97-090

        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 should no longer be classified as a child with a disability, and which denied petitioner’s request that respondent be ordered to reimburse petitioner for the cost of her son’s tuition at the West End Day School (West End) for the 1997-98 school year. The appeal must be sustained.

        Preliminarily, I will address a procedural issue raised in this appeal. Petitioner asserts that a prior decision of a hearing officer regarding the child’s classification and placement for the 1995-96 school year and a stipulation between the parties regarding the child’s classification and placement for the 1996-97 school year should have been admitted into evidence at the impartial hearing in this proceeding. She has attached copies of the decision and stipulation to her petition as Exhibit A, and asks that I consider them in this appeal. Respondent argues that the record in this proceeding is complete without the prior decision and stipulation and that those documents should not be considered by the State Review Officer. I find that the prior decision and stipulation should have been admitted into evidence in this proceeding to provide an accurate and concise history of the case, and therefore, I will consider them to be part of the record in this appeal.

        Petitioner's son was born in London in 1989, and attended a Montessori preschool there from October, 1992 through February, 1993, where, reportedly, no significant learning or emotional issues were noted. When the child was about three and one half years old, his parents divorced, and he moved with petitioner to Manhattan. The child was enrolled at the West Side Montessori School for preschool. At that school, the boy reportedly exhibited impulsive, reckless and disruptive behavior. He was evaluated by the Child Development Center Therapeutic Nursery of the Jewish Board of Family and Children Services, which reportedly found that the child’s emotional problems impacted on his cognitive functioning and behavior, and recommended that he be placed in a structured, therapeutic program. A copy of that evaluation is not in the record, but it is alluded to in a subsequent evaluation (Exhibit 3).

        Petitioner’s son was initially classified by respondent’s CSE as emotionally disturbed in 1995. The child was placed by petitioner in West End for kindergarten during the 1995-96 school year. West End is a small, private school for children with learning or emotional difficulties, in New York City. It has not been approved by the New York State Education Department to provide instruction to children with disabilities. The child’s tuition was ultimately paid by respondent pursuant to a hearing officer's order. Respondent also provided counseling services to the child during the 1995-96 school year. Petitioner's son was described by his kindergarten teacher as argumentative, impulsive, and demanding. In a psychological update conducted in May, 1996, when the child was six years old, respondent’s school psychologist noted that the child exhibited oppositional tendencies evidenced by the child’s description of authority figures as "annoying", and his reluctance to return a toy. The school psychologist observed that the child’s relationship with his father was a source of anxiety and confusion, and he reported that the child appeared to be quite sensitive and vulnerable.

        The child's counselor reported in June, 1996 that the child had received counseling as a related service twice per week for 30 minute sessions. She described the child as having both learning and behavioral problems. The counselor opined that the boy’s anxiety and insecurity prompted him to act inappropriately. She noted that he compared himself to his classmates and he concluded that they performed better than he did. Although the boy’s behavior had improved, he continued to engage in "silly" behavior, especially when he believed he wasn’t being watched. The counselor recommended that he receive both individual and small group counseling.

        A private psychological evaluation was conducted on various dates in May, June and July, 1996 at the request of petitioner to assess her son’s academic strengths and weaknesses and emotional functioning for educational planning and intervention purposes. Petitioner indicated that her son was forgetful and restless, and that he displayed oppositional behavior and had poor concentration. The private psychologist observed that at times the boy was restless and required structure to help him remain focused, while at other times he was focused and persisted on task. She also noted that the boy exhibited a high level of performance anxiety. The private psychologist reported that, as the evaluation became difficult for the child, he became self-conscious and fidgety, and required considerable encouragement. On the WISC-III, the boy obtained a verbal IQ score of 118, a performance IQ score of 99, and a full scale IQ score of 109, placing him in the average range. The private psychologist noted that the 18 point discrepancy between the boy’s verbal and performance IQ scores was highly significant, and indicative of better developed verbal reasoning skills than nonverbal abilities. She also noted that those scores were inconsistent with past test results in which the boy’s verbal IQ score was lower than his performance IQ score. The private psychologist characterized the child's current IQ test results as an "unexplainable change of pattern."

        On the verbal comprehension subtests, the boy’s scores ranged from high average to superior, reflecting well-developed verbal abilities. The boy’s ability to follow verbal instructions of increasing level of complexity was average. The private psychologist opined that attentional factors affected the boy’s comprehension. The boy’s perceptual organization ranged from low average to high average, which suggested that his non-verbal reasoning skills were not as well developed as his verbal reasoning skills. Additionally, his performance was better on tasks that did not involve a motor component. His performance on a task that assessed visual-motor speed and dexterity was in the low average range. The boy’s performance on tests of learning and memory was variable, ranging from low average to high average. His logical memory for passages was in the low average range, which the private psychologist noted was unexpected because of his high average verbal capabilities. The boy’s non-verbal memory was also variable. The private psychologist opined that the boy’s anxiety impacted upon his attention, and consequently affected his learning and memory. Academically, the child achieved standard scores of 91 for word recognition, 98 for spelling, and 120 for written arithmetic. The evaluator reported that the child's reading skills were at a lower level than expected, given his strong verbal skills.

        The private psychologist observed that the boy was struggling with several emotional concerns including self-esteem, the divorce of his parents, and conflicts between adults. She noted that the child had difficulty labeling and expressing his emotions appropriately. She observed that conflicts and emotions were uncomfortable and overwhelming to the child, and as a result, he experienced a great deal of anxiety. The private psychologist indicated that the child’s efforts to control his emotions were draining and difficult, resulting in impulsive and reckless behavior. The effort required to contain his emotions also affected on the child’s ability to attend, i.e. pay attention in class, and perform at his level of cognitive ability. His fidgety and restless behavior also was an expression of his anxiety. The private psychologist recommended that the boy remain in a structured, therapeutic classroom to assist him in modulating his emotions and to increase his learning capacity. She cautioned that it was important that the child not be placed in an overstimulating environment that would overwhelm him. She also recommended that the boy continue to receive counseling that focused on helping him process his feelings regarding divorce and self-esteem, and to assist him to identify and label feelings so that they do not become uncontrollable and result in problem behavior.

        Respondent's CSE recommended that the child remain classified as emotionally disturbed, and attend a special class with the related service of counseling for the first grade during the 1996-97 school year. The child’s individualized education plan (IEP) for that year indicated that he required a smaller class setting because of his tendency to become overstimulated. The IEP indicated that he was to be educated in a special class with a child to adult ratio of 6:1+1 for all instruction. The IEP's description of his management needs indicated that the boy needed a small, therapeutic classroom to deal with his emotional and behavioral issues which affected his education. The IEP also indicated that he was to receive individual counseling once per week, and counseling in a group of no more than three children once per week.

        The child was to have been placed in one of respondent's specialized instructional environment-VII (SIE-VII) classes. He was instead enrolled by petitioner in West End. In February, 1997, the parties stipulated that respondent would reimburse petitioner for the cost of her son's tuition at West End for the 1996-97 school year. In October, 1996, petitioner enrolled her son in the Hunter College Learning Lab (Learning Lab), an after school program for children with learning disabilities, because the child reportedly had reading difficulties. The boy met with a tutor at the Learning Lab twice per week.

        A social history update based upon and interview with petitioner was completed in January, 1997, by one of respondent’s educational evaluators. The evaluator reported that petitioner was pleased with her son’s school performance and that she believed that her son was responding well to the behavior modification system used by the private school. Petitioner also indicated that her son was anxious about his health, safety and well-being, and that he had tremendous anxiety about going to sleep.

        In an educational evaluation completed in January, 1997, the boy’s scores in oral language ranged from average to superior. The boy’s broad reading score was in the average range and his broad math score was in the superior range. The educational evaluator reported that the boy’s development of early reading skills was within normal limits and that his achievement in writing samples was in the average to high average range. The boy’s achievement in mathematical calculations was in the high average to superior range, and his achievement in applied problems was in the average to superior range. The educational evaluator did not make any recommendation.

        A medical report completed by the child’s pediatrician indicated that the child’s general health was normal. It also indicated that, based upon psychological evaluations, the boy’s emotional concerns infringed on his cognitive functioning. The pediatrician noted that the boy had a learning disability which was secondary to his emotional disability.

        In an occupational therapy evaluation conducted in January, 1997, the occupational therapist reported that the there were no delays in the boy's gross motor skills. With respect to the boy’s fine motor skills, the occupational therapist described the boy’s writing as laborious, and noted that the boy used a great deal of pressure when he printed and that his spacing between words was poor. However, she opined that the child's handwriting problems could be addressed in the classroom, and she did not recommend that he receive any occupational therapy. The evaluator recommended a follow-up occupational therapy evaluation in one year to assess the boy’s progress in writing skills.

        The boy was observed in his classroom while his teacher read to the class in February, 1997. During the twenty minute observation, the child reportedly moved close to the teacher and touched her. He moved away from the teacher when she questioned why he was touching her. The child touched the book cover and the teacher removed his finger as she continued reading. Then the boy began rocking back and forth on his knees and swinging his hands. The boy’s teacher reported that the child was constantly worried about other people, that he was very distracted, that he socialized too much, and that he acted silly.

        A second classroom observation was conducted in May, 1997. The teacher was conducting a lesson on various tastes and smells. She blindfolded the students one at a time and gave them a sample to taste. The child was reluctant to participate when it was his turn. After his first taste, he ran to the sink to wash out his mouth. He then returned to his seat, and shortly thereafter asked for another turn. During the lesson the boy asked the teacher about completing an unrelated assignment, then he began sliding a paper around the table. It was reported that the boy sat quietly in his seat and behaved appropriately the remainder of the time.

        In a report which she completed in May, 1997, the child's first grade teacher estimated that he was functioning at the primer level in reading, and at the mid-first grade level in mathematics. She noted that the boy had difficulty focusing and was easily distracted, and that he acted inappropriately and was silly at times. The teacher reported that the boy was usually cooperative, but that he was sometimes devious. She indicated that the boy got along well with his peers, but that his behavior caused disruptions.

        On June 27, 1997, the CSE recommended that the child no longer be classified and that he be placed in a general education program. In its written rationale (Exhibit 12), the CSE indicated that the boy had made significant social, emotional and academic growth. The CSE acknowledged that the child was sometimes silly in class, that he had difficulty acknowledging his inappropriate behavior, and that he had some anxiety. However, it determined that such behavior was not severe enough to classify the child as emotionally disturbed. The CSE noted that the boy performed at grade level and had average IQ scores, and it concluded that he could successfully function in a regular education class.

        By letter dated July 24, 1997, the CSE notified petitioner of its recommendation. Petitioner requested an impartial hearing. The hearing was held on July 29 and September 22, 1997. In her decision, which was rendered on November 20, 1997, the hearing officer found that respondent had sustained its burden of showing that its recommendation was appropriate. She found that the child was performing at or above grade level in all subjects and that there was insufficient evidence to support a classification of learning disability. She further found that the evidence to support a classification of emotionally disturbed was insufficient, as there was no evidence that the child’s behaviors resulted in his inability to learn. Accordingly, she found that the child should not be classified for special education purposes, and that respondent was not responsible for his tuition at West End.

        Petitioner challenges the hearing officer’s decision on a number of grounds. Petitioner’s central argument, however, is that her son was inappropriately declassified because there was no clinical basis or supporting evaluations for such action.

        The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). Additionally, the amended Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter "IDEA"), which became effective on June 4, 1997, requires that a board of education must evaluate a child before determining that that child is no longer a child with a disability (Section 1414[c][5] of the IDEA). As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (Section 1414[c][1][A] of the IDEA). On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (Section 1414 [c][1][B]). If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, the board of education shall notify the child’s parents of that determination and the reasons for such determination. The CSE must also inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability (Section 1414 [c][4][ii] of the IDEA).

        The record shows that at its June 27, 1997 meeting, respondent’s CSE reviewed the evaluation data described above. The CSE believed that it had sufficient information to determine whether the child continued to be a child with a disability because it made a recommendation to declassify the child. However, the record does not indicate that petitioner’s input was obtained regarding the need for additional data. Furthermore, there is no documentation in the record demonstrating that petitioner was notified of the determination that no additional data were needed, or that she was advised of her rights based upon that determination as required by Section 1414 [c][4][ii] of the IDEA. In fact, one of petitioner’s main challenges in this appeal is that respondent should have conducted a psychological or psychiatric evaluation. Respondent argues that it would not base its recommendation on one evaluation, and that the information which the CSE had demonstrated that the child had made significant social, emotional and academic growth and was functioning on grade level. However, I find that the CSE's recommendation to declassify the child without additional data regarding the child’s then current emotional functioning was inappropriate. I note that although the CSE had recommended that the child receive counseling during the 1996-97 school year, the record does not reveal whether he received counseling. If he did, the CSE should have obtained a report from the child's counselor. There is no evidence in the record to support a recommendation that the child could function in a regular education classroom. The record shows that although the child’s behavior had improved, he continued to have some difficulty even in the small, structured class at West End.

        Additionally, once the CSE determined that the child no longer needed special education services and could be placed in a regular education program on a full-time basis, it should have considered whether the child required any declassification support services. (8 NYCRR 200.4 [c][1][iii]). There is no evidence in the record that this was done. The record shows that the child was distractible in large groups and would engage in inappropriate behavior. At the very least, the CSE should have recommended declassification support services to assist the child in making the transition to a regular classroom setting with more than 25 students.

        Based on the information before me, I find that respondent failed to comply with the requirements of the IDEA and the Regulations of the Commissioner of Education when it determined that the child was no longer a child with a disability, and therefore did not meet its burden of proof establishing the appropriateness of its recommendation to declassify the child.

        Petitioner contends that the hearing officer erred in denying her request for tuition reimbursement for the 1997-98 school year. 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). 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]).

        Respondent’s CSE recommended that the child not be classified. It, therefore, did not recommend a program of special education services. In light of my finding that respondent’s CSE failed to show the appropriateness of its decision to declassify the child, the child remained eligible to receive a program of special education services pursuant to IDEA and Article 89 of the Education Law. Respondent failed to meet its burden with respect to the first criterion for tuition reimbursement, i.e., that the program which its CSE recommended was appropriate.

        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 West End during the 1997-98 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).

        At the hearing, the West End's Educational Coordinator testified that the child had progressed academically while at West End, and that his behavior had improved. She indicated that the child required a highly structured, therapeutic environment in order to learn and maintain emotional stability. The Educational Coordinator further testified that the school used a behavior modification program which provided consistency to the child and to which he responded well. She stated that the child was no longer running out of the classroom, that he was beginning to verbalize when he became upset, that he was in better control of his behavior, and that he was able to establish relationships with others. The Educational Coordinator at West End also testified that the child was easily distractible and that he had a hard time following group directions and teacher directives. She stated that the boy did not perform well in large group situations. The Educational Coordinator testified that an attempt had been made to mainstream the child in an after- school program of a group of approximately 19 children, but the child was too distractible in such a large group. She also referred to difficulties the child had on the bus which transported approximately 16 children. She testified that the child was written up for 12 bus violations while in first grade. The record includes five of those misbehavior reports which described the child’s behavior as intolerable and uncontrollable. The reports indicated that he would get up from his seat, jump up and down on the seat, scream, hit and fight with other children, and touch and kiss the small children.

        The Director of the Learning Lab where the child received tutoring testified that the child’s gains were attributable to his placement in a secure setting and the highly specialized instruction he received. She opined that he was not ready for a regular education setting. She expressed concern for his emotional stability in a regular education classroom and opined that he might regress academically if he were placed in the wrong setting. The Director testified that the child had not yet developed the emotional skills necessary to handle the social environment and pressures associated with school.

        Additionally, the record includes a May, 1997 letter written by the Director of the Learning Lab to petitioner in which the Director indicated that she believed that the child’s special needs stemmed from an emotionally based disability. The Director indicated that she concurred with the other professionals who believed that the child’s current school placement was appropriate for his needs. In addition, she noted that that the boy had been experiencing significant difficulties learning to read and spell, and that he also struggled with handwriting tasks. The Director believed that these issues were indicative of a separate area of disability.

        The record also includes an August 1, 1997 letter from a psychotherapist who tutored the child in two summer camps upon his return from England. The psychotherapist indicated that the child was anxious, inattentive and acted inappropriately in large groups. She indicated that the child’s anxiety adversely affected his ability to assimilate any information or skills being presented. She stated that in small groups, the child acted appropriately and demonstrated no anxiety provoked behaviors. She believed that small group settings provided the non-threatening assurance that the child required to maintain focus and remain on task. The psychotherapist opined that the boy should continue counseling services. She believed that the boy’s progress was based upon the supportive setting and successful therapy. She believed that any disruption would cause educational difficulties.

        Based on the information before me, I find that West End offered an educational program that met the special education needs of the child. A class profile shows that the boy’s class is comprised of two teachers for 9 students, all of whom are comparable in age and in academic functioning in reading and math. The boy was described as anxious and distractible in large groups. The record shows that he had difficulty behaving appropriately in groups of 16 children on the bus, and that attempts to mainstream him in larger groups were unsuccessful. The professionals who knew the child best were consistent in recommending that the child was not ready for a regular education setting. West End offered a small, highly structured, secure environment where, the evidence shows, the child made gains both academically and emotionally. I am persuaded that petitioner has met her burden of proving that her unilateral placement of her son at West End was appropriate and was consistent with the least restrictive environment requirements. Accordingly, I find that petitioner has met her burden of proof with respect 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, there is no indication in the record that petitioner was unwilling to cooperate with the CSE. I find that the third criterion for an award of tuition reimbursement has also been met.

        Having found that petitioner has satisfied the criterion for tuition reimbursement, I do not reach the other issues raised in this appeal.

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 reasonable expenditures for her son's tuition at West End during the 1997-98 school year, upon presentation by petitioner of proof of her payment for the child's tuition.