97-044

         Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that petitioner’s son be educated in regular education classes with supplemental instructional services I (See 8 NYCRR 200.1 [hh]) during the 1996-1997 school year. The impartial hearing officer denied petitioner’s request that respondent be ordered to reimburse petitioner for the cost of his son’s tuition in the Stephen Gaynor School for that school year. The appeal must be sustained in part.

        Petitioner’s son attended a Montessori preschool for three years beginning when he was three years old. The Montessori staff reportedly did not note whether the child had learning difficulties (Exhibit 1). The boy's parents intended to enroll him in the kindergarten of the Columbia Grammar and Preparatory School (Columbia Grammar) for the 1994-95 school year. Columbia Grammar is reportedly a very competitive private regular education school. At the request of that school's principal, the boy was evaluated by a learning disabilities specialist in April, 1994, when the child was five years old. The evaluator reported that the boy had achieved a verbal IQ score of 97, a performance IQ score of 84, and a full scale IQ score of 89. The boy manifested relative weakness in abstract and practical reasoning. The private evaluator noted that there were several disparities in the child’s language abilities which was suggestive of both receptive and expressive language disorders. The boy's fine motor coordination was reported to be below his age expectancy, as were his short-term auditory memory skills. The private evaluator opined that the inconsistencies in the child’s academic performance were related to deficits in his visual-spatial and visual-motor skills, and short-term auditory memory, as well as receptive and expressive language difficulties. She opined that the child could make consistent academic progress with appropriate support.

        When the child was in kindergarten at Columbia Grammar, he attended Columbia Grammar’s Learning Resource Center for one hour each day where he received one-to-one assistance from a special education teacher. Towards the end of the child’s kindergarten school year, the Learning Resource Center staff suggested that petitioner explore other schools with more specialized programs for the child because he was having academic difficulties at Columbia Grammar. One of the schools which was considered by the boy's parents was the Stephen Gaynor School, which is a private school which serves learning disabled students, but has not been approved by the State Education Department to provide such instruction. The boy was evaluated by the Director of Education at the Stephen Gaynor School, in April, 1995. The Director, who indicated that she had informally assessed the boy, reported that the boy's responses to her questions revealed that he had expressive and receptive language deficits. His speech articulation was reported to be immature. The Director opined that the child had a language disorder, visual motor problems, inconsistent attention, and that expressive and receptive difficulties impinged on all areas of the child’s functioning. She indicated that the child needed a supportive, language-based classroom with a limited student-teacher ratio.

        Petitioner enrolled the child in Stephen Gaynor School for the 1995-1996 school year. The boy reportedly did well in that private school, where he received both individual and small group speech/language therapy, and occupational therapy. He also received additional speech/language therapy once per week after school. In March, 1996, petitioner signed a contract to enroll his son in the Stephen Gaynor School for the 1996-1997 school year.

        On October 4, 1996, petitioner referred his son to the CSE for evaluation and placement. The CSE initiated an evaluation which consisted of a social history, an educational evaluation, a speech/language evaluation, a classroom observation, a medical documentation form which indicated that the child’s physical examination was within normal limits, and a psychological evaluation. The CSE also reviewed the private learning evaluation conducted in April, 1994, the April, 1995 report by Steven Gaynor's Director of Education, the child's speech therapy progress report for the 1995-1996 school year at Stephen Gaynor, and an occupational therapy evaluation.

        The social history, which was completed on October 11, 1996, was based on an interview with the child’s mother. The child’s mother indicated that the child’s health was good, but that he had language processing problems, a lisp, and fine motor difficulties as evidenced by difficulties with writing and manipulating silverware. The child's physician reported that the child's vision and hearing were normal.

        A school psychologist evaluated petitioner's son on October 15, 1996. The school psychologist reported that the child achieved a verbal IQ score of 113, a performance IQ score of 79, and a full scale IQ score of 96, which placed him in the average range of intelligence. He noted that there was inter-test scatter in both the verbal and performance domains. Although the boy's performance IQ score was near the upper end of "borderline" range, the school psychologist indicated that a score within the low-average range was attainable. The school psychologist reported the child had low-average scores on tasks requiring visual motor integration and visual motor synthesis. He opined that the child has a mild perceptual motor delay. The school psychologist explained that the 34 point discrepancy between the child’s verbal and performance IQ scores was due to the child’s difficulties with grapho-motor and psycho-motor speed.

        In an educational evaluation conducted by the district’s educational evaluator on November 1, 1996 when the child was seven years old, and of the appropriate age for the second grade, the child’s oral language scores ranged from low-average to average. He achieved a grade equivalent score of K.6 in listening comprehension, which is in the low-average range. His broad reading and broad knowledge scores were within the average range, with grade equivalent scores of 1.7 and 1.5, respectively, while his broad math score was within the superior range, with a grade equivalent score of 3.6. He earned a grade equivalent score of 2.2 for writing samples. While his letters were recognizable, they were unevenly formed. His knowledge of science, and social studies was at or slightly below grade level, while his knowledge of the humanities was reported to be at a late kindergarten level. The evaluator observed that the child needed to be encouraged to make guesses and to attempt certain tasks.

        The district completed a speech/language evaluation on October 25, 1996. Respondent's speech/language therapist reported that the boy was able to initiate and engage in conversation. The child had an inconsistent lisp and made some minor substitutions of consonant sounds. However, his speech articulation was intelligible. The speech/language therapist also reported that the child’s linguistic abilities ranged from low-average to average; auditory processing, receptive language and pragmatic language functioning were average; and, expressive language skills ranged from low-average to average. The boy's single below average score was on the portion of the Clinical Evaluation of Language Fundamentals-3 (CELF-3) which required him to recall sentences. On that portion of the test, his score was at the 16^th percentile, which was still in the low-average range. While his auditory processing skills were in the average range, he occasionally had difficulty organizing his thoughts in a logical precise manner. However, his reasoning and critical thinking skills were adequate. The district’s speech/language therapist concluded that the child did not require therapy, but she recommended that he receive language stimulation in the classroom and at home.

        In June, 1996, the child's speech/language therapist at the Stephen Gaynor School had noted that the child had difficulties with auditory/verbal short term memory and following directions, but that he had made slow progress in developing his receptive and expressive vocabulary. She described his reasoning skills as poor. She recommended that the child continue to receive speech/language therapy four to five times per week. In contrast to the district’s speech/ language therapist, she opined that the child needed the structure and support of a language based curriculum which offered individualized attention to address the child’s speech/language needs.

        In an October, 1996 occupational therapy report, the child was reported to have adequate gross motor skills. While he could accurately use scissors, sort cards and string beads, he performed those tasks slowly. The evaluator reported that the boy demonstrated delays in his visual motor skills and hand dexterity. His non-motor visual discrimination skills were in the average to above-average range. The evaluator recommended that the boy receive occupational therapy twice per week to address the boy's delayed hand development, slow dexterity, decreased proprioceptive awareness in his hands, and decreased postural stability.

        On October 29, 1996, petitioner's son was observed in the classroom at the Stephen Gaynor School by one of respondent's school social workers. The school social worker reported that the child was grouped with two other children working on various reading and writing activities. He noted that, after the teacher finished working with him, the child had moved around in his seat, stood up and walked around, and then returned to his seat. The school social worker also reported that the child’s teacher had indicated that the child had both receptive and expressive language processing difficulties, difficulty following directions, and handwriting difficulties. The child’s teacher estimated that the child was reading at approximately the 1.5 grade level, and she opined that the language-based program at Stephen Gaynor was necessary for the child. The child’s teacher also indicated that the child received speech services once a week individually, and three times per week in a class of nine children with three adults. Additionally, she indicated that the child received articulation therapy once per week in a group of three students, occupational therapy once per week in a group of two students and reading four times per week in a group of three students. The child’s teacher believed that the child was appropriately placed in her class.

        The CSE met on December 4, 1996. Although no representative of the Stephen Gaynor School was at the meeting, the CSE was properly composed (Application of a Child Suspected of Having a Disability, Appeal No. 96-57). Based on a review of the above information, the CSE classified the child as learning disabled and recommended that he receive supplemental instructional services-I (SIS-I), or resource room services, with an 8 to 1 ratio, five days per week, and occupational therapy two times per week. The individualized education program (IEP) which the CSE prepared for the child included the testing modifications of extended time limits and separate locations. The child's IEP annual goals were to improve his reading, writing, spelling, and handwriting. Petitioner requested an impartial hearing to review the CSE’s recommendation.

        At the hearing, which was held on May 7 and May 12, 1997, the child’s teacher and the child’s speech/language therapist testified on behalf of petitioner. The child’s speech/language therapist testified that she began working with the child in September, 1995. At the time of the hearing she saw the child once per week individually for half an hour, once per week in a group setting and once per week after school. Additionally, the child’s speech/language therapist testified that she participated in reading lessons and other activities in the classroom two times per week. During the 1995-1996 school year, the child’s speech/language therapist saw the child once per week on an individual basis, once per week in a group of three, once per week in the classroom, and once per week for articulation therapy. The child’s speech/language therapist testified that when she first evaluated the child in the fall of 1995, the tests indicated that the child had impaired receptive and expressive language abilities. She also testified that she believed that the child needed the speech and language therapy that he received. She retested the child in April or May, 1997. Although there is no written record of that evaluation in the record before me, the child's speech/language therapist testified that the boy's performance on the sentence structure subtest of the CELF-3 had improved to the 95^th percentile, but his performance on each of the other subtests was at a lower level than when he was tested by respondent's speech/language therapist in October, 1996. The child’s speech/language therapist was unable to explain why her results and recommendations differed from the district’s speech/language evaluator.

        The child’s teacher testified that the child had language processing difficulties which affected the child’s ability in all academic areas. She testified that he had difficulty following instructions and comprehension difficulties. The child’s teacher testified that she believed that the CSE’s recommendation was not appropriate because the child would not be able to keep up with the work given his language disabilities and the large teacher/student ratio in a regular education class.

        The district’s speech/language evaluator testified that the child had displayed age-appropriate concept development and vocabulary, and had average receptive and expressive language skills. Although the child had a little difficulty organizing his thoughts in a logical manner, the evaluator testified that it was not that unusual. She opined that his language difficulties could be addressed in the appropriate classroom setting.

        The district’s educational evaluator testified that there was, at most, a five-month delay in the child’s reading ability. She noted that children are generally not placed in full-time special education programs with such a delay when another area, in this case mathematics, is considerably higher than grade expectancy. She testified that in most cases, skills in content areas improve when reading improves.

        The hearing officer rendered her decision on June 3, 1997. She noted that there was no dispute about the appropriateness of the child's classification as learning disabled, but that the parties disagreed about the severity of the child's disability, and the services which were necessary to meet his needs. She found that the testing performed by the board of education more accurately reflected the child’s abilities and achievement. The hearing officer then addressed the question of whether the child's special education needs were so extensive as to require that he be placed in a full-day special education program. She found that there was no evidence to prove that the child could not learn satisfactorily in a regular education placement. Although that finding was dispositive of petitioner's request for tuition reimbursement, she went on to find that the child’s program at the Stephen Gaynor School did not meet the least restrictive environment requirement. She further found that equitable considerations did not support the parent's claim for reimbursement because petitioner's request for a hearing was made after he had paid for most of his son's tuition.

        Petitioner challenges the hearing officer’s decision on a number of grounds. He contends that the board of education did not demonstrate how the resource room would meet the child’s needs, that the testimony demonstrated how the Stephen Gaynor School met the child’s needs, and that the hearing officer did not attribute the proper weight to the child’s teachers’ testimony, the classroom observation, and the psychological testing.

        A board of education may be required to pay for educational services obtained for a child by the child’s parent’s, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and the 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 the 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 parent’s claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson 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]).

        With respect to the first criterion for an award of tuition reimbursement, whether the services offered by the board of education are adequate or appropriate, 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). The child’s IEP listed the results of the psychological evaluation which indicated that the child displayed average intellectual potential with weaknesses in grapho-motor and psycho-motor speed, visual–motor integration and synthesis, and a mild perceptual motor delay. It also included the child’s IQ scores which ranged from upper borderline in performance to high average in verbal. In the description of academic performance section, the IEP included the child’s oral language test results which were in the low-average to average range, with the lowest scores in language processing. The speech/language information on the IEP revealed that the child’s auditory processing and receptive and expressive language skills ranged from low-average to average.

        The IEP set forth annual goals of improving reading skills, expressive writing skills, spelling skills, and handwriting skills. The IEP, however, did not include any information regarding the child’s needs with respect to speech/language services. The record before me shows that the child’s test results consistently showed low to low- average scores in expressive and receptive language processing skills. The child’s teacher confirmed the child’s difficulty with such processing. Moreover, while the district’s speech/language therapist did not recommend formal speech/language therapy, she did recommend language stimulation in the classroom as well as at home.

        Although there was a difference of opinion between the district’s speech/language therapist and the child’s speech/language therapist as to the degree of the child’s speech/language needs, the record shows that the child needed some level of speech/language services, whether it was speech/language stimulation in the classroom as recommended by the district’s speech/language therapist, or more intensive speech language therapy as recommended by the child’s teacher and his speech/language therapist. There is nothing in the IEP that addressed how the child would receive, at the very least, the speech language stimulation in the regular classroom as recommended by the district’s speech/language therapist. I find that the IEP does not completely address the needs of the child with respect to his language difficulties. Accordingly, I find that the board did not meet its burden with respect to the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, petitioner bears the burden of proof with regard to the appropriateness of the services which he obtained for his son at the Stephen Gaynor School for the 1996-1997 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). Additionally, the Individuals with Disabilities Education Act (20 USC 1400 et seq.) requires that children with disabilities be placed in the least restrictive environment. This requirement must be balanced against the requirement that they receive an appropriate education. (Briggs v. Bd. of Ed. of the State of Connecticut, 887 F.2d 688 [2d Cir., 1989]).

        The issues to be determined are whether this child required a full-time special education placement during the 1996-97 school year in order to receive educational benefits, and if so, whether the special education provided by the Stephen Gaynor School met the child's special education needs. The academic achievement testing which was performed in October, 1996 (Exhibit 17) revealed that the child had slight delays in his reading skills, while his mathematics skills were above grade level. His writing skills and knowledge of science were at grade level. His knowledge of social studies was slightly below grade level, while his knowledge of the humanities was more significantly delayed. I note that the child's mid-year progress report from the Stephen Gaynor School indicates that he had "secure" reading, spelling, writing, and mathematics skills. The child's teacher testified that petitioner's son could recall major facts from reading, but he had some trouble sequencing information. She also testified that the child occasionally needed teacher intervention to explain things in more detail. Although the teacher further testified that the child needed to have directions broken down into small steps, she did not explain what other specialized teaching techniques were used to assist the child. Upon the record which is before me, I am unable to find that petitioner's son required a full-time special education placement in order to receive educational benefits during the 1996-97 school year. Therefore, I find that petitioner did not meet his burden of proof with regard to the second criterion for an award of tuition reimbursement.

        With respect to the third criterion for tuition reimbursement, i.e., whether equitable considerations support the petitioner’s claim for reimbursement, the hearing officer found against the petitioner. Though it is not necessary to address this issue because the second criterion was not met, I will do so as I do not agree with the hearing officer’s finding. The record shows that petitioner referred his son to the CSE on October 4, 1996. His request for tuition reimbursement is limited to the 1996-1997 school year. There is no indication in the record that petitioner was unwilling to cooperate with the CSE. The fact that the petitioner entered into a contract with the Stephen Gaynor School for the child’s education before the child was referred to the CSE does not necessarily make the request untimely.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer to the extent that it found that respondent had met its burden of proof with respect to the appropriateness of the educational program which it offered to petitioner's son and that equitable considerations did not support petitioner's claim is hereby annulled.