98-025

       Petitioner appeals from the decision of an impartial hearing officer which held that the individualized education program (IEP) for the 1997-98 school year developed by respondent's committee on special education (CSE) was appropriate for her son. Petitioner further appeals from the hearing officer's determination that she was barred from seeking the remedy of tuition reimbursement because her son had never received special education and related services under the authority of a public agency as required by Section 1412 (a)(10)(C)(ii) of the Individuals With Disabilities Education Act (IDEA). Additionally, petitioner appeals from the hearing officer's finding that the "pendency placement" of her son for purposes of this proceeding was not the private school in which she had unilaterally enrolled him. The appeal must be sustained in part.

        Preliminarily, I will address the procedural issues raised in this appeal. Petitioner asserts that the hearing officer failed to render a decision within 45 days of her request for a hearing. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512[a]; 8 NYCRR 200.5[c][11]). Petitioner's initial request for a hearing was dated September 8, 1997. The hearing officer initially scheduled the hearing for October 24, 1997, but it did not commence until December 17, 1997. Petitioner made a second request for a hearing which was received by respondent on January 8, 1998. The parties agreed to consolidate the January 8, 1998 request into the proceeding which began on December 17, 1997. The hearing concluded on February 9, 1998, at which time the hearing officer indicated that after receipt of the transcript he would schedule a date for submission of post-hearing memoranda. The hearing officer received the post-hearing memoranda on March 23, 1998 and rendered his decision on March 28, 1998. In his decision, he indicated that all adjournments were granted for the scheduling convenience of the parties. The hearing officer's decision was rendered five days after the date by which the parties agreed to submit post-hearing memoranda. Upon the information before me, I find that petitioner's claim regarding the 45 day rule is without merit.

        Petitioner's son began attending respondent's schools in the first grade, where he reportedly had difficulty paying attention. He also was placed in a remedial reading program during first grade. His teacher recommended that he repeat first grade. However, petitioner removed her son from respondent's schools, and placed him in a private school for the second and third grades, where he reportedly continued to have academic difficulties. In a speech language assessment conducted on April 29, 1993, when the child was in the third grade, the child's receptive and expressive language skills were found to be at or above age level. The evaluator did not recommend that the child receive any speech/language therapy.

        On May 27, 1993, petitioner had her son privately evaluated by a psychologist because she was concerned about his reading and writing skills, and his poor academic performance. The child's mother advised the psychologist that she also was concerned about her son's self-concept because he frequently put himself down and commented that he hated school. The psychologist noted that the child was distractible during the testing session. On the WISC-III, the child achieved a verbal IQ score of 104, a performance IQ score of 100, and a full scale IQ score of 102, placing him in the average range of intellectual functioning. While no auditory or visual processing deficits were evident, the psychologist noted that visual motor speed was an area of weakness for the child, and she opined that distractibility was the primary factor interfering with his performance. The psychologist reported that the child's Bender Gestalt designs were neatly organized and carefully executed, indicating that his visual perceptual skills were age appropriate. She noted that a poor self-concept and feelings of inadequacy were reflected in the child's projective drawing. The psychologist concluded that the child needed a structured classroom where the routine and rules were clearly communicated. She further noted the possibility of an Attention Deficit Hyperactivity Disorder (ADHD). The psychologist recommended the use of tactile management techniques. Additionally, she suggested that the child participate in a social skills program to help him improve his peer interaction.

        While there is little information in the record regarding the child's early history with respondent's CSE, he was apparently referred to the CSE toward the end of his third grade year. The CSE classified the child as other health impaired prior to his entry into the fourth grade. Petitioner believed that her son's IEP was inappropriate, and unilaterally enrolled her son at the Kildonan School (Kildonan), for the fourth grade during the 1993-94 school year. Kildonan, which is a private school in Amenia, New York, has not been approved by the New York State Education Department to provide special education. The child remained at Kildonan for the fifth and sixth grades.

        In March, 1996 when the child was in the sixth grade at Kildonan, the CSE conducted the child's triennial evaluation. The triennial evaluation indicated that the child's peer interaction had improved, and that his adult interactions were appropriate. It further indicated that the child took Ritalin twice per day. The CSE recommended that the child remain classified as other health impaired, reportedly because he evidenced signs of a learning disability and Tourette's Syndrome. I must note that there is no evidence of a formal diagnosis of Tourette's Syndrome in the record, although the parties appear to agree that the child has or has had, that disorder. Similarly, I note that there is no evidence in the record that the child has been formally diagnosed as having ADHD, although there are references to his taking the drug Ritalin. The CSE also recommended that the child receive one period of resource room daily. Petitioner chose to continue her son's unilateral placement in Kildonan.

        On March 18, 1997, the child was observed by the district's psychologist in a literature class at Kildonan during which the teacher read a book to the class and then asked the students to write an essay about the book. Respondent's psychologist reported that the child started to write, then picked up the book and paged through it. The psychologist noted that the child wrote a few sentences in large handwriting that took up half of the page. Respondent's school psychologist administered a standardized achievement test, the WIAT, to the boy in April, 1997 as he neared the end of sixth grade. The child achieved grade equivalent scores of 3.8 in basic reading, 4.5 in reading comprehension, and 5.1 in written expression. His composite score for reading was at a 4.1 grade equivalent.

        The district's psychologist completed a psychological evaluation of the child on June 18, 1997. The psychologist noted that the child had a difficult time keeping on task toward the end of the session, but that he persisted and was able to complete the testing. On the WISC-III, the child achieved a verbal IQ score of 104, a performance IQ score of 100, and a full scale IQ score of 102, placing him in the average range of intellectual functioning. The psychologist noted that these scores were consistent with the results of the testing in May, 1993. The psychologist further noted that the child's score was lower than expected on tasks requiring attention, concentration, arithmetic skills, and perceptual motor skills. However, the child performed well on a task assessing his vocabulary development. The psychologist reported that while the child's Bender reproductions were age appropriate, he demonstrated difficulties with impulse control. He concluded that the child would be eligible for special education services.

        Petitioner completed a social history update form on June 18, 1997. She indicated that her son had asthma and Tourette's Syndrome, but that his overall health was good. In an end of the year report card from Kildonan prepared in June, 1996 the child's teachers' consistently commented that the child did not put forth his best efforts, and that he was inconsistent in completing his assignments and was inattentive in class.

        A private psychoeducational evaluation was completed by a psychologist on August 8, 1997. On the Stanford-Binet Intelligence Scale-Fourth Edition, the child obtained a verbal reasoning standard age score of 111, a quantitative reasoning standard age score of 99, an abstract/visual reasoning standard age score of 93, and a short-term memory standard age score of 96. The child's overall composite standard age score of 100 placed him in the average range. The child demonstrated a relative weakness on tasks of visual discrimination and visual memory. The psychologist opined that such weaknesses appeared to be the result of intrinsic difficulties which the child had in processing visually presented information. The psychologist indicated that the difficulty was pronounced when the child did not have verbal cues on which to rely, or when he was not allowed to make a verbal response. On the Woodcock-Johnson Tests of Achievement, the child achieved a broad reading standard score of 93, representing a grade equivalent score of 6.3, which is in the average range of reading skills. The child's dictation skills were assessed to be in the very low range, a grade equivalent score of 3.1. The child achieved a grade equivalent score of 5.6 on writing samples, placing him in the average range. On the written language subtests, the child's performance was in the low range.

        Based on the child's performance on the Boder Test of Reading and Spelling Patterns, the psychologist indicated that the child manifested a weakness in visual perception and memory for letters and whole-word configuration which resulted in a disability in developing a sight word vocabulary. The psychologist further indicated that the child exhibited a relative strength in his ability to utilize auditory decoding, i.e. he was able to use phonic skills in reading. He noted that the child's performance improved when he used his auditory/verbal skills. The psychologist indicated that the child exhibited both a specific learning disability and a health impairment, which he did not identify. He concluded that the child required a small class setting with students of equal or higher verbal ability with similar visual processing deficits that could accommodate his need to utilize his auditory/verbal skills as an aid to reading and spelling. The psychologist recommended that that the child participate in after-school opportunities to continue to develop social competence in a guided environment.

        During the 1996-97 school year, petitioner instituted a due process proceeding to receive reimbursement by respondent for her expenditures for her son's tuition at Kildonan during the 1993-94, 1994-95, 1995-96, and 1996-97 school years. In August, 1997, petitioner and respondent entered into a stipulation wherein respondent agreed to reimburse petitioner for the cost of her son's tuition at Kildonan for the 1996-97 school year, in settlement of petitioner's claim for all four years of tuition reimbursement.

        The CSE met on August 25, 1997 to prepare the child's IEP for the 1997-98 school year. The CSE recommended that the child be classified multiply disabled and that he be placed in regular education classes with resource room services five periods per week. The CSE further recommended that the child receive counseling twice per month for forty-minute sessions, various testing modifications, including access to a computer, and the use of a spell checker. The IEP indicated that the child's regular education program would include remedial reading, math lab and an English class which was to be co-taught by a special education teacher. The child's IEP included a special notation that the child learned very well auditorily, but had deficits in reading and written comprehension, as well as organization and planning and general study skills. The IEP further provided that the child would benefit from a multi-modal instructional approach.

        On September 8, 1997, petitioner advised respondent that she objected to the CSE's recommendations and requested an impartial hearing. Additionally, she demanded that her child remain at Kildonan, which she asserted was his pendency placement (see 20 USC 1415 [j]; Section 4404 [4] of the Education Law). The hearing in this proceeding began on December 17, 1997. Respondent moved to dismiss petitioner's claim for tuition because the child had never received special education or related services under the authority of a public agency as required by Section 1412 (a)(10)(C)(ii) of the IDEA. On December 18, the hearing officer granted respondent's motion to dismiss petitioner's claim for tuition reimbursement, upon a finding that the child had not received special education while previously enrolled in respondent's schools, and had not received special education or related services from respondent while attending either of the two private schools in which he had been enrolled since leaving respondent's schools. However, he held that petitioner was entitled to challenge to her son's IEP. The hearing officer offered to write an expedited decision to give petitioner the opportunity to appeal his order on the condition that the hearing would be suspended pending receipt of a decision from the State Review Officer. Petitioner, however, chose to proceed with the hearing.

        On December 19, 1997, petitioner advised respondent that her son would be entering its school on January 5, 1998. The child attended regular classes in respondent's middle school on January 5 and 6, 1998. During that two-day period, he had one session of resource room. The child reportedly attended respondent's middle school for that brief period for the purpose of attempting to overcome the defense which respondent had raised that petitioner was not entitled to an award of tuition reimbursement because her son had not received special education from respondent. Petitioner requested another CSE meeting which was convened on January 8, 1998. The CSE reviewed the child's IEP, but it did not make any programmatic or placement changes. Petitioner objected to the CSE's action, and requested another impartial hearing. Petitioner also advised respondent that she would be seeking an alternative placement for her son, who returned to Kildonan. At the request of the parties, the hearing officer consolidated both hearing requests into one proceeding which resumed on January 28, 1998.

        The hearing concluded on February 9, 1998. On March 28, 1998, the hearing officer rendered his decision. He found that the child's classification as multiply disabled was not at issue. The hearing officer further found that the boy's IEP adequately described his abilities and needs, and provided for an educational program which appropriately addressed those needs, with appropriate annual goals and short-term instructional objectives. He also found that the boy would have been appropriately grouped for instructional purposes in respondent's resource room. With regard to the boy's temporary placement for two days in respondent's schools on January 5 and 6, 1998, the hearing officer held that petitioner had not overcome the statutory bar to her claim for tuition reimbursement. The hearing officer further concluded that the stipulation that the parties entered into in August, 1997 did not constitute a private placement agreement between the parties as respondent did not concede that Kildonan was an appropriate placement for the child. Accordingly, the hearing officer concluded that Kildonan did not constitute the child's pendency placement.

        Petitioner appeals from the hearing officer's decision. She argues that her son's IEP was inappropriate, that she is entitled to an award of tuition reimbursement, and that Kildonan was the child's pendency placement. 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). This child's IEP included his standardized test scores from evaluations conducted in April, 1997 and August, 1997, both of which show that the child was functioning below grade level in reading and written language. The IEP reflected the results of the child's private evaluation, as well as the reports by his teachers at Kildonan about his performance. The evaluation conducted by the private psychologist in August, 1997 indicated that the child had deficits in processing visually presented information. The IEP also noted concerns regarding the child's organization, planning and general study skills. I find that the IEP accurately reflected the results of the child's evaluations.

        Petitioner argues that the IEP is deficient in that it fails to reflect the child's Tourette's Syndrome and ADHD. However, as noted above, there is no evidence that the child has been formally diagnosed as having either condition, or of the specific impact which either condition has on the child's education. The district's psychologist who conducted the classroom observation did not indicate that he observed the child exhibiting behaviors typical of a child with Tourette's Syndrome, such as tics and inappropriate language. Furthermore, none of the child's teachers at Kildonan included comments regarding the child's Tourette's syndrome in his June, 1997 report card, nor did the teachers at respondent's school who instructed the child in January, 1998. The consultant teacher for the child's English class testified that she did not notice any behavior that was disconcerting, and that the child appeared relaxed in class. Similarly, there is no evidence in the record that the child's ADHD affected his education. In fact, the IEP includes a notation that the child takes Ritalin and that he benefits from it. The remedial reading teacher testified that she did not notice any characteristics of ADHD in the child on the day he attended her remedial reading class. Neither the district psychologist nor the private psychologist reported that the child's ability to learn was affected by either his Tourette's Syndrome or ADHD.

        A child's IEP must indicate what his or her needs are with respect to academic development , learning style, social development, physical development, and management needs (8 NYCRR 200.4 [c][2][i]). I find that this child's IEP for the 1997-98 school year met that requirement. In doing so, I am aware that petitioner contends that the CSE failed to disclose what the child's multiple disabilities were, and how they impacted upon his learning. Petitioner's attorney indicated at the hearing that the validity of the child's classification was being challenged (Transcript, pages 76-78). She informed the hearing officer that petitioner sought a classification of learning disabled. The hearing officer nevertheless concluded that the child's classification as multiply disabled was not at issue. In her petition, petitioner does not explicitly request that this portion of the hearing officer's decision be annulled. While I agree with petitioner that there is little evidence to support a classification of multiply disabled (see 8 NYCRR 200.1 [mm][8]), I must point out that since this boy's IEP does adequately identify his special education needs, I could not find that respondent had failed to offer to provide an appropriate program simply because its CSE classified the boy as multiply disabled.

        I further find that the IEP includes annual goals and short-term instructional objectives that address the child's deficits. The record shows that the child's primary academic deficits were in the areas of reading and written language. In addition, he has exhibited organizational difficulties, such as failing to complete homework assignments. The IEP includes three reading goals and over ten objectives focusing on decoding skills, reading comprehension and improving independent reading skills. It also includes three written language goals and five objectives focusing on the improvement of the mechanics of written language, written expression and dictation. Additionally, the IEP includes a goal for the improvement in organization and study skills, and two social/emotional goals. The latter two goals were to be addressed through the counseling which the CSE recommended.

        In order to address the child's special education needs, the CSE recommended that the child receive five periods of supplemental instruction in a resource room per week, with the related service of counseling two times per month for 40 minute sessions. Although the school district psychologist member of the CSE testified that the child would receive consultant teacher services from the special education teacher who was assigned to co-teach the child's regular education English class, I must note that the CSE failed to indicate on the IEP that the child would receive consultant teacher services, or the amount of those services (cf. 34 CFR 300.346 [a][3]; 8 NYCRR 200.4 [c][2][vi]). Moreover, I am unpersuaded by the special education teacher's testimony that she would be specifically addressing the child's deficits in reading and writing, apart from suggesting curriculum and testing modifications for the English class (Transcript, pages 162-163). I must note that the resource room teacher testified that she would have been responsible for all of the objectives on the child's IEP (Transcript, pages 357-358). She stated that she has designated days for the various subject areas, would obtain teachers notes in advance, and would provide one-on-one assistance to the students in her class.

        While I recognize that respondent has not had a meaningful opportunity to attempt to remediate the child's deficits with the CSE's recommended educational program. I must nevertheless determine whether the recommended program would have afforded the child a reasonable opportunity for achieving his IEP goals and objectives. Upon the record which is before me, I am unable to find that the recommended educational program would have done so. This child had significant deficits in reading and writing which, in my opinion, required the use of some primary instruction in special education. The recommended resource room program could not, by definition, provide such primary instruction (8 NYCRR 200.1 [hh]). Respondent proposed to address the child's reading needs with a multi-sensory remedial reading program. Even if this had been helpful, it would not have addressed the child's writing needs. Therefore, I must disagree with the hearing officer's conclusion, and find that respondent did not meet its burden of proving that it had offered to provide a free appropriate public education to the child for the 1997-98 school year.

        Petitioner seeks the remedy of tuition reimbursement. 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]).

        I have found that petitioner has prevailed with respect to the first Burlington criterion for an award of tuition reimbursement. The burden of proof would shift to petitioner for the second criterion, i.e. whether the services which the child received from Kildonan during the 1997-98 school year met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). However, petitioner was precluded by the hearing officer from doing so because he held that she was barred by the provisions of the amended IDEA Section 1412 (a)(10)(C)(ii) (20 USC 1412 [a][10][C][ii]), from obtaining an award of tuition reimbursement. Petitioner challenges the hearing officer's conclusion. She argues that the amended Section 1412 (a)(10)(C)(ii) should not be construed as barring a hearing officer or the State Review Officer from fashioning an appropriate remedy, including tuition reimbursement.

        The statute, as amended in June, 1997, reads as follows:

"(ii) Reimbursement for private school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment."

        At the hearing, respondent argued, and the hearing officer agreed, that this statute limits an award of tuition reimbursement to a case in which a child has previously received special education and related services from a public agency, such as a school district. Petitioner's child had not received special education and related services from any public agency, except for the two-day period in January, 1998. Petitioner's attorney indicated at the hearing that the child would be placed in respondent's schools for that exceedingly brief period of time to overcome the statute's alleged bar to her receipt of tuition reimbursement (Transcript, pages 68-69).

        I must note that I am unaware of any judicial decision construing the statute. I have considered House Report No. 105-95 with regard to the bill which became the IDEA Amendments of 1997. The relevant portion of that report indicated that:

"Section 612 [20 USC 1412] also specifies that parents may be reimbursed for the cost of a private educational placement under certain conditions (i.e., when a due process hearing officer or judge determines that a public agency had not made a free appropriate public education available to a child, in a timely manner, prior to the parents enrolling the child in that placement without the public agency's consent). Previously, the child must have had received special education and related services under the authority of a public agency."

        The new Federal Regulations, which will not take effect until May 11, 1999, do not offer any guidance on the question. The question which I have to decide is whether the inference which the hearing officer made was correct. The statute affirmatively provides that an award of tuition reimbursement may be made in certain circumstances. The inference is that if those circumstances are not present, i.e., the child has not previously received special education from a public agency, the parent cannot receive an award of tuition reimbursement. Absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district. The authority for the remedy of tuition reimbursement is in 20 USC 1415, which was not amended to limit such relief.

        The final issue that I must address is whether Kildonan was the child's pendency placement when this proceeding began. The hearing officer found it was not, and I concur. Pursuant to Federal and State law, a child with a disability must be maintained in his or her then current educational placement until any due process proceeding has been completed, unless the child's parent and the school district agree upon another placement (20 USC 1415 [j]; Section 4404 [4] of the Education Law). The term "then current educational placement" means the child's last mutually agreed upon placement at the moment when a due process proceeding is commenced. In this instance, the child had attended Kildonan since the 1993-94 school year, having been unilaterally placed there by petitioner. Petitioner argues that Kildonan is the last mutually agreed upon placement by virtue of the August, 1997 stipulation. Petitioner acknowledged in the stipulation that her claim for tuition reimbursement for the 1993-94 , 1994-95, and 1995-96 school years was untimely, while respondent acknowledged that it had failed to offer the child a free appropriate public education for the 1996-97 school year. Respondent agreed to pay petitioner a sum of money for the child's tuition during the 1996-97 school year, and the parties agreed that the CSE would reconvene before the start of the 1997-98 school year to develop a "proper IEP". In cases involving stipulations between parents and boards of education, the determinative issue is whether the stipulation was explicitly limited to a specific school year or definite time period (Evans v. Board of Ed. Rhinebeck CSD, 921 F. Supp. 1184 [S.D. N.Y., 1996]). Here, the parties' stipulation was intended to settle their differences with respect to the 1993-94, 1994-95, 1995-96, and 1996-97 school years. While they referred to the fact that the CSE would meet before the 1997-98 school year, which it did, they did not evidence any agreement to continue the child's attendance at Kildonan during that school year. Under the circumstances, I am unable to find that Kildonan is the pendency placement.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent indicated; and,

IT IS FURTHER ORDERED that within 10 days after receipt of a request from petitioner for a hearing, respondent shall schedule an impartial hearing which shall be limited to the second and third criteria for an award of tuition reimbursement for the 1997-98 school year.