00-052

        Petitioner, the Board of Education of the Penfield Central School District, appeals from a decision of an impartial hearing officer ordering it to reimburse respondent for the expenses he incurred in unilaterally placing his son in the Cobblestone School for the third, fourth, and fifth grades. The appeal must be sustained.

        Respondent’s son attended petitioner’s Indian Landing Elementary School (ILS) for kindergarten during the 1994-95 school year. In January 1995, respondent complained to the ILS principal about an older child who had allegedly hit his son on the school bus and about the school’s alleged failure to respond to the parent’s attempts to address the situation. The parent later contended that his son had been attacked repeatedly, and that his fear of impending attacks made him unable to concentrate in school (Exhibits P-1, P-2, P-3, D-86).

        The student was in a regular education classroom for first grade at ILS during the 1995-96 school year. While in first grade, he received 30 minutes of individual instruction in reading each day in the reading recovery program. He was reportedly involved in three behavioral incidents (Exhibit P-12; Transcript p. 79). The student was issued two referrals for misbehaving on the playground (Transcript p. 79), and also experienced academic difficulties. On January 23, 1996, his first grade teacher completed a Mental Health Services Referral Form (Exhibit D-4), in which she indicated that the student was having difficulty with language activities and writing, struggled to stay on task and was distracted by and distracting to other students. She questioned whether these difficulties were developmental.

        On January 23, 1996, respondent gave his consent to have the student evaluated by petitioner’s Pupil Services Team (PST). Although PST meetings were scheduled to discuss respondent’s child (Exhibits D-8, 9, 10), the meetings were cancelled when respondent revoked his consent to the evaluation (Exhibit D-11). No formal changes were made in the student’s program, and the child was not referred to petitioner’s Committee on Special Education (CSE) (Transcript pp. 83, 168). The ILS principal testified that under school policy, the PST would review information it had gathered before deciding whether to refer a child to the CSE (Transcript pp. 168-72). However, a parent could directly refer a child to the CSE (Transcript p. 1347).

        Respondent’s son remained in a regular education class at ILS for the second grade during the 1996-97 school year. He received small group remedial reading instruction. His parents arranged to have a psychologist evaluate him for a possible attention deficit disorder (ADD) in October 1996 (Exhibit D-13). The psychologist administered the Woodcock-Johnson Tests of Cognitive Abilities. He concluded that the student was within the low superior intelligence range, but his cognitive abilities were deficient in several areas, particularly processing speed. The psychologist reported that the student’s scores on aptitude subtests indicated that there were no significant learning disabilities. He noted that the student did not cope well with frustration, and became moody, angry and oppositional easily. He determined that the student did not have an attention deficit hyperactivity disorder (ADHD), and opined that the student’s attention difficulties appeared to be the result of affective problems. The psychologist suggested that program modifications, including quiet areas, smaller assignments and extra time to review concepts, might be employed if the student continued to have difficulty in school. He did not recommend referral to the CSE. The ILS principal testified that the psychologist met with ILS staff to discuss the student in January 1997 (Transcript pp. 107-110).

        Frequent correspondence between respondent and school staff indicates that the student continued to have difficulty with school during second grade and was involved in fights during recess (Transcript pp. 93-98; Exhibits D-15, 16, P-17, 18, 26a). In January 1997, the principal of ILS met with respondent and a school counselor to discuss program modifications for the student. They agreed to various modifications, including the addition of a teaching assistant to the student’s classroom, a plan to include the student in weekly counseling sessions, and proposed development of a behavior plan that would provide rewards such as art activities for the student (Exhibit D-18). The parents agreed to seek reading support from an outside program. Respondent did not ask that his son be referred to the CSE at that time. The student’s second grade teacher testified that the child was not referred to the CSE because the private psychologist did not recommend it (Transcript pp. 1190-91). She also testified that, without the psychologist’s report, she would have made a referral to the PST, rather than the CSE (Transcript p. 1191; see also pp. 1273-74).

        On February 25, 1997, the student told his parents that a group of children had attacked him during recess (Exhibit P-26b). He was very disturbed by the incident, and allegedly stated that he never wanted to go back to ILS again. The student’s final report card for second grade indicated that he continued to have difficulty with reading, especially with the phonetic analysis of words. His math skills were reported to be satisfactory. Although his oral and written expression were described as satisfactory, his spelling skills were reported to be below grade level (Exhibit D-12). His second grade teacher testified at the hearing that the child’s behavior had improved by the end of the second grade (Transcript p. 1260).

        Respondent enrolled his son for the 1997-98 school year in the Cobblestone School, a private school that is not approved by the State Education Department to provide special education to students (Exhibits D-22, 23). By letter dated May 20, 1998, respondent asked petitioner to pay for tutoring for his son at Cobblestone for the 1998-99 school year because the boy was still below grade level in reading and writing (Exhibit D-23).

        Respondent referred his son to petitioner’s CSE in the spring of 1998. On May 30, 1998, he consented to having the CSE evaluate his son (Exhibits D-24, 25). By letter dated June 3, 1998, respondent expanded his request for financial assistance to include reimbursement for "past, present and future" tuition at Cobblestone (Exhibit D-25). He asserted that his son had been traumatized by his experiences at ILS, and that his state of mind remained fragile, making any change in schools unacceptable.

        The CSE met on June 30, 1998 to review various evaluation reports and information provided to it by the child’s teacher at Cobblestone. The teacher indicated that the child’s reading and language arts skills were far below grade level, and that instruction had been adapted to accommodate his reading and writing deficits. She indicated that respondent’s son had been placed in a class of 12 students, and on occasion had been included in a consultant special education teacher’s modified instruction groups (Exhibit D-29). The CSE also considered a brief report by the private psychologist who had evaluated the student in 1996 and again in June 1998. He indicated that the student was taking medication to manage his mood and frustration, and was happy about his placement at Cobblestone. However, the psychologist noted that the student had not progressed in his reading skills, and that his writing skills were also poor (Exhibit SD-28). The CSE concluded that a comprehensive psychological evaluation should be performed to identify the processing deficits that interfered with the student’s academics, as well as emotional factors that might be involved (Exhibit SD-39).

        A school psychologist evaluated the student on July 30 and 31, and submitted her evaluation report to the CSE on or about August 5, 1998 (Exhibit SD-40). She reported that respondent’s son had achieved a verbal IQ score of 95, a performance IQ score of 80, and a full scale score of 87. On the Wechsler Individual Achievement Test (WIAT), respondent’s son earned standard scores of 79 for basic reading, 81 for reading comprehension, 97 for numerical operations, 91 for math reasoning, 94 for writing, and 75 for spelling. The school psychologist reported that the student was not motivated throughout the testing, and cautioned that the test results might understate his overall potential. She indicated that he exhibited significant difficulties with visual motor coordination tasks requiring speed and accuracy, and had difficulty with social understanding. The school psychologist described him as an angry, oppositional young man who exhibited an impulsive response style and extremely low frustration tolerance. She opined that he would benefit from individual or small group counseling, and required a structured but supportive environment.

        Cobblestone’s special education coordinator evaluated the student in July 1998. She noted that respondent’s son avoided performing tasks as a coping strategy, but opined that her evaluation presented an accurate estimate of his skills. His reading skills were reported to be two years below grade level. The coordinator indicated that the student’s auditory processing skills were an area of relative strength, while his visual perceptual skills were an area of relative weakness. She opined that the student was at high risk for academic failure due to a combination of processing weaknesses and poor ability to participate in instructional groups (Exhibit D-38).

        The CSE reconvened on August 6, 1998 to review the new reports and to prepare the student’s individualized education program (IEP) for the 1998-99 school year (Exhibit D 41). It recommended that respondent’s son be classified as emotionally disturbed, and that he receive 28 hours of direct and two hours of indirect consultant teacher services per week while in the fourth grade. The IEP identified the service provider as PCSD and Cobblestone, and the notice of recommendation (Exhibit D-42) indicated that the consultant teacher services would be provided at Cobblestone (Exhibit D-42). Although he did not sign a written consent form for the implementation of the proposed IEP, respondent reportedly agreed with the CSE’s recommendation (Exhibit D-44).

        Respondent’s son received the services described in the IEP while attending Cobblestone during the 1998-99 school year. The consultant teacher worked with him and several other students (Exhibit D-86). In October 1998, respondent asked the CSE chairperson whether the school district would pay for the counseling being provided to his son by the private psychologist. The CSE chairperson advised respondent that petitioner would not pay for counseling because it was not on the child’s IEP (Exhibit D-51). In March 1999, respondent informed Cobblestone’s special educator that his son had an uncontrollable tantrum at home because of dissatisfaction with various things, including his Spanish and music classes at Cobblestone. Respondent asked that his son be temporarily excused from Spanish and music classes, and allowed more flexibility on the playground (Exhibit P-66).

        In a report to the CSE dated May 19, 1999, the student’s teacher at Cobblestone reported that the student had begun to read independently, but his reading skills remained below grade level, as did his math skills. She also reported that respondent’s son wrote easily in rough drafts, but had difficulty editing his work and using correct spelling and punctuation. When activities were not to his liking, he was easily distracted. However, the teacher indicated that the student had a very good ability to concentrate (D-55). On the Woodcock Johnson Tests of Achievement in the spring of 1999, the student achieved grade equivalents (and standard scores) of 3.8 (92) for letter-word identification, 3.6 (93) for passage comprehension, 4.0 (88) for calculation, 5.8 (109) for applied problems, 2.3 (80) for dictation, and 3.2 (91) for writing samples (Exhibit D-57).

        By letter dated May 5, 1999, respondent advised petitioner that he would seek reimbursement for his son’s tuition at Cobblestone, and asked that time be made available at the next CSE meeting to discuss the matter (Exhibit D-54). The CSE met on June 4 and 11, 1999 to prepare the student’s IEP for the 1999-2000 school year (Exhibit D-61). No parent member attended either meeting, although one was reportedly available to participate by conference call (Exhibits D-63 and 64). Respondent’s attorney, who attended the first meeting, sent a letter to the CSE chairperson after the first meeting expressing concern that a functional behavioral assessment had not been performed and asking the CSE to consider placing the student at Cobblestone (Exhibit P-49).

        On June 11, 1999, the CSE completed the student’s IEP. It recommended that the student remain classified as emotionally disturbed. The CSE again recommended that he receive 28 hours of direct and two hours of indirect consultant teacher services per week. It noted on the IEP that the student would attend Cobblestone "by parent initiation". The IEP indicated that the student needed some classroom modifications to help him cope with frustration, attention difficulties, and processing delays. Specifically, it indicated that he needed modified assignments, repetition, extended time, pre-teaching, and assistance with organization. Social and emotional goals were included among the annual goals and short-term objectives. Petitioner approved its CSE’s recommendations on September 17, 1999 (Exhibit D-71).

        In his request for an impartial hearing dated October 29, 1999, respondent sought tuition reimbursement for the 1997-98, 1998-99, and 1999-2000 school years. He asserted that his son should have been referred to the CSE while in second grade, but he had relied on school officials, who put him in a position where he could not make a referral. Respondent also asserted that petitioner was responsible for his son’s private school tuition because the CSE had referred to Cobblestone on the student’s 1998-99 and 1999-2000 IEPs.

        On January 27, 2000, the student was re-evaluated by his private psychologist. The psychologist reported that on the Woodcock-Johnson Tests of Cognitive Ability, the student’s performance declined in comprehension-knowledge and processing speed, but improved in visual and auditory processing and short-term and long-term memory, in comparison to his performance on those tests in 1996. On the Woodcock-Johnson Tests of Achievement, respondent’s son achieved grade equivalents (and standard scores) of 2.6 (78) for letter-word identification, 3.0 (85) for passage comprehension, 4.3 (85) for calculation, 7.4 (114) for applied problems, 2.5 (77) for dictation, and 3.6 (91) for writing samples. The psychologist noted that the student was of at least average intelligence, and opined that "he should not be experiencing the academic distress that he is obviously dealing with at school currently." He further opined that the student did not evidence significant ADD, but did display significant weakness in processing speed. He recommended that the student be reclassified as learning disabled in both reading and writing (Exhibit P-82). At the hearing, the psychologist testified that the student may have overcome his ADD as he matured, or the ADD may have been situational (Transcript pp. 1032-33), and that the student probably had mild learning delays (Transcript p. 1116).

        The hearing was conducted on January 10, February 7 and 14, April 3, 5, 24, and 28 and May 1 and 8, 2000. The impartial hearing officer rendered a decision on June 15, 2000. She found that respondent was entitled to reimbursement for the tuition he paid Cobblestone for his son’s education in the 1997-98, 1998-99 and 1999-2000 school years. With respect to the 1997-98 school year, the hearing officer found that petitioner should have referred respondent’s son to the CSE and that it improperly used its PST process to bypass the CSE. Because petitioner failed to prepare an IEP for the student that year, the impartial hearing officer concluded that it could not meet its burden of proving that it offered an appropriate placement for the child. The hearing officer found that the Cobblestone School was an appropriate placement and that, because the parents had not been fully informed of their due process rights, their failure to request reimbursement promptly would not bar an award.

        For the 1998-99 school year, the impartial hearing officer found that the IEP did not actually recommend that the student be placed at ILS and that, in any event, such a placement would have been inappropriate. She concluded that the student needed a structured, supportive environment to receive educational benefits and credited the student’s testimony and that of his psychologist in finding that ILS would not have provided that environment. The impartial hearing officer found that Cobblestone was an appropriate placement because the student benefited from the education he received there; he progressed academically and improved his social problem solving and communication skills. She also found that the Board of Education had failed to advise the parents of their obligation to inform the school district that they were planning to place their child in private school at district expense (see 20 USC § 1412[a][10][iii]). She further found that petitioner had improperly ignored respondent’s June 3, 1998 request for tuition reimbursement for the coming year.

        The impartial hearing officer found that respondent’s son still needed the structured supportive environment of the Cobblestone School during the 1999-2000 school year. She therefore found that placement at ILS would not have been appropriate. She further found that the program at Cobblestone School addressed the student’s special education needs and that, as in prior years, the equities favored awarding the parents tuition reimbursement.

        Petitioner contends that neither the student’s academic performance nor his behavior during first and second grade provided a reason to refer him to the CSE. Petitioner argues that its PST does not "bypass" the CSE, but simply screens children for referral to the CSE. Petitioner further states that because respondent revoked his consent to evaluate the student, its staff was unable to gather information that might have supported a referral. Petitioner contends that the student progressed in all areas while he attended ILS, and that his performance level dropped while he attended Cobblestone. The Board of Education argues that Cobblestone was not an appropriate placement for the student. Finally, petitioner asserts that the equities do not support an award to respondent because respondent did not advise petitioner that he was enrolling his son in the Cobblestone School until after the fact, accepted the IEPs prepared for fourth and fifth grade, and did not make timely requests for impartial hearings for years before fifth grade.

        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]). A parent’s failure to select a private school that has been approved by the state educational agency to instruct children with disabilities does not preclude the parent from obtaining tuition reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). 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]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        I will first consider respondent’s claim for tuition reimbursement for the 1997-98 school year. Tuition reimbursement is a remedy which is available to a child who is eligible for special education under the Individuals with Disabilities Education Act (20 USC § 1400 et seq.) and Article 89 of the New York State Education Law. Respondent’s son was not classified as emotionally disturbed, and hence eligible to receive special education, until August 6, 1998. The hearing officer found that under the child find provisions of the federal statute, petitioner should have referred the child to its CSE while he was in the second grade. She relied in part upon the private psychologist’s report of his October 1996 evaluation (Exhibit D-13). However, I must point out that the private psychologist testified at the hearing that it was not necessarily appropriate to refer the child to the CSE when his report was discussed with school staff in January 1997 (Transcript pp. 1082, 1106, 1159).

        In his report, the psychologist suggested that the student be monitored over the next several months. Petitioner’s staff met with the psychologist in January 1997, and reportedly implemented some of his suggestions (Transcript p. 110). I note that the child’s second grade report card indicates that curriculum modifications were made, such as scripting during writing assignments to reduce his frustration in putting his ideas on paper (Exhibit D-12). His teacher also reported that the student was using strategies he had been taught to assist him in comprehending what he read. Although the student’s reading skills were still below grade level at the end of second grade, he nevertheless had progressed from pre-primer to strong Level 1 by the end of the school year. His math, social studies and science skills were also satisfactory, and his behavior in school had improved, according to his report card. The second grade teacher’s testimony at the hearing was consistent with the report card.

        Under the circumstances, I cannot agree with the hearing officer’s finding that petitioner’s staff should have referred the student to the CSE prior to respondent’s removal of his son from petitioner’s schools after the second grade. The child did not attend petitioner’s schools for third grade, and was not referred to the CSE until late in the 1997-98 school year. Although the CSE classified the child as emotionally disturbed in August 1998, it does not follow that he should have been classified during all of the preceding school year. Therefore, I must annul the hearing officer’s determination that petitioner should be responsible for tuition at Cobblestone during the 1997-98 school year.

        The IEP that the CSE prepared for the student for the 1998-99 school year indicated that he would attend Cobblestone (Exhibits D-41 and 42). It must be noted that a board of education cannot contract with a private school for the education of a child with a disability if that school has not been approved by the State Education Department to provide instruction to children with disabilities (§ 4402[2][b][2] of the Education Law). Although the CSE recommended that the student receive consultant teacher services, it did not recommend a specific placement for him in its schools. I concur with the hearing officer’s determination that petitioner failed to meet its burden of proof with regard to the appropriateness of the service that it had offered to provide during the 1998-99 school year.

        The IEP that the CSE prepared for the 1999-2000 school year indicated that the student was to again receive consultant teacher services, and that he would be enrolled in Cobblestone "by parent initiation" (Exhibit D-64). There is nothing in the record to indicate that the student was offered a specific placement in petitioner’s schools. In addition, the IEP is procedurally flawed because no parent member of the CSE participated in either of the two CSE meetings in June 1999 at which the IEP was prepared. The attendance sheets for those meetings show that the parent member was available by telephone (Exhibits D-63, 64). Petitioner has not established that it advised respondent of his right to request that all members of the CSE meet face-to-face. Therefore, the CSE meetings were not conducted properly and petitioner cannot meet its burden of proving that it offered an appropriate program for the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 00-043).

        The student’s parent bears the burden of proof with regard to the appropriateness of the services selected during the 1998-99 and 1999-2000 school years (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, respondent must show that the private school offered an educational program which met the student’s special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 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).

        At the hearing, the private psychologist testified that he had recommended that respondent’s son attend Cobblestone because it would offer a smaller classroom setting, more independent instruction, more flexible programming, and a fresh start emotionally (Transcript p. 1084). He acknowledged that the school did not have special education teachers, but relied upon consultants to provide services to children with learning problems (Transcript pp. 1150-1151). No one from the school testified at the hearing, and I note that a 52-page written description of Cobblestone in the record does not describe any special education services that it provides (Exhibit P-53).

        During the 1998-99 and 1999-2000 school years, the student received approximately 28 hours of direct and two hours of indirect consultant teacher services each week at petitioner’s expense. The Board of Education was billed in the amount of $23,130 for the consultant teacher’s services during the 1998-99 school year (Exhibit D-83). It is my understanding that petitioner has paid for the consultant teacher’s services in both the 1998-99 and 1999-2000 school years.

        In May 1999, the student’s classroom teacher at Cobblestone reported that she had adjusted the student’s assignments and consulted with the consultant teacher, but did not list any other significant intervention (Exhibit D-55). The consultant teacher’s report at the end of the 1998-99 school year indicated that the student had made some academic gain during that school year (Exhibit D-57). At the hearing, the student’s private psychologist testified that after one and one-half years at Cobblestone, the student’s basic reading and writing skills had not substantially improved (Transcript p. 1118). The student’s January 2000 achievement test results indicated a decrease in his reading skills. Respondent asks that I consider the results of his son’s triennial evaluation that was performed as his son neared the end of sixth grade in May 2001. The May 2001 results indicate that respondent’s son continued to lag behind in his reading decoding and spelling skills. The evaluator noted that the student generally did not capitalize or punctuate his written work.

        Although the private psychologist testified that the student appeared to have grown socially and emotionally at Cobblestone, he did not produce the results of any projective testing. He also testified that the student did not discuss with him any problems "on the social side" (Transcript p. 1142). The psychologist further testified that the student had acknowledged that he had refused to do some work or would fool around in class at Cobblestone, resulting in punishment or restrictions that he would have work through with the consultant teacher. I cannot find that the private school provided any service apart from the consultant teacher for whom the Board of Education has already paid to meet this child’s special education needs during the 1998-99 and 1999-2000 school years. In light of this determination, I need not consider whether the parent’s claim is supported by equitable considerations.

THE APPEAL IS SUSTAINED.

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