97-094

        Petitioners appeal from an impartial hearing officer's decision which upheld the recommendation by respondent's committee on special education (CSE) that their daughter remain in respondent's middle school, rather than attend the Norman Howard School as petitioners had requested, for the seventh grade during the 1997-98 school year. The hearing officer denied petitioners' request that respondent be required to pay for the child's tuition at the Norman Howard School. The appeal must be sustained in part.

        Petitioners' daughter is 13 years old. She was reportedly neglected and abused by her natural parents, and was placed in the custody of the Department of Social Services (DSS) in May, 1989. DSS placed the child with petitioners as her foster parents. Petitioners subsequently adopted the child in November, 1995.

        Prior to being referred to respondent's CSE, the child had been enrolled in a preschool program for emotionally disturbed children at the Mt. Hope Family Center. In the spring of 1988, a Mt. Hope psychologist reported that the child had difficulty attending to structured tasks, and was non-compliant when she was not confident of her ability to do something. Personality testing indicated that the child viewed adults as emotionally unavailable and potentially physically abusive toward each other. In February, 1989, the child's preschool teacher reported that the child evidenced delays in her gross and fine motor skills, and that her general intelligence and comprehension could not be accurately measured because of her apparent inability to cope with structured activities. She further reported that the girl at times exhibited inappropriate behavior in the classroom.

        On August 31, 1989, the CSE recommended that the child be classified as emotionally disturbed. It further recommended that she be placed in a center-based "Option III" kindergarten class of the Board of Cooperative Educational Services for the First Supervisory District of Monroe County (BOCES) at the Volmer School, which is in the Rush-Henrietta Central School District. The CSE also recommended that the child receive counseling once per week. Petitioners accepted the CSE recommendation. The child reportedly made progress in the Option III class during the 1989-90 school year, and continued in that class during the following school year.

        In March, 1991, the child was evaluated by a school psychologist, who reported that the child's teacher had indicated that the child's acting out behavior had decreased, but that she continued to manifest emotional difficulties. Her academic performance was described as inconsistent. The child achieved a verbal IQ score of 105, a performance IQ score of 93, and a full scale IQ score of 100. Relative weakness was noted in the child's short-term memory for numbers, and in her ability to perform certain tasks requiring perceptual organization. Her visual motor integration skills were delayed by almost one year. The girl achieved standard scores of 73 for mathematics, 79 for reading, and 84 for spelling, indicating that her academic skills lagged significantly behind her cognitive ability. Projective testing revealed that the child had a great deal of anger relating to her past abuse by her natural father, and grief over separation from her natural family. The school psychologist recommended that the child continue to be classified as emotionally disturbed, but that she be monitored to detect a possible learning disability related to a weakness in her sensory motor integration skills.

        For the 1991-92 school year, respondent's CSE again recommended that the child remain in the BOCES Option III program, in which the child-to-adult ratio was 8:1+1. It also recommended an occupational therapy evaluation for the child. The evaluation was completed in January, 1992, at which time the evaluator reported that the child manifested delays in visual discrimination, visual memory, visual sequential memory, visual figure-ground, visual closure, and visual motor integration. She recommended that the child receive occupational therapy for 30 minutes per week.

        In April, 1992, the CSE recommended that the child be placed in a BOCES Option II program with a 12:1+1 child-to-adult ratio for the 1992-93 school year. The CSE also recommended that the child receive 30 minutes of occupational therapy per week. In the late spring of 1992, the child was evaluated by a BOCES instructional specialist. The child achieved standard scores of 78 for reading decoding, 80 for reading comprehension, 89 for mathematical computation, 86 for mathematical applications, and 76 for spelling. In a test of her psycholinguistic skills, the child was found to have weak auditory and visual reception and verbal expression, and very weak visual memory skills. The evaluator noted that the child's short-attention span and low frustration level could have impacted upon her auditory and visual reception skills, as well as her reading and mathematics. She recommended that the child's pediatrician be consulted about her limited attention span and impulsivity. At that time, the child was reportedly taking Clonidine to moderate her behavior.

        The CSE conducted its next annual review of the child in March, 1993. The child's special education teacher and her reading teacher reported that the child had made progress during the 1992-93 school year, but she still needed to have 1:1 instruction. The child's mother asked that she be placed in a less restrictive and more academically oriented class. The CSE recommended that the child be placed in a BOCES Option II class in respondent's Jefferson Road School. Her placement was changed to that school in April, 1993. An end of year summary by the teacher of the child's new class (Exhibit D-15) indicated that the child was making satisfactory academic progress. The child remained in the Option II program at the Jefferson Road School during the 1993-94 school year. She participated in group counseling once per week, and her counselor reported that the counseling had been useful for the child. The child received satisfactory grades on her third grade report card, and her social development was described as generally appropriate (Exhibit D-20).

        The child's triennial psychological evaluation was performed in March, 1994. She achieved a verbal IQ score of 93, a performance IQ score of 94, and a full scale IQ score of 93. I note that although the child's IQ scores were lower than the scores which she had achieved in 1991, a different IQ test was used in 1994. In comparing the results of the child's performance during this testing with those which she achieved when tested in 1991, the school psychologist noted that the child had scored higher on certain subtests, but lower on other subtests. The child manifested a three-year delay in her visual motor integration skills. She achieved standard scores of 52 for word recognition, 76 for arithmetic, and 54 for spelling. The school psychologist reported that the child's ability to accurately detect sounds for spelling was impaired, and her reading decoding skills were poor. In the emotional realm, the child continued to have concerns which occupied her mind and made it difficult to focus exclusively on her school work. The school psychologist recommended that the child remain in a special education class with no more than 12 students, and that she continue to receive counseling. She suggested that additional diagnostic testing be done to provide strategies to assist the girl in reading and spelling.

        The child's annual review was conducted in May, 1994. The CSE discussed the possibility of placing the child in a less restrictive district learning center program which had a 15:1+1 child-to-adult ratio. However, it recommended that she remain in the 12:1+1 Option II class in the Jefferson Road School, and receive 30 minutes of counseling per week. I note that the child's individualized special education program (IEP) for the 1994-95 school year (Exhibit D-18) indicated that she would receive occupational therapy consultant services three times per week. It also indicated that she was taking both Clonidine and Ritalin. The IEP specified various testing modifications to be employed with the child. The child's IEP was amended in September, 1994 to provide that she receive occupational therapy twice per week.

        In November, 1994, the CSE met to review the child's progress and consider placing her in a less restrictive program. Testing performed in September, 1994 had revealed that the child's instructional level for reading was at the first grade level. She earned a grade equivalent score of 3.2 for mathematics. The child's special education teacher reported that she still required 1:1 assistance to begin tasks, and she opined that to child was not ready for placement in a regular education class. The child's counselor concurred with that opinion. Although the CSE considered whether the child's classification should be changed to learning disabled, it decided to wait for the results of a private evaluation of the child at the Developmental Unit of the Genesee Hospital. Therefore, the child remained classified as emotionally disturbed, and her program was not changed.

        An educational evaluation at the Developmental Unit was completed shortly after the CSE meeting was held. On the Woodcock Reading Mastery Tests-Revised, the child earned standard scores of 53 for word identification and 61 for word attack skills. On the Kaufman Test of Educational Achievement, she earned standard scores of 68 for spelling, 73 for mathematical computation, and 78 for mathematical applications. The child earned standard scores of 9 for thematic maturity, 13 for contextual vocabulary, 14 for syntactic maturity, 2 for contextual spelling, and 1 for contextual style on the Test of Written Language-2. The evaluator also administered certain tests to assess the nature of the girl's disability. She reported that the child's score on a test of visual problem solving was two years below her age level, and that the child evidenced limited auditory and visual sequential memory skills. The evaluator further reported that the child was functioning at the beginning first grade level in her auditory conceptualization ability. She recommended that the child receive intensive, structured multisensory instruction in reading and writing, and suggested that the child could benefit from books on tape. The evaluator also recommended that the child develop keyboarding skills.

        In December, 1994, the child manifested some signs of delay on a developmental screening of school related skills which was performed at the Developmental Unit. The physician who had administered the screening reported that the child appeared to have problems retrieving words, and she had inconsistent listening skills. Her visual sequencing and visual short-term memory skills were delayed. Her ability to maintain attention was generally satisfactory, although the physician noted that the child was taking medication to improve her attentional skills at the time of the screening. The results of a formal neurological evaluation were reported to be normal. On January 3, 1995, the Developmental Unit evaluation team reported that the child manifested a severe learning disability in reading, which involved difficulties with her phonetic decoding skills and the visual spatial/visual memory aspects of reading. The evaluation team reported that the child's written language was impaired by her significant spelling deficits, and that the child's impaired visual motor skills impacted upon her handwriting. It further reported that the child's history was consistent with a prior diagnosis of an attention deficit disorder. The team concluded that the child should be diagnosed as having an attention deficit hyperactivity disorder (ADHD) as well as developmental reading, written language and mathematics disorders. The team suggested that the classification of learning disabled might be appropriate for the child, and recommended that she continue to take both Ritalin and Clonidine for her attention and behavior. The team also recommended that the child continue to receive outside counseling.

        The Developmental Unit's recommendations were considered by the CSE on February 2, 1995. It was advised that many of the recommendations had been implemented (Exhibit D-34). The CSE also considered the recommendation by a BOCES occupational therapist that the child be provided with occupational therapy twice per week to improve her handwriting. The child's special education teacher reported that the child had made very good progress in all areas, and had been mainstreamed for science, art, music and physical education. The CSE recommended that the child's classification be changed from emotionally disturbed to learning disabled. It also recommended that the child receive occupational therapy twice per week, and that a consultant from the BOCES be used to develop a reading program for the child. Although the child's classification was changed, she remained in the district-based BOCES instructional program at the Jefferson Road School.

        The child's annual review was conducted by the CSE on May 8, 1995. The CSE recommended that the child be classified as learning disabled and continue to be enrolled in the district-based BOCES 12:1+1 special education class at Jefferson Road School for the 1995-96 school year. The child's IEP indicated that she would be mainstreamed for fifth grade art, music, physical education and science during the 1995-96 school year. The CSE recommended that the child receive counseling in a group for 30 minutes each week. Because the child's direct occupational therapy had reportedly been successful, the CSE recommended that she receive only consultant occupational therapy six times per year. The girl's IEP also indicated that additional opportunities for mainstreaming would be explored and that the opportunity for participation in a social skills group would also be explored.

        In subsequent end of year reports, the child was described as having made significant progress emotionally (Exhibit D-45) and academically (Exhibit D-47). Her teacher indicated that she had employed the Orton-Gillingham methodology, a multisensory teaching technique, and had improved the child's phonics and spelling skills. She also reported that the child's handwriting had improved. In mathematics, the child had completed one half of the third grade text book. She had been mainstreamed in science in the second marking period of the school year, for which she had received a modified grade. On the child's report card, her teacher indicated that she was an enthusiastic learner who had developed a positive attitude about school.

        On August 24, 1995, the CSE again reviewed the child's program. It considered a report by the child's private tutor during the summer. The tutor indicated that she had provided 15 hours of Orton-Gillingham instruction to the child, who continued to have some difficulty with sound-symbol identification. The CSE adhered to its previous recommendation for the child's educational program during the 1995-96 school year, except that it recommended that she be mainstreamed for social studies and be placed in a regular education fifth grade homeroom.

        The child reportedly had a successful year in the fifth grade during the 1995-96 school year. She was reportedly privately tutored after school for two hours per week. Her special education teacher described her as a good worker, but noted on her report card that the child's organizational skills needed to be improved. The child received A's and B's for her work in reading, writing, spelling, mathematics and science, and mostly B's for social studies. In an end of year summary, the child's special educational teacher reported that the child had satisfactory reading comprehension skills, but her reading decoding skills needed to be strengthened (Exhibit D-56). She also indicated that the child required 1:1 instruction for reading, and that she used a scribe and a computer for writing. She further indicated that the child had been working at the fourth grade level in mathematics, and had used computer programs to reinforce her skills. The occupational therapist who had provided consultant services on six occasions during the school year recommended that no further services be provided to the child. In May, 1996, the child's private tutor reported that the child was reading and comprehending chapter books with complex sentences, but needed to concentrate upon her word attack strategies to improve her fluency. The tutor recommended that the child be fully mainstreamed, but provided with "reading support" (Exhibit D-103).

        The CSE prepared the child's IEP for the 1996-97 school year at a meeting which was held on June 5, 1996. It recommended that she remain classified as learning disabled, and that she be enrolled in a district-based BOCES 12:1+1 special education class for reading and language arts while attending respondent's middle school. The CSE also recommended that the child be enrolled in one of respondent's "phase" classes for instructional in social studies. At the hearing, the "phase" class was described as a class of no more than 15 children who were taught by one of respondent's special education teachers, following the regular education sixth grade curriculum. The child was mainstreamed for mathematics, science and special subjects during the 1996-97 school year. The CSE recommended that she receive an unspecified amount of resource room services to support her in her mainstreamed mathematics and science classes. I note that a subsequent report of the child's staffing team indicated that she received resource services for one period per day. The CSE also recommended that the child receive 30 minutes of counseling in a group per week, and 30 minutes per week of consultant services from the BOCES Diagnostic and Placement Unit. The consultant testified that she had provided direct instruction in reading to the petitioner's daughter and another child for a portion of the school year. Thereafter, the instructional program was reportedly continued by the child's special education teacher and an aide.

        The child made a smooth transition from the Jefferson Road Elementary School to the Pittsford Middle School. The notes of a staff meeting which was held in September, 1996 indicate that the child was being privately tutored, and that petitioners were in the progress of obtaining additional private tutoring for her. At the hearing, the child's mother testified that the child had been privately tutored since the first grade. The child was tutored in reading twice per week in the fourth and fifth grades. In the sixth grade, the child was tutored as often as four times per week, primarily to help her complete her homework.

        In March, 1997, the child was re-evaluated by a BOCES school psychologist, who reported that the child had achieved a verbal IQ score of 87, a performance IQ score of 104, and a full scale IQ score of 94. She indicated that the child's verbal IQ score, and her ability to sustain attention, concentrate, and assert mental control were in the low-average range. Information obtained from the child's teacher on the Achenbach Child Behavior Check List indicated that the child's behavior was in the clinically significant range. She was described as quick to perceive that others had judged her as being inferior, as well as concerned about being a credit to her adoptive parents. The school psychologist recommended that the child remain classified as learning disabled, and that she continue to receive counseling to address her emotional issues.

        A BOCES instructional specialist who had evaluated the child in March, 1997 reported that the child's instructional level for reading was an end of fourth grade level, but that she had sixth grade listening skills. The evaluator indicated that oral reading was difficult for the child, who worked very hard reading word by word. The child's mathematics were reported to be at a 5.0 grade level. The evaluator opined that the child would continue to require a well rounded approach to reading, with sufficient direct instruction in decoding skills.

        I note that on the sixth grade Regents Pupil Evaluation Program tests which were administered to the child during the 1996-97 school year with her IEP testing modifications, the child achieved a score which was three points below the Statewide reference point for reading, and a score which was eight points above the Statewide reference point for mathematics.

        In late May and early June, 1997, the child was privately evaluated by Dr. Ronald Schworm, an educational consultant (Exhibit P-40). He administered portions of various standardized tests. On the Woodcock Reading Mastery Test-Revised, the child achieved standard scores of 72 (grade equivalent of 3.6) for word identification, and 84 (grade equivalent of 3.7) for passage comprehension. Dr. Schworm reported that although the child had some reading decoding skills, she had deficits in her knowledge of the phonological code and alphabetic orthography. He further reported that the child's spelling skills were at an early second grade level. He recommended that the child receive a systematic multisensory program of phonics instruction, and that she should participate in activities and exercises designed to learn memory strategies. Dr. Schworm suggested that the child use tape recorded text books, and that she should learn keyboarding skills. In his report, Dr. Schworm did not indicate an awareness that respondent was already doing many of the things which he recommended (see September 8, 1997 Transcript, pages 39-48).

        The child received A's and B's for final grades in all of her sixth grade subjects, except mathematics, in which she received a C+. On June 19, 1997, the CSE conducted its annual review of the child. The CSE recommended that her English instruction be provided in a district-based BOCES 12:1+1 special education class, and that she be instructed in social studies in a "phase" class. Mathematics instruction was to be provided to her in a "lab" class, which the CSE chairperson described at the hearing as a small, regular education class. The child was to be mainstreamed for instruction in other subjects. At the hearing, the CSE chairperson testified that the child would have received individual reading instruction under the direction of the BOCES Diagnostic and Prescriptive Unit (September 3,1997 Transcript, page 112). The child's IEP indicated that she would receive 30 minutes per week of individual instruction to be provided by the Diagnostic and Prescriptive Unit. She would also have received 30 minutes per week of individual counseling.

        At the CSE meeting, the child's mother and her advocate attempted to persuade the CSE to recommend that the child be placed in the Norman Howard School, which has been approved by the State Education Department to provide instruction to children with disabilities. However, the CSE chairperson testified that she believed the girl could function successfully in a less restrictive placement than the private school, given her previous success in some of respondent's regular education courses. Petitioners unilaterally placed their child in the Norman Howard School for the 1997-98 school year.

        By letter dated June 19, 1997, petitioners expressed their disagreement with the CSE's recommendation, and requested that an impartial hearing be held. The hearing began on September 3, 1997, and it concluded on September 19, 1997. In his decision which was rendered on October 29, 1997, the hearing officer found that the child had succeeded in her previous educational program which was similar to that which the CSE had recommended for the 1997-98 school year, and which was a less restrictive placement than placement in the Norman Howard School. Therefore, he upheld the CSE's recommendation.

        Petitioners contend the respondent failed to offer their child a free appropriate public education for the 1997-98 school year. They request an order requiring respondent to reimburse them for the cost of their daughter's tuition in the Norman Howard School for that 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]). 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 educational 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 educational 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). In this instance, respondent has submitted a draft IEP which is dated April 25, 1997, but indicates that the CSE met on June 5, 1997 (Exhibit D-70). At the hearing, the CSE chairperson acknowledged that Exhibit D-70 was a draft IEP which was discussed at the CSE meeting (September 3, 1997 Transcript, page 108). As noted above, the CSE met on June 19, rather than June 5. Although the CSE chairperson testified about the educational program which the CSE had recommended for petitioner's daughter at its June 19, 1997 meeting, respondent did not enter a copy of the child's final IEP into evidence. I find that its failure to do so compels me to conclude that it did not meet burden of proving that it had offered a free appropriate public education to the child for the 1997-98 school year (Application of a Child with a Disability, Appeal No. 94-13; Application of a Child with a Disability, Appeal No. 97-80).

        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 Norman Howard School 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).

        Petitioners assert that their child was offered the opportunity to learn basic academic skills, while still following the State curricula for seventh grade subjects, at the Norman Howard School during the 1997-98 school year. The Director of the Norman Howard School testified that the school's program was designed for "adolescents with learning disabilities who are not meeting success," (September 17, 1998 Transcript, page 4). All of the children attending the Norman Howard School have been classified by their respective CSE's. Classes at the school do not exceed 12 students, and there are aides in the classrooms (Ibid., page 7). The New York State curriculum is followed, but it is modified in many cases. The Director testified that remedial programs in reading, mathematics and writing were available, as were counseling and speech/language therapy. He further testified that multi-modal instructional techniques were used at the school, and experiential learning was also part of the school's program.

        During the 1997-98 school year, petitioners' daughter was enrolled in seventh grade English, mathematics, science and social studies courses, as well as courses in reading and writing. Three phonetically based reading programs were used by the private school. Writing was taught in what was described as a "communication lab." At the end of the school day, the child met with her advisor to receive help in organizing her homework, and she was able to obtain extra assistance from her individual teachers. The Director of the Norman Howard School testified shortly after the child entered the school. He indicated that she appeared to have "fit right in."

        Having considered the Director's testimony, and that by the BOCES consultant, Ms. Jean Garrett-McKenzie, who referred to some of the techniques used by the Norman Howard School, I find that the private school offered specialized services which would have addressed the child's need for assistance in reading and writing. She was also able to obtain counseling in the private school, which would have been necessary to address her on-going emotional needs. However, that is not dispositive of the matter. The issue to be determined is whether the child's placement in a school for children with disabilities is consistent with the requirement that children with disabilities be educated in the least restrictive environment. Although the child was placed by her parents, rather than the school district, in the Norman Howard School, petitioners' claim for tuition reimbursement is premised upon the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) which requires that children with disabilities be educated in the least restrictive environment (see P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Disability, Appeal No. 92-7, decision sustained sub nom.; Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). That requirement must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 889 F. 2d 688 [2d Cir., 1989]).

        In determining whether a full-time special education placement such as the Norman Howard School would be appropriate for this child, I have considered the fact that she has been successfully mainstreamed on at least a part-time basis since the third grade. Initially, she was mainstreamed only for "special" subjects, such as art and music. In succeeding years she has been mainstreamed for one or more "academic" subjects, at least in part at petitioners' urging. The parties seriously disagree about the nature and the amount of specialized assistance which respondent has provided to the child as she began to receive more of her instruction outside her BOCES self-contained class. However, there appears to be little disagreement about the academic and social benefit to the child of being educated with her regular education peers. Petitioners assert that the appropriateness of an educational placement should not be determined solely by the marks which the child has received on her report card. While I agree with them, I must point out that I have no basis in the record for concluding that the child's grades in her regular education courses were inflated, or did not otherwise represent her genuine achievement in those courses. I have also considered the testimony by the child's special education teacher for the sixth grade and the BOCES consultant teacher who testified that the child should continue to receive regular education instruction, with appropriate support. I note that neither the child's private tutor nor her private psychotherapist testified that the child would not benefit from continued placement in a regular education program. The child's parents testified about the increased amount of time which they spent tutoring the child in the sixth grade. However, their testimony does not, in my opinion, afford a basis for concluding that this child should not be in a regular education program for a significant part of the school day. If the child required such additional assistance, that need would be most appropriately addressed by increasing the amount of resource room services. Therefore, I find that the child's placement in a full-time special education program was inconsistent with the requirement of placement in the least restrictive environment, and that petitioners have not satisfied the second criterion for an award of tuition reimbursement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent he found respondent had met its burden of proof with regard to offering the child a free appropriate public education for the 1997-98 school year.