98-038

       Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son be instructed in a regular education program with resource room services during the 1997-98 school year, and which denied petitioner's request for an award of tuition reimbursement for that school year. The appeal must be sustained in part.

        Respondent requests that the appeal be dismissed on the ground that the notice of intention to seek review was not served upon it in the manner prescribed by Sections 275.8 and 279.2 of the Regulations of the Commissioner of Education. The regulations require that a notice of intention to seek review be personally served upon the board of education, the school district clerk, chief school officer (superintendent of schools), or a person in the office of the superintendent who has been designated by the board of education to accept service. Although respondent has designated Ms. Marlene Miernik to accept service, she asserts in an affidavit annexed to respondent's answer that she did not receive the notice of intention to seek review. The original copy of the notice to seek review has a date stamp on it indicating that it was received by respondent's special education department on July 15, 1998. There is also a signature of a Ms. Braio, indicating that the notice of intention to seek review had been received. In an affidavit, the process server asserts that he was directed to the special education department by respondent's staff. The purpose of the notice of intention to seek review is to alert the board of education of its duty to promptly file the record of the hearing with the State Education Department (Application of the Board of Education of the Florida UFSD, Appeal No. 92-10). Petitioner's failure to serve the notice of intention in the prescribed manner does not afford a basis for dismissing this appeal (Application of a Child Suspected of Having a Disability, Appeal No. 93-45; Application of a Child with a Disability, Appeal No. 95-66).

        Petitioner's son, who is eleven yeas old, was enrolled in respondent's Program for Early and Rapid Learners (PEARL) at its Hawthorne School from kindergarten through the end of the third grade. The PEARL program is a general education program for gifted and talented students (Transcript, page 27). On the child's cumulative school record (Exhibit 21), his school achievement for kindergarten through third grade in PEARL is described as slow. The record also indicates that he received "extra help" and was tutored by his aunt during the 1994-95 school year, when he was in the first grade. He received computer assisted remedial instruction during the 1995-96 school year.

        In a letter dated October 15, 1996, petitioner referred his son to the CSE, which sent a "referral packet" (Exhibit 6) to the child's school to obtain information about the child. In the completed packet, the child was described as having weaknesses in his ability to sit still and pay attention, writing mechanics (such as spelling), reading, and fine motor control. He reportedly had earned grade equivalent scores of 3.0 for reading and 2.1 for mathematics on the California Achievement Tests which were administered in April, 1996, when the child was in the second grade. The child's third grade teacher reported that his phonics skills were weak and he had much difficulty decoding new words. She also reported that the child had a limited sight vocabulary, but his auditory comprehension was good. The teacher indicated that the child was creative, but had difficulty expressing himself in writing, and made errors when copying material which was written on the blackboard.

        The child was privately evaluated by a psychologist in December, 1996. He achieved a verbal IQ score of 110, a performance IQ score of 107, and a full scale IQ score of 109. Although the child had difficulty with handwriting, he demonstrated age-appropriate visual motor integration skills. Petitioner's son achieved standard scores of 93 for reading, 88 for spelling, and 94 for arithmetic on the Wide Range Achievement Test-3 (WRAT-3). On the Gray Oral Reading Test-3, he achieved grade equivalent scores of 1.9 for rate, 2.3 for accuracy, 1.9 for passage, and 1.9 for comprehension. It should be noted that the child was in the third grade when he was tested. The psychologist reported that the child had made errors discriminating between the sounds at the end of words on a test of his auditory discrimination skills, but opined that the errors may have resulted from lapses in the child's attention. On the Stanford Binet Sentence Memory Test and the Word Fluency Test, the child achieved scores which were above his age level. However, he manifested organizational and attentional difficulties on the Rudell Cancellation Test. The psychologist recommended that the child receive intensive remediation, and suggested that he would benefit from a multisensory approach with an emphasis on phonics and word analysis techniques.

        A school psychologist who evaluated the child in January, 1997 reported that the boy had achieved a verbal IQ score of 119, a performance IQ score of 87, and a full scale IQ of 104. He further reported that the child exhibited strength in the areas of acquired information, vocabulary, concentration, social judgment, receptive and expressive language, immediate auditory memory and visual motor skills. On the WRAT-3, the child achieved standard scores of 96 for word recognition, 94 for arithmetic. The school psychologist described petitioner's son as a sensitive, vulnerable child who had a poor self-image, but he opined that the child was not a candidate for special education.

        On January 7, 1997, the child was observed by an assistant principal in a group of five children who were being instructed in a school hallway. The assistant principal reported that the child was detached from the group and played with a pencil and loudly hummed to himself. At the hearing, the child's teacher testified that her class was broken into small groups which sat in the carpeted hallway, and that the behavior which the assistant principal observed was not unusual for this child.

        On February 3, 1997, the CSE recommended that the boy be classified as learning disabled and receive resource room services in a group of no more than five children. Although the boy's individualized education program (IEP) did not indicate the frequency or amount of resource room services (cf. 8 NYCRR 200.4 [c][2][vi]), the record reveals that he received those services five periods per week. Petitioner consented to his son's placement in the resource room program on March 4, 1997 (Exhibit 14). Shortly thereafter, petitioner wrote to respondent's Director of Special Education about various concerns regarding his son's educational program (Exhibits 15 and 16). On April 8, 1997, the Director of Special Education responded to petitioner's letter, and provided him with a copy of Part 200 of the Regulations of the Commissioner. She also indicated that she agreed that the child's IEP did not include enough annual goals to address his learning needs and would refer the child to the CSE (Exhibit 17). She did so on April 9, 1997 (Exhibit 22).

        On May 2, 1997, the child was seen again by the private psychologist who had evaluated him in December , 1996. The psychologist reported that the child's scores on the Gates MacGinitie Reading Test were at a mid-second grade level, but noted that the child had shown some improvement in his sight word vocabulary. However, he continued to have difficulty with reading decoding. The psychologist's informal assessment of the child's mathematics skills indicated that the child was having difficulty with the basic processes. She recommended that he be placed in a special school with small classes to " … provide a total learning environment [which] would be the most appropriate placement …" (Exhibit 18).

        The child's teacher reported to the CSE that the child " … had more difficulty sitting still even for short periods" (Exhibit 19). She indicated that the child's peers had complained of being distracted by his constant movement and noise. The teacher also indicated that the child's phonics skills had improved, and that he recognized more sight words. She reported that his reading comprehension had also improved, and that his instructional level for reading was at 3.0 grade equivalent. Another teacher who was the child's mathematics teacher reported that his instructional level for mathematics was at the third grade level, although he had some difficulty processing word problems. The child was described as a creative writer who used short sentences and invented spelling. His handwriting had significantly improved. The child's report card for the 1996-97 school year (Exhibit 20) was consistent with his teacher's report to the CSE.

        On May 21, 1997, the CSE reviewed the child's education program. It recommended that he continue to be classified as learning disabled, and it increased the amount of his resource room services to two periods per day for the 1997-98 school year. Although the space on the child's IEP for indicating the frequency and duration of the resource room services was left blank, the recommendation for two periods per day of resource room services was set forth on the second page of the IEP (Exhibit 26). The CSE also recommended that the child have the benefit of certain testing modifications, such as extended time limits, testing in a separate location, having test questions read to him, and using a calculator on mathematics tests.

        By letter dated June 16, 1997, petitioner's attorney informed the CSE chairperson that petitioner would not accept the CSE's recommendations, and had unilaterally enrolled his son in the Stephen Gaynor School in New York City for the 1997-98 school year. The attorney requested that an impartial hearing be held. Respondent appointed a hearing officer on July 16, 1997. Petitioner's attorney withdrew his request for a hearing at last temporarily, after the parties' attorneys had agreed that respondent would transport the child to the Stephen Gaynor School (Exhibit 4). Thereafter, the parties stipulated that a hearing would be held before the hearing officer who had been previously selected to conduct the cancelled hearing. It was scheduled for November 10, 1997, but it was adjourned at the request of the parties until April 23, 1998, when the hearing was held.

        In his decision which was rendered on June 17, 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 found that the educational program which the CSE had recommended for the child was appropriate to meet the child's needs during the 1997-98 school year. The hearing officer held that respondent had met its burden of proof with respect to the first of three Burlington criteria for an award of tuition reimbursement, thereby precluding petitioner from receiving tuition reimbursement. He further found that petitioner had failed to meet his burden of proof with respect to the second Burlington criterion, i.e., that the services provided to his son by the Stephen Gaynor School were appropriate for the child.

        Petitioner challenges the hearing officer's decision on various grounds. He assert that the CSE which prepared his son's IEP on May 21, 1997 included only two voting members, and therefore lacked all of its required members. Petitioner relies upon the child's IEP, which has two columns, one of which is headed by the words "CSE Committee", beneath which the names of the CSE chairperson and a school psychologist appear. The second column, which is headed by the words "Other Participants", lists the names of the parent member, a resource room teacher, the child's third grade teacher, the child's parents, and an assistant principal. Although not all of those individuals were members of the CSE, the parent member and the child's teacher were clearly members of the CSE. The CSE chairperson testified at the hearing that she was a certified special education teacher. I find that petitioner's contention about the composition of the CSE is without merit (34 CFR 300.344 [a]).

        Petitioner asserts that the CSE failed to have the child observed in his resource room class prior to making its recommendation for the 1997-98 school year. While that appears to be true, there was no legal requirement that the CSE do so, since the CSE's recommendation did not involve a significant change in the child's placement requiring an evaluation.

        Petitioner challenges the adequacy of his son's IEP for the 1997-98 school year. The initial question to be determined is whether that document accurately reflects the results of the child's evaluations and identifies his special education needs. I note that the IEP describes the child as:

" … a bright, motivated, verbal, creative student with attention issues. His learning disability is seen in his difficulties with spatial organization and sequencing. [The child] works slowly and needs extra time to complete assignments. Phonic skills and sight vocabulary are weak; a multisensory approach is needed. He has an impulsive approach to reading but is able to make use of context clues. [The child] needs refocusing but responds to cues and reminders to stay on task" (Exhibit 26).

        I find that the IEP description, while generally accurate, does not describe the extent of the child's disability. This is especially significant because an IEP must describe a child's present levels of performance and individual needs with respect to academic, social, and physical development and management needs (8 NYCRR 200.4 [c][2][i]). Although this child's IEP has what appears to be a series of computer generated statements with respect to his academic, social and physical development and management needs, those statements do not include adequate objective data to establish a baseline from which the child's progress could be measured during the 1997-98 (34 CFR Part 300, Appendix C Question 36). I must therefore find that respondent's CSE failed to adequately describe the child's needs in his IEP.

            Petitioner also challenges the appropriateness and adequacy of his son's IEP annual goals and short-term instructional objectives. An annual goal is a statement which describes " … what a child with a disability can reasonably be expected to accomplish within a twelve month period in the child's special education program" (Ibid., Question 38). Short-term instructional objectives are " … measurable, intermediate steps between the present levels of educational performance of a child with a disability and the annual goals that are established for the child" (Ibid., Question 39). I note that there are four objectives, but no goal, for language arts, reading and writing on page 4 of the IEP, as well as a separate goal for writing (" … will work to increase writing skills") on page 5 of the IEP. There is also an annual goal that the child "will increase study skills, work habits and organizational skills," and a goal that he " … will increase computational skills in mathematics." The child's final annual goal, which is that he " … will participate in and complete requirements of regular education courses," has no short-term objectives. I find that the child's IEP annual goals are too vague to provide the child's teacher with direction about the CSE's expectations (Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 96-90). While I have reviewed the short-term objectives to see if they provide sufficient specificity, I must find that they are also inappropriately vague, e.g., "will apply concepts of the usage of language to classroom activities and real-life situations." I note that despite the fact that there is no dispute about the child's very weak spelling skills, his IEP goals and objectives do not address his encoding (spelling) difficulties.

        Petitioner further challenges the appropriateness of the special education services, two periods of resource room per day, which the CSE recommended for the child. While I do not necessarily agree with petitioner's contention that his son's needs were too unique or severe to be addressed with resource room services, I must find that respondent has failed to meet its burden of proof with respect to the appropriateness of the educational placement which it offered to the child for the 1997-98 school year because of its failure to adequately describe his educational needs and to construct IEP goals and objectives which specifically addressed those needs.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Stephen Gaynor School during the 1997-98 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, or have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        The records reveals that at the Stephen Gaynor School the child was instructed with eight other learning disabled children in grammar, social studies, art, science, and physical education by one teacher with the help of one assistant. His instructional groups for reading and mathematics were four and five, respectively. In addition, the child received remedial reading and mathematics instruction in a group of two, twice per week, as well as speech/language therapy twice per week and occupational therapy. According to the child's primary teacher in the Stephen Gaynor School, the child had a language processing deficit, including problems with sound/symbol relationships, memory, and temporal concepts, in addition to a "severe" attentional deficit. She testified that he had to be refocused about once every five minutes. She also testified that the child's ability to maintain his attention had improved for one day in the spring of 1998, after his medication dosage was changed. However, he had been absent from school since that day. She estimated that the child's instructional level in reading had been at a 2.0 grade level in September, 1997. The child's progress report (Exhibit 25) indicates that by the middle of the 1997-98 school year, the child's instructional reading level was at a 3.0 grade level. I note that the child's third grade teacher had reported that his reading instructional level was at a 3.0 grade level in May, 1997l (Exhibit 19). The child's progress report from the private school indicated that his spelling was at a 1.5 grade equivalent by the middle of the 1997-98 school year. However, the private psychologist who had evaluated him in December, 1996, reported that the child's spelling was at the second grade level (Exhibit 7). I find that petitioner has not demonstrated that his son's special education needs were addressed during the 1997-98 school year.

        Petitioner must also show that his son's placement in a private school which serves children with disabilities, and thus provides no opportunity for instruction with this child's peers, is 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]). However, 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, the parties present significantly different pictures of the extent of this child's learning disability and his attentional problems. With respect to the latter, I note that the child was diagnosed as having an attention deficit disorder (ADD) by a private physician on April 16, 1998 (Exhibit 24), almost one year after the CSE had made its recommendation. I have carefully considered the testimony by the child's third grade teacher in Yonkers and his fourth grade teacher at the Stephen Gaynor School. Although the child's attention wandered while in a traditional class of 30 students and a small special education class at Stephen Gaynor, I am not persuaded that his management needs were so severe as to require the highly restrictive placement in a private school. Similarly, while the child had academic deficits, he had only recently been receiving resource room services and was benefiting from those services when the CSE recommended that he continue to receive resource room services for the 1997-98 school year. Upon the record before me, I find that petitioner has not met his burden of proof with respect to the appropriateness of the services provided to his son by the Stephen Gaynor School during the 1997-98 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's finding that respondent had met its burden of proof with respect to the appropriateness of the services which it offered to provide during the 1997-98 school year is hereby annulled, but his finding that petitioner had not met his burden of proof with respect to the appropriateness of the services which the private school provided is sustained.