99-035

Petitioner appeals from the decision of an impartial hearing officer which denied her request for tuition reimbursement for the cost of her son's tuition at Windward School (Windward), a private school for children with learning disabilities in White Plains, New York, for the 1998-99 school year. The appeal must be sustained.

        Petitioner's son was 15 years old and in the ninth grade at Windward at the time of the hearing. Windward has not been approved by the New York State Education Department to provide education to children with disabilities. The boy was born with spina bifida and hydrocephalus. He has been treated since birth for these conditions, and has undergone multiple surgical procedures (Exhibit C). The boy is incontinent and is maintained on a bowel regimen of enemas administered at home (Exhibit B). Additionally, the boy is unable to urinate and must catheterize himself every three hours to empty his bladder (Exhibit B). I note that the parties have agreed that the boy should be classified as learning disabled. Accordingly, I am precluded from reviewing the appropriateness of that classification (Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The record is unclear as to when the boy was initially referred to the committee on special education (CSE), however, the updated social history report (Exhibit 1) refers to previous social history reports completed in 1988, 1994 and 1996. The record is also incomplete with respect to the boy's educational history. He has apparently attended Windward for approximately four years (Transcript p. 43), having previously attended the Bank Street School. The boy has never attended public school.

        In an August 20, 1997 occupational therapy evaluation (Exhibit 7), the evaluator reported that the boy's range of motion was within functional limits and that his muscle strength was adequate. With respect to the boy's gross motor skills, the occupational therapist noted that he had a slight difficulty with static balance. The evaluator reported that the boy was able to write in script legibly, and he was able to form all of the lower and upper case letters. The boy's activities of daily living skills were assessed to be age appropriate. He was able to complete left/right integration exercises well, indicating that he had no difficulty with his perceptual skills. The occupational therapist concluded that the boy did not require occupational therapy.

        The boy complained of headaches, and was re-evaluated by a private neurologist on January 24, 1998 (Exhibit 4). The neurologist reported that the boy's general physical exam was unremarkable. He described the boy's cursive writing as slightly deficient in formation and spacing of letters and numbers, but noted that his graphomotor productions had improved significantly since he was last evaluated in 1995. The boy's spelling was assessed to be grade appropriate. The neurologist reported that while the boy's basic math skills showed mild deficiencies in multiplication and division, he had no difficulty with irregular fractions. He demonstrated good decoding skills with mild deficiencies in reading comprehension. Based on the results of his examination and after reviewing the results of a neurosurgical report and CT scan conducted in October, 1997, the neurologist indicated that he did not have an adequate explanation for the origin of the boy's headaches.

        A classroom observation was conducted by a school psychologist on February 11, 1998 while the boy was in a social studies class with five other students at the Windward School (Exhibit 5). The school psychologist reported that the boy interacted well with his teacher and his peers during a fast paced class discussion. She noted that the boy had difficulty at times understanding some of the vocabulary and misunderstood some of the teacher's questions, but with direction he was able to keep up with the pace of the class. The school psychologist indicated that boy's expressive language abilities appeared to be good. He read aloud with clear fluency, and spoke in a full, clear voice. His writing was neat and organized, and he had no difficulty taking notes or copying from the board. The school psychologist reported that the boy was on task for the entire 50 minute lesson.

        A progress report from Windward in February, 1998 showed that the boy received satisfactory ratings in most subjects (Exhibit 8). His decoding and reading comprehension had improved, but he reportedly continued to have difficulty with inferential material. The boy's reading teacher noted that the boy generally completed homework and classwork satisfactorily, but he had difficulty at times following directions which resulted in incomplete or incorrect assignments. The boy's writing teacher commented that the child had a basic understanding of the writing skills he had been taught, but that he applied them inconsistently. She noted that he was able to write an organized paragraph or essay with guidance. However, the boy skipped details, didn't sequence properly, and didn't provide sufficient information to support his topic when working independently. His math teacher indicated that his progress was inconsistent, and that at times he lacked effort and focus. The boy's science teacher indicated that more effort by the boy would prove beneficial.

        The boy's progress report included results from the Wide Range Achievement Test (WRAT), which showed that from September, 1996 to September, 1997 his reading skills had improved from a beginning eighth grade level to an end of ninth grade level. During the same period, his spelling improved from an end of third grade to end of fifth grade level. However, his math skills had remained at a beginning sixth grade level during that period. On the Stanford Achievement Test administered in May, 1997, the boy had achieved grade equivalent scores of 9.1 in vocabulary, 7.8 in comprehension, and 7.2 in math concepts, 5.2-7.5 in math computation, and 7.5 in math application.

        A speech/language evaluation was conducted on March 4, 1998 (Exhibit 14). The speech/language evaluator noted that the boy had received speech/language services twice per week for 30 minutes in a group of three. She administered the Clinical Evaluation of Language Fundamentals-3 (CELF), and noted that the boy attended to all segments of the assessment appropriately. The boy's performance was assessed to be above age level expectancy, with strengths in the areas of identifying concepts and directions, recalling sentences and sentence assembly. The speech/language evaluator determined that the boy did not exhibit a need for speech/language services, however, she recommended that he be assessed annually to determine current levels of performance.

        In a social history conducted on March 14, 1998, the boy's parents advised the district's social worker that they were pleased with their son's progress at Windward (Exhibit 1). However, they indicated that he continued to struggle with math, comprehension and fine motor skills. They further indicated that he had a very poor memory and tended to be a concrete thinker. The boy's parents advised the social worker that their son was comfortable at Windward, that his shyness no longer interfered with his socialization, that he liked high school and that he wanted to go to college. They further advised the social worker that their son had become completely independent in his bowel and bladder control.

        An educational evaluation was conducted on March 14, 1998, when the boy was in the eighth grade (Exhibit 3). The boy achieved a grade equivalent score of 10.5 for broad reading on the Woodcock Johnson Psycho-Educational Battery (WJ-R). The educational evaluator reported that the boy employed good decoding skills to identify unfamiliar words and was able to break down words into syllables for easy identification. The boy achieved a grade equivalent score of 12.0 on the passage comprehension subtest. He achieved a grade equivalent score of 6.0 for broad math. On the calculation subtest, the boy achieved a grade equivalent score of 5.2. He was unable to add fractions with different denominators, perform long division problems, or solve a simple algebraic equation. On the applied problems subtest, he earned a grade equivalent score of 8.0. The educational evaluator reported that the boy's performance was better when he completed problems on paper rather than in his head. The boy achieved grade equivalent scores of 6.7 for broad written language, and 6.6 for broad knowledge. The educational evaluator found the boy to be functioning above grade level in reading and 2.7 years below grade level in math. The evaluator noted that the boy's actual reading comprehension while reading a multi-chapter book could be lower than indicated by his test scores. He indicated that the boy's skills in math reasoning and basic operations needed to be developed, and that the boy required extra time to complete tasks.

        A psychological evaluation was conducted on May 2, 1998 during which only projective testing was administered to the boy (Exhibit 2). The school psychologist indicated that the boy was reality based and did not exhibit any major or obvious emotional problem. He further indicated that the boy appeared relatively contented and free from debilitating anxiety. The boy's responses to projective testing suggested limited creativity, limited dedication to long range goals, and modest social and interpersonal skills. The school psychologist noted that there was a background of parental conflict, which the boy had accepted and was not an issue for him. Additionally, the boy admitted contributing to an ongoing conflict with a math teacher. Further, the school psychologist indicated that there were signs of mild dependency. While he concluded that there was no critical need for counseling, the school psychologist suggested that counseling might be helpful.

        The Career Decision Making System-Level II was administered to the boy in an undated vocational assessment (Exhibit 6). The boy's responses reflected an interest in the business field, both scientific and social, suggesting jobs in management, sales, math-science, social services and legal careers. His selected job choices were entertainment and technical. The boy's job values included a good salary, independence, variety, and working with people. He indicated that he planned to attend a four-year college.

        The CSE met on June 18, 1998 to develop the boy's individualized education program (IEP) for the 1998-99 school year (Exhibit 11). It recommended that the boy be classified as learning disabled. It further recommended that he receive one period per day of resource room services and 30 minutes of counseling in a group, while attending respondent's Louis Brandeis High School. The IEP indicated that the boy required a small room for privacy to tend to his catheterization needs. It also noted that the boy required assistance in applying information, using organizational strategies and transferring and generalizing. The testing modifications of extended time limits, use of a calculator, and separate location for testing were provided for in the boy's IEP. The boy's IEP annual goals were to improve his study skills, his writing skills, and his math skills through the resource room, and to improve peer relationships through counseling.

        On July 3, 1998, the CSE sent the boy's mother a final notice of recommendation (Exhibit 12). By letter dated August 5, 1998 (Exhibit 13), the boy's mother advised the CSE that she disagreed with her son's IEP and requested a meeting with the CSE in August. The CSE met again on August 28, 1998. However, the boy's parents were unable to attend that meeting. The record does not reveal what, if any, steps the CSE took to ensure the parents' participation, as required by 34 CFR 300.345(c). It appears that no changes were made to the boy's IEP as a result of the August, 1998 meeting.

        The boy continued at Windward for the 1998-99 school year. His February, 1999 progress report from Windward (Exhibit A), indicated that he was enrolled in a Study Skills program which provided direct instruction in the skills necessary for academic success, such as note taking, outlining and analyzing written material. The progress report also included a report from the boy's math teacher who commented that the boy made excellent progress in math, and had passed the Regents Competency Test with a 78%.

        The impartial hearing in this matter was held on December 16, 1998, and March 11, 1999. At the hearing, the CSE's representative conceded that respondent was unable to demonstrate the appropriateness of the specific site that had been recommended for the boy (Transcript p. 8). The CSE representative argued that if the hearing officer determined that the boy had received appropriate special education services at Windward, her reimbursement should be limited to the sum of $7,000 because that was the amount which respondent paid for private resource room services pursuant to the order in Jose P. et al. v. Ambach et al., (79 C 270, U.S. D.C. E.D. N.Y., 1982). The order in that case requires respondent to provide written authorization to a child's parents to obtain appropriate special education services from an approved provider when the Board of Education is unable to make a timely offer to provide those services.

        The hearing officer rendered her decision on April 22, 1999. She found that the boy had delays in math, needed help with organization, and needed to show a more consistent effort. However, she noted that the record did not show what specialized techniques Windward used to assist the boy, nor did it show that any specialized procedures were employed for his medical needs. The hearing officer found that she could not conclude that the boy could not be educated with his non-disabled peers, or that he required full-time special education in order to receive an educational benefit. Accordingly, the hearing officer found that the parent did not meet her burden of proof with regard to the second criterion for an award of tuition reimbursement. However, she awarded reimbursement to the parent in the amount of $7,000 for the cost of resource room services based upon respondent's representation that the parent was entitled to such reimbursement.

        Petitioner appeals from that portion of the hearing officer's decision which denied full tuition reimbursement for the 1998-99 school year. She challenges the hearing officer's finding that her son did not require full-time special education services, and she argues that the hearing officer's award is insufficient and speculative in nature.

        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]).

        Respondent argues that petitioner is not entitled to tuition reimbursement because her son has never received special education and related services under the authority of a public agency. It argues that petitioner is precluded from obtaining an award of tuition reimbursement because of the 1997 amendments to the Individuals With Disabilities Education Act (See 20 USC 1412(a)(10)(C)(ii)). This argument was made by respondent in another appeal (Application of a Child with a Disability, Appeal No. 98-41). As I noted in that decision, absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district.

        As previously noted, respondent has acknowledged that it could not demonstrate that the resource room class the CSE had recommended for the boy for the 1998-99 school year was appropriate. Accordingly, I find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement. Having reached that conclusion, it is not necessary that I address petitioner's other challenges to the CSE process or recommended program. In any event, I note that there is no requirement that a representative of the boy's private school participate in his IEP meeting in June, 1998, however desirable that might have been (Application of a Child with a Disability, Appeal No. 98-64).

        With respect to the second criterion for an award of tuition reimbursement, the boy's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at Windward 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).

        In order to determine the appropriateness of Windward's services, I must first ascertain what the boy's special education needs were. As noted above, he is classified as learning disabled. The record shows that the child's reading skills were at or above grade level, but his math skills were delayed by over two years. His writing skills were also somewhat delayed. While petitioner asserts in her petition that her son has difficulty with his receptive language, I note that the boy's score of 118 on the CELF-3 in March, 1998 was at the 88th percentile. Despite the fact that I am precluded from reviewing the appropriateness of the boy's classification as learning disabled, I am nevertheless aware of his unique needs caused by his physical condition. I find that those needs must also be considered in determining the appropriateness of his educational placement because they can have a significant impact upon the boy's ability to benefit from his educational program. The boy has spina bifida and hyrocephalus. He is incontinent, and must catherize himself every three hours. His urologist has indicated that the boy has had intermittent episodes of encopresis (stool accidents) during the course of the school day, requiring a nurse's assistance (Exhibit B). The urologist opined that it was essential that the boy attend school in an environment which allows him privacy to perform his catheterization, and affords him medical support services. The head of the upper school at Windward testified that a private men's room was available for the boy's use, and that the school nurse is available when necessary (Transcript p. 45). She further testified that the boy was somewhat sensitive about his health needs.

        Although the boy's academic needs do not appear to be so severe as to warrant a full-time special education placement, I find that those needs and his physical needs do justify his placement in a facility like Windward. I have examined the boy's February, 1999 progress report from Windward (Exhibit A) which affords a basis for me to conclude that he was making progress in that school, and that it was therefore appropriate for him. I find that petitioner has met her burden of proof with regard to the second criterion for an award of tuition reimbursement for her son's full-time placement at Windward.

        The third and final criterion for an award of tuition reimbursement is that equitable considerations support the parent's claim for such an award. There is no evidence before me of petitioner's failure to cooperate with the CSE. I find that petitioner's claim is supported by equitable consideration.

        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 her tuition expenditures at the Windward School during the 1998-99 school year, upon petitioner's presentation to respondent of proof of those expenditures.