00-043

     Petitioner appeals from an impartial hearing officer’s decision denying her request for reimbursement for the cost of her daughter’s tuition at the Stephen Gaynor School (Gaynor) for the 1999-2000 school year. The appeal must be sustained.

        Petitioner's daughter was 12 years old and in fifth grade at the time of the hearing. She entered kindergarten in the fall of 1994 at P.S. 3, where she received speech/language therapy. She attended the Michael Petrides School for first grade. She was referred to respondent’s Committee on Special Education (CSE) in January 1996. The CSE recommended that she be classified as learning disabled and that she receive resource room services. The student was also privately tutored while in the first grade. She returned to P.S. 3 for the second and third grades. Her speech/language therapy was reportedly discontinued, but she continued to receive resource room services, as well as private tutoring. The student was reportedly referred to the CSE again in March 1997 because of a lack of academic progress and emotional difficulties. The CSE reportedly recommended a smaller resource room class for the student.

        Petitioner’s daughter was again referred to the CSE in February 1998, when she was in the third grade, because of continuing concern about her academic performance. A CSE educational evaluator reported that on the Woodcock Johnson Psycho-Educational Battery-Revised, the student achieved grade equivalent scores of 1.3 for letter-word identification, 1.6 for passage comprehension, 1.4 for dictation, 2.8 for calculation, and 2.0 for applied problems. Those scores indicated that she had made minimal gains since her evaluation approximately 12 months before. The student’s general knowledge was nevertheless at grade level.

        A psychoeducational evaluation was done in March 1998 by the State University of New York, Learning Disabilities Unit. The student was reported to be dyslexic and mildly depressed. She was functioning within the average range of intelligence, with relative weakness in verbal reasoning, visual-spatial construction, and difficulty with verbal memory and perceptual motor integration. The examining psychologist concluded that the student’s cognitive weaknesses significantly interfered with her ability to read and write. She noted that the student had not made progress in reading and was functionally a nonreader, and that her math skills were below expectation. She also reported that the student’s learning disability was compounded by emotional difficulties resulting from her continued experience of academic failure. The psychologist opined that the student’s current program of one period of resource room services per day was inadequate and that at least two 60-minute periods of such services were necessary. She recommended that the student receive reading instruction using the Orton-Gillingham technique outside of school and individual psychotherapy.

        The record does not reveal what kind of an educational program the CSE recommended for the 1998-99 school year. In any event, petitioner chose to enroll her daughter in Gaynor for the fourth grade during that school year. Petitioner referred her child to the CSE again in the spring of 1999. A school psychologist reviewed the student’s previous evaluations, but made no recommendation (Exhibit 5). An educational evaluation was performed on March 29, 1999. On the Woodcock Johnson Tests of Achievement, the student achieved grade equivalents of 2.0 for letter-word identification, 2.2 for passage comprehension, 2.0 for dictation, 4.3 for calculation, and 3.6 for applied problems. The student was able to write simple and complex sentences that had many errors in verb tenses and spelling (Exhibit 7). A speech/language evaluation was performed on April 30, 1999. The evaluator reported that the student’s receptive and expressive language skills were severely delayed, and that there were deficits in her auditory recall and processing skills (Exhibit 4).

        On June 7, 1999, the CSE met to develop the student’s individualized education program (IEP) for the 1999-2000 school year. The CSE recommended that the student remain classified as learning disabled and that she be placed in a Modified Instructional Services-I (MIS-I) program, with speech/language therapy once per week for 30 minutes in a group of three. I note that at the hearing in this proceeding, respondent contended that the CSE had in fact recommended speech/language therapy twice per week, rather than once per week as indicated on the IEP. Petitioner met with a placement officer after the CSE meeting (Transcript p. 13). On July 2, 1999, the CSE sent the parent a Final Notice of Recommendation indicating a specific placement would be available at P.S. 36 (Exhibit 12).

        On August 2, 1992, the parent requested a profile of the students in her daughter’s proposed MIS-I class. On August 12, 1999, petitioner notified respondent that she was unilaterally placing her child at Gaynor. Petitioner requested an impartial hearing on September 10, 1999, seeking tuition reimbursement for the student’s placement at Gaynor for the 1999-2000 school year. The impartial hearing was held on November 8, 1999, March 16, 2000 and April 4, 2000. Petitioner asserted that her child’s IEP was defective because the CSE was not properly constituted due to the fact that the CSE’s parent member, who had participated in the meeting by telephone, was only provided with a summary of the student’s evaluations, and that petitioner had not been informed of her right to have the parent member present in person at the CSE meeting. Petitioner also objected to respondent’s failure to provide her with a class profile. Petitioner sought tuition reimbursement for her child’s placement at Gaynor.

        In her corrected decision dated May 16, 2000, the hearing officer determined that the CSE’s parent member had meaningfully participated in the CSE meeting and that the student’s IEP was procedurally valid. The hearing officer further found that the Board of Education had satisfied its burden of proving the appropriateness of the educational program it recommended. She rejected petitioner’s assertion that respondent’s failure to respond to the parent’s request for a class profile afforded a basis for concluding that the Board of Education had failed to meet its burden of proof. The hearing officer found that the MIS-I teacher’s testimony as to the size of her class and her students’ functional levels in reading and math provided petitioner with sufficient information about the proposed class. The hearing officer denied petitioner’s request for tuition reimbursement for the 1999-2000 school year.

        In this appeal, petitioner renews her objection to the composition of the CSE, on the grounds that she was not advised of her right to have a parent member of the CSE physically present at the CSE meeting and because the parent member did not have the results of the student’s evaluations in front of her when she participated by telephone in the CSE meeting. The record indicates that the parent member did not have a copy of the evaluations (Transcript p. 14). However, she reportedly discussed those evaluations with other members of the CSE on the telephone before the CSE meeting began (Transcript p. 22). Respondent asserts that the results of the evaluations were also discussed during the meeting, and that the parent member had an opportunity to ask questions and raise issues during the meeting. It contends that the CSE’s parent member was an equal participant in the meeting, and it urges me to reject petitioner’s claim that the CSE’s recommendations were procedurally defective.

        Petitioner’s objection to the parent member’s participation via teleconferencing is a novel question for the State Review Officer. While the Commissioner of Education and the State Review Officer have consistently held that an IEP which was prepared by a CSE which lacked the required parent member was invalid (Application of a Child with a Disability, Appeal No. 99-2; Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1; Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 222 [1988]; Matter of a Handicapped Child, 24 Ed Dept Rep 185 [1984]; Matter of a Handicapped Child, 19 Ed Dept Rep 460 [1980]), the question of parent members participating via telephone has not been addressed.

        I note that petitioner relies on a memo to the field by former Assistant Commissioner Thomas B. Neveldine entitled The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), dated June 1992 (Exhibit A to petition). The memo provides, in pertinent part, that:

1. Telephone conferencing is an interactive process that allows participants to engage in discussions regarding a child’s education during the scheduled Committee meeting. A telephone discussion that occurs prior to or after the meeting does not meet the regulatory intent of participation at committee meetings.

2. Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting. During the meeting, all participants, including the child’s teacher and the parents, must hear all information provided by Committee members and other participants and must be able to discuss all issues with the CSE/CPSE members.

3. Individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The child’s teacher, for example, must be provided with copies of evaluative reports and other written material to be discussed by the Committee during the meeting. Similarly, the Committee should be provided with all relevant teacher and related service provider reports. The confidentiality of this information must be assured according to the provision of subdivision 200.5(f) of the Regulations of the Commissioner of Education.

4. Participation in Committee meetings through teleconferencing is a permissible alternative to having all members convene in a face-to-face meeting unless the parent objects. Where teleconferencing is offered as an alternative to a face-to-face CSE meeting, parents must be informed through prior notice that they have the right to participate in a face-to-face meeting of the committee with the child’s teacher in attendance.

        The record indicates that the June 7, 1999 CSE meeting included all of the required members under N.Y. Educ. Law § 4402[1][b][1]. The student’s teacher at Gaynor and the parent member participated by telephone. The impartial hearing officer in this matter concluded that the parent member had "access to the same materials available to all others involved in this process" and found that the requirements had been satisfied for the parent member’s participation pursuant to the guidelines set forth in the June 1992 field memo. She did not address the issue regarding the parent’s right to request a face-to-face meeting of all the members of the CSE in her decision.

        I will first address petitioner’s contention that the she was not informed that she had a right to a face-to-face meeting of the CSE. Testimony elicited at the impartial hearing indicates that petitioner was aware that the parent member of the CSE would participate in the meeting by telephone (Transcript p. 125). There is no evidence that petitioner objected to the fact that the parent member would participate by telephone. However, there is also no evidence that petitioner was informed of her right to a face-to-face meeting with all of the members of the CSE. Therefore, I must find that respondent has failed to establish that it complied with the terms of the Education Department’s guidelines.

        I now turn to the issue of the parent member’s access to the same information about the student as the rest of the CSE. As noted above the parent member did not have the reports of the student’s evaluations with her at the time of the meeting, and she had apparently never read the reports. Instead, the other CSE members had discussed the reports with the parent member both before and during the CSE meeting. While the hearing officer concluded that the parent member met the other criteria set forth for teleconferencing guidelines and therefore meaningfully participated in the CSE review, I disagree with that conclusion. A summary or briefing of the materials is not equivalent to the materials themselves. I find that respondent has also failed to establish that it has complied with the guidelines requirement that individuals who participate through teleconferencing have access to the same material available to all others.

        I must note that the field memo guidelines upon which petitioner relies do not have the force and effect of a regulation. Nevertheless, I find that they are consistent with the policies underlying the Individuals with Disabilities Education Act (20 U.S.C. §§ 1400 et seq.) and its state counterpart, Article 89 of the Education Law. The preparation of a student’s IEP by an informed multidisciplinary team is at the heart of both statutes. While the federal statute does not require a parent member, the New York statute does. There is no hierarchy among members of the CSE. Each member is expected to be aware of the student’s educational needs, and to participate fully in the development of an educational program which will adequately address those needs. That was not the case in this instance. Therefore, I am constrained to find that the CSE was not properly constituted, and that the IEP developed at such meeting is invalid (Application of a Child with a Disability, Appeal No. 93-17; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-31).

        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 have found that respondent has failed to meet its burden of proof with respect to the appropriateness of the educational program recommended by its CSE.

        The student's parent bears the burden of proof with regard to the appropriateness of the services provided by Gaynor during the 1999-2000 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, she must show that the private school offered an educational program which met her child’s special education needs (Burlington, 471 U.S. at 370 [1985]; 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).

        I find that Gaynor was an appropriate placement for petitioner’s daughter. There is no dispute about the nature of the student’s learning disability, which is manifested by difficulty in reading and writing. She also has difficulty with auditory processing and retrieving words. At the hearing, respondent’s witnesses acknowledged that the student required a full-time special education placement (Transcript pp. 13, 28, and 41). Gaynor’s program met those needs and provided the student with a small classroom setting and provided a curriculum applying various methodologies to assist the student with her decoding, writing and comprehension skills. Upon reviewing the testimony by the student’s teacher at Gaynor, I find that her description of the classroom activities and the student’s progress in reading and language arts indicates that the private school addressed the student’s academic needs. I find that the parent has sustained her burden of proving the appropriateness of the program at Gaynor.

        The third criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. There is no indication in the record that petitioner failed to cooperate with the CSE. Accordingly, I find that equitable considerations support the parent's claim for tuition reimbursement. Having found that petitioner has prevailed on all three criteria for an award of tuition reimbursement, I must sustain petitioner’s appeal.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and,

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her tuition expenses at the Stephen Gaynor School during the 1999-2000 school year, upon petitioner’s presentation to respondent of proof of those expenditures.