00-008

        Petitioner appeals from an impartial hearing officer’s decision which denied her request for tuition reimbursement for the cost of her son's tuition in the Parents for Torah for All Children (P’TACH) program at Yeshiva University High School for Boys for the 1998-99 school year. The hearing officer denied petitioner’s claim despite having found that respondent failed to prove the appropriateness of the recommendation made by its committee on special education (CSE). The appeal must be sustained.

        Petitioner’s son was a 16 year old student in the 11th grade in the P’TACH program when the hearing began in November 1998. The P’TACH program has not been approved by the New York State Education Department to provide education to children with disabilities. The student has been diagnosed as having an obsessive-compulsive disorder (OCD) and an attention deficit disorder (ADD), and takes medication for both conditions (Exhibit 10).

        The boy attended the Yeshivah of Flatbush Elementary School through the eighth grade in 1995-96, where he received supplemental "resource room services" from that school and had the benefit of test modifications (Exhibits 1 and C). He had academic difficulties and exhibited attention, organizational and speech/language deficits throughout his elementary school years (Exhibits A, C, E-I). When he graduated from eighth grade, the student’s parents were reportedly advised that their son would not be accepted for admission to the Yeshivah of Flatbush high school program because it would be too difficult for him (January 5, 1999 Transcript p. 132).

        The student began the 1996-97 school year at the Torah Academy for Boys. He transferred to the Yeshiva at Shaare Torah High School (Shaare Torah) in November 1996, because of social difficulties at the Torah Academy (Exhibit 1). He completed the ninth and 10th grades at Shaare Torah. During his 10th grade year, the student received deficiency reports in math and English (Exhibit B). His teachers indicated that he was disruptive, had difficulty paying attention, performed poorly on tests, and produced unsatisfactory class work. In April 1998, the student’s parents were advised that their son had failed math, earth science, global studies and English in the third quarter marking period (Exhibit B). In a letter dated June 17, 1998, the principal at Shaare Torah indicated that the difficulty the student experienced in the school’s academic program had affected him socially and emotionally (Exhibit 11). The principal suggested that a small, self-contained classroom would best meet the student’s individual educational needs, because the student had achieved success in a small group environment.

        By letter dated April 28, 1998, the student’s mother requested that the CSE of Community School District 21 evaluate her son because of her son’s persistent difficulty speaking clearly (Exhibit 2). She attached a copy of a March 1998 evaluation by a private speech/language pathologist. The evaluator noted that the student had received speech/language therapy between the ages of two and one-half and nine years. The student had received his regular dosage of Ritalin prior to the evaluation, and was able to sustain his attention during most activities. However, he did have some difficulty maintaining focus during extended listening activities when he was required to follow complex spoken directions or respond to questions about passages which were read aloud to him.

        The student’s language processing and formulation skills were assessed to be below expected levels. He had difficulty processing as the length and complexity of his language and that of others increased. His oral reading comprehension was also found to be below expected levels. The speech/language pathologist indicated that language processing and attentional difficulties had affected the consistency of the student’s reading comprehension. The student also had an articulation disorder. His speech intelligibility was affected by the rate, length and overall organizational complexity of the information he presented. The speech/language pathologist noted that when the student was conscious of his speech, he could compensate reasonably well to produce acceptably intelligible speech. She recommended individual speech/language therapy twice per week to improve his verbal communication abilities and to increase his self-esteem and social competence. She suggested that the student would benefit from a language/communication therapy group with his peers, and that consideration be given to an alternative school placement with small classes, an academically stimulating curriculum, guided peer interaction and counseling groups, and a suitable cultural environment.

        In a social history dated May 21, 1998, one of respondent’s social workers reported that the student began receiving treatment for oppositional behavior and social difficulties when he was in elementary school, and had been treated by several physicians and with various medications (Exhibit 3). The student’s mother advised the social worker that her son was not performing well in English, and that he was disorganized. She indicated that she was seeking an appropriate placement to meet her son’s academic, speech/language, and social/emotional needs.

        In a psychological evaluation conducted on May 21, 1998, the student achieved a verbal IQ score of 113, a performance IQ score of 95, and a full scale IQ score of 105, placing the student in the average range of intellectual functioning (Exhibit 4). His visual motor perceptual functioning and short-term visual recall were age appropriate. The school psychologist reported that the student worked slowly, but with good concentration. He further noted that the student spoke hesitantly and slowly at times.

        An educational evaluation was conducted on May 26, 1998 (Exhibit 5). The educational evaluator noted that the student appeared to be motivated, had maintained adequate attention, and worked carefully and slowly. She further noted that the student’s speech was intelligible, although he spoke hesitantly at times. The student’s reading and math skills were assessed to be at or above grade level, while his social studies skills were reported to be about one year below grade level. His writing skills were weak in the areas of topic development, grammar, punctuation, and sentence structure.

        In May 1998, a psychiatrist reported that he had been treating the student since 1992 for OCD and ADD. He indicated that the symptoms of those disorders included inattentiveness, poor concentration, difficulty focusing and remaining on task, obsessive behavior, and ritualistic acts. He prescribed medication to treat the student’s symptoms. Additionally, the psychiatrist noted that the student had language and learning difficulties, and required speech therapy and counseling to address self-esteem and social interaction issues. He indicated that an appropriate school placement was critical, and recommended that the student attend a school which offered small classes with a low student-to-teacher ratio to meet his learning needs. He further recommended an environment that provided guided peer interaction.

        On July 10, 1998, the District 21 CSE recommended that the student not be classified as a child with a disability, after determining that the student was functioning on or above grade level, and that his speech/language delays did not interfere with his academic performance. No classroom observation was conducted as part of the initial evaluation (January 5, 1999 Transcript p. 70). By letter dated September 2, 1998, the student’s mother advised the District 21 CSE that she would request a hearing to review its recommendation. Petitioner also indicated that she would be enrolling her son in the P’TACH program, and that she would be seeking tuition reimbursement.

        Petitioner’s son began attending the P’TACH program in the fall of 1998. During the 1998-99 school year, he received one hour of private speech/language therapy per week. His speech/language therapist testified that the student displayed a significant disability regarding the social and practical use of language, which was problematic for him in almost every avenue of life (July 28, 1999 Transcript p. 99).

        The impartial hearing began on January 5, 1999 and was held on various dates, ending on September 14, 1999. At the second day of the hearing, respondent made a motion to dismiss petitioner’s claim for tuition reimbursement on the ground that the student had not previously received special education and related services under the authority of a public agency. In an interim order dated May 26, 1999, the hearing officer denied respondent’s motion without prejudice to raise the issue again before she rendered her final decision. While the hearing was pending in May 1999, the CSE of Community School District 6 evaluated the student for the 1999-00 school year. That CSE evaluated the student because the P’TACH program is located in District 6. The CSE of District 6 recommended that the student be classified as emotionally disturbed, and receive resource room services and counseling.

        The hearing officer rendered her decision on November 12, 1999. She found that the District 21 CSE’s failure to conduct a classroom observation provided a basis for annulling its recommendation (see Application of a Child Suspected of Having a Disability, Appeal No. 93-32). Accordingly, she found that respondent had failed to meet its burden of demonstrating the appropriateness of the District 21 CSE’s recommendation not to classify the student. In determining an appropriate remedy, the hearing officer noted that tuition reimbursement is available for children who are entitled to receive a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq., hereinafter referred to as IDEA). While noting that the District 21 CSE had not classified the student in July 1998 and that the District 6 CSE did classify him in May 1999, the hearing officer did not specifically find that the student would have been eligible to receive special education under the IDEA during the 1998-99 school year. Instead, she found that the student’s placement at P’TACH was too restrictive under the IDEA and its implementing regulations, and she questioned the appropriateness of the services provided by P’TACH. She noted that the student had progressed academically in a regular education environment as demonstrated by his on or above grade level scores on standardized tests, and she determined that placement in a full time special education program was inconsistent with the requirement of placement in the least restrictive environment. Accordingly, the hearing officer denied petitioner’s request for reimbursement for the cost of the P’TACH program for the 1998-99 school year.

        Petitioner appeals from the hearing officer’s denial of her request for tuition reimbursement. She asserts that the District 21 CSE failed to properly evaluate her son in accordance with the procedural requirements of the IDEA, and that respondent failed to offer her son an appropriate educational program under that statute. Since the hearing officer agreed with petitioner, at least in part, that the CSE had not properly evaluated the student, there is no need for me to consider petitioner’s assertion about procedural violations. The hearing officer’s determination that respondent failed to demonstrate the appropriateness of its CSE’s recommendation not to classify the student is final. However, it is not dispositive of the question of whether petitioner should receive an award of tuition reimbursement.

        Petitioner’s assertion that respondent failed to provide an appropriate educational program for her son under the IDEA is premised upon her belief that her son was eligible to receive special education services under the IDEA. The IDEA requires school districts to provide special education services to students who meet the criteria for classification as children with disabilities. In order to be classified as a child with a disability under federal regulation (34 C.F.R. 300.7[a][1]), or its state counterpart (8 NYCRR 200.1[mm]), a student must not only have a specific physical or mental condition, but such condition must adversely affect the student’s performance to the extent that he or she requires special education and related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-36).

        The record shows that the student has OCD and ADD, as well as speech/language deficits. A student who has ADD may be classified as other health impaired (Application of the Board of Education of Wappingers CSD, Appeal No. 97-24). Other health impaired means:

A student who is physically disabled and who has limited strength, vitality or alertness due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes or tourette syndrome, which adversely affects a student's educational performance.

(8 NYCRR 200.1[mm][10]).

        The record shows that despite taking medication for both OCD and ADD, the student continued to exhibit attention and organizational difficulties in school. Although petitioner’s son had achieved standardized test scores at or above grade level in reading and math, he nevertheless had academic and social difficulty while attempting to function in regular education environments. At the end of the 1997-98 academic year, he was in danger of failing four academic courses. The student’s psychiatrist testified that petitioner’s son had been the subject of peer harassment, and was unable to effectively function academically or socially over an extended period of time (July 28, 1999 Transcript p. 46). The psychiatrist indicated that the student had, as a result of his OCD, demonstrated patterns of behavior which restricted his ability to function cognitively and behaviorally in a normal social environment. In addition, he opined that the student’s ADD interfered with his ability to maintain focus academically and socially. A second witness, the student’s psychologist, testified that the student had exhibited obsessive-compulsive behaviors and emotional difficulties in the spring of 1998 which were, in his opinion, the result of academic and social problems at school (July 28, 1999 Transcript p. 57). He opined that the student’s obsessive-compulsive behaviors would abate once his learning difficulties were addressed and he was placed in the appropriate emotional environment (July 28, 1999 Transcript p. 58).

        Another psychologist who had treated the student between 1996 and 1998 testified that the student had a powerful hand washing compulsion and would either leave his class numerous times or not go to class at all in order to wash his hands (September 14, 1999 Transcript p. 147). That psychologist further testified that the student also had obsessive tendencies, which made it difficult for him to pay attention to anything else after becoming focused upon a topic. He explained that the student’s disorder disrupted the educational flow during the course of the day, making it was difficult to get him on track academically. The record shows that the student’s ADD compounded his speech/language deficits and affected his educational performance. Further, the student’s speech/language difficulties exacerbated his obsessive-compulsive tendencies, which negatively affected his academic and social/emotional functioning. Based upon the information before me, I find that the student’s OCD and ADD adversely affected his educational performance and that he should have been classified as other health impaired during the 1998-99 school year.

        Petitioner seeks reimbursement for the cost of her son’s tuition, less the amount attributable to religious instruction, which has been determined by P’TACH to be 20 percent (Exhibit J). Respondent argues that petitioner is not entitled to tuition reimbursement because her son has never received special education and related services under the authority of a public agency (See 20 U.S.C. 1412[a][10][C][ii]). This argument was made in another appeal (Application of a Child with a Disability, Appeal No. 98-41). As was noted in that decision, absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district.

        A board of education may be required to pay for educational services obtained for a student by the student’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 Educ., Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to their 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 Dist. Four v. 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). As noted above, petitioner has prevailed with respect the first criterion for an award of tuition reimbursement because respondent could not demonstrate the appropriateness of the CSE’s recommendation.

        With respect to the second criterion for an award of tuition reimbursement, the student’s parent bears the burden of proof to demonstrate the appropriateness of the services she obtained at P’TACH during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parent must show that the services were proper under the IDEA (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 record shows that the student had speech/language, attention, organizational, and social/emotional difficulties. The director of the P’TACH special education program testified that the student’s speech style and language processing difficulties made it difficult for him to function in a mainstream setting, and caused him social difficulties (September 14, 1999 Transcript p. 157). He further testified that the student’s attention difficulties compounded his speech/language difficulties. He indicated that the student required special education instruction in small classes with a great deal of structure and refocusing (September 14, 1999 Transcript p. 159).

        The director described the P’TACH program as an individualized program with classes ranging from four to seven students (September 14, 1999 Transcript p. 172). He indicated that the school first determined a student’s strengths and weaknesses, and then modified the work to the student’s level. Students were also expected to fulfill certain requirements (September 14, 1999 Transcript p. 161). He noted that the student was on track for a Regent’s diploma (September 14, 1999 Transcript p. 165). The director testified that his teachers used a multisensory approach with a lot of structure and reinforcement. In addition, the teachers completed a task analysis using graphs to show how the curriculum was being covered, and broke down the material into portions that were manageable for the students. The director noted that this method was important for the student because of his processing difficulties (September 14, 1999 Transcript p. 175). The school also had a study skills program to help teach the students organization and independence, which as noted above were weaknesses for this student. The student’s program was supplemented with the use of a weekly contract to make sure that he completed his homework. The contract also served as a time management tool (September 14, 1999 Transcript p. 176). The director noted that the contract had proven to be successful for the student (September 14, 1999 Transcript p. 177). Additionally, the student attended a resource center with three other classmates for additional language arts support (September 14, 1999 Transcript p. 171). Finally, a part-time counselor was available to P’TACH students, and the director noted that the counselor had become very important to the student, serving as a liaison with his private psychologist to address issues that arose in school (September 14, 1999 Transcript p. 173). The counselor also provided small group counseling at the beginning of the school year to assist the student with socialization skills (September 14, 1999 Transcript p. 178).

        The director indicated that after a long, difficult adjustment period, the student had performed well in the special education setting (September 14, 1999 Transcript p. 158). During the first semester, his teachers commented that when organized and focused, the student was able to perform well (Exhibit Q). By the end of the year the student was receiving passing grades in all subjects and had developed friendships (September 14, 1999 Transcript pp. 159 and 177). However, the director opined that the student was not yet a candidate for mainstreaming because of his language processing and social difficulties and his inability to function in a large class (September 14, 1999 Transcript p. 174). I note that other professionals who had treated or were treating the student recommended an educational setting with small classes (Exhibits 1, 10 and 11; September 14, 1999 Transcript p. 154).

        The hearing officer also found that the student’s placement at P’TACH was inconsistent with IDEA’s requirement that each child with a disability be educated in the least restrictive environment (20 USC 1412[a][5]). The least restrictive environment (LRE) requirement does apply to unilateral parental placements (M.S. on behalf of S.S. v. Bd. of Ed. of the City School District of the City of Yonkers, ___F.3d___[2d Cir., 2000]). Nevertheless, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F.2d 688 [2d Cir., 1989]). Given this student’s history in regular education classes and the nature of his disability, I cannot agree with the hearing officer’s conclusion.

        Based upon the information before me, I find that the P’TACH program met the student’s educational needs. It provided small, structured classes in an academically stimulating environment with teachers who employed a multisensory approach and constant refocusing. It also offered study skills support to address the student’s organizational deficits and an additional period of language arts support through a resource center to address his language processing difficulties. Counseling and group therapy sessions were available to address the student’s social issues, and the school’s counselor served as a liaison to the student’s private therapist. Accordingly, I find that petitioner has met her burden of demonstrating the appropriateness of the P’TACH program.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent’s claim. There is no indication in the record that petitioner failed to cooperate with the CSE. I find that equitable considerations support the parent’s claim and that she is entitled to reimbursement for the cost of her son’s tuition, less that portion attributable to religious instruction as requested at the P’TACH program.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled.

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for 80 percent of the cost of her son’s tuition for the P’TACH program for the 1998-99 school year, upon petitioner’s submission of proof of such payment.