97-038

        Petitioner appeals from the decision of an impartial hearing officer which denied her claim for tuition reimbursement for the private school in which she had unilaterally enrolled her son for part of the 1996-97 school year. The appeal must be sustained.

        Petitioner's son is fourteen years old, and has been classified as learning disabled. He was diagnosed as having an attention deficit hyperactivity disorder (ADHD) while he was in the lower elementary grades, and has been treated for that disorder with Ritalin. His learning disability is manifested by poor auditory processing skills, poor visual motor integration skills, and poor organizational skills. He is of average intelligence, but he has below average receptive vocabulary and spelling skills. His reading comprehension skills are also slightly below grade level. The boy is reportedly fearful of failure, is anxious, and has a poor self-concept. His classification as learning disabled is not in dispute.

        The boy was enrolled in regular education classes from kindergarten through the sixth grade in respondent's P.S. 6. He was generally successful in P.S. 6. At the hearing in this proceeding, the boy's mother testified that her son was privately tutored in the third grade, and he received private speech/language therapy while in the fourth and fifth grades. Respondent's committee on special education (CSE) had reportedly found the boy to be ineligible for classification prior to the 1993-94 school year. However, the CSE found him to be eligible for classification and special education services during the 1993-94 school year, when he was in the fifth grade in P.S. 6. Pursuant to the CSE's recommendation, the boy received resource room services, speech/language therapy, and counseling during the 1993-94 school year. He continued to receive those services while in the sixth grade during the following school year.

        The child graduated from PS 6, and was enrolled in the seventh grade of respondent's Institute for Collaborative Education (ICE). For the 1995-96 school year, petitioner testified that her son appeared to be doing well academically in the seventh grade, but he received grades of incomplete for each of his academic subjects at the end of the year. In August, 1996, petitioner requested a CSE review. Upon returning to ICE in September, petitioner's child continued to do poorly. I note that the boy's progress report for the first cycle, or marking period, of the 1996-97 school year revealed that he was having difficulty in his history, environmental science, health, reading, and multi-media technology classes. He reportedly fainted while in school in October.

        An evaluation conducted in September and October, 1996 included a report from the child's teachers which noted that he had improved and was more organized than during the previous school year. However, his motivation continued to be a problem. On the Woodcock Johnson Psycho-Educational Battery which was administered to petitioner's son at the beginning of the eighth grade, the boy achieved grade equivalent scores of 6.9 in reading comprehension, 7.8 in mathematical calculation and 4.9 in dictation (spelling). The evaluator noted that the child did not appear to be motivated to perform well in the testing process, and she reported that the boy told her that he was being tested so that he could attend private school. Petitioner met with a building level team which recommended no changes in the boy's individualized education program (IEP). Petitioner was dissatisfied with the building team's recommendation, and sought a review by the CSE.

        Respondent's CSE met on October 18, 1996, when it determined that petitioner's son required a more intensive special education program than he could receive with just resource room services. The CSE recommended that the boy be enrolled in one of respondent's self-contained modified instructional services-l (MIS-I) classes, and that he receive counseling and speech/language therapy. The appropriateness of that recommendation is also not in dispute in this proceeding. However, respondent has conceded that it was unable to provide an appropriate public school placement for the child for the 1996-97 school year, because no space was available in the MIS-I placement which the CSE had recommended for the boy. Instead, the board of education gave petitioner a "Nickerson letter" for the 1996-97 school year. Upon receipt of a Nickerson letter, the parents of a child with a disability may place their child, at respondent's expense, in a private school which has been approved by the State Education Department to provide special education to children with disabilities (see Jose P. et al. v. Ambach et al., [79 C 270, U.S. D.C. E.D. N.Y., 1982]).

        Petitioner testified that after receiving a Nickerson letter in November, 1996, she contacted seven approved schools in an attempt to secure a placement for her son. However, none of the approved schools had an opening for her son. In December, 1996. petitioner enrolled her son in the York Preparatory School, which is a private school which has not been approved by the State Education Department to provide instruction to children with disabilities. Her son began attending the York Preparatory School on or about January 6, 1997. Petitioner submitted a claim to respondent for reimbursement of tuition paid to the York School for the period of January, 1997 through June, 1997 which respondent denied. Petitioner requested that an impartial hearing be held.

        The hearing in this proceeding was held on February 5, 1997. Since the CSE representative conceded that he could not demonstrate that respondent had offered an appropriate educational placement to the boy to implement the CSE's recommendation, the hearing was focused upon the educational program which the boy had received in the York Preparatory School. Mr. Randy Kleinman, the principal and learning disability specialist at the York Preparatory School, testified that the school was a mainstream college preparatory school with 210 student in grades 6 through l2. Approximately one-third of the students in York are learning disabled or suffer from an attention deficit disorder. Petitioner's son was in a class of twelve students, eight of whom have been diagnosed as having a learning disability or attention deficit disorder. All of the students in this class reportedly functioned at or about the same academic level. However, Mr. Kleinman testified that the children who were in this boy's class had achieved grade equivalent scores which ranged from 4.6 to 6.4 in reading, and from 4.2 to 6.4 in math on the Stanford Achievement Test given to them in May, 1996, while this boy, who did not join the class until January, 1997, had achieved grade equivalent sores of 6.9 for reading and 7.8 for mathematics on a different achievement test in September, 1996.

        Mr. Kleinman testified that the York Preparatory School was meeting the boy's special education needs by providing him with instruction in small classes, in which he was given preferential seating in the front of the class. The boy's teachers repeated their directions to him. and asked him to rephrase the directions to himself, which Mr. Kleinman testified was intended to address the boy's auditory processing deficit. The child was meeting individually with his teachers after school, in an effort to ensure that he has processed and noted everything that had been presented to him during the day. Mr. Kleinman also testified that various testing modifications, such as extended time, separate location, and word processing, were being used to accommodate the boy's needs. In lieu of a foreign language class, the boy was enrolled in a remedial reading class to focus on improving his reading comprehension. A special vocabulary program was being developed to enhance the child's current curriculum. Mr. Kleinman further testified that vocabulary enrichment was "built into" the boy's English and reading classes. The boy also attended a supervised study hall four times per week, and was about to attend study hall five times per week. Finally, Mr. Kleinman testified that graphic organizers were used for the child's writing, and that outlines were employed for note taking. At the time of the hearing, the boy had only attended the York Preparatory School for one month. Mr. Kleinman noted that the child was having some difficulty in adjusting, but he also noted that this should be expected. Petitioner also introduced written progress reports from York Preparatory School into evidence. Those reports, which were completed after the child had been in attendance for only three weeks, primarily indicated that the child's class work, testing and homework were minimal.

        In her decision which was rendered on May 5, 1997, the hearing officer found that the boy's special education needs included instruction in small classes within a highly structured environment, and intensive remedial support. She further found that he required comprehensive instruction to improve his reading comprehension, preferential seating in the classroom, and speech/language therapy. The hearing officer found that petitioner had failed to demonstrate that the York Preparatory School was providing the highly structured environment which the boy required, and that it did not provide him with the speech/language therapy and counseling which he needed. She further found that equitable considerations did not support petitioner's claim for tuition reimbursement because of possible efforts by petitioner to "tamper with the evaluation process." The hearing officer noted that the boy's achievement test scores in the Fall of 1996 were lower than those which he had achieved in his triennial evaluation in March, 1996, and she found that the boy's later test scores did not accurately reflect his achievement. She inferred that this may have resulted in an attempt to support petitioner's desire for a private school placement.

        A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education. Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). In this instance, it is conceded that the board of education did not meet its burden of proof. Accordingly, petitioner prevails on the first Burlington criterion.

        Petitioner challenges the hearing officer's findings with respect to the appropriateness of the educational services which were provided to her son by the York Preparatory School, and with respect to the equitable considerations not supporting petitioner's claim for reimbursement. 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 York Preparatory 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-Woodburv CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-5 7). 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). Petitioner relies upon Mr. Kleinman's testimony as proof that the York Preparatory School did address her son's special education needs.

        In determining what this boy's special education needs were during the 1996-97 school year, I have noted the fact that there has been some discrepancy in his evaluation test results, which appears to reflect the effect of the child's ADHD upon his educational performance. For example, the boy's performance during a three-day private psychological evaluation (Exhibit 6-4 to 6-9) varied according to when the child had last taken Ritalin to moderate the effect of his ADHD. In any event, the boy had other learning difficulties in addition to ADHD. His written language, spelling, and mathematical computation skills were lower than would be expected for a youth with his cognitive ability. The boy's expressive language skills were also below expectations. Petitioner's son had poor organizational skills, and poor language processing skills. Projective testing by the private psychologist revealed that the boy also had difficulty containing his emotions, and that he was somewhat impulsive. The boy's private psychologist opined in her written report that the boy needed to be in a highly structured setting in which expectations were clear, and distractions were few. She recommended that the boy be educated in classes with a pupil to adult ratio of 8:1, except that he should be in smaller classes for language arts and arithmetic. The private psychologist also recommended that the boy receive individual instruction to improve his reading comprehension, and that he receive small group speech/language therapy to reinforce newly acquired oral comprehension skills, and to develop his expressive language.

        I find that petitioner presented evidence that the York Preparatory School addressed her son's special education needs resulting from the boy's ADHD by offering him instruction in small classes, with closely supervised homework assignments, and certain organizational aids, such as colored coded notebooks. I am not persuaded by the private psychologist's report, or any other evidence which is in the record, that the child required a more structured setting than was provided by the York Preparatory School. The question remains whether the private school addressed his need for the remedial reading instruction, or the speech/language therapy, which the private psychologist had opined were necessary for the boy. Mr. Kleinman briefly described the remedial reading program in which the boy was enrolled. He also briefly described some additional steps that the private school was taking to develop the boy's vocabulary skills, which was clearly an area of individual need for this boy. This hearing was held shortly after the boy had enrolled in the private school. Therefore, it was not possible for petitioner to introduce written evidence of the boy's progress in the private school's writing program, which I would otherwise have required her to present (see Application of a Child with a Disability, Appeal No. 96-85; Application of a Child with a Disability, Appeal No. 97-11).

        The York Preparatory School admittedly did not provide the child with the speech/language therapy which the private psychologist and the CSE had recommended for him. The record does not reveal why respondent did not provide this related service to the boy irrespective of his enrollment in the private school. Under the circumstances, I find that it would be inequitable to deny petitioner tuition reimbursement because she did not obtain this related service for the boy. In addition, I note that Mr. Kleinman testified that he regularly consulted with the boy's private therapist, and that he talked to petitioner's son about various issues at the beginning of each school day. I find that Mr. Kleinman's services were consistent with the boy's need for counseling. Upon the record which is before me, I find that petitioner has met her burden of proof with regard to the second Burlington criteria for an award of tuition reimbursement.

        I must next address petitioner's challenge to the hearing officer's finding with respect to the third Burlington criterion. Petitioner asserts that she acted in good faith at all times, and that the hearing officer's finding that petitioner had gone through the motions of cooperating with the CSE, but had tainted the evaluation process, is without foundation in fact. I agree with petitioner. The boy's statement to respondent's educational evaluator that he was being tested so he could go to private school is not proof that the results of the CSE's evaluations were inaccurate, or that petitioner had encouraged her son not to do his best during the evaluation. I will therefore annul the hearing officer's finding that equitable considerations did not support petitioner's claim for tuition reimbursement.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son's tuition in the York Preparatory School from January to June, 1997, upon presentation to respondent of proof of petitioner's expenditures for that purpose.