97-020

       Petitioner appeals from the decision[1] of an impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse her for the cost of her son's tuition in the Gow School, a private school in which petitioner unilaterally enrolled the boy for the 1996-97 school year.[2] The hearing officer denied petitioner's request because he found that respondent had met its obligation to offer the boy an appropriate educational placement for the 1996-97 school year. Petitioner contends that respondent does not have an appropriate educational program to meet her son's needs. The appeal must be sustained.

        Petitioner's son is sixteen years old. He has been classified as learning disabled by respondent's committee on special education (CSE). When he was evaluated at the Mount Sinai Medical Center in October, 1993, the boy was found to have a verbal IQ score of 91, a performance IQ score of 95, and a full scale IQ score of 92. The psychologist who examined the child reported that the boy's subtest scores for tasks which were extremely sensitive to distractibility and inattention, and for perceptual tasks which reflect processing speed were in the borderline to deficient range. On academic achievement tests, the child achieved standard scores of 86 in word attack skills, 53 in reading comprehension, 68 in spelling, 74 in numerical skills, and 86 in mathematical reasoning. The psychologist reported that petitioner's son had difficulty learning verbal information which was presented without a context, and that his attention deficits were manifested on tasks which required sustained attention and visual scanning. In addition, the boy manifested deficits in performing simple motor tasks. He was also examined by a Mount Sinai psychiatrist, who reported that the boy had an attention deficit hyperactivity disorder (ADHD). There is no dispute about the appropriateness of the child's classification as learning disabled

        Petitioner's son was initially classified as learning disabled in 1988, when he was in the first grade. He remained in regular education classes, but received resource room services through the sixth grade. For the seventh grade during the 1993-94 school year, the CSE recommended that the boy be placed in a self-contained special education class in respondent's middle school. Petitioner unilaterally enrolled the boy in the Gow School, which is located in South Wales, New York, near Buffalo, for instruction during the summer of 1993. The boy was enrolled in respondent's self-contained class for the seventh grade during the 1993-94 school year

        Following its annual review of the child in April, 1994, the CSE recommended that the boy remain in the self-contained class for the eighth grade. Petitioner requested that an impartial hearing be held for the purpose of obtaining reimbursement for the cost of the boy's tuition at the Gow School during the preceding summer, and for an out-of-district placement during the 1994-95 school year. She unilaterally enrolled her son in the Gow School for the summer of 1994, and she continued his enrollment in that school for the 1994-95 school year

        In July, 1995, the hearing officer ordered respondent to reimburse petitioner for the cost of the boy's instruction in the Gow School during the summers of 1993 and 1994. However, he denied her request for tuition reimbursement during the 1994-95 school year, on the ground that respondent had offered the child an appropriate educational program. Petitioner appealed from the hearing officer's decision. On November 8, 1995, I sustained her appeal in part, upon findings that the boy's IEP was defective in certain respects, that respondent had failed to demonstrate the appropriateness of the educational program which its CSE had recommended, and that petitioner had established that the Gow School had addressed her son's academic and social/emotional needs (Application of a Child with a Disability, Appeal No. 95-66)

        For the 1995-96 school year, respondent's CSE recommended that petitioner's son be enrolled in special education classes for instruction in mathematics, science, and social studies, and that he receive two periods of resource room services per week to supplement his regular education instruction in other subjects. It also recommended that he receive individual counseling once per week. Petitioner chose to maintain her son's enrollment in the Gow School, at her expense, for the 1995-96 school year. She requested that an impartial hearing be held to review the CSE's recommendation. At the hearing, which began in March, 1996, petitioner sought a determination by the hearing officer that the Gow School was her son's pendency placement. Her request was denied. However, the parties agreed to settle their differences with respect to the 1995-96 school year on May 3, 1996. Respondent agreed to pay a sum of money for the expense of the child's education, the Gow School, and the parties agreed that the CSE would meet with petitioner to recommend an educational placement for the boy during the 1996-97 school year

        The CSE met on June 13, 1996, and again on July 2, 1996. The IEP which the CSE prepared indicated that in testing which was performed in April, 1996, petitioner's son, who was completing the ninth grade in the Gow School, had achieved grade equivalent scores of 7.6 in reading decoding, 5.6 in reading comprehension, 5.4 in mathematics, 5.8 in written language, and 5.8 in spelling. On the Gray Oral Reading Test, the boy achieved a grade equivalent score of 5.4. He was reported to have difficulty with penmanship because of deficits in his fine motor skills, but he was able to type fifteen words per minute with 95 percent accuracy. The boy was described on his IEP as being capable of writing a coherent three to five page essay, with inconsistently accurate punctuation and capitalization. The CSE recommended that petitioner's son be enrolled in a mixed class of disabled and non-disabled students with team teachers for modified instruction in English, social studies, and science. At the hearing, the CSE chairperson testified that the mixed classes would consist of no more than twelve children with disabilities and fifteen other children. A regular education teacher would instruct all of the children in the mixed class, assisted by an aide and a special education teacher. The special education teacher would ensure that the children with disabilities who were in the mixed class understood their assignments, and comprehended what they were assigned to read. That teacher would also modify tests for those children (Transcript, pages 308-309)

        Petitioner's son was also to attend a special education class with a 12:1+1 child to adult ratio for instruction in mathematics. The CSE also recommended that the boy receive two periods per day of resource room services, and that he receive individual counseling once per week. The boy's IEP indicated that testing modifications were to be used during the 1996-97 school year, such as extended time limits, flexible settings and schedules, having exams read to him, and the use of a calculator. The CSE also recommended that petitioner's son be exempted from taking Regents content examinations, and instruction in a second language. His IEP also indicated that books on tape should be provided to him, as specialized equipment and adaptive devices (see 8 NYCRR 200.4 [c][2][vii]). Although the CSE recommended that the boy use a computer with spell check software to complete written assignments, and it included short-term instructional objectives relating to the use of a computer and the improvement of the boy's keyboarding skills, it failed to include a computer or word processor in the IEP description of needed specialized equipment and adaptive devices

        By letter dated August 8, 1996, petitioner expressed her dissatisfaction with the CSE's recommendation to respondent's Director of Pupil Personnel Services. She requested that an impartial hearing be held for the purpose of obtaining an order requiring respondent to place the child in the Gow School for the 1996-97 school year. The parties had previously agreed that Mr. Carl Wanderman, the hearing officer who had been appointed to conduct the hearing regarding the child's placement during the 1995-96 school year, would retain jurisdiction to consider any objection petitioner might have to the CSE's placement recommendation for the 1996-97 school year. Accordingly, Mr. Wanderman scheduled the hearing to begin on October 8, 1996

        On or about September 30, 1996, petitioner's lay advocate filed a motion with Mr. Wanderman, in which she asked him to determine that the Gow School was the boy's pendency placement (see 20 USC 1415 [e][3][A]; Section 4404 [4] of the Education Law). Had the hearing officer so found, respondent would have been required to pay for the child's placement at the Gow School during the pendency of the hearing, and any subsequent review of his decision. As noted above, the hearing officer denied the motion, and I dismissed petitioner's appeal from the hearing officer's interim order denying petitioner's motion

        The hearing in this proceeding began on October 8, 1996, and it concluded on November 5, 1996. At the hearing, the CSE chairperson testified that she had visited the Gow School on May 8, 1996, to observe the boy in his classes, and to discuss his educational needs with the boy's teachers. She orally reported the results of her "observation" visit to the CSE, which also received twenty four pages of written information from the Gow School with regard to the boy's achievements during the 1995-96 school year (School District 7). The written information indicated that the boy had achieved a grade of "B" or better in each of his academic subjects, except for the grade of "C" for all year in global studies, and during the second semester in science. One of the child's courses was "reconstructive language" in which the alphabetic phonics technique or methodology was reportedly used to remediate deficits in the child's reading and writing skills. That methodology reportedly provided the boy with very structured, sequential, and multisensory instruction

        The CSE chairperson testified that the Gow School teachers had advised her that petitioner's son had some difficulty reading, but that he had been successful, with additional support, during the 1995-96 school year. She further testified that the child's reconstructive language teacher had indicated to her that petitioner's son had mastered more than 100 of the phonemic elements, and was working on root words, prefixes, and suffixes. The CSE chairperson testified that petitioner's son appeared to need help organizing his school work, and reviewing vocabulary words, materials assigned to be read, and questions about those materials. She asserted that respondent regularly provided its high school special education students with the kinds of help and support which petitioner's son required. The CSE chairperson also asserted that petitioner's son was intellectually capable of understanding the material to be presented to him in respondent's modified tenth grade curriculum, with the support which the CSE had recommended for him. She asserted that the deficits in the child's reading and writing skills would be remedied in the resource room program which the CSE had also recommended, which would provide a structured sequential approach building upon the phonic skills which the boy had mastered in the reconstructive language class of the Gow School

        An administrator of the Gow School who had participated by telephone in one of the CSE meetings at which the boy's IEP for the 1996-97 school year had been developed testified that the IEP's description of the boy's current levels of performance was generally accurate, and that the IEP goals and objectives were appropriate. However, he opined that the placement which the CSE had recommended was inappropriate because the boy could not learn well in classes larger than those in the Gow School. The boy's reconstructive language teacher during the 1995-96 school year testified that the Gow School's reconstructive language program was a four-year program, of which petitioner's son had completed two years. He opined that the boy needed to continue with the reconstructive language program. The teacher explained that even though the boy's decoding skills were stronger than his reading comprehension skills, he needed to strengthen his oral reading skills. He explained that the boy had difficulty with oral reading because of processing deficits, and that his oral reading tended to be fast, but choppy. The teacher also opined that petitioner's son required placement in small classes so that he could receive the individual attention of his teachers

        The hearing officer rendered his decision on January 9, 1997. He noted that petitioner had challenged the adequacy of the IEP which the CSE had prepared for her son on the grounds that its annual goals and short-term instructional objectives were inappropriate, and that respondent had not offered a specific instructional program to remediate the deficits in her son's reading and writing skills. The hearing officer further noted that the CSE had developed a number of separate goals and objectives for the boy, but he did not specifically address their appropriateness. With regard to petitioner's assertion that the recommended program would not have addressed her son's deficiencies in reading and writing, the hearing officer noted that petitioner clearly preferred that the reconstructive language methodology of the Gow School be used. However, he found that there was no basis in the record to conclude that the boy could learn only if he was instructed by teachers using that methodology. He credited the CSE chairperson's testimony that the boy's reading and writing needs could be addressed in respondent's high school with the special education services which were specified in the boy's IEP. The hearing officer also rejected petitioner's contention that her son, who had been instructed in classes of approximately six students in the Gow School, could not learn in respondent's much larger sized classes. He also found that petitioner's son did not require placement in a residential school for educational purposes, and that the program which the CSE had recommended would meet the boy's educational needs in the least restrictive environment

        Petitioner challenges the hearing officer's decision on the grounds that her son's IEP is allegedly defective, and that the hearing officer allegedly ignored the testimony by the Gow School administrator and teacher regarding the inappropriateness of the educational program which the CSE had recommended for the boy. She asserts that the recommended program did not address his special education needs with regard to reading and writing. Respondent argues that the hearing officer correctly determined that the boy's IEP for the 1996-97 school year was appropriate for him. 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 CSD 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12)

        Having reviewed the boy's IEP for the 1996-97 school year, I find that it accurately reflected the results of the standardized tests which were administered to him in the spring of 1996 by the Gow School. I further find that the narrative description of the boy's reading, mathematics, and written language skills, as well as his learning rote, provided useful information to enable the CSE to establish annual goals and objectives, and his teachers to provide appropriate instruction

        Petitioner contends that the IEP goals and objectives were not individualized to address her son's needs, nor were the objectives sequential and written in objective, measurable terms (see 34 CFR Part 300, Appendix C, Questions 38 and 39). She asserts that her son's goals and objectives are inappropriate because they are referenced to his proficiency in regular education subjects, rather than to the disabilities which impede his achievement of proficiency in those subjects. In general, "...goals and objectives in the IEP should focus on offsetting or reducing the problems resulting from the child's disability that interfere with learning and educational performance in school..." (34 CFR Part 300, Appendix C, Question 40). The boy's IEP included annual goals relating to his modified social studies, science, and English classes, in which he was to receive assistance from a special education teacher. The annual goals were general, e.g., "to understand critical issues of 10th grade global studies." The supporting objectives for the global studies goal indicated that the student would successfully complete the Regents Competency Test in global studies, and would demonstrate an understanding of various concepts, as measured by achieving a quarterly grade of "C" or better in the global studies course. This boy has significant deficits in his ability to read, spell, and write which would impair his ability to perform at a satisfactory level in a regular education course. I find that his IEP did not describe how the special education teacher was to address those deficits in the global studies course because neither the goal nor its supporting objectives provided the teacher with any guidance as to what was to be done. I reach a similar conclusion with respect to the boy's IEP goals for science and English language arts

        The IEP also included separate annual goals for improving the boy's reading decoding and comprehension skills, his writing skills, and his study and organizational skills. Those goals addressed the boy's specific special education needs, but were couched in very general terms (cf. Application of a Child with a Disability, Appeal No. 94-6). However, the short-term objectives supporting those goals did provide sufficient specificity to afford the boy's teachers a basis for developing a detailed instructional plan for him (Application of a Child with a Disability, appeal No. 95-15). Nevertheless, I must note that the objective which indicated that the boy would improve his reading decoding skill to a grade equivalent of 6.5 would appear to be inappropriately low, in view of the fact that he had previously received a grade equivalent score of 7.6 for reading decoding in April, 1996

        In this appeal, as in petitioner's prior appeal involving the boy's IEP for the 1994-95 school year, the central question is whether the special education services which the CSE recommended were appropriate to address the boy's special education needs. The CSE recommended that the child receive primary special education instruction in mathematics. The services to be provided by the special education teacher in his modified social studies, science and English classes could be viewed as direct consultant teacher services (8 NYCRR 200.1 [l] [1]), although the IEP did not specify that any consultant teacher services were to be provided to the boy. At the hearing, the CSE chairperson testified that petitioner's son appeared to have needed, and continued to need, a structured, multi-sensory instructional program (Transcript, page 280). She offered that testimony in response to a question about the educational program which the boy had received in the Gow School. When asked to explain how the student would receive structured multi-sensory instruction to improve his reading decoding skill, the CSE chairperson testified that the boy would receive that instruction during one of the two periods of resource room services which he would receive each day. However, Ms. Bergstein, the resource room teacher, testified that the bulk of her instruction to the boy would be focused upon improving his reading comprehension skill, but that she would provide him with some instruction on prefixes, suffixes, and root words. Although a second resource room teacher was reportedly expected to provide the child with an additional period of resource services each day, the record does not reveal what the focus of those services would have been. I am not persuaded by the record before me that the CSE's recommended program would have adequately addressed the boy's reading decoding and comprehension deficits

        Petitioner's son also has significant difficulty with written expression. As noted above, the CSE alluded to the boy's use of a word processor in certain portions of his IEP. However, it did not specify that he should be provided with a computer and appropriate word processing software or specialized equipment to address, and partially compensate for, his fine motor deficits which make it physically difficult for him to write. The CSE chairperson's testimony, as well as that of respondent's other witnesses, suggests that the boy could have had access to computers in certain locations in the school, but not necessarily in his classroom. The child's written expression has also been hampered by deficits in his spelling skills, and his "mechanical skills," i.e., punctuation and capitalization. Despite the resource room teacher's brief reference to a certain computer program for spelling which might have been used with petitioner's son, I find that I cannot conclude that respondent has satisfactorily demonstrated how it would have addressed the deficits in the boy's written expression

        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]). I have found that the board of education failed to meet its burden of proof with respect to the appropriateness of the educational program which was recommended by its CSE

        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 Gow School during the 1996-97 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). Respondent argues that the Gow School is too restrictive an educational placement for petitioner's son (Application of a Child with a Disability, Appeal No. 95-24)

        Petitioner relied upon the testimony of the Assistant Headmaster of the Gow School and the boy's reconstructive language teacher to establish the appropriateness of the services provided by the private school. The Assistant Headmaster testified that each of the Gow School's 136 pupils was learning disabled, and that the Gow pupils had moderate to severe deficits in their reading and writing skills. The Gow School provided pupils with a structured, sequential and multisensory program of reading instruction by its reconstructive language program, which is reportedly a variant of the Orton-Gillingham methodology. All of the Gow School teachers have received some training in this program. Instruction in all subjects was provided in all subjects in classes of four to six students

        The appropriateness of the Gow School's services turns upon at least two questions. First, did petitioner's child continue to need specialized instruction in a consistent manner to improve his reading skills? Although the child apparently completed the basic elements of the reconstructive language program during the 1995-96 school year, I credit the testimony of the reconstructive language teacher that the boy continued to need such specialized instruction during the 1996-97 school year. The second question is whether the child needed to be instructed in the quite small classes which the Gow School class offered in order to benefit from his instructional program. The witnesses from the Gow School testified that the boy could not learn in larger classes. Respondent's witnesses suggested that it was not the number of pupils in the class, but the number of adults in the classroom which would be determinative of the boy's academic success. I do not agree with that suggestion. In addition to having a specific learning disability involving his ability to process information, petitioner's son has ADHD. Instruction in a large room with many children and however many adults would necessarily adversely impact upon his ability to remain focused upon instruction. In the two years which the boy has attended the Gow School, he has made significant academic progress, as measured by his standardized achievement test results. That progress must be contrasted with his progress in large classes in respondent's schools during the years preceding his attendance at the Gow School. Upon the record before me, I find that petitioner has met her burden of proof, with regard to the appropriateness of the Gow School's services

        I note that there is no evidence that petitioner has not cooperated with the CSE at all times, and I find that there is no reason to conclude that equitable considerations do not support her claim for tuition reimbursement. Therefore, I conclude that petitioner has satisfied all three criteria for an award of tuition reimbursement

        Petitioner also seeks reimbursement for transportation costs in relation to her son's placement in the Gow School. As I noted in her previous appeal, there is a State regulation relating to reimbursement for transportation expenditures (8 NYCRR 200.12). Petitioner's request for reimbursement for no more than five trips appears to be consistent with the regulation. I find that she may recover reasonable costs for those trips.

THE APPEAL IS SUSTAINED

IT IS ORDERED that the decision of the hearing officer is hereby annulled; and,

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition at the Gow School and transportation from September, 1996 through May, 1997, upon presentation by petitioner to respondent of proof of her expenditures for those purposes