98-017

      Petitioners appeal from the decision by an impartial hearing officer which denied petitioners' request for an award of tuition reimbursement for the 1994-95, 1995-96 and 1996-97 school years on the ground that petitioners had failed to demonstrate that their daughter had received any special education service while attending the Randolph School, the private school in which petitioners had unilaterally enrolled the child. The appeal must be sustained in part.

        Petitioners are the child's adoptive parents. Her natural mother was reportedly addicted to crack cocaine, resulting in prenatal damage to the child. The child began living with petitioners when she was five weeks old, and was adopted by them when she was approximately ten months old. She reportedly cried frequently and was very sensitive to her environment as an infant, which petitioners attributed to a crack cocaine withdrawal. In any event, that behavior ceased, and petitioners did not notice any other behavioral problems until they placed the child in a day care program when she was three years old. The child's mother testified at the hearing that the child manifested severe behavioral problems, such as throwing objects and hitting other children, while in the day care program. Petitioners removed her from the day care program and kept her home for the remainder of the year.

        Petitioners enrolled the child in a school which subsequently merged with the Poughkeepsie Day School (Poughkeepsie) for the 1993-94 school year because the school provided a full day prekindergarten program. At the end of that school year, the child was reportedly diagnosed as having an attention deficit hyperactivity disorder (ADHD). At the hearing in this proceeding, one of the child's teachers at Poughkeepsie testified that the child had difficulty making transitions in schools, i.e., changing activities or classes, and that she had difficulty participating in group activities. The child was reportedly sensitive to environmental stimuli, such as a change in lighting or a breeze caused by the opening of a door. She was also reportedly aggressive toward other children.

        In April, 1994, the staff of Poughkeepsie concluded that the child should not return to that school for the 1994-95 school year. By letter dated April 21, 1994 (Exhibit A), two members of the Poughkeepsie staff referred the child to respondent's committee on special education (CSE) for an evaluation. Petitioners gave their consent for an evaluation.

        On May 16, 1994, the child was evaluated by one of respondent's school psychologists, who noted that the child was taking Cylert to control her ADHD, but still had difficulty participating in group activities. However, the child attended to tasks during her testing by the school psychologist. The child's perceptual motor development was found to be slightly above age level. On the WPPSI-R, the child achieved a verbal IQ score of 102, a performance IQ score of 108, and a full scale IQ score of 105. The school psychologist reported that the child had certain deficits typical of crack cocaine babies, such as below age level self-organization, self-initiation and follow through, an impaired ability to concentrate, and heightened responses to internal and external stimuli. She opined that the child could not function in a regular classroom, and recommended that the child be classified as other health impaired and placed in a small group setting, preferably one with an 8:1+1 child to adult ratio (Exhibit 4).

        On July 21, 1994, the CSE recommended that the child be classified as other health impaired, but deferred making an educational program recommendation so that the CSE chairperson and the child's mother could visit some programs (Exhibits F and 21). The child's mother did visit two BOCES special classes and one district class. The CSE also recommended that the child receive a physical therapy evaluation because the child had been born with tibial torsion in both legs and had been receiving physical therapy. The physical therapist who subsequently evaluated the child in October, 1994 concluded that she did not require additional physical therapy. Although the CSE chairperson's letter to the parents indicated that the CSE would reconvene in August, 1994 to make a recommendation for the child's placement in September, 1994, the CSE apparently did not reconvene until February 22, 1995. I note that there is no individualized education program (IEP) for the 1994-95 school year in the record which is before me.

        In September, 1994, petitioners enrolled the child, at their expense, in the Randolph School, which is located in Wappingers Falls, New York. It has not been approved by the New York State Education Department to provide instruction to children with disabilities, and it is therefore not a school with which respondent could have lawfully contracted for the education of petitioners' daughter (see 20 USC 1412 [6]; Section 4402 [2][b][2] of the New York State Education Law). The child continued to attend the Randolph School, at petitioners' expense, during the 1995-96 and 1996-97 school years.

        The CSE met with the child's mother on February 22, 1995. Although respondent's "meeting report back document" for that date (Exhibit J) indicated that a consensus was achieved for implementation/continuation of the child's recommended placement or services, the record does not reveal what that placement was. The comparable document for the next CSE meeting with the child's mother on June 30, 1995 (Exhibit M) indicated that the child's mother reported that the child had done well at the Randolph School and that she wished her daughter to remain in the Randolph School for the 1995-96 school year. The child's mother asked for financial assistance from respondent to pay for the child's tuition at the private school. The IEP which the CSE prepared for the child on June 30, 1995 indicated that she should remain classified as other health impaired, but that her placement was to be determined. However, I note that the IEP indicated that the child would participate in all areas of regular education during the 1995-96 school year. Her special education program was described on the IEP as being transitional support (see 8 NYCRR 200.1 [pp]). Although the IEP identified the child's management needs, it did not address these needs. The CSE recommended that the child's physical therapy needs be monitored, and that a psychological consultation be provided to her "as needed." In an explanatory section at the end of the child's IEP, the CSE indicated that the child's psychoeducational evaluation would be updated, after which the CSE would reconvene. I must also note that the mandatory parent member of the CSE was apparently not present at the June 30, 1995 CSE meeting (Exhibit 10).

        On July 19, 1995, the child's mother advised the CSE chairperson that she was dissatisfied with the outcome of the CSE meeting on June 30, 1995, and she requested that her daughter be independently evaluated. Thereafter, the child's mother reportedly telephoned the CSE chairperson to schedule a mediation session (see Section 4404-a of the Education Law). Although the CSE reportedly met with the child's mother on August 28, 1995, the meeting report back document for that date (Exhibit X) did not indicate that the CSE took any action on that date. On September 20, 1995, the child's mother requested mediation in writing. There is no evidence in the record that her request was honored.

        One of respondent's special education teachers observed the child in her combination first and second grade classroom at the Randolph School on February 13, 1996 and March 18, 1996. The special education teacher reported that the child was focused and actively participated during her first observation, and was physically very active but not involved with the lesson being given during her second observation. She noted that two new students and a teaching assistant had been added to the child's class between her observation visits, and reported that the child appeared to have a difficult time with transitions and changes in routine. The child's alphabet sound/symbol awareness was reported to be inconsistent and she reportedly had a minimal sight word vocabulary. The special education teacher described the child as a beginning reader. On the Test of Early Reading Ability – 2 (TERA-2), the child's raw score of 18 was equal to a percentile rank of 7. The child wrote legibly, but was resistant to writing. Respondent's special education teacher concluded that the child had difficulty with written language and appeared to be dependent upon adults. However, the child worked well in a 1:1 setting and interacted appropriately with her peers. In her report dated March 29, 1996, the special education teacher opined that the most appropriate classroom setting for the child would be a class with instruction at an early first grade level and a clear and consistent daily routine (Exhibit 8).

        Respondent's school psychologist observed the child in class on October 20, 1995 and March 18, 1996. He reported that the child had been cooperative and attentive during a 30-minute lecture on rock climbing when she was observed in October, but that her behavior was quite different during the March, 1996 observation, when the child wandered around the room and refused to participate in certain class activities. He indicated that the child appeared to feel most comfortable and performed best in a well structured and predictable environment. Although unexpected changes in routine continued to be difficult for her, she had reportedly demonstrated that she was capable of making significant transitions if she was briefed on what to expect and had an opportunity to rehearse the transition. Analyzing the responses by the child's teacher and the child's mother to a behavioral checklist which was given to them, the school psychologist noted that there was evidence of social withdrawal and nervous over-activity. The school psychologist recommended that the child be placed in a structured classroom setting which had clear and consistent expectations. He also suggested that counseling be considered for the child.

        On June 17, 1996, the CSE conducted its annual review of the child to prepare her IEP for the 1996-97 school year. I note that the mandatory parent member did not attend the CSE meeting. The IEP which the CSE prepared on that date indicated that the child would remain classified as other health impaired, and would receive resource room/consultant teacher services for 90 minutes each day while attending the Randolph School during the traditional 10-month school year. The CSE also recommended that she receive 90 minutes of such services three times per week during the summer of 1996. However, the parties failed to agree upon a specific program for the summer. The child's IEP included various annual goals for improving her academic skills and her social/emotional skills. At the hearing in this proceeding, the CSE chairperson testified that the child's mother had not objected to her child's IEP, but had indicated that she would not place the child in a public school because of the size of the elementary classes in such schools.

        During the 1996-97 school year, a consultant teacher employed by respondent worked with the child at the Randolph School three times per week for approximately 90 minutes. The child worked on activities which the consultant teacher had coordinated with the child's regular teacher. The CSE reconvened on November 7, 1996, approximately two months after the child had begun the second grade at the Randolph School. At the request of the child's mother, the CSE amended the IEP to specify a maximum group size of five for her child's resource room program. The CSE also deleted a reference to having a psychological evaluation performed, but did not otherwise change the child's IEP. The child's mother requested that respondent reimburse petitioners for the cost of the child's tuition at the Randolph School. She was advised by the CSE chairperson that respondent would not do so because the private school was not approved by the State Education Department as a school for children with disabilities, and because the CSE's recommendation was only for resource room/consultant teachers services in conjunction with a regular education program. A notation on the IEP indicated that after the CSE meeting, the child's mother had requested that an impartial hearing be held for the purpose of obtaining tuition reimbursement for the 1996-97 and preceding school years (see also IHO Exhibit 3).

        On January 15, 1997, the CSE met again and amended the child's IEP for the 1996-97 school year to specify that she should be enrolled in the second grade of respondent's Ralph R. Smith Elementary School. The CSE also reduced the amount of resource room/consultant teacher services for the child from 90 minutes per day to five hours per week, and amended the IEP to provide for only a 10-month program. The minutes of the CSE meeting indicated that the CSE wanted to update its assessment of the child's educational performance, and that the child's mother had agreed to postpone the requested hearing to review the results of the updated assessment.

        The child's triennial psychological evaluation was performed at the end of January, 1997. Respondent's school psychologist reported that he had observed the child in class on two occasions in January, and that her behavior was appropriate on each occasion, notwithstanding the high noise level and unstructured activities which occurred during the second occasion. He noted that the child had consistently stated that she did not know how to read and could not spell when asked to complete tasks which required reading or writing during the evaluation. The child achieved a verbal IQ score of 91, a performance IQ score of 103, and a full scale IQ score of 96, with little "scatter" or variation in her subtest scores. On the Woodcock Johnson Test of Achievement – Revised, the child achieved grade equivalent scores of 1.0 for letter-word identification, 1.6 for word attack, K.0 for passage comprehension, 1.2 for mathematical calculation, 1.2 for applied problems, K.7 for dictation (spelling), 1.0 for writing samples, 2.5 for science, 3.1 for social studies, and 2.3 for the humanities. The school psychologist noted that while the child had appropriately developed her knowledge of general information in the content areas, she manifested significant deficits in the areas of reading, writing, and mathematics. He opined that the classification of learning disabled would be more appropriate for the child than her present classification of other health impaired. He also recommended that the child be placed in a regular education classroom, with academic remediation provided through either resource room or consultant teacher services. Although he did not recommend that she receive counseling, the school psychologist suggested that a school psychologist and the child's teachers should work together to develop strategies to allow the child to become more self-confident and willing to take risks in learning. Respondent's special education teacher who had previously evaluated the child observed her in her classroom on February 4, 1997 reported that the child appeared to be happy in the classroom setting and had interacted appropriately with adults and peers.

        A CSE reviewed the reports by respondent's staff on February 4, 1997 when it amended the child's IEP to provide that she be classified as both other health impaired and learning disabled. The CSE also increased the amount of the child's resource room/consultant teacher services to seven and one-half hours per week. However, the CSE meeting minutes indicated that the increase in service would occur only if the child was placed in respondent's schools. The minutes also indicated that the child's mother requested that the CSE recommend that her child be educated in a regular education class with no more than 12 children, but that the CSE could not agree to that request because respondent's regular education classes ranged between 22 and 28 students.

        The child's mother asked that the previously requested hearing be scheduled. When the hearing began on April 16, 1997, respondent's attorney at that time made a motion to limit the scope of the hearing to the 1996-97 school year, on the ground that petitioners' request for tuition reimbursement for prior school years was untimely, and to dismiss petitioners' claim for reimbursement for the 1996-97 school year on the ground that the Randolph School had allegedly not provided any service to the child which addressed her special education needs. The hearing officer denied respondent's motion with respect to the 1996-97 school year, and took the remainder of its motion under advisement. On May 13, 1997, the hearing officer granted respondent's motion with respect to petitioner's tuition claims for the 1994-95 and 1995-96 school years. Petitioners appealed from the hearing officer's order. In Application of a Child with a Disability, Appeal No. 97-41, I sustained petitioners' appeal on the ground that there were factual questions which could not be determined until both parties had the opportunity to present evidence concerning those questions.

        The hearing, which had resumed on May 22, 1997 before my decision in that appeal was rendered, continued for three additional days in the fall of 1997. It ended on December 2, 1997. In a decision dated February 18, 1998, the hearing officer noted that 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]).

        The hearing officer further noted that respondent's case had been largely about the manner in which it had sent due process notices to the petitioners. He found that respondent had failed to meet its burden of proving that it had offered to provide an appropriate educational program to the child during the school years in question. With respect to the second criterion for an award of tuition reimbursement, i.e., whether the services provided by the Randolph School were appropriate to meet this child's needs, the hearing officer found that there was nothing in the record before him which indicated that anyone at the private school had the experience or training to deal with a child who had been classified as a child with a disability. He further found that the private school did not offer any real remedial help or intervention to assist the child in overcoming her deficits. He noted that the child's mother claimed that her child should not have been classified, and pointed out that if that were the case, there would be no entitlement to tuition reimbursement. The hearing officer denied petitioners' request for tuition reimbursement for each of the three years in question, without reaching the last of the Burlington criteria for such an award, i.e., whether equitable considerations support their claim for reimbursement.

        Respondent has not appealed from the hearing officer's finding that it had failed to meet its burden of proving that it had offered to provide an appropriate educational program to the child during the school years in question. Therefore, the hearing officer's determination is final on that issue, and will not be reviewed in this appeal. Similarly, I note that neither party disputes the appropriateness of the child's classification as other health impaired and learning disabled, which I also do not review (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        Petitioners appeal from the hearing officer's determination that they had failed to prove that the educational services provided by the Randolph School during the 1994-95, 1995-96, and 1996-97 school years were appropriate to meet their child's needs. In order to meet their burden of proof, petitioners 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).

        The child's special education needs were at the least initially less academic than behavioral. Her distractibility, emotional outbursts and limited interaction with other children made it difficult for her to be instructed in a traditional elementary school setting. Although the record includes evidence of her needs during the 1993-94 school year prior to her entry into kindergarten in the Randolph School, there is virtually no evidence of how her needs were addressed by that school during the 1994-95 school year. Most of the evidence about the Randolph School which is in the record before me was provided by the testimony of the child's teacher for the first and second grades during the 1995-96 and 1996-97 school years, respectively. While the child's mother testified that there were seven children in her daughter's kindergarten class, and that her daughter received much 1:1 assistance while in kindergarten, there is no written report by the child's kindergarten teacher and no data by which the child's advancement in educational performance could be ascertained. In the absence of such evidence, I am compelled to find that there is no basis in the record for concluding that petitioners have met their burden of proof with respect to the appropriateness of the educational services provided by the Randolph School during the 1994-95 school year.

        The child's mother testified that her daughter began to interact more with other children during the 1995-96 school year. The child's teacher testified that she had allowed the child to work alone at times, and that her behavior was generally good. However, the child withdrew from activities and hid behind objects for approximately four weeks after two more children joined the class of eight or nine first and second graders. Although the teacher provided group instruction to her students, she testified that she had individualized her lessons to meet the students' needs. She further testified that she had used both the whole language and the phonics approaches to reading. However, petitioners' child made slow progress in reading during the 1995-96 school year. Nevertheless, the teacher believed that the child's delay in reading during the first grade did not warrant her removal from that school. Respondent's school psychologist reported that the child required a structured school setting with a high teacher-pupil ratio. Given that the child's educational needs at that point were still primarily emotional and social, I find that there is sufficient evidence that the small class size and individual attention which the Randolph School provided to the child during the 1995-96 school year were appropriate for meeting those needs. Therefore, I find that petitioners have met their burden of proof with respect to the appropriateness of those services for that school year.

        During the 1996-97 school year, the child interacted regularly with her peers. Her teacher testified that the child had only one behavioral outburst during the 1996-97 school year. The consultant teacher employed by respondent to instruct the child testified that the Randolph School provided a good learning environment for the child. The consultant teacher explained that, although the child continued to have difficulty learning to read, she was afforded the opportunity to learn despite that difficulty because of the supportive environment which the Randolph School provided. In her written report to respondent's CSE in January, 1997 (Exhibit 18 C), the consultant teacher indicated that the child's placement at the Randolph School, with its rich curriculum and encouragement of varied approaches and learning styles, supported the child's academic strength, i.e., her ability to acquire information. I find that the consultant teacher's report is supported by the results of the standardized achievement testing reported by respondent's school psychologist (Exhibit 18). Despite her weaknesses in the basic academic skills, the child was at or above grade level in science, social studies, the humanities, and broad knowledge on the Woodcock Johnson Test of Achievement – Revised. Upon the record before me, I find that petitioners have met their burden of proof with regard to the appropriateness of the services provided by the Randolph School during the 1996-97 school year.

        The last issue to be determined in whether equitable considerations support petitioners' claim for tuition reimbursement for the 1995-96 and 1996-97 school years. As noted above, respondent has contended that petitioners' claim with respect to the 1995-96 school year is barred by the equitable doctrine of laches. Respondent introduced evidence of the due process notices which were reportedly sent to the petitioners beginning in 1994, e.g. Exhibits 2, 20 and 21. The child's mother admitted receiving Exhibit 20, which was a letter which was sent to her in response to the child's initial referral to the CSE. That letter referred to a description of a parent's due process rights (Exhibit 2) which was reportedly enclosed in the envelope with Exhibit 20. Exhibit 21, which was a letter sent to the child's parents after the CSE's initial recommendation in July, 1994, also referred to and was reportedly accompanied by a description of due process rights. Respondent offered similar evidence of letters which were sent to petitioners after the subsequent recommendations by the CSE. Although respondent has established that petitioners were advised of their due process rights, including the right to request a hearing, the matter does not end there. The CSE chairperson during the 1995-96 school year testified that the child's mother had first raised the issue of tuition reimbursement during the 1994-95 school year (see also Exhibit M). The child's mother testified that she orally requested a hearing in July, 1995, because she was dissatisfied with the recommendation which the CSE made in June, 1995 for the 1995-96 school year. She further testified that the CSE chairperson suggested that the parties pursue mediation. However, there was no follow-up by respondent on the chairperson's suggestion for mediation. The child's mother also testified that she asked the CSE chairperson for help for the child during the 1995-96 school year, but did not receive any assistance until the chairperson offered to provide a summer reading program at the end of the school year. Respondent did not rebut the mother's testimony. There is no evidence in the record that petitioners did not cooperate with the CSE at all times during the 1995-96 and 1996-97 school years. I find that equitable considerations support petitioners' claim for tuition reimbursement for both school years.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that it denied petitioners' claim for tuition reimbursement during the 1995-96 and 1996-97 school years; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their reasonable expenditures for their daughter's tuition at the Randolph School during the 1995-96 and 1996-97 school years, upon presentation of proof of payment for such tuition.