98-054

        Petitioners appeal from an impartial hearing officer's decision upholding a recommendation by respondent's committee on special education (CSE) that their daughter be educated in a regular education fourth grade class with one period of resource room services per day during the 1997-98 school year. The hearing officer rejected petitioners' contention that their child's needs would not be adequately addressed by resource room services, and denied their request for an order requiring respondent to reimburse them for the cost of their child's tuition at the Mary McDowell School. The appeal must be sustained in part.

        I will first address the procedural issues which the parties have raised. Respondent asserts that the copy of the petition which was served upon it on September 14, 1997 did not include a notice with petition, as required by 8 NYCRR 279.3. However, a notice with petition was attached to the copy of the petition which was served upon respondent on September 16, 1997. I find that respondent's claim of improper service is without merit. Respondent also contends that this appeal is untimely. It asserts that the hearing officer rendered her decision on July 31, 1998, but the petition was not initially served until September 14, 1998, which was the 45^th day after the decision was rendered. 8 NYCRR 279.2 (b) provides that the petition must be served within 40 days after the decision was received. In their reply to the answer, petitioners assert that they received the hearing officer's decision on August 4, 1998, and that the 40^th day after that date was Sunday, September 13, 1998. They served the petition on the following day. Under the circumstances, I find that the appeal is timely. Petitioners contend that respondent's answer should be rejected because it was not properly verified. The answer filed with the Office of State Review has been verified by respondent's counsel, as is permitted by 8 NYCRR 275.5. Therefore, I will accept the answer.

        Petitioners' daughter, who is ten years old, reportedly attended a church related preschool and kindergarten program in Bay Ridge, New York. She was thereafter enrolled by petitioners in the Windmill Montessori School, which she attended for the first through the third grades. At the hearing in this proceeding, the child's mother testified that the girl's teachers had informed her that the girl had a reading problem at the end of the first grade. They referred her to a private testing facility. The testing facility advised the child's mother that the girl had a visual perceptual problem, but recommended that she remain in the Montessori School, which she did for the second and third grades. The child was privately tutored for approximately two hours per week while in the second and third grades. I note that while in the second grade in May, 1996, the child achieved grade equivalent scores of 1.6 for reading vocabulary, 2.4 for reading comprehension, 3.2 for mathematics computation and 2.3 for mathematical concepts and applications on the California Achievement Tests (Exhibit G). In May, 1997, her grade equivalent scores on the California Achievement Tests were 3.3 for reading vocabulary, 2.7 for reading comprehension, 4.7 for mathematics computation and 5.4 for mathematical concepts and applications. The applications subtest was reportedly read to the child, and each of the achievements test was reportedly untimed. On the Statewide Pupil Evaluation Program third grade reading tests, the child scored slightly below the Statewide reference point, but her score on the companion third grade mathematics test was above the Statewide reference point.

        On June 5, 1997, the child's mother completed an application to enroll her daughter in the Mary McDowell School in New York City. The child was screened at the private school on June 12, 1997, and she was accepted for admission on June 16, 1997. The Mary McDowell School is a private school for learning disabled children, but it has not been approved by the State Education Department to provide instruction to children with disabilities in accordance with the provisions of Article 89 of the Education Law. Petitioners unilaterally enrolled their child in the Mary McDowell School for the 1997-98 school year. She was attending that school at the time of the hearing in this proceeding.

        On June 30, 1997, the CSE of Community School District 22 received a written referral of the child by her mother, who requested that the girl be immediately evaluated. I note that although petitioners reside in Community School District 20, the referral was addressed to and handled by the CSE of Community School District 22, apparently because the Montessori School was located in that Community School District. In a social history which was given on July 9, 1997, the child's mother reported that her daughter had been experiencing academic difficulties, especially in the areas of reading and copying. She believed that the child had a learning disability which was visual perceptual in nature (Exhibit 2).

        The child was evaluated on July 9, 1997 by a school psychologist who reported that the child's score on the verbal IQ portion of the Wechsler Intelligence Scale for Children – Third Edition was in the average range. Although the child's score on the performance IQ portion of that test was also in the average range, her scores on various subtests ranged from superior to below average. She manifested a weakness in visual analysis and had poor non-verbal problem solving ability. She reportedly had difficulty perceiving a whole object, as well as understanding the relationship of the individual parts of the object. The child demonstrated inadequate visual motor integration skills on a separate test of those skills. The school psychologist reported that the child was motivated and eager to succeed, and did not feel inadequate despite her learning difficulty. She opined that resource room services could benefit the child by providing strategies to improve her reading skills (Exhibit 3).

        Petitioners' daughter was also evaluated by an educational evaluator on July 9, 1997. The child was almost nine years old, and had just completed the third grade when she was evaluated. The educational evaluator reported that the girl's associative language skills were at the 63^rd percentile, which was in the average range, and that her oral language skills were adequate. The girl achieved a 3.0 grade equivalent score for broad reading on the Woodcock Johnson Psycho-Educational Battery, Revised. Her word identification skills were at a 2.8 grade equivalent, while her passage comprehension skills were at a 3.3 grade equivalent. The educational evaluator reported that the child displayed a limited sight vocabulary. The child demonstrated adequate comprehension with oral text, leading the evaluator to conclude that the child's difficulty in reading was in decoding. The child achieved a grade equivalent score of 3.0 for broad mathematics, which was in the below average range. Her computational skills were at a 3.5 grade level, while her applied problem skills were at a 2.3 grade level. She was reportedly unable to solve any two-step verbal problems. The educational evaluator informally assessed the child's writing skills to be in the upper second to beginning third grade range. The child's science skills were at a grade equivalent of 6.9, while her social studies skills were at a grade equivalent of 4.8. The educational evaluator opined that the child would benefit from a remedial program which focused upon the development of her sight vocabulary and problem solving skills.

        On July 21, 1997, the CSE met with the child's mother to review the results of the child's evaluations. The CSE recommended that the child be classified as learning disabled. I note that although petitioners dispute the nature and severity of their child's learning disability, they do not challenge her classification as learning disabled. The CSE recommended that the child be enrolled in a regular education fourth grade class, while receiving supplemental instructional services (resource room services) for one period per day. The individualized educational program (IEP) which the CSE prepared for the child did not provide for any related service for her, but did provide that the time limits for her tests be extended by fifty percent. Her IEP annual goals were to increase her sight vocabulary and reading comprehension, as well as to develop her computation and verbal problem solving skills in mathematics. By letter dated July 23, 1997, petitioners were offered a placement for their child in respondent's P.S. 52.

        On September 11, 1997, petitioners' attorney requested an impartial hearing for the child. A hearing was scheduled for September 25, 1997, but it was adjourned at petitioners' request until December 17, 1997. It was further adjourned at petitioners' request until January 28, 1998. The hearing began on that date, and continued for four additional days. It ended on April 27, 1998.

        In her decision dated July 31, 1998, the hearing officer denied petitioners' request for tuition reimbursement at the Mary McDowell School on two grounds. First, she held that under the Individuals with Disabilities Education Act (IDEA), as amended on June 4, 1997, petitioners were precluded from receiving tuition reimbursement because their child had not previously received special education from respondent, and had been unilaterally enrolled in the private school. She noted that the child had never been enrolled in respondent's schools. As a second ground for denial of tuition reimbursement, the hearing officer found that the child had mild delays which could be remediated with the recommended resource room program, and she did not require the more restrictive placement which petitioners desired. She concluded that the CSE's recommendation was therefore appropriate for the child.

        Petitioners object to the manner in which the hearing in this proceeding was conducted, and they allege that the hearing officer was biased against them. They assert that on three occasions, the hearing officer appeared to be sleeping during the hearing, but they acknowledge that they did not object because the hearing officer had reportedly put their attorney on the defensive. They further assert that the hearing officer had discouraged them from submitting corrections of the transcript. A hearing officer must avoid even the appearance of impropriety, and must render a decision which is based upon the record (Application of a Child with a Disability, Appeal No. 94-32; Application of a Child with a Disability, Appeal No. 96-58). I have reviewed the entire record, and I find that there is no evidence of any bias by the hearing officer against petitioners.

        Petitioners challenge the hearing officer's determination that they were precluded from obtaining an award of tuition reimbursement because of the 1997 amendments to the IDEA. They argue that the provision in question, 20 USC 1412 (a)(10)(c)(ii), did not take effect until July 1, 1998, and that their entitlement to an award of tuition reimbursement should be determined by the law which was in effect prior to July 1, 1998. Various provisions of the IDEA were amended by Public Law 105-17. Those amendments were generally effective on June 4, 1997. Although certain of the 1997 amendments to the IDEA did not take effect until October, 1997, January, 1998, and July 1, 1998, the amendment to 20 USC 1412 which is at issue in this proceeding was effective on June 4, 1997. Therefore, I find that petitioner's argument is not well founded.

        Petitioners argue that even if the provisions of 20 USC 1412 (a)(10)(c)(ii) were in effect when they referred their child to respondent's CSE at the end of June, 1997, the statute's alleged prohibition against payment for tuition did not apply to them because they come within one or more of the statute's exceptions. The statute, as amended, 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."

        The two exceptions upon which petitioners rely are found in 20 USC 1412 (a)(10)(c)(iv). They involve petitioner's claim that compliance with certain notification requirements before removing the child from the public school would have likely resulted in physical or serious emotional harm to the child and respondent's alleged failure to notify them of their responsibility to notify respondent of their intention to remove their daughter from respondent's schools. Since the child was never in respondent's schools, I find that the exceptions do not apply to petitioners. However, that is not dispositive of the matter.

        In Application of a Child with a Disability, Appeal No. 98-25, it was noted that neither House Report No. 105-95 with regard to the bill which became Public Law 105-17, nor the new Federal regulations implementing the 1997 IDEA amendments, addressed the issue of whether the provisions of 20 USC 1412 (a)(10)(c)(ii) apply to a child who has never attended public school. The statutory provision affirmatively states that tuition reimbursement may be obtained under certain circumstances, if the child had previously received special education and related services under the authority of a "public agency". In effect, the hearing officer in this proceeding inferred that if the child had not previously been receiving special education and related services from respondent, there was no statutory authority to award her parents the relief of tuition reimbursement. However, the authority for that relief is in 20 USC 1415 (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). Absent evidence of congressional intent to limit such awards, I decline to construe the provisions of 20 USC 1412 (a)(10)(c)(ii) as precluding an award of tuition reimbursement to petitioners because their child had not been enrolled in respondent's schools before petitioners placed her in the Mary McDowell School. Accordingly, I must annul the hearing officer's decision with respect to that issue.

        Petitioners also challenge the hearing officer's determination that respondent's CSE had recommended an appropriate educational program for their daughter. They assert that the hearing officer did not adequately analyze the case which they presented because she allegedly failed to understand the nature and extent of the child's disability. Petitioners rely upon the results of a private psychological evaluation which was performed on November 26 and 18 and December 3, 1997. In her report (Exhibit A), the psychologist concurred with the school psychologist's finding that the child was cognitively functioning in the average range, but noted that the child had "pockets of pronounced weakness along with areas of strength." The psychologist reported that the child displayed somewhat greater strength handling tasks which involved verbal stimuli than those with visual and visual-motor stimuli. She indicated that the child had good verbal comprehension skills, but demonstrated weakness in expressive language, phonological coding ability, and automatic naming ability. In addition to the visual-motor integration deficit which the school psychologist had reported, the child was found by the private psychologist to have a visual closure deficit. She also reported that the child's delayed recall of visual stimuli was below average, and that the child demonstrated a tendency to impulsivity. The private psychologist opined that the child's self-concept as a learner was impaired. Although the child's score for reading comprehension was in the average range on the Gray Oral Reading Test, her rate of reading and accuracy were below average. The private psychologist opined that the child's combined deficits required that she be educated in a more structured and self-contained environment than had been recommended by the CSE.

        In addition to challenging the depth and thoroughness of the evaluations which were performed for the CSE, petitioners point out that the CSE did not have the child observed in class, as it was required to do by 8 NYCRR 200.4 (b)(4)(vii). Federal regulation (34 CFR 300.542) also requires that a child suspected of having a specific learning disability be observed in a regular classroom setting. Petitioners' child was ultimately observed in her classroom at the Mary McDowell School by two CSE representatives on December 16, 1997, almost five months after the CSE had made its recommendation. There is no written report of the observation, although the two CSE representatives testified about what they had observed at the hearing. Although the child was not referred to the CSE until June 30, 1997, when most regular education classes had ended for the school year, the fact that the child was not attending classes during the summer did not relieve the CSE of its obligation to observe the child (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 96-1). Indeed, the Federal regulation provides that if the child is not in school, he or she must be observed in an environment which is appropriate for a child of that age.

        Although petitioners have not raised it, I must note that there is no evidence in the record before me that the CSE had the results of a physical examination of the child when it made its recommendations for her classification and placement. An initial evaluation upon the referral of a child to a CSE must include a physical examination (8 NYCRR 200.4 [b][1][i]). A CSE may accept a report by a child's physician in lieu of having the child examined by the school physician. However, there is no evidence of a private physical examination in the record. While there is no dispute that the child should be classified as learning disabled, the parties do disagree about the extent of the child's learning disability and the special education services which the girl needed. The two missing components of a complete evaluation could have provided useful information. Under the circumstances, I must find that respondent has failed to meet its burden of proving the appropriateness of its CSE's recommendation because of the CSE's failure to obtain the results of a physical examination and its failure to conduct a timely observation (Application of a Child with a Disability, Appeal No. 93-1).

        I have also considered petitioners' contention that the CSE's recommendations should be annulled because the child's teacher was not invited to participate as a member of the CSE at the July 21, 1997 CSE meeting. I find that petitioners' contention is without merit. Since the child was not enrolled in respondent's schools, respondent was free to designate a qualified individual to serve as the teacher member of the CSE (34 CFR 300.344 [Note C]).

        A board of education may be required to pay for educational services obtained for a child by his or her parents, if the services which the board of education offered to provide were inadequate or inappropriate, the services which the parents obtained were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra; Florence County School District Four et al. v. Carter by Carter, supra). While the board of education bears the burden of proof with regard to the educational services which it offered to provide, the burden of proof shifts to the parents with respect to the services which were provided by the Mary McDowell 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). 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 meet their burden of proof, petitioners must show that the services were "proper under the act" [IDEA](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 record reveals that petitioners' daughter had deficits in her reading decoding skills and sight word vocabulary which manifested themselves in a below average rate of reading, poor spelling, and difficulty solving mathematical word problems. Although the child also had a minor deficit in her reading comprehension skills, the deficit appeared to be another manifestation of her decoding and sight vocabulary deficits, rather than a language processing problem as the private psychologist had suggested. Indeed, the child's scores on the portions of the Test of Language Development-2 and Clinical Evaluation of Language Fundamentals – Revised were in the average range, except for word ordering which was in the low average range. The child's handwriting was immature, but nevertheless legible. While the private psychologist also opined that " … secondary emotional problems are already crystallizing" (Exhibit A), I am not persuaded either by her explanation at the hearing, or any other evidence in the record, that the child's emotional condition was also one of her special education needs during the 1997-98 school year.

        Petitioners' daughter was enrolled in a class of eight children at the Mary McDowell School in the fall of 1997. One of the children died in December, 1997, so that there were seven in the class for the remainder of the 1997-98 school year. There were two teachers assigned to the class, which was divided into small groups for instruction in reading and mathematics. Petitioners' child was instructed in a group of two for reading and mathematics. The child was described in a class profile as having beginning second grade reading skills with comprehension difficulties (Exhibit F), notwithstanding the scores which she had achieved on the untimed California Achievement Test in May, 1997, and the Woodcock Johnson Psycho-Educational Battery in July, 1997. She was paired for reading with a child who was described as having beginning third grade reading skills with comprehension difficulties. At the hearing, the child's teacher testified that petitioners' daughter was appropriately paired with the other student because she was concentrating on improving their reading comprehension skills. However, the record reveals that the child's area of weakness in reading was in decoding. Her teacher testified that she employed the Orton-Gillingham methodology to teach reading to petitioners' child. However, there is no standardized test result or other objective evidence of the child's progress in reading during the 1997-98 school year. I note that the reading book which the child was reportedly using in December, 1997 was at a grade level which the child had reportedly achieved the preceding May. Although the child reportedly did well in each of her subjects at the Mary McDowell School I note that the record reveals that she was not required to read textbooks in either social studies or science.

        While attending the Mary McDowell School, petitioners' daughter also received the related services of speech/language therapy with the rest of her classmates once per week. I note that the class profile describes specific speech or language needs for each of the children in the class, except petitioners' daughter. I am unable to conclude from the record which is before me that the child required the related service of speech/language therapy during the 1997-98 school year.

        The record reveals that petitioners' child was educated during the 1997-98 school year in a private school which serves learning disabled children, except for one period of instruction per week in a neighboring regular education private school. As part of their burden of proof , petitioners must show that their child's placement was 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]). This child's special education needs centered upon her reading decoding and sight word vocabulary skills. Respondent's witnesses testified that those skill deficits could be addressed in a resource room program. While petitioners' witnesses insisted that the child needed a full-time special education placement during the 1997-98 school year, I am not persuaded of that by the record which is before me. This child had not previously received any special education service, and her academic skills were not that far behind those of her peers. A full-time special education placement is a highly restrictive placement which should be used only when less restrictive placements have been tried and found to be ineffectual. That is not the case in this proceeding. Accordingly, I find that petitioners have not met their burden of proof because they did not demonstrate how the private school was meeting their child's needs, or that the private school was the least restrictive environment in which the child could have been educated.

        I have considered petitioners' other contentions which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's findings that petitioners were precluded from seeking the remedy of tuition reimbursement under the IDEA because their child had not previously received special education from a public agency, and that respondent had met its burden of proof with regard to the appropriateness of the educational services which it had offered to provide to the child during the 1997-98 school year, are hereby annulled.