98-057

        Petitioners appeal from the decision of an impartial hearing officer which found that respondent’s committee on special education (CSE) recommended an appropriate educational program for their son during the 1997-98 school year, and which denied petitioners’ request for tuition reimbursement for the cost of their son’s tuition at the Jewish Center for Special Education (JCSE) for that school year. The appeal must be sustained.

        At the time of the hearing, the child was a twelve year old student in a self-contained, special education, bilingual (English/Yiddish) class at the JCSE. He was reportedly born prematurely, and subsequently developed neurological problems. The child has a history of traumatic brain injury and seizures. In a medical documentation form dated January 4, 1994, the child’s medical diagnoses included hydrocephalus, controlled febrile convulsions, and delayed motor development. While the record includes very little information about the child’s history with respondent’s CSE, it does indicate that he was classified as mentally retarded and other health impaired. Additionally, while the record includes very little information about the child’s early educational history, he has apparently attended JCSE since the 1995-96 school year. JCSE is a private school which has not been approved by the New York State Education Department to provide special education to children with disabilities.

        The record shows that the child was receiving related services of speech/language, occupational and physical therapy while attending JCSE. In a related service progress report dated May 30, 1996, the child's physical therapist reported that the child had a moderate delay in advanced gross motor skills, as well as gait deviations. She also reported that the child had decreased range of motion and decreased strength in both lower extremities. The physical therapist recommended that the child continue to receive individual physical therapy three times per week for thirty minute sessions.

        In a June, 1996 progress report from the JCSE, the child’s teacher indicated that the child demonstrated steady progress in math. The child’s sight word vocabulary had increased, and improvement was noted in his comprehension, handwriting skills and memory skills. The child was described as having a friendly, outgoing pleasant personality, and he was well liked and eager to please.

        The child’s annual review was scheduled for June, 1996. The record does not indicate if that meeting took place. In June, 1996, the child was referred by his parent for an assistive technology evaluation. As a result of that referral, a classroom observation was conducted on September 12, 1996 by a district psychologist who indicated that he observed the child at the JCSE when the child was in writing class, working on the school computer, and participating in a cooking project which involved peeling carrots. The district psychologist noted that the child’s class was comprised of a teacher and an assistant, and five students. He further noted that there were no significant behavioral incidents during his observation. The district psychologist reported that the classroom teachers provided a structured, supportive environment, offering individual attention as needed.

        The district psychologist reported that the child had not yet developed reading or writing skills. He noted that the child was unable to copy from the marker board, write his name independently or copy the letters of his name, even when they were demonstrated to him. The district psychologist reported that the child was unable to perform even the most rudimentary skills needed for operating the computer. He could not turn the computer on and off, could not type letters without multiple repetitions, could not type his name correctly, and could not operate the mouse. The district psychologist indicated that the child could not cut carrots without assistance during the cooking project. He also required assistance putting on and taking off plastic gloves. The district psychologist concluded that the child did not have the most basic skills required to benefit from even the simplest software programs. He could not respond to voice commands to press specific keys, or enter a series of letters or numbers correctly. The district psychologist indicated that the child needed to learn such skills before sophisticated computer technology would be beneficial for him.

        In a psychological evaluation conducted on October 10, 1996, the child's scores on the Stanford-Binet Intelligence Scale: Fourth Edition were in the moderately retarded range. In general, the child scored in the three to five year old range. The district psychologist reported that the child’s verbal skills were better developed than his non-verbal skills. On the verbal subtests, the child was able to identify pictures of common objects, but could not explain the meaning of words. He also was able to repeat a sentence of 11 words. On the nonverbal subtests, the child was unable to recall two colored beads from working memory, could not match two dice, and was confused by the simplest tasks involving shape identification and matching. The child’s performance was not scoreable on either the Bender Visual-Motor Gestalt Test, or the Test of Nonverbal Intelligence.

        Respondent's psychologist noted that the child appeared tired and lethargic during the evaluation, reportedly due to his medication for seizures. The child also demonstrated signs of limited attention, but presented as a happy, cooperative, pleasant child. The district psychologist concluded that the child’s visual discrimination and visual motor skills were significantly impaired, and that he had a variety of cognitive and fine-motor impairments. The district psychologist noted that the child was in a full-time, self-contained class with a competent, dedicated staff of related service providers. He opined that the child’s placement and services appeared appropriate.

        In an educational evaluation conducted on October 10, 1996, the educational evaluator reported that the child was attending a self-contained class at the JCSE, where he also was receiving related services of speech/language, occupational and physical therapy. The educational evaluator noted that the child was extremely verbal and easily engaged in conversation. She further noted that he was distractible, had difficulty remaining on task and had difficulty maintaining a topic of conversation. The educational evaluator reported that the child’s verbal skills were his greatest strength. He responded appropriately to informal conversation, and was able to supply personal information. She further reported that though the child’s receptive language skills were delayed (upper second grade level), they were adequate for daily use. The educational evaluator indicated that the child’s visual motor and fine motor skills were an area of significant delay. He was unable to form any letters independently. While he was able to trace the letters of his first name, the educational evaluator described his tracing as shaky. She noted that he was able to roughly copy three shapes from a near-point model. The child also had difficulty with visual discrimination of similar shapes, letters and words. He was able to recite the letters of the alphabet in English and Yiddish, identify several letters in each language, recognize his name in Yiddish, and recognize approximately ten sight words in English. The educational evaluator opined that the child’s reading skills were affected by his impaired visual motor and visual discrimination skills.

        The child’s math skills were reported to be somewhat stronger than his reading skills. He was able to count by rote to 100, count by tens, count up to seven concrete objects, and identify numbers to ten. He also demonstrated understanding of most quantitative concepts, including small, medium and large, least and most, half and whole. The child was able to solve word problems, and tell time to the hour. The child’s teachers advised the educational evaluator that the child was sometimes distractible and required verbal refocusing. The educational evaluator opined that the child’s bilingual MIS-I class with related services of speech/language, occupational and physical therapy remained most appropriate in meeting his continuing needs.

        In a report dated October 15, 1996, the child’s speech/language therapist indicated that the child had moderate delays in receptive and expressive language skills. He also had deficits in auditory processing, comprehension, sequencing, expressive reasoning, as well as deficits in the use of age appropriate vocabulary. He demonstrated relatively good articulation and pragmatic skills. The speech/language therapist recommended that therapy be continued in order to facilitate further progress. She indicated that the therapy should focus on improving the child’s auditory processing and expressive language skills.

        The child’s occupational therapist reported in October, 1996 that the child had limited range of motion and weakness throughout both upper extremities. His fine motor skills also were weak. The occupational therapist noted that the child’s thoughts were often unrelated to the activity at hand and that he had poor short-term memory skills. She recommended that the child continue to receive occupational therapy three times per week for 30 minute sessions.

        The child’s IEP for the 1996-97 school year was developed by the CSE in October, 1996. The CSE continued the child’s classification as mentally retarded/other health impaired and recommended that he be placed in a bilingual modified instructional services-I (MIS-I) class with a student to teacher ratio of 15:1, with related services of speech/language, occupational and physical therapy. The IEP does not indicate the location of the program. In any event, the child remained at the JCSE for the 1996-97 school year.

        The child’s annual review to plan for the 1997-98 school year was held on June 4, 1997. A subcommittee of the CSE recommended that the child continue to be classified mentally retarded and other health impaired, and placed in a MIS-I program at P205, with related services of speech/language, occupational and physical therapy. Petitioners received written notification of the subcommittee's recommendation on June 25, 1997. The child’s mother was unable to observe the recommended program because school had ended, but she made arrangements to observe the program when school began in the fall. After having observed the proposed program, the child’s mother advised the school by letter dated September 29, 1997, that the proposed program was not appropriate because the "academics in the classroom were not consistent with her son’s IEP."

        In a note dated October 7, 1997, the child’s pediatrician indicated that the child could not ride on the school bus for more than 45 minutes because of seizure disorder. He recommended that the child travel in a minibus. The CSE subcommittee reconvened on October 20, 1997. The minutes from that meeting indicate that the discussion focused on the pediatrician’s request that the child travel to and from school on a minibus. The CSE recommended the same classification and program as it recommended at the child’s annual review in June, 1997.

        Petitioners requested a hearing on November 10, 1997. The hearing was held on December 12, 1997, January 28, February 9, and April 30, 1998. The hearing officer rendered his decision on August 11, 1998. He found that respondent’s CSE offered an appropriate placement. While that was dispositive of the matter, the hearing officer further found that petitioners would have met their burden of proving the appropriateness of their private placement. Based on his finding that respondent offered an appropriate placement, the hearing officer denied the parents' request for tuition reimbursement for the 1997-98 school year.

        Petitioners appeal from the hearing officer’s decision. They argue that respondent failed to meet its burden of proving the appropriateness of its program, and that they should be entitled to 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). 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 child’s IEP for the 1997-98 school year was developed at the June 4, 1997 annual review by a CSE subcommittee appointed by respondent. Pursuant to Section 4402 (1)(b)(1)(b) of the Education Law, the boards of education in city school districts of over 125,000 inhabitants must appoint subcommittees of the CSE to the extent necessary to ensure timely evaluation and placement of pupils with handicapping conditions. The membership of each subcommittee must include the child’s teacher as defined by applicable federal regulations, a representative of such school district who is qualified to provide, administer or supervise special education, and a school psychologist, whenever a new psychological evaluation is reviewed. The IEP lists four individuals as being in attendance at that meeting: the child’s mother, a district representative, a provider of educational services, and a principal. Petitioners claim that no parent member of the CSE was at the June, 1997 annual review meeting. However, there is no requirement that there be a parent member of the subcommittee, as is the case for a CSE. As the undated notice of recommended placement following the June 4, 1997 annual review provides, if a child’s parent disagrees with a subcommittee’s recommendation, the parent may submit a written request to have the matter referred to the full CSE. There is no evidence of a written request to do so in this case.

        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 argue that respondent failed to develop an IEP that would address the child’s needs with respect to his letter and word identification skills. They further argue that the goals are imprecise and that there is no direct relationship between the annual goals and the child’s present level of educational performance. Petitioners have not challenged their son’s IEP in terms of its description of the child’s needs. I have nevertheless reviewed the IEP, and I find that it generally reflects the results of the evaluations. However, I must note that it fails to describe the child's limited ability to remain on task and to work independently.

        The child's IEP includes two annual goals for reading during the 1997-98 school year: "To develop phonetic analysis and decoding skills," and "To develop comprehension skills with an emphasis on literal comprehension." I find that neither goal is sufficiently specific to provide meaningful guidance to the teachers who would be required to implement them (Application of a Child with a Disability, Appeal No. 93-34). While the short-term objectives for each goal provide some specificity, I must agree with petitioners that they do not appear to have been based upon their child's present levels of performance. For example, the objectives for the child's reading comprehension goals are that he will " … identify and state main ideas with 80% accuracy, and … answer five how and why questions, using a reading passage, with 80% accuracy." The objectives appear to be well above this child's levels of performance at the beginning of the 1997-98 school year. The child's IEP annual goals for social studies and science also appear to be well above his levels of performance. While it is to be hoped that each child will make significant progress in following the educational program set forth in his or her IEP, an annual goal is a statement of what the child can reasonably be expected to accomplish within a twelve month period (34 CFR Part 300, Appendix C, Question 38). Upon the record which is before me, I find that the child's IEP goals for reading, social studies and science are not reasonable expectations of what he could achieved during the 1997-98 school year.

        A child's IEP must also describe a set of special education services which will be provided and which will afford the child a reasonable opportunity to achieve his or her IEP annual goals. In this instance, the CSE subcommittee recommended placement in a MIS-I class with a child to adult ratio of 15:1, as well as the related services of speech/language therapy, physical therapy, and occupational therapy. There does not appear to be any dispute as to the appropriateness of the recommended related services.

        Petitioners contend that the MIS-I placement would be inappropriate to meet their son's needs because he required a smaller class and more structure. They rely upon the testimony of the child's JCSE teacher, who testified that the boy was a very low functioning student who had a short attention span and often needed teacher direction. She explained that the child could do very few activities on his own, and that material had to be presented to him in small amounts because of his perceptual problems. The teacher also testified that the boy was working below the first grade level, or at a functional curriculum. She indicated that he could not identify most of the letters of the alphabet and that his phonic skills were not really developed. Although he could count by rote, he lacked the number concept. I note that the teacher's testimony is consistent with the findings by respondent's psychologist and educational evaluators in their respective evaluations in October, 1996.

        At the hearing, two site supervisors testified on behalf of respondent. Neither witness had any personal knowledge of the child, but each was familiar with his records. Both witnesses opined that the boy would be appropriately placed in a MIS-I class at P.S. 205, and one offered a brief description of the educational program provided in the recommended class. However, I find that the brief description does not afford a reasonable basis for concluding that this child's individual needs would be addressed in a class composed largely of learning disabled students who appear to have been functioning at a higher level than this child. For example, all six children who were in the class at the time of the hearing were reported to be reading at the 1.6 – 2.5 grade level (Exhibit 1). Upon the record which is before me, I find that respondent did not meet its burden of proof with regard to the appropriateness of the special education services which it offered to provide to the child for the 1997-98 school year.

        With respect to the second criterion for an award of tuition reimbursement, petitioners bear the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the JCSE 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).

        As noted earlier, the hearing officer determined that petitioners met their burden of proving the appropriateness of the private placement they selected for their son. I agree. The record shows that the child was functioning at the first grade level. The child’s teacher testified that the child was very low functioning, with a short attention span and often needed teacher direction to remain on task. She further testified that the child needed a considerable amount of teacher involvement, and that it was necessary to pace his learning very slowly in order for him to master it. She indicated that because of his motor difficulties, the child could not write.

        The child’s teacher testified that the child’s class was comprised of five students who had common needs. She indicated that the program was tailor made for each individual student. In addition to academic subjects where the child’s lessons were presented at the most basic level, the child received prevocational training to develop skills that would lead toward a job. At the time of the hearing , the child was working in the school cafeteria setting tables. He also received life skills training focusing on identifying personal information such as name, address and phone number. He was taught to develop listening skills and other social skills. In addition, the child received travel training to teach him to cross the street safely. The program also included a computer class twice weekly.

        A private psychologist who observed the child in class at the JCSE testified that the child’s teacher was able to keep the child focused for approximately one hour, performing a variety of different educational lessons. He indicated that most of the instruction was individualized. He opined that the program at JCSE was appropriately dealing with the child’s needs. His testimony was unrefuted. Additionally, both the district psychologist and educational evaluator who prepared reports in the fall of 1996 indicated that the program at the JCSE was meeting the child’s needs. Upon the record before me, given the child’s level of functioning, I find that the child required special education in a setting that could offer individualized attention and minimize his distraction such as that offered by the private school in which he was placed by his parents. Therefore, I find that petitioners met their burden of proof with respect to the second of the three criteria for an award of tuition reimbursement.

        The third criterion for tuition reimbursement is whether equitable considerations support the parent’s claim for reimbursement. There is no evidence in the record to show that petitioners failed to cooperate with respondent. The child’s mother filed a request for a hearing in November, 1997 after she had observed the proposed program and during the school year for which tuition reimbursement is sought. I find that equitable considerations support petitioners' claim for tuition reimbursement.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenses for the cost of their son’s tuition at JCSE for the 1997-98 school year, upon presentation by petitioners of proof of payment for the child's tuition.