99-011

        Petitioner, the Board of Education of the Clarkstown Central School District, appeals from an impartial hearing officer's decision which held that petitioner had failed to demonstrate the appropriateness of the educational program its committee on special education (CSE) had recommended for respondents' daughter for the 1998-99 school year. The hearing officer ordered petitioner to reimburse respondents for the cost of their daughter's tuition at the private school in which they unilaterally enrolled her for that school year. Respondents purport to cross-appeal from the hearing officer's decision. The only relief they seek is an order directing petitioner " ... not to utilize pre-printed stock goals for all Middle School special education students." The appeal must be dismissed. The cross-appeal must be dismissed.

        Respondents' daughter is now 13 years old. The child's kindergarten teacher at petitioner's New City Elementary School reportedly had concerns about the girl's learning, but she did not refer the child to the CSE. The child was referred to the CSE by her first grade teacher during the 1992-93 school year because the teacher was reportedly concerned about the girl's difficulty following oral directions, and remaining focused while part of a group (Exhibit 4).

        On April 19, 1993, the child was evaluated by a school psychologist, who reported that she had achieved a verbal IQ score of 114, a performance IQ score of 98, and a full-scale IQ score of 107 (Ibid.). On the WRAT-R, which is an academic achievement test, the girl's reading and arithmetic skills were found to be at the pre-first grade level. Similarly, her word attack, word comprehension, and passage comprehension skills were found to be delayed when the Woodcock Reading Mastery Test was administered to her. On the Key Math Test - Revised, she achieved grade equivalent scores of 1.0 for basic concepts, 1.1 for operations, and K.2 for applications. The girl's greatest strength was in using language to demonstrate her acquired knowledge. However, she had difficulty using her language processing and problem solving skills to perform a numerical reasoning task. The school psychologist reported that the girl's academic performance was below expectation for a child with her cognitive skills and school experience. The school psychologist recommended that respondents' daughter be classified as learning disabled, and that she be placed in a self-contained, i.e., special education, classroom to provide her with intensive services, as well as the structure and support she needed to maintain her attention. The school psychologist noted that the child was being seen by a private psychotherapist, and she recommended that respondents, the therapist and the school communicate with each other.

        The CSE reportedly recommended that the child be classified as learning disabled, and that she be placed in a self-contained class. No self-contained classes were available at the child's school. The mother investigated self-contained classrooms at other schools in the district, but she did not find a class that she felt was appropriate for her daughter (R. 692). At the hearing, the child's mother testified that her daughter remained in a regular education first grade class, and received some resource room services. The child entered a self-contained class for the second grade in the fall of 1993. She remained in that class through the fourth grade (Transcript, page 699).

        In February, 1996, the child was re-evaluated by petitioner's school psychologist, who reported that the girl's activity level, attention span, and freedom from distractibility were generally within normal limits (Exhibit 5). The child achieved a verbal IQ score of 98, a performance IQ score of 83, and a full-scale IQ score of 90. I note that at the hearing, the school psychologist attributed the apparent decline in the child's IQ scores from her initial evaluation to the fact that a newer version of the IQ test with different norms had been used (Transcript, page 250). On the Wechsler Individual Achievement Test (WIAT), respondents' daughter achieved grade equivalent (and standard) scores of 1.6 (77) for basic reading, 2.6 (87) for reading comprehension, 2.1 (85) for mathematics reasoning, 3.3 (94) for numerical operations, and 2.0 (77) for spelling. The child was in the fourth grade at the time of the evaluation. She also obtained a standard score of 82 for written expression on the WIAT. On the Woodcock Reading Mastery Test, the child achieved grade equivalent scores of 1.9 for word identification, 1.8 for word attack, 1.8 for word comprehension, and 2.0 for passage comprehension. She also achieved grade equivalent (and standard) scores of 2.5 (84) for basic concepts, 3.4 (89) for operations, and 2.1 (78) for applications on the Key Math Test - Revised. The school psychologist reported that the child was able to orally express good ideas, but she had difficulty expressing herself in writing because of problems with spelling, sentence formation, capitalization, and punctuation. He further reported that the child's academic profile was consistent with her cognitive profile.

        The school psychologist recommended that the child's classification of learning disabled and placement of a self-contained classroom both continue. He also recommended that the child be mainstreamed for homeroom, special subject classes, lunch and recess, and participate in socialization groups, and that she receive speech/language services. He suggested that she have the testing modifications of special location, extended time, answers recorded in any manner, and having questions read to her. The child remained in a self-contained class for the fifth grade during the 1996-97 school year. During that school year, the child began to be privately tutored (Transcript, page 704).

        While in the sixth grade during the 1997-98 school year, the child was enrolled in self-contained classes for language arts, mathematics and science, and regular education classes for science, foreign language, and physical education. She was placed in the regular education science class at her parents' request. The child had the assistance of a note taker in her science class. The CSE recommended that she be removed from the foreign language class to receive speech/language therapy twice per week. The CSE also recommended the use of books on tape and an extra set of textbooks for use at home (Exhibit B).

        In October, 1997, the parents requested a meeting with the child's teachers to discuss their child's lack of progress (R. 708). The parents asked that their child's reading deficiencies be addressed, but they were reportedly told that the school district was bound to follow the mandated curriculum (R. 710). After that meeting, respondents hired a second tutor who was trained in the Orton-Gillingham technique to assist their daughter in reading. They subsequently employed a high school student to help the child with her homework. In a letter dated December 17, 1997, the parents requested that their child be removed from the mainstream science class because she was having difficulty, despite receiving individual attention from the teacher (Exhibit 7, R. 718). About the same time, the parents submitted an application for their child to attend the Windward School. The application was rejected (R. 724).

        In January, 1998, the parents submitted an application for their child to attend the Eagle Hill School in Greenwich, Connecticut (R. 725). Eagle Hill accepted the child, and the parents paid a tuition deposit for the 1998-99 school year by February 15, 1998 (R. 726). However, respondents reportedly did not enroll their daughter in the private school for the next school year until later in the 1997-98 school year. The child remained in petitioner's middle school for the rest of the school year. On her report card, she received grades of C+ for language arts and social studies, C- for science and math, and B for art and health.

        The CSE conducted its annual review of the child on April 22, 1998. It recommended that she continue to be classified as learning disabled during the 1998-99 school year. The CSE further recommended that the child be educated in a special education class with a 15:1 child to adult ratio for English/language arts, math, science and social studies, and be mainstreamed for elective subjects, a foreign language class, and physical education. The individualized education program (IEP) which the CSE prepared for the child (Exhibit 1) indicated that she would continue to receive 30 minutes of speech/language therapy twice a week.

        On May 4, 1998, the child was evaluated by a private psychologist who had been providing psychotherapy to her since the second grade. The psychologist reported that the child's visual motor integration skills were only slightly below age expectation. On the WIAT, the child received grade equivalent (and percentile) scores of 2.6 (76) for basic reading, 3.3 (82) for reading comprehension, 2.9 (77) for mathematics reasoning, 2.9 for numerical operations, 2.8 (73) for spelling, and 3.0 (84) for written expression. The psychologist opined that the child required a more specialized educational program (Exhibit A).

        In a letter dated June 4, 1998, the parents requested an impartial hearing. They challenged the appropriateness of the child's recommended placement for the 1998-99 school year and requested tuition reimbursement (Exhibit HO 1). The hearing began on September 1, 1998, and ended on October 5, 1998. At the hearing, the child's mother asserted that she never received due process notices from the school (R. 758). Two representatives of the district testified about the nature of the girl's IEP goals and objectives which were pre-printed and based on the regular seventh grade curriculum. The parents sought a ruling from the hearing officer about the appropriateness of using those goals and objectives for other children with disabilities in petitioner's district.

        In his decision dated January 5, 1999, the hearing officer declined to rule on petitioner's general policies and practices as the girl's parents had requested. With respect to respondents' claim that they had not been notified of their due process rights, the hearing officer concluded that the record did not contain sufficient evidence to determine whether or not the parents had received a notice detailing their due process rights during the school year in question, but it was clear that they had been made fully aware of their rights in previous years. The hearing officer noted that the parties' disagreement about the substance of the child's educational program centered upon differing perspectives about the outcome of the child's education. The CSE had determined to provide a curriculum based program with strategies to compensate for the child's weaknesses, while respondents preferred to concentrate upon remediating her weaknesses. The hearing officer found that it was incumbent upon the CSE to carefully draft annual goals and short-term objectives which would allow it to quickly determine whether the child's educational program was functioning successfully, and that petitioner's CSE had failed to do so. He found that the child's IEP was therefore inappropriate. The hearing officer further found that Eagle Hill's program was appropriate for the child, and he directed the Board of Education to reimburse the parents for their expenditures for tuition at the private school.

        Petitioner challenges the hearing officer's determination that it had not met its burden of demonstrating the appropriateness of the program recommended by its CSE (see 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), because of the defective IEP. 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).

        As its name suggests, an IEP is a plan tailored to meet the individual needs of the child. It must first identify the nature of the child's disability, and accurately describe the effect of the child's disability on the child's performance in academic and non-academic areas of school. IEP annual goals are statements which describe what the child can reasonably be expected to achieve within a 12-month period in his or her special education program (former 34 CFR Part 300, Appendix C, Question 38). Each annual goal must have short-term instructional objectives, which are measurable, intermediate steps between the child's present levels of performance and his or her annual goals (Ibid, Question 39). In this instance, the goals and objectives portion of the IEP appears to be a pre-printed form with a very general statement that the student "will improve skills in: English at the 7^th grade level, math at the 7^th grade level, social studies and science". Under each so-called goal, there are four to six statements which appear to be objectives. For example, one of the English goal objectives reads:

"Identify significant literary elements in poetry (including metaphor, rhyme and meter) and use those elements to interpret the work."

        For mathematics, one of the IEP objectives was:

"Apply concepts of geometry and algebra."

        At the hearing, petitioner's CSE chairperson testified that each student in petitioner's seventh grade self-contained program had the same set of preprinted annual goals (Transcript, page 39). Those goals were intended to reflect the expectation that pupils in the self-contained program could master the curriculum at the appropriate grade level with assistance. The preprinted IEP objectives were based upon the content of the regular education seventh grade curriculum. He explained that the students in the self-contained program were being prepared to obtain a Regents diploma at the end of high school (Transcript, page 44). The deputy CSE chairperson testified that:

"The long- and short-term objectives for the seventh grade are based on the seventh grade. If there are particular students who need more individualized goals, then that would be something we would have to address. But at this point, we haven't been dealing with it that way" (Transcript, page 177).

        As noted above, the child for whom these objectives were intended was reading at an early third grade level, and her math skills were at an end of second grade level according to the private psychologist's May, 1998 report, which was prepared after the IEP was completed. The child's IEP indicated that she was reading at a grade equivalent of 5.4, based upon her performance on the Iowa Tests of Basic Skills. However, the CSE chairperson acknowledged that the test had been read to the child (Transcript, page 163). In any event, the child was described in her IEP as having significant weaknesses in decoding, reading comprehension, written expression, and spelling. The IEP also indicated that she needed a great deal of repetition in math when a skill was introduced. The child's IEP goals and objectives express the expectation that she would be able to achieve mastery of the regular education seventh grade curriculum at an 80 percent level by the end of the 1998-99 school year. However, the IEP does not reveal how that expectation could be realized, or what would be the intermediate steps along the way at which the child's teacher, her parents and the CSE could determine whether she was in fact making progress towards her goals of achieving seventh grade reading and mathematics skills.

        The IEP also fails to disclose how the specific disabilities which affect her performance in reading and math will be addressed to remediate the deficits in her skills, or provide her with compensatory techniques to overcome the effect of her disabilities. The CSE chairperson and deputy chairperson testified that the child was to have received language arts instruction for two periods each day. Although they each expressed a belief that the child's deficits in reading decoding and comprehension, written expression, and spelling could be addressed during the second period of language arts, neither witness could explain how it would be done (Transcript, pages 165, 179). The IEP does not include any goal or objective for the remedial work which was to be done in the second period of language arts. Although the IEP indicates a need for repetition of instruction and the use of a calculator for math, it does not reveal how the expected improvement in her math skills would occur.

        There is nothing wrong in referring to curriculum content in preparing an IEP. Indeed, I recognize, as did the hearing officer, that petitioner was in the process of making a good faith effort to prepare its special education students to meet the challenge of obtaining a Regents diploma. However, a child's IEP must still prescribe a plan for delivering special services to address specific deficits so that the hoped for results are achieved. I find that this child's IEP failed to do that, and I concur with the hearing officer's determination that petitioner had failed to meet its burden of proof.

        A board of education may be required to pay for the 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]). I have found that the Board of Education failed to meet its burden with respect to the appropriateness of the services which it had offered to provide the child during the 1998-99 school year.

        The burden of proof now shifts to the parents with regard to the appropriateness of the educational services which they obtained from the Eagle Hill School during the 1998-99 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). Petitioner contends that the hearing officer erroneously concluded that the child's parents had met their burden of proof.

        At the time of the hearing, the child had only recently begun to attend the Eagle Hill School. Therefore, the record does not include evidence of her achievement while attending the private school during the 1998-99 school year. That is not, however, an insurmountable obstacle to respondents' recovery of their tuition expenditures. Ms. Rayma-Joan Griffin, the Director of Admissions and Placement at Eagle Hill, testified that the private school serves language-based learning disabled students in a "language immersion" program. Respondents' child was assigned to participate in four language arts classes, which emphasized different aspects of language and which had varying student-teacher ratios. She was assigned to an 8:1 literature class, a 6:1 writing class, and two 1:1 tutorial classes. The tutorial classes addressed the child's needs in reading decoding and comprehension. In addition to language arts, the child's program included a history class, a math class, and a supervised study hall. Ms. Griffin testified that the child's math program was tailored to address the girl's specific needs. The child also had an academic advisor who consulted with her teachers on a weekly basis. Ms. Griffin testified that the child appeared to be doing very well academically and socially in her first week of school.

        At the hearing and in this appeal, the Board of Education has attempted to argue that the child's placement at the Eagle Hill School was inappropriate because it allegedly would not enable her to meet the requirements for a Regents diploma at the end of the twelfth grade. I am not persuaded by that argument. First, I note that the school year in question is for the seventh grade. Second, I must point out that the private school was to provide content instruction, as well as remediation of basic skills. I have also considered the fact that the Eagle Hill School, in which the child was enrolled as a day student, accepts only learning disabled students. The CSE recommended that the child be in a self-contained classroom, and she would have only had the opportunity to interact with non-disabled peers during foreign language, physical education and lunch. Therefore, the private school placement was not significantly more restrictive than the public school. I find that the program developed for the child at Eagle Hill appropriately addresses the child's needs. Therefore, I find that respondents have met their burden of proof with respect to the appropriateness of the educational services which they obtained for their daughter.

        The next question is whether equitable considerations favor the parents' claim for an award of tuition reimbursement. The evidence shows that the parents were consistently in contact with the CSE about their concerns. I find that there is no reason to disturb the hearing officer's finding with respect to respondents' awareness of their due process rights. Although the parents did not inform the CSE that they had registered their child for Eagle Hill until they submitted their request for an impartial hearing, I must point out that the new requirements imposed by the 1997 amendments to the Individuals with Disabilities Education Act did not take effect until July 1, 1998. The record indicates that respondents cooperated with the CSE. I find that equitable considerations support the parents' claim for tuition reimbursement.

        The parents cross-appeal seeking an order directing petitioner " ... not to utilize pre-printed stock goals for all Middle School special education students." Although respondents lack standing to bring an appeal on behalf of all current and future special education students in the middle school, I direct their attention to 34 CFR §300.662. That regulation requires each State educational agency to establish a procedure for investigating and resolving general complaints about a board of education's alleged violation of Federal statute of regulations. Respondents should address their complaint to the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.