99-066

         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 Whitestone Academy (Whitestone), a private regular education school in New York City, for the 1998-99 school year. The appeal must be sustained in part.

        Preliminarily, I will address a procedural issue raised in this appeal. I note that there was some confusion with respect to the commencement of this appeal. Although respondent was initially served with the petition in June, 1999, the petition was not filed with the State Education Department until August 23, 1999 (cf. 8 NYCRR 279.4). However, respondent, which had not answered the petition, was not advised that the petition had been filed with this office until October 27, 1999. At that time, respondent was also advised that it should submit its answer promptly, and explain the reasons for its delay in its answer. Respondent submitted an answer on December 17, 1999. It requests that I excuse its delay, and asserts that any delay, or prejudice resulting from any delay, was not attributable to it. Petitioner opposes respondent's request in his reply to the answer. However, he fails to assert how he has been prejudiced by the delay. Under the circumstances, I will exercise my discretion and consider respondent’s answer.

        Petitioner's son was 17 years old and in the 11th grade at Whitestone when the hearing began in September, 1998. He was initially referred to the committee on special education (CSE) in 1990 when he was in the third grade at a parochial school, but was not recommended for special education services at that time. The boy was reassessed when he was in the fourth grade during the 1991-92 school year, and resource room intervention was recommended. He reportedly participated in an after school program at the public school for one year. He continued to attend parochial school through the sixth grade during the 1993-94 school year. For the seventh grade during the 1994-95 school year, the boy began attending public school at I.S. 25Q (Exhibit L). In March, 1995 he was referred to the CSE, which classified him as learning disabled. The CSE recommended that the boy receive resource room services, which were provided through June, 1995 (Exhibit 12). In September, 1995, when he was entering the eighth grade, the boy was unilaterally placed at Whitestone by his parents. Whitestone has not been approved by the New York State Education Department to provide education to children with disabilities. The boy continued to attend Whitestone for ninth and tenth grade.

        The CSE began its annual review of the boy in March, 1998. At the time, the boy was in the tenth grade at Whitestone. A social history update was prepared by one of respondent’s social workers based upon an interview with the boy’s father (Exhibit 9). The social worker noted that the boy’s parents enrolled him in private school because they believed that resource room services would not sufficiently address their son’s deficits. The boy’s father also believed that the environment at Whitestone had helped his son because of the smaller student population and class size. He indicated that his son receives more teacher attention and extra help. The boy’s father further indicated that his son’s self-esteem and school performance had improved while at Whitestone. He noted that his son continues to have difficulty taking tests and expressing his thoughts in writing. The social worker reported that the child had a history of asthma and allergies, but was not currently taking any medication or receiving any treatment.

        An educational evaluation was conducted on April 22, 1998 (Exhibit 8). The educational evaluator noted that the boy was motivated and put forth his best effort. The boy’s language and reading skills were assessed using the Woodcock Language Proficiency Battery-Revised. While the boy achieved grade level scores on the language subtests, the educational evaluator indicated that the extreme variability in his scores could be indicative of a concentration problem or an underlying processing deficit. She noted that the boy’s performance on the reading subtests was also inconsistent. He had great difficulty in the mechanical aspect of reading, but demonstrated remarkable ability to use context clues as a compensatory strategy. The educational evaluator noted that this explained his higher score in the passage comprehension area. The boy’s writing skills were considerably below grade expectations. On the BASIS Spelling test, the boy achieved a grade equivalent score of 4.0. He showed poor use of visual memory and poor phonetic encoding abilities. In addition to spelling and capitalization errors, the boy had difficulty completing a logically sequenced paragraph. His handwriting was described as "quite chaotic," reflecting difficulties in the visual mode. Mathematics was also an area of difficulty for the boy. He received grade equivalents scores of 5.3 in application and 5.0 in computation on the Kaufman Test of Educational Achievement (KTEA). His composite math score was a 5.3 grade equivalent. While the boy had good reasoning skills, he had not yet mastered some basic skills. Additionally, while solving verbal problems, he missed important cues and solved problems incorrectly. The educational evaluator noted that the boy had learned to compensate for his difficulties, but she recommended remedial services to address them.

        In a psychological evaluation conducted on April 22, 1998, the school psychologist indicated that he reviewed testing results from 1990, 1992, 1995 and 1997, and found reasonable consistencies. He reported that based upon results of testing in 1997, the boy’s verbal and full scale IQ scores were in the average range (Exhibit 10). Previous testing results also showed that the boy demonstrated significant deficits in the areas of graphomotor skills and mentally computed arithmetic. The school psychologist noted that unlike previous evaluations, the boy manifested no significant signs of impulsivity or anxiety. The present assessment revealed that the boy continued to display graphomotor difficulties. On tests assessing anxiety, no significant indicators were noted.

        The boy was observed in his global studies class of seven students by one of respondent’s psychologists on April 23, 1998 (Exhibit 7). The school psychologist reported that the boy did not volunteer, but was prepared and followed all directions. She noted that only one student had completed the homework assignment, but there did not appear to be any consequences for those who failed to complete it. The school psychologist interviewed the boy’s teacher, who reported that the boy had difficulty writing numbers on a line. The teacher noted that although the boy was passing the course with a 70, he was not expected to pass the Regents examination. The boy’s Spanish teacher reported that the boy was struggling to keep up. He did not have a good foundation in the subject, and his motivation was described as inconsistent. However, the Spanish teacher indicated that the majority of the class was inadequately prepared, and not expected to pass the proficiency test, if taken.

        On May 15, 1998, an assistive technology evaluation was conducted (Exhibit 6). The evaluation team determined that the child was able to produce written work using "traditional implements". He demonstrated appropriate pencil grasp and was able to form all letters of the alphabet correctly. The boy’s written work during the evaluation was legible. He did not complain of fatigue. It was noted that the boy intermittently interchanged upper and lower case letters and demonstrated close spacing between words, but was able to self-correct when asked. The evaluation team concluded that the was no evidence of graphomotor dysfunction, and that the boy did not need assistive technology for writing.

        On June 15, 1998, the CSE recommended that the child be classified learning disabled, and be placed in a Supplemental Instructional Services-I (SIS-I) class with a staffing ratio of 8:1, and consultant teacher services five periods per week. Petitioner disagreed with the CSE’s recommendation, and requested an impartial hearing. The hearing began on September 15, 1998, and was held on various dates, concluding on January 13, 1999. The hearing officer rendered his decision on March 3, 1999. He found that the annual goals specified in the boy’s individualized education program (IEP) were sufficient, and that the CSE had prepared an appropriate IEP for the boy. He further found that the proposed program was reasonably calculated to allow the child to obtain educational benefit from his placement. The hearing officer observed that with the exception of the smaller regular education classes at Whitestone, the proposed program and Whitestone were very similar. Both offered a mainstream setting with resource room services. Having found that the board made a valid placement offer, the hearing officer denied petitioner’s request for an award of tuition reimbursement.

        Petitioner appeals from the hearing officer’s decision. He raises several challenges to the evaluation process and to his son’s IEP, including the recommended program. I note that some of the technical challenges to the IEP are based upon amendments to the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA) and the regulations, which were not effective at the time of the CSE meeting.

        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]). 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).

        There is no dispute that the boy has severe deficits in the areas of reading, mathematics and written expression. The results of evaluations assessing his current levels of functioning in these areas are set forth in the IEP. The IEP also includes annual goals and short-term instructional objectives addressing the boy’s identified needs.

        An IEP must also describe the special education services which are necessary to afford the child a reasonable opportunity to achieve his annual goals. The CSE recommended that the boy receive one period of resource room services five days per week, as well as consultant teacher services five periods per week. The principal of special education described the resource room as a phonics based, remedial reading class where the teacher uses direct instruction to teach the building blocks for reading (September 15, 1998 Transcript p. 45). She testified that the resource room teacher would also address the child's math deficits by isolating the specific area of difficulty and teaching the skill (September 15, 1998 Transcript p. 47).

        With respect to the consultant teacher services, I note that the IEP does not specify whether the consultant teacher’s time was to be divided between direct and indirect services. Section 200.4(c)(2) of the Regulations of the Commissioner of Education provides that a CSE shall indicate on the IEP the "amount of time per day" the student will receive a special education service. Direct consultant teacher service is a special education service. So is indirect consultant teacher service. I find that the boy’s IEP should have identified how the consultant teacher’s time would have been divided between direct and indirect services (Application of the Board of Education of the City School District of the City of Buffalo, Appeal No. 97-66). The assistant principal for special education testified that the consultant teacher would provide direct services one period per week and indirect services four periods per week (September 15, 1998 Transcript p. 57) She stated that the consultant teacher would meet with the child’s mainstream and resource room teachers to suggest modifications to the curriculum, adapt assignments, and ensure that various tools were in place such as use of a tape recorder and video tapes (September 15, 1998 Transcript pp. 49 and 57). The consultant teacher would also meet with the child to organize homework, assignments and test schedules (September 15, 1998 Transcript p. 49). The assistant principal for special education opined that the boy's math deficits would be addressed by the consultant teacher and the resource room teacher.

        A resource room program is defined in state regulation as supplementary instruction (See 8 NYCRR 200.1[rr], formerly 8 NYCRR 200.1[hh]). Given the severity of the boy’s deficits in reading, math, and written expression, I find that supplementary instruction for five periods per week and direct consultant teacher services for one period per week would not be sufficient to address all of his special education needs. Accordingly, I find that respondent failed to prove the appropriateness of its recommended program.

        Petitioner seeks 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]). I have already determined that respondent failed to demonstrate the appropriateness of its recommended program. Accordingly, I find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, the boy’s parent bears the burden of proving the appropriateness of the services which he obtained for his son at Whitestone 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" [IDEA] (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 principal of Whitestone testified that the school offers small class sizes with between 18 and 20 students in a class. It also offers extra support and extra time with teachers, as well as testing modifications (October 22, 1998 Transcript p. 6). She further testified that the school has a resource room, but does not have an actual remedial teacher (October 22, 1998 Transcript p. 6). The principal stated that the boy had been taught math for one and one half years by a teacher certified in special education, but that the teacher resigned her position in October, 1998 (October 22, 1998 Transcript p. 9). She testified that there was no teacher to teach the boy’s math class (October 22, 1998 Transcript p. 17). The boy’s English teacher testified that the boy continued to need additional instruction out of class (October 22, 1998 Transcript p. 40). However, she also testified that there was no remedial teacher at the school. She also testified that she wasn’t sure if she could help the boy with his handwriting difficulties. Petitioner’s expert testified that the boy required a phonetic approach to address his learning disability.

        Based upon the information before me, I am unable to find that Whitestone offered an educational program which met the boy’s special education needs. There is no information in the record that shows how the program at Whitestone addressed his deficits. Specifically, there is no indication that Whitestone provided the intensive phonetic based program that the evaluators agreed was necessary to address the boy’s reading difficulties. In fact, his English teacher testified that he needed additional help out-of-class, and suggested that the boy needed 1:1 instruction at least twice per week. Additionally, she testified that she wasn’t sure if she could help the boy with his handwriting difficulties. Further, there is no information in the record regarding how the boy’s math deficits were being addressed in a class with no teacher. Accordingly, I find that petitioner is not entitled to reimbursement for his son’s tuition at Whitestone for the 1998-99 school year.

        I have considered petitioner’s other claims, including his assertion that Whitestone has become his son’s pendency, or "stay-put", placement as the result of a hearing officer’s decision in a prior proceeding from which the Board of Education did not appeal. In the prior proceeding, an impartial hearing officer ordered respondent to reimburse the boy’s parents for the cost of tuition at Whitestone for the 1996-97 and 1997-98 school years. The order was in a decision which was rendered on December 10, 1997. No appeal was taken from that decision. The State Review Officer has held on many occasions that an award of tuition reimbursement does not change a child’s pendency placement (Application of a Child with a Disability, Appeal No. 96-83; Application of a Child with a Disability, Appeal No. 96-92; Applications of the Board of Education of the Albion CSD and a Child with a Disability, Appeal Nos. 97-42 and 43; Application of the Board of Education of the Northeastern CSD, Appeal No. 97-76; and Application of the Board of Education of the Wappingers CSD, Appeal No. 97-82). Since those decisions, the Federal regulations implementing the IDEA were amended in May, 1999 to provide that when "… the decision of a hearing officer in a due process hearing conducted by the SEA (State educational agency) or State Review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate…" that new placement becomes the child’s pendency placement (See 34 CFR 300.514 [c]). However, that regulation does not apply in this instance because the hearing officer’s decision was not rendered in a hearing conducted by the State Education Department. I find that there is no merit to petitioner’s contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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