00-044

       Petitioner appeals from an impartial hearing officer's decision which denied her request for tuition reimbursement for the cost of her son's tuition at the Parents for Torah for All Children (P'TACH) program for the 1999-2000 school year. The hearing officer found that respondent had offered an appropriate placement to the student in its Modified Instructional Services-I (MIS-I) program as recommended by its Committee on Special Education (CSE). The appeal must be dismissed.

        Petitioner's son was a 13 year old student at the P'TACH school at the time of the hearing in March 2000. 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 a learning disability and needing counseling and speech/language therapy. His classification as learning disabled is not in dispute.

        While in first grade at the Yeshiva King's Bay School, petitioner’s son was referred by the school’s assistant principal to the CSE for evaluation because of discrepancies in his academic performance (Transcript p. 10). His parents reportedly did not appear for scheduled appointments with the CSE, which closed the case (Transcript p.10). He was again referred to the CSE in April 1994 while in the second grade at Shaare Torah, by the principal of that school. In June 1994, the CSE classified the student as learning disabled and recommended that he receive resource room services during the 1994-95 school year. The Board of Education offered a placement, which was not accepted by the parents. In October 1994, petitioner reportedly requested that her son’s case be closed because the student was receiving help in school and was being privately tutored (Transcript p. 10).

            The student was privately evaluated in March 1998, when he was in the sixth grade at Shaare Torah. He achieved a verbal IQ score of 84, a performance IQ score of 104, and a full-scale IQ score of 93 on the WISC-III, placing him in the average/ low average range of intellectual functioning. His scores on the Wechsler Individual Achievement Test indicated that his basic reading, spelling, reading comprehension and listening comprehension were at the third grade level; his mathematics reasoning, numerical operations and his written expression were at the second grade level, and his oral expression was at the sixth grade level. His visual motor integration skills were reported to be strong. The psychologist who assessed the student recommended placement in a small, language-based, self-contained program with experienced special education teachers. He also recommended language therapy, and parent counseling to support the parents' efforts to help their son overcome his negativism, dependence and anger. (Exhibit 6).

        In August 1998, petitioner requested special education services for her son. Petitioner placed her son in the sixth grade at P'TACH in September 1998. In addition to the private psychological evaluation, the CSE considered its own psychological evaluation, as well as a speech/language evaluation and a social history. The CSE’s psychologist did not duplicate the private evaluation testing, but administered projective testing. He reported that the student was unhappy and somewhat angry, and did not find school to be an enjoyable experience. He further reported that the student felt stigmatized and was experiencing feelings of hopelessness (Exhibit 5).

        The CSE’s speech/language pathologist reported that the student’s speech intelligibility and fluency were satisfactory. On the Clinical Evaluation of Language Fundamentals, the student achieved standard scores of 75 for receptive language and 50 for expressive language. However, the evaluator cautioned against accepting the results at face value because the student was not a willing participant in the testing. She noted that he was sullen and did not maintain eye contact during both testing sessions. The evaluator concluded that the student needed to develop vocabulary, comprehension of concepts and directions, and sentence assembly skills, and to improve his speech pragmatics (Exhibit 7).

        A social history was obtained from the student's father in September 1998. The father advised the district's social worker that he and his son's mother had initiated the referral to the CSE because their son was having difficulty keeping up with his classmates, and was nervous and frustrated. The father indicated that his son acted out by talking and disturbing his classmates when he was frustrated (Exhibit 4). A school psychologist who observed the student in his science class at P’TACH on September 28, 1998 reported that the boy had to be told repeatedly to stop talking to his peers. He also shouted out and failed to follow instructions given to the class or to him (Exhibit 8).

        In October 1998, the CSE recommended that petitioner's son be classified as learning disabled, and that he be placed in an MIS-I class and receive counseling and speech/language therapy (Transcript p. 11). Respondent offered a placement at I.S. 78 in October 1998 and again in November 1998. Petitioner did not respond to either offer, and instead requested an impartial hearing. The hearing was terminated on August 2, 1999 with a hearing officer’s decision which reportedly incorporated a settlement agreement, in which respondent agreed to pay for the student’s tuition at P’TACH during the 1998-99 school year (Transcript p. 11).

        A report from P'TACH to the CSE, dated March 19, 1999, indicated that the boy's math and reading skills were at the third grade level, and that he did not use phonetic analysis to decode unfamiliar words. The private school also indicated that the student could combine sentences to write a one-to-three paragraph short story. Although the student was described as an active participant in class discussions who got along well with peers, he was also described as being very defiant, with low self-esteem and very poor frustration tolerance. He was also described as being in need of special education and counseling (Exhibit 9). On July 16, 1999 respondent received the end of year report from P'TACH. The report indicated that petitioner's son successfully completed some third grade vocabulary work, but that he had not met his spelling or writing goals due to insufficient time. The report also indicated that the student did accomplish some of his goals for math, social studies and science, but had a hard time following rules. It also indicated that his thinking and listening skills were poor and that he was very easily frustrated (Exhibit E-1).

        On August 2, 1999, the CSE developed the student’s individualized education program (IEP) for the 1999-2000 school year, which is the subject of this proceeding. It recommended that the student remain classified as learning disabled, and that he be placed in an MIS-I class with a 15:1 child to adult ratio, on a ten-month basis. The CSE further recommended that the student receive group counseling for 30 minutes per week and group speech/language therapy for 30 minutes twice per week. On the IEP, the CSE indicated that it believed that the student would benefit from small group instruction to address combined cognitive and academic skill needs. It further indicated that the student's frustration with school and his behavior did not seriously interfere with instruction, and that his behavior could be addressed by the special education classroom teacher with a combination of positive and negative reinforcement along with counseling (Exhibit 3). On August 11, 1999, petitioner’s son was offered a placement in an MIS-I class at I.S. 78.

        Petitioner did not accept the CSE’s recommendation. On or about September 28, 1999, she requested an impartial hearing. After mutually agreed upon adjournments, the impartial hearing was held on March 6, 2000. At the hearing, respondent introduced a written description of its MIS-I program (Exhibit 11). The MIS-I program is designed for students who are unable to maintain grade level expectancy and have not benefited from other less restrictive special education services. It is intended to provide intensive instruction in learning skills and strategies to enable students to acquire and maintain the objectives and skills specified on their IEP's. A special education site supervisor from I.S. 78 testified that there were 10 or 11 students in the recommended class. I note that a profile of the class indicated there were10 students in the class (Exhibit 12). The students were team taught by two special education teachers, with students moving between the teachers’ respective classrooms. They were mainstreamed for physical education, lunch, and shop. The profile revealed that the students’ reading levels ranged from 1.6-2.5 to 4.6-5.5, with most at the 3.6-4.5 level. Their math levels ranged from 2.6-3.5 to 3.6-4.5. They were all of average cognitive ability, and all had below average receptive and expressive oral language skills. Three of the students were receiving speech/language therapy, and eight were receiving counseling. The profile indicated that all of the students had some problems with self-concept, peer relationships, and adult relationships. The site supervisor was questioned at the hearing about the program’s ability to provide intensive behavior modification to petitioner’s son. She testified that the MIS-I teacher could establish a behavior modification program, and that individual crisis aides were used with students who had trouble maintaining themselves in the classroom (Transcript p.29).

        The coordinator of the student’s program at P’TACH testified that petitioner’s son was in a class of eight students, with an aide assisting the teacher. He described the student as being very anxious, and having difficulty transitioning between subjects and meeting his academic responsibilities in a timely fashion (Transcript p. 37). He also testified that the student needed a lot of reassurance and verbalized his need for reassurance when it was not forthcoming. A psychologist working at P’TACH also testified about the student’s anxiety and difficulty making transitions. He opined that the student could not successfully function in a classroom of 10 students and one teacher (Transcript p. 48). A psychologist who was counseling petitioner’s son outside of school testified that the student’s emotional functioning was largely the result of his learning disability. He explained that the student required "a little more attention than an average child" (Transcript p. 52). The psychologist also testified that the student was learning techniques to control his emotional outbursts when he did not receive the attention he sought. When asked whether petitioner’s son could function in a class of 10 students and one adult, the psychologist opined that the student could do so (Transcript p. 52).

        The hearing officer rendered his decision on April 26, 2000. He found that the placement which respondent had offered to petitioner’s son was reasonably calculated to enable him to derive educational benefit, and held that respondent had met its burden of proving that it had offered to provide an appropriate educational program to the student. In reaching that conclusion, he found that the student would have been suitably grouped for instructional purposes in the proposed MIS-I class, and that the class size was small enough to meet his needs. Having found that the recommended public school placement was appropriate, the hearing officer denied the parent’s request for an award of tuition reimbursement.

        Petitioner appeals from the hearing officer's decision on a number of grounds. She contends that the composition of the CSE was defective because it did not include the student’s special education teacher from P’TACH. I must first note that she did not raise this objection at the hearing, which would normally preclude me from considering her objection (Application of a Child with a Disability, Appeal No. 98-14). However, the State Review Officer has on occasion sua sponte determined that a CSE was not properly composed. Therefore, I will consider petitioner’s claim.

        Another State Review Officer recently addressed the same issue in light of the 1997 amendments to the Individuals with Disabilities Education Act (IDEA ’97) and the regulations which were promulgated in May 1999 to implement the IDEA ’97. Previous decisions of the State Review Officer have held that when a student has been unilaterally enrolled by his parents in a private school, a school district could designate an appropriately certified staff member to serve as the required teacher member of the CSE (Application of a Child with a Disability, Appeal No. 96-18).

        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).

        In Application of a Child with a Disability, Appeal No. 00-031, the State Review Officer held that the student’s special education teacher member of a CSE could be the student’s private school teacher, a special education teacher who was likely to implement the student’s IEP, or the student’s related service provider. He noted that it was unreasonable to expect a board of education to designate the special education teacher who would be a student’s teacher before the CSE had met to even determine the student’s needs. However, he went on to point out that it was reasonable to expect that that a board of education would have sufficient information about the student to designate a special education teacher who was not only appropriately certified to teach the student, but was also teaching in one of the programs which might be appropriate for the student. I reach the same conclusion in this appeal. Because the issue was not raised below, the record is very limited. Respondent asserts in its answer that the teacher it designated to serve as the teacher member of the CSE is certified to teach special education. Although I caution respondent to ensure that its designees comply with the standard set forth in Appeal No 00-031, I cannot conclude on this limited record that it has not done so.

        Petitioner also contends that the CSE’s recommendation was deficient because her son was not observed in his current educational setting. At the hearing, the CSE’s representative conceded that the student had not been observed before the recommendation was made in August 1999. However, he pointed out that the student had been observed as part of the evaluation which the CSE performed in the fall of 1998 (Exhibit 8). An initial evaluation must include an observation (8 NYCRR 200.4 [b][1][iv]). Assuming for the sake of argument that the student’s referral to the CSE in August 1988 required the CSE to perform an initial evaluation, the record shows that it did so. There is no requirement that a student be observed annually. Petitioner’s reliance upon 34 CFR 104.35 is misplaced. The CSE did not recommend a change of placement. It recommended an MIS-I placement, as it had previously done.

        Petitioner asserts that the placement offered by respondent was insufficient. She does not specifically challenge her son’s IEP. Her objection to the proposed MIS-I class appears to be based upon her belief that her son has emotional needs which would not have been addressed in a class of 10 students and one teacher, especially since the size of the class could have increased to 15 during the school year. I must note that there is no evidence in the record that the student had been diagnosed as having an emotional disturbance of any kind. His counselor testified that the student’s emotional concerns were largely a function of his learning disability. Therefore, I find that the emphasis should be upon providing specialized instruction to the student to address his specific learning disability. The record shows that the MIS-I program provides that kind of instruction. While the MIS-I class would have been larger than the student’s class at P’TACH, it does not follow that the MIS-I class was inappropriate (see counselor’s testimony at Transcript p. 52).

        The Board of Education was required to show that the student would have been suitably grouped for instructional purposes with students having similar strengths and needs (8 NYCRR 200.6 [g][2]). As noted above, respondent presented evidence about the skills and needs of the students in the MIS-I class. The record reflects that the students in the recommended placement had academic levels similar to petitioner's son. Accordingly, the placement would provide a small, self-contained classroom, with students whose disabilities and skill levels were similar to those of petitioner’s son. I find that the recommended placement was appropriate.

        Having found, as did the hearing officer, that the Board of Education had offered to provide an appropriate educational placement to petitioner’s son for the 1999-2000 school year, it is not necessary for me to consider the appropriateness of the services which were provided by P’TACH during that school year, or the issue of whether petitioner’s claim for tuition reimbursement is supported by equitable considerations.

        I have considered petitioner's other claims, which I find to be without merit.

THE APPEAL IS DISMISSED.