97-014 & 97-019
Applications of the BOARD OF EDUCATION OF THE GREECE CENTRAL SCHOOL DISTRICT and a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education
Bouvier, O’Connor, Esqs., attorneys for the board of education, Bruce A. Goldstein, Esq., Arthur H. Ackenhalt, Esq., and Tamie Jo Morog, Esq., of counsel
Western New York Advocacy for the Developmentally Disabled, Inc., attorney for the child, Roger G. Nellist, Esq., of counsel
The Board of Education of the Greece Central School District and the mother of a child with a disability have separately appealed from the decision of an impartial hearing officer regarding the services to be provided to the child. Since both appeals arise from one hearing officer’s decision, they have been consolidated for purposes of this decision. The board of education appeals from the hearing officer’s determination that it had failed to prove the appropriateness of the recommendation for a portion of the 1995-96 school year which its committee on special education (CSE) made for the child on March 12, 1996, and the CSE's recommendation for the 1996-97 school year which it made on July 11, 1996. The board’s appeal must be dismissed.
The girl’s mother, hereinafter the "parent", appeals from the hearing officer’s determination which upheld the appropriateness of the CSE’s recommendation for the child on December 12, 1995 for a portion of the 1995-96 school year. She also appeals from the hearing officer’s determination that the parent was not entitled to tuition reimbursement for either the 1995-96 or the 1996-97 school year, because the parent had not met her burden of proving that the private school in which she had unilaterally enrolled her daughter had provided appropriate special education services to the child. The parent’s appeal must be sustained in part.
Petitioner’s daughter is sixteen years old. She attended school in Maryland for two years, and then became a resident of the East Irondequoit Central School District. In East Irondequoit, the child was classified as learning disabled, and she was enrolled in self-contained special education classes for three years. In September, 1992, the child entered the fifth grade in respondent’s Lakeshore Elementary School, where she was placed in a self-contained class with a 12:1+1 child to adult ratio in respondent’s Athena Middle School. However, she was mainstreamed for special subjects, and for fourth grade mathematics. Respondent provided her with speech/language therapy and counseling during the 1992-93 school year. The girl reportedly made some academic progress, in her regular and special education classes, but she had social difficulties with a classmate. During the 1993-94 school year, the child was placed in a 15:1+1 self-contained sixth grade class in respondent’s Apollo Middle School. She continued to receive the related services of speech/language therapy and counseling. Although she continued to make progress academically, the girl reportedly had social difficulties with other children in school.
For the 1994-95 school year, respondent’s CSE initially recommended that respondent place the child in the Norman Howard School, a local private school which has been approved by the State Education Department to provide instruction to children with disabilities. However, the Norman Howard School declined to accept the child because the school determined that it could not meet her educational needs. The parties agreed that the child would receive home instruction during the fall of 1994, while she was being evaluated at the Strong Memorial Hospital in Rochester, New York. When the child’s evaluation had been completed, the CSE reapplied for her admission to the Norman Howard School. In November, 1994, the Norman Howard School again determined that it could not meet the child’s needs.
In January, 1995, respondent’s CSE recommended that the child be enrolled in a special education program of either of two local boards of cooperative educational services. In March, 1995, the parent placed her daughter in Hope Hall, a private school which had been provisionally chartered by the New York State Board of Regents as an alternative elementary school. The parent also requested that an impartial hearing be held to review the CSE’s recommendation, and to obtain an award of tuition reimbursement. In July, 1995, the hearing officer upheld the appropriateness of the CSE’s recommended placement for the child, and she denied the parent’s request for tuition reimbursement.
The parent appealed from the hearing officer’s determination. On October 20, 1995, I sustained the parent’s appeal (Application of a Child with a Disability, Appeal No. 95-61). I found that respondent had failed to recommend a specific placement for the child, as it was obligated to do. I further found that the parent had demonstrated that Hope Hall, which had not been approved by the State Education Department to instruct children with disabilities, had offered services which addressed the girl’s identified special education needs. In addition, the parent was found to have cooperated with the CSE at all times. Accordingly, she was determined to be eligible for an award of tuition reimbursement for the period from March through June, 1995 (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 ). My decision is the subject of an action which is now pending in the United States District Court for the Western District of New York.
Respondent's CSE was scheduled to meet on August 29, 1995 to recommend the child's educational placement for the 1995-96 school year. That CSE meeting was reportedly postponed at the parent's request. The child remained in Hope Hall for the seventh grade during the 1995-96 school year. In November, 1995, the parent was notified that the CSE would meet with her on December 12, 1995. The parent, her attorney, and two representatives of Hope Hall attended the CSE meeting. The principal of Hope Hall, and the child's teacher in Hope Hall, described the child's academic performance and social development for the CSE. The CSE then convened in executive session with the child's teacher, but without the parent, her attorney, or the principal of Hope Hall. During the executive session, the CSE reportedly discussed certain placement alternatives for the child. The CSE then reconvened with the parent and her representatives, at which time it disclosed its recommendation for the 1995-96 school year.
The individualized education program (IEP) which the CSE prepared for the child indicated that her reading and writing skills were at the fifth grade level, and her mathematics skills were at the seventh grade level. The girl was described as an apparent visual learner who benefited from multi-sensory instruction. She was reported to have age-appropriate management needs, and she was described as interacting appropriately with adults and peers. The CSE recommended that the child remain classified as learning disabled, and that she be enrolled in a self-contained special education class in the Greece Apollo Middle School. The recommended class had a child to adult ratio of 15:1+1, i.e., it had a teacher and an aide. The child was to be mainstreamed for physical education, art, music, and technology. At the hearing in this proceeding, the CSE chairperson testified that the 15:1 + 1 class was an additional choice on the board of education's continuum of alternative placements (see 34 CFR 300.551), rather than an inconsistency with the State regulatory requirement of a class size of 12:1 + 1 (see 8 NYCRR 200.6 [g]  [i]). The CSE also recommended that the child receive speech/language therapy for 45 minutes, twice per week, and that she receive counseling for 40 minutes, once per week. It further recommended that an individual monitor be assigned to be with the girl throughout the school day. The CSE recommended that certain testing modifications be used with the girl, and that she be provided with a Franklin Speller.
The parent was opposed to the CSE's recommendation. In a conversation with the CSE chairperson, the parent reportedly expressed doubt about the child's academic and social proficiencies which the Hope Hall staff had reported to the CSE. In view of those concerns, as well as the fact that the girl was nearing her fifteenth birthday and would need a statement of transition services in her IEP (see 8 NYCRR 200.4 [c]  [v]), the CSE chairperson decided to have the girl re-evaluated. She offered the parent the option of having the re-evaluation performed at the Genesee Hospital in Rochester, in lieu of an evaluation by school district personnel. However, the parent reportedly declined that offer.
In February, 1996, the child was evaluated by a board of education speech language/pathologist, who had provided speech/language therapy to the child during the 1992-93 school year. The speech/language pathologist reported that the child scored in the low average range on the Comprehensive Receptive and Expressive Vocabulary Test, which measured a child’s understanding and long-standing retention of vocabulary words. On the Clinical Evaluation of Language Fundamentals Third Edition, the child achieved a total language score of 66, which was below the average range of 85-115. The speech/language pathologist noted that the child had demonstrated considerable difficulty performing short-term memory tasks and using abstract thinking skills. The child also evidenced difficulty when attempting to communicate her thoughts in complete sentences. The speech/language pathologist reported that the child’s expressive language was generally disorganized and often appeared "aphasic"-like as she substituted similar sounding words when unable to retrieve the desired words. The child’s social language skills were described as adequate for her age. Given the child’s language difficulties, the speech/language pathologist recommended that the child’s speech/language therapy should be increased to three times per week to assist the child in applying information and expressing her thoughts.
On March 6, 1996, a board of education school psychologist evaluated the child. She reported that the child had achieved a verbal IQ score of 97, a performance IQ score of 94, and a full scale IQ score of 95. The child demonstrated a significant weakness in her performance on the freedom from distractibility scale, which suggested that she had trouble paying attention to, remembering, and mentally manipulating information which was presented to her orally. The school psychologist noted that the child had difficulty formulating complete responses to questions. On the Wechsler Individual Achievement Test, the child achieved grade equivalent scores of 2.8 for basic reading, 4.5 for reading comprehension, 2.3 for spelling, 4.8 for numerical operations, 4.9 for mathematical reasoning, and 1.2 for written expression. On the Woodcock Johnson Test of Achievement Test-Revised, she achieved grade equivalent scores of 2.4 for word attack, 2.7 for reading vocabulary, 4.6 for passage comprehension, and 2.6 for writing samples. The child’s responses to questions on self-rating scales indicated that she had very good self-esteem, and did not have an inordinate amount of anxiety. However, her score on another test indicated that the child might have an extremely high need to be accepted and socially desirable. The school psychologist concluded that the child demonstrated significant weakness in her ability to pay attention, remember, and to mentally manipulate numbers, as well as in her ability to visually integrate information. The child also demonstrated weakness in her language skills. All of these weaknesses were seen as likely to impair the child’s ability to organize and use both auditory and visual information. She recommended that the child receive a corrective reading program, as well as speech/language therapy. She also recommended that the child continue to receive counseling.
The CSE met again on March 12, 1996 to review the results of the child’s re-evaluation. At the meeting, the school psychologist who had evaluated the child in February suggested that the child’s poor performance on one reading test may have been because the test was above the child’s level of reading, and that her poor performance on one mathematics test was because she had reportedly not been taught to perform some of the mathematical operations which the test required. The parent indicated that she might wish to have the child independently evaluated, and was advised that she could obtain a new evaluation. The CSE also reviewed the results of a vocational assessment, in which the girl had indicated her desire to obtain a college degree, and it concluded that a more academically oriented class than the 15:1+1 class which it had recommended for the child in December, 1995 would be appropriate for her. Therefore, the CSE recommended that the girl be enrolled in a 15:1 special education class in the Apollo Middle School. It recommended that she receive individual speech/language therapy for 40 minutes, twice per week, group speech/language therapy for 40 minutes, once per week, and that she receive counseling for 40 minutes, once per week. The CSE also recommended that a full-time monitor be assigned to assist the child.
In a letter dated February 2, 1996, the parent had requested that an impartial hearing be held to review the recommendation made by the CSE on December 12, 1995. After that recommendation was amended by the CSE at its meeting on March 12, 1996, the parties agreed that both recommendations would be reviewed at the hearing which the parent had requested. The hearing began on June 11, 1996 before a hearing officer who disclosed that she was familiar with Hope Hall because of an impartial hearing which she had conducted for another school district, and that she had evaluated students for the Greece Central School District. At the request of the child’s parent, the hearing officer recused herself from this proceeding. The hearing resumed before another hearing officer on August 5, 1996. In the interim, the CSE met on July 11, 1996 to recommend an educational program for the child during the 1996-97 school year.
At the CSE meeting on July 11, 1996, one of the child’s teachers in Hope Hall orally reported that the child had done well in science and mathematics during the 1995-96 school year. The teacher indicated that the child had also done well in her other subjects, but she could not provide more information because she had not taught the child those subjects. The teacher and the parent agreed that the child also had a socially successful school year at Hope Hall. Nevertheless, they insisted that the child was too emotionally fragile to return to a large public school. For the 1996-97 school year, the CSE recommended that the child be enrolled in a 15:1 eighth grade special education class in the Apollo Middle School. It further recommended that she receive individual and group speech/language therapy and counseling in the same amounts which it had previously recommended in March, 1996. It again recommended that a full-time monitor assist the child during the school day. The parent indicated at the CSE meeting that she opposed the CSE’s recommendation.
By agreement of the parties, the scope of this proceeding was broadened to include the CSE’s recommendation for the 1996-97 school year. At the hearing, the parent through her attorney challenged the December, 1995, March, 1996, and July, 1996 CSE recommendations on both procedural and substantive ground. The parent sought an order requiring the board of education to reimburse her for the cost of her child’s tuition in Hope Hall for the period from December, 1995 through June, 1996, and September, 1996 through June, 1997. I note that despite the parent’s contention at the hearing that her child’s tuition for the period from September through December, 1995 was addressed in the prior proceeding, my decision in that proceeding was limited to her request for tuition reimbursement for the period from March through June, 1995. The hearing in this proceeding was completed on November 13, 1996. Both parties were afforded approximately two months to submit written argument to the hearing officer.
The hearing officer rendered her decision on February 7, 1997. With regard to the CSE recommendation which was made on December 12, 1995, the hearing officer found that the CSE had erred by relying almost exclusively upon information provided to it by the child’s teachers in Hope Hall, which the hearing officer characterized as a procedural violation by the CSE. She rejected the parent’s contentions that the CSE had violated her rights by excluding her from an executive session of the CSE (see Application of a Child with a Handicapping Condition, Appeal No. 90-18), and that it had failed to disclose the educational alternatives which it had considered and the reasons for rejecting those alternatives. However, the hearing officer found that the CSE had failed to describe the tests or reports on which its recommendation was based in the notice of recommendation which was given to the parent (cf. 8 NYCRR 200.5 [a][ii][b]). Nevertheless, the hearing officer found that the CSE’s procedural errors were not significant, and that the CSE had in fact recommended an educationally appropriate program for the child.
The hearing officer next considered the recommendation which the CSE had made on March 2, 1996. She found that the parent’s opportunity to effectively participate in the CSE meeting had been abridged because she did not have the opportunity to review the results of her child’s re-evaluation and the child's draft IEP before the CSE meeting was held. The hearing officer also found that the school psychologist should have observed the child in her classroom as part of her evaluation of the youngster, in order to support the recommendation of the CSE that the child be placed in the less restrictive environment of a 15:1 class. While agreeing that the more academically oriented 15:1 class was consistent with the child’s stated goal of obtaining a college degree, the hearing officer nevertheless found that the board of education had not provided sufficient evidence of the child’s academic prowess or emotional growth to support the placement of the child in the more challenging 15:1 class which the CSE had recommended on March 12, 1996. She reached a similar conclusion with respect to the CSE’s subsequent recommendation on July 11, 1996 that the child be placed in a 15:1 class for the 1996-97 school year.
The hearing officer denied the parent’s request for tuition reimbursement because she found that the child had not made any academic gain while attending Hope Hall. She further found that the child’s social and emotional deficits continue to manifest themselves, and suggested that they could become even worse in what she described as the "excessively protected atmosphere" of Hope Hall. She remanded the matter to the CSE for the purpose of making another recommendation for the child’s educational program during the 1996-97 school year.
The parent challenges the hearing officer’s determination upholding the CSE’s recommendation on December 12, 1995 that her daughter be placed in a school district 15:1+1 class. She asserts that the board of education failed to give her adequate notice of its CSE’s recommendation, and that the recommended placement was inappropriate for the girl. Federal and State regulations require that the parent of a child with a disability be given written notice of a CSE’s recommendation, and that the written notice include a description of the evaluation procedures, tests, records and reports, as well as other factors considered by the CSE (34 CFR 300.505 [a] and ; 8 NYCRR 200.5 [a][ii][b]), and a description of the options which the CSE considered and the reasons why those options were rejected (34 CFR 300.505 [a]; 8 NYCRR 200.5 [a][i]).
By letter dated December 14, 1995 (Exhibit P-7), the parent was notified of the CSE’s recommendation. That letter did not include any of the required information with regard to the basis for the CSE’s recommendation, or the options which the CSE had considered. However, the letter was accompanied by a copy of the child’s IEP, which indicated that the CSE had considered a 15:1 class in-district, a 15:1+1 BOCES class in the Webster Central School District, and a regular education placement with a consultant teacher and a monitor, each of which was determined to be inadequate to meet the girl’s needs. The hearing officer concluded that the parent had been adequately informed of the options which the CSE had considered, but that she had not received notice of the tests, records, and other factors on which the CSE had relied in making its recommendation. I disagree with the hearing officer’s determination that the brief reference to other options considered which appeared in the child’s IEP satisfied the board of education’s obligation to adequately notify the parent (Application of a Child with a Disability, Appeal No. 94-4). Therefore, I find that the notice which the parent received did not comply with the regulatory requirements.
The parent challenges the December 12, 1995 CSE recommendation substantively on the ground that the CSE failed to consider, and the board of education failed to demonstrate at the hearing, whether the child would have been suitably grouped for instructional purposes in the recommended 15:1+1 class. State regulation provides that the size and composition of special education classes shall be based on the similarity of the individual needs of the students, with respect to the students’ levels of academic achievement and learning characteristics, social development, and physical development, and management needs (8 NYCRR 200.6 [g]). At the hearing, the CSE chairperson for the meeting which was held on December 12, 1995 testified that the similarity of student needs in the proposed placement was not discussed, because the parent became upset after the CSE had announced its recommendation for the 15:1+1 class (August 5, 1996 Transcript, page 119). However, the CSE chairperson also testified that the CSE had considered the child’s needs in making its recommendation, and that she had personally observed the students in the recommended class to ascertain whether this child would be appropriately grouped with them. In addition, the 15:1+1 class teacher testified that the reading levels of the children ranged from the third to the fifth grade, and that each child had passed a sixth grade mathematics proficiency test at the end of the 1995-96 school year. She estimated that some of her students may have begun the school year with fourth grade mathematics skills. This teacher, who had previously taught the child when she attended the district’s schools, opined that the girl would have been appropriately placed in the 15:1+1 class. The speech/language pathologist who evaluated the girl in February, 1996, and who had worked with children in the 15:1+1 class, also opined that the girl would have been suitably grouped with the children in that class. In her petition, the parent points out that the board of education did not reveal the classification, age range, and intellectual abilities of the children in the 15:1+1 class. The board of education counters that the parent failed to raise the issue of the students’ classification, age range and intellectual abilities at the hearing.
Although I agree that the parent could have cross-examined the board of education witnesses more closely about the basis for their opinions that the child would have been suitably grouped for instructional purposes, it was the board of education’s responsibility to demonstrate the suitability of grouping with respect to each of the four regulatory characteristics. I find that the board of education failed to establish that the girl would have been suitably grouped for instructional purposes, especially in light of the fact that the CSE admittedly knew very little about the child’s present levels of performance, her social/emotional development, and management needs when it made its recommendation. Indeed, the CSE chairperson testified that the particular 15:1+1 class had been selected by the CSE because the child’s teachers in Hope Hall had represented to the CSE that the child was performing at the seventh grade level in all subjects (August 5, 1996 Transcript, pages 44 and 45). However, she also testified that the school district decided to re-evaluate the child shortly after the CSE had made its recommendation in December, 1995, at least in part, because "…we weren't feeling that we had a complete picture of [the child]" (August 5, 1996, Transcript, pages 58-59). The CSE’s subsequent re-evaluation of the child revealed that her academic skills were several years below grade level. Although the 15:1+1 class teacher’s testimony indicated that the children in her class were not academically functioning at the seventh grade level, I am not persuaded that by that fact alone that the child would have been suitably grouped for instructional purposes.
There is a broader issue here. It was the CSE's responsibility to prepare an IEP which accurately reported the child's present levels of performance, and accurately indicated her individual needs with respect to her academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.4 [c]  [i]). The IEP which the CSE prepared for the child on December 12, 1995 indicated that her reading and writing skills were at the fifth grade level, and her mathematics skills were at the seventh grade level. The CSE indicated on the IEP that this information had been reported to it by the child's private school teachers. The IEP's description of the child's social development and management needs as age appropriate was also derived from the same source. Nevertheless, the CSE chairperson testified that at the CSE meeting the parent had questioned the accuracy of the IEP's description of her daughter's social and emotional growth. The chairperson also testified that after observing the child at Hope Hall in November 1995, she had concerns about the instructional program which the child was receiving. However, the CSE did not attempt to ascertain what the child's needs actually were until after it had prepared her IEP.
If the IEP had accurately described the child's social development and her management needs, the question would be why did the CSE recommend so restrictive a placement as a 15:1+1 class for most of the child's instruction, with a full-time individual monitor? I must also note that the IEP description of the child's social development does not provide an adequate basis for the CSE's recommendation that the girl receive counseling. Curiously, the child's IEP did not reflect the results of the child's triennial psychological evaluation in June, 1994, which had provided more detailed information about the child's reading, writing, and mathematics skills.
An IEP must also contain annual goals which are consistent with the student's needs and abilities, and which are sufficiently specific to provide direction to the child's teacher concerning the CSE's expectations (Application of a Child with a Disability, Appeal No. 93-24). This child's IEP goals, such as "improve expressive language skills," "increase to a more age appropriate level her written expressive language skills," and "increase reading, writing, spelling and comprehension skills to a more age appropriate level,"were, in my judgement, too vague to be of use. Although the CSE also prepared short-term instructional objectives to support the child's annual goals, I find that those objectives did not provide the specificity needed to overcome the vagueness of the child's IEP annual goals. While I am not suggesting that the child did not have special education needs for which a self-contained special education class may have been appropriate, I am constrained to find that her IEP was too poorly drafted to support the recommendation which the CSE made on December 12, 1995. Accordingly, I find that the board of education did not meet its burden of proving the appropriateness of its CSE's recommendation, and I will sustain the parent's appeal to the extent of annulling the hearing officer's finding to the contrary.
The board of education challenges the hearing officer's determination that the CSE had failed to adequately evaluate the child prior to making its recommendations on March 12, 1996 and July 11, 1996, because the CSE did not formally observe the child in Hope Hall, and the school psychologist had conducted only limited testing of the child's social and emotional strengths and weaknesses. In view of the fact that the child had been previously evaluated by the CSE, I agree with the board of education that the regulatory requirement of an observation did not apply in this case (Application of a Child with a Disability, Appeal No. 93-40). Although not required as a matter of law, an observation would nevertheless have provided useful information to the CSE about the child's social development, which had clearly been raised by the parent as an issue at the conclusion of the December, 1995 CSE meeting. Indeed, the CSE chairperson testified that the CSE had recommended that a full-time monitor be assigned to the child because of the parent's concern about the child's safety and ability to function in unstructured settings, i.e., when not in the classroom.
The school psychologist who had evaluated the child in March, 1996 testified that she had assessed the child's social/emotional needs by administering the Revised Child Manifest Anxiety Scale, and the Piers-Harris Children's Self-Concept Scale. The former test revealed that the child's feelings of anxiety were in the average range, while the latter test indicated that the child believed that her behavior compared favorably to that of other children who were her age. However, on one portion of the Revised Child Manifest Anxiety Scale, the child appeared to exhibit unrealistically high expectations for herself, which the school psychologist testified would be an issue which needed to be addressed, if confirmed by the child's private psychotherapist. Nevertheless, the school psychologist insisted at the hearing that the child did not demonstrate any excessive emotional need, and that in her judgement additional testing of the child's social and emotional needs was not warranted.
Neither Federal nor State regulation prescribes a specific set of tests which must be administered to a child during a psychological evaluation (see 8 NYCRR 200.1 [w]). An evaluation is intended to determine the extent of the child's special education needs (8 NYCRR 200.1 [v]). This child was known by the CSE to have had social/emotional difficulties when she previously attended the Greece Public Schools. The independent evaluator who had assessed the child at the Strong Memorial Hospital in the Fall of 1994 had opined that the child had an avoidant/coping style which could make her avoid opportunities to improve her academic skills in those areas in which she was weak, and could deprive her of corrective interpersonal experiences with her peers (Exhibit P-24). The CSE chairperson and the school psychologist testified that they were aware of the independent evaluator's report. Presumably, they were also aware of a March, 1995 BOCES psychologist report which described the child as a reserved, fragile young lady, who had experienced many negative experiences in school (Exhibit S-12). They were also aware that the parent disputed the accuracy of the information about the child's social and emotional growth which had been given to the CSE in December, 1995 by the Hope Hall staff. Indeed, much of the hearing in this proceeding was devoted to the child's ability to function in a less protective environment than had been provided by Hope Hall. The recommendation which the CSE made on March 12, 1996, and again on July 11, 1996 was for a 15:1 class, which was less restrictive than the 15:1+1 class which the CSE had recommended for her on December 12, 1995. I find that the CSE had little objective evidence upon which to base its recommendation of a less restrictive placement, given its failure to obtain more in-depth information about the child's social and emotional strengths and needs. In addition, I must point out that notwithstanding its discovery in March, 1996 that the child's academic skills were lower than had been reported to it in December, 1995, the CSE nevertheless recommended that the child be placed in a more academically oriented, and faster paced 15: 1 class for the purpose of being consistent with the child's stated vocational goal of obtaining a college degree. However, I find that there is little information in the record to support a finding that the child was ready for, or could have succeeded in, the more academically challenging educational program of the 15:1 class. Therefore, I must uphold the hearing officer's determination with respect to the appropriateness of the educational programs recommended by the CSE on March 12, 1996 and July 11, 1996.
There is an additional reason why the CSE's July 11, 1996 recommendation cannot be upheld. The record reveals that the parent member of the CSE did not attend that CSE meeting (see Exhibit S-52, page 3). It is well settled that neither the Education Law nor the Regulations of the Commissioner of Education authorize a CSE to prepare a child's IEP in the absence of a parent member of the CSE (Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Disability, Appeal No. 95-27). The CSE's recommendation of July 11, 1996 is therefore a nullity (Application of a Child with a Disability, Appeal No. 95-14). For all of the foregoing reasons, the board of education’s appeal from the hearing officer’s decision must be dismissed.
The parent appeals from the hearing officer’s determination that she had failed to meet her burden of proving that the services provided by Hope Hall to her daughter during the 1995-96 and 1996-97 school years were appropriate. For the purpose of obtaining tuition reimbursement, the parent must show that the private school’s services were "proper under the act" [The Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra). To be proper under the Individuals with Disabilities Education Act, the private school’s educational program must meet the child’s special education needs (Application of a Child with a Disability, Appeal No. 94-29). Although the board of education could not have contracted with Hope Hall for the child’s education because the private school is not approved by the State Education Department to instruct children with disabilities (see Section 4402 [b] of the Education Law), that fact would not prevent the parent from obtaining the relief of tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, supra). 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 hearing officer found that the documentary evidence which was in the record indicated that the child had not made any academic gains, while attending Hope Hall. She attributed the child’s lack of progress, at least in part, to the fact that the private school reportedly did not provide the girl with a sufficiently rigorous academic regime. The hearing officer further found that the child continued to manifest many of the "socio-emotional issues" which had been reported by the independent psychologist who had evaluated the child in the fall of 1994. She suggested that those conditions, such as undue anxiety and risk-avoidant behavior could have become worse in the protective environment of the private school.
The girl’s parent argues that her daughter’s progress must be viewed within the context of her educational history, involving her placement in school district self-contained classes and on home instruction prior to her entry into Hope Hall. She asserts that the school psychologist’s evaluation of her child in March, 1996 demonstrated that the child had made progress, and that the record demonstrates that many of the child’s IEP annual goals and objectives have been addressed by the private school. The board of education contends that the child’s speech/language evaluation in February, 1996 and psychological evaluation in March, 1996 demonstrate that the private school has not met the child’s academic needs, and it disputes the parent’s assertion that Hope Hall has effectively addressed the child’s emotional needs.
I find that the child’s special education needs arise from deficits in her ability to organize and use information which has been presented to her either orally or visually, as well as deficits in her expressive language skills. Those deficits have impaired her ability to read, spell, and write. Although mathematics has continued to be an area of relative strength for her, the child’s reading deficiencies have continued to limit her growth in mathematics. It is therefore essential that every effort be made to address her reading, spelling, and writing deficits in order to effectively meet her special education needs. In addition, the record reveals that the child has had emotional difficulties over an extended period of time, which may or may not be related to her learning disabilities. I note that her private therapist opined at the hearing in this proceeding that the child had a generalized anxiety disorder, which could be moderated by the structure of her environment. It should be noted that the appropriateness of the child’s classification as solely learning disabled is not disputed in this proceeding.
In the prior proceeding which involved this child, I found that there was sufficient evidence in the record about the nature of Hope Hall’s educational program to support a finding that the school had met the child’s special education needs for the last four months of the 1994-95 school year. The record of that proceeding has been incorporated into the record of this proceeding, which also includes testimony about the child’s classes during the 1995-96 and 1996-97 school years, and the results of the child’s evaluations in February and March, 1996.
A child's academic success is clearly one measure of the appropriateness of the educational services which the child's parents have unilaterally obtained for her (Capistrano Unified School District v. Wartenberg et al., 59 F 3d 884 [9th Circ., 1995]). I note that the principal of Hope Hall acknowledged at the hearing that the child's reading and writing skills had not been formally tested by the private school. There is also no written assessment of the girl's achievement, such as a school report card, in the record. During her testimony on September 11, 1996, the Hope Hall Principal indicated that the child could understand science and social studies concepts which were at the seventh grade level, but she could not demonstrate her knowledge of those concepts in writing. The Principal also testified that the child's ability to create sentences had improved, but that the child's spelling continued to be almost impossible to read because she omitted to write the vowels in words. She further testified that the child's independent mathematics skills were at the fifth grade level.
At the time of the Principal's testimony, the child had attended Hope Hall for slightly over one year. When the child's academic skills were assessed during her triennial evaluation in June, 1994, her reading decoding and comprehension skills were found to be at an early third grade level. In the March, 1996 evaluation, her comprehension skills had increased by slightly more than one year, but her word attack skills had decreased by one year. On the Test of Written Language - 2 which was administered to her as part of both evaluations, the child showed virtually no improvement between 1994 and 1996. The board of education psychologist testified that the child's spelling and mechanics of writing skills had remained at the second grade level. She further testified that in 1994, the child's mathematics skills had been at the seventh grade level, but they had regressed to the fourth or fifth grade level when she was tested in 1996. Although the use of different test instruments and different scoring measures make it difficult to corroborate the psychologist's testimony with regard to the apparent decline in the girl's mathematics skills, the parent has not offered any convincing proof to rebut the psychologist's testimony.
I have carefully considered the testimony of the Hope Hall principal, who also taught the child during the 1995-96 school year, and two of her teachers during that school year, as well as the testimony by two of the board of education's special educators about what they had observed in the child's classrooms in Hope Hall. I note that the child's language arts and reading teacher for the 1995-96 school year testified that she had not observed the child having any reading decoding problems, depending on the level of the text which she was reading (November 13, 1996 Transcript, page 1121). When pressed to explain, she testified that the child had generally some decoding problems. She did not indicate that she had an awareness of the child's specific decoding problems, or explain how these problems were being addressed.
The child also has emotional difficulties which have impacted upon her academic performance, as was reported by the child's independent evaluator in the Fall of 1994. The child and her mother testified that she was far happier attending Hope Hall than she had been in the public schools. The Hope Hall Principal and the child's teachers testified that the child's ability to interact with her peers had significantly improved during the 1995-96 school year. However, the child's mother and the Hope Hall staff insisted that the girl's social interactions were age-appropriate only within the context of Hope Hall, and were not transferable to other settings. Nevertheless, one of the child's teachers testified that the girl's emotional needs were no different from those of the other Hope House students. Although the child was involved in various activities which reportedly improved her social skills, there is no evidence of any individualized program which the private school used to address her specific emotional needs. In view of all of the foregoing, I must concur with the hearing officer's determination that the child's parent failed to meet her burden of proving the appropriateness of the private school's educational services for the 1995-96 or 1996-97 school years.
A board of education may be required to pay for the educational services which a child's parents have obtained for the child, if the services offered by the board of education were inadequate or inappropriate, the services which the parents obtained were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra). In this instance, I have found that the services offered by the board of education were inappropriate, and that the parent did not demonstrate that the private school's services were appropriate. Therefore, her request for tuition reimbursement must be denied.
THE APPEAL OF THE BOARD OF EDUCATION IS DISMISSED.
THE APPEAL OF THE PARENT IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision, to the extent that she found that the educational program in the December 12, 1995 IEP was appropriate, is hereby annulled.