99-085

        Petitioners appeal from an impartial hearing officer's decision limiting their reimbursement for the expense of their child's enrollment in the York Preparatory School (York) during the 1998-99 school year to the equivalent of three hours of consultant teacher services per week. The appeal must be sustained in part.

        Petitioners' daughter is now 18 years old. During the 1998-99 school year, she was in the tenth grade at York. The child has never been enrolled in public school. Her prior school history is set forth in a previous appeal (Application of a Child with a Disability, Appeal No. 98-18). The earlier appeal concerned the girl's placement at the Eagle Hill School in Greenwich, Connecticut for the 1997-98 school year. Her parents placed her in that school, and invoked the due process procedures to obtain an award of tuition reimbursement. An impartial hearing officer found that the girl did not have any deficits which would materially affect her ability to function in a regular education program, and denied petitioners' request for tuition reimbursement. On appeal, I found that respondent had failed to show the appropriateness of the decision by its committee on special education (CSE) to declassify the child, and it had therefore failed to meet its burden of proving that its CSE had recommended an appropriate educational program for the student. However, I further found that the girl's educational needs were not severe enough to require placement in so restrictive a setting as the Eagle Hill School, and denied petitioners' request for an award of tuition reimbursement. Petitioners have sought judicial review of that decision.

        In September, 1997, the girl was diagnosed by a psychiatrist as having an attention deficit disorder (ADD) because she manifested inattention (Exhibit 4). Although the psychiatrist also opined that the girl had a "marked learning disability", he did not reveal the basis for his opinion. In any event, he reiterated his findings in a medical report dated June 5, 1998 (Exhibit 5). In the earlier report, the psychiatrist also included the conditions of "Oppositional Disorder", "Conduct Disorder", and "Depressive Disorder including Bipolar Disorder" within his differential diagnosis. He indicated that he would provide "multi-modal" treatment to the child on a monthly basis.

        The girl was observed in her algebra class at the Eagle Hill School by a CSE school psychologist on March 11, 1998 (Exhibit 6). The school psychologist reported that the girl had a good ability to express herself, and had continuously asked the teacher for clarification of the algebra problems which were being worked on in the class. She remained focused, and appeared to be an enthusiastic learner.

        A CSE educational evaluator tested petitioners' daughter on March 24, 1998 (Exhibit 3). At the time of the evaluation, the girl was in the sixth month of the ninth grade. The evaluator reported that the girl had achieved grade equivalent (and standard) scores of 16.8 (122) for letter-word identification, 13.0 (114) for passage comprehension, 10.0 (100) for calculation, and 11.6 (105) for applied problems on the Woodcock-Johnson Psychoeducational Battery-Revised Test of Achievement. At the request of the evaluator, the girl wrote a paragraph about her recent trip to Italy. The evaluator reported that the girl was able to relate her thoughts in an organized manner and made good use of language mechanics.

        On May 4, 1998, the CSE psychologist evaluated the girl at the Eagle Hill School. She reported that the girl was very friendly and cooperative, but anxious, during the evaluation. The psychologist chose not to administer an IQ test because one had been administered in May, 1997. In that evaluation, the girl had achieved a verbal IQ score of 110, a performance IQ score of 117, and a full scale IQ score of 114. The school psychologist attempted to administer the California Verbal Learning Test – Revised to ascertain if the child's verbal memory was weak. However, the child was distracted by outside noise, and could not complete the test. The girl's visual motor integration skills were tested, and found to be age appropriate. Projective testing revealed that the girl appeared to be feeling sad and isolated. She reportedly missed her friends in New York City. The school psychologist reported that the girl's self-concept was poor, and that she presented as anxious and depressed with a rigid personality style. She recommended that the girl be closely followed by the school and by a mental health professional. The psychologist notified the private school and the girl’s father of her concerns (Exhibit 7).

        The child's father was interviewed by a school social worker on May 28, 1999 (Exhibit 1). The father indicated that in response to the school psychologist's concerns about the daughter's emotional state, he had arranged for her to resume receiving therapy with her former therapist, the psychiatrist who had diagnosed her as having ADD. He also indicated that the girl was taking 20 mg. of Ritalin per day.

        Respondent's CSE conducted its annual review of the child on July 20, 1998. Petitioners attended that review, at which the CSE prepared the girl's individualized education program (IEP) for the 1998-99 school year (Exhibit 9). The CSE recommended that the girl be classified as learning disabled, and that she be enrolled in regular education classes. It further recommended that she receive 180 minutes of direct and indirect consultant teacher services (see 8 NYCRR 200.1 [1]) to assist her with "organizational skills, focusing and attention". The CSE did not specify how the teacher’s time was to be divided between direct and indirect service (cf., Application of a Child with a Disability, Appeal No. 99-66). Although the CSE did not explicitly specify whether it was recommending 180 minutes of service per day or per week, it apparently recommended the latter. To address her emotional concerns, the CSE recommended that the girl receive 30 minutes of individual counseling, and 30 minutes of counseling in a group, per week. I note that there is no dispute about the appropriateness of that recommendation (May 10, 1999 Transcript, p. 8). The CSE also recommended that test time limits be doubled for her. There were two annual goals for the recommended consultant teacher services, both of which read that the child would improve her ability to participate in general education. Similarly, there were two annual goals for counseling which were almost identically worded. Petitioners were formally notified of the CSE's recommendations on July 30, 1998, when they were offered a placement for the 1998-99 school year in respondent's Louis Brandeis High School (Exhibit 10).

        Petitioners did not accept the CSE's recommendation that their child receive consultant teacher services. They enrolled the child in York, which is located in New York City. York is a private school which serves approximately 235 students in grades six through twelve. Approximately 40 percent of York's students reportedly have some form of learning disability or ADD. It has not been approved by the State Education Department to provide instruction to children with disabilities. Petitioners also requested that an impartial hearing be held to review the CSE's recommendation, and to obtain an award of tuition reimbursement for the 1998-99 school year.

        The hearing was scheduled to begin on December 16, 1998, but was twice adjourned by consent until May 10, 1999. At the hearing, petitioners indicated that they did not challenge the appropriateness of their daughter's classification as learning disabled, but indicated that she might have "secondary disabilities." The CSE representative asserted that respondent would defend the appropriateness of the CSE's program recommendation, but could not defend the appropriateness of the proposed placement at the Louis Brandeis High School because he had learned that respondent did not have a teacher available to provide consultant teacher services at the school (May 10, 1999 Transcript, p. 8). Petitioners challenged the CSE's failure to specify how much of the recommended consultant teacher services should be direct and how much should be indirect. They also challenged their child's IEP annual goals and short-term objectives. However, their primary challenge was to the adequacy of the special education services which the CSE had recommended. The hearing continued on June 1, 1999 and ended on June 10, 1999. At the end of the hearing, petitioners requested that they also be reimbursed for the cost of the psychotherapy which a psychiatrist had provided to their daughter.

        In her decision which was rendered on August 6, 1999, the hearing officer noted that the CSE representative had conceded that respondent could not meet its burden of proof with regard to the program it recommended because it could not provide that program. She also noted that a psychiatrist affiliated with the Columbia Presbyterian New York City Psychiatric Institute had been treating the girl since December, 1998, and that the girl began attending Phoenix House in March or April, 1999 for rehabilitation from the use of large amounts of alcohol and marijuana. The hearing officer found that at York, petitioners' daughter was taught in classes of 2 to 14 students by teachers who were not special education teachers, but who were supervised by York’s principal, who is a trained special education teacher. The York principal was unable to estimate the amount of time he spent consulting with the girl's teachers. The specialized techniques which the girl's teachers reportedly used included breaking down materials and instructions, using graphic organizers, and teaching her to paraphrase. The hearing officer found that the child did not require small classes or special education to learn because she did not manifest any specific academic deficit as a result of ADD. Nevertheless, the hearing officer found that York's program was appropriate to the extent that its principal consulted with the child's teachers. However, she found that petitioners' claim for full tuition reimbursement at York was not supported by equitable considerations. The hearing officer directed respondent to reimburse petitioners in the amount of the per session rate for a special education teacher for three hours per week during the 1998-99 school year. The hearing officer denied petitioners' request to be reimbursed for psychotherapy expenditures on the ground that they were for medical services which respondent was not obligated to provide under the Individuals with Disabilities Education Act (IDEA).

        Initially, I note that petitioners challenge the CSE's recommendations on the grounds that the CSE failed to invite a representative of the child's private school to attend its July 20, 1998 annual review; that the CSE failed to contact the psychiatrist who had diagnosed the child as having ADD in 1997; that the girl's IEP goals were inappropriate; that the IEP should have specified what portions of the consultant teacher's time were to be spent on direct services and indirect services, respectively; and that the recommended consultant teacher services would have been inadequate to meet their daughter's educational needs. In view of the hearing officer's determination that respondent had failed to meet its burden of proof regarding the CSE's recommendations, I find that those issues are moot.

        Although there does not appear to be a significant discrepancy between the girl's expected achievement and actual achievement (see 8 NYCRR 200.1 [mm] [6]), there is no dispute between the parties about the appropriateness of the girl's classification as learning disabled. I therefore do not address the issue of her classification (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). However, I must first ascertain what the child's special education needs were before I can determine whether her parents have met their burden of proving that they should receive an award of full tuition reimbursement.

        The record reveals that the cognitive ability of petitioners' daughter is in the average to above average range. She has age appropriate visual motor integration skills. I note that a psychiatrist who testified at the hearing suggested that the girl had a perceptual disability. She acknowledged that she had no evidence to support that suggestion other than a report of an educational or psychological evaluation which she had seen, but which was not introduced into evidence. Under the circumstances, I find that there is no evidence of the alleged perceptual disability in the record.

        The girl’s academic achievement has been consistent with her ability. She has been diagnosed as having ADD by two psychiatrists (Exhibit 4; June 10, 1999 Transcript, p. 41). Although the psychiatrist who evaluated her in 1997 also found the child to have an oppositional disorder, a conduct disorder and a depressive disorder, a second psychiatrist who began treating her in December, 1998 testified that she would not diagnose the girl as having an oppositional disorder or a conduct disorder. The second psychiatrist also testified that the girl manifested signs of depression. I note that in a December, 1997 progress report by the girl’s educational advisor at Eagle Hill, the advisor reported that the child’s moodiness was a weakness which affected her daily academic success, but it did not appear to affect her performance over the long term (Exhibit 8).

        At the hearing, the second psychiatrist focused her testimony upon the effect of the girl's ADD. She testified that child’s ability to pay attention had improved as a result of the psychiatrist’s recent decision to increase the amount of the girl’s Ritalin (June 10, 1999 Transcript, p.50). When asked about the program of consultant teacher services recommended by the CSE, the psychiatrist opined that the program would not be "optimal," and "would probably make learning very difficult" (June 10, 1999 Transcript, p. 43). She also opined that the maximum class size in which the girl could function was a class of ten students (Ibid). I note that the York principal had previously testified that there were fourteen students in the child's English, social studies, and science classes, and eleven students in her mathematics class (June 1, 1999 Transcript, p. 18). Under the circumstances, I cannot accept the psychiatrist's opinion with regard to the maximum class size for this youngster, and I find that the record does not establish that this child’s special education needs were so severe as to require full time placement in small classes. Parents who unilaterally place their children in private schools are not held as strictly as boards of education are to the requirement that children with disabilities be educated in the least restrictive environment. Nevertheless, the restrictiveness of the unilateral placement may be considered in determining the appropriateness of tuition reimbursement awards (M.S. v. Bd. of Educ. of the City School Dist. of the City of Yonkers, ___F3d___, [2d Cir., 2000], 2000 Lexis 26848). I concur with the hearing officer’s determination to limit petitioners’ recovery of tuition to the equivalent of three hours per week of consultant teacher service, not because of what the CSE had recommended, but because that amount appears to be adequate to compensate for the York principal’s time in consulting with the girl's teachers (Application of a Child with a Disability , Appeal No. 99-28).

        The final issue to be determined is whether petitioners should be reimbursed for their expenditures for the psychotherapy which was provided by a psychiatrist to petitioners' daughter. Although the hearing officer questioned the lateness of petitioners' request (June 10, 1999 Transcript, p. 75), respondent's representative did not object, and it was agreed that the hearing officer would consider the request. The cost of the girl's psychotherapy was partially paid for by petitioners' insurance. They submitted a bill by the psychiatrist for her services from December 15, 1998 through April 1, 1999, in the amount of $642. Respondent does not object to the amount of the bill, but argues that the hearing officer correctly determined that it should not be held liable for the cost of the psychotherapy because it was medical in nature.

        I find that the fact that the service in question was rendered by a physician is not determinative of the issue (Irving Independent School District v. Tatro , 468 U.S.883 [1984]). Respondent’s CSE had recommended that the girl receive 30 minutes of individual and 30 minutes of group counseling per week to improve her ability to relate to peers, her ability to deal with frustration, her self-concept, her ability to complete assignments without supervision, and her ability to discuss concerns about school (Exhibit 9). I have reviewed the testimony of the psychiatrist. She was unaware that peer relationships were a significant problem for the girl, but asserted that she had worked with the girl on controlling her frustration, improving her self-concept, and discussing concerns about school (June 10, 1999 Transcript, pp. 49-50). I find that there is sufficient information in the record to support petitioners’ request for reimbursement for at least part of the psychiatrist’s fees. I note that at the close of the hearing respondent’s representative indicated that respondent’s customary rate of compensation for counseling was $45 for 30 minutes of service (June 10, 1999 Transcript, p.74). I will direct respondent to reimburse petitioners at this rate for their out of pocket costs for this service.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it denied petitioners’ request for reimbursement for psychotherapy for their child; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners in accordance with the tenor of this decision.