00-084

         Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their son’s tuition at the Maplebrook School for the 1999-2000 school year. Petitioners also seek compensatory education for their son. The appeal must be sustained in part.

        Petitioners’ son, who is 18 years old, had an encephalocele at birth which was repaired at seven weeks of age. He developed hydrocephalus and required the insertion of a shunt to relieve pressure on his brain. At four to five months of age, he began receiving therapy at Rehabilitation Programs, Inc., a medical rehabilitation clinic in Poughkeepsie, New York. In January 1986 at the age of three, the student began attending a communication disorder preschool program at St Francis Hospital where he received speech/language therapy, occupational therapy, and physical therapy (Exhibit P-11).

        In April 1986, a physiatrist who had evaluated the student at Rehabilitation Programs, Inc. reported that the findings of his evaluation were suggestive of the existence of learning disabilities. He recommended implementation of occupational therapy three times per week in order to facilitate improvement of the student’s fine motor coordination, balance, upper extremity and trunk muscle tone, motor planning, spatial perception, and general neurointegrative functions. He also recommended adaptive physical education to facilitate further improvement in the child’s coordination, muscle tone, and balance, as well as continuation of his speech therapy (Exhibit P-11). A psychologist who evaluated the student in May 1988 noted that there was an almost 30-point disparity between the student’s verbal IQ and performance IQ scores, and that he could not copy designs (Exhibit P-12).

        In May 1988, respondent’s Committee on Special Education (CSE) classified petitioners’ son as learning disabled, and recommended that he be placed in a special education kindergarten class at respondent’s Traver Road Primary School for the 1988-89 school year. The CSE further recommended that the student receive speech/language therapy in a group three times per week for 30 minutes, and that he receive occupational therapy two times per week for 30 minutes (Exhibit SD-1).

        A neurologist who evaluated the student on September 6, 1989 noted that he had made good progress with respect to his overall skills, but he appeared to evidence a variety of specific learning difficulties, with some motor planning deficits and elements of an attention deficit disorder (ADD). He recommended a trial of medication to enhance the student’s attention span (Exhibit P-1). Petitioners’ son continued in a special education class for the first grade during the 1989-90 school year. In February 1990, a subcommittee of the CSE recommended that the student be mainstreamed in a regular education first grade math class. The student’s program remained unchanged for the second grade, except that his speech/language therapy was reduced to twice a week (Exhibit SD-1).

        At a triennial review conducted on May 24, 1991, the CSE recommended that the student be placed in a special education class with mainstreaming at respondent’s West Road Intermediate School for the third grade. The CSE further recommended that the student continue speech/language therapy in a group twice a week, and that he receive occupational therapy once a week in a group and once a week individually (Exhibit SD-1).

        The student continued in a special education class at West Road Intermediate School for his fourth grade during the 1992-93 school year, and the CSE recommended inclusion for one half of the school day. He received 60 minutes of group speech/language therapy per week, 30 minutes of occupational therapy in a group per week, and 30 minutes of individual occupational therapy per week. The CSE added test modifications of extended time and special location to his individualized education program (IEP) (Exhibit SD-1).

        No changes were made in the IEP for the student’s fifth grade during the 1993-94 school year (Exhibit SD-1). On January 10, 1994, he achieved a verbal IQ score of 84, a performance IQ score of 70, and a full scale score of 75 on the Wechsler Intelligence Scale for Children-Revised (WISC-R). The evaluator noted that the student easily gave up on work that he thought was too difficult, and opined that the student needed a small structured environment that would provide him with comfort and attention. On the written language portion of the Woodcock-Johnson Tests of Achievement administered on March 18, 1994, he earned a grade equivalent score of 5.2 for total written language (Exhibit SD-51). A CSE subcommittee added 30 minutes of individual counseling per week to the student’s IEP in March 1994 (Exhibit SD-1).

        In April 1995, the Comprehensive Test of Basic Skills (CTBS) was administered to the student. He achieved a grade equivalent score of 4.9 for reading decoding which placed him at the 25th percentile, and a grade equivalent score of 4.1 for reading comprehension, which was at the 13th percentile. For total reading, he achieved a grade equivalent score of 4.8, placing him at the 18th percentile. The student’s grade equivalent score for math computation was 3.6 (4th percentile), and his grade equivalent score for math concepts was 3.1 (3rd percentile). The student’s grade equivalent score for total math was 3.4, which was at the 3rd percentile (Exhibit SD-51).

        At a triennial review conducted on April 25, 1994, the CSE recommended that the student be placed for the sixth grade in special education classes for English, math, science and social studies with five periods of resource room per week at the Arlington Middle School. The CSE further recommended that the student continue to receive occupational therapy once per week for 30 minutes in a group and once per week for 30 minutes individually, but that speech/language therapy and counseling be discontinued. On September 18, 1994, occupational therapy was reduced to 30 minutes per week (Exhibit SD-1).

        At its annual review for the 1995-96 school year, the CSE recommended that the student continue at Arlington Middle School for seventh grade. He was placed in special education classes with a student:teacher ratio of 15:1 for English, math, science and social studies, with an added special education class in study skills. The CSE further recommended that the student continue to receive occupational therapy once per month for monitoring, and that he be exempt from a second language requirement. It also recommended that he receive test modifications including an extended time limit, questions read to him, computer access, special location, and use of a calculator (Exhibits SD-1, P-15).

        In January 1996 while their son was in the seventh grade, petitioners removed him from respondent’s schools, and began a home schooling program. At petitioners’ request, their son’s occupational therapy was also discontinued (Exhibits P-16, P-18).

        Petitioners’ son returned to the Arlington Middle School for the eighth grade during the 1996-97 school year. He was enrolled in special education classes with a student:teacher ratio of 12:1+1 for English, math, science, social studies and study skills. On February 25, 1997, a subcommittee of the CSE exempted the student from state tests (Exhibits SD-1, SD-51, P-19).

        On the Peabody Individual Achievement Test (PIAT) in May 1997, the student achieved a grade equivalent of 8.6 in reading decoding, placing him in the 48th percentile. In reading comprehension, he achieved a grade equivalent of 8.1, placing him in the 45th percentile. In math, he achieved a grade equivalent of 4.6, which fell in the 11th percentile. In total written language, he achieved a grade equivalent of 7.7, placing him in the 49th percentile (Exhibit SD-42). The student achieved satisfactory final grades, except for a Spanish course that he dropped at midyear. He was absent from school on 33 days during the 1996-97 school year.

        At its annual review for the 1997-98 school year, the CSE recommended that the student attend special education classes with a student:teacher ratio of 12:1+1 for English, math, science, social studies and reading in respondent’s high school for ninth grade (Exhibits SD-1, SD-42, P-23). His IEP indicated that he was to be supported by a teaching assistant in a regular education "Foods" class, and would participate in regular education adaptive physical education and elective courses. The IEP was changed in December 1997 to substitute a regular education Global Studies 1 class for his special education social studies class in order to provide an opportunity for the student to attend more mainstream classes (Exhibit P-25).

        In February 1998, the Board of Cooperative Educational Services (BOCES) for Dutchess County conducted an extensive vocational evaluation of the student. The evaluation report indicated that the student’s occupational interests included security work, food preparation, early childhood education, and work with heavy equipment. It noted a high correlation between expressed interests and the results of a formal vocational interest inventory. The report recommended placement in Adaptive Occupational Education – School-to-Work Transition Human Services and Adaptive Food Services (Exhibit SD-36). In March 1998, the student’s IEP was amended to include a mainstream adaptive technology course (Exhibit SD-33).

        In April 1998 while the student was in the ninth grade, the Wechsler Individual Achievement Test (WIAT) was administered. He earned grade equivalent (and standard) scores of 9.7 (5) for reading decoding, 4.8 (2) for total math, 7.9 (4) for written expression, and 6.9 (4) for total written language (Exhibit SD-27). In May 1998, a structured interview of the student and his parent was conducted to explore future planning and transitional services. While both stated that they hoped that the student would attend college, the parent indicated ambivalence as to whether the student should pursue an academic or a vocational course of study (Exhibit SD-68). The student received passing final grades in all of his courses during the ninth grade. He was absent on 26 days (Exhibit SE-26).

        At its annual review for the 1998-99 school year, the CSE recommended that the student be enrolled in special education classes with a student:teacher ratio of 12:1:1 for three periods daily for academic instruction, as well as five hours per week of special education instruction in a career exploration course. The student’s IEP provided that he would be enrolled in regular education classes for adaptive physical education, communications/audio, biology for living, food core, and adaptive keyboarding in respondent’s high school. It also provided that he would receive 40 minutes of counseling per month in a group. The student’s testing modifications included doubled time limits, having questions read to him, and using a calculator and computer (Exhibits SD-27, P-30).

        In October 1998, the student received an in-school suspension for repeatedly cutting his communication class, and for insubordination when he failed to report to the health office from his in-school suspension (Exhibits P-39, P-40). In November 1998, his job coach at Hudson Valley Food Works reported that the student’s performance was adequate, but that he needed frequent supervision and redirection (Exhibits SD-74, SD-75, P-41).

        The student’s IEP was changed in December 1998 by the removal of annual goals for biology and science. On the amended IEP, the CSE noted that the student tended to become overwhelmed when presented with multiple tasks, and was unable to keep pace with grade-level expectations independently (Exhibits SD-20, P-29).

        On December 15, 1998, the Wechsler Intelligence Scale for Children – Third Edition (WISC-III) was administered to the student. He achieved a verbal IQ score of 91, a performance IQ of 66, and a full scale IQ score of 77. On the Wechsler Individual Achievement Test (WIAT) that was administered to him on March 29, 1999, the student earned grade equivalent (and standard) scores of 10.5 (102) for total reading, 5.7 (80) for total math, and 8.6 (98) for total written language (Exhibit SD-7).

        The student participated in an Integrated Employment Services Community Based Educational Program as part of his transition plan during his tenth grade (Exhibit SD-70). The student worked in a stockroom, in a warehouse, at a grocery, at a culinary institute and in an early childhood center. Parental contacts in the program records indicate that petitioners were pleased with their son’s involvement in the program (Exhibit P-41). The student decided that he wanted to quit the career explorations program because he couldn’t "deal with it," and because he didn’t like the jobs that he had done (Exhibit SD-85).

        The student’s progress reports during the tenth grade show that he completed two of the objectives on his IEP, and that he made progress toward the completion of the other objectives (Exhibits SD-17, SD-13, SD-8). His final grades show that he passed all of his courses, and that he had been absent from school on 24 days (Exhibit SD-54).

        The CSE convened on May 3, 1999 to develop an IEP for the 1999-2000 school year, but it did not complete the IEP at the meeting (Transcript p. 67). On July 24, 1999, petitioners informed the district of their decision to enroll their son in Maplebrook School’s extended day program and to seek tuition reimbursement (Exhibit P-49). By letter dated August 2, 1999, petitioners requested a copy of their son’s IEP for the 1999-2000 school year, and a neurological evaluation of their son (Exhibit P-50).

        The CSE reconvened on September 2, 1999; but it still did not complete the student’s IEP because the CSE’s parent member was not present at the meeting. The attending members prepared a draft IEP that provided that the student would be enrolled in a 12:1 + 1 special education class for instruction in English, social studies, math, and study skills, and receive 40 minutes of individual counseling twice per month. He was to be mainstreamed for physical education, Regents Biology, reading lab and electives (Exhibit SD-7). The CSE completed the student’s IEP for the 1999-2000 school year on October 26, 1999 (Exhibit SD-4). The completed IEP reflected the recommendations contained in the draft IEP.

        Petitioners’ son began attending Maplebrook as a day student in September 1999. On December 13, 1999, the student was evaluated by a neurologist, who noted that petitioners’ son had been treated by a psychiatrist with Risperdal within the last year. The neurologist reported that the student’s graphomotor skills were quite impaired, and that his writing was very slow and laborious. He also reported that petitioners’ son exhibited some difficulties with auditory processing. The neurologist expressed concern that the student could be harboring a significant mood disorder, with depression and possible underlying elements of a thought disorder. He urged the parents to seek a psychiatric evaluation and care for the student (Exhibit SD-2).

        By letter dated October 14, 1999 and received by the CSE chairperson on October 20, 1999, petitioners requested a due process hearing seeking reimbursement for the unilateral placement of their son at Maplebrook School, and requesting four years of compensatory education because of respondent’s alleged failure to provide an appropriate educational program for him (Exhibits P-52, P-53). The hearing in this proceeding began on January 14, 2000. Petitioners were assisted at the hearing by a non-lawyer representative. Petitioners’ request that the hearing officer recuse herself because of an alleged bias against the parents was denied at the beginning of the third day of hearing (Transcript p. 362). The hearing concluded on May 31, 2000, after nine days of testimony.

        In her decision rendered on September 30, 2000, the hearing officer found that petitioners had not been deprived of their due process rights because of the wording respondent had used in its invitation to attend CSE meetings, but recommended that the invitations be rephrased to encourage parental attendance at CSE meetings. She also found that the student had been correctly classified as learning disabled, and had received a free appropriate public education (FAPE), including appropriate transition services. The hearing officer concluded that petitioners should not be reimbursed for the cost of their son’s tuition at Maplebrook, and that the student was not entitled to receive an award of compensatory education.

        Petitioners challenge the hearing officer’s decision on a number of grounds, including her alleged bias against them and predisposition in favor of the school district. They assert that her decision reveals her bias. I must first note that the fact that a hearing officer has ruled against a party is not in and of itself evidence of bias against that party. There is nothing in the hearing officer’s decision to support petitioners’ charge of bias. I have considered the hearing officer’s remarks that led to petitioners’ request that she recuse herself. While perhaps unfortunate, they must be taken in context as the hearing officer indicated in her final decision. I find that petitioners’ claim of bias is without merit.

        Petitioners contend that the hearing officer erred in finding that respondent had offered to provide an appropriate education to their son for the 1999-2000 school year because respondent’s CSE failed to complete the student's IEP for that school year by the beginning of school in September 1999, and because the subsequently completed IEP was inadequate. They assert that Maplebrook met their son’s needs during the 1999-2000 school year, and argue that they are entitled to an award of tuition reimbursement. Petitioners ask that I order compensatory education in the form of additional years at Maplebrook if necessary for their son to receive a FAPE and a high school diploma.

        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]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to 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]).

        Although the CSE "contact sheet" (Exhibit SD-1) indicates that a triennial review was held on May 3, 1999, there is no evidence that an IEP for the 1999-2000 school year was prepared at that meeting. The chairperson of respondent’s CSE testified at the hearing that an informal meeting was held with petitioners in June 1999 to plan the student’s program for the 1999-2000 school year, but that the meeting was not a CSE meeting. The CSE did not meet to prepare the student’s IEP until September. However, the CSE did not have each of its required members at that meeting, and therefore could not produce a valid IEP at the September meeting (Application of a Child with a Disability, Appeal No. 99-2). It did not complete its work on the IEP until well into October 1999 (Transcript pp. 69, 756). Federal regulation requires that a school district shall have an IEP in effect at the beginning of the school year for each child with a disability (34 CFR 300.342[a]). Respondent has not offered an explanation for its CSE’s delay, which does not appear to have been caused by petitioners, notwithstanding petitioners’ failure to attend the May triennial review. Under the circumstances, I must find that the hearing officer erred in holding that respondent had met its burden of proving that it had offered to provide a FAPE to petitioners’ son for the 1999-2000 school year. Accordingly, petitioners have satisfied the first of the three criteria for obtaining an award of tuition reimbursement.

        Petitioners bear the burden of proof with regard to the appropriateness of the services that Maplebrook provided to their son 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 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 find that the evidence demonstrates that the student’s special educational needs were met at Maplebrook. The record shows that the student functions best in small group settings with maximum adult assistance. The Maplebrook principal testified that Maplebrook was a small independent school with 80 students, a teacher:pupil ratio of approximately 8:1, a full academic curriculum, after school activities, and a behavior plan which was designed to increase self esteem (Transcript p. 1099). The students who attended Maplebrook were all within the 70 to 90 IQ range (Transcript p. 1100). The day school offered Regents, RTC and IEP diplomas, and there was a vocational component to its educational program (Transcript pp. 1102-1107).

        The principal opined that Maplebrook was an appropriate placement for the student and that he had shown growth in both academic and social areas (Transcript p. 1130). A psychologist testified that the student’s self esteem had increased while he attended Maplebrook (Transcript p. 1012). The student’s mother testified that Maplebrook had assisted her son with his organizational skills (Transcript p. 1282). An April 2000 progress report from Maplebrook shows that the student had made progress toward achieving all but one of the specific goals and objectives listed on his current IEP, and that he had mastered many of the goals and objectives as stated (Exhibit P-65). While the student’s progress was reportedly limited because of his continued high rate of absence and his lack of preparation for class, that does not render the placement inappropriate.

        As noted by the hearing officer, unilateral parental placements for which tuition reimbursement is sought are subject to the federal and state requirement that each child with a disability be educated in the least restrictive environment (M.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]). There is no doubt that Maplebrook, which is a specialized facility for students with disabilities, is a more restrictive placement that that which respondent ultimately offered in October 1999. However, there appears to be little dispute that this student had significant special education needs for which he required primary special education instruction for most if not all of his academic subjects. I find that petitioners have met their burden with respect to the second criterion for an award of tuition reimbursement.

        Respondent contends that equitable considerations do not support petitioners’ claim for reimbursement because they failed to cooperate in the process of crafting an appropriate program for their son. Petitioners wanted their son to pursue an academic course of study instead of a vocational program. The CSE chairperson testified that the CSE believed that petitioners’ son could be enrolled in some academic courses, but that he should continue to participate in a vocational program (Transcript p. 740). Petitioners were entitled to disagree with the IEP proposed by respondent’s CSE. While consensus on a student’s proposed educational program is desirable, the CSE must in any event recommend an appropriate program on a timely basis. I find that petitioners have satisfied the third criterion for an award of tuition reimbursement.

        Petitioners are also seeking compensatory education for their son. The courts have concluded that compensatory education, i.e., special education services to be provided to a child after the child is no longer eligible because of age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act, when the child has been excluded from school, or denied appropriate educational services for an extended period of time (Burr by Burr v. Ambach, supra; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir., 1990]; Lester H. v. Gilhool, 916 F. 2d 865 [3rd Cir., 1990]; Miener v. State of Missouri, 800 F. 2d 749 [8th Cir., 1986]). I find that petitioners’ son is not eligible for an award of compensatory education because he has not been denied a FAPE for an extended period of time. Although petitioners attempted to challenge the appropriateness of the educational program that respondent provided to their son in the school years prior to the 1999-2000 school year in this proceeding, I agree with petitioner that they are barred from doing so because of their failure to promptly challenge their son’s IEPs for each of those school years (Board of Educ v. J.H., 42 F. 3d 149 [3rd Cir. 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]).

        Although not raised as an issue by petitioners in this appeal, I am concerned that the student has begun to experience significant psychiatric symptoms. The record refers to the student’s difficulties involving a girlfriend and his conflict over his academic aptitude and interests. As noted above, the neurologist who evaluated the student in December 1999 expressed concern about the possibility of a significant mood disorder with features of depression and perhaps some underlying elements of a thought disorder. The neurologist did not feel that the student’s academic potential could be clearly assessed because of his concern with the psychiatric issues (Exhibit SD-2). I urge respondent to consider the current state of this student’s psychiatric condition when preparing any future IEP for the student.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision denying petitioners tuition reimbursement for the 1999-2000 school year is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son’s tuition at Maplebrook School for the 1999-2000 school year, upon petitioners’ presentation of proof of payment of such tuition.