99-024

        Petitioners appeal from the decision of an impartial hearing officer which denied their request for an award of tuition reimbursement for the cost of their son's tuition at Manhattan Day School (Manhattan Day), a private school in New York City, for the 1998-99 school year. The appeal must be sustained.

        The child was eight years old and in the third grade at Manhattan Day at the time of the hearing. Manhattan Day has not been approved by the New York State Education Department to provide education to children with disabilities. The child attended Magen David Yeshivah, a private, parochial school in Brooklyn for kindergarten through the second grade. He was first referred to respondent's committee on special education (CSE) by his parents at the suggestion of his second grade teacher. While in second grade, the child reportedly received resource room services for reading from his private school for one period per day (Exhibit 5).

        In an educational evaluation conducted on September 23, 1997 (Exhibit 4), when the child was seven years old and in the second grade at Magen David, the CSE's educational evaluator noted that the child was referred for an evaluation for possible speech/language and occupational therapy services. She further noted that the child demonstrated a good frustration tolerance and was attentive throughout the testing session. On the Woodcock Reading Mastery Test, the child achieved grade equivalent scores of 1.9 in word identification, 2.0 in word attack, 1.6 in word comprehension, 1.9 in passage comprehension, and 2.2 in total reading. The educational evaluator indicated that the child demonstrated age and grade appropriate reading skills, and that he functioned consistently at an end of first to early second grade level. On the Woodcock-Johnson Test of Achievement for mathematics, the child achieved grade equivalent scores of 2.5 in calculation and 2.0 in applied problems. The educational evaluator reported that the child's math scores were solidly on grade level. The child achieved grade equivalent scores of 1.4 on the dictation subtest and 1.3 on the writing samples subtest of the Woodcock-Johnson Test of Achievement. On the Developmental Test of Visual Motor Integration, the child achieved an age equivalent score of 7-10, which indicated age appropriate ability. The educational evaluator noted that the child had an immature pencil grasp and wrote slowly. Additionally, she noted that the child had some mild articulation problems.

        A psychological evaluation (Exhibit 3) was conducted on September 23, 1997 by one of respondent's school psychologists who noted that the child demonstrated good attention to tasks, but became impulsive when restless and needed to be prodded to work to his potential. The school psychologist further noted that when the child was talking or performing manual tasks, he had slight head and shoulder tics. She indicated that the child had an immature pencil grip. She further indicated that while the child had slight articulation difficulties, his oral communication was relatively clear. On the WISC-III, the child achieved a verbal IQ score of 108, a performance IQ score of 110, and a full scale IQ score of 109, placing him in the average range of intellectual functioning. He demonstrated a relative weakness (low average range) on a task measuring knowledge of factual information. The school psychologist reported that overall the child had very well developed verbal reasoning skills and his overall verbal abilities were age appropriate. She indicated that in the performance area, the child's visual processing skills were age appropriate, and he demonstrated very well developed observation skills, visual sequencing ability, and awareness of social behavior. On the Bender-Gestalt Visual Motor Test, the child demonstrated age appropriate visual motor skills and visual recall. The school psychologist noted that the child had a good self concept. She suggested that further investigation of the child's tics might be warranted.

        In a speech/language evaluation dated October 7, 1997 (Exhibit 12), the speech/language evaluator noted that the child was receiving private speech therapy once per week, and that he reportedly was experiencing academic difficulties. She reported that the child appeared to tire easily and was very distractible, but responded to gentle, firm structuring. The speech/language evaluator indicated that the child's speech was characterized by a lisp and inconsistent sound symbol substitutions, which reportedly was being addressed in speech therapy. She further indicated that the child's pragmatic language skills were good. On the Test of Language Development-Primary 2 (TOLD), the child scored within the average range on all subtests. The speech/language evaluator reported that the child exhibited no difficulty during the administration of the Language Processing Test-Revised, on which he scored at or above the 93rd percentile on all subtests which were administered. She noted that the child's language skills were very scattered, and despite testing results in the normal range, the child exhibited relative weaknesses in grammatic completion of open ended statements and receptive vocabulary.

        The speech/language evaluator also observed the child in the classroom. She indicated that the child worked diligently on an assignment. He was then asked to read aloud. The speech/language evaluator described the child's reading as slow and labored. She noted that he used a phonics approach to attempt to read unfamiliar words. The speech/language evaluator further noted that the child understood all directions and knew the class routine.

        The CSE met on November 13, 1997 and reportedly classified the child as "health impaired". Additionally, it recommended that the child receive occupational therapy as a related service. By letter dated November 28, 1997, the child's mother advised the CSE that she was accepting the occupational therapy services, but that she was not in agreement with the conclusion that her son did not need speech therapy. She indicated that she intended to further investigate the matter.

        In an updated speech/language report dated December 8, 1997 (Exhibit 11), the boy's private speech/language pathologist reported that he had been receiving speech/language therapy since September, 1993, because of specific weaknesses in his receptive conceptual development, processing of auditory information and expressive language content and form. When tested again in 1994, the child had made progress, but he continued to score below the 10th percentile in both receptive and expressive language abilities. In a re-evaluation conducted in 1996, the child demonstrated age level skills in receptive and expressive vocabulary and improvement in comprehension of specific receptive language concepts. However, he continued to exhibit significant deficits in his ability to process auditory information, comprehend and use grammatical structures, produce coherent narratives, provide specific explanations and organize and formulate expressive language. Additionally the child had speech articulation errors and distortions. The speech/language pathologist reported that although the child had become skilled at using prompts and cues, he continued to have significant difficulty expressing himself without cues. She indicated that his difficulty providing the correct responses to specific reading comprehension questions would have significant implications for the child's academic skills. She further indicated that the child's expressive intelligibility was hampered by poor understanding and use of age appropriate grammatical structures and some residual phonological issues. The speech/language pathologist also indicated that the child's distractibility stemmed from difficulty processing complex auditory information. She described the child's speech intelligibility as good, though she noted that he continued to produce some speech sound distortions. The speech/language pathologist recommended that the CSE reconsider the child's case and that it recommend that he receive individual speech/language services three times per week for 30 minute sessions.

        The CSE met again on January 30, 1998 and recommended that the child receive speech/language therapy and occupational therapy as related services. The boy was reportedly evaluated by a physical therapist, but the CSE did not recommend that he receive physical therapy.

        In a letter dated March 16, 1998, the child's second grade teacher at Magen David indicated that the child had difficulty learning in a class situation, but that he learned well in a one-on-one environment. She further indicated that the child had difficulty relating to other children (Exhibit 6).

        The child was evaluated by a private psychologist during the months of May and June, 1998. On the WISC-III, the child achieved a verbal IQ score of 108, a performance IQ score of 116, and a full scale IQ score of 113, placing him in the bright average range of intellectual functioning. The private psychologist noted that the child's language processing difficulties clearly affected his verbal functioning score. She further noted that the child performed best on short, highly structured tasks which did not require sustained concentration and attention. The child had difficulty on tasks requiring expressive ability. He had some difficulty repeating sentences of increasing length and syntactic complexity, and recalling orally presented information. The private psychologist reported that it was also difficult for the child to integrate and follow directions involving auditory information and that he had difficulty with the integration of auditory with visual and motor demands. She noted that the child's attention and performance declined as demands increased. The private psychologist further noted that the child performed best when language was concrete and when he could remember a story line and use context to secure information. She indicated that visual perceptual functioning was an area of strength for the child, but that he had difficulties with directionality.

        The private psychologist also reported that the child was functioning below grade expectations in all subject expectations, with the exception of mathematics, as the result of language, fine motor and attentional difficulties. She indicated that the child had significant difficulties on all tasks involving reading and writing, because of his language processing difficulties. She further indicated that the child had significant difficulty sustaining attention and working on his own. The private psychologist opined that the child would have increasing difficulty as the academic curriculum became more complex. Personality testing revealed that the child was under great emotional stress resulting from increasing academic demands, and that he felt quite vulnerable. The private psychologist indicated that the child was highly socialized and well-related, but had no way to express the emotions that were most central to his current experience. She recommended that the child be placed in an small, language based class where individual attention was possible and classmates functioned at his conceptual level (Exhibit 5).

        After providing services to the boy for approximately three months, one of respondent's speech/language therapists reported in June, 1998 that the child had made limited progress (Exhibit 7). She noted that he continued to exhibit significant auditory processing and comprehension difficulties. While the child's listening skills showed some degree of improvement, the speech/language provider indicated that the child continued to have difficulty with expressive syntax, expressive organization, metalinguistic skills and articulation. She recommended that he continue to receive 30 minutes of individual speech/language therapy three times per week.

        In a related services progress report dated June 30, 1998 (Exhibit 8), the occupational therapy provider indicated that the child had difficulty performing gross motor tasks due to moderate decreased tone in his trunk and upper extremities with difficulty making postural adjustments. He noted that the child's ability to tolerate positioning and to sustain prone and supine positions had improved. The child could independently write approximately 60% of the alphabet, but did not have an age appropriate grasp due to decreased bilateral muscle tone in his hands and arms. He recommended that the boy continue to receive individual occupational therapy once per week for 60 minute sessions.

        The CSE met on August 14, 1998. It recommended that the child be classified as speech impaired, and that he be placed in a supplemental instructional services - I (MIS-I) program, i.e. resource room, one period per day with a student to staff to ratio of 8:1. The CSE further recommended that the child receive 30 minutes of individual speech/language therapy three times per week for language processing difficulties and 30 minutes of individual occupational therapy twice per week for fine motor delays (Exhibit 2). In a "summary of findings" (Exhibit 13), the chairperson of the CSE indicated that the CSE had recommended resource room services because the child's academic delays were slight. She further noted that the child's speech/language delays impacted upon his overall functioning and that he continued to require speech/language therapy, as well as occupational therapy to improve his fine motor skills.

        In a letter which the CSE received on August 24, 1998, the child's mother notified the CSE of her dissatisfaction with its recommendation (Exhibit 14). She advised the CSE that she would be seeking an appropriate placement for her son and requesting tuition reimbursement. In September, 1998, petitioners enrolled their son in Manhattan Day. On October 7, 1998 petitioners' advocate requested an impartial hearing. On October 23, 1998, the CSE issued a "Nickerson" letter (See Jose P. et al. v. Ambach et al. [79 C 270, U.S. D.C. E.D.N.Y., 1982]) to petitioners to enable them to obtain resource room services from an approved private provider (Exhibit 1).

        In November, 1998, Manhattan Day prepared an individualized education program (IEP) which included annual goals for reading, comprehension, writing, mathematics, science and social studies, as well as goals for speech and language (Exhibit J). The child's December, 1998 report card from Manhattan Day indicated that he was eager and enthusiastic about reading, and was continuing to learn new decoding skills to improve his fluency (Exhibit I). He also was learning how to outline his thoughts and expand them into a cohesive paragraph. The report card included a comment indicating that the child often required a teacher at his side to keep him focused and on task.

        In a January 6, 1999 letter (Exhibit F), the child's teacher indicated that the child was held back from reaching his potential due to attention difficulties, language weaknesses, and poor motor skills. She reported that the child was easily distracted even in a small group, and that he required much individual attention to remain focused and engaged during a lesson. She further reported that it was necessary to repeat simple one-step directions several times before the child followed through with a task. Additionally, she noted that he needed to be taught at a slow pace, and that lessons had to be "overlearned" for the child to apply them. The child's teacher indicated that the child's fine motor deficits hampered his ability to mechanically write sentences. Since copying from the board was frustrating for the child, his copying tasks were modified by the teacher. The child's teacher further indicated that the child had trouble expressing himself verbally, and that he was easily frustrated and often brought to tears when he was unable express his thoughts.

        The impartial hearing in this matter was held on January 13, 1999. The hearing officer rendered her decision on February 25, 1999. Despite finding that respondent failed to present specific evidence regarding the resource room program the CSE had recommended for the child, the hearing officer took administrative notice of the definition of a resource room and found that a resource room program was appropriate to meet the child's needs (cf. Application of a Child with a Handicapping Condition, Appeal No. 90-16). She further found that there was no credible evidence that the child's tics warranted further neurological evaluation.

        Petitioners appeal from the hearing officer's decision. They argue that the CSE failed to present any evidence regarding the appropriateness of the recommended program. Additionally, they argue that the recommendation was based on an insufficient assessment of their son because the CSE failed to evaluate the boy's tics. They further argue that their child's IEP was inappropriate. Finally, they claim that the program they obtained for their son was appropriate and met his special education needs.

        Petitioners are seeking 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]).

        In view of the fact that the CSE sent petitioners a "Nickerson" letter in October, 1998 indicating that a resource room placement was not yet available, I find that the CSE failed to prove that it had recommended an appropriate placement for the 1998-99 school year. A placement recommendation which cannot be implemented is not an appropriate placement (Application of a Child with a Handicapping Condition, Appeal No. 92-33). Accordingly, I find that petitioners have prevailed with respect to the first criterion for an award of tuition reimbursement. Having found that respondent failed to offer an available program, it is not necessary that I address petitioners' challenges to the child's IEP.

        With respect to the second criterion for an award of tuition reimbursement, the child's parents bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at the Manhattan Day 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 petitioners 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 achieved scores in the high average range of intellectual functioning. His scores on standardized tests were slightly below, or on grade level. The record further shows that the child had language processing difficulties which affected his ability to understand and follow directions, complete classroom assignments and express himself. He also was described as impulsive, as having attentional difficulties, and as having difficulties remaining on task. In addition, the child had articulation difficulties which were being addressed in speech/language therapy and fine and gross motor deficits which were being addressed in occupational therapy.

        The question before me is whether Manhattan Day offered an educational program which met the child's special education needs. The assistant director of the special education program at Manhattan Day testified that the children in the school's special education program were typically learning disabled, and some also had attention difficulties. She indicated that petitioners' son fit very well into the school's special education program because his learning difficulties were similar to those of the other children in the program. She further indicated that he required a small classroom setting where the teacher could constantly refocus him. The assistant director further testified that the child needed to have directions repeated and presented in small increments in order for him to respond appropriately. She indicated that he was usually the last student to finish his work.

        The child's teacher at Manhattan Day testified that her class consisted of seven students, a teacher, an assistant teacher, and an aide who was in the classroom twice per week (Transcript p.49). She indicated that the child needed the assistance of a teacher or other adult at his side to keep him focused and on task. Additionally, she indicated that instructions were broken down into small steps for the child. The child's teacher testified that the child was in a reading group with one other student in which a specialized program - "Preventing Academic Failure" based upon the Orton-Gillingham approach - was used. Daily reading instruction was followed by a review of the skills that had been taught since the first day of school. Word lists were developed and workbook pages were assigned based upon the reading. The students were taught to outline, summarize and search for main ideas in order to improve their reading comprehension. The child's teacher testified that the child's writing was a source of frustration for the child, and that he was unable to read his own handwriting. She stated that he had difficulty copying from the board and that copying tasks were modified for him. To assist him with writing, the child used a slant board, a pencil grip and a special glove that helped his tone. The child's teacher stated that the child was progressing nicely. In determining the extent to which the child required special education instruction, I note that the child's resource room teacher at Magen David testified that the child's multitude of problems could not be adequately addressed in a 45 minute per day resource room (Transcript p.74). Based upon the information before me, I find that Manhattan Day offered an educational program which met the child's needs. Accordingly, petitioners have prevailed with respect to the second criterion for an award tuition reimbursement.

        The third criterion for tuition reimbursement is whether equitable considerations support the parents' claim. There is no evidence in the record to show that petitioners failed to cooperate with respondent. I find that equitable considerations support petitioner's claim for reimbursement.

        I must note that some questions remain with respect to the extent of the child's disability. The record shows that the child was observed as having head and shoulder tics, that he exhibited gross and fine motor deficits, an awkward gait, articulation problems, and was slow moving and slow completing his work. In light of these concerns, I will direct the CSE to arrange for a neurological evaluation of the child.

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 child's tuition at the Manhattan Day School 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 have the child evaluated for the presence of a possible neurological disorder.