00-078

         Petitioners appeal from the decision of an impartial hearing officer that denied their request for an order compelling respondent to reimburse them for the cost of their son’s tuition at the Lowell School for the 2000-01 academic school year. The appeal must be sustained in part.

        There is one preliminary procedural question to be addressed. The Board of Education has not answered the petition. 8 NYCRR 279.3 provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department." A decision of the State Review Officer was recently annulled by the New York State Supreme Court because the decision was based upon an independent review of the record, rather than the allegations in an unanswered petition for review (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc.2d 560 [2000]). The Court’s decision is being appealed, and I must respectfully decline to follow it in this appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.510[b][2][i]), and to make an independent decision (20 USC 1415[g]). The facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioners’ son is 11 years old. He was diagnosed with an attention deficit hyperactivity disorder (ADHD) at the age of four and has been treated with psychotherapy and medication since that time. The student changed schools each year from his final year of preschool through the fourth grade. During the 1999-2000 school year, he was enrolled in the fourth grade at St. Matthew’s Lutheran School. At the suggestion of his teachers and his treating psychiatrist, his mother referred him to respondent’s Committee on Special Education (CSE) in November 1999 (Exhibits C, D).

        A social history was prepared (Exhibit 2). The educational evaluator who evaluated the student in December 1999 reported that his oral language skills were average to slightly above average. His standard scores of 105 for broad reading and 94 for broad math on the Woodcock Johnson Tests of Achievement were at 4.9 and 3.9 grade equivalents, respectively, and were both in the average range. The evaluator noted a weakness in the student’s ability to do math calculations, particularly simple multiplication and division. An informal assessment of the student’s writing fluency showed that he had average skills, although his dictation skills appeared to be an area of weakness (Exhibit 5).

        The student was evaluated by a bilingual psychologist, who noted that he appeared to understand Spanish, but was English proficient. She also noted that the student was not very motivated to participate in structured testing during her first attempt to evaluate him, but he performed satisfactorily during a second day of testing. The student’s verbal reasoning skills were at the upper limit of the high average range, while his composite cognitive skills were in the average range. He was more proficient in math when he could see test items than when the items were given to him orally. He manifested a 2.2-year delay in visual-motor perception. The psychologist indicated that the deficit in that skill could be contributing to the student’s academic difficulties. Projective testing revealed some tendency toward emotional flight (Exhibit 8).

        The student’s fourth grade teacher at St. Matthew’s prepared a teacher report dated December 1, 1999. She indicated that he was reading at grade level, that his math skills were below grade level, that he was unable to spell or sound out words, and that his handwriting needed work. The teacher also reported that the student’s inability to focus made it difficult for him to follow directions in a large group. She acknowledged that a recent change in medication had improved the student’s ability to interact with others without conflict. Nevertheless, she opined that the student needed a smaller class and that his present program was not meeting his needs. The teacher stated that the student’s "inability to focus, his poor basic skills and his need for more individualized attention" made it difficult for him to succeed in a class with 26 students and one teacher (Exhibit 7).

        On December 9, 1999, the student’s treating psychiatrist reported that she had treated the student since February 11, 1999. The psychiatrist indicated that the student had been diagnosed with ADHD at age four and that he initially responded well to medication, but had experienced residual symptoms since the third grade in spite of efforts to adjust dosage or switch medications. She also stated that:

He has been noted to have a poor attention span and to have great difficulty completing tasks even with 1:1 attention. He has organizational difficulties. Although he is not a particularly aggressive child, he often perceives peers as not liking him or wanting to bother him. His view of himself is at times negative. Although testing done in preschool indicated a high above average IQ, he has difficulty passing classes and was only given a conditional pass into the Fifth grade. His teacher feels his fund of knowledge is now below grade level.

        The psychiatrist concluded that the student was learning significantly below his potential, needed a class with no more than 10-15 students per teacher, and would benefit from an interactive teaching approach (Exhibit 9).

        One of respondent’s educational evaluators observed the student in his class on January 20, 2000. The student was able to copy information from the chalkboard regarding assignments and a testing schedule as his teacher instructed. When the teacher instructed the group to fill in information on their calendars, petitioners’ son was the only one who did not have the calendar ready. However, he complied when the teacher instructed him to fill in the proper information (Exhibit 6).

        The CSE convened on March 6, 2000 (Exhibit 1). The student’s parents, their educational consultant, a teacher, social worker, psychologist and educational evaluator attended. No parent member of the CSE was present. The CSE developed an individualized education program (IEP) for the student for the 2000-01 school year (Exhibit 3). It classified the student as learning disabled. The CSE recommended that he receive general education with supplemental instruction service (resource room) with an eight to one student-teacher ratio. A final notice of the CSE’s recommendation was sent to petitioners on March 7, 2000, in which the boy’s parents were offered a specific placement at PS 176 (Exhibit 4).

        Petitioners disagreed with the recommended placement and arranged for their son to attend the Lowell School, which has been approved by the New York State Education Department to provide special education to children with disabilities. Petitioners requested an impartial hearing seeking prospective reimbursement for the Lowell School tuition during the 2000-01 school year (Exhibits I, K). The hearing was conducted on August 11, 2000. The hearing officer issued her decision on September 20, 2000 and corrected it on September 29, 2000 and January 11, 2001. She determined that the parents were not entitled to tuition reimbursement because the actions of the CSE were appropriate and the program recommended by the CSE was reasonably calculated to meet the student’s needs. She determined that he could receive educational benefits in a general education setting with resource room support. She dismissed petitioners’ claim of alleged defects in the IEP.

        Petitioners appeal from the hearing officer’s decision. They raise several challenges to their son’s proposed IEP, including their claim that the recommended program was inadequate and could not be carried out in any event. 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 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]).

        An appropriate program begins with an IEP that accurately reflects the results of a child’s evaluations to identify his or her needs, provides for the use of appropriate special education services to address the child’s special education needs, and establishes annual goals and short-term instructional objectives that are related to the child’s educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of the Board of Education of the Taconic Hills Central School District, Appeal No. 99-12). Before a CSE can prepare an appropriate IEP, it must evaluate a child in accordance with the Regulations of the Commissioner of Education. Section 200.4(b) of those regulations provides that an initial evaluation of a child suspected of having a disability must include a physical examination. The record does not establish that a physical examination was conducted in this case or that the results of an exam were considered by the CSE. When asked whether the CSE reviewed a medical report, the psychologist member of the CSE testified that the CSE reviewed a report by the student’s psychiatrist (Transcript p. 79). However, the psychiatrist’s report (Exhibit 9) does not reflect the results of a physical examination, and I find that it does not meet the regulatory requirement for a physical examination as part of an initial evaluation.

        Moreover, the record reveals that the parent member of the CSE did not attend the CSE meeting (Exhibit 3, Transcript p. 78). It is well settled that neither the Education Law nor the Regulations of the Commissioner of Education authorize a CSE to prepare a child’s IEP in the absence of a parent member of the CSE (Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Disability, Appeal No. 95-27). Because the CSE was not properly composed and did not have all the required information available, I need not address the specific program it recommended. I find that respondent failed to meet its burden of proving that it had offered to provide a free appropriate public education (FAPE) for the 2000-01 school year.

        The student's parents bear the burden of proof with regard to the appropriateness of the services to be provided by the Lowell School during the 2000-01 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents 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).

        I note that the student’s classification as learning disabled is not in dispute. Nevertheless, I have examined the record to ascertain the nature and extent of his disability so that I may determine his special education needs during the current school year. He is of average intelligence and his academic achievement, as determined by standardized testing, is generally commensurate with his cognitive ability. The student exhibits a relative weakness in doing certain math calculations and reportedly has weak spelling skills, but there is no basis in the record to conclude that he requires primary special education to address those weaknesses. He has a diagnosis of ADHD, but at least some of the manifestations of that condition are controlled by medication. He has had difficulty functioning in large group activities, particularly those having less structure than exists in the classroom, e.g., in the lunchroom or gymnasium (Transcript p. 34). At the hearing, the Principal of St. Matthew’s Lutheran School testified that the student was also disruptive in class because he left his seat and talked in class (Transcript p. 33). Although the student appears to have some management needs, the record does not reveal why he should receive primary instruction in a special education class. If the CSE had proposed such a restrictive placement without demonstrating that it had attempted to address the student’s management needs in a less restrictive manner, its recommendation could not have been upheld. While a parent who unilaterally places his or her child in a private school is not held as strictly as a board of education is to the requirement that a child with a disability be placed in the least restrictive environment, the restrictiveness of a private school placement by the parent may be considered in determining whether the parent is entitled to an award of tuition reimbursement (M.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir., 2000]; Application of a Child with a Disability, Appeal No. 99-85).

        The Lowell School serves children who are learning disabled or emotionally disturbed (Transcript p.110). It provides a small structured program in eight classes of 12 students, one teacher and one assistant. The school uses a very structured point system to address six areas of targeted behavior. The school’s coordinator asserted that this provides positive reinforcement, especially to the many students who are diagnosed with an attention deficit disorder. She noted that a multipurpose room with three crisis intervention staff is available, as are quiet areas for time out. A school psychologist and four clinical social workers are available to provide individual and group counseling. Small groups are used to enhance social skills (Transcript pp. 115-17). The coordinator also testified that she did not recall the student’s needs and did not have his records available. She was therefore unable to explain how the program at Lowell would meet the student’s needs, such as his visual-motor deficit and weaknesses in math calculation and handwriting (Transcript p. 115). She did assert that the private school would be an appropriate placement.

        The Principal of St. Matthew’s Lutheran School testified that the student had extensive behavior problems during fourth grade and was sent to her office daily. She stated that he needs to attend a special education school with very small classes (Transcript pp. 30-31). However, she acknowledged that she was unfamiliar with the Lowell School, and could therefore not offer an opinion about it (Transcript p. 35). The student’s psychiatrist testified that the student’s medication reduces his hyperactivity, but he still has difficulty paying attention (Transcript p. 43). She stated that his disruptive behavior in school is not mere "acting out", but is a symptom of ADHD that he cannot control (Transcript pp. 44-45). She asserted that the student needed a smaller class, individual attention, interactives and approaches that engage him (Transcript pp. 46-47). The psychiatrist also asserted that the student needed teachers and staff with mental health training (Transcript p. 48). She acknowledged that she had never observed him in a classroom (Transcript p.52). The psychiatrist concluded that the Lowell School would be an appropriate placement for the student, but did not reveal the extent of her knowledge about the school or its educational program.

        Based upon the information before me, I am unable to find that petitioners have met their burden of proof with respect to the appropriateness of the educational services provided by the Lowell School for their son. By seeking a hearing before the start of school in September, petitioners were unable to present evidence to show that their son had made satisfactory progress while attending the private school. It was critical therefore for them to present evidence about the school’s program which was directly relevant to meeting his identified special education needs. I find that they did not do so. Instead their evidence was focused upon how he would benefit from smaller classes.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that it found that respondent demonstrated the appropriateness of its recommended program.