00-087

       Petitioners appeal from an impartial hearing officer’s decision denying their request for reimbursement of their son’s tuition at the Lowell School during part of the 1999-2000 school year; and for issuance of a "Nickerson" letter (see, Jose P. et al. v. Ambach et al., 79 C 270, [E.D.N.Y., 1982]) allowing them to place their son in an approved private school at the Board of Education’s expense. The appeal must be sustained.

        Petitioners have asked me to consider certain evidence that was not in the record before the hearing officer in this proceeding. The evidence in question consists of an individualized education program (IEP) that respondent’s Committee on Special Education (CSE) prepared on January 3, 2001, as well as various new evaluation reports and an updated social history that were prepared shortly before the IEP was prepared. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Child with a Disability, Appeal No. 93-20). The documents that petitioners offer were not available at the time of the hearing in this proceeding. Although I will accept them, I must point out that they are of limited probative value since they are not compelling evidence of what the child’s needs were almost one year before the IEP in question in this proceeding was prepared by the CSE on January 19, 2000.

        Petitioners’ son was l1 years old when the hearing in this proceeding began in March 2000. The student attended one private school for kindergarten through the second grade, after which he was enrolled in the St. Robert Bellamarine School (St. Robert), where he was in the fifth grade during the 1999-2000 school year. He was reportedly tutored in second and third grade, and received assistance with his homework twice per week in the fourth grade (Exhibit 4). The student began spending a significant part of the day in a resource room at St. Robert in the fall of 1999 (Transcript p. 292)

        On September 7, 1999, petitioners had their son evaluated at Hofstra University because they were concerned about his reading skills (Exhibit 8). The evaluator noted that the student had previously been diagnosed as having an attention deficit disorder (ADD) and was taking medication for that condition. The student achieved above average scores on the Kaufman Brief Intelligence Test. The evaluator reported that the student was a very slow reader who often lost his place and needed to use his finger to stay focused while reading. His reading and writing skills were reported to be two years below grade expectation. The evaluator recommended that the student receive small group instruction in reading and writing.

        In October 1999, petitioners asked St. Robert to provide their son with more assistance. The principal of St. Robert advised petitioners that the parochial school could not meet their son’s needs. Thereafter, petitioners began exploring different schools for their son to attend, including his neighborhood school, P.S. 32. On November 2, 1999, petitioners requested an evaluation and review by respondent’s CSE. Shortly after referring their son to the CSE, petitioners asked the Lowell School to review the student’s records. During the first week of December 1999, they submitted a deposit for their son to attend the Lowell School, which has been approved by the State Education Department to provide instruction to children with disabilities.

        Petitioners’ son was evaluated before the CSE was scheduled to meet in this matter on January 19, 2000. Specifically, a social history and psychological evaluation were administered on December 7, 1999; a classroom observation was conducted on December 13, 1999 at St. Robert; and an education evaluation was conducted on December 14, 1999. The CSE psychologist noted that the student had expressed negative feelings about school, and did not always put forth full effort during her assessment of him. On the Stanford-Binet Intelligence Scale-4th Edition, the student achieved a composite score of 105, which was in the average range. His abstract/visual and quantitative reasoning skills were areas of strength, while his short-term auditory memory was an area of marked weakness. He also demonstrated some attention and language processing difficulties. The school psychologist reported that the student was experiencing anger about his academic difficulties, much of which was directed inward and depressed his ability to function more effectively.

        The CSE’s educational evaluator reported that the student’s score for word identification was in the 12th percentile and his score for passage comprehension was in the 30th percentile on the Woodcock Language Proficiency Battery-Revised. On the Kaufman Test of Educational Achievement, the student achieved scores in the 5th percentile for computation and the 43rd percentile for concepts and word problems. The evaluator described the student’s writing sample as immature for grade expectancy. His handwriting was legible, but the size and alignment of letters was inconsistent. The evaluator indicated that the student might have visual motor delays.

        A CSE social worker observed the student in class at St. Robert. She noted that the student had been spending most of the school day at St. Robert in a remedial class, but had rejoined his regular class for purposes of the observation. Petitioners’ son played with his hands and fingernails during the observed math lesson, and appeared frustrated by the material being presented. He did not attempt to do the assignment.

        At the CSE meeting on January 19, 2000, petitioners informed the CSE that they had enrolled their son in the Lowell School on January 4, 2000. Present at the CSE meeting were petitioners, a district representative, psychologist, education evaluator/special education teacher, parent representative, and clinical supervisor. During the meeting, the CSE spoke separately, by telephone, with the student’s former teacher at St. Robert and his current teacher at the Lowell School (Exhibit 3). The CSE recommended that petitioners’ son be classified as learning disabled. I note that there is no dispute about the student’s classification in this proceeding.

        The CSE also recommended that the student be placed in a Modified Instructional Services-I (MIS-I) special class of 15 students for instruction in all subjects, and that he receive 30 minutes of counseling in a group of no more than three students once per week. On the IEP that the CSE prepared for him, the CSE included the testing modifications of extended time, flexible location and having directions read and re-read to him (Exhibit 1). Petitioners were offered, but refused, the opportunity to meet with respondent’s placement officer at the conclusion of the CSE meeting (Exhibit 13) .

        In a Final Notice of Recommendation dated February 7, 2000, respondent offered petitioners’ son a program at P.S. 193 in his home Community School District (Exhibit 14). Petitioners visited P.S. 193 on February 8, 2000, but felt that the proposed placement was inappropriate because they believed that their son was functioning at a lower level than the students in the proposed class. After petitioners rejected the class offered at P.S. 193, they were offered another MIS-I placement at a different site. On February 15, 2000, petitioners’ then attorney requested an impartial hearing to challenge the recommended placement and to obtain an award of tuition reimbursement (Exhibit 15).

        A hearing was held in this matter on various dates ending on June 22, 2000. At the hearing, petitioners challenged the program offered by respondent on both substantive and procedural grounds. Substantively, petitioners claimed that such program denied their son a free appropriate education (FAPE). Procedurally, petitioners raised various claims concerning the composition of the CSE and the conduct of its meeting. In opposition, respondent claimed that it had offered petitioners’ son a free appropriate education, and that no procedural or substantive errors were committed during the CSE review. The parties also disagreed about the appropriateness of the child’s placement at the Lowell School.

        On October 12, 2000, the hearing officer rendered her decision in this matter. She noted that respondent had moved to dismiss petitioners’ hearing request at the outset of the hearing because petitioners had not notified the CSE in advance of its January 19, 2000 review that their son had been placed at the Lowell School. The hearing officer did not rule upon respondent’s motion because she concluded that petitioners were not entitled to the relief that they sought. She rejected petitioners’ challenge to the composition of the CSE at its January 19, 2000 meeting, finding that the limited participation by the boy’s former regular education teacher at St. Robert was adequate to satisfy the requirement that the child’s regular education teacher participate in the preparation of the child’s IEP. The hearing officer also found respondent had satisfied the requirement that the IEP team include a special education teacher because there had been a special educator at the CSE meeting, in addition to the brief telephonic participation in the meeting by the Lowell School special education teacher. In addition, she found that petitioners had been afforded a meaningful opportunity to participate in the preparation of their son’s IEP.

        The hearing officer dismissed petitioners’ challenge to the appropriateness of their son’s IEP annual goals and short-term objectives, finding them to be reasonably related to his educational deficits. She also found that respondent had demonstrated that the student would have been suitably grouped for instructional purposes in the proposed MIS-I class, and would have received adequate instruction in that class. Having found that respondent had met its burden of proving that it had offered a FAPE to the child for the 1999-2000 school year, the hearing officer denied petitioners’ request for an award of tuition reimbursement, or in the alternative for a Nickerson letter.

        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 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 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]).

        A board of education satisfies its obligations under the Individuals with Disabilities Education Act (IDEA) if it can establish that the challenged IEP was appropriate (M.C. ex rel. Mrs. C. v. Voluntown Board of Education, 226 F.3d 60 [2nd Cir. 2000]). An IEP must accurately reflect the results of evaluations to identify the child’s needs, establish annual goals and short-term objectives and/or benchmarks that are related to the child’s educational deficits, and provide for the use of appropriate special education services to address the child’s special needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        An IEP must not only be substantively appropriate, but it must have been prepared in accordance with the procedural requirements of federal and state law. Therefore, I will first consider petitioners’ challenge to the manner in which their son’s IEP was prepared. Petitioners contend that the CSE that prepared the IEP was not validly composed. A CSE that prepares a student’s IEP must include the student’s parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special education, an individual who can interpret the instructional implications of evaluation results, the school physician if requested by the parents in advance of the meeting, and the parent of another child with a disability (Education Law §4402[1][b]; 8 N.Y.C.R.R. §200.3[a][1]).

        I have considered petitioners’ arguments about their son’s former regular education teacher at St. Robert serving as the regular education teacher member of the CSE, but I must find that they are without merit. At the time of the CSE meeting, petitioners’ son was no longer enrolled in regular education classes. Moreover, the CSE did not recommend on the IEP that the boy participate in any regular education class. Consequently, a regular education teacher was not a required member of the CSE. In any event, the St. Robert teacher had been the student’s most recent regular education teacher, and was able to provide his insight about the student to the CSE.

        Petitioners also challenge respondent’s designation of one of its educational evaluators to serve as the special education teacher member of the CSE. As noted above, a special education teacher of the student is a required member of the CSE. When the CSE met on January 19, 2000, petitioners’ son was enrolled in the Lowell School, where he was receiving special education. His special education teacher at that school participated by telephone in the CSE meeting, but reportedly did so for only five minutes (Transcript p. 257). In any event, there is no evidence that petitioners were advised of their right to a face-to-face meeting with all members of the CSE (Application of a Child with a Disability, Appeal No. 00-043).

        The regulations implementing the IDEA prior to its amendment in 1997 authorized a board of education to designate one of its teachers to serve as the teacher member of the CSE when the student was not enrolled in the district’s schools. However, the 1997 statutory amendment and the federal regulations implementing the amended IDEA no longer allow a board of education to simply designate any teacher to perform this function. In its official interpretation of the regulations, the U.S. Department of Education has indicated that "the special education teacher who is a member of the child’s IEP team should be the person who is, or will be responsible for implementing the IEP" (See Appendix A to 34 CFR Part 300-Notice of Interpretation, Question 26). Therefore, the student’s special education teacher at the private school, or one of respondent’s special education teachers who would have been likely to implement the student’s IEP, could have been designated as the special education teacher member of the CSE.

        A board of education cannot reasonably be expected to designate a teacher who will necessarily be a student’s special education teacher to serve on a CSE before the CSE has determined what special education services should be provided to the student. Nevertheless, it can be expected to have sufficient information about the student to ascertain what programs might be appropriate for the student and to designate a special education teacher who is not only licensed or certified to teach in such programs, but is also teaching in one of such programs (Application of the Board of Educ., Appeal No. 00-031).

        The educational evaluator who participated in the CSE meeting involving this student was a former regular and special education teacher who had spent the preceding 18 years as an evaluator (Transcript p.31). She acknowledged that she had never been assigned to teach a MIS-I class in her more than 30 years or experience with respondent (Transcript p. 51). She also acknowledged that she had no personal knowledge of the student. Under the circumstances, I must conclude that the educational evaluator could not serve as the special education teacher of the student on the CSE pursuant to the federal interpretation of the IDEA regulations. Accordingly, I find that the IEP that was prepared at the January 19, 2000 CSE meeting was a nullity, and that the hearing officer erred in finding that respondent had met its burden of proving that it had offered to provide an appropriate program to petitioners’ son.

        Petitioners bear the burden of proof with regard to the appropriateness of the services provided to their son by the Lowell School during the months of February through June 2000, and September 2000 through January 2000 (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, they must show that the private school offered an educational program which met their son'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 record reveals that petitioners’ son is of average intelligence, but he has deficits in short-term auditory memory, attention, and language processing. He also has difficulty with planning and organization. As a result, there are delays in his reading, writing, and mathematics skills. Petitioners’ son is frustrated by his academic difficulties and has low self-esteem. According to respondent’s school psychologist, the student’s frustration and anger may be affecting his ability to perform satisfactorily in school. There appears to be no dispute between the parties that the student requires extensive primary instruction using special education techniques, since he would have received such instruction in the MIS-I class that the CSE recommended, and is receiving such instruction at the Lowell School.

        Petitioners’ son is in a class of 11 students with a teacher and an assistant teacher at the Lowell School’s Bayside site (Transcript pp. 346-354). He receives one-to-one reading instruction twice per week for a total of 80 minutes by a reading specialist who is trained in the Orton-Gillingham technique. That specialized technique is also used to teach reading in small groups in the student’s classroom. The student also receives one-to-one assistance in daily writing exercises in his classroom (Transcript p. 519). The Lowell School’s Clinical Coordinator testified that petitioners’ son was initially resistant and had difficulty relating to other students at the school, but had become more accepting of help from staff was doing better socially (Transcript pp. 361-362). She noted that he continued to require a great deal of individual attention to remain on task, but was participating in the school’s positive reinforcement program in which students earn privileges for successful academic and social performance. Her testimony was confirmed by the student’s classroom teacher (Transcript p. 523). Counseling was also provided to petitioners’ son at the Lowell School (Transcript p. 540).

        In April 2000, the student was evaluated by a private psychologist, who reported that the boy had become less anxious and withdrawn. The student achieved grade equivalents of 3.2 (12th percentile) for basic reading, 4.1 (30th percentile) for reading comprehension, 2.2 (5th percentile) for numerical operations, 5.1 (47th percentile) for mathematical reasoning, 4.0 (21st percentile) for spelling, and 3.9 (25th percentile) for written expression on the Wechsler Individual Achievement Tests. The psychologist opined that the student should remain in a small structured and specialized learning environment to receive the attention he requires in order to remain focused and motivated (Exhibit A).

        I find that petitioners have met their burden of proof with regard to the appropriateness of the services provided by the Lowell School to their son. In doing so, I have considered respondent’s argument that placement in the Lowell School is inconsistent with the requirement that students with disabilities be placed in the least restrictive environment (LRE). Although the restrictiveness of a parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]), the LRE requirement must be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). Given the nature of this student’s needs, I conclude that his placement at the Lowell School is appropriate.

        Petitioners must also show that their claim for an award of tuition reimbursement is supported by equitable considerations. Respondent does not allege that petitioners failed to make their son available on a timely basis for evaluation by the CSE after their referral of the student to the CSE. At the hearing, the Board of Education’s representative argued that petitioners should be barred from receiving tuition reimbursement because they failed to notify the CSE of their intention to place their son in the Lowell School prior to unilaterally enrolling him in that school. The argument appears to be based on a provision in the amended IDEA (20 USC § 1412[a][10][C][iii]). However, the statute does not literally apply to this situation because the student was not enrolled in respondent’s schools when petitioners decided to place him in the Lowell School. I find that petitioners’ claim is supported by equitable considerations.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for their son’s tuition at the Lowell School for the months of January through June 2000, upon petitioners’ submission of proof of payment for such expenditures.