99-083

      Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their daughter's tuition at Mary McDowell Center for Learning (Mary McDowell) for the 1998-99 school year. The hearing officer denied petitioners’ claim despite having found that respondent’s committee on special education (CSE) failed to prove that it offered an appropriate placement for the child for that school year. Respondent cross-appeals from the hearing officer’s finding that the program it recommended was inappropriate. The appeal must be sustained. The cross-appeal must be denied.

        Preliminarily, I will address the procedural issue raised in this appeal. Petitioners have annexed their daughter’s individualized education program (IEP) for the 1999-2000 school year to their petition. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). The IEP, developed by respondent’s CSE on August 6, 1999, provides evidence concerning the progress made by the child while at Mary McDowell. Though the 1999-2000 school year is not the subject of this appeal, I will accept the child’s 1999-2000 IEP for the limited purpose of evaluating the child’s progress during the 1998-99 school year.

        At the time of the hearing, petitioners’ daughter was 12 years old and in an ungraded class estimated to be at the sixth-seventh grade level at Mary McDowell. Mary McDowell, a private school for children with learning disabilities in Brooklyn, New York, 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 CSE in 1995 when she was in the third grade at respondent’s P.S. 8 in District 13 (Transcript p. 6). In April, 1995, the CSE recommended that the child be classified as learning disabled and that she receive resource room services (Transcript p. 6). Additionally, the CSE reportedly recommended that the child be held back for the third grade (Transcript p. 92). Due in part to their desire not to have their daughter held back, petitioners placed their daughter at Mary McDowell for the 1995-96 school year, where she remained through the impartial hearing.

        In a psychological evaluation conducted on March 26, 1997 when the child was in the fifth grade, the school psychologist indicated that the child displayed noteworthy signs of anxiety throughout the testing (Exhibit 5). He described the girl as an extremely fragile child, who appeared to be younger that her actual age. The child achieved a verbal IQ score of 79, a performance IQ score of 91, and a full scale IQ score of 83 on the Weschler Intelligence Scale for Children-III (WISC-III), placing her in the low average range of intellectual functioning. The school psychologist noted that the child displayed a serious weakness in the ability to process general information. She also had a limited vocabulary and attention problems which, the psychologist opined, made it difficult for her to use language with precision and to formulate and express ideas. Additionally, the child had trouble focusing on important verbal details. In the performance sphere, the school psychologist indicated that problems with spatial relationships, directionality, visual information processing and figure-ground relationships contributed to the child’s significant difficulty organizing and integrating both concrete and abstract visual material. On the Bender Visual Motor Gestalt Test, the child demonstrated visual motor integration delays of approximately two and one-half years, with indications of neurological factors.

        Based upon projective testing, the child’s test behavior, and his clinical interview, the school psychologist indicated that the child exhibited impulsivity, occasional oppositional behaviors, and, at times, attention and memory problems. He further indicated that the child displayed a great deal of emotional reactivity and anxiety, which interfered with her ability to function, and that her anxiety verged on fearfulness.

        A speech/language therapist who evaluated the child in April, 1997 indicated that the child had moderate delays in receptive and expressive language, demonstrating particular weaknesses in vocabulary, integrating speaking and listening ability, and verbalizing relationships among words (Exhibit 7). She recommended that the child continue to receive group speech/language therapy twice for 30 minutes per week.

        The CSE began conducting its evaluations for the child’s annual review in March, 1998. A social history update was completed on March 15, 1998, based upon an interview with the child’s father, who indicated that his daughter had made some progress across the board at Mary McDowell (Exhibit 3). He described his daughter as very social.

        An educational evaluation was conducted on March 15, 1998 (Exhibit 6). The educational evaluator noted that the child was not as anxious, nervous or fidgety as she had been the previous year. On the Weschler Individual Achievement Test (WIAT), the child achieved grade equivalent scores of 2.9 in basic reading, 3.3 in reading comprehension, 3.4 in spelling, 3.9 in written expression, 3.5 in math reasoning, 4.8 in numerical operations, and 2.5 in listening comprehension, demonstrating weaknesses in reading, writing, math and listening. The educational evaluator noted that the child had made some improvements since her testing in the previous year.

        In a report dated April 3, 1998, the psychologist at Mary McDowell reported that the child had language and auditory processing difficulties, and estimated that she was functioning two years below grade level (Exhibit 8). However, the psychologist indicated that the child was making nice progress. She noted that the use of medication was being explored due to the child’s difficulty sustaining focus. She also noted that the child was better able to handle social situations successfully and that she was having her best year socially.

        In year-end testing, the child received grade equivalent scores of 3.4 for vocabulary, 4.2 for comprehension, and 3.6 for the total score on the Gates-MacGinitie Reading Tests-Third Edition (Exhibit 13). On the Stanford Achievement Test, the child received a grade equivalent score of 4.6 for total mathematics.

        In May, 1998, the child’s speech/language therapist noted gradual improvement in the child’s critical thinking skills, and indicated that her vocabulary comprehension and use was expanding (Exhibit 12). She further noted that the child continued to have difficulties with word finding, verbal organization, auditory processing and topic maintenance. The therapist recommended that the child continue to receive small group speech/language therapy focusing on receptive and expressive skills.

        An updated psychological evaluation was conducted on May 3, 1998 (Exhibit 4). The child achieved a verbal IQ score of 104, falling solidly within the average range. However, the psychologist noted that the test scatter suggested the possibility of higher potential, which was reduced by specific anxiety and attentional factors. The child’s weak receptive abilities resulted in a limited fund of factual information and severely depressed ability to recall information from short-term memory. The psychologist noted that the child responded well to adult support. Projective testing indicated notable anxieties and emotional concerns, especially around separation, dependency and death.

        On June 5, 1998, the CSE prepared the child’s IEP for the 1998-99 school year, the child’s seventh grade year. It recommended that the child be placed in a Modified Instructional Services-I (MIS-I) program with related services of counseling and speech/language therapy (Exhibit 1). On June 19, 1998, the child’s father advised the CSE chairperson that he had observed the recommended placement, and that he did not believe that it was an appropriate placement for his daughter (Exhibit 15).

        A 1997-98 year-end progress report from Mary McDowell indicated that the child had made progress academically and socially (Exhibit 10). Socially, she had assumed a leadership role at the school and had developed more positive relationships with friends. Academically, the child had become more independent and was an enthusiastic participant in small group settings. However, she continued to have difficulty in larger group situations, where she would lose focus. Spelling, decoding and recalling information continued to be difficult for her. While the child’s reading had improved, she continued to require teacher support for comprehension. Although the child showed progress in math, she was unable to retain information from year to year, and she had difficulty memorizing rote facts. During the summer of 1998, the child reportedly began receiving private tutoring focusing on basic reading and writing, word processing and grapho-motor skills (Exhibit A). The tutoring continued during the 1998-99 school year.

        In a private educational evaluation conducted on July 17, 1998 (Exhibit B), the child achieved grade equivalent scores of 2.8 for basic reading, 3.6 for reading comprehension, 2.6 for spelling, 3.9 for written expression, 3.5 for math reasoning, 4.3 for numerical operations and 2.5 for listening comprehension on the Weschler Individual Achievement Test (WIAT). Significant progress was noted in writing skills. The evaluator indicated that in addition to the child’s severe learning disabilities in all areas of academic functioning, she had severe impairments in listening and language skills, making it difficult for her to process verbal and written information. The psychologist opined that class size was critical to the child’s continued educational advancement, and recommended that the child be placed in a class of no more than 10 students with two teachers.

        In a private psychoeducational evaluation conducted in December, 1998, the child achieved a verbal IQ score of 100, a performance IQ score of 110, and a full scale IQ score of 105 on the WISC-III, placing her in the average range of intellectual functioning (Exhibit A). The evaluator indicated that the child’s phonetic and decoding skills continued to fall well below age and grade expectation, and that she continued to struggle with word retrieval difficulties and relative weakness with short-term working memory. The evaluator opined that with persistent remediation in basic phonological skill, the child would make progress in basic reading and other academic areas. She recommended that the child receive assistance to remediate the deficits in her language-based academics, and that the child be encouraged to monitor her ability to remain focused while in a classroom.

        A January, 1999 progress report from Mary McDowell indicated that the child had demonstrated leadership qualities, and that she was organized and responsible (Exhibit C). It also noted that she was an excellent athlete. The child continued to have difficulty with decoding, making inferences, and spelling. While the child had made progress in math (functioning at a low fourth grade level), she continued to have difficulty recalling what she had learned, and required much practice to learn various skills. The child’s speech/language therapist indicated that the child continued to exhibit deficits in auditory memory, association, and phonemic awareness, as well as comprehension of abstract information. The speech/language therapist reported that the child’s critical thinking, verbal organization, and social communication skills were weak. She recommended that speech/language therapy, focused on improving the child’s auditory skills, be continued.

        The impartial hearing in this proceeding was held on January 28 and April 15, 1999. The hearing officer rendered his decision on August 13, 1999. He found that the CSE did not adequately identify or explain the recommended placement to the parent and that that the proposed class did not meet the requirements set forth in state regulation that the child would have been appropriately grouped in the recommended class. Further, he found that the CSE failed to consider the services of a consultant teacher despite the fact that the child had made progress as a result of receiving private tutoring. Accordingly, the hearing officer found that respondent failed to prove the appropriateness of its recommended program.

        The hearing officer also found that the parents failed to meet their burden of proving that Mary McDowell's program was appropriate for their daughter. He found that the child had grown emotionally and was less fragile and anxious. However, he noted that no counseling had been provided to the child at the private school to address her emotional issues. He also found that the child did not make meaningful progress in reading and decoding. The hearing officer further found that the private school was too restrictive because there was no opportunity for mainstreaming for the child. Accordingly, the hearing officer denied petitioners' request for tuition reimbursement. He ordered the CSE to reconvene and consider the child’s needs for the services of a consultant teacher to provide one-to-one instruction to the child in reading and decoding, and to reconsider the issue of placement.

        Petitioners appeal from the hearing officer’s decision on a number of grounds. They raise several challenges to the CSE process, including the development of the IEP. Additionally, petitioners claim that the program that they obtained for their daughter was appropriate and met her education needs. Respondent cross-appeals from the hearing officer’s determination that it failed to prove the appropriateness of the program it recommended for the child.

        The central issue in this appeal is the appropriateness of the educational program which the CSE recommended for the child for the 1998-99 school year. Therefore, I will address respondent’s cross-appeal first. Respondent argues that the child’s needs could be met in an MIS-I program with a student:staff ratio of 15:1, with counseling and speech/language therapy. It further argues that the recommended program provides mainstreaming opportunities, and is therefore the least restrictive environment for the child.

        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 (1983); 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]). The record shows that the child’s IQ is in the average range, but that she has severe deficits in the areas of reading decoding, spelling, mathematics and language processing. There is no dispute that the child requires primary special education to address those deficits. The question before me is whether the MIS-I class recommended by respondent’s CSE would have provided an educational benefit to the child. The record shows that because of her language processing deficits, the child had difficulty staying focused in group situations. She needed to be refocused and required considerable teacher support to understand and retain the information being presented to her. The child’s teachers at Mary McDowell testified that she required one-to-one support even in small group settings (Transcript pp. 236, 298 and 318). Given the severity of the child’s deficits and the significant amount of teacher support that she required, I am unable to find that the program recommended by respondent’s CSE would enable her to achieve an educational benefit. Accordingly, I find that respondent has failed to meet its burden of proving the appropriateness of the program recommended by its CSE.

        Petitioners seek 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]). Having found that respondent failed to demonstrate the appropriateness of the recommended program, I find that petitioners have met the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, the child's parents bear the burden of proof with regard to the appropriateness of the services which the parents obtained for their child at Mary McDowell 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 parents must show that the services were proper under Individuals with Disabilities Education (Burlington, supra at 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 head of the upper elementary school at Mary McDowell testified that the child’s class consisted of 10 students, two head teachers, and a student teacher (Transcript p. 235). To address her reading deficits, the child received daily multisensory instruction with four other students (Exhibit C). Previously learned skills were reviewed on a daily basis. The group also received additional instruction in comprehension twice per week. The child’s reading teacher provided individual assistance to the child to assist her in answering questions requiring her to draw inferences. A multisensory approach for spelling instruction was employed during reading class. The child’s reading teacher testified that the child required more support than could be provided by one teacher in her reading class (Transcript p. 318). She further testified that the child required refocusing in reading to stay on task, as well as visual and verbal cues to recall the strategies she had learned. She indicated that the child’s reading continued to improve. The head of the upper elementary school testified that the child had a tremendous amount of difficulty reading, and though progress was slow, the child continued to make advancements in her reading skills (Transcript p. 240). The child’s math teacher testified that he had been working intensely with the child for two years (Transcript p. 297). He further testified that the child was in a math group with a student:teacher ratio of 2:1, and that she also received much one-on-one attention. He indicated that math skills were taught a variety of different ways, including use of a text book, manipulatives, teacher designed games and the internet. Additionally, math vocabulary was reviewed in small groups to help the students negotiate their way through word problems (Exhibit C). The child’s math teacher noted that the child was functioning at a low fourth grade level, and that she appeared to be benefiting from the new approaches that had been used.

        Based upon the information before me, I find that the program at Mary McDowell met the child’s special education needs. It provided mulitsensory instruction in reading, spelling and math, as well as the teacher support and one-on-one instruction the child required. I have considered respondent’s argument about the least restrictive environment for the child (see M.S. v. Bd. of Ed. of the City School District of the City of Yonkers, ___F3d___, [2d Cir., 2000], 2000 Lexis 26848). In view of the fact that the CSE did not recommend that the child be mainstreamed for any instruction, and the nature of this child’s special education needs, I find that the parents met their burden of proving the appropriateness of the program they obtained for their daughter.

        The third and final criterion for an award of tuition reimbursement is that equitable considerations support the parents’ claim for such an award. There is no evidence before me of petitioners’ failure to cooperate with the CSE. I find that petitioners’ claim is supported by equitable considerations. Accordingly, I find that petitioners are entitled to tuition reimbursement for the 1998-99 school year.

        I have considered petitioners’ other claims, which I find to be without merit.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it denied petitioners’ request for tuition reimbursement.

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their tuition expenses at Mary McDowell during the 1998-99 school year, upon petitioners’ presentation to respondent of proof of those expenditures.