99-026

          Petitioner appeals from an impartial hearing officer’s decision which held that respondent’s recommended program was appropriate, and which denied petitioner’s request for reimbursement for the cost of his daughter’s tuition at a private school. The appeal must be sustained.

        At the time of the hearing, the child was eleven years old, and was enrolled in the Stephen Gaynor School ("Gaynor") in New York City. Gaynor serves special education students, but it has not been approved by the State Education Department to instruct children with disabilities for purposes of Section 4202 (2)(a) of the Education Law. Petitioner's daughter is classified as learning disabled. Her classification is not in dispute in this proceeding.

        The child was originally referred to the respondent's committee on special education (CSE) when she was in the third grade. She was classified by the CSE as learning disabled, and the CSE recommended that she receive resource room services for one period per day. The child continued to receive resource room services through fourth grade (R. 95). A tutor began working with the child twice per week in the fourth grade, and continued to do so when the child was in the fifth grade during the 1997-98 school year. At the beginning of fifth grade, the child's parents requested that she be re-evaluated because she reportedly was receiving poor grades and she was exhibiting signs of anxiety. I note that no evidence of her poor grades was submitted at hearing.

        The child was evaluated by a school psychologist in September, 1997. She achieved a verbal IQ score of 92, a performance IQ score of 95, and a full-scale IQ score of 93. However, her processing speed and freedom from distractibility scores fell within the borderline range. On a test of her visual motor coordination, the child scored approximately two years below her chronological age. The child told the evaluator that she liked her teachers who gave nightly homework assignments rather than weekly homework assignments because it required less organization on her part. The evaluator noted that the child displayed anxiety and would claim to be tired when she felt challenged intellectually, or when she was asked to discuss an uncomfortable topic. The evaluator recommended continuation of supplemental services, i.e., resource room services (Exhibit 3). The child was observed in her physical education class in a group of 18 children being trained to be "conflict mediators". The observer reported that the girl was friendly, articulate, and actively involved in the lesson (Exhibit 1).

        The child was also evaluated by an educational evaluator, who noted that the child had achieved a score in the 13^th percentile on the total math portion of the California Achievement Test ("CAT"), and a score in the 61^st percentile of the total reading portion of the Comprehensive Test of Basic Skills ("CTBS"), during annual administration of those achievement tests in the spring of 1997. The evaluator administered the Woodcock-Johnson Psycho-Educational Battery-Revised (WJ-R) to the child. She reported that the child's basic reading skills were at a grade equivalent of 4.1, while her reading comprehension skills were at a grade equivalent of 3.9. Both scores were within the average range. The child's broad written language skills were at a grade equivalent of 2.5. The evaluator opined that grade level tasks involving broad written language would be very difficult for the girl to do, and that grade level tasks involving basic math skills and mathematics reasoning would be very difficult to extremely difficult for her (Exhibit A).

        In October, 1997, the parents asked the CSE to provide additional resource room services or tutoring for their child. The CSE chairperson explained that neither after school resource room services nor individual tutoring could be provided (Exhibit 4). The parents responded with a letter dated November 17, 1997, stating that they disagreed with the recommended IEP. The parents requested that additional resource room services be provided after school (Exhibit H). The parents reiterated this request in a letter dated February 10, 1998 (Exhibit 5).

        In March, 1998, the child's fifth grade teacher opined that the child's educational program was meeting her needs. In response to the parents' request for additional resource room services, the child was again evaluated by one of respondent's educational evaluators. On WJ-R, she achieved grade equivalent scores of 4.9 in broad reading, 4.6 in broad math, and 2.9 in broad written language. The evaluator concluded that the demands of grade-level tasks involving basic reading skills would be manageable for the child, but that the demands of grade-level tasks involving broad math and reading comprehension would be difficult, and grade-level tasks involving broad written language would be very difficult for her (Exhibit 6). The record reveals that on the annual administration of the CBTS and CAT in the spring of 1998, the girl scored in the 34^th percentile for reading on the CBTS, and the 39^th percentile for math on the CAT (Exhibit G). I note that those scores were not available at the time of the CSE subcommittee meeting described below.

        On April 3, 1998, the school psychologist who had evaluated the child in September, 1997 observed the girl in her resource room during instruction about mathematics. The girl reportedly answered a number of questions by stating "I don't know," and she appeared to the observer to be inattentive. The school psychologist opined that the girl was making an enormous effort to succeed, but her learning disability in math was creating tension and insecurity for her (Exhibit 8).

        An educational planning committee, i.e., a CSE subcommittee, met with the child's parents on April 6, 1998. The child's father testified that the meeting was held at the parents' request to discuss their concerns about the adequacy of the child's educational program. Shortly before that meeting, petitioner had made a deposit with Gaynor to secure a placement for his daughter for the 1998-99 school year. He did not reveal that fact to the CSE subcommittee (Transcript, page 109). An individualized education program (IEP) was prepared at that meeting. It does not indicate when the child's recommended special education services were to be initiated (cf. 8NYCRR 200.4 [c] [2] [x]). However, it appears from the testimony of the CSE's representative that the IEP was intended to deal with the 1998-99 school year. The IEP provided that the child would continue to receive one period of resource room services per week. It also provided that time limits on her tests would be doubled and that she could use a calculator (Exhibit 9). A notice of final recommendation did not identify the school which the child would attend during the 1998-99 school year (Exhibit 10). The CSE representative testified that the child would have matriculated from P.S. 87, which has grades kindergarten through five, to a middle school for the sixth grade (Transcript, page 8).

        In a letter dated May 27, 1998, the parents expressed their dissatisfaction with the recommended IEP. They pointed out that the IEP did not include the testing modification of taking tests in a separate location. In addition, they indicated that they felt their child had not received appropriate resource room services. The parents indicated that they were sending their child to Gaynor and would be requesting an impartial hearing seeking tuition reimbursement. They also requested that their child be bused to Gaynor (Exhibit B). I note that the CSE's representative denied knowledge of having received that letter. Petitioner sent a copy of his May 27, 1998 letter to the CSE chairperson on August 27, 1998.

        The hearing in this proceeding took place on January 27 and 29, 1999. The parents asserted that one period of resource room services per day was inadequate to meet their daughter's needs, and that they had not been offered a specific placement for the 1998-99 school year. They presented evidence about their child's needs and the nature of the program provided by Gaynor. The CSE representative asserted that respondent was not required to offer a specific placement. The school psychologist and educational evaluator who had evaluated the child testified that a resource room program would have been appropriate for the child during the 1998-99 school year, as did the child's resource room teacher during the 1997-98 school year. Respondent also submitted a general written description of its resource room program into evidence (Exhibit 12).

        In his decision which was rendered on March 26, 1999, the hearing officer denied the parents' request for tuition reimbursement because he concluded that the recommended resource room services would have been appropriate to address the child's special education needs. He found that the child had made progress while receiving resource room services in the 1997-98 school year, and he reasoned that the girl did not need a full-time special education program like that offered by Gaynor in order to receive an appropriate education.

        Petitioner challenges the hearing officer's determination concerning the appropriateness of a resource room program for the 1998-99 school year. He asserts that respondent never identified a specific placement, and it could therefore not defend the appropriateness of its proposed program. Petitioner also asserts that his daughter's special education needs are more severe than respondent and the hearing officer found them to be, thereby necessitating a more restrictive placement such as Gaynor.

        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]). I find that respondent has not met its burden of proving that it had offered to provide an appropriate educational program for the child. Although the recommended educational program consisted of only one period per day of supplementary special education instruction, that fact did not relieve respondent of its obligation to demonstrate that a specific placement existed for this child for the 1998-99 school year. I recognize that when the CSE subcommittee met in April, 1998, the subcommittee may not have had information about specific resource room classes which would exist in September, 1998. Nevertheless, I find that respondent's placement officer should have identified the school in which the recommended resource room services were to be provided during the 1998-99 school year. When the hearing was held in January, 1999, respondent should have provided evidence about a specific resource room placement. However, it failed to do so.

        The burden of proof shifts to the child's parent with regard to the appropriateness of the services which he obtained for the child at Gaynor 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, petitioner 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).

        In order to determine whether the services which Gaynor provided to petitioner's child were appropriate, I must first ascertain the child's special education needs. The child's evaluations revealed that she is of average intelligence, but had deficits in her visual motor integration skills, her processing speed, and her ability to remain focused. However, the child's reading decoding skills were not significantly affected by those deficits. Her mathematics and writing skills were well below grade level, and appeared to have been adversely affected by the aforesaid deficits. I note that the child's IEP indicated that she needed to work on improving her spelling, capitalization, punctuation and handwriting skills, as well as her ability to write descriptive sentences. The IEP also indicated that the child needed to improve her ability to multiply and divide, and to solve related word problems, as well as to add and subtract fractions. Her IEP also had an annual goal to improve her reading skills, including both decoding and comprehension skills.

        At Gaynor during the 1998-99 school year, the child was placed in a class with a student-teacher ratio of 8:1+1, with peers having similar academic needs (R. 85, 89). She also received 1:1 remedial instruction in mathematics twice per week. The child's principal teacher at Gaynor testified that the Orton-Gillingham technique was being used at the school to teach reading decoding, and a multi-modal approach was used to improve the child's reading comprehension. Although the child's standardized test scores for reading decoding did not indicate a great need for specialized instruction, I note that her IEP objectives relating to mastery of words with certain vowel sounds and prefixes and suffixes could be addressed with the Orton-Gillingham technique, as could her annual goal and objectives for spelling. The teacher also testified that she used a "hands-on" approach employing manipulatives whenever possible to teach mathematics. My review of the testimony of the child's tutor, her resource room teacher during the 1997-98 school year, and respondent's educational evaluation leads me to conclude that this would be an effective approach to teach mathematics to this child. The Gaynor teacher testified that the school was also working on outlining and sequencing events with the girl, which was related to at least some of her difficulties with writing. The child's mid-year progress report from Gaynor reveals that she was making progress while attending that school (Exhibit E).

        In determining whether petitioner has met his burden of proof with respect to the appropriateness of Gaynor's services, I have also considered the fact that Gaynor is a more restrictive placement than regular education classes with resource room services. I note that at the hearing, the resource room teacher testified that "not that much progress" had been made on achieving the child's math IEP goals in the resource room (Transcript, page 52). I must further note that the child's IEP indicated that she needed to improve a number of skills, as revealed by her numerous IEP objectives. I am not persuaded that she could have had a reasonable chance of achieving each of her IEP goals and objectives with 45 minutes per day of resource room services. Therefore, I find that her placement in Gaynor was consistent with the least restrictive environment requirement of Federal and State law, and that petitioner has met his burden of proof regarding the second criterion for an award of tuition reimbursement.

        The third criterion for an award of tuition reimbursement is that equitable considerations support the parent's claim for reimbursement. Respondent asserted in its closing argument that petitioner was not entitled to tuition reimbursement because he did not meet the notice requirements of the amended Individuals with Disabilities in Education Act (IDEA). Respondent correctly notes that reimbursement of tuition for a unilateral placement may be reduced or denied if the parents failed to provide written notice, within ten days prior to removal of their child from the public school, of their concerns regarding the IEP and their intent to enroll the child in private school at public expense (20 USC §1412[a][10][C][iii]). The statute upon which respondent relies has an exception when the parent was not notified by the school district of the new requirement of ten days notice before removal. There is no evidence that respondent informed petitioner of the new requirement, therefore I decline to apply it (Application of a Child with a Disability, Appeal No. 99-13).

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 petitioner for his expenditures for tuition at Gaynor during the 1998-99 school year, upon petitioner's presentation to respondent of proof of those expenditures.