Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Valley Stream 13 Union Free School District
Jeffrey F. Pam, Esq., attorney for petitioners
Ehrlich, Frazer and Feldman, Esqs., attorneys for respondent, James H. Pyun, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that their son be enrolled in a self-contained special education class during the 1995-96 school year, and which denied petitioners' request for reimbursement for tuition in a regular education private school during such school year, as well as for the tutoring, speech/language therapy and vision therapy which they obtained for their son during the 1994-95 and 1995-96 school years. The appeal must be sustained in part.
Petitioners' son is nine years old. In September, 1992, the boy entered kindergarten in respondent's Wheeler Avenue School, where he failed a speech screening examination. Petitioners consented to have their son evaluated. However, in December, 1992, they removed the boy from the Wheeler Avenue School, and placed him in the Blessed Sacrament School. In early January, 1993, petitioners met with the CSE. The record does not reveal what classification and services were recommended by the CSE. However, petitioners reportedly declined whatever services the CSE had recommended.
Petitioners' son remained in the Blessed Sacrament School for the first grade during the 1993-94 school year. The child reportedly received speech/language therapy once per week while in the first grade. Petitioners assert that the boy had difficulty keeping up with his classmates in first grade mathematics. In March, 1994, petitioners had their son evaluated at the Hy Weinberg Center for Communication Disorders of Adelphi University (Adelphi), which reported that the boy had a mild-to-moderate receptive and expressive language disorder, and a moderate phonological impairment. The boy was given speech/language therapy by Adelphi, at petitioners' expense, from May through July, 1994.
In April, 1994, petitioners' son was evaluated by Dr. Lauraine Casella, a school psychologist employed by the neighboring school district in which the Blessed Sacrament School is located. The child had been referred for an evaluation by his private school teacher because the boy had difficulty mastering basic academic skills. Dr. Casella reported that the child had achieved a verbal IQ score of 85, a performance IQ score of 65, and a full scale IQ score of 73. She indicated that the boy's perceptual organizational index was in the deficient range, and his freedom from distractibility index was in the borderline range. The child's visual-motor integration skills were found to be delayed by approximately one and one-half years. Personality testing of the youngster indicated that he was a dependent child, who was motivated to achieve, and was eager to please adult authority figures. Dr. Casella recommended that the child be further evaluated with respect to his academic achievement, and his apparent visual perceptual, visual-motor, and language-based deficits. She suggested that respondent's CSE consider classifying the child as learning disabled, and providing him with resource room services and speech/language therapy.
On the Woodcock-Johnson Psycho-Educational Battery which was administered to him in May, 1994, the boy achieved grade equivalent scores of 1.5 in letter-word identification, 1.4 in reading passage comprehension, 1.4 in mathematical calculation, K.5 in mathematical applications, 1.5 in dictation, i.e., spelling, and 1.3 in written language samples. He also earned grade equivalent scores of 1.2 in science, K.2 in social studies, and K.9 in the humanities. When the test was administered to him, the child was in the ninth month of the first grade, which was a grade equivalent of 1.9.
In June, 1994, the CSE recommended that petitioners' son be classified as speech impaired. The CSE also recommended that the boy be enrolled in a self-contained special education class, with a 12:1+1 child-to-adult ratio, in respondent's Howell Road School. The child was to be mainstreamed for music and mathematics. Petitioners did not challenge the recommended classification or placement for their son, by requesting that an impartial hearing be held to review the CSE's recommendations. Their son entered the self-contained class in the Howell Road School, which was not the elementary school for his attendance zone, on or about September 7, 1994.
At petitioners' request, the CSE met on September 19, 1994 to consider petitioners' request that the child be reassigned to another 12:1+1 class with older children than were in the Howell Road class. On September 21, 1994, the boy was enrolled in a 12:1+1 class in respondent's Willow Road School. He remained in that class for the duration of the 1994-95 school year. The boy received individual speech/language therapy three times per week during the 1994-95 school year. He reportedly did not do well in the mainstream mathematics class. In October, 1994, the CSE amended the child's individualized education program (IEP) to delete his mainstreamed mathematics instruction.
On November 18, 1994, petitioners requested that their son be reassigned to a regular education first grade class in his "home" school, which was respondent's Wheeler Avenue School. By agreement of the parties, the child was re-evaluated on November 29, 1994 by respondent's educational evaluator. She reported that the child achieved grade equivalent scores of 1.9 for letter-word identification, 2.2 for passage comprehension, 1.4 for mathematical calculations, K.8 for mathematical applications, 1.4 for dictation, and 2.0 for writing samples. The evaluator noted that the child was somewhat inattentive and required re-focusing during testing. She indicated that he often needed problems to be repeated for him, and that he had extreme difficulty during the mathematical applications portion of the testing, because he was unsure of what to do. The evaluator also indicated that the child required much praise and encouragement to remain on task.
After further discussion with respondent's staff, petitioners reportedly agreed to allow the child to remain in his self-contained class in respondent's Willow Road School. In January, 1995, the boy began to receive vision training from an optometrist. The vision training was reportedly provided to address deficiencies in the boy's visual-perceptual skills.
Petitioners had their son evaluated by a psychologist, Dr. Robin Forman, during February and March, 1995. The psychologist observed a change in the boy's behavior over the course of three days of testing. The child was initially quiet and cooperative on the first day of testing. However, on the second day of testing, the boy was less able to concentrate, and he displayed signs of anxiety and distress. On the day before the second day of testing by the psychologist, the child was involved in an incident with two of his classmates, in which his genitals were pinched by the other two boys. The psychologist reported that projective testing had revealed that the boy was experiencing an extremely high degree of stress. She indicated that in cognitive testing which had been completed before the incident with the boy's classmates, petitioners' son had achieved a verbal IQ score of 79, a performance IQ score of 74, and a full scale IQ score of 75. He demonstrated relative strength in social comprehension, abstract reasoning, and immediate auditory memory, visual concrete memory, coding, and visual scanning. On a test of his visual-motor integration skills, the boy achieved an age equivalent score of 5.1 which was almost three years below his actual age. The psychologist reported that the boy's graphomotor (handwriting) skills were also significantly below age expectations.
On the Clinical Evaluation of Language Fundamentals-Revised administered by the psychologist, the child achieved standard scores of 76 for receptive language skills, and 54 for expressive language skills. His age equivalent score of 5.0 for total language was two years and nine months below his actual age. On the Kaufman Test of Educational Achievement, the child achieved grade equivalent scores of 1.6 for reading decoding, 1.8 for reading comprehension, 1.9 for spelling, 1.8 for mathematical computation, and less than 1.0 for mathematical applications. The results of the other achievement tests which the psychologist administered to the child were comparable to the results on the Kaufman. The psychologist opined that the child's lack of academic progress attested to the inadequacy of his then current placement. She further opined that the child required a much smaller class size of no more than eight children. She indicated that language remediation should be built into each lesson the child received, and that he should receive individual language therapy each day. The psychologist also recommended that the child receive occupational therapy, and counseling.
On March 16, 1995, the child's speech/language skills were re-assessed at Adelphi. His receptive and expressive vocabulary skills were found to be age appropriate. Although the boy was able to comprehend questions and follow simple, verbal directives, he had difficulty following multi-step directions involving spatial, relational, attributional, and time/sequence concepts. His sentence imitation skills were found to be age appropriate. When asked to retell a story, the child exhibited difficulty forming cohesive sentences. The events in the stories which he told to the evaluator were sequentially related in only gross fashion, and neither the individual events, nor the story as a whole, were resolved. He was noted to have difficulty with linguistic concepts, such as big and little, as well as with morphology and syntax. The Adelphi evaluator recommended that the child receive one hour of individual speech/language therapy twice per week.
On March 22, 1995, petitioners met with the CSE to discuss their dissatisfaction with the child's placement in respondent's self-contained class. They asked the CSE to recommend that their son be placed in a 6:1+1 class in the School for Language and Communication Development, an approved private school for children with disabilities. The CSE declined to make that recommendation, but it agreed to amend the boy's IEP to provide that he would receive 30 minutes per week of counseling in a group of no more than five children.
The CSE also reportedly agreed to have the child receive an occupational therapy evaluation, although the evaluation is not mentioned in either the minutes of the CSE meeting, or the boy's IEP. The evaluation was performed on March 31, 1995. The evaluator noted that the child was easily distracted by auditory stimuli, and that his eye contact was poor. She reported that the boy had low muscle tone, and that he had difficulty performing tasks requiring bilateral integration, such as jumping rope and cutting with scissors. The child, who was seven years and ten months old when he was evaluated, achieved age equivalent scores of 4.2 for visual discrimination, 6.5 for visual memory, 4.10 for visual spatial, 7.8 for visual sequential memory, 5.8 for visual figure ground, and 5.7 for visual closure, on the Test for Visual Perceptual Skills. On the Test of Visual Motor Integration, he achieved an age equivalent score of 5.2. The evaluator reported that the letters were poorly formed and spaced in the child's handwriting. She recommended that the boy receive occupational therapy individually once per week, and in a small group once per week.
In preparation for the CSE's annual review of the child's progress during the 1994-95 school year, the Woodcock-Johnson Psycho-Educational Battery-Revised was administered to the child on May 15, 1995. He achieved grade equivalent scores of 2.3 for letter-word identification, 2.6 for passage comprehension, 2.5 for mathematical calculation, 1.4 for mathematical applications, 2.3 for dictation, and 2.4 for writing samples. The evaluator who administered the tests reported that the child needed praise and encouragement to remain on task, and that he had particular difficulty in mathematical applications with lengthy verbal information.
On May 31, 1995, the child was evaluated by respondent's speech/language therapist, who reported that the child's score on the Peabody Picture Vocabulary Test indicated an almost two-year delay in his receptive language skills. The boy's spoken language quotient of 83 on the Test of Language Development-2 Primary was below average, and indicative of his significant deficits in grammatic understanding, sentence imitation, and grammatic completion. The evaluator noted that some of the child's responses to questions were off-target, and she hypothesized that those responses could be caused by the boy's language processing difficulties, or his inability to remain focused. She recommended that the boy receive speech/language therapy in a group of no more than three children for three times per week, to work on focusing, auditory memory, vocabulary, categorization, and expression.
The child's annual review by the CSE was conducted on June 6, 1995. Petitioners, through their attorney, expressed their dissatisfaction with the results of the boy's performance in respondent's self-contained class. They asked the CSE to recommend that the child be enrolled in a regular education third grade class, with supportive services, for the 1995-96 school year. They also requested that they be reimbursed by respondent for the cost of certain evaluations which had been performed at their expense, and that respondent assume the cost of providing vision training to their son. The CSE recommended that petitioners' son remain in a 12:1+1 self-contained class in the Willow Road School for the 1995-96 school year, but that he be mainstreamed for music and science, with a "trial" in reading. It also recommended that he receive speech/language therapy in a group of no more than three children three times per week, individual and small group occupational therapy once each per week, and counseling in a group of no more than five children once per week.
Petitioners did not accept the CSE's recommendations. They enrolled their son in the Holy Name of Mary School (Holy Name) in Valley Stream for the 1995-96 school year. At the hearing in this proceeding, the Principal of Holy Name testified that petitioners' son was retained in grade, i.e., enrolled in a second grade class because his academic skills were at a low level, and she was concerned that he would not be successful in the third grade. During the summer of 1995, the child received two hours per week of speech/language therapy from Adelphi.
By letter dated July 28, 1996, petitioners' attorney asked the CSE to schedule another meeting with them for the purpose of preparing a new IEP for their child to provide him with speech/language therapy, occupational therapy, and vision training while attending Holy Name. The attorney asserted that petitioners sought reimbursement for the cost of their son's independent evaluations and tutoring during the 1994-95 school year, and that they also sought to have respondent pay for the child's tuition at Holy Name during the 1995-96 school year. He indicated that if petitioners could not obtain what they believed to be a reasonable program for the child, they would ask for an impartial hearing. Respondent's CSE chairperson reportedly did not respond to the attorney's letter. In a letter dated September 18, 1996, petitioners' attorney indicated to respondent's president that petitioners intended to provide afterschool tutoring and related services to their son, but that respondent should reimburse them for the cost of those services and the child's tuition pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794). He also requested that an impartial hearing be held.
On November 3, 1996, the CSE met with petitioners, their attorney, and the principal of Holy Name. The principal indicated that the child was working well at the second grade level, but was being tutored in mathematics. The CSE agreed to recommend that respondent contract with the neighboring school district in which Holy Name was located to provide occupational therapy and speech/language therapy to the child. While it adhered to its prior recommendation for occupational therapy, the CSE recommended a decrease in the amount of speech/language therapy from three to two times per week. It declined to recommend that the child receive vision training, or to recommend that respondent pay for the child's tuition, tutoring, and evaluations. The CSE agreed to delete counseling from the boy's IEP because the Holy Name principal reported that the boy appeared to be confident and more able to interact with other children.
By letter dated November 21, 1996, petitioners' attorney reiterated their request for an impartial hearing. The hearing began on January 26, 1996. It concluded on April 19, 1996. However, the hearing officer did not render his decision until September 20, 1996.1 In his decision, the hearing officer found that respondent had adequately evaluated petitioners' son, except with regard to his vision. He directed respondent to reimburse petitioners for the cost of a vision screening by an optometrist which petitioners had obtained on December 6, 1994. The hearing officer upheld the CSE's classification of the child as speech-impaired, and rejected petitioners' assertion that their son might be more appropriately classified as learning disabled. He also found that the child's IEP for the 1995-96 school year which the CSE had prepared on June 6, 1995 was appropriate to meet the boy's special education needs.
With regard to petitioners' contention that the CSE had failed to prepare a new IEP for the child on a timely basis after it was informed by petitioners that the child would attend Holy Name, the hearing officer found that the CSE had acted as soon as it could, in light of the reported attempts by the parties' attorneys to settle the matter. He further found that the IEP which the CSE had prepared on November 3, 1995 was appropriate to meet the boy's needs. The hearing officer found that the record supported the CSE's determination that the occupational therapy which it recommended for the child was adequate to address the child's needs, in lieu of the separate vision training which he received at petitioners' expense during the 1995-96 school year. He rejected petitioners' assertion that respondent was aware of their son's reported need for vision training during the 1994-95 school year and should have provided such training. Having found that respondent had offered to provide an appropriate educational program for the child during the 1995-96 school year, the hearing officer denied petitioners' request for an order requiring respondent to reimburse them for the cost of their son's tuition in Holy Name, or the tutoring which they had obtained for him.
Petitioners challenge the hearing officer's finding that respondent had adequately evaluated their son. They contend that the CSE failed to obtain a psychological, or a physical examination of their son, after he was referred to the CSE in the spring of 1994. State regulation provides that an individual evaluation of a child who has been referred to a CSE shall include a physical examination, an individual psychological evaluation, unless a school psychologist determines after assessing the child that an evaluation is unnecessary, a social history, and other appropriate assessments or evaluations to ascertain the physical, mental, and emotional factors which contribute to the child's suspected disability (8 NYCRR 200.4 [b]).
Although they acknowledge that a CSE may rely upon someone else's evaluation of a child, in lieu of performing its own evaluation (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12; Application of a Child Suspected of Having a Disability, Appeal No. 94-42), petitioners argue that the hearing officer erred in finding that respondent's CSE could satisfy its obligation to evaluate their son by relying upon the results of the psychological evaluation which was performed in April, 1994 by Dr. Casella, who is employed by another school district. They appear to premise their argument upon the fact that respondent's CSE did not accept Dr. Casella's suggestion that the child might be eligible for classification as learning disabled, and that additional, non-psychological evaluations should be performed. I find that petitioners' argument is without merit. Respondent's CSE undeniably had the results of a valid and current psychological evaluation of the boy before it, when it prepared his IEPs for the 1994-95 and 1995-96 school years. Indeed, the record reveals that the CSE also had the results of the child's private psychological evaluation in 1995 when it prepared the 1995-96 IEP.
The Board of Education has responded to petitioners' assertion about the lack of a physical examination for their son by annexing a copy of the child's cumulative health record to its answer. It asserts that the health record reveals that the child's family physician had examined him on June 12, 1992, prior to the boy's entry into kindergarten. In their reply to the answer, petitioners acknowledge that the CSE had the results of the boy's 1992 physical examination when it prepared the boy's two IEPs, but they contend that the examination was inadequate for the purposes of identifying the child's disability and recommending appropriate special education services for him because it did not include an optometrical examination. However, the third page of the child's cumulative health record has a note indicating that in November, 1992, respondent had received a report from an "eye Dr." that the child had an astigmatism, and that eye glasses had been prescribed for him. There are additional notes on that page indicating that respondent had received additional reports from the child's optometrist in December, 1994. I find that respondent has met its burden of proving that its CSE complied with the regulatory requirement of having obtained the results of a psychological examination, and a physical examination.
Petitioners have raised two distinct issues with regard to their son's evaluations. The first is whether the CSE had obtained sufficient information from either the evaluations which it performed, or those that were performed by others, to accurately identify the child's special education needs. The second issue is whether they should be reimbursed for the cost of the evaluations which were done at their expense, and were used by the CSE in lieu of conducting its own evaluations. With regard to the first issue, I find that the various psychological, physical, vision, speech/language, and educational achievement reports which the CSE obtained were adequate to enable the CSE to identify the boy's special education needs, and to prepare his IEPs for the 1994-95 and 1995-96 school years.
With regard to the second issue, I note that the hearing officer has ordered respondent to reimburse petitioners for the cost of a vision examination which the child's optometrist had performed in December, 1994. Petitioners also seek reimbursement for the cost of the private speech/language evaluations by Adelphi in March, 1994 and March, 1995, the psychological evaluation by Dr. Forman in March, 1995, and various follow-up evaluations by the optometrist who provided vision training to the boy. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][vi][a]). There is no requirement that a parent must first notify a board of education of his or her intent to seek an independent evaluation (Application of a Child with a Handicapping Condition, Appeal No. 92-21).
The record does not reveal whether the 1994 Adelphi evaluation was performed before or after the child had been referred to the CSE in 1994. Although respondent's school psychologist briefly alluded in her testimony to a speech/language evaluation which had been performed in 1992, that evaluation is not included in the record. In view of the CSE's determination that the child should be classified as speech impaired, and respondent's failure to introduce into evidence its 1992 speech/language evaluation, I must find that respondent has not met its burden of demonstrating the adequacy of its evaluation, for the purpose of determining that petitioners are entitled to be reimbursed for the cost of the 1994 speech/language evaluation at Adelphi. I will direct respondent to reimburse petitioners for that evaluation. I further find that the subsequent Adelphi evaluation in March, 1995 did not reveal significantly different information from that in the prior evaluation to support a finding that petitioner should be reimbursed for the cost of that independent evaluation, especially in light of the fact that respondent's speech/language evaluation of the child in May, 1995 provided comparable information to the CSE.
Since the CSE already had the results of the psychological evaluation by Dr. Casella in April, 1994, and the academic achievement tests administered to the boy in May, 1994 and May, 1995, the question to be determined with respect to reimbursement for the cost of Dr. Forman's psychological evaluation in March, 1995 is whether it produced significantly different information for the CSE's use (Application of a Child with a Disability, Appeal No. 94-18). I find that the information which Dr. Forman provided in her report was comparable to that which the CSE had obtained from other sources with respect to the boy's cognitive ability, personality, and educational achievement. While Dr. Forman also provided information with respect to the child's speech/language skills and his fine motor skills, I find that it was comparable to that which the CSE had gotten from Adelphi, its own speech/language therapist, and occupational therapist. Accordingly, I find that there is no basis in law for requiring respondent to reimburse petitioners for the cost of Dr. Forman's evaluation.
As noted above, the hearing officer ordered respondent to reimburse petitioners for the cost of a vision examination which was performed by Dr. Martin Birnbaum in December, 1994. Petitioners contend that they should also be reimbursed for the cost of the vision therapy which Dr. Birnbaum provided to their son during the 1994-95 and 1995-96 school years. The child's special education teacher during the 1994-95 school year testified that the child's IEP for that school year had been revised on March 22, 1995 to incorporate some of Dr. Birnbaum's suggestions. The teacher referred to changes on pages 4, 6, 7, 9, and 10 of the boy's IEP, relating to testing modifications, and the improvement of his perceptual skills with regard to reading and mathematics. I note that the changes to which the teacher referred were initially suggested by Dr. Birnbaum as part of item #9 in his report of his evaluation of the child on December 6, 1994.
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 ). Although the child's IEP for the 1994-95 school year does not include a description of his physical development (cf. 8 NYCRR 200.9 [c][I]), the revisions to the boy's IEP which the CSE made on March 22, 1995, e.g., adding an annual goal to improve the child's perceptual skills, suggest that the CSE acknowledged Dr. Birnbaum's diagnosis of the child's perceptual deficits. Moreover, Dr. Casella had reported in April, 1994 that the boy's visual motor integration skills were delayed, and that his perceptual organizational index was in the deficit range. The occupational therapist who evaluated the child in March, 1995 also reported that the boy's visual motor integration and his visual perceptual skills were delayed. The record does not reveal what, if any, services were provided by respondent to address the boy's visual motor and visual perception deficits. Upon a review of the entire record before me, I find that respondent has failed to demonstrate that it had appropriately addressed the child's perceptual needs during the 1995-95 school year.
Petitioners bear the burden of proving that the services which they obtained for their son were appropriate (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). Dr. Birnbaum did not testify at the hearing in this proceeding. Consequently, there is little information in the record about the nature of the services which Dr. Birnbaum provided to the child during the 1994-95 school year. In a letter dated October 27, 1995 (Exhibit B), Dr. Birnbaum reported that the child's visual perceptual and visual motor integration skills had improved by approximately two years during the six-month period from December, 1994, when he began to work with the child, until June, 1995. However, Ms. Mary Lem-Logan, the occupational therapist who evaluated the child on March 31, 1995, used some of the same tests which Dr. Birnbaum had used to evaluate the boy's visual perceptual and visual motor integration skills. The results reported by Ms. Lem-Logan (Exhibit 3) indicate that there was little, if any, improvement in the boy's skills at least one-half of the way through the six-month period described by Dr. Birnbaum. I have also considered Dr. Forman's report (Exhibit D), in which she opined that the child's improved performance on the non-verbal subtests of the Wechsler Intelligence Scale for Children-III, when compared to the results on those subtests when the same test was given to him in April, 1994 were reflective of the visual training which he had received. Nevertheless, the specific evaluation of the boy's visual perceptual and visual motor integration skills by Ms. Lem-Logan do not support Dr. Forman's opinion. Indeed, Dr. Forman reported that the child had obtained an age equivalent score of 5.1 on the Beery Buktenica Development Test of Visual-Motor Integration in March, 1995, which was consistent with the results reported by Ms. Lem-Logan. Upon the record before me, I find that petitioners have not met their burden of proof with respect to the appropriateness of the vision training which they obtained for their son in the 1994-95 school year.
With regard to petitioners' request for reimbursement for their expenditures for the boy's vision training during the 1995-96 school year, Dr. Birnbaum's partner indicated in a letter dated February 6, 1996 (Exhibit V) that the child had made significant gains in "all areas of visual functioning", and that the child would soon thereafter be discharged from care. Respondent's CSE had recommended that the child's perceptual deficits be addressed by providing occupational therapy to him during the 1995-96 school year. Having reviewed the testimony of Ms. Lem-Logan, I find that the recommended occupational therapy could have addressed the child's educationally related visual deficits. However, on September 18, 1995, petitioners' attorney indicated to respondent's president that petitioners " ... no longer request any in-school services, which at this point will only disrupt his academics, program and sense of security" (Exhibit S). I also note that at the hearing respondent's CSE chairperson testified that when the issue of reimbursement for the child's vision therapy and private speech/language therapy came up at the CSE meeting on November 3, 1995, he promptly arranged for occupational therapy and speech/language therapy to be provided to the boy. The chairperson's testimony that he subsequently learned that petitioners did not want to receive either service has not been rebutted. Under the circumstances, equitable considerations would not support petitioners' request for reimbursement for either of those services.
Petitioners challenge the hearing officer's determination that respondent had offered the boy an appropriate educational placement in one of its self-contained special education classes for the 1995-96 school year. 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).
In this instance, I must find that respondent has failed to meet its burden of proof. Federal regulation (34 CFR 300.344 [a]) and New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher be a member of the CSE which conducts a review, or makes a recommendation for services to be provided to the child. There is no dispute that Ms. Gormley, the child's special education teacher during the 1994-95 school year did not attend the annual review meeting of the CSE on June 6, 1995. In the absence of its required teacher member, respondent's CSE could not prepare a valid IEP for petitioners' son (Application of a Child with a Disability, Appeal No. 95-80; Application of a Child with a Disability, Appeal No. 95-14). My finding that the CSE's recommendation was fatally flawed by the teacher's absence from the CSE meeting in no way resolves the primary dispute between the parties about the appropriateness of a self-contained education class for the boy. I will note for the benefit of the parties that the relevant inquiry is to what extent does the child require primary instruction in special education. In the future, the CSE must more clearly articulate the basis for its placement recommendations than was done in this instance (see transcript pages 839-841).
Although petitioners have prevailed with respect to the first of three criteria for tuition reimbursement under the Burlington decision, their request for reimbursement for the cost of their son's Holy Name tuition during the 1995-96 school year must be denied. Petitioners have the burden of showing that the services which they obtained for their child at Holy Name 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). A review of the testimony by the Principal of Holy Name, and the documentary evidence relating to the boy's instructional program during the 1995-96 school year, compels me to conclude that petitioners have not demonstrated how the private school's instructional program addressed any of the child's special education needs. Therefore, petitioners have not prevailed with respect to the second of the three criteria for tuition reimbursement.
I have considered petitioners' other contentions, and I find that they are without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that it denied petitioners' request for reimbursement for the cost of the speech/language evaluation of their son at Adelphi in March, 1994, and to the extent that it found that respondent had offered the boy an appropriate educational placement for the 1995-96 school year, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditure for the 1994 evaluation by Adelphi, upon their presentation to respondent of proof of their expenditure for that evaluation.
1 The record reveals that petitioners waived their right to receive a decision within 45 days after their request for a hearing (Transcript, Jan 26, 1996, page 17).
1 The record reveals that petitioners waived their right to receive a decision within 45 days after their request for a hearing (Transcript, Jan 26, 1996, page 17).