99-015

         Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for the cost of their daughter's tuition at Gesher Yehuda for the 1998-99 school year. The hearing officer denied petitioners' claim despite having found that respondent failed to prove that it offered an appropriate placement for the child for that school year. The appeal must be sustained.

        Petitioners' daughter was 10 years old and in an ungraded class at Gesher Yehuda at the time of the hearing. Gesher Yehuda is a private, parochial school located in Brooklyn, New York. The child attended Beth Jacob, which is also a private, parochial school in Brooklyn, commencing with the 1993-94 school year. She was in first grade during the 1994-95 school year and repeated that grade at Beth Jacob during the 1995-96 school year. The child was initially referred to respondent's committee on special education (CSE) in Community School District 20 in November, 1995 by her parents. The CSE classified the child as learning disabled, and recommended that she receive resource room services. However, petitioners reportedly did not accept the recommendation because they believed it would be traumatic for their daughter to travel to a public school from Beth Jacob to receive the recommended services. In January, 1997 the child's family moved to Community School District 21. Petitioners enrolled their daughter in Gesher Yehuda for the 1997-98 school year.

        In an individualized education program (IEP) dated November 5, 1997 and prepared by Gesher Yehuda, the child's reading skills were reported to be at a primer level. The IEP indicated that the child was learning to read in a phonics program. The child was able to rote count to 1000, and could add and subtract using single digit numbers. She knew the monetary value for coins, and could tell time to the hour. The IEP also indicated that the child had entered the school in September, 1997 with a history of selective mutism, but began speaking to her peers in informal social situations and volunteering in class in a barely audible voice. The girl was described as displaying some obsessive behaviors, and becoming frustrated when she was unsure of herself or when the work became more challenging. The IEP also noted that the child presented as extremely anxious, and that anxiety was holding her back from engaging in more spontaneous academic and social interactions (Exhibit D).

        In a report dated March, 1998, the child's teacher noted that the child had difficulty discriminating between similar letters and pictures. The child also had difficulty reading words with blends. The teacher further indicated that the child required much prompting when reading because she tended to revert to silence when she was unsure of any part of a word. She noted that the child's comprehension of number concepts and place value was good. The child was reportedly able to add and subtract up to the number 18. Her communication with peers and class participation continued to improve, but she still spoke in a barely audible voice (Exhibit C).

        The child was referred to the CSE in Community School District 21 on May 25, 1998 by her parents. The CSE reportedly treated the referral as an initial referral because the program recommended by the CSE in Community District 20 was never accepted by petitioners, and the child had not received any services as a result of that referral.

        On June 4, 1998, when the child was ten years old, a private psychological screening of the child was conducted. The psychologist reported that the child lacked self-confidence, and only responded when she was sure of an answer. He noted that the child's speech language/skills were adequate for testing purposes On the Stanford-Binet Intelligence Scale, the child achieved a mental age of six years old, and an IQ of 60, placing her in the mentally defective category. She tested below average in all areas. The psychologist reported that the child demonstrated weaknesses in vocabulary, social judgment, auditory memory, abstract reasoning and verbal analogies. Her fine motor coordination skills were at the level of a seven year old. The private psychologist recommended that the child be placed in a small class to receive individual attention, and he suggested that special education be considered.

        A social history was conducted on June 14, 1998 based upon an interview with the child's mother. The child's aunt served as a representative and interpreter for the child's mother, who spoke Arabic. The social worker reported that Arabic and English were spoken in the home, and that the child was taught English and Hebrew at school. She indicated that the child was in immediate need of glasses due to a severe visual impairment which had been neglected for four years. The child's aunt advised the social worker that her niece had eating problems. She indicated that her niece did not eat enough and wasn't regularly provided a lunch for school. The social worker noted that the child's nutritional needs required immediate attention and follow-up. She described the child's social/emotional issues at school as acute and indicated that the reporting of selective mutusim was a major concern. The social worker recommended the services of a health paraprofessional in school and/or at home.

        The child was evaluated by a school psychologist on June 14, 1998. The school psychologist noted that the child was extremely small and appeared much younger than her age. The psychologist further noted that the child spoke very little throughout the evaluation and that it was difficult to obtain a verbal response from her. On the WISC-III, the child obtained a verbal IQ score of 54, a performance IQ score of 73, and a full scale IQ score of 60, placing her in the mentally deficient range of intellectual functioning. The psychologist noted that in a prior evaluation conducted in 1995, the child had achieved a verbal IQ score of 68, a performance IQ score of 72, and a full scale IQ score of 70, with a scatter analysis suggesting the possibility of greater potential. The child's current scores showed a regression in the verbal area. The psychologist noted that the child's hesitancy and/or inability to respond verbally even when she knew an answer was significant. She indicated that the child's scores would have been lower had she scored the child's initial non-responses. The child scored in the borderline to deficient range on all subtests except for spelling, where she scored in the average range. She demonstrated significant weaknesses in vocabulary, social comprehension and verbal reasoning. On the Bender Gestalt test of visual motor functioning, the child scored at the 7-6 to 7-11 year level. The psychologist reported that the child was either unable or unwilling to participate in the projective part of the evaluation. However, the child did complete some figure drawings which indicated that she might be experiencing feelings of low self-esteem.

        An educational evaluation was conducted on June 14, 1998. The educational evaluator reported that the child was hard to understand because she tended to whisper, and spoke in short phrases only when spoken to by the examiner. On the Woodcock-Johnson Psycho-educational Battery, Revised (WJ-R), the child achieved age equivalent scores of 7-2 in broad reading, 7-4 in letter-word identification, and 7-0 in passage comprehension. The educational evaluator described the child as a "virtual non-reader" based upon her performance on the Durrell Oral Reading Test. She was assessed to be reading at a preprimer level. Her listening comprehension was also assessed to be at a preprimer level. The educational evaluator reported that the child was significantly delayed in math skills, having achieved an age equivalent score of 8-0 in broad math. An informal assessment revealed that the child's knowledge was delayed, as were her writing skills. The educational evaluator recommended that a multisensory phonics approach be used to teach the child to read.

        In a medical report dated July 14, 1998, the child's physician indicated that the child had been born prematurely, and had a longstanding history of developmental and growth delay. He reported that she was 40 inches tall and weighed 34 pounds, and that her growth retardation placed her in the dwarfism category.

        The CSE met on July 22, 1998 and recommended that the child be classified as learning disabled and placed in a modified instructional services I (MIS-I) program with a child to adult ratio of 15:1 at P.S. 101. It should be noted that on June 16, 1998, petitioners had contracted with Gesher Yehuda for their daughter's education during the 1998-99 school year. In a letter dated August 7, 1998, the child's mother advised the CSE that she could not accept the placement without observing it and requested an appointment to do so. The child's mother observed the recommended program, which she found to be inappropriate. She subsequently advised the CSE in writing that she intended to reenroll her daughter at Gesher Yehuda, and she requested an impartial hearing seeking tuition reimbursement (Exhibit B).

        The hearing was held on November 12, 1998. The hearing officer rendered her decision on January 25, 1999. She found that the board failed to prove that it recommended an appropriate placement for the child. However, she also found that petitioners were not entitled to reimbursement because their daughter was not receiving services from a public agency when she was placed in a private school. Additionally, she found that the child's parents failed to notify the CSE in a timely manner that they had enrolled their daughter in a private school.

        Petitioners appeal from the hearing officer's decision. They assert that the hearing officer erred in her determination that they were not entitled to reimbursement because the child had not previously received special education services from a public agency. They further assert that Gesher Yehuda addressed their daughter's special education needs. Additionally, petitioners claim that they provided timely notice to the CSE of their daughter's enrollment in private school, and that equitable considerations support their claim for tuition reimbursement. Finally, petitioners argue that the CSE's testing was flawed, and that their daughter is functioning at a lower level than the CSE's evaluations reflect.

        Petitioners seek 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 hearing officer found that petitioners are not entitled to tuition reimbursement because the child had not previously received special education services from a public agency. I have previously addressed this issue in Application of a Child with a Disability, Appeal No. 98-25. As I noted in that decision, absent convincing evidence to the contrary, I cannot conclude that the 1997 amendments to the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA) were meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education from a school district. Consequently, I find that the fact that this child had not previously received special education from respondent is not dispositive of petitioners' claim for an award of tuition reimbursement.

        With respect to the first criterion for an award of tuition reimbursement, whether the services offered by the board of education are adequate or appropriate, the hearing officer found that the board failed to prove the appropriateness of the recommended program. Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties unless appealed to the State Review Officer (20 USC 1415[c]; Section 404 [1] of the Education Law). I note that in its answer, respondent alleges that the program recommended by its CSE was appropriate, but it does not appeal nor cross- appeal in its answer (see Application of a Child with a Handicapping Condition, Appeal No. 91-25) from the hearing officer's determination on that issue. As respondent did not appeal or cross-appeal the hearing officer's finding that it had failed to prove that it recommended an appropriate program, I find that petitioners have prevailed with respect to the first criterion for an award of tuition reimbursement.

        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 they obtained for the child at Gesher Yehuda 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, they 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).

        The record shows that the child's test results place her in the mentally deficient range of intellectual functioning. She is described as a slight, frail, anxious child whose size places her in the dwarfism category. She has significant deficits in reading, and her writing and math skills are also delayed. Additionally, she exhibits obsessive behavior and has a history of selective mutism. Her self-esteem is low and she has difficulty relating to her peers as well as adults. She requires much reinforcement and individual attention. There are also concerns about the child's nutrition.

        The child's teacher at Gesher Yehuda testified that the child was in an ungraded class comprised of nine children, a teacher and an assistant. She testified that each child in her class received individual assistance. The teacher indicated that petitioners' daughter was working at a preprimer level in a reading program which addressed her skills in a systematic manner. In addition to the reading program, the child's teacher testified that she developed individual questions for the child at her level of comprehension because comprehension was a major problem for the child in every subject area. She further testified that her writing program was related to the child's reading assignments, and included creative writing assignments. The teacher further testified that petitioners' daughter needed to have directions repeated and required constant reassurance and reinforcement, which she provided to her. The child's teacher stated that while the child did not retain information in a consistent manner, she was making slow progress at Gesher Yehuda. With respect to the child's math skills, the child's teacher testified that she was working in a second grade book, but had difficulty with subtraction. The child's teacher further testified that the child appeared to feel secure in the class. She indicated that she encouraged the child to initiate verbal interaction with her classmates as well as adults. She was also assisting the child to express her feelings and personal needs.

        Respondent argues that petitioners should not prevail with respect to proving the appropriateness of Gesher Yehuda's services for their daughter because the child allegedly regressed while attending that school. It relies upon the apparent decline in the child's verbal IQ scores between 1995 and 1998, as reported by its school psychologist. The child achieved verbal IQ scores of 68 in 1995 and 54 in 1998, on the Wechsler Intelligence Scale for Children - III. However, I note that there was no expert testimony about the scoring of that test relative to the age of the child taking the test, or the true significance, if any, of the apparent decline in the child's verbal IQ score. While the record reveals that the child had expressive language difficulties when tested in both 1995 and 1998, it is not clear how those difficulties affected the scoring of both tests. Therefore, I find that the record does not afford a basis for concluding that the educational services provided by the private school during the 1998-99 school year were inappropriate because of the apparent decline in the girl's verbal IQ score between 1995 and 1998. Based upon the information before me, I find that Gesher Yehuda offered a program that met the child's special education needs.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents' claim. The hearing officer found that petitioners did not notify the CSE of their daughter's enrollment in a private school in a timely manner. The record shows that petitioners referred their daughter to the CSE in May, 1998. When the referral was made, the child was attending Gesher Yehuda. Petitioners had enrolled their child in Gesher Yehuda for the 1998-99 school year in June, 1998, prior to the CSE's recommendation on July 22, 1998. As noted above, the child's mother requested an opportunity to observe the recommended program, after which she advised the CSE that her daughter would be attending Gesher Yehuda for the 1998-99 school year. There is no indication that the mother unduly delayed observing the recommended program, nor is there proof of when respondent received her undated letter informing the CSE that the child would attend the private school. The fact that petitioners had contracted with Gesher Yehuda prior to obtaining a recommendation from the CSE would not afford a basis per se for finding that equitable considerations do not support petitioners' claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 97-44). I have considered respondent's argument that petitioners' reimbursement may be reduced or denied because they failed to notify the CSE at its July 22, 1998 meeting of their intention to enroll the child in the Gesher Yehuda for the 1998-99 school year, pursuant to 20 USC 1412 (a) (10) (c) (iii). I must note that the statute upon which respondent relies refers to an IEP meeting prior to the child's removal from the public schools. There is no evidence of a lack of cooperation by petitioners with the CSE. Based upon the information before me, I find that equitable considerations support petitioners' claim for reimbursement. Since they have prevailed with respect to all three criteria for an award of tuition reimbursement, I find that petitioners are entitled to receive such an award.

        I must note that the child's teacher testified that the child spoke in a whisper that was barely audible and that she made many substitutions of different sounds. She further testified that the child exhibited language difficulties in that she had difficulty labeling common objects. The child's teacher stated that the child's printing was very small and faint because she applied little pressure when she wrote. She also described some of the child's obsessive behavior. The child's teacher indicated that she believed the child would benefit from speech/language and occupational therapy as well as counseling. Additionally, the social worker who conducted the social history raised some concerns with respect to the child's nutritional needs and recommended immediate follow-up. In light of these concerns and the fact that there is no information in the record as to what, if any, effect the exposure to three languages has on the child, I find that there are some questions with respect to the extent of the child's disability. Therefore, I will direct the CSE to reevaluate the child in the areas outlined above.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for their daughter's tuition in the Gesher Yehuda for the 1998-99 school year, upon petitioners' presentation to respondent of proof of those expenditures; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision, the CSE shall reevaluate the child to ascertain the extent of the child's disability.