99-038

        Petitioner, the Board of Education of the East Ramapo Central School District, appeals from the decision of an impartial hearing officer which ordered petitioner to pay partial reimbursement to respondents for the cost of their child’s tuition during the 1998-99 school year at the Lowell School (Lowell) in New York City. Respondents cross-appeal from the hearing officer’s decision. They request that they be granted full tuition reimbursement. The appeal must be dismissed. The cross-appeal must be sustained.

        Respondents’ son, who is sixteen years old, was initially referred to petitioner's committee on special education (CSE) while in the second grade (Exhibit SD-7, R. 240). Prior to that time, the child had attended the Rueben Gittleman Hebrew Day School (Gittleman). The child entered Gittleman's preschool program at the age of three. He was reportedly physically aggressive in the preschool, but was allowed to remain in school. The next school year, he was reportedly more physically aggressive, as well as verbally aggressive, in the Gittleman preschool program (R. 235). The child’s aggressive behavior intensified to the point that the preschool teachers asked respondents to remove their child from the program. The parents withdrew the child from the preschool program, and sought counseling for the child with Dr. Steven Kurtz, a clinical psychologist (R. 236, Exhibit P-3). However, the child was uncooperative, and the psychologist suggested that counseling be discontinued because the child was not benefiting (R. 237).

        Gittleman allowed the child to return for kindergarten (R. 236). He again displayed aggression. Dr. Kurtz agreed to counsel the child (R. 237). Although Dr. Kurtz counseled the child once a week and assisted school personnel with behavior modification techniques, respondents' son continued to exhibit aggressive behavior. A psychologist who evaluated the child in kindergarten reported that the child was functioning in the average range intellectually, but that he exhibited signs of repressed anger and hostility, as well as feelings of inadequacy and an extreme fear of failure (Exhibit D-47). The child returned to Gittleman for first grade, where he continued to have behavioral problems, and his academic performance reportedly declined. Nevertheless, he was allowed to return to Gittleman for the second grade (R. 238). During second grade, the child's teachers reported that he had hurt other students and could not manage the academic workload. Dr. Kurtz referred the child to a pediatric neurologist who prescribed Ritalin for the child, but the medication was only slightly beneficial. In the middle of the school year, Gittleman asked respondents to remove their son from school, and suggested that he be placed in a special education setting. The child was referred to the CSE.

        Petitioner's psychiatric consultant evaluated the child in January, 1992. The consultant opined that the child had an attention deficit hyperactivity disorder (ADHD) and a conduct disorder. The boy's conduct disorder was evidenced by a very low frustration tolerance, volatile anger, and impulsive acting-out, particularly with his peers (Exhibit D-42). Petitioner's school psychologist had reached a similar conclusion in November, 1991 (Exhibit D-43).

        After completing its evaluation of the child, the CSE recommended that the child be classified as emotionally disturbed. It developed an Individualized Education Program (IEP) providing for his placement in a self-contained classroom with a student-teacher ratio of 12:1+1 in petitioner's Grandview School. Respondents accepted the CSE's recommendations. The child’s academic performance improved in the 12:1+1 class, but he reportedly had difficulty on the school bus and during dismissal while in the second grade (R. 241). The child remained in a 12:1+1 class in the Grandview School for the third grade during the 1992-93 school year.

        In April, 1993, the CSE again recommended that he be classified as emotionally disabled, and be placed in a self-contained class with a student-teacher ratio of 12:1+1 at the Grandview School. It also recommended that the child participate in mainstream classes for reading, physical education, math and music. The child was described as having moderate supervision needs (Exhibit SD-6). Respondents did not accept the CSE's recommendation. Instead, the parents placed him for the fourth grade in the Sinai School (Sinai), a Hebrew day school in Livingston, New Jersey (R. 243). The child remained in Sinai at his parents' expense through the eighth grade. During those school years, the CSE recommended that he continue to be classified as emotionally disturbed, and that he receive most of his instruction in self-contained special education classes (Exhibits D-3, D-4, D-5). At Sinai, the child was initially mainstreamed for reading and math, but his disruptive behavior compelled the school to return him to a self-contained classroom for instruction in all subjects except physical education and special subjects, e.g., art and music.

        In 1996, respondents retained an attorney to assist them in having petitioner provide an aide for their son on the school bus transporting him to Sinai. The attorney submitted an opinion by a psychologist that the child had ADHD, as well as a Disruptive Behavior Disorder, which required that he be highly supervised (Exhibit D-36). At about that time, the child's neurologist prescribed Cylert and Catapres for him, which apparently did not improve his behavior in unstructured settings, but helped him in his self-contained classroom.

        In July, 1997, the Educational Director at Sinai prepared a letter for the CSE stating that the child had not been successful in mainstreamed experiences, but that he functioned academically at grade level, with modified activities (Exhibit SD-34). The CSE recommended that the child’s classification remain emotionally disabled. It also recommended that he be placed in a self-contained class with a student-teacher ratio of 12:1:1 at petitioner's Kakiat Junior High School (Kakiat), and be mainstreamed for physical education and special subject classes. The child was described in his IEP as needing minimal supervision. As noted above, respondents chose to continue sending the child to Sinai for the eighth grade during the 1997-98 school year (Exhibit SD-3).

        On December 4, 1997, a representative of petitioner's Office of Special Education Services wrote letters to the principal of Sinai and the child’s parents requesting information about the child from the school, and inviting the child’s teacher at Sinai to attend the CSE's annual review meeting. In the letter to the parents, the district representative asked respondents to support her request for information from Sinai. The letter also indicated that a due process packet had been enclosed. By letter dated January 9, 1998, the parents were notified that the annual review had been scheduled for February 27, and that the CSE had not yet received information from Sinai. The parents were asked to contact Sinai about the child’s records (Exhibit SD-28).

        The boy's triennial evaluation was performed in early 1998. An educational evaluation was conducted on January 28, 1998, when the child was in the eighth grade. He achieved reading scores at the high school level, spelling scores at the high sixth grade level and arithmetic scores at the mid-fourth grade level. His silent reading comprehension score was only in the fifth percentile (Exhibit SD-27). A psychological evaluation was conducted in February, 1998. The child achieved a verbal IQ score of 88, a performance IQ score of 100, and a full scale IQ score of 93. The evaluator noted that the child exhibited angry, aggressive, and impulsive feelings, and he opined that the child needed a structured and supportive environment to address his academic, social and emotional needs (Exhibit SD-24).

        The CSE met for an annual review of the child’s program in February, 1998. The CSE recommended that the child be classified emotionally disabled, and be placed in a self contained class with a student-teacher ratio of 12:1:1 in Kakiat, except for mainstreaming in physical education and other special subject classes. In the IEP which it prepared for the 1998-99 school year, the CSE described the child as needing minimal support and supervision (Exhibit SD-2). The CSE did not recommend any related services for the child. Testing modifications in the IEP included extended time limits and special locations. The IEP did not contain a transition plan or any transitional goals and objectives (cf. 8 NYCRR 200.4 [c][2][viii]), nor did it include a behavior modification program. Respondents indicated that they would send their son to Sinai for the 1998-99 school year.

        In a March 28, 1998 counseling report, Sinai’s school psychologist noted that the child acted without regard to the consequences of his actions, and that a highly structured classroom behavior modification program had been recently implemented for him. She recommended that the child continue in a setting with a strong therapeutic and behavior modification program for high school (Exhibit SD-21).

        Respondents reportedly intended to have their son enroll in Sinai's high school, which is located in Teaneck, New Jersey (R. 257). However, they were advised by Sinai in late May, 1998 that it would not be in the child's best interest for him to attend Sinai's high school. Respondents began looking at other private schools. Their son was approved for admission to Lowell in late June, 1999. In a letter dated June 26, 1998, the child’s father requested a CSE meeting. The parent wrote that he was seeking the CSE's approval for his child to attend 9^th grade at the Lowell School, and he was willing to go to "any extremes needed" to ensure that his request be granted (Exhibit SD-19).

        The CSE met on July 23, 1998. It again recommended that the child be classified emotionally disabled, and that he be placed in a 12:1+1 self-contained class in Kakiat with mainstreaming for physical education, special subjects, and lunch. The CSE also recommended that he receive 30 minutes of individual counseling per week, and the services of an individual aide. The IEP prepared at the July 23 meeting did not include a transition plan or a behavior modification plan (Exhibit SD-1). The IEP described the boy's need for supervision and support as minimal (Exhibit SD-1).

        On July 30, 1998, the secretary/clerk of the CSE mailed the July 23, 1998 IEP to the parents, together with the CSE's "Due Process Packet" (Exhibit SD-16). In a letter dated August 14, 1998, the parents responded by indicating that they could not accept the recommended placement until they had an opportunity to observe it. Respondents requested a profile of the students in the proposed self-contained class and an appointment to observe the proposed placement (Exhibit SD-15). On August 20, 1998, the petitioner's Assistant Superintendent for Special Student Services sent the parents a letter indicating that the Board of Education had approved the CSE’s recommendations (Exhibit SD-14). On September 28, 1998, the parents were sent a profile of the recommended class (Exhibit SD-13). Respondents had placed their son at Lowell.

        On October 8, 1998, the boy's mother, Dr. Kurtz, and a teacher from Sinai went to Kakiat to observe the special education class which the CSE had recommended. However, they were directed to observe the class in the adjacent room (R. 278, 279). In a letter dated October 27, 1998, the child's mother shared her impressions of the class she observed with petitioner. She asserted that the proposed placement was inappropriate because she had not observed formal teaching taking place, there was no daily schedule written on the board, the teaching assistant gave incorrect academic information at one point in the class and used incorrect grammar at another point, and the size of the class would be overwhelming for her child. In addition, she asserted that the cafeteria was too large for her child, mainstreaming would be inappropriate for him, and the placement would only last for one year before her son would have to attend another school, which would be difficult for him to manage. The child's mother also asserted that her son needed to feel normal in school, and would feel different if he had an individual aide (Exhibit P-1).

        The Sinai teacher who had observed the class with the boy's mother described the classroom at Kakiat as being a "supportive and structured environment", in a letter dated November 2, 1998. However, she expressed concern about the likelihood of the child’s needs being met in that placement. The teacher believed that the grade level of the academic material was inappropriate, the number of students in the building was too great for the child, and an individual aide could intensify the child’s behavioral problems (Exhibit P-2).

        On November 13, 1998, the parents were sent a profile of the self-contained class which had been observed on October 8 (Exhibit SD-12). By letter dated November 16, 1998, the parents’ advocate requested an impartial hearing for failure to recommend an appropriate program for the child (Exhibit SD-11). The hearing began on January 26, 1999, and concluded on February 12, 1999. At hearing, respondents submitted letters from Sinai's Educational Director and the boy's neurologist. The Educational Director indicated that, despite having an escort assigned to him at Sinai to help control his behavior, the child was unsuccessful in exercising self-control in what she described as semi-mainstream settings. She reported that the child was embarrassed and felt like an outcast (Exhibit P-4). The neurologist indicated that the child had been diagnosed with a neurological impairment and attention deficit disorder. He did not identify the child's specific neurological impairment. The neurologist indicated that the child had successfully adapted to his new placement at Lowell, which he opined was more appropriate for the boy than the less restrictive placement which the CSE had recommended (Exhibit P-5).

        The hearing officer rendered his decision on April 30, 1999. He found that the Board of Education had not demonstrated the appropriateness of the placement recommended by the CSE because the CSE lacked one of its required members when it drafted the child's IEP on July 3, 1998. He held that the CSE chairperson, who is certified to teach regular education and special education, could not simultaneously serve as the regular education teacher member and the special education teacher member of the CSE. The hearing officer further found that the boy's IEP was inadequate because it did not include a statement of transition services and it was not based upon an observation of the child in his current educational setting. The hearing officer noted that Lowell is on the list of state approved private special education schools. However, he found that the parents had failed to inform the CSE that they were rejecting its recommended placement, and had failed to provide written notice to the CSE ten days prior to placing their child in Lowell that they would do so. The hearing officer ordered the school district to continue to transport the child to Lowell, and to reimburse respondents for 50% of the tuition which they paid to Lowell. He further ordered that the matter be remanded to the CSE for review and development of a new IEP.

        A 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]). 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).

        Petitioner challenges the hearing officer's conclusion that the IEP developed for respondents' son was fatally flawed because the only regular education teacher at the CSE was the chairperson, who was also serving as the district representative qualified to provide, or supervise the provision of, special education (see former 34 CFR 300.344 [a] [1], now 34 CFR 300.344 [a] [4]). The Individuals with Disabilities Education Act was amended effective July 1, 1998 to provide that the team which creates a child's IEP must include "…at least one regular education teacher of such child if the child is, or may be, participating in the regular education environment" (20 USC 1414 [d] [1] [B] [ii]).

        Petitioner contends that the absence of a regular education teacher from the July 23 CSE meeting should not invalidate the IEP prepared at that meeting because respondents' son had not been recommended for any class taught by a regular education teacher. I find that petitioner's contention is not supported by the record. The IEP which was prepared at the July 23 meeting describes the extent of the child's expected participation in regular educational programs (see 8 NYCRR 200.4 [c] [2] [iv]). The IEP indicates that the child would participate in "specials" and physical education. The term "specials" refers to subjects like art, music, home and careers, and other courses apart from English, math, social studies, and science. Those subjects are taught by teachers holding the appropriate certification pursuant to 8 NYCRR 80, who are in fact "regular education" teachers as that term is used in the IDEA.

        Petitioner also contends that no harm was done in any event because the CSE chairperson is dually certified to teach regular and special education and she was familiar with petitioner's regular education curriculum. I note that when it is intended that a CSE member serve in more than one capacity, the statute has explicitly said so (see Section 4402 [1] [b] [1] of the Education Law). Petitioner offers no support for its position, which I find to be without merit.

        The hearing officer also found that the Board of Education had not met its burden of proof with regard to the appropriateness of the educational program recommended by the CSE because the IEP which the CSE prepared was not based upon an observation of the child in his current educational placement, and the IEP did not include a transition plan. The record reveals that the boy's IEP for the 1998-99 school year was based upon a triennial evaluation which was completed in February, 1998. The Regulations of the Commissioner of Education require that a triennial evaluation "be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education" (8NYCRR 200.4 [e] [4]). The CSE's triennial evaluation included an updated social history, an educational evaluation, and a psychological evaluation. While the Regulations of the Commissioner of Education require that an observation be performed as part of a student's initial evaluation, there is no explicit requirement that a student be observed during a triennial evaluation. Therefore, I cannot agree with the hearing officer's finding with regard to the lack of an observation. I note that respondents assert that the CSE's evaluation of their son was inadequate because the CSE did not conduct a physical examination. However, such an examination is also not required per se during a triennial evaluation.

        The Regulations of the Commissioner of Education also require that an IEP for a student who is 14 years old include a statement of the transition service needs of the student which focuses on the student's course of study (8 NYCRR 200.4 [c] [2] [vii]). Respondents' son became 14 years old in February, 1998. The hearing officer found, and I concur, that this boy's IEP did not include the required statement of transition service needs. In view of the fact that the CSE which prepared the IEP did not include one of its required members and that the IEP did not comply with the requirement of a statement of transition service needs, I concur with the hearing officer's conclusion that the Board of Education did not meet its burden of proof. Therefore, its appeal must be dismissed.

        Respondents cross-appeal from the hearing officer's order limiting their recovery of the cost of their son's tuition to 50 percent of those costs. The parents of a child with a disability may obtain reimbursement for the cost of the educational services which they have obtained for their child, if the services which a board of education offers to the child were inadequate or inappropriate, the services obtained 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]). In this instance, respondents have prevailed with respect to the first criterion for an award of tuition reimbursement.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child at Lowell 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). They are not relieved of that burden simply because Lowell, in which they placed their son, is on the list of New York State approved schools for children with disabilities. 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).

        At Lowell, the student was placed in a self- contained class with a student-teacher ratio of 12:1:1, similar to that proposed for him by the CSE (R. 490). Although the child did not have a one on one aide, six clinicians were on staff to intervene in conflict situations (R. 491). Counseling was provided in accordance with the child’s IEP (R. 492). In mid-term progress reports, the child’s teachers indicated that he needed frequent teacher intervention to remain focused. He was performing below grade level in reading and math. Despite his academic difficulties, the child did achieve the honor roll award for the second quarter. The child’s counselor reported that the child had adjusted well to his new school, although his inflated ego caused him to have difficulty with relationships. His teachers reported that the child would become frustrated during unstructured time, which caused problems with his peers. While the child continued to have difficulty with relationships, he did achieve some progress (Exhibit SD-7). I find that the parents have met their burden of showing that the program at Lowell is an appropriate placement for the child.

        The third criterion for an award of tuition reimbursement is that equitable considerations support the parent's claim for reimbursement. In its appeal, petitioner asserts that respondents are not entitled to tuition reimbursement because they did not meet the notice requirements of the amended Individuals with Disabilities in Education Act (IDEA). Petitioner 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]). I must first note that the child was not in public school, and therefore could not be removed from such school. In any event, the statute upon which petitioner relies has an exception when the parents were not notified by the school district of the new requirement of ten days notice before removal. Although the school district submitted cover letters indicating that the parents were sent due process packets, the contents of the packets were not submitted into evidence, and no witness testified as to the contents of the packets. There is no evidence that petitioner informed respondents of the new requirement. Therefore, I decline to apply it (Application of a Child with a Disability, Appeal No. 99-13). The evidence does show that respondents generally cooperated with the CSE in developing an appropriate program for the child. I find that equitable considerations support respondents' claim for an award of reimbursement for the full cost of tuition at the Lowell School.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it limited respondents' recovery of tuition to 50% of the cost of their son's tuition at the Lowell School during the 1998-99 school year; and

IT IS FURTHER ORDERED that petitioner shall reimburse respondents for their tuition expenditures at the Lowell School during the 1998-99 school year, upon respondents’ presentation to petitioner of proof of those expenditures.