00-057

      Petitioner appeals from the decision of an impartial hearing officer classifying her daughter as learning disabled, but denying her request for reimbursement for the cost of her daughter’s tuition at the West End Day School (West End) for the 1999-2000 school year. Although agreeing with petitioner that respondent’s Committee on Special Education (CSE) had erred in recommending a classification of emotionally disturbed for the child, and in recommending a Specialized Instructional Environment VII-A (SIE VII-A) placement for her, the hearing officer found that petitioner had not met her burden of proving that the services provided by West End were appropriate under the Individuals with Disabilities Education Act (IDEA). The appeal must be sustained.

        At the time of the hearing, petitioner’s daughter was seven years old and in the second grade at West End. The child had been identified as a preschool child with a disability by respondent’s Committee on Preschool Special Education (CPSE) and had attended a center-based program prior to being referred to the CSE in December 1996 for a placement during the next school year. It was reported that despite her placement in the center-based program, the child continued to be easily distracted and had demonstrated limited improvement in her speech, language, motor, social and emotional development.

        In May 1997, the CSE recommended that the child be placed in respondent’s Modified Instructional Services IV (MIS-IV) program for kindergarten at P.S. 225 during the 1997-98 school year. It also recommended that she receive speech/language therapy and occupational therapy. The child continued in the MIS-IV program in a different school, P.S. 52, for the first grade during the 1998-99 school year. However, she had difficulties in that placement. On November 4, 1998, her teacher, who believed that the child could not be contained in a regular MIS-IV classroom, made a "Type 3" referral for re-evaluation and a change of program.

        An educational evaluator who tested the child on November 30, 1998 reported that the child displayed extremely impulsive and oppositional behavior and, at times, was almost untestable. Her gross motor skills were age appropriate, but her fine motor skills could not be assessed. The child achieved age equivalent scores of 4.2 on a vocabulary subtest and 3.0 in the area of numbers, letters and words. Her articulation of single words was rated as "poor" (Exhibit 12).

        A school psychologist reported that he was unable to administer a complete IQ test to the child because of her impulsivity and distractibility. He opined that she appeared to be of average intellectual potential, but was hampered by significant developmental delays, impulsivity, and distractibility. He reported that she harbored feelings of frustration, sadness and anger, and that her emotional difficulties and developmental delays inhibited her social skills and produced inappropriate behavior. The school psychologist opined that the child required a highly structured and individualized program that was therapeutically oriented (Exhibit 13).

        When observed and evaluated by a school psychiatrist in December 1998, the child demonstrated poor eye contact and significant delays in comprehension, pragmatic use of language, reading, and conversational skills. She also had very poor peer relationships. The psychiatrist diagnosed the child as having a Pervasive Developmental Disorder (PDD) and an Attention Deficit Hyperactivity Disorder (ADHD). He recommended that she be placed in a "specialized highly structured environment" with a "very high staff to student ratio," that would enable the constant directing, modifying and rewarding of appropriate behaviors, including impulse control, appropriate social interaction and adequate functioning (Exhibit 11).

        On December 21, 1998, the CSE recommended that the child be classified as emotionally disturbed and placed in respondent’s SIE-VII program, with the related services of group counseling and speech/language therapy. Petitioner was offered a placement for her daughter in P.S. 231 at P.S. 215 on December 28, 1998 (Exhibit 18). The SIE-VII program is a small, therapeutic classroom setting with a maximum of six students supervised by one teacher and one paraprofessional (Transcript p. 67). It is designed for children with severe emotional disturbance, and the children who enter the program have a medical diagnosis of PDD (Transcript p. 85, Exhibit 17).

        Petitioner’s daughter began attending the SIE-VII program at P.S. 215 in January 1999. She was in the program for only four weeks when an incident occurred which gave the school and her parents sufficient cause to fear for the child’s safety. On February 12, 1999, despite the fact that an adult was supposed to have been supervising the child’s bathroom visits, the child reportedly entered the bathroom unaccompanied and was found attempting to exit the bathroom window in search of her mother. Reportedly feeling upset while waiting on line for the school bus on March 1, 1999, the child broke loose from the hold of the school aide and ran into the street (Exhibit 7). As a result, petitioner requested an occupational therapy evaluation and the assignment of a 1:1 crisis management paraprofessional for her daughter.

        On March 3, 1999, the CSE convened to discuss petitioner’s requests. Several reports and new occupational therapy evaluations were submitted for its consideration. A psychologist at the New York University Child Study Center who had privately evaluated the child on February 23, 1999 rejected the prior diagnosis of PDD. She asserted that the child did not lack the social interest or reciprocity characteristic of children with PDD. She opined that the child had ADHD, which caused her inattentiveness, impulsivity, and difficulty following directions and staying on task. The psychologist also attributed the child’s difficulties to an expressive and receptive language disorder, which had been manifested in her behavior and functioning since early childhood. She asserted that the child’s inability to adequately express herself and understand others made it difficult for her to interact socially with others. In a letter dated March 1, 1999 and in a related report, the psychologist opined that those two conditions interacted in such a way as to cause the child particular difficulty in the classroom. The psychologist recommended that the child be evaluated by a psychiatrist for a prescription of stimulant medication to treat her ADHD symptoms, and that she be placed in a small, self-contained classroom for children with speech and language difficulties. She opined that a program primarily for children with behavior problems, such as the SIE-VII program, would not address the child’s needs (Exhibits B, D). I note that at the hearing the child’s treating psychiatrist testified that the child had responded positively to the stimulant medication she had prescribed for her (Transcript p. 181).

        A counseling report, dated March 3, 1999, indicated that the child had demonstrated a very poor ability to tolerate the normal frustrations of an SIE-VII class. When required to do something she did not want to do, she impulsively threw tantrums, cried, threw herself on the floor, attempted to run away, and acted aggressively towards adults who tried to direct and contain her. At times, the tantrums exhibited a manipulative quality and, at other times, they demonstrated that the child was out of control. The child frequently cried for her parents and appeared to have great difficulty with separation and transitions. Left without 1:1 supervision, she reportedly slipped into a fantasy world (Exhibit 7). Her SIE-VII teacher reported that the child’s strengths were maximized in situations where she was constantly supported by 1:1 engagement with an adult she appeared to trust (Exhibit 8).

        The CSE recommended that the child remain in the SIE-VII program. However, it modified the child’s individualized education plan (IEP) to provide that she receive three 30-minute periods of individual occupational therapy per week, 30 minutes of individual counseling per week, two 30-minute periods of group speech/language therapy per week, and 30 minutes of 1:1 speech and language therapy per week. In addition, the CSE recommended that a full time individual crisis management paraprofessional be assigned to the child to provide her with supervision and focusing (Exhibits 1, 3). The IEP also specified certain annual goals and objectives which the child should attain during the school year. In mathematics, she was expected to match objects and numbers with 1:1 correspondence and identify and form shapes. In language arts, she was expected to repeat and follow simple oral directions and recognize and distinguish letters of the alphabet. In expressive language, she would improve her grammar and syntax and demonstrate improved control of speech articulations. In all other areas, she was expected to improve classroom performance with the assistance of a crisis paraprofessional, improve her ability to relate to her peers and cope with frustration, and improve her concentration and attention skills.

        Petitioner’s daughter continued in the SIE-VII program until July 1999. During that period, her performance was graded three times: in January, March and June 1999. Of a total of 21 graded categories of performance, the child showed no improvement in all except three categories. She had demonstrated a lack of improvement in such categories as "I write and play well with others;" "I obey rules;" "I listen when others speak;" "I follow directions;" "I take care of property" and "I participate in musical activities" (Transcript pp. 78-81, Exhibit A). One of respondent’s unit coordinators testified at the hearing in this matter that petitioner’s daughter made "very limited" progress in the SIE-VII program and that she had "great behavioral difficulties." She added that it was difficult to assess the child’s progress "because the most consistent thing about [her] was her inconsistency" (Transcript p. 76).

        On January 25, 1999, petitioner signed a Board of Education document consenting to her daughter’s participation in the SIE-VII’s summer program, which would commence in July 1999. However, she chose instead to send her child to a summer program at West End. The parent also unilaterally enrolled her daughter in West End for the 1999-2000 school year.

        On September 3, 1999, petitioner requested an impartial hearing seeking tuition reimbursement for her daughter’s attendance at West End during the 1999-2000 school year, including the summer program. The hearing began on September 24, 1999 and concluded on April 18, 2000, after several adjournments. The hearing officer rendered his decision on June 29, 2000. He rejected the CSE’s classification of the child as emotionally disturbed, and concluded that petitioner’s daughter should be classified as learning disabled. In doing so, he found that she had a significant expressive and receptive language disorder, as well as perceptual difficulties, ADHD, and processing deficits that affected her ability to listen, think, speak, read and write, and resulted in academic and cognitive performance consistently below her grade and age expectancy levels. The hearing officer acknowledged that there was a significant emotional component to the child’s learning problems, but found that she was primarily learning disabled. He also found that the CSE had failed to obtain a medical evaluation before attempting to change the child’s classification to emotionally disturbed.

        Having found that the child had been inappropriately classified as emotionally disturbed, the hearing officer further found that the recommended SIE-VII placement was also inappropriate. However, he denied petitioner’s request for tuition reimbursement on the ground that petitioner had not met her burden of showing that the West End educational program was appropriate to meet her daughter’s special education needs under the IDEA. The hearing officer noted that while the private school provided the child with the individual attention and re-focusing she required, it was not clear that it had addressed the child’s significant language impairment in all areas, or provided the behavior modification program that the evaluations submitted by petitioner had emphasized.

        Petitioner challenges the hearing officer’s determination regarding the appropriateness of the services provided to her daughter by West End, and contends that she is entitled to an award of tuition reimbursement for the 1999-2000 school year. A board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board 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 Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the 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 District Four, et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        Respondent did not cross-appeal from the hearing officer’s decision rejecting the CSE’s recommendations for classification and placement, as it could have done pursuant to 8 NYCRR 279.4(b). Nevertheless, in its answer to the petition, respondent challenges the hearing officer’s decision and specifically requests that I reverse the decision "with respect to the finding that the CSE improperly classified [and inappropriately placed] the child." I must deny its request. Pursuant to Federal and State regulations, an impartial hearing officer’s decision is final and binding upon the parties unless appealed to the State Review Officer (34 CFR 300.509; 8 NYCRR 200.5[c][11]). Having failed to appeal from the hearing officer’s decision, respondent is bound by that decision (Application of the Board of Education of the Arlington Central School District, Appeal No. 98-7). Accordingly, I find that petitioner has prevailed on the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, the child’s parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at West End during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Educ. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the Act" (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra, 471 U.S. 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).

        At West End, petitioner’s daughter was in a classroom with seven other children who ranged in age from five to six years old. Petitioner’s daughter was the only seven year-old child in that class. Most of the children in the class were learning-disabled and speech-impaired, and had IEP’s. The class, which was divided into two groups -- kindergarten and pre-k, or lower kindergarten -- was supervised by a head teacher, a full-time assistant teacher, and a student teacher who worked three days each week. Petitioner’s daughter was in the pre-k group with two other children. At that level, the children were working on letter recognition. Petitioner’s daughter could recognize the letters L, I and Z and, on occasion, A, B and C as well. The other five children were "on level" in oral expressive and receptive language, as well as in their written skills (Transcript pp. 187-207).

        The head teacher of the class testified that petitioner’s daughter was very easily distracted, usually unfocused, lacking in social skills and had a very hard time learning academically. The teacher opined that the child’s difficulties in the classroom were inextricably linked to her attention and language disabilities. In order to ameliorate these difficulties, the child received a great deal of attention from the teachers, who made efforts to refocus her as needed, assist her with her tasks during "circle time" and model for her in an effort to develop her social skills. The child received 30 minutes of speech/language therapy three times each week, 30 minutes of occupational therapy three times each week, and counseling once each week.

        In reading, the child’s pre-k class used the Reading Readiness program as well as a multi-sensory approach, with a lot of "hands-on" work. At the time of the hearing, petitioner’s daughter was focusing on letter recognition and sequencing, and was learning to recognize and speak the letters of the alphabet. She knew some of her letters, as well as her name, but continued to demonstrate inconsistency in her academics. The teachers addressed the child’s language deficits through repetition and visual cues. They shortened and simplified their sentences, repeated themselves and visually demonstrated what they were trying to convey to her. The teacher was able to engage the child and re-focus her with a greater degree of frequency than when she began the program. The child reportedly was able to express her needs very well.

        In mathematics, the class was working on number recognition. The child recognized colors, shapes, triangles, circles and squares, as well as some of the numbers between 1 and 5. In all other activities, such as social studies, science, art, music and computers, the child was taught in a group of eight. Although she did not voluntarily participate in classroom discussions, she did participate with teacher facilitation, and would share her opinions or ideas whenever she was addressed directly.

        The head teacher testified that petitioner’s daughter had progressed a great deal since the beginning of her fall semester at West End. Initially, it was very difficult to get her to sit still and listen to the other children, but she had become aware of the class routine and rules. She could sit with the rest of the class and listen quietly without speaking over the other children. She was expected to remain focused for twenty minutes during periods of discussion. She was able to follow simple directions, including some simple two-step commands. Petitioner’s daughter acted out only occasionally, when she reportedly whined, but would cease when directed by an adult. The head teacher also testified that the child had progressed in her socialization. At the beginning of the school year, she would usually sit at her desk alone and not talk to, or play with, the other children. The head teacher testified that the child now entered the classroom happy and always asked other children to play with her.

        The child’s progress report for the fall 1999 semester at West End confirms that, in the area of reading, the class worked on letter recognition, learning letter sounds and the sequence of the alphabet. Each week, a new letter was introduced through tactile-kinesthetic activities, while the letter taught the previous week was reviewed through 2-D activities. The class also learned rhyming and story sequencing through storytelling and various "hands-on" activities, worked on literature activities focusing on comprehension skills and sequencing. The child was able to write her first name. When focused, she could write legibly. The child still showed inconsistency in her learning, sometimes identifying many of the letters that were taught and, on other days, demonstrating a lack of ability to do so. The report noted that the school would continue to work on her alphabet, sequencing, listening and rhyming skills. The primary goal of the mathematics class was number recognition and understanding the values of the numbers 1 through 10. The class also worked on shapes and patterning. With teacher assistance, the child was able to count from 1 to 10, but had difficulty doing so on her own. She reportedly had a great deal of difficulty focusing and sequencing the numbers (Exhibit G).

        The West End Day School Speech and Language Progress Report for the fall 1999 semester noted that, although the child continued to experience difficulty in her speech and language abilities, much progress had been observed in those areas. The child continued to display articulation errors and continued to have difficulty producing certain phonemes, but had achieved progress and was now able to articulate the /s/ phoneme. She was also beginning to use self-advocacy strategies such as asking that certain information be repeated. Although the child continued to display great difficulty understanding certain terms, forms and concepts, she understood more nouns, verbs and adjectives, displayed an improved ability to sort items into categories by function as well as an understanding of how certain objects are used, and could identify the "he" and "she" pronouns more consistently (Exhibit H).

        At the request of the hearing officer, a speech and language evaluator for respondent’s CSE observed and evaluated petitioner’s daughter on January 3, 2000, approximately five months after she had commenced the program at West End. The evaluator noted that the child was intermittently non-compliant, manipulative, somewhat oppositional, and became upset during the evaluation. She noted, however, that the child’s frustrations might be attributable to the fact that she was being tested on the last of a four-day period of evaluations and observations during the Christmas holidays, of which the child was aware. The evaluator reported that the child exhibited receptive, expressive and pragmatic language delays. Her intelligibility on single word productions was notably good despite some articulation errors, but she demonstrated most difficulty with repetition of multi-syllabic words with which she was unfamiliar. She greeted appropriately and had some sociably acceptable language but did not maintain topic appropriately. She was able to label several common items but was not able to relate their functions adequately. Nor was she able to complete simple two-step commands, although she could follow simple directions. The evaluator observed that many of the child’s problems were due to her lack of focus and that when she was focused, she was able to answer questions appropriately. The evaluator noted that the service provider reports from West End, which she had reviewed, showed that West End was addressing the child’s difficulties with phonetic awareness, auditory attention and memory, processing, understanding directions, eye contact, and pragmatic skills. She added that the child seemed to have made some progress (Transcript pp. 163-172).

        Based upon the record before me, I find that petitioner has met her burden of proving that West End provided her child with appropriate special education instruction to address her speech/language deficits and behavioral problems. The child’s fall 1999 progress reports from West End (Exhibits H, G) afford me a basis from which to conclude that she was making progress both linguistically and behaviorally in that school -- a clear indicator of the appropriateness of the private school’s services (Application of a Child with a Disability, Appeal No. 99-35; Application of a Child with a Disability, Appeal No. 97-38). Furthermore, respondent’s own witness opined, after reviewing the school’s service provider reports, that it appeared that the school was addressing those special language needs and that the child had progressed in those areas. Therefore, I must annul the hearing officer’s finding with respect to the second of the three criteria for an award of tuition reimbursement.

        Inasmuch as there is no evidence before me that petitioner failed to cooperate with the CSE, I find that petitioner’s claim for an award of tuition reimbursement is supported by equitable considerations, and that she has satisfied all three criteria for an award of tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision denying tuition reimbursement is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her child’s tuition at the West End Day School during the 1999-2000 school year, upon petitioner’s submission to respondent of proof of payment of such tuition.