00-031

         Petitioner, the Board of Education of the City School District of the City of New York, appeals from an impartial hearing officer's decision which ordered it to reimburse respondent for the cost of his son's education at the Stephen Gaynor School (Gaynor) for the 1999-2000 school year. The appeal must be dismissed.

        Respondent's son was ten years old and in the equivalent of the fifth grade at Gaynor at the time of the hearing. He has attended Gaynor since kindergarten. Gaynor has not been approved by the New York State Education Department to provide education to children with disabilities. The record is limited with respect to the student's history with petitioner's Committee on Special Education (CSE), but does indicate that the student has been classified by the CSE as learning disabled. His classification is not in dispute in this proceeding.

        A speech/language evaluation was conducted in September 1998 when the student was in the fourth grade and nearly nine years old (Exhibit 7). Based upon a July 1998 social history (Exhibit 5), the speech/language pathologist noted that the boy took Ritalin twice per day. Although he had reportedly taken his morning dose of Ritalin prior to the evaluation, the student nevertheless exhibited poor attending skills and a short attention span during the evaluation. The evaluator reported that the boy's significant attention problems affected his ability to perform, even with frequent breaks to accommodate his behavior. The speech/language pathologist further reported that the student's linguistic functioning ranged from below average to significantly above average. When he was not focused and not attending, the student had difficulty organizing, integrating and remembering stimuli presented orally. The speech/language pathologist noted that the student's performance was above average when information was concrete and pictorial clues were provided. However, as the information became more complex and visual clues were not supplied, the student's attending skills deteriorated and his performance weakened. The student's expressive language skills were variable. He demonstrated difficulty in planning and producing sentences for conversation and narratives. He also had difficulty organizing his thoughts in a logical precise manner. The speech/language pathologist recommended that the student receive speech/language therapy twice per week for 30 minutes.

        In a 1998-99 midyear progress report, Gaynor reported that the student's reading comprehension and spelling skills were at approximately a 2.5 grade level and his mathematics skills were at a 3.0 grade level (Exhibit 12). The progress report also revealed that the student performed best on writing tasks when structure was provided. The student was described as not being particularly verbal because he preferred to use gestures or actions to communicate. He also exhibited word retrieval difficulties, and was disorganized in his language. The report further indicated that the student sometimes became silly, and had difficulty transitioning from free time to an academic activity.

        One of petitioner's school psychologists observed the student in his reading class in January 1999 (Exhibit 10). The student was able to respond to questions about a book the class was reading. He also was able to read a passage aloud, although he had difficulty with two words. The school psychologist noted that the student actively participated during the entire period and was attentive when his classmates were reading.

        In an educational evaluation conducted on April 10, 1999 (Exhibit 11), the student achieved grade equivalent scores of 2.5 for reading comprehension, 3.5 for reading decoding, 3.7 for spelling, 4.2 for math computation, and 3.6 for math application on the Kaufman Test of Educational Achievement (KTEA). The educational evaluator noted that the student's greatest skill deficit was in reading comprehension and she recommended teaching the student more strategies and providing practice through drills and repetition to make reading a more fluent activity. On an informal writing sample, the student's writing was labored and simple. He did not use descriptive or enriched vocabulary. The educational evaluator suggested the use of a computer to increase productivity. She also suggested that the student maintain a daily log to increase his vocabulary, sentence construction and idea development.

        A psychological evaluation was conducted on April 10, 1999 (Exhibit 9). The student achieved a verbal IQ score of 110, a performance IQ score of 104, and a full scale IQ score of 107 on the Weschler Intelligence Scale for Children - III (WISC-III), placing him in the upper end of the average range of intellectual functioning. The student's graphomotor and fine motor functioning were below average. Projective testing revealed that he was very sensitive, sometimes fragile, and had difficulty verbalizing his feelings. The psychologist noted that the student required much encouragement and praise in order to perform successfully at his intellectual potential. He recommended that a speech/language evaluation be conducted. He further recommended that the student remain in counseling to build his self-confidence and self-esteem.

        An occupational therapist who assessed the student on April 22, 1999 reported that he did not need therapy (Exhibit 6). A speech/language pathologist who evaluated the student on April 30, 1999 recommended that he not receive therapy (Exhibit 8). She noted that although the student had exhibited some difficulty responding to questions based on orally presented paragraphs and sentence assembly, his expressive and receptive language skills were in the normal range. A medical documentation form completed in April 1999 indicated that the student had been diagnosed as having an attention deficit disorder (Exhibit 14).

        The CSE was initially scheduled to meet on May 28, 1999. However, the meeting was postponed because the parent member was unavailable. The CSE reconvened on June 23, 1998. No one from Gaynor was available to participate at the meeting, however, one of petitioner's educational evaluators was designated to serve as the special education teacher member of the CSE. The CSE developed an individualized education program (IEP) for the student for the 1999-2000 school year (Exhibit 3). It recommended that he continue to be classified as learning disabled, and that he be placed in a modified instructional services - I (MIS-I) program with a student : teacher ratio of 15:1. The CSE further recommend that the student receive speech/language therapy in a group twice per week and counseling in a group once per week. A final notice of the CSE's recommendation was sent to respondent on July 29, 1999, in which the boy's parent was offered a specific placement at PS 871, which is also called the New York City Lower Lab School for Gifted Education (Exhibit 1). The record shows that the school's designation changed from PS 871 to PS 77 commencing the 1999-2000 school year.

        Respondent disagreed with the recommended placement, and requested an impartial hearing. The hearing was held on January 21, 31 and February 29, 2000. The hearing officer rendered his decision on April 6, 2000. He determined that the CSE was invalidly composed because the student's special education teacher from Gaynor was not present at the June 23, 1999 meeting. Additionally, the hearing officer questioned whether the student would have been appropriately grouped for math in the proposed MIS-I program. He also questioned whether mainstreaming the student for math was considered as an alternative, and whether it was a viable option. The hearing officer concluded that petitioner had failed to offer an appropriate program, and that Gaynor had provided an appropriate program to the student. Accordingly, the hearing officer found that respondent was entitled to an award of tuition reimbursement.

        The Board of Education appeals from the hearing officer's decision on several grounds. Initially, it argues that the hearing officer incorrectly determined that the CSE was improperly constituted, thereby nullifying its recommendation for the student's program and placement during the 1999-2000 school year. The Board of Education asserts that when a parent has placed his child in a private school, it is not required to have a teacher from that school participate in the student's IEP meeting as the student's special education teacher. Instead, it argues that it may designate one of its educational evaluators to serve as the student's special education teacher at the meeting, if the evaluator is qualified to provide special education in the area of the student's disability.

        The Board of Education relies upon the decision in Application of a Child with a Disability, Appeal No. 96-18. The hearing officer found that the decision upon which the Board of Education relies was no longer controlling because it had been premised upon a footnote to the former 34 C.F.R. § 300.344. That regulation was replaced in May 1999 by the new regulations implementing the Individuals with Disabilities Education Act Amendments of 1997 (IDEA '97). I agree with the hearing officer that the regulation in question has been superseded by the May 1999 regulations. However, I disagree with his conclusion that the 1997 amendments to the IDEA or their implementing regulations require that the student's special education teacher at the private school attend the IEP meeting.

        The IDEA '97 requires that at least "one special education teacher, or where appropriate, at least one special education provider of such child" participate in the meeting at which the student's IEP is developed (20 U.S.C. § 1414[d][1][B][iii]). The implementing regulation requires that an IEP team include at least "one special education teacher of the child, or if appropriate at least one special education provider of the child" (34 C.F.R. § 300.314[a]). The new regulation does not include the language of the former regulation's footnote authorizing a board of education to designate the teacher member of the CSE in certain circumstances. In its official interpretation of the new IDEA regulations, the U.S. Department of Education has indicated that "the special education teacher or provider of the child who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP" (See Appendix A to Part 300—Notice of Interpretation, Question 26).

        The record shows that one of petitioner's educational evaluators was designated to serve as the special education teacher member of the CSE. At the hearing, the evaluator testified that she was certified by the State Education Department to teach special education, reading, and common branch subjects (Transcript p. 59). She was therefore qualified under state law to teach respondent's son. However, the educational evaluator was not the student's current special education teacher, nor was she expected to be his special education teacher for the 1999-2000 school year.

        As interpreted by the U.S. Department of Education, the new regulation offered the Board of Education three options in selecting an individual to serve as the student's special education teacher on the CSE. It could have had the student's private school teacher serve as the special education teacher member of the CSE. In the alternative, the special education teacher on the CSE could have been a special education teacher who would have been likely to implement the student's IEP. The third option would have been for the student's speech/language therapist to serve as the special education teacher member of the CSE.

        A board of education cannot reasonably be expected to designate a teacher who will necessarily be a student's special education teacher to serve on a CSE before the CSE has determined what special education services should be provided to the student. Nevertheless, it can be expected to have sufficient information about the student to ascertain what program or programs might be appropriate for the student, and to designate a special education teacher who is not only licensed or certified to teach in such programs, but is also teaching in one of those programs. When apprised of the nature of the student's disability, such a teacher could provide significant guidance to the CSE about the student's ability to successfully function in those programs with appropriate support services. Petitioner's evaluator testified that she had taught in private schools before becoming an employee of the Board of Education. However, she had no personal knowledge of the student, and only general knowledge of the program recommended by the CSE. Under the circumstances, I must find that the educational evaluator could not serve as the student's special education teacher on the CSE since she could not provide the kind of knowledge of the student or the recommended program that I must assume was intended by the IDEA '97 and its regulations.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). I must find that the Board of Education has not met its burden of proof because of its failure to have a validly constituted CSE. As petitioner well knows, the recommendation of a CSE which did not include each of the required members is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 91-41; Application of a Child with a Handicapping Condition, Appeal No. 90-16). Having determined that the Board of Education failed to demonstrate the appropriateness of its recommended program, it is not necessary that I address its other challenges to the hearing officer's findings regarding grouping and mainstreaming.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). I find that respondent has prevailed with respect to the first criterion for an award of tuition reimbursement because the Board of Education could not demonstrate the appropriateness of the CSE's recommendation.

        A student's parent bears the burden of proof with regard to the appropriateness of the services selected (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 private school offered an educational program which met the student'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 student (Application of a Child with a Disability, Appeal No. 94-20).

        The hearing officer found that there was more than sufficient evidence demonstrating that the program at Gaynor was suiting the student's needs and providing him with an appropriate education. He noted that the student made progress at Gaynor and that the progress could be traced to Gaynor's thorough reading program. Although the Board of Education seeks to have the hearing officer's decision reversed in its entirety, it has not challenged the hearing officer's finding that the educational services which Gaynor provided to respondent's son were appropriate for the student. Absent a specific challenge to that finding, there is no reason for me to review it. Accordingly, I find that respondent has prevailed with respect to the second criterion for an award of tuition reimbursement.

        The third criterion for an award of tuition reimbursement is whether the parent's claim is supported by equitable considerations. The Board of Education contends that respondent is barred from receiving an award of tuition reimbursement because his son has not received special education services from a public agency. It relies upon the provisions of 20 U.S.C. § 1412 (a)(10)(C)(ii). Petitioner's argument has been considered and rejected in prior appeals (Application of a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 98-4). I reach the same conclusion in this appeal. I also note that there is no indication in the record that respondent failed to cooperate with the CSE. Accordingly, I find that equitable considerations support the parent's claim and that he is entitled to reimbursement for the cost of his son's tuition at Gaynor for the 1999-2000 school year.

THE APPEAL IS DISMISSED.