, and literature classes. The number of children in the child's classes ranged from four in mathematics and the tutorial to ten in world history. The advisor testified that the instructional level in the child's content classes was around the fifth grade level. He did not identify the specialized techniques, if any, that were used to address the child's special education needs, nor did petitioner present any other evidence of the special education program which was reportedly provided to the child.

        The record reveals that the Eagle Hill School provides instruction to approximately 180 children who are between the ages of 6 and 16, and who have been diagnosed as having learning disabilities. There is no indication in the record that children who attend the Eagle Hill School have an opportunity to be instructed with children who do not have educational disabilities. In view of the limited amount of information about the child's educational program, the absence of information about the child's ability to function successfully in a less restrictive environment, and the child's relatively strong academic skills, as reflected in his May, 1995 standardized test results, I find that there is no basis in the present record for concluding that the child requires all of his instruction to be provided in a restrictive, special education setting. Therefore, I find that petitioner has not prevailed with respect to the second Burlington criterion, with respect to the 1995-96 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED

IT IS ORDERED that the portion of the hearing officer's decision which found that respondent had offered the child an appropriate educational program for the 1994-95 school year is annulled.