98-002

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for the cost of their son's placement in the Forman School during the 1996-97 school year. The hearing officer denied their claim, despite having found that the individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for the boy lacked annual goals and short-term instructional objectives for each of his special education needs. Respondent cross-appeals from the hearing officer's finding that the boy's IEP was inadequate because it did not include annual goals and short-term instructional objectives relating to the boy's deficiencies in written expression. The appeal must be sustained in part. The cross-appeal must be dismissed.

        Petitioners' son is 18 years old. When he was two years old, petitioners noticed that his speech was delayed. Thereafter, they arranged to have him receive speech/therapy at a local hospital. The boy entered a regular education kindergarten class in respondent's schools in the fall of 1985. At the end of kindergarten, the child was referred to the CSE because of developmental delays in his gross and fine motor skills. On July 16, 1986, the CSE recommended that the child not be classified as a child with a disability, with the understanding that he would be placed in a "pre-first grade" class and his progress would be reviewed by the CSE.

        In November, 1986, the boy was reportedly diagnosed by his pediatrician as having some kind of an attention deficit, for which the pediatrician prescribed Ritalin. The boy continued to take that medication throughout his career in respondent's schools. On December 12, 1986, the CSE reviewed the child's progress, and recommended that he be classified as learning disabled. It further recommended that he receive three hours of resource room per week, and 30 minutes of occupational therapy twice per week. For the 1987-88 school year, the CSE recommended that the child receive two and one half hours of resource room per week, but no occupational therapy, while enrolled in a regular education first grade class. While in the second grade during the 1988-89 school year, the child received 30 minutes of resource room three times per week to improve his keyboarding skills, and "speech improvement" once per week (Exhibit SD-1). The child's triennial evaluation was performed during that school year. In February, 1989, the CSE reviewed the results of the child's evaluation, and recommended that he be declassified.

        The child remained unclassified during the third, fourth, and fifth grades. On the Comprehensive Test of Basic Skills (CTBS) which was administered to him in May 1992, the child, who was nearing the end of the fifth grade, achieved grade equivalent scores of 3.4 for total reading, 6.0 for total language, 4.3 for spelling, 4.2 for study skills, and 5.1 for total mathematics.

        The child was again referred to the CSE as he entered the sixth grade. A school psychologist who evaluated him in September, 1992 reported that petitioners' son had achieved a verbal IQ score of 100, a performance IQ score of 95, and a full scale IQ score of 97. His scores were consistent with those which he had attained when evaluated in 1988. The school psychologist indicated that the child's attention span was good, but his visual perceptual skills were slightly below average. However, his score on the Bender Gestalt Test, which measures visual motor integration skills, was approximately five years below that of his chronological peers. On a portion of the Test of Written Language, the child was asked to write a brief story. Instead, he wrote a single sentence. The school psychologist noted that the child appeared to be immature and easily distracted, and that his speech articulation was somewhat deficient.

        An occupational therapist who screened the child in October, 1992 reported that the boy had a severe delay in the development of his visual motor integration skills and there were wide discrepancies in the size, spacing and formation of letters in his handwriting. She recommended that he use a tape recorder for note taking and that certain testing modifications be used to minimize the effect of his writing difficulties. She also suggested that he use a typewriter or computer.

        The child was also evaluated by a speech/language therapist in the fall of 1992. He was found to have mild to moderate deficits in the development of his expressive and receptive language. The speech/language therapist reported that the boy had trouble following directions of increasing length and complexity, and had difficulty assembling sentences from scrambled stimulus sentences. She noted that there were certain distortions in his speech, and recommended that he receive speech/language therapy twice per week.

        On November 24, 1992, the CSE recommended that the child be reclassified as learning disabled, and that he receive resource room services five times per week. It also recommended that testing modifications, such as extended time limits, separate locations, having questions read to him and his answers recorded for him, be used. In February, 1993, the CSE recommended that a complete occupational therapy evaluation be performed, and that he receive 30 minutes of occupational therapy per week on a trial basis. On the CTBS in May, 1993, petitioners' son earned grade equivalent scores of 5.8 for total reading, and 5.3 for total mathematics. His scores on the sixth grade Pupil Evaluation Program reading and mathematics tests were above the Statewide reference point, indicating that he did not require remediation pursuant to 8 NYCRR 100.3 (b)(3). With the exception of the 68 which he received for sixth grade English, the child's final grades for the sixth grade were no lower than 75.

        In June, 1993, the CSE prepared the child's IEP for the 1993-94 school year. It recommended that he be mainstreamed for the seventh grade, but continue to receive resource room services five times per week. The CSE also recommended that petitioners' son receive 40 minutes of occupational therapy per week. It further recommended that the boy use a laptop computer on a trial basis for one marking period. An occupational therapist who assessed the boy's ability to use a laptop in October, 1993 recommended that he continue to use the machine. The CSE reviewed the boy's progress during the first marking period of the 1993-94 school year, and recommended that he continue to use a laptop computer. Although the record is not completely clear, it appears that the boy did have the use of a laptop computer for a portion of the 1993-94 school year, and he received occupational therapy to assist him in developing his keyboarding skills.

        Petitioners' son was generally successful in his academic achievement during the 1993-94 school year. He apparently did not complete a beginning Spanish course, and in May, 1994, he was placed in an inclusion English class. As described by respondent's CSE chairperson at the hearing, the inclusion class was a mixture of regular and special education students who were taught by a team consisting of a regular education teacher and a special education teacher. The boy's report card indicates that he followed a modified curriculum in his inclusion class. On the CTBS in April, 1994, he achieved grade equivalent scores of 8.7 for total reading, and 7.9 for total mathematics. The boy passed each of his courses, and received grades ranging from 70 for English to 95 for seventh grade mathematics.

        For the eighth grade during the 1994-95 school year, the boy was placed in inclusion classes for English and science. He was also enrolled in a study skills class, which the CSE chairperson described as being similar to a resource room. The boy's IEP for the 1994-95 school year provided that he should have extended time limits on his tests, and that test questions should be read to him and his answers recorded for him. It also provided that the boy was to take tests in a separate location, and that he should use a computer with a "spell check" program. The boy continued to receive occupational therapy, which was provided for 40 minutes per month, with the goal of improving his eye-hand coordination. In January 1995, the boy's occupational therapist reported that he was cooperative, but rapidly lost interest, during therapy. She estimated that he was typing at about 12 words per minute, which was below his handwriting speed. In a subsequent report dated May 12, 1995, the occupational therapist indicated that the boy continued to type at 10-12 words per minute, while his writing speed was 22 words per minute.

        In April, 1995, the boy achieved grade equivalent scores on the CTBS of 6.8 for total reading, and 10.1 for total mathematics. I note that at the hearing in this proceeding, the CSE chairperson testified that the boy's reading score was lower than expected, and that his performance on the CTBS may have been adversely affected by his difficulty in maintaining his concentration. The boy scored above the Statewide reference point on the Regents Preliminary Competency Test in reading. Petitioners' son achieved final grades of 81 for modified English, 82 for modified science, 76 for regular eighth grade social studies, 94 for regular eighth grade mathematics, and 67 for regular eighth grade health. He also earned satisfactory grades in his studies skills course. The boy's occupational therapist recommended that the boy no longer receive direct occupational therapy because his keyboarding skills were adequate to do his written work (Exhibit 16).

        On June 13, 1995, the CSE conducted its annual review of the boy to prepare his educational program for the 1995-96 school year. The CSE recommended that he be enrolled in ninth grade regular education courses, with five periods of resource room per week, while attending respondent's South Campus High School. The boy's IEP for the 1995-96 school year indicated that occupational therapy would be provided on a "consult basis." The IEP also indicated that he should continue to have the testing modifications which were in his previous IEP, and that he should use a computer with spell check. The CSE meeting minutes annexed to the IEP (Exhibit 17) indicate that the boy needed to have a note taker, or have class notes provided to him. I note that at the hearing, the boy's resource room teacher testified that petitioners' son was proficient in using a computer to take notes, and that he used a computer in school to complete more than 50% of his written assignments.

        On March 18, 1996, the boy was re-evaluated by a school psychologist who chose not to administer an IQ test to the boy because his three prior IQ tests had indicated that he was of average intelligence. The school psychologist noted that the boy's academic achievement in reading and writing was significantly below his cognitive ability, while his achievement in mathematics was significantly above grade level. She also noted that the boy did not always know how to relate to peers and adults, and he occasionally tried to get attention in immature and negative ways. The school psychologist indicated that the boy continued to require special support to succeed academically, especially in writing.

        During the 1995-96 school year, petitioners became concerned about their son's educational performance in the ninth grade. They obtained private twice-per-week tutoring for him from March through June, 1996. In April, 1996, the boy was privately evaluated by a psychologist who administered the Wechsler Intelligence Scale for Children-III (WISC-III), on which the boy achieved a verbal IQ score of 80, a performance IQ score of 75, and a full scale IQ score of 76. Those scores were significantly lower than those which the boy had previously achieved on the Wechsler Intelligence Scale for Children-III – Revised (WISC-R) when tested by respondent. The psychologist noted that scores on the WISC-III were typically lower than those achieved on the WISC-R, but she pointed out that the boy's scores on the WISC-III were significantly lower than those of his prior testing. She reported that information processing difficulties and attentional/organizational problems interfered with the boy's performance throughout the test. The psychologist noted that the boy was impatient to get through tasks, and readily quit when responses did not immediately come to mind. He evidenced some difficulty finding appropriate words to use.

        On the Wide Range Achievement Test–III, the boy's single word reading decoding skills were found to be at the fifth grade level, while his spelling was at the second grade level. His arithmetic skills were found to be at the high school level. On the Gray Oral Reading Test–III, he achieved grade equivalent scores of 6.5 for rate, 5.9 for accuracy, and 8.4 for comprehension. The psychologist also reported that the boy had mild difficulty understanding complex syntax, but did not have difficulty understanding conceptually complex language. Although the boy's memory skills were generally good, the psychologist reported that his learning was hindered by inattention and limited reliance upon organizing strategies. The boy produced a brief writing sample for the psychologist, who noted that the writing was barely legible.

        The psychologist noted that the boy processed verbal information slowly, and that he had not mastered the phonetic rules of English. She indicated that the difficulties caused by the boy's learning disabilities were greatly increased by what she described as an attention deficit hyperactivity disorder. She recommended that petitioners consider increasing the boy's dosage of Ritalin. The psychologist opined that the child could benefit from continued help with reading, writing, and arithmetic, as well as help with study skills, in a disciplined, structured, consistent environment which provided much individual attention. The record reveals that the CSE did not have the psychologist's report when it made its recommendation for the boy's educational program for the 1996-97 school year.

        On May 29, 1996, the CSE prepared the boy's IEP for the 1996-97 school year. The CSE recommended that the boy be enrolled in the regular education tenth grade classes and receive five sessions of resource room services per week. It once again recommended that he receive occupational therapy consultant services without specifying the frequency of those services (cf. 8 NYCRR 200.4 [c][2][vi]). There were three testing modifications on the boy's IEP. Time limits were doubled, and words on tests which he could not decode were to be read to him. The third modification was that he was "spelling exempt." His IEP also provided that he was to have access to a computer. The IEP had two annual goals, one related to improving his organizational and study skills, and the other related to exploring post-secondary educational opportunities. Petitioners were not formally notified of the CSE's recommendations until August 30, 1996 (Exhibit 24).

        In June, 1996, petitioners' son passed the Regents Competency Test in Mathematics and Science. At the end of the 1995-96 school year, he achieved final grades of 65 in English 9, 67 in global studies I, 65 in mathematics course I, 72 in physical science, and 84 in keyboarding.

        By letter dated September 9, 1996, petitioners informed respondent that they had enrolled their son in the Forman School, in Litchfield, Connecticut. They indicated that they had just received the boy's IEP from respondent, and had concluded that it was inappropriate for their son. They requested that respondent reimburse them in the amount of $31,374 for the cost of their son's placement at the Forman School for the 1996-97 school year. In a subsequent letter to the CSE chairperson, petitioners indicated that they had had the boy privately tutored in April, May, and June, 1996, and they expressed the opinion that the boy would not have passed his high school courses without that tutoring. They asserted that their son had a developmental language disorder which the CSE had not addressed because it declined to recommend that he receive speech/language therapy.

        On October 16, 1996, the CSE reconvened to consider petitioners' request for tuition reimbursement. Although invited to attend the meeting, petitioners declined to do so. The CSE did not recommend that petitioners be reimbursed, but it did amend their son's IEP. To the IEP's description of the boy's educational achievement and learning rate, the CSE added the words   "written language continues to be the area of disability". It also amended the IEP to indicate that the boy's receptive and expressive language skills were in the average range, and that his adjustment to school and community was inconsistent. It further amended the IEP is to indicate that the boy's hearing was normal and his health/vitality was age appropriate. The IEP was also amended by the addition of two annual goals related to improving the boy's written language skills. The CSE's formal notice of recommendation was not sent to petitioners until on or about January 17, 1997.

        On November 18, 1996, petitioners, through their attorney, requested that an impartial hearing be held. By agreement, the hearing began on February 11, 1997. There were four additional days of hearing. The hearing concluded on September 15, 1997.

        In his decision which was rendered on November 21, 1997, the impartial hearing officer noted that the board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The hearing officer found that the CSE had sufficient information about the boy to prepare his IEP at its May 29, 1996 meeting, and that the IEP which had prepared accurately described his needs, except for an erroneous listing of the child's score for mathematics on the April, 1995 CTBS. However, the hearing officer found that the IEP was defective because it did not include any annual goal or short-term objective for remediating the boy's significant deficits in expressive language. He concluded that respondent had failed to meet its burden of proof with regard to the appropriateness of the educational program which it had offered to provide the boy during the 1996-97 school year.

        The hearing officer further noted that petitioners bore the burden of proof with regard to the appropriateness of the services which they had obtained for their son in the Forman School, for purposes of obtaining an award of tuition reimbursement. He further noted that they were required to demonstrate that the Forman School met their son's special education needs, and that his placement in that facility was consistent with the Federal and State requirement that each child with a disability be educated in the least restrictive environment. The hearing officer found that the record was silent as to whether an appropriate placement was available for the child at a lesser distance from his home, and he concluded that there was no evidence that the child's needs required that he be placed in a residential program in order to benefit from an educational program.

        The hearing officer further determined that equitable considerations did not support petitioners' claim for tuition reimbursement because they had neither asked that the private psychologist who had evaluated the child at petitioners' request in April, 1996 attend the May 29, 1996 CSE meeting, nor had they provided the CSE with a copy of the psychologist's evaluation. He concluded that petitioners had chosen to make the placement and program decisions on their own, and found that the boy's placement should be at their expense.

        A board of education may be required to pay for educational services obtained for a student by the student'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]). Although the Forman School has not been approved by the New York State Education Department to provide instruction to children with disabilities, that fact is dispositive of petitioners' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). Before reaching petitioners' claim, I will first address the issues raised in respondent's cross-appeal, because if respondent prevails in its cross-appeal, petitioners would not be eligible for the relief which they seek.

        Respondent contends that the hearing officer erred by finding that the boy's IEP as drafted on May 29, 1996 was inappropriate because it lacked goals and objectives relating to improving the boy's written language skills. It asserts that the boy's ninth grade reading score on the CTBS was depressed by the deficits in his spelling which were addressed on his IEP by the testing modification which provided that the boy was "spelling exempt." In essence, respondent contends that its CSE addressed the boy's difficulty with spelling by providing that his poor spelling would not be held against him in grading his tests and written assignments. That approach would provide nothing to improve his spelling skills, which were reported to be at a grade equivalent of 2.8. Respondent's argument ignores the fact that the boy's writing difficulties were not limited to his poor spelling skills. When tested by one of respondent's school psychologists in September, 1992, the boy was able to write but a single sentence. Another school psychologist who re-evaluated the boy in March, 1996 noted that he continued to need support, especially in writing. Unfortunately, there is no evidence that the CSE ever formally assessed the boy's writing skills with a test instrument such as the Test of Written Language subsequent to 1992.

        Respondent also argues that whatever defect there may have been in the IEP which was prepared on May 29 1996 was cured by the amendments to that IEP which the CSE made at its meeting on October 16, 1996. At that time, the CSE added two written language annual goals. The objectives for those goals revealed the need to improve the boy's spelling, capitalization, punctuation, grammar, and ability to construct clear, complete and grammatically sentences. Although those objectives may well have been appropriate, I must point out that the IEP in which they appear was not given to petitioners until mid-way through the 1996-97 school year. Consequently, I find that there is no basis for setting aside the hearing officer's finding with respect to respondent's failure to meet its burden of proving that it had offered an appropriate educational program to the boy for the 1996-97 school year.

        Petitioners make various allegations in their petition with regard to actions which respondent took, or should have taken, in the years prior to the 1996-97 school year. I must note that respondent introduced evidence of the due process notices which it had sent to petitioners since 1986, and that petitioners did not deny receiving those notices. Although they now assert that they were not given notice of the due process mechanism for obtaining reimbursement, it is well established that the primary purpose of conducting an impartial hearing is to ensure that a child receives a free appropriate public education (Application of a Child with a Disability, Appeal No. 95-82; Application of a Child with a Disability, Appeal No. 97-33). Parents must promptly resort to the due process procedures, so that school authorities have an opportunity to correct mistakes and omissions in providing children with a free appropriate public education (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir., 1994]). Consequently, I will not consider their many allegations about matters which occurred before the CSE prepared the boy's IEP for the 1995-97 school year, except any which may directly relate to that IEP.

        With respect to the boy's IEP for the 1996-97 IEP, petitioners assert that it did not present an adequate and accurate statement of their son's present levels of performance and individual needs, as required by 8 NYCRR 200.4 (c)(2)(i). While I share some of petitioners' misgivings with respect to the adequacy of the CSE's triennial evaluation of the boy prior to the preparation of his IEP, the question remains whether they are aggrieved by the hearing officer's decision with respect to the IEP, in view of his finding that respondent had not met its burden of proof about the appropriateness of the program which it offered the boy. I find that they are not aggrieved and I will not review the IEP, except as it bears upon the question of the boy's special education needs and the appropriateness of the services provided to him by the Forman School.

        Petitioners challenge the hearing officer's determination that they failed to meet their burden of proving that the services which they obtained for their son from the Forman School were appropriate for him (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). In order to meet that burden, the parents 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, supra370), i.e., that the private school offered an educational program which met the student's special education needs (Application of a Child with a Disability, Appeal No. 94-29). Petitioners assert that they presented "significant" testimonial and documentary evidence supporting the appropriateness of their son's placement in the Forman School.

        The record reveals that the Forman School provides a college preparatory curriculum for students with specific learning disabilities, most of whom attend the school as residential students. The Academic Dean of the school testified that there were from five to eight students in each class, and that multi-sensory instructional techniques were used at the school. Petitioners' son was enrolled in tenth grade English, algebra, biology, history and music theory classes, as well as a language training class. The language training teacher testified that he was providing 1:1 instruction in remedial reading, writing, and study skills to petitioners' son. He opined that most of the boy's learning problems revolved around his attention deficit, and that he didn't appear to have a systematic approach to tasks. The teacher explained that he was trying to provide the boy with a structured approach to writing, and he asserted that the boy was beginning to be a more independent writer, but his output was still low. He further testified that the boy's overall performance had been inconsistent, which was at least partially attributable to his attentional difficulties. The boy was also enrolled in a proctored study hall during the school day, and a mandatory two-hour study hall in the evening. During the fall term of the 1996-97 school year, petitioners' son achieved grades ranging from 75 for history to 90 for algebra.

        Having reviewed the record, I find that the boy's educational performance was impaired by deficits in his ability to maintain attention, process and organize information, and physically write. In determining the extent or severity of those deficits, I must note that although the boy's mother referred to an attention deficit disorder (ADD) in her testimony, and the private psychologist referred to an attention deficit hyperactivity disorder (ADHD), there is no evidence of a formal diagnosis of either ADD or ADHD in the record. The record does reveal that the boy had been taking Ritalin for some time, and that the private psychologist had suggested that the amount of Ritalin might be increased. However, it does not appear from the record that the boy's attentional difficulties were so severe as to require full-time direct special education. The boy's processing and organizational deficits were primarily manifested in his very limited writing proficiency. Although his writing was also hampered by physical deficits, that problem could have been appropriately addressed by the use of a computer. However, his other deficits in writing required, in my judgment, more specialized assistance than the supplementary special education instruction available to him in a resource room. Consequently, I find that he required primary special education instruction in English. However, I do not find that he required such instruction in other subjects. While I have considered the private psychologist's testimony about the boy's reading skills, I must note that her finding that his reading skills were at a fifth grade level is inconsistent with the boy's CTBS scores in previous years, as well as the testimony by the boy's language training teacher at the Forman School. The language training teacher estimated that the boy's reading comprehension skill was at the eighth grade level when he entered the private school.

        In order to prevail on their request for tuition reimbursement, petitioners must show that their son's placement in the Forman School was consistent with the requirement that children with disabilities be placed in the least restrictive environment (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, 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]). The requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). In this instance, I find that petitioners have not met their burden of proof with regard to the appropriateness of the services provided to their son by the Forman School because the boy did not require the full-time primary special education instruction which the private school provided, as evidenced by his success in a regular education setting prior to his placement in the private school. Furthermore, I find that there is no evidence that the boy required a residential placement in order to benefit from his educational program (Application of a Child with a Disability, Appeal No. 95-33).

        While my finding with respect to the second of the three Burlington criteria for an award of tuition reimbursement is dispositive of petitioners' request for that relief, I will briefly address their challenge to the hearing officer's finding with regard to the third criterion, i.e., whether equitable considerations supported their claim for tuition reimbursement. The hearing officer found against petitioners because they did not ask the private psychologist to attend the May 29, 1996 meeting, nor did they submit a copy of the psychologist's report to the CSE. The report was undated, and the boy's mother testified that she had not received it until the end of June or the beginning of July, which was after the CSE had prepared the boy's IEP for the 1996-97 school year. Although the private psychologist testified at the hearing, she was not asked when she had completed her report. Under the circumstances, I cannot agree with the hearing officer that petitioners' failure to provide a copy of the report to the CSE affords a basis for concluding that their claim was not supported by equitable considerations. Although the private psychologist's input at the CSE meeting would have been useful, I do not find that petitioners were obligated to have her attend the meeting, presumably at their expense.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent of his finding that equitable considerations did not support their claim for tuition reimbursement.