00-080

        Petitioner, the Board of Education of the Bay Shore Union Free School District, appeals from an impartial hearing officer’s decision which ordered it to reimburse respondent for the cost of her daughter’s tuition at the Pioneer School (Pioneer), a private school for students with learning disabilities in Bridgehampton, New York, for the 1999-2000 school year. It also appeals from the hearing officer’s order requiring it to reimburse respondent for the cost of transporting her child to and from Pioneer. The appeal must be dismissed.

        Respondent’s daughter was ten years old and in the fifth grade at Pioneer when the hearing began in September 1999. Pioneer has not been approved by the New York State Education Department to provide education to children with disabilities. The child was first referred to the Committee on Special Education (CSE) in kindergarten, when her mother, an early childhood teacher, noticed that her daughter could not identify letters of the alphabet (Exhibit D-3; Transcript p. 399).

        The school psychologist who evaluated the child for the CSE in June 1995 reported that the child’s cognitive functioning was in the average range, with a verbal IQ score of 98, a performance IQ score of 94, and a full scale IQ score of 95 on the Weschler Intelligence Scale for Children-III (Exhibit D-15). The evaluator identified weaknesses in reading and math, noting specifically that the child’s reading decoding skills tested at the 4 year 9 month level when she was 5 years and 10 months old. She recommended that the child be classified as learning disabled, and that she receive resource room services on a daily basis in the first grade (Exhibit D-15).

        In August 1995, respondent’s CSE recommended that the child be classified as learning disabled. The child has remained classified as learning disabled, and her classification is not in dispute. The child’s individualized education program (IEP) for the 1995-1996 school year provided that she would receive five hours of resource room services per week while in first grade (Exhibit P-23). Her parents accepted the CSE’s recommendations. During the summer of 1995, the child’s kindergarten teacher tutored the child for free twice a week (Transcript p. 403).

        At its annual review of the child’s program in the spring of 1996, the CSE determined that resource room services should be continued during the 1996-97 school year but be reduced from five hours per week to three hours per week (Exhibit D-4). At the hearing in this proceeding, respondent testified that she was not notified of this change at the meeting, but learned of it when she received a written copy of the IEP at a later date (Transcript p. 406). The child’s IEP also provided that she would share the services of a classroom aide for three hours per day while in the second grade.

        In September 1996, the CSE referred the child for an occupational therapy (O/T) evaluation and keyboarding assessment. The evaluator found that the child’s greatest difficulty was letter and number reversal. She recommended that the child receive professional services to instruct her in keyboarding in order to provide an alternative means of writing and to assist her in completing her work in a timely manner. The evaluator also recommended that an occupational therapist consult with the child’s resource teacher every other week to help address the child’s dyslexia (Exhibit D-14). The evaluator’s recommendations were not implemented by the school district (Transcript pp. 43; 115-117; 136).

        At its annual review in June 1997, the CSE recommended that the child participate in a 12:1+1 inclusion class, known as a "class within a class" (CWC), for the third grade during the 1997-98 school year (Exhibit D-5). In petitioner’s CWC program, a special education teacher performs "push in" special education services while the student is taught in a mainstream classroom with non-disabled peers by a regular classroom teacher (Transcript p. 61). In addition, the child is pulled out for small group instruction in reading and mathematics by the special education teacher. For the academic subjects, there were 12 students with IEPs and 12 without, who were taught by one or two teachers and an aide (Transcript pp. 125-130). On her IEP, the CSE noted that the child was on grade level in reading and math, but she required adult assistance to complete assignments. The IEP also provided that she was to have access to a word processor, and afforded her the benefit of various testing modifications.

        Respondent testified that she accepted the CSE’s recommendation because she believed that resource room services the child received in first and second grade had not helped with her dyslexia. Respondent paid for private tutoring in reading for the child during the summer of 1997, but felt that her daughter made little progress.

        I note that the child received satisfactory grades for reading and other subjects on her third grade report card (Exhibit D-19). Respondent testified, however, that her daughter still could not read at the end of third grade, and that the child was upset about it (Transcript pp. 418-419; 420-421). The child’s deficits were documented in the school psychologist’s evaluation for the triennial review in June 1998.

        Despite the child’s average verbal IQ score of 98, her fund of general information and long-term memory were reported to be below average, as was her ability to perform tasks requiring attention to visual detail and visual sequencing. On the Woodcock-Johnson Tests of Achievement-Revised (WJ-R), the child achieved standard (and percentile) scores of 97 (42nd) for passage comprehension, 76 (5th) for dictation, and 80 (9th) for writing samples. The school psychologist reported that the child had a poor knowledge of phonics, and that her writing ability was significantly impaired by difficulty spelling basic words, as a result of phonetic deficits and poor visual memory. She recommended that the child continue in the CWC program, with an emphasis on improving her phonetic knowledge, spelling, and visual memory, during the 1998-99 school year (Exhibit D-16).

        A subcommittee of the CSE recommended in June 1998 that the child remain in the CWC program for the fourth grade during the 1998-99 school year. The IEP for that school year made no provision for the child’s access to a word processor to assist her in writing, but it did provide for the use of a separate set of textbooks at home (Exhibit D-6). Although the IEP indicated that she was to receive a ten-month program, it also indicated that she was to attend a 6:1+1 class during the summer. At the hearing, respondent’s acting director of special education described the summer program as tutoring (Transcript p. 136). In any event, the child attended the summer program. Respondent testified that she consented to the educational program recommended by the subcommittee, because she knew of no other options. (Transcript p. 422).

        In fourth grade, a special education teacher and two paraprofessionals taught reading to the child and nine other students for an hour and a half a day. Spelling was taught in two 30-minute sessions for another two and a half hours a week (Transcript p. 243). In addition to the services set forth in the IEP, the child was tutored twice a week for an hour by a substitute teacher (Transcript pp. 298; 322). While she did not receive the special instruction in keyboarding recommended in 1996, her special education teacher testified that the child attended a computer class one day a week for half a year, with all of the other fourth graders. In the special education classroom, one computer was shared by 11 students (Transcript pp. 272-74). The child was described by her fourth grade teacher as an "eager learner" who was always well-behaved (Exhibit D-21).

        In December 1998, the CSE amended the testing modifications on the child’s IEP to extend time limits to triple time, provide for the use of aids to interpret tests, and deleted the spelling requirement (Exhibit D-6). The next month, January 1999, the child participated in the New York State Testing Program (NYSTP) for fourth graders, after attending school over Christmas vacation in order to prepare for the tests (Transcript p. 425). The child scored a Level 1 in reading (Exhibit 26-R). Her fourth grade special education teacher testified that Level 1 indicates the child showed only minimal understanding of written and oral text, with errors in spelling, grammar and punctuation (Transcript pp. 260-61).

        On March 23, 1999, a subcommittee of the CSE met to discuss the child’s 1999-2000 educational program (Transcript p.290). Respondent had been invited to attend, but did not do so. The subcommittee recommended that the child remain in the CWC program for the fifth grade (Transcript p. 155). In the meantime, however, respondent had become concerned about her daughter’s lack of progress in reading (Transcript p. 430). She and her husband visited Pioneer, after learning that it was a new school specializing in teaching dyslexic students to read using multisensory, sequential Orton-Gillingham (OG) methodology. After the visit in April or May, respondent requested a CSE meeting (Transcript p. 431). She also decided to enroll her daughter in the program. On May 14, 1999, respondent completed a transportation request form (Exhibit D-9), and five days later the director of Pioneer notified petitioner that the child would attend Pioneer during 1999-2000 (Exhibit D-8).

        In June 1999, a subcommittee of the CSE met, with the parents in attendance, to discuss the private school placement selected by the parent (Transcript p. 433). No agreement was reached. The child received satisfactory grades on her fourth grade report card (Exhibit P-20). In a July 8, 1999 letter, petitioner denied respondent’s transportation request on the ground that the child lived more than 50 miles from the private school, well beyond the distance petitioner was legally obligated to transport students [Education Law § 3635] (Exhibit D-10). Respondent was advised that transportation for distances beyond the normal mileage limitation could be provided only as part of a child’s special education program pursuant to the CSE’s recommendation.

        The full CSE convened on July 22, 1999. The child’s regular education fourth grade teacher, who participated by telephone, advised the CSE that the child was putting her papers in her desk and covering them with her hands, so that the other children would not be able to see her writing errors. She testified that the child was very self-conscious of her disability and tried to hide it at times (Transcript pp. 370-72). The CSE offered to recommend resource room services and tutoring for the child, in addition to the CWC placement that the subcommittee had recommended previously. However, respondent was reportedly not interested in the offer (Transcript pp. 384-386). Ultimately, the CSE recommended the CWC program for respondent’s child during the fifth grade (Exhibit D-21). It further recommended that an occupational therapy evaluation be performed in the fall of 1999. The child’s IEP goals and objectives for the 1999-2000 school year were similar to those on her IEP for the 1998-99 school year.

        The child’s parents refused to accept the 1999-2000 IEP. By letter dated August 4, 1999, respondent’s attorney informed petitioner that the child had been unilaterally enrolled in Pioneer for the 1999-2000 school year, and requested an impartial hearing (Exhibit D-22). The hearing began on September 13, 1999, and continued on September 21, 1999, October 25, 1999, and October 29,1999.

        During a hiatus in the proceeding, the child was privately evaluated by Dr. Frances Taylor, a neuropsychologist, in December 1999. Dr. Taylor reported that the child’s auditory processing skills were markedly problematic, which affected her ability to learn phonetic decoding skills in the way they are normally taught (Exhibit P-29; Transcript p. 536). She further reported that the child had problems with the recall of both previously learned and newly learned material, and noted that she had some difficulty with visual motor skills and graphomotor skills. Dr. Taylor reported that the child’s reading was markedly dysfluent, and that she made many spelling errors that were dyslexic in nature. She described the child’s handwriting, grammar, syntax, punctuation, and organization of ideas as poor, and reported that it was nearly impossible to tell what the child had written. Dr. Taylor recommended that respondent’s daughter be educated in a special education setting with a low pupil-teacher ratio and a highly structured language-based curriculum using an approach similar to OG for reading.

        The hearing concluded on July 27, 2000. Dr. Taylor testified that the child had difficulty learning in settings with ambient background noise (Transcript pp. 492-93). She found the child’s overall reading scores to be at a beginning second grade level for fluency, and at a beginning fifth grade level for comprehension (Transcript p. 536). Dr. Taylor reiterated the placement recommendation she had previously made, and urged that the child be placed with children having similar needs (Transcript pp.487-500). Her report had also recommended specific training for critical listening skills, and use of a word processor with a spell-check, or a voice-activated word processor, and a scanner (Transcript p. 501).

        The hearing officer rendered his decision on September 28, 2000. He reviewed the 1999-2000 IEP, and noted that it set forth essentially the same program and goals and objectives as had the 1998-99 IEP. He opined that in determining the appropriateness of the educational program at issue, it was necessary to consider the child’s progress in the same program in the prior school year. In this regard, he noted that none of the eight objectives in reading comprehension, and few of the objectives in written expression or spelling from the 1998-99 IEP had been achieved. He further noted that the 1998-99 IEP did not indicate dates of mastery of any of the stated goals and objectives, despite a requirement contained in it that it indicate "Achieved", "Not Achieved" or "In-Progress" (Exhibit D-6). Based on the record before him, he found that the child had made only minimal progress, which was not meaningful progress, during the 1998-99 school year. He concluded that the educational program contained in the 1999-2000 IEP was not reasonably calculated to enable the child to benefit educationally.

        In addition, the hearing officer found that respondent had met her burden of establishing that the special education program at Pioneer was reasonably calculated to provide an educational benefit to the child. He based his opinion, in part, on reports by respondent’s expert witness, who first evaluated the child in December 1999, then noted a significant improvement in several areas when she observed her in May 2000 at Pioneer. The hearing officer further found that the equitable considerations favored respondent’s claim for reimbursement. He therefore ordered petitioner to reimburse the child’s parents for the cost of their child’s tuition at Pioneer and transportation to that school during the 1999-2000 school year.

        Petitioner appeals from each part of the hearing officer’s decision. It asserts that it had offered to provide an appropriate education to the child, as evidenced by diagnostic testing and reports by the child’s teachers that students made adequate progress in the CWC program. It further asserts that the program at Pioneer was not shown by respondent to be the least restrictive environment (LRE) for the child, and therefore, even if it failed to provide an appropriate education, it should not be obligated to reimburse respondent for the cost of tuition. In addition, it argues that it is not obligated to reimburse respondent for the cost of transportation to Pioneer, because the child’s residence is more than 50 miles from Pioneer.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having 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 its 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        There is no dispute that the child is learning disabled, or that her disability has affected her ability to decode words, spell, and write legibly and grammatically (Exhibit D-21). Those facts were ascertained by several of the evaluators, and were reflected in the child’s early IEPs as well as the 1999-2000 IEP at issue. Thus, I find that the 1999-2000 IEP adequately describes the child’s needs. I have also reviewed the IEP’s goals and objectives. While the goals and objectives could have been more precisely crafted, I nevertheless find that they adequately address the student’s special education needs. The central dispute in this appeal is the appropriateness of the educational program and whether it afforded the child a reasonable chance of achieving the goals and objectives set forth in the IEP. The record shows that the CSE recommended a program for the 1999-2000 school year which was, in essence, a continuation of the CWC program offered to the child in the two preceding years. Respondent maintains, and the hearing officer found, that the program recommended in the 1999-2000 IEP was not appropriate for the child because she failed to make more than minimal progress after two years in the same CWC program. Based on the record before me, I agree.

        In reaching that conclusion, I have considered petitioner’s assertion that a comparison of the results of the child’s performance on the Stanford Achievement Tests on April 13, 1999 with those she achieved on that test in April 1998 affords a basis for finding that petitioner’s educational program would have been appropriate for the child during the 1999-2000 school year. In April, 1998, the child’s total reading score was at the 3rd percentile (Exhibit P-24), and was at the 31st percentile in April 1999 (Exhibit D-25). I must note that a group administered achievement test like the Stanford is not a diagnostic test.

        I have also compared the child’s performance on the WJ-R in November 1997 (Exhibit D-17) with her performance on that test in March 1999 (Exhibit D-18). For total reading, her percentile score decreased slightly from the 16th to the 15th, and her percentile score for letter-word identification decreased from the 16th to the 7th. Her score on the writing sample portion of those tests did improve from a 0.2 percentile to the 8th percentile, but even the latter score indicates that she had a significant need for improvement in writing.

        While a child’s performance on standardized tests and his or her report grades do afford a basis for judging whether an educational program is appropriate (Application of a Child with a Disability, Appeal No. 00-066), these measures are not the sole basis for making that determination. As petitioner notes in its memorandum of law, each child’s needs are unique, and there is no single test of appropriateness. I have also considered the extent to which this child’s IEPs over the years demonstrate that progress was being made in addressing the needs caused by her disability.

        Petitioner’s acting director of special education services conceded that the same goals from the 1998-99 IEP were essentially repeated in the 1999-2000 IEP, and that many were even repeated from the 1997-98 IEP (Transcript pp. 138; 143). A substitute teacher who tutored the child in fourth grade testified that, in her opinion, the CWC program would not be sufficient for the child in fifth grade, because she needed a highly structured consistent approach, and tutorials more than once a week (Transcript pp. 322-23). She did not think the child made any progress while she was tutoring her between May 1998 and June 1999 (Transcript p. 354). She further stated that she never observed the child being instructed using a multisensory approach at Bay Shore (Transcript p. 321). Indeed, the child’s fourth grade special education teacher confirmed that petitioner does not utilize the OG method, but rather the "reading reflex" method. She stated that she used this method to teach the child "when she could get to it" and when she worked one-on-one with the child (Transcript pp. 257-58).

        Respondent testified that at the end of fourth grade, the child could not read a menu, a TV guide or street signs (Transcript p. 569). Respondent’s expert witness, Dr. Taylor, testified that the child was reading at a second grade level at the beginning of fifth grade (Transcript p. 536). She documented that the child had severe difficulties with auditory processing of language (Transcript p. 486). While she did not believe it was necessary for the child to instructed by the OG method, she testified that that the method should be multisensory and sequential, and specific to the child’s needs (Transcript p. 523). Although the CSE did not have the benefit of Dr. Taylor’s evaluation at its July 22, 1999 meeting, it knew the child was having tremendous difficulty with reading and writing from the results of the its own testing and from reports from the child’s teachers.

        The child’s third grade special education teacher testified that the child was a non-reader in the beginning of third grade, but made good progress in that year (Transcript p. 199). However, her special education teacher, who wrote the 1999-2000 IEP with its recommendation that the CWC program be continued, suggested otherwise. She testified that the child still had a severe reading problem in fourth grade; and stated that the child could not read aloud or write in cursive at the end of fourth grade (Transcript pp. 253; 289; 304). In addition, the child’s regular fourth grade classroom teacher testified that she was very concerned about the child’s ability to function in higher level classes and learn other subjects in the ensuing years unless someone was sitting next to her, reading for her (Transcript p. 369). While the child appears to have made progress in her content area subjects in the fourth grade, based on her report card, I find that is not enough to support a finding that she progressed meaningfully in the CWC program (Exhibit D-19; D-20).

        I do not suggest that petitioner’s special education program was inappropriate because it did not teach reading by the OG method. Rather, I find that petitioner did not adequately address the child’s continued deficits in reading and writing when it offered the same program for the 1999-2000 school year in which the child had made only minimal progress the two previous years. The testimony was consistent that the child had severe reading and writing deficits, evidenced by reversal of letters and numbers, difficulty with auditory processing, and virtual inability to spell simple words. Yet respondent testified there was no discussion of the child’s writing deficit at the July 1999 CSE meeting (Transcript p. 445). At that meeting, petitioner offered the CWC inclusion class, and suggested a resource room and tutoring, which had already been afforded the child. While there was discussion of another O/T evaluation, there was no recommendation for access to keyboarding in the 1999-2000 IEP. I also note that the IEP provided that the child’s special education time was to be reduced from 20 percent in the 1998-99 IEP to ten percent during the 1999-2000 school year. I therefore find that petitioner has failed to meet its burden of proving that the CWC program set forth in the 1999-2000 IEP was sufficient to enable the child to make progress toward the goals set out in the IEP.

        A board of education may be required to pay for educational services obtained for a student by the student’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parent’s claim (School Committee of the Town of Burlington v, Department of Educ., Massachusetts, 471 U.S. 7 [1993]). As noted above, the parent has prevailed with respect to the first criterion for an award of tuition reimbursement because petitioner did not demonstrate the appropriateness of the CSE’s recommendation.

        With respect to the second criterion for an award of tuition reimbursement, a student's parent bears the burden of proof as to the appropriateness of the services selected 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, the parent 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). It is not dispositive of the parents’ claim for tuition reimbursement where, as here, the facility selected by the parents to provide special education services to their child is not approved as a school for children with disabilities by the State Education Department. (Florence Country School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        I find that respondent has met her burden of proving that Pioneer’s special education program met the child’s needs. Respondent’s expert witness, Dr. Taylor, observed the child at Pioneer at the end of fifth grade, in June 2000. She testified that the program at Pioneer was an individualized program in which two teachers taught four children in a two-room school house (Transcript p. 505). She indicated that the program included a reading tutorial, which was a highly structured, multisensory, sequential, OG based program (Exhibit P-30). Dr. Taylor testified that the teachers were instructing the child, who is left-handed, a method of writing using her left hand that would make her writing more legible. She found the difference in the child’s writing ability was remarkable (Exhibit P-30; Transcript p. 508). Moreover, she estimated that the child was reading at the third, possibly fourth grade level, rather than at the second-grade level of six-months ago. She also saw growth in the child’s ability to talk with adults and noted that her self-confidence in general had improved (Exhibit P-30). Dr. Taylor reported that the child had developed organization skills, and her focusing ability had improved. She testified that she was impressed with the school and its teaching, and found it to be an appropriate program for the child. (Transcript p. 509).

        Respondent testified that prior to placement at Pioneer the child not only had difficulty reading menus or street signs, but she could not type, and had very poor spelling skills. After the year at Pioneer, however, the child was able to engage in instant messaging with her mother on the computer, and she was enjoying reading (Transcript pp. 551-52). The child’s end of year progress report dated 5/30/2000 indicated that the child had progressed from a 1.5 independent level reading book to a 2.5/3.0 level (Exhibit P-31). It also indicated she was writing in cursive by the end of the year, had learned to read aloud with expression, had become proficient at public speaking, and was a good typist (Exhibit P-31). She had written many essays and projects. The child had participated in activities such as writing to a penpal, doing a research report on the state of Oklahoma, rewriting a fairy tale, writing poetry, and working with an artist in residence on art projects (Exhibit P-31). Most important, she was progressing well in all her subject areas including reading, writing, spelling and math (Exhibit P-31). Dr. Taylor thought the child would be able to return to the District after one more year at Pioneer with the goal of being mainstreamed (Transcript pp. 501-02).

        Petitioner argues that respondent has not met her burden of demonstrating that the program at Pioneer addressed the student’s need in the least restrictive environment (LRE). It argues that placement at Pioneer removed her from contact with her non-disabled peers. Students with disabilities must be educated in the least restrictive environment (20 U.S.C. §1412[a][5]). The LRE requirement applies to unilateral parental placements as well as to school district placements (M.S. on behalf of S.S. v. Bd. of Ed. of the City School District of the City of Yonkers, ___F.3d __[2d Cir. 2000]). Nevertheless, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F.2d 688 [2d Cir. 1989]).

        While Pioneer does not present the same opportunity for mainstreaming as a placement in petitioner’s schools, I cannot conclude on that fact alone that it is inappropriate for the child. I note that Dr. Taylor testified that there was time for the child to socialize at Pioneer during lunch and other periods, she was getting along well with others, and her confidence had increased (Transcript pp. 508-09). The child’s progress report from Pioneer (Exhibit P-31) indicated that she was making progress in reading and writing, and her self-esteem was improving – an 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, 07-38). Given the child’s achievements in reading and writing at Pioneer, and the nature of her disability, I agree with the hearing officer’s conclusion that the program was appropriate. It provided individualized attention from a teacher who employed a multisensory approach in an academically stimulating environment in small, structured classes that minimized distractions and addressed self-esteem. Under the circumstances, I find that respondent has satisfied the LRE requirement.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent’s claim. Here, there is no indication in the record that respondent failed to cooperate with the CSE. On the contrary, respondent provided private tutors for her child, sent her to school during Christmas vacation, brought all pertinent information to the district’s attention, and attended every meeting but one. I therefore find that the equitable considerations support respondent’s claim that she is entitled to reimbursement for the cost of her daughter’s tuition for the 1999-2000 school year.

        I find that there is no reason to deny respondent reimbursement for the cost of transporting her daughter to Pioneer. I am aware of the 50-mile limit in the definition of the term "transportation expense" for state aid purposes set forth in § 4401(4) of the Education Law. There is also a 50-mile limit upon the obligation of a board of education to transport a child with a disability to a nonpublic school for the purpose of receiving services or programs similar to the special education program which the CSE has recommended for such child (§ 4402[4][d] of the Education Law). However, neither statutory provision was intended to limit a parent’s right to reimbursement under the due process provisions of the Individuals with Disabilities Education Act and § 4404 of the Education Law for expenses incurred in obtaining an appropriate educational program for a child.

THE APPEAL IS DISMISSED.