98-040

     Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioners' daughter be enrolled in a Modified Instructional Services - I (MIS-I) class in respondent's I.S. 303 for the 1997-98 school year. Based upon his conclusion that the recommended program was appropriate, the hearing officer did not consider petitioners' claim that respondent should be ordered to reimburse them for the cost of their daughter's tuition in the Parents for Torah for All Children (P'TACH) program at the Beth Jacob Day School, a private school in Brooklyn, New York. The appeal must be sustained in part.

        Preliminarily, I will address the procedural argument raised in this appeal. Petitioners argue that the hearing officer improperly closed the hearing without affording them an opportunity to present a case. The record shows that at the conclusion of the testimony on February 23, 1998, the hearing officer advised the parties that he would review the transcript to date and address only the issue of the appropriateness of the MIS-I program recommended by the CSE. He indicated that if he ruled in favor of respondent, there would be no need for further testimony, but if he concluded that respondent failed to demonstrate the appropriateness of its recommended program, he would schedule another hearing to enable petitioners to demonstrate the appropriateness of the P'TACH program. Neither party objected to proceeding in the manner suggested by the hearing officer. While I find that it was within the hearing officer's discretion to bifurcate the hearing, I must note that it has resulted in an incomplete record on appeal. Without information regarding the appropriateness of petitioners' private placement, I am unable to determine whether petitioners have met the criteria for an award of tuition reimbursement.

        The child was 12 years old and in the sixth grade at the time of the hearing. While in the first grade in P.S. 100, the child was referred to a school based support team, which recommended that she receive resource room services and speech/language therapy. Petitioners reportedly agreed with the team's recommendation. At the end of first grade, the child was enrolled by her parents in the Yeshiva of Manhattan Beach, where she repeated the first grade. She remained at the Yeshiva of Manhattan Beach through the third grade. In the spring of 1995, petitioners referred their child to the CSE, which reportedly recommended that she attend an MIS-I program and receive speech/language therapy. Petitioners rejected the CSE's recommendation, and enrolled their daughter in the P'TACH program for the fourth grade, where she remained through the fifth grade. She was reportedly seen by a private psychologist to reduce her stress and anxiety during this period. At the end of the child's fifth grade year in the spring of 1997, staff from the P'TACH program reportedly advised petitioners that their daughter could not continue in the program because of financial reasons and/or academic reasons. On September 15, 1997, petitioners again referred their daughter to respondent's CSE.

        In a social history conducted on September 25, 1997 based upon an interview with the child's mother, the district's social worker reported that both English and Russian were spoken in the child's home. The child's mother was pleased with the P'TACH program and believed that the child had made progress there.

        In a psychological evaluation conducted on September 25, 1997, the child achieved a verbal IQ score of 74, a performance IQ score of 70, and a full scale IQ score of 70 on the WISC-III, placing her in the borderline range of intellectual functioning. The school psychologist noted weaknesses in the child's performance on all of the subtests on the verbal component of the WISC-III. The child demonstrated borderline ability in verbal concept formation and abstract thinking. Her score on the arithmetic subtest revealed borderline ability in mental computation on orally presented mathematics problems. She also demonstrated borderline ability in expressive language and knowledge of words. The school psychologist reported that the child demonstrated a weakness in long-term recall of factual knowledge, or a possible lack of exposure to learning age-appropriate material. The child's score on the comprehension subtest revealed poor knowledge of social standards of behavior, practical judgment and common sense reasoning skills. She also demonstrated weaknesses in her alertness to detail and visual discrimination skills. Her score on the assembly subtest demonstrated a lower level of visual-motor constructive ability and perceptual organization. The school psychologist reported that the child demonstrated weakness on a task assessing her spatial analysis, abstract visual and problem solving skills. With respect to the child's perceptual-motor skills in comparison to other children her age, she scored below age expectancy on the Bender Visual-Motor Gestalt Test. Projective testing suggested that the child wanted attention and the approval of authority figures. The child was aware that school was difficult for her, and she indicated that other children teased her and she responded by spitting at them.

        In an educational evaluation conducted on September 25, 1997, the district's educational evaluator indicated that the child had an incomplete fund of knowledge with regard to serial language skills. While she was able to recite her name, address, phone number and days of the week, she could not recite the months of the year in proper order. On the word identification subtest of the Woodcock Reading Mastery Test- Revised, the child achieved a grade equivalent score of 3.2. She demonstrated difficulty decoding multisyllabic words. On the word attack subtest, the child achieved a grade equivalent score of 4.2, often omitting sounds or inserting nonexistent sounds when attempting to decode words. The child achieved a grade equivalent score of 3.2 in word comprehension, demonstrating difficulty naming all but basic antonyms and transferring to synonyms. She achieved a grade equivalent score of 3.0 in passage comprehension. Her total reading cluster score was at a 3.2 grade equivalent. The educational evaluator concluded that the child's word comprehension interfered overall with her passage comprehension. She assessed the child's spelling skills to be at a third grade level.

        On the Key Math-Revised, the child achieved a grade equivalent score of 1.7 for her knowledge of basic concepts. She was unable to order numbers from the least to the greatest, or to round numbers to the nearest hundred. She could not identify simple fractions or convert them to their decimal or percent equivalent. The child achieved a grade equivalent score of 3.2 on the operations subtest, showing relative strength in addition. However, she demonstrated significant difficulty in subtraction, as well as multiplication and division. On the applications subtest, the child achieved a grade equivalent score of 2.0 demonstrating difficulty in the areas of estimation, data interpretation and problem solving.

        The educational evaluator reported that the child's informal writing sample lacked a content and language richness for a student her age. The child was unable to appropriately use capitals, periods and punctuation, and her sentences were repetitive and did not adhere to a topic sentence. An informal speech/language assessment showed no evidence of articulation difficulties. The child spoke in complete sentences and initiated conversation easily. She followed directions well and responded appropriately to all questions. The educational evaluator concluded that the child showed significant delays in both reading and mathematics. She recommended that a full interdisciplinary team review the child to determine the most appropriate educational supports.

        The CSE met on October 9, 1997 to develop the child's IEP. When the CSE met, the child was not attending school, reportedly because of petitioners' inability to pay for private school tuition. The CSE recommended that the child continue to be classified as learning disabled. Her classification is not in dispute in this proceeding, and I do not consider its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The CSE further recommended that the child be placed in a MIS-I class with a student to teacher ratio of 15:1, and that the time limits on her tests be extended by 50 percent. The CSE did not recommend that she receive any related services. On October 23, 1997, petitioners were offered a placement for their child in I.S. 303.

        At petitioners' request, the educational director from the P'TACH program investigated the placement proposed by the CSE. The educational director was reportedly advised by the special education supervisor at I.S. 303 that the class which had been recommended for the child was full. In November, 1997, upon receiving written notification that the recommended class was full, petitioners re-enrolled their daughter in the P'TACH program for the remainder of the 1997-98 school year. On November 18, 1997, petitioners requested an impartial hearing seeking tuition reimbursement. Thereafter, the placement officer for the CSE of Community School District 21 advised petitioners' advocate that the information which petitioners had received about the recommended MIS-I class in I.S. 303 was inaccurate, and that there was an opening in the proposed class. Petitioners continued their daughter's placement at P'TACH.

        The impartial hearing began on January 13, 1998. At the hearing, the hearing officer was informed that petitioners had not had an opportunity to investigate the program recommended by the CSE. The hearing officer adjourned the hearing to give petitioners the opportunity to observe the recommended program. The child's mother visited I.S. 303, and briefly testified about what she had observed when the hearing resumed.

        On February 3, 1998, the district's educational evaluator observed the child during a social studies lesson at the P'TACH program. The educational evaluator reported that the child attended to task, and was able to respond to inferential questions posed by the instructor. At the end of the lesson, the child was able to follow a series of directions and proceed to the next task. The child was observed during the same lesson by the district's speech/language evaluator. The speech/language evaluator reported that the child was mainstreamed for lunch and recess, but was in a special education class comprised of 10 girls with one teacher and one assistant for instruction in all subjects. The speech/language evaluator reported that the child was focused and attentive. The child raised her hand often, and responded to questions appropriately in full sentences. The evaluator reported that the child was able to deduce the main idea in each paragraph of the written text material which was being used, which she estimated to be at the fourth grade level.

        The hearing resumed and was completed on February 23, 1998. The hearing officer rendered his decision on June 17, 1998. He acknowledged petitioners' concern about their child being scapegoated by other children in her neighborhood who attend I.S. 303, but suggested that their concern could be addressed by requesting placement in a MIS-I class in another school. He also acknowledged petitioners' preference for a lower student-teacher ratio and a non-departmentalized program like that of P'TACH. However, he noted that it was respondent's obligation to offer a placement in the least restrictive setting which was reasonably calculated to enable the child to benefit from instruction. The hearing officer found that respondent had met its burden of proof with respect to the appropriateness of the child's recommended placement in the MIS-I program at I.S. 303. He retained jurisdiction to resolve any disputes that might arise over the child's placement for the remainder of the 1998-99 school year.

        Petitioners appeal from the hearing officer's decision on the ground that the hearing officer erred in finding that respondent met its burden of demonstrating the appropriateness of the recommended program. 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).

        Petitioners have not challenged their daughter's IEP in terms of its description of the child's needs. I have nevertheless reviewed the IEP. While I find that the IEP accurately reflected the results of the child's evaluations in most areas, I must also find that it failed to indicate the child's deficits in subtraction. The educational evaluator reported that the child had significant difficulty with subtraction. The child could not correctly identify the operation of subtraction by its sign, she added when subtraction was indicated, and she did not recognize the concept of "how many more" as a signal to subtract. This deficit should have been identified in the child's IEP. In addition to the child's academic needs, her IEP indicated that she was immature, insecure, and expressed anger easily. It also indicated that she required full-time, structured, small group instruction to address her learning difficulties.

        I have also reviewed the child's IEP annual goals and short-term instructional objectives because it is important to establish that the goals and objectives were appropriate before determining what special education services were required in order to afford the child a reasonable chance of achieving her goals and objectives. I must note that the child's annual goals were very broadly worded, e.g. that she " ... will improve her reading comprehension abilities parallel to mainstream with teacher observations and 80% accuracy". The three supporting objectives provide somewhat more specificity. However, it is still not clear what was intended by the phrase "parallel to the mainstream". This child was entering the sixth grade with third grade reading comprehension skills. Clearly, the child would not have improved her reading comprehension skills by three grade levels in a single school year. I find that the child's reading comprehension, mathematics, spelling, science, and social studies annual goals were too imprecise to furnish meaningful guidance to the teachers who would have been required to implement them (Application of a Child with a Disability, Appeal No. 93-24). The IEP also failed to include any goal or objective to address the child's deficits in subtraction. Therefore, I find that the child's IEP was deficient with respect to the child's annual goals and short-term objectives.

        In order to meet its burden of proof, respondent must also demonstrate that its CSE has recommended the appropriate special education services to meet each of the child's identified special education needs. The program recommended by the CSE was a self-contained MIS-I class with a 15:1 student to teacher ratio. The homeroom teacher of the recommended class testified that her class was comprised of seven girls and five boys, all of whom were learning disabled and none of whom presented behavior problems. She further testified that the school utilized a departmentalized system where the children moved from class to class, just as the mainstream students did. She stated that there had not been any problems associated with the departmentalized system, and that she believed it enhanced the students' self-esteem. When asked whether petitioners' child would have success in her classroom, the teacher merely stated that she did not know the child. The special education supervisor at I.S. 303 briefly testified about the MIS-I program in his school. However, neither the teacher nor the supervisor addressed the critical question in this proceeding. How would placement in the MIS-I class address this child's special education needs?

        Petitioners argue that the size of the proposed MIS-I class is too large and that their daughter would not receive the individualized attention required for her to obtain an educational benefit. They further argue that their daughter would have difficulty changing classes. Petitioners assert that the proposed program would not address their child's emotional needs. The educational director from the P'TACH program, who had visited I.S. 303 with the child's mother, testified that the child was very distractible, very fragile and had low self-esteem. He opined that the child would get lost in a class of 13 or 14 students with one teacher because she would have difficulty focusing and would be unable to express herself and think in a rational pattern. He further testified that moving from class to class was not appropriate for the child because she had processing and refocusing difficulties, and she did not perform well when working with a variety of adults. The educational director opined that the child required a high level of focus, a reduced level of distractibility, and much emotional support.

        The child's psychotherapist from the fall of 1996 until the fall of 1997 testified that the child was sensitive, fragile and easily distracted. She testified that she had provided 1:1 psychotherapy to the child, who was considered too self-focused and fragile to criticism for group therapy. The psychotherapist also testified that the child needed to learn "social cues", i.e., appropriate responses for various social situations. She indicated that the child's anxiety level would increase when introduced to new situations and new possibilities. The therapist, who also visited I.S. 303 with the child's mother, testified that the child would regress if placed in the proposed class because of the size of the class, her poor self-esteem and poor self-confidence. I note that this testimony and the testimony of the educational director at P'TACH was unrefuted by respondent. Although the child's IEP indicated that the child had some social/emotional concerns, i.e., that she was immature, insecure and expressed anger easily, the CSE did not recommend that she receive counseling. Based upon the record before me, I am unable to find that respondent demonstrated the appropriateness of the program which its CSE recommended for the child.

        Petitioners are seeking 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). Having found that respondent failed to demonstrate the appropriateness of the recommended program, it must be determined whether the services selected by the parents were appropriate and whether equitable considerations support their claim for tuition reimbursement. As noted above, the hearing officer did not allow petitioners to present evidence concerning the appropriateness of the services provided by the P'TACH program. Accordingly, I am unable to make a determination on the second criterion for an award of tuition reimbursement on the record which is before me. However, petitioners must be afforded an opportunity to present evidence about the services provided to their daughter in the P'TACH program.

        Similarly, I can not address the issue of whether equitable considerations support the parents' claim for an award of tuition reimbursement. I note that petitioners claim that they relied upon the representation of respondent's site supervisor that there was no room in the proposed class when they unilaterally placed their daughter in the P'TACH program for the remainder of the 1997-98 school year. They should have the opportunity to present evidence to support this assertion, which should be considered when determining the third criteria for an award of tuition reimbursement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer with respect to the appropriateness of the placement recommended by respondent's CSE is hereby annulled, and;

IT IS FURTHER ORDERED that within fifteen days after the date of this decision, respondent shall schedule a hearing before another hearing officer to determine whether the services which petitioners obtained for the child in the P'TACH program during the 1997-98 school year were appropriate to meet the child's special education needs, and whether petitioners' claim for tuition reimbursement is supported by equitable considerations.