99-054

       Petitioner appeals from the decision of an impartial hearing officer which denied his request for tuition reimbursement for the cost of his 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 in part.

        Petitioner's son was 11 years old, and in the fifth 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 child was initially referred to the committee on special education (CSE) by his mother in November, 1992 when he was in a transitional kindergarten program at the Home School because he exhibited speech difficulties (Exhibit 1). In February, 1993, the CSE classified the child as speech impaired (Exhibit 6). The CSE minutes reveal that the child’s reading and writing skills were in the average range, but there was a deficit in his math skills. The child’s speech was marked by numerous articulation errors which were not thought to be developmental in nature. The CSE recommended that the child be placed in a regular education class, and receive speech/language therapy.

        The child continued to receive speech/language therapy while in a regular education kindergarten during the 1993-94 school year, and a regular education first grade class during the following school year. In December, 1994, the child’s first grade teacher referred him to the CSE because he was experiencing difficulties in all areas of the first grade curriculum (Exhibit 9). The child began receiving assistance through the school’s Early Reading Program in that month.

        The child demonstrated at least average abilities on all of the subtests of the Test of Language Development-Primary (TOLD-P) in a speech/language evaluation in January, 1995 (Exhibit 12). Despite certain substitutions and distortions, his overall intelligibility was excellent. The child exhibited age appropriate language skills. The evaluator recommended that speech/language services be discontinued, while noting that the child would be eligible for a local speech articulation program in second grade to remediate his articulation errors.

        An educational evaluator who evaluated the boy in January, 1995 reported that the child’s scores on the Woodcock Johnson Psycho-Educational Battery-R indicated that the child had a weakness in his visual processing speed (Exhibit 11). The child’s scores on the other perceptual processing subtests were grade and age appropriate. Formal and informal academic testing indicated that the child was not gaining proficiency with reading-related and writing skills. The educational evaluator concluded that the child was exhibiting a consistent pattern of weakness in visual processing, which inhibited his ability to process visual information rapidly, and affected his reading rate. In addition, she opined that a weakness in perceiving the spatial orientation of letters and numerals could be related to his visual memory difficulties, which would make it difficult for him to acquire a sight word vocabulary. The child also had a slight deficit in his mathematical calculations. The educational evaluator recommended that the child have an eye examination. She further recommended that the child be included in the resource program to provide extra assistance for the development of reading and writing skills.

        In March, 1995, a psychological evaluation was conducted (Exhibit 13). On the WISC-III the child achieved a verbal IQ score of 92, a performance IQ score of 102, and a full scale IQ score of 96, placing him in the average range of intellectual functioning. The child demonstrated a marked weakness in his understanding of basic number facts and numerical operations. On the Bender Visual Motor Gestalt Test, the child demonstrated age appropriate graphomotor integration skills. His performance indicated that he had an adequate capacity for immediate visual memory. Projective testing revealed that the child had some anxiety with respect to his ability to learn how to read. The psychologist concluded that the child was functioning in the average range of intelligence, but had deficits in his word decoding, written language and arithmetic skills. She recommended a resource room program for him.

        At the psychologist’s suggestion, the child was reevaluated on April 4, 1995 (Exhibit 13). On the Stanford-Binet Intelligence Scale-Fourth Edition, the child achieved average scores on subtests measuring his ability to copy a design using colored cubes, to show attention to visual detail, and to do inferential reasoning. The child was retested on the WISC-III in those areas where he scored below average in March. Although his scores on the WISC-III subtests improved, the psychologist cautioned that the scores could be inflated because he was retested so soon after the initial testing.

        On April 12, 1995, the CSE recommended that the child’s classification be changed from speech impaired to learning disabled and that he receive resource room services during the remainder of the first grade (Exhibit 13-A). His speech/language therapy was discontinued. At that meeting the CSE also developed the child’s individualized education program (IEP) for the second grade during the 1995-96 school year. It recommended that that he receive resource room services for 180 minutes per week. For third grade, during the 1996-97 school year, the CSE continued to recommend that the child remain classified as learning disabled. It also recommended that the child be placed in a special class referred to as Project PRIDE (primary instruction daily and extended) for math and language arts, with modified mainstreaming for science and social studies (Exhibit 18). The CSE made the same recommendations for the 1997-98 school year, during which the child was in the fourth grade.

        The child’s triennial evaluation was begun in the fall of 1997. In a psychological evaluation conducted in October, 1997 (Exhibit 27), the child achieved a verbal IQ score of 102, a performance IQ score of 104, and a full scale IQ score of 104 on the WISC-III, which placed him in the average range of cognitive development. His perceptual-motor skills were assessed to be at or above age level, except for his ability to process and recall visual symbols. He had difficulty copying visual symbols, which the psychologist noted would impede his reading and spelling skills. The psychologist reported that the child’s numerical reasoning, mental computation and short-term auditory memory skills were somewhat below age level. Projective testing revealed that the child was a sincere and emotionally sensitive boy, who was tense and self-critical in performance situations, but responsive to academic support.

        In an educational evaluation conducted in March and April, 1998 (Exhibit 34), the child achieved grade equivalent scores of 2.9 in basic reading, 2.0 in reading comprehension, 2.9 in spelling, and 3.9 in written expression on the WIAT. He was in the fourth grade when tested. His mathematics composite score was a 4.9 grade equivalent. On the Beery Test of Visual Motor Integration, the child achieved an age equivalent score of 9-6. The educational evaluator concluded that the child’s visual sequential processing difficulties, as well as his anxiety about his performance were significantly impacting upon his academic performance. The evaluator indicated that the child had made substantial progress in a reading/spelling program which used the Orton-Gillingham methodology, which is a structured, sequential, multisensory approach to teaching language arts. She reported that he had benefited from having clearly defined goals and receiving positive feedback on his progress. She further indicated that the child benefited from having certain testing modifications in his mainstream classes.

        A speech/language evaluation was conducted on April 22, 1998 by a speech/language pathologist who indicated that the child’s special education teacher was concerned about the child’s auditory comprehension of directions and passages within her classroom (Exhibit 37). She reported that the child demonstrated subtle difficulties in his auditory comprehension of language. He displayed mild deficits in his ability to identify the main idea of a short paragraph, but his skills improved when listening to a story read aloud. He demonstrated more significant deficits in expressing details when three facts were presented and in his ability to infer information from auditory text. The child had difficulty responding when more than two clues were given in a spoken paragraph and he was unable to get small context cues. The speech/language pathologist noted that the child’s comprehension of a short story was age appropriate. She opined that the child’s auditory processing deficits affected his comprehension of multi-step directions and understanding of orally presented short paragraphs.

        On May 4, 1998 the child was observed while in a regular education science class (Exhibit 33). The evaluator noted that the child volunteered to read, but read slowly and had some trouble decoding. She indicated that the child did not participate in a class discussion, but was an active participant in a group activity.

        The CSE met on May 5, 1998, but the meeting was rescheduled to May 15, 1998 by mutual agreement (Exhibit 29). In a letter dated May 6, 1998, petitioner requested an independent evaluation of his son at district expense because he believed there was a significant variation between his son’s scores on tests administered by respondent’s staff and those on tests administered to the boy at Windward during the spring (Exhibit 30).

        On May 7, 1998, the Qualitative Reading Inventory was administered to the boy as an addendum to his educational evaluation. Respondent’s evaluator reported that the child could independently read and comprehend a beginning third grade passage, and that his instructional reading level would be at the mid-third grade level.

        On May 15, 1998, the CSE recommended that the child continue to be classified as learning disabled during the 1998-99 school year. It also recommended that he receive two periods of special education instruction in language arts and one period of special education instruction in mathematics in respondent’s Project PRIDE program, as well as one period of resource room services, each day while in the fifth grade at respondent’s H. C. Crittenden Middle School. The boy’s IEP indicated that he would also participate in respondent’s local option speech program. The IEP included the testing modifications of extended time limits, clarified directions, special locations, recording answers in test booklets, and the use of arithmetic tables (Exhibit 39).

        The child was independently evaluated by a psychologist at the Schneider Children’s Hospital on June 12, 1998 (Exhibit 40). The psychologist reported that the child’s ability to remain focused, perception, nonverbal reasoning, language comprehension, sound blending, verbal fluency, naming ability, and graphomotor coordination were within normal limits. She reported that the child’s single word reading was at the beginning second grade level, as measured by the Wide Range Achievement Test-Revised (WRAT). His phonic mastery was at a grade level of 1.9 as measured by the Word Attack subtest of the revised Woodcock-Johnson Achievement Test. The psychologist indicated that the child had residual buccal-lingual dyspraxia, i.e., difficulty pronouncing multi-syllable words in the proper sequence, which had interfered with his ability to master phonics during the initial phases of reading instruction. However, the effect of that condition appeared to be lessening. The psychologist indicated that the child had not yet mastered phonics sufficiently to enable him to decode unfamiliar words. She made several recommendations, including ongoing instruction in a highly structured phonics program, assignments read aloud, and a buddy in the classroom to help the child understand written work and to take notes for him when necessary.

        By letter dated June 30, 1998, the child’s father requested that the school district provide a full-day program of special education to his son (Exhibit 41). In response to petitioner’s letter, the chairperson of the CSE advised petitioner by letter dated July 9, 1998 that she would schedule a CSE meeting for early August (Exhibit 42). On July 22, 1998, petitioner asked that the meeting be scheduled before early August (Exhibit 43). By letter dated August 12, 1998, he was advised that the CSE meeting would take place on August 27, 1998 (Exhibit 44). Petitioner responded on August 18, 1998, by informing the CSE that he and his wife would be unavailable on August 27, 1998. He suggested two earlier dates for the meeting (Exhibit 45). By letter dated August 21, 1998, the respondent’s acting Director of Special Education advised petitioner that August 27, 1998 was the first date on which all required participants would be available. She suggested that petitioner and/or his wife participate in the meeting by telephone, or the meeting be rescheduled (Exhibit 46). She indicated that the district was prepared to implement the IEP for the boy which the CSE had developed in May.

        The CSE convened on August 27, 1998. The child’s parents did not attend the meeting. The minutes from the meeting provide that a phone message was left for petitioner at work offering him the option of participating in the meeting by phone (Exhibit 47). The CSE again recommended that the boy participate in the Project PRIDE program, and receive resource room services, at the Middle School. The IEP which was prepared at the August CSE meeting differed from the May IEP by providing that the child would receive the related services of speech/language therapy in a group of no more than five children twice per week for 45 minutes, and counseling in a group of no more than five once per week for 45 minutes. In addition to the testing modifications set forth in the May IEP, the August IEP provided for an additional testing modification that the entire test be read to the child. The August IEP included the independent evaluator’s findings and recommendations. Additionally, the child’s annual goals and short-term instructional objective benchmarks were reduced to a 70% success rate from 80% as provided for in the May IEP. No regular education teacher attended the August CSE meeting. In a report dated September 11, 1998 and attached to the IEP, the child’s regular education teacher indicated that she had reviewed the boy’s independent evaluation and continued to support the recommendation for part-time special class placement. She also agreed with related services of speech/language therapy and counseling which the CSE recommended in August.

        On August 28, 1998, petitioner’s attorney requested an impartial hearing on behalf of the child’s parents. She indicated that the parents disagreed with the program recommendations of the CSE, and advised the CSE that the parents had unilaterally placed their son at Windward. The attorney further indicated that her clients would be seeking reimbursement for their son’s tuition at Windward for the 1998-99 school year.

        The hearing began on November 4, 1998 and was held on various dates, concluding on March 24, 1999. The hearing officer rendered his decision on May 20, 1999. He rejected the parents’ claim that the August 27 CSE meeting was procedurally flawed, and he found that the parents failed to show how any perceived procedural violations prevented the child from being offered an appropriate educational program. The hearing officer found that the Board of Education had demonstrated the appropriateness of the educational program which its CSE had recommended for the boy. He further found that the parents had failed to show the appropriateness of their unilateral placement of the boy in Windward. Accordingly, the hearing officer denied the parents’ request for tuition reimbursement.

        Petitioner appeals from the hearing officer’s decision on a number of grounds. Initially, he argues that various procedural violations render the August IEP invalid. The issue that must first be addressed is which IEP is the subject of this proceeding. Petitioner challenges the August IEP, while respondent asserts that the May IEP remained in effect until it was replaced, and was the only IEP in place when the parents requested an impartial hearing. However, the record shows that the CSE met on August 27, 1998 in response to the parents’ June 30, 1998 letter requesting a full-time special education placement for their son. On August 27, 1998, the CSE made several revisions to the May IEP. Petitioner requested an impartial hearing on the day after the CSE meeting in August. Although respondent did not approve the IEP prepared at the August meeting until September 14, 1998, I do not accept respondent’s argument that the only IEP in existence when the parents sought a hearing was the earlier IEP from the CSE’s May meeting. I find that the August IEP superceded the May IEP, and is the IEP which is the subject of this proceeding.

        Petitioner argues that a regular education teacher should have been present at the August 27, 1998 CSE meeting at which his son’s IEP was developed. Pursuant to the Individuals with Disabilities Education Act (IDEA), as amended effective July 1, 1998, at least one regular education teacher of such child must participate in the CSE meetings at which the child's IEP is prepared, if the child is or may be participating in a regular education program (20 USC 1414 [d][1][B][ii]). The August IEP provided for the child to attend regular education classes in all subjects except for language arts and mathematics. The record shows that no regular education teacher was present at the August, 1998 CSE meeting at which the challenged IEP was prepared. Upon the record before me, I must find that respondent failed to ensure that the CSE was properly constituted, and that the recommendation of its CSE must be annulled (Application of a Child with a Disability, Appeal No. 99-19). Having determined that the CSE’s recommendation must be annulled, it is not necessary for me to address the other procedural violations alleged by petitioner. It does require me to annul that portion of the hearing officer’s decision holding that respondent had demonstrated that it had offered to provide an appropriate educational program to the boy during the 1998-99 school year.

        Petitioner is seeking an award of 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). I have determined that respondent has failed to meet its burden of demonstrating that the recommended program was appropriate. Accordingly, I find that petitioner has 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 he 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, petitioner must show that the services were "proper under the act" [IDEA] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra370), 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 issue to be determined is whether the child's placement in a school for children with disabilities is consistent with the requirement that he be educated in the least restrictive environment. The applicability of this requirement to a parental placement has been debated (compare Warren G. et. al. v. Cumberland County School District, 190 F. 3d 80 [3d Cir., 1999]; Delullo et. al. v. Jefferson County Board of Education, 194 F. 3d 1304 [4^th Cir., 1999]). However, the least restrictive environment requirement has been consistently applied in this forum because it involves what would become a publicly funded placement under the IDEA, if tuition reimbursement is awarded.

        In order to determine whether the child required a full-time special education placement, I must first ascertain what were his special education needs. The boy’s cognitive skills are in the average range, but he has significant deficits in his reading skills, including his ability to decode words as well as his ability to comprehend written information. His performance on the WIAT in April, 1998 and on the Stanford Diagnostic Math Test at about the same time indicates that he has grade appropriate math skills. Although he continues to have weak spelling skills, he has shown improvement in spelling while enrolled in respondent’s PRIDE program for the language arts. I am aware that petitioner challenges the validity of respondent’s test results, and points to the results obtained at Windward (Exhibit P-1). I must note that the test instrument used by Windward to assess the child’s reading, spelling, and math skills is a general screening device, and is not more reliable than the tests used by respondent’s staff. As was indicated on the boy’s IEP, his total reading was at a grade equivalent of 2.8, which was at the 9^th percentile. His total math was at a grade equivalent of 4.9, which was at the 39^th percentile. The boy’s written language was at a grade equivalent of 3.2, which was at the 9^th percentile. I find that petitioner’s son required primary special education instruction in reading and the language arts. However, it does not follow that he required a program of full-time special education.

        I find that the child has benefited from attending mainstream classes with modifications. His fourth grade special education teacher testified that he performed better in mainstream classes with his peers, that he was very able in that setting, and that being in a mainstream setting improved his self-esteem (November 25, 1998 Transcript pages 222, 232, 237). The child’s fourth grade teacher also testified that the child benefited from the mainstream, noting that he was an enthusiastic participant (December 2, 1998 Transcript pages 277). She stated that he was able to complete the assignments with some assistance and that peer pressure encouraged him to do his best (December 2, 1998 Transcript pages 255, 278). A fifth grade special education teacher who met with the child during the summer of 1998 to assess his current level of performance and to offer some services testified that participating in mainstream classes was critical for the child to maintain his cognitive level of thinking (December 2, 1998 Transcript page 368). The independent evaluator testified that the child’s reading disability did not interfere with his learning, and that material should be presented to him at his intellectual level (January 26, 1999 Transcript pages 569, 598). She stated that the child would benefit from learning in a mainstream class if complex reading material was read to him (January 26, 1999 Transcript page 595). Given the consensus of the professionals who worked with the child regarding his success in the mainstream, I am unable to find that a full-time special education placement was appropriate for this child. Based upon the information before me, I find that the child’s placement in a full-time special education program is inconsistent with the requirement of placement in the least restrictive environment and that petitioner has not satisfied the second criterion for an award of tuition reimbursement.

        Having reached this conclusion, it is not necessary that I address whether the equities favor petitioner’s claim for reimbursement. I have considered petitioner’s other claims which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer hereby annulled to the extent it found that respondent demonstrated the appropriateness of the recommended program.