98-041

   Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent’s committee on special education (CSE) that petitioners’ son be educated in regular education classes with supplemental instructional services I (SIS-I), i.e., resource room services, during the 1997-98 school year. The hearing officer denied petitioners’ request that respondent be ordered to reimburse them for the cost of their son’s tuition in the Real Education Achievement (R.E.A.C.H.) program of the Theodore Ryken Education Center of Xaverian High School for that school year. The appeal must be sustained in part.

        Petitioners had their son evaluated at the Long Island College Hospital when he was three years old because he had not yet begun to talk. He received speech therapy from the age of four until he was eight years old. Petitioners’ son attended the private St. Francis Cabrini School from preschool through the eighth grade. When he was in the third grade, he was evaluated at the Lamm Institute, where he was reportedly diagnosed as having a language processing difficulty. The child was held over for the third grade. In the fall of 1997, the child entered Xaverian High School, where he was enrolled in the R.E.A.C.H. program for ninth grade. The child was referred by his parents to respondent’s CSE in November, 1997.

        In a social history based upon an interview with the child’s mother on November 18, 1997, the district’s social worker reported that the child was diagnosed with a language processing difficulty in the third grade and that he received speech/language therapy. According to the mother, the child's speech was grammatically incorrect when he was excited. He would mumble or put words in an incorrect order. The child was described as a "whiz" in mathematics and computers, and it was noted that he liked to draw, and liked animals, cooking and athletics. The district’s social worker further reported that the child did not complete his homework easily, and that he was reported to be academically average, but was "given a lot of leeway."

        In an educational evaluation conducted on November 18, 1997, the child advised the educational evaluator that reading and subjects involving reading were difficult for him. The educational evaluator reported that the child displayed adequate concentration skills, but that he had difficulty processing, and responded slowly to verbally presented information. On grapho-motor tasks, the educational evaluator noted that the child gripped the pencil tightly, placed his face close to the paper, formed letters and numbers in an unconventional manner, and did not utilize space properly. The child achieved grade equivalent scores of 6.8 in reading decoding, 7.3 in reading comprehension, and 7.0 as a composite score for reading on the Kaufman Test of Educational Achievement (KTEA). The educational evaluator reported that the child had difficulty decoding vowel digraphs and correctly accenting syllables of multi-syllabic words. She observed that on the comprehension subtest, the child chose to read silently and worked in a slow manner. She further noted that the child had difficulty drawing inferences, determining outcomes of stories, and understanding cause and effect relationships. The child achieved grade equivalent scores of 8.9 in application, 11.7 in computation, 10.0 as a composite score for mathematics on the KTEA. The child demonstrated a slight delay in reasoning ability and factoring, and was unable to solve verbal problems requiring two steps. The educational evaluator noted that while the child scored significantly above grade level on the computation subtest, he needed a great deal of time to complete it. On the Beery Test of Visual Motor Integration, the child made errors in angulation and spatial relations. The educational evaluator opined that perceptual motor difficulties were impacting upon the child’s academics. On an informally administered near point copying sample, the child’s spacing was adequate and appropriate, but his letter size was extremely small. On a vocational assessment, the child demonstrated an above-average interest in numbers, child care, office practices and food services. The educational evaluator opined that the child would benefit from a small, structured class, and should be allowed extra time to complete tests, to "remediate" his reading and perceptual difficulties.

        A medical documentation form dated November 25, 1997, indicated that the child had passed vision and hearing tests in November, 1997.

        In a psychological evaluation conducted on December 1, 1997, the district’s psychologist noted that the child was extremely motivated to do well and was very critical of his performance. The district’s psychologist observed that the child’s work style tended to be slow as he tried for perfection on all assignments. The district’s psychologist reported that the child’s verbal expressive abilities and creativity were evident throughout the evaluation, but that the child performed slowly on perceptual motor tasks and had difficulty organizing his thoughts in sequential order. On the Wechsler Intelligence Scale for Children - Third Edition, the child achieved a verbal IQ score of 124, a performance IQ score of 103, and a full scale IQ score of 116, which placed him in the upper margin of the high average range of intellectual functioning. The district’s psychologist indicated that the 21 point discrepancy between the child’s verbal and performance IQ scores suggested that the child’s organizational skills on verbally presented material was significantly weaker than his language skills. He opined that the child’s weak organizational skills could adversely affect the child’s speed in academic areas. The district’s psychologist noted that the child demonstrated a significant weakness in short-term auditory sequential memory and symbol associative skill. The results of the Bender Gestalt Visual Motor Test indicated that the boy had age-appropriate perceptual-motor skills. The child’s social/emotional development was found to be within normal limits. The district’s psychologist recommended that the child receive additional time on standardized tests due to his slow rate of visual processing.

        On January 7, 1998, the child was evaluated by a speech/language pathologist because of a suspected language processing delay. The child advised the speech/language evaluator that he felt less pressure and more relaxed in the R.E.A.C.H. program. The evaluator reported that the child substituted some of his sounds in connected speech, which rendered it difficult to comprehend his intent. Based upon informal language testing, the speech/language evaluator reported that the child exhibited language delays in following specific oral directions, perceiving word classes and organizing sentences. She indicated that in order for the child to perform better academically and socially, he needed to improve his articulation pattern, expressive organizational skills and acquisition of vocabulary usage into everyday conversation. The speech/language evaluator recommended that the child receive speech/language therapy twice per week for thirty minute sessions in a group of 5:1.

        Respondent did not conduct an observation of the child in his current educational setting as part of its initial evaluation of him, as required by Section 200.4 (b)(4)(viii) of the Regulations of the Commissioner of Education.

        On February 9, 1998, respondent's CSE classified the child as learning disabled. Despite the limited evaluative information in the record to support the child’s classification, I may not review the appropriateness of the child’s classification because his classification is not disputed in this proceeding (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The CSE recommended that the child be placed in a regular education program, and that he receive supplemental instruction in a resource room with a student to teacher ratio of 8:1 for five periods per week. The CSE also recommended that he have the benefit of the testing modifications of having time limits waived and taking tests in a special location. Final notice of the CSE’s recommendation was sent to petitioners on February 11, 1998. Petitioners did not accept the recommendation of the CSE, and requested an impartial hearing.

        The hearing was held on March 19, 1998. The hearing officer rendered his decision on May 27, 1998. He found that respondent offered sufficient evidence that a regular class supplemented by resource room services would be an appropriate program for the child. Although he indicated that the R.E.A.C.H. program was probably better for the child, the hearing officer found that substantial evidence existed that the program recommended by the CSE was reasonably calculated to allow the child to derive an educational benefit. Accordingly, the hearing officer denied petitioners’ request for tuition reimbursement for their son's placement in the R.E.A.C.H. program.

        Petitioners appeal from the decision of the hearing officer. They argue that the hearing officer erred in finding that respondent provided an appropriate placement. They further argue that they are entitled to an award of tuition reimbursement because of respondent's failure to offer an appropriate placement to their son.

        Respondent claims that petitioners have no standing to assert a claim for tuition reimbursement. It argues that pursuant to the 1997 amendments to the Individuals With Disabilities Education Act (IDEA), parents may not seek an award of tuition reimbursement for unilaterally placing their child in a private school, if their child has never previously received special education services from the local school district. The statutory provision in question is 20 USC 1412 (a)(10)(C)(ii), which read 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."

        Prior to the enactment of the 1997 amendments to IDEA, it was well established that a board of education could 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 supported the parents' claim for reimbursement (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 reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        The question which respondent's defense of lack of standing raises is whether Congress intended to change the conditions under which an award of tuition reimbursement could be made. House Report No. 105-95 states, in material part, 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 the 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."

        In the absence of clear evidence that Congress intended to limit the remedy of an award of tuition reimbursement to situations in which the child had previously been enrolled in a school district's special education program, I decline respondent's invitation to place such a limitation upon the awarding of tuition reimbursement.

        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, supra), 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 individualized education program (IEP) which accurately reflects the results of the child's evaluations, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's needs.

        The CSE’s recommendation with respect to the child’s educational program was flawed by its failure to have the child observed in his then current educational placement as required by the Regulations of the Commissioner of Education. The failure to observe a child as part of a child’s initial evaluation affords a basis for annulling the CSE’s recommendation (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child Suspected of Having a Disability, Appeal No. 94-31). Although the IEP generally reflects the results of his evaluations, I find that his IEP goals and the recommended services to afford him the opportunity to achieve those goals are inconsistent. The boy's IEP goals for English and mathematics indicate that he will complete "parallel" curricula for those courses. The goals are supported by instructional objectives which would appear to require substantial modification of the regular curricula. However, that is not the task of a resource room teacher, who provides instruction to supplement the regular education teacher's instruction. The child's goals and objectives as drafted would have to be implemented with primary special education instruction, i.e., special class, for at least part of the school day, which the CSE failed to recommend. Accordingly, I find that petitioners have prevailed on the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, 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 R.E.AC.H. program 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).

        With respect to the child’s special education needs, the record reveals that when the child was in the ninth grade, he was reading at approximately a seventh grade level. Additionally, there is evidence indicating that the child had language processing problems in both the visual and auditory mode. The documentary evidence and the testimony consistently demonstrated that the child worked slowly and that he was anxious to perform well. In his testimony, the Director of the R.E.A.C.H. program described it as a college bound program for students with special education needs. He testified that the program is an inclusionary program which addresses academic development as well as social needs in a high school setting. The Director of the R.E.A.C.H. program stated that students arrived early in the day to work on organizational skills, and depending on their specific needs, would attend either self-contained or mainstreamed classes, or a combination of both. In mainstreamed classes, note takers and paraprofessionals were available for the students. Class sizes ranged from eight to eleven students. At the end of the school day, the students met again to prepare for the next day. The Director of the R.E.A.C.H. program indicated that all of the teachers in the program had special education certification.

        Petitioners’ son was enrolled in English, reading, global studies, regents biology, mathematics, and word processing. He was mainstreamed for mathematics and word processing, and in self-contained classes for all other subject in classes ranging from eight to eleven students.

        He had a note taker for mathematics, as well as resource room support to assist with note taking and study skills. The child’s teacher testified that the self-contained program provided the child with the support he needed to achieve academically by providing an environment that reduced the pressure he felt because of his processing difficulties. She indicated that the child was doing very well in the program, and that at mid-year he had an 85 average. She also indicated that as the year progressed, the child’s confidence grew and that he was involved in after school activities.

        Respondent argues that petitioners failed to meet their burden because the R.E.A.C.H. program does not meet the least restrictive environment requirement. I disagree. 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, 887 F. 2d 688 [2d Cir., 1989]). The child’s father testified that his son’s grammar school experience was difficult because he was not able to function in a large group setting. He indicated that despite tutoring, his son was not able to keep up with the other students in the class. He also indicated that his son was held over for third grade. The child’s father testified that while in grammar school, his son experienced headaches and did not want to go to school. He further testified that he believed that his son was achieving his academic potential in the R.E.A.C.H. program, and that his self-esteem had improved. The child’s mother corroborated her husband's testimony. Respondent did not refute any of this testimony. Additionally, I note that respondent’s own educational evaluator recommended that the child be placed in a small, structured class. Respondent also argues that the child's private school placement was inappropriate because he was not grouped for instructional purposes with children having similar needs and abilities. Having reviewed the record, I am not persuaded by respondent's argument. Therefore, I find that petitioners have also prevailed on the second Burlington criterion for reimbursement.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim for tuition. Respondent argues that equitable considerations do not support petitioners’ claim for tuition because petitioners unilaterally placed their son in a private school before respondent had an opportunity to prepare an IEP for their son. Respondent does not allege, nor is there any indication in the record, that petitioners were unwilling to cooperate with the CSE after they referred their son. Based on the record before me, I find that petitioners have also prevailed on the third Burlington criterion for reimbursement (Application of a Child With a Disability, Appeal No. 97-20). I will now consider respondent’s alternative equitable claim. It argues that if I find that petitioners should be reimbursed, their reimbursement must be limited to the boy's private school tuition for the period from when the final notice of recommendation was provided to petitioners until the end of the school year. The record shows that petitioners referred their son to the CSE sometime in November of 1997. Pursuant to Jose P. et al. v. Ambach et al., 79 C 270, U.S. D.C. E.D.N.Y., 1982, respondent is required to evaluate each child referred to it within 30 school days after receipt of written notification that the child may be a child with a disability, and is required to arrange an appropriate educational placement within the shorter of either 30 days after the evaluation or 60 days after the referral. Based on the time frames set forth in Jose P., respondent was required to arrange an appropriate placement for petitioners’ son within 60 school days after the referral. I agree with respondent that petitioners are not entitled to an award of tuition reimbursement for the entire 1997-98 school year. The child was not referred to the CSE until sometime in November, 1997. Respondent was not required to arrange for an appropriate placement until 60 school days after petitioners referred their son. Therefore, I find that petitioners’ award for tuition reimbursement should be limited to the period of time between 60 school days after they referred their son to the CSE to the end of the 1997-98 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their son's tuition in the R.E.A.C.H. program of the Xavarian High School in accordance with the tenor of this decision.