96-040

        Petitioner appeals from the decision of an impartial hearing officer which found that respondent had failed to demonstrate that it offered petitioner's son an appropriate educational program for the 1995-96 school year, but denied petitioner's request for an order requiring respondent to reimburse petitioner for the cost of the child's tuition in a private school for that school year. The appeal must be dismissed.

        Petitioner's son, who is 15 years old, has been classified as learning disabled. His classification is not disputed. The child was reportedly described as very distractible while in kindergarten. He attended a transitional pre-first grade because it was felt that he would have difficulty concentrating on first grade work. While in the first grade, the child was evaluated by a school psychologist, who reported that the child's cognitive skills were in the average to high average range. However, the child evidenced deficits in social comprehension and impulse control, as well as visual-motor integration skills and gross motor coordination. The child received resource room services during at least a portion of elementary school. In the Spring of 1990, the child scored in the 85th and 99th percentiles for reading and mathematics, respectively, on the second grade Metropolitan Achievement Test. In November, 1990, the child's resource room teacher recommended that resource room services be discontinued because the child reportedly had become academically proficient.

        At some point thereafter, the child was enrolled in a private school by his parents, who reportedly had marital difficulties, and separated. The child was subsequently enrolled in the Hackley School, in Tarrytown, New York. He attended that school during the 1993-94 and 1994-95 school years. Although the child reportedly achieved passing grades in the Hackley School, he had difficulty conforming with the rigid structure of the school. Petitioner indicated in the child's social history that his son was not invited to return to the private school (Exhibit 2). At the hearing, petitioner testified that he had received notices from the school indicating that "there were discipline problems and there were academic problems" with regard to the child (Transcript, page 74). On or about February 21, 1995, petitioner referred his son to the committee on special education (CSE) of Community School District No. 2.

        This is one of two proceedings brought by petitioner on behalf of his twin sons. At the hearing in this proceeding, the parties stipulated that petitioner had referred both sons to the CSE at the same time, and that the history of contacts between petitioner and the CSE was identical for both boys. They further stipulated that the evidence adduced at the hearing of this child's brother could be used by the hearing officer in the hearing for this child, with regard to the parent's contacts with the CSE. The parties' stipulation is significant, because the record in this proceeding would not otherwise reveal what had happened between the child's referral to the CSE on February 21, 1995, and his evaluation by respondent's staff in September, 1995. In the proceeding for this child's brother, the CSE's representative testified that a school social worker had attempted to obtain additional information from petitioner, in order to determine which community school district was responsible for evaluating the child and providing services to him. The CSE's social worker allegedly had difficulty contacting petitioner by telephone, and wrote a letter to petitioner on March 5, 1995. The CSE representative testified that petitioner did not respond to the social worker's telephone calls and letter until June, 1994. In a letter to the social worker, dated March 21, 1995, petitioner indicated that his son resided with him at an address which is apparently within Community School District No. 2, and that the child was enrolled in the Hackley School. However, the CSE representative denied that the CSE had received petitioner's letter. Petitioner reportedly wrote to the CSE in June, 1995, to inquire about his son's case. In any event, the child was not evaluated by the CSE until September, 1995.

        A school psychologist who evaluated the child on September 29, 1995, reported that the child had achieved a verbal IQ score of 105, a performance IQ score of 70, and a full scale IQ score of 79. She noted that the boy's perceptual motor skills were in the mentally deficient to borderline range, and that the intra-test scatter of his scores suggested that his ability to acquire information auditorily was impaired by an erratic memory, or an attention deficit. The school psychologist also reported that the child's visual attentiveness and his ability to use visual clues for meaning and logical assessment of social situations were significantly delayed. She noted that the child appeared to lose track of what he was doing during the evaluation. The school psychologist reported that the child felt lonely and vulnerable. He reportedly felt that he was "too nice for his own good", and that he could be in better control of his environment if he were "meaner". However, the school psychologist opined that the child did not appear to have any serious pathology which impeded his academic performance. She did recommend that the child receive multi-sensory instruction, with verbal directions repeated for his benefit.

        In her report, respondent's school psychologist noted that the child had been privately evaluated by a psychologist in February, 1995. The private psychologist reported that the child had achieved a verbal IQ score of 98, performance IQ score of 73, and a full scale IQ score of 84. The private psychologist had also found that the intra-test scatter of the child's IQ subtest scores was suggestive of a nonverbal learning disability. She further reported that the boy evidenced signs of impulsivity and inattention which were characteristic of a child with an attention deficit disorder (ADD). In contrast to his generally appropriate verbal skills, the child had difficulty performing tasks requiring nonverbal skills. The private psychologist opined that the child's relatively poor nonverbal performance reflected a weakness in his visual perception, as well as deficits in his concentration. She reported that the child's academic achievement reflected the discrepancy between his language based and non-language based skills. On the Gray Oral Reading Test-3, the child achieved grade equivalent scores of 10.7 in reading rate, 9.7 in accuracy, 9.8 in passage score, and 9.6 in comprehension. On the Wide Range Achievement Test-3, the boy's mathematics skills were found to be at the eighth grade level. The private psychologist, who noted that the child had difficulty completing a diamond design, a task which is expected of a six-year old child, reported that the child had a difficult time expressing himself in writing. His handwriting was difficult to decipher. The private psychologist described the child as being emotionally intact. She recommended that the child receive specialized instruction geared towards children with learning disabilities and ADD, and that he be medicated for ADD. The record reveals that in December, 1994, the child had been diagnosed by a psychiatrist as having an attention deficit hyperactivity disorder (ADHD), and that he had been placed on medication to address his ADHD.

        On September 29, 1995, one of respondent's educational evaluators assessed the boy's academic skills. She noted that the child was attending the Eagle Hill School in Greenwich, Connecticut. The evaluator reported that the child's expressive language skills appeared to be an area of strength for him. On the Kaufman Test of Educational Achievement, the child achieved standard scores of 94 in reading and 96 in mathematics. His grade equivalent scores were 9.1 and 9.4, respectively. The evaluator reported that the child's test scores were evidence of a mild delay in both reading and mathematics. She also informally assessed the boy's writing skills. The evaluator reported that the child's organization of ideas were excellent, but that it was difficult to decipher his writing because of his extremely poor spelling, letter formation, and punctuation. She indicated that his "mechanics of writing" skills were far below his age and grade expectancies.

        Petitioner was notified that the CSE would meet with him on October 18, 1995, to review the results of his son's evaluation. He was unable to attend the CSE meeting, and asked that the CSE meeting be adjourned. Respondent acknowledges in his petition that petitioner's request for an adjournment was not granted (cf. 34 CFR 300.345 [a][2]). On October 18, 1995, a CSE which did not include the required teacher member (34 CFR 300.344 [a][2]; Section 4402 [1][b][1] of the Education Law) recommended that the child be classified as learning disabled. It further recommended that he receive resource room services (respondent's supplemental services program) for one period per day, and counseling in a group of no more than three children, once per week. The individualized education program (IEP) which the CSE prepared for the child provided that he should take tests in a special location, and that test time limits be extended for him. His IEP annual goals addressed his deficits in reading, writing, and mathematics.

        Respondent acknowledges that there is no evidence that its CSE sent a final notice of its recommendation to petitioner (cf. 8 NYCRR 200.5 [a][4][1][c]). It apparently did send a final notice of recommendation with regard to this child's twin brother, whose case was also considered by the CSE on October 18, 1995. On November 29, 1995, petitioner requested that an impartial hearing be held with respect to his claim for tuition reimbursement for both of his sons, who were attending the Eagle Hill School as residential students.

        Separate hearings were conducted for each of petitioner's sons. By agreement of the parties, written evidence was introduced but no testimony was taken on December 8, 1995. The hearing reconvened on February 13, 1996. At the hearing, the psychiatrist who had diagnosed the child as having ADHD agreed that the child was appropriately classified as learning disabled, and he opined that the trauma and stress caused by the divorce of the boy's parents and subsequent change of parental custody of the child had contributed to the child's "dysfunctional response" to educational settings, and social situations. The psychiatrist reported that the child's emotional condition appeared to have improved between August, 1995 and December, 1995, which he attributed at least in part to the child's placement in the Eagle Hill School. He opined that the child required a full-time special education environment in order to function.

        Mr. Robert Breakell, the child's educational advisor in the Eagle Hill School, testified that the child was impulsive and distractible, and that he became anxious when time limits were imposed upon his completion of tasks. He opined that the child's distractibility and impulsivity would be exacerbated if he received instruction in a normal sized classroom, because the child could not receive his teacher's immediate attention and supervision. Mr. Breakell testified that the Eagle Hill School was a private school which provided instruction to learning disabled students. He further testified that there were 184 students enrolled in the school, approximately 30 of whom boarded there. Both of petitioner's sons board at the school, and are roommates there. They spend weekends at home with petitioner. There were eleven children enrolled in this child's studies skills, grammar and composition, biology, and literature classes, and there were seven children in his pre-algebra class and study hall. The child was also enrolled in a "transitional tutorial class", with two other students. The chronological age range of the students did not exceed two years, and their functional range did not exceed three years. Mr. Breakell opined that the child was receiving an appropriate educational program in the Eagle Hill School.

        Petitioner testified that he waited until the end of August, before contracting with the Eagle Hill School. He also testified that he would not have accepted the CSE's recommendation in any event, because it was a "step backward" from the child's previous placement in the Hackley School. Petitioner indicated that he did not seek reimbursement for the cost of the child's room and board at the Eagle Hill School. He testified that the child's tuition charge was approximately $24,000.

        In her decision which was rendered on May 6, 1995, the hearing officer 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, 510 U.S. 7 [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]).

        The hearing officer found that the IEP prepared by the CSE was a nullity because the CSE had failed to observe the child in his class, as part of its evaluation of him (cf. 8 NYCRR 200.4 [b][4][viii]), and because the recommendation was developed by an invalidly composed CSE, at a meeting which was not scheduled at a mutually agreed upon time. Therefore, she found that respondent failed to meet its burden of proof with respect to the appropriateness of the educational services which it had offered to the child.

        With respect to the appropriateness of the educational services provided by the Eagle Hill School, the hearing officer found that petitioner had not established that the child's academic deficits and learning disabilities were so severe as to require that he be educated in a full-time special education program in the highly restrictive setting of a private, residential school. She noted that petitioner sought reimbursement solely for the child's tuition, and did not ask to be reimbursed for his expenditures for the child's room and board at the Eagle Hill School. However, the hearing officer found that the private school was too restrictive, even as a day school placement, because the boy did not require full-time educational services, and the school provided him with only a marginal opportunity to interact with non-disabled peers. She concluded that petitioner had failed to meet his burden of proof with regard to the appropriateness of the private school's services.

        Finally, the hearing officer noted that petitioner could have been more diligent in following up his son's referral to the CSE, but she found that the CSE was nevertheless dilatory in evaluating the child. She further found that equitable consideration did " ... not stand in the way of ... " petitioner's request for tuition reimbursement. However, she denied his request because he had not prevailed with respect to the second of the three criteria for reimbursement.

        I must note that respondent contends in its answer that notwithstanding the hearing officer's determination that it had failed to meet its burden of proof with regard to the appropriateness of the services which it offered the child, those services, i.e., resource room services and counseling, were in fact appropriate for the child. Respondent is certainly free to argue that the child's needs could have been addressed by those services, in the context of determining whether petitioner has proven that the services of the Eagle Hill School were appropriate. However, respondent has not cross-appealed from the hearing officer's determination that respondent had failed to meet its burden of proof on the issue of the appropriateness of the services which it offered, and that finding will not be reviewed in this proceeding (Application of a Child with a Disability, Appeal No. 95-8).

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Eagle Hill School during the 1995-96 school year (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 that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational 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). Unilateral parental placements are subject to the Federal and State requirement that each child be placed in the least restrictive environment, when tuition reimbursement is sought (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. of the Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). However, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]).

        Petitioner asserts that his child was required to attend the Eagle Hill School because of a disruptive situation at home as a result of the marital dispute between his parents. He does not seek reimbursement for his expenditures for the child's room and board at the private school. He contends that he had no other choice than to place the child in the Eagle Hill School because of respondent's delay in evaluating his son and making a recommendation for his educational program. He further contends that the hearing officer improperly considered the fact that the child was attending the Eagle Hill School as a residential student, in determining whether the school's services were appropriate for the child.

        The untimeliness of the CSE's recommendation, while relevant in determining whether respondent had met its burden of proof with regard to that recommendation, is not relevant in determining whether the services which petitioner obtained for the child were appropriate. In order to make that determination, I must first ascertain what the child's special education needs were during the 1995-96 school year. I note that there is no dispute about the child's classification as a child with a learning disability. Although I may not review the appropriateness of the child's classification (Hiller v. Bd. of Ed. of the Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]), it is essential to determine how the child's learning disability has affected his ability to do academic work.

        The record reveals that there is a disparity between the child's verbal cognitive skills and his performance cognitive skills, which is typically one indication of the existence of a learning disability. However, there is little information in the record about the effect of his specific learning disabilities upon his educational performance. There is no evidence in the record about the child's academic performance in the various schools which he has attended including the Eagle Hill School. The standardized achievement testing which was done during the child's educational evaluation in September, 1995, indicated that the child's reading and mathematics skills were mildly delayed, which suggest that he had developed compensatory skills to overcome the disparity between his verbal and performance IQ skills. Respondent's educational evaluator reported that the child had a significant deficit in his writing skills, which Mr. Breakell confirmed in his testimony at the hearing. However, there is no evidence in the record of how the private school was specifically addressing the child's special education needs in writing. I must also note that notwithstanding the testimony by the child's psychiatrist about the child's emotional needs, Mr. Breakell testified that the child was not receiving counseling in the Eagle Hill School. Mr. Breakell testified that the child was on a "watch" for such services.

        Upon the record which is before me, I find that there is too little information about the child's past and present educational performance, and the nature of the services which were provided to him in the private school, to afford a basis for concluding that those services were appropriate within the meaning of the Individuals with Disabilities Education Act. Therefore, I find that petitioner has not met his burden of proof with regard to the appropriateness of the private school's services for his son.

THE APPEAL IS DISMISSED.