98-028

       Petitioner appeals from the decision of an impartial hearing officer which found that there was insufficient evidence in the record to support the classification of petitioner's son as learning disabled, and which denied petitioner’s request that respondent be ordered to reimburse petitioner for the cost of her son’s tuition at the Windward School (Windward), a private school in White Plains, New York, serving children with disabilities, for the 1997-98 school year. Petitioner further appeals from the hearing officer’s denial of her request for reimbursement for the cost of related services and transportation for her son during that school year. The appeal must be sustained in part.

        Petitioner’s son was initially referred to respondent’s committee on special education (CSE) on March 6, 1996, when he was nine years old and in the third grade at Birch-Wathem-Lexon School (Birch), a private school in New York City. In an educational evaluation conducted on April 23, 1996, the educational evaluator reported that the child was functioning at or above grade level in reading, mathematics, and written communication. On the Woodcock Johnson Psychoeducational Battery - R, the child achieved grade equivalent scores of 3.3 in word identification, 3.9 in passage comprehension, 4.5 in mathematical computation, 6.8 in mathematical applications, and 3.3 in written communication. The problems in the mathematical applications subtest were read to the child. The educational evaluator noted that the child read each printed passage appropriately, had good self-correcting skills, and applied appropriate phonics, but was unable to successfully decode words in isolation. The child’s written communication skills were assessed to be age-appropriate, and his conversational skills were reported to be good. When the child was shown a drawing, he was able to construct an appropriate original sentence to describe the action. The child’s printing was legible, and his spacing and formation of letters and words was reported to be good.

        In a social history prepared by the district’s social worker on April 27, 1996 based upon an interview with the child’s parents, the social worker reported that the child began attending Birch for the 1993-94 school year. He repeated the first grade there, after completing nursery school, kindergarten and first grade at the Park East Day School. Two weeks after the child entered Birch, he was identified by the reading specialist at the school as having dyslexia, decoding problems, and "hearing sounds differently." When the child was in the first, second and third grades, he received tutoring in small groups of up to four students for 40-45 minutes per session. Beginning in second grade, the child received private tutoring twice per week for 45-60 minutes. In September, 1995, at the beginning of the third grade, he began receiving language therapy twice per week for 45 minute sessions to address word retrieval and vocabulary difficulties. He also began receiving psychiatric counseling twice per week to address self-esteem issues and his frustration with school work.

        The school psychologist completed a psychological evaluation on April 27, 1996. On the Weschler Intelligence Scale for Children III (WISC III), the child achieved a verbal IQ score of 114, a performance IQ score of 123, and a full scale IQ score of 121 placing him in the superior range of intellectual functioning. His visual motor integration skills were age-appropriate. The school psychologist noted that the child was somewhat anxious and became easily upset when unable to complete tasks successfully. However, the child was described as generally reality-oriented and well related.

        On June 12, 1996, the CSE recommended that the child not be classified as a child with a disability. Petitioner disagreed with the CSE’s finding, and requested an impartial hearing. She placed her son at Windward for the 1996-97 school year. Windward is not approved by the New York State Education Department to provide instruction to children with disabilities. The impartial hearing was held on December 17, 1996 and February 14, 1997, during which petitioner requested reimbursement for tuition for the 1996-97 school year, as well as reimbursement for transportation and private language therapy. The hearing officer rendered her decision on April 8, 1997. She found that the child should have been classified as learning disabled because of a disparity between his cognitive ability and his academic achievement, and that Windward had a program which was meeting the child’s special education needs. She ordered the board of education to reimburse the child’s parents for tuition and transportation to Windward for the 1996-97 school year. The board of education did not appeal the hearing officer’s decision, and I do not review that decision in this appeal from a subsequent hearing officer’s decision.

        The child’s parents unilaterally enrolled him in Windward for the 1997-98 school year. Respondent’s CSE met on October 8, 1997 to develop an individualized education program (IEP) for the 1997-98 school year. The CSE classified the child as learning disabled and recommended that he receive resource room services for one period per day five days per week. The IEP included the notation that it had been developed "as per the hearing officer’s order", although that order did not apply to the 1997-98 school year. Another notation on the IEP indicated that: "bus trip must be less than one hour."

        Petitioner disagreed with the CSE’s recommendation, and requested another impartial hearing seeking tuition reimbursement, as well as the costs of transportation and language services for the 1997-98 school year. That hearing, which is the subject of this appeal, was held on February 9, 1998. The hearing officer found that there was insufficient evidence in the record to support a classification of learning disabled. Notwithstanding that finding, the hearing officer went on to find that respondent was unable to demonstrate that it had offered an appropriate educational program to the child for the 1997-98 school year because it had failed to conduct a timely annual review of the child for the 1997-98 school year. However, she further found that petitioner had not met her burden of proving that Windward’s services were appropriate given the fact that the child was performing at or above grade level. The hearing officer ordered that the child should not be classified for special education purposes, and that respondent was not liable for tuition reimbursement for the 1997-98 school year, or for the costs of related services or transportation.

        Petitioner appeals the hearing officer’s decision on a number of grounds. She argues that the child’s classification was not in dispute and should not have been determined by the hearing officer. Additionally, petitioner asserts that her son requires full-time special education, and that the hearing officer’s denial of tuition reimbursement for the 1997-98 school year should be reversed.

        The hearing transcript reveals that the CSE's representative testified that the CSE review on October 8, 1997 implemented the hearing officer's decision by classifying the child as learning disabled and offering him resource room services. As noted above, the hearing officer in the earlier proceeding made no order with respect to the 1997-98 school year. In any event, neither party raised the child’s classification as an issue at the February 9, 1998 hearing. Instead, the hearing officer questioned the CSE representative about his "position" regarding the child's classification. However, the CSE representative could not, as a matter of law, disavow what the CSE had in fact recommended, i.e., that the boy be classified as learning disabled. Because the issue of the child’s classification had not been raised by the parties in this proceeding, it was not for the hearing officer to determine (Application of a Child with a Disability, Appeal No. 95-86). Therefore, I find that the hearing officer's sua sponte determination that the boy was not a child with a disability must be annulled.

        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). In this instance, the CSE's representative conceded the first prong of the tripartite Burlington test, i.e. that respondent could not show that it had offered the child an appropriate educational program on a timely basis (Transcript, page 11). The representative also conceded that petitioner was not responsible for the delay in the CSE's meeting to recommend a program for the 1997-98 school year (Transcript, page 15). Accordingly, petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement. As respondent admitted its failure to provide an appropriate program for the child, I do not address petitioner’s other challenges regarding the development of the child’s IEP.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at Windward during the 1997-98 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        In order to determine whether the private school addressed the child's special education needs, it is necessary to ascertain what those needs were during the 1997-98 school year. The boy's IEP indicated that he needed to increase his sight-word vocabulary and his fund of general knowledge. It also indicated that his reading decoding skills were weak, notwithstanding his ability to ascertain the meaning of words in context. Although his math application skills were well above grade level when tested, he apparently needed to have the math problems read to him. The principal of the lower school at Windward testified that the child had difficulties in reading decoding, spelling, and word finding, and that he had organizational difficulties. She indicated that the private school used the Orton-Gillingham methodology to teach reading, and she asserted that he benefited from the small class size which the school offered. The principal asserted that the child had made tremendous gains in reading while attending the Windward School, but she alluded to January, 1998 test scores and indicated that there was still a big gap between his timed versus untimed reading comprehension skills. She also testified that he had become reasonably good at reading decoding, but that he continued to be a weak speller. The child was reportedly in an advanced math group at the private school.

        None of the child's teachers testified, and no documentary evidence of his achievement, such as standardized test scores, teacher reports, and report cards, was introduced into evidence. I must note that the principal's description of the boy's skill levels appears to be consistent with his level of functioning when he was initially evaluated by the CSE, i.e., at grade level in reading and above grade level in mathematics. In addition to a dearth of evidence about how the private school was meeting the child's needs, I find that there is insufficient information in the record to support a placement in such a restrictive setting as a private school that serves solely learning disabled children, i.e., that the child required full-time primary instruction in special education. I am of course aware that the hearing officer in the prior proceeding must have concluded that the child required such instruction in order to find that petitioner was entitled to tuition reimbursement for the 1996-97 school year. In any event, the hearing officer’s determination with regard to the 1996-97 school year is not evidence of what the child’s needs were during the 1997-98 school year. Accordingly, I find that petitioner has failed to meet the second criterion for an award of tuition reimbursement.

        Petitioner also appeals from the hearing officer’s decision denying her request for reimbursement for the child’s language therapy. In addition to group language therapy provided by Windward, once per week, the child received private, individual language therapy for 45 minutes, twice per week. The private therapist testified that the child had no speech defect, but he continued to have a significant and severe language disability. She indicated that he had trouble putting grammatical sentences together, but his receptive language skills had greatly improved. The private therapist also referred to her recent evaluation of the child, which was not introduced into evidence. Indeed, there was no formal assessment of his language needs in the record, unlike the prior proceeding involving this child. The therapist opined that the child continued to require the two sessions of language therapy per week which she was providing because his language demands would increase as he grew older and advanced in school. However, the question to be determined is what were the child’s needs during the 1997-98 school year, and how did the therapist’s services specifically address those needs. While the child appears to have had some language needs, I am constrained by the record which is before me to find that petitioner did not meet her burden of proof.

        Petitioner also appeals from the hearing officer’s decision denying her request for reimbursement for the cost of her son’s transportation to Windward. At the hearing, the principal of Windward estimated that the trip between Manhattan, where petitioner lives, and White Plains, where Windward is located, required 45-60 minutes. The child’s IEP indicated that his transportation time should not exceed 60 minutes. Petitioner testified that respondent did not begin to provide transportation until the second week of the school year. Petitioner also testified that her son was picked up at 6:30 in the morning by respondent's bus contractor, and arrived at school at 7:55, approximately 25 minutes in excess of the maximum travel time specified by the child's IEP. In addition, the Windward lower school did not begin until 8:30 a.m. Petitioner further testified that she contacted respondent's transportation department in an attempt to change her son’s bus schedule because he was having difficulty functioning in the afternoon, but was unsuccessful. She stated that she entered into a contract with a private bus company sometime at the end of August or in September, 1997. The private bus company picked up the child at 7:30, and he arrived at school at 8:20, ten minutes before school began. The bus ride with the private bus company was approximately 50 minutes long.

        Boards of education are required to provide transportation to children with disabilities in an economic and efficient manner (Matter of Mitchell C. v. Bd. of Ed., 67 AD 2d 284, 414 NYS 2d 923 [1979]; Matter of a Handicapped Child, 25 Ed. Dept. Rep. 280 [1986]). Although respondent was not free to ignore the transportation time limit in the child's IEP, I must note that compliance with that limit was difficult at best because of petitioner's placement of the child in Windward. The record shows that respondent did attempt to provide transportation for the child to Windward, but failed to do so until the second week of September, 1997. Petitioner testified that after receiving a contract from a private transportation company in August, 1997, she was required to sign the contract in September indicating that her son would attend Windward for the entire school year. However, she also testified that she was required to pay for transportation on a monthly basis. Petitioner did not submit a copy of the contract into evidence, and I have no way of determining if she was in fact obligated to pay for an entire year of transportation. Under the circumstances, I find that it would be equitable for respondent to reimburse petitioner for the cost of the child’s transportation during the month of September, 1997.

        I have considered petitioner’s other claims, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is annulled to the extent that she found that the child should not be classified as learning disabled, and that she determined that petitioner was not eligible for any reimbursement for transportation.

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of bus transportation to Windward for the month of September, 1997, upon proper proof of payment.