96-034

      Petitioner appeals from the decision of an impartial hearing officer which found that respondent had offered her child an appropriate educational placement in a modified instructional services-I (MIS-I) class in respondent's James Madison High School, and which denied petitioner's request for reimbursement of the cost of the tuition which the child's uncle paid for the child to attend the Winston Preparatory School during most of the 1995-96 school year. The appeal must be sustained.

        Petitioner's daughter is eighteen years old. The child reportedly exhibited speech articulation and word sequencing problems during preschool, and was provided with speech/language therapy. She was reportedly referred to the committee on special education (CSE) because of academic difficulties which she experienced while in the second grade. She allegedly repeated the second grade. The record does not reveal whether she was classified as a child with a disability at that time, by respondent's CSE. However, she reportedly received resource room services while in the second through fifth grade. The child was removed from the public schools by her parent, at the end of the fifth grade.

        The child attended a parochial school for the sixth through the eighth grades. In the Spring of 1991, when she was in the sixth grade, the child was reportedly evaluated at the Learning Disabilities Unit of the State University of New York College of Optometry. Although a report of that evaluation is not part of the record which is before me, a private psychologist who evaluated the child in 1995 indicated in her report that the child had attained a verbal IQ score of 88, a performance IQ score of 86, and a full scale IQ score of 76, in the 1991 evaluation. The private psychologist also indicated that the child's evaluators in 1991 had opined that the child's academic performance was hampered by a language-based learning disability, and could also have been impaired by an attention deficit disorder. The child reportedly began to be privately tutored with the Orton-Gillingham methodology of reading instruction, when she was in the seventh grade. The child's uncle, who is assisting petitioner in this matter, testified at the hearing that the child struggled academically while in the seventh and eighth grades, despite receiving remedial assistance. The child began to receive individual counseling, while in the eighth grade.

        In 1993, the child entered the private Bishop Ford High School, where she reportedly failed several ninth grade subjects. The child's uncle testified that the child attended summer school, where she attained barely passing grades in the subjects which she had failed during the regular school year. During the 1994-95 school year, the child was enrolled in the tenth grade in the Bishop Ford High School. The child's uncle testified that the child had failed five subjects by the end of the 1994-95 school year. He further testified that the private high school proposed that the child take two courses in summer school, and make up two other courses during the 1995-96 school year.

        During the Summer of 1995, the child's uncle arranged for the child to be evaluated by Dr. Judith Shechter, a private psychologist who practices her profession in Wynnewood, Pennsylvania. Dr. Shechter evaluated the child, on August 29, 1995. In her report, she referred to the results of the child's evaluation of 1991, and noted that the child's learning difficulties appeared to be compounded by the absence of educational discipline and guidance, and rules in general, in the child's home. Dr. Shechter reported that the child had difficulty comprehending questions, and misarticulated words while speaking during her evaluation. She described the child as extraordinarily anxious, and self-conscious about her compromised ability to clearly communicate. Dr. Shechter reported that the child was impulsive while completing many of the tasks required during the evaluation. She tested the child's IQ with a different test instrument than had been used in 1991. Although some of the child's abilities, e.g., knowledge of factual information and auditory attention skills, had improved, other abilities, e.g., oral arithmetic reasoning and expressive vocabulary, had decreased. However, Dr. Shechter did not report the child's verbal, performance and full scale IQ scores.

        Although the child concentrated during the evaluation, Dr. Shechter reported that the child appeared to be overwhelmed by the speed at which she was required to auditorily process information. Dr. Shechter further indicated that the child's slowness in visual scanning and writing was also evident. In an assessment of the child's speech and language skills, Dr. Shechter reported that the child exhibited deficits in her ability to process verbally, and a severely impaired ability to name objects shown to her. She reported that the child's expressive word knowledge was at the lowest end of the normal range, while her word recognition abilities were at a lower level. Dr. Shechter reported that the child's memory skills were variable. At the hearing in this proceeding, the child's uncle testified that Dr. Shechter had recommended that the child be placed in a full-time special education class, where she could receive assistance in dealing with her information processing deficits. It should be noted that the copy of Dr. Shechter's report which is in the record before me does not contain any recommendation.

        The child's uncle testified that his niece did not want to return to the Bishop Ford High School for the 1995-96 school year. Instead, petitioner enrolled the child in respondent's James Madison High School, which was her local high school in Brooklyn. She was reportedly placed in the tenth grade, because she had not completed the tenth grade requirements while at the private high school during the 1994-95 school year. The child attended classes at the James Madison High School for at least a portion of September, 1995. Thereafter, she ceased to attend classes. Indeed, the child's earth science teacher later reported to the CSE that he had never seen the child in his class, and her mathematics teacher reported that the child had stopped attending class on the second day of school.

        In a letter dated October 2, 1995, the child's uncle referred the child, at the petitioner's request, to the CSE. He indicated that the child was not then attending school. On October 25, 1995, petitioner gave her written consent to having the child evaluated by the CSE. She also provided information to a school social worker, who prepared the child's social history for the CSE.

        A school psychologist evaluated the child, on November 13, 1995. She reported that the child had achieved a verbal IQ score of 79, a performance IQ of 83, and a full scale IQ score of 79. The school psychologist indicated that the child's IQ scores placed her at the upper limit of the "borderline" range, i.e., between average and retarded. She indicated that the child's verbal IQ scores had ranged from low average to deficient, while her performance IQ scores ranged from average to low average. The school psychologist noted that the deficiency which the child had in general knowledge might be attributable to a difficulty in retaining facts on a long-term basis. She reported that the child had difficulty expressing her thoughts through language, and difficulty anticipating the consequences of various behaviors. The school psychologist reported that the child's perceptual motor integration and visual memory skills were adequate. She described the child as a visual and auditory learner, with a borderline learning rate. The school psychologist further reported that the child had expressed a negative attitude about school, and an ambivalent attitude toward peers and others. Projective testing revealed the child had feelings of sadness, uncertainty, impulsiveness, and insecurity. She opined that the child would benefit from a highly structured learning environment, in which she could receive individual attention and encouragement to increase her academic motivation. The school psychologist also performed a vocational interest assessment of the child. She reported that the child had a significantly high interest in "office practices", which was consistent with the child's stated career goal of becoming a secretary.

        On November 22, 1995, the child was evaluated by an educational evaluator who reported that the child was somewhat anxious, and had displayed impulsivity during the evaluation. The child achieved grade equivalent scores of 7.1 in letter-word identification, 3.9 in the passage comprehension, and 5.5 in broad reading. In mathematics, the child achieved grade equivalent scores of 7.8 in calculations, 5.8 in applied problems, and 6.9 in broad mathematics. The evaluator noted that the child had not mastered appropriate problem-solving strategies, and had difficulty completing multi-step problems. The child achieved a grade equivalent score of 4.8 in broad writing. Although the child was able to write simple sentences, she had difficulties sequencing ideas and developing paragraphs. She also had reportedly not mastered the basic writing skills of punctuation, capitalization, spelling, contractions, and the use of superlatives. The educational evaluator reported that the child's vocabulary comprehension was significantly delayed, with grade equivalent scores of 4.2 in picture vocabulary and 5.3 in oral vocabulary. In an assessment of her knowledge, the child achieved grade equivalent scores of 1.8 in the humanities, 4.5 in science, and 5.8 in social studies, with a resulting 4.0 score for broad knowledge. The educational evaluator noted that the child had reportedly attained 15 high school credits, mostly during her first year of high school, and that she had passed one Regents Competency Test. It should be noted that there is no other indication in the record that the child had earned so many high school credits, or passed any Regents Competency Tests. The educational evaluator recommended that the CSE consider a small, structured classroom setting for the child, and that she receive instruction in developing her vocabulary knowledge. She suggested that a multi-modal teaching approach be used with the child.

        In an undated classroom observation report, the school psychologist reported that she had attempted to observe the child in class during the weeks of October 30 and November 6, 1995 but was unable to do so because the child did not attend school. While the child was being evaluated by the CSE, her uncle contacted private schools about the possibility of enrolling the child in a program which would address her special education needs. In a letter which was dated November 22, 1995, the child's uncle advised the chairperson of the CSE that the child had been accepted for admission by the Winston Preparatory School, in Manhattan. The child's uncle testified at the hearing that the child began attending the Winston Preparatory School on December 4, 1995.

        On November 28, 1995, the child's uncle and the uncle's advocate met with three members of a school based support team to plan for the child's educational program. The school-based support team, which functions like a subcommittee of the CSE, recommended to the CSE that the child be placed on a full-time basis in a self-contained MIS-I class. The child's uncle testified that the school-based shared support team had indicated to him that the child would probably be placed in a MIS-I class in the James Madison High School. He further testified that he was concerned about the size of the James Madison High School, and the fact that the girl was not attending her regular education class in that building. He then decided to place the child in the Winston Preparatory School.

        On December 19, 1995, the child's uncle met with a three-person CSE, consisting of a school psychologist, a social worker, and an educational evaluator. There was no teacher member of the CSE, nor a parent member. The social worker member of the CSE testified at the hearing that the parent member of the CSE had been allowed to leave early because it was snowing that day. She further testified that the meeting did not begin on time because the child's uncle wanted to wait for his advocate to arrive. The child's uncle later agreed to proceed with the CSE meeting, despite the fact that his advocate was not present. The CSE recommended that the child be classified as learning disabled. It further recommended that the child be enrolled in a MIS-I class, with a 15:1 child/adult ratio, and that she receive individual counseling once per week. It also recommended that certain testing modifications be used with the child, including extended time limits, testing in a separate location, and the use of a calculator. The child's IEP annual goals provided that she would successfully complete special education English, human biology, American history, mathematics, and occupational education courses with curricula which paralleled those in the regular education courses. The CSE failed to prepare an annual goal for the counseling services which it had recommended for the child.

        Respondent prepared a notice of final recommendation, which summarized the CSE's recommendation, and indicated that a placement was available for the child in a MIS-I class in the James Madison High School. Although the notice was dated December 20, 1995, the child's uncle testified that it was not received until January 19, 1996. In support of his testimony, he introduced an envelope in which the notice had reportedly been mailed, with a postage cancellation date of January 12, 1996. He also introduced a letter dated January 6, 1996 from the CSE chairperson to petitioner scheduling an evaluation of the child to take place on January 13, 1996. The child's uncle testified that the proposed evaluation was to assess the child's speech/language skills, but it was canceled because of bad weather.

        Approximately three days after petitioner received the final notice of recommendation, the child's uncle requested that an impartial hearing be held. The hearing in this proceeding began on February 14, 1996, and concluded on February 29, 1996. By her statements at the outset of the hearing, the hearing officer implied that respondent did not have the burden of proving that its CSE's recommendation was appropriate, because petitioner was seeking tuition reimbursement. The hearing officer also required the child's uncle to go forward with petitioner's case, and later took testimony from respondent's representatives about the CSE's recommendation and the proposed placement in the James Madison High School.

        In her written decision, which was rendered on April 18, 1996, the hearing officer found that there was no dispute about the child's classification as learning disabled. She noted that 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 hearing officer held that the parent had the burden of proving that the placement offered by the Board of Education was not appropriate (cf. Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 93-13; Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-42). Notwithstanding her departure from this well established standard, the hearing officer found that respondent had failed to offer an appropriate educational program for the child on a timely basis because the CSE which prepared the child's IEP lacked the required parent and teacher members (See Section 4402 [1][b] of the Education Law; Application of a Child with a Disability, Appeal No. 95-8; Application of a Child Suspected of Having a Disability, Appeal No. 95-27; Application of a Child with a Disability, Appeal No. 96-8). Therefore, the hearing officer found, in effect, that petitioner had prevailed with respect to the first of the three Burlington criteria for tuition reimbursement, notwithstanding her belief that the recommended MIS-I class in the James Madison High School would have been an appropriate placement for the child.

        With regard to the second criterion for tuition reimbursement, i.e., whether the special education services which the parent obtained for the child were appropriate, the hearing officer found that the Winston Preparatory School had offered the child a small educational environment in which she received the individualized instruction which she needed. The hearing officer further found that the educational program of the Winston Preparatory School was comparable to that of the MIS-I program at the James Madison High School. She noted that the child appeared to be making academic progress at the Winston Preparatory School. Therefore, petitioner prevailed with respect to the second Burlington criterion.

        The hearing officer denied petitioner's claim for tuition reimbursement "...after weighing the equities and facts presented in this case."  The only reason given by the hearing officer was that the MIS-I placement recommended by the CSE would have been appropriate for the child. The hearing officer ordered the matter remanded back to the CSE to conduct a valid review of the child's case.

        Petitioner argues that the hearing officer erred by misstating and misapplying the Burlington criteria for tuition reimbursement. As noted above, the hearing officer inexplicably shifted the burden of proof about the appropriateness of the CSE's recommendation from respondent to petitioner. In addition, the hearing officer failed to address the fact that the CSE did not obtain a complete evaluation of the child, which should have included a physical examination (8 NYCRR 200.4 [b][1][i]), as well as an observation of the child in her current educational setting (8 NYCRR 200.4 [b] [4] [viii]). In its answer, respondent concedes that no physical examination of the child was conducted. Although the child did not have a current educational setting at the time when the CSE performed its evaluation, she began attending the Winston Preparatory School approximately two weeks before the CSE prepared the child's IEP. The CSE had been placed on notice that the child would attend the private school, and should have observed the child in that setting.

        Petitioner also argues that the child's IEP is defective because it does not include a statement of needed transition services as required by 8 NYCRR 200.4 (c)(2)(v), or a description of the other placement options which the CSE considered and the reasons why those options were rejected, as required by 34 CFR 300.505 (a) (2). I agree that the child's IEP lacked the required statement of needed transition services. However, I find that petitioner's allegation that the CSE failed to indicate the other placement options it considered and the reasons why those options were rejected is without merit. The other placement options which the CSE considered are set forth at the bottom of the first page of the child's IEP. Although petitioner has not explicitly challenged the child's IEP annual goals and short-term instructional objectives, I am constrained to note that the goals and objectives were stated in very general language, with little, if any, apparent connection to the child's specific special education needs (cf. 34 CFR Part 300, Appendix C, Questions 38 & 39).

        Since the hearing officer determined that respondent had not offered on a timely basis an appropriate educational program for the child, and that the Winston Preparatory School was offering the child an appropriate educational program, petitioner is not aggrieved by either finding. The only portion of the hearing officer's decision which needs to be reviewed is her determination that equitable considerations did not support petitioner's claim for tuition reimbursement. I note that petitioner and/or the child's uncle appeared to have cooperated with the CSE in this matter (See Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 93-12). Although the CSE representatives at the hearing made much of the fact that petitioner did not disclose the fact that the child had been privately evaluated by Dr. Shechter, until the child's uncle met with the school-based support team in November, 1995, I am not persuaded that this action evidences a lack of cooperation. Indeed, the record indicates that the child's uncle diligently informed the CSE about the child's educational placement, or lack of thereof. In determining whether equitable considerations support petitioner's claim, I have also considered the fact that the 1995-96 school year was nearly over by the time the hearing officer rendered her decision remanding the matter back to the CSE. Even if the CSE promptly complied with the hearing officer's decision, respondent would have nevertheless failed to have offered an appropriate placement to the child for most of the 1995-96 school year. The record indicates that the child's uncle has provided the child with the opportunity to obtain an appropriate education during that period of time, by paying for the child's attendance at the Winston Preparatory School. Under the circumstances, I find that equitable considerations do support petitioner's claim for tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer denying petitioner's claim for tuition reimbursement and remanding the matter to the CSE is hereby annulled; and,

IT IS FURTHER ORDERED that respondent shall reimburse the child's uncle for his reasonable expenditures for the child's tuition in the Winston Preparatory School for the 1995-96 school year, upon presentation to respondent of proof of such expenditures.