00-095

       Petitioners appeal from an impartial hearing officer’s decision denying their request for an award of tuition reimbursement for the 1999-2000 school year for their daughter, whom they had enrolled in the Eagle Hill School in Greenwich, Connecticut. The appeal must be sustained.

        Petitioners’ daughter had received speech/language therapy, physical therapy, and occupational therapy before the child and her parents moved into respondent’s district in August 1994. The student was classified as multiply disabled by respondent’s Committee on Special Education (CSE), because she was speech impaired and learning disabled. She was placed in a special education kindergarten class in respondent’s Fox Meadow School during the 1994-95 school year. The child initially divided her time between a special education kindergarten class, and a mainstream kindergarten in respondent’s Quaker Ridge School, which was her neighborhood school. She was eventually was placed on a full time basis in the latter class to repeat kindergarten during the 1995-96 school year. During the 1996-97 school year, the child was enrolled in a regular education first grade class, with the assistance of a classroom aide (Exhibit D-9). She also received speech/language therapy and occupational therapy while in first grade (Transcript p. 288).

        For second grade during the 1997-98 school year, respondent’s CSE reportedly recommended that petitioners’ daughter be enrolled in a special education class. The CSE’s recommendation was unacceptable to petitioners, who were then offered an educational program that included a regular education class, with part-time special education for language arts and resource room services (Exhibit D-9). The CSE recommended essentially the same program for the 1998-99 school year (Exhibit D-4). Petitioners chose to enroll their daughter in the Eagle Hill School, a private school for children with learning disabilities for the 1997-98 and 1998-99 school years. The Eagle Hill School has not been approved by the New York State Education Department to provide instruction to children with disabilities. Consequently, respondent cannot, as a matter of law, contract with the Eagle Hill School to instruct petitioners’ daughter (20 USC § 1412[a][10][B][ii]; Section 4402[2][b][2] of the Education Law).

        The child’s classification as multiply disabled is not in dispute. In February 1999, a school psychologist reported that the student had achieved a verbal IQ score of 92, a performance IQ score of 77, and a full scale IQ score of 83. The child’s visual perceptual skills appeared to be stronger than her ability to organize and sequence visual material. Although her long-term memory was good, she had some difficulty recalling and using numbers presented to her verbally. The school psychologist noted that the student appeared to have a weakness in organizational and planning skills that is frequently associated with a weakness in the ability to maintain attention. The child also manifested a weakness in her graphomotor skills (Exhibit D-11).

        The child’s triennial educational evaluation was performed in February 1999. On the Stanford Diagnostic Reading Test, the child achieved a grade equivalent of 1.7 (11th percentile) for total reading. She achieved a grade equivalent of 2.0 (20th percentile) for total math on the Stanford Diagnostic Math Test. On the Test of Written Language, she achieved an overall writing score of 74 (4th percentile). The evaluator reported that the child demonstrated significant deficits in reading decoding, comprehension, math concepts, and written language, all of which were below grade level expectations. She opined that the child would benefit from a placement in a small, structured, integrated setting, with a team of learning specialists who could accommodate her learning style, and recommended use of a multisensory instructional methodology with her (Exhibit D-9).

        On February 1, 1999, a speech/language therapist evaluated the child for the CSE. She reported that the child had achieved an age equivalent score of 7.6 on the Peabody Picture Vocabulary Test, the same score she had achieved when tested two years previously. On the Clinical Evaluations of Language Fundamentals-Revised, the child achieved a receptive language score of 86 and an expressive language score of 80, indicating that she was functioning at least two years below age level. The evaluator reported that the child’s speech pattern was characterized by substitutions and distortions of phoneme sounds, and her speech was slow and labored. She recommended that the child be placed in a small structured language intensive program, and that she receive speech/language therapy in a group twice per week (Exhibit D-10).

        The triennial evaluation also included an occupational therapy evaluation. The evaluator reported that the child continued to have postural difficulties while seated. The evaluator noted that the child appeared to have lost the ability to form letters of appropriate size and rotational placement without cues and highlighting, which she had been able to do at the end of first grade when she had received occupational therapy. The evaluator recommended that the child receive individual occupational therapy once per week , as well as occupational therapy in a group twice per month, to address deficits in posture control, bilateral coordination, and graphomotor skills (Exhibit D- 8).

        The CSE reviewed the results of the child’s triennial on March 3, 1999, and recommended that she be placed in a self-contained special education class with a 12:1+1 child to adult ratio for the balance of the school year (Exhibit D-3). The child, however, remained at the Eagle Hill School for the remainder of the third grade.

        On May 18, 1999, the CSE conducted its annual review. On the IEP for the 1999-2000 school year that resulted from that meeting, the CSE recommended that the child be enrolled in a 12:1+1 special education class for instruction in academic subjects at respondent’s Quaker Ridge School, and be mainstreamed for physical education and other special subjects. The CSE also recommended that petitioners’ daughter receive 30 minutes of speech/language therapy in a group of no more than five students twice per week, and 30 minutes of individual occupational therapy per week, as well as 30 minutes of occupational therapy in a group twice per week. On the child’s IEP, the CSE indicated that she had significant pervasive deficits affecting learning in all academic domains, and that instruction in a large group setting would not be conducive to the types of intervention the child needed. The child’s IEP included a functional behavioral assessment with regard to peer communications and posture in the classroom, and a behavioral intervention plan to address those issues. It also included annual goals for language arts, math, physical education, study skills, social/emotional development, speech/language, and occupational therapy (Exhibit D-2).

        The child’s mother visited a combined 4th/5th-grade special education class at the Quaker Ridge School on June 15, 1999. By letter dated July 8, 1999 to the school district’s director of special education (Exhibit-B), the mother requested permission to visit an 8:1+1 BOCES class that had been discussed during the May 18, 1999 CSE meeting. No response was received to this letter.

        Although the CSE prepared a cover letter dated July 28, 1999 to be sent with a copy of the child’s IEP to petitioners, the IEP and cover letter were not mailed to the parents until September 8, 1999, and received by them on September 9, 1999. The projected start of the child’s program was September 9, 1999, the date that petitioners received her IEP. By then, petitioners had enrolled their child at Eagle Hill for the 1999-2000 school year.

        By letter dated October 11, 1999, the child’s mother informed the school district that she had enrolled her child in the Eagle Hill School for the 1999-2000 school year, and explained her reasons for doing so, including the fact that the IEP had not been received until September 9, 1999. In a November 3, 1999 letter, petitioners requested an impartial hearing to obtain an award of tuition reimbursement for the 1999-2000 school year. The hearing officer appointed by respondent to conduct the hearing withdrew, and the Board of Education appointed a new hearing officer on March 21, 2000. The hearing began on May 4, 2000 and ended on September 8, 2000.

        In his decision dated October 19, 2000, the impartial hearing officer found that respondent had committed a procedural violation by not providing a copy of the child’s IEP to her parents before the start of the 1999-2000 school year. However, he further found that the parents were aware of what the CSE had recommended at the May 18, 1999 CSE meeting, and had not been prejudiced by the late delivery of the child’s IEP. Therefore, the hearing officer determined that respondent’s procedural error had not deprived petitioners’ daughter of a free appropriate public education (FAPE). He also rejected petitioners’ substantive challenge to their daughter’s IEP. The hearing officer determined that respondent had met its burden of proving that it had offered to provide an educational program that met the child’s needs and was in the least restrictive environment (LRE). As a result, he denied petitioners’ request for an award of tuition reimbursement.

        Petitioners contend that the hearing officer erred in rejecting their procedural and substantive challenges to their daughter’s IEP for the 1999-2000 school year. They ask that the hearing officer’s decision be annulled, and that respondent be ordered to pay for the cost of their daughter’s tuition at the Eagle Hill School. Respondent argues that it did in fact offer to provide an appropriate educational program to petitioners’ daughter, and that her placement at the Eagle Hill School was inappropriate.

        A board of education may be required to pay for educational services obtained for a student by her 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 parents’ claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The parents’ failure to select a school that has been approved by the State Education Department to provide services to their child 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 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]).

        Part of a school district’s obligation in complying with the requirements of the Individuals with Disabilities Education Act (20 USC § 1400 et seq.) is the preparation and provision of an IEP for each child with a disability in its jurisdiction (see generally 20 U.S.C. §1414). By definition, the IEP must be a written statement (20 U.S.C. §1414[d][1][A]), and must be in effect at the beginning of each school year (20 U.S.C. §1414[d][2]). A board of education’s failure to provide a child’s parents with a timely IEP may afford a basis for concluding that the board did not offer an appropriate placement to the child (Applications of the Board of Educ. and a Child with a Disability, Appeal Nos. 00-091 and 01-018; Application of a Child with a Disability, Appeal No. 00-084; Application of a Child with a Disability, Appeal No. 99-81). Respondent offers no explanation for its delay of almost four months in providing a copy of the child’s IEP to her parents.

        In this case, the impartial hearing officer concluded that petitioners knew exactly what the recommendation of the CSE was following its meeting on May 18, 1999, citing the mother’s testimony admitting that she left that meeting knowing what the CSE was recommending (Transcript p. 303). I note that the mother testified on direct examination that at the CSE meeting, she did not know the specific 12:1+1 class that had been recommended, and that it was understood that she would also look at a BOCES 8:1+1class that had also been discussed at the meeting (Transcript pp. 303-306, see also Exhibit D-20). On cross-examination, she conceded that she knew the CSE had recommended a "four five special education class" (Transcript p. 317). The child’s mother further conceded that she was aware of the specific class in which her daughter would be enrolled if she chose to have her attend school in Scarsdale (Transcript p. 318).

        I cannot agree with the hearing officer’s conclusion that respondent’s failure to provide a copy of the IEP to petitioners for almost four months was a mere technical defect. State regulation requires that a CSE notify the parents of its recommendations upon completion of an annual review (8 NYCRR 200.4[e][3]). Such notice is to be provided at the time the CSE’s recommendations are sent to the board of education. The record does not reveal whether or when the CSE’s recommendations were sent to respondent.

        The CSE’s recommendations must be reduced to writing in the form of an IEP (former 8 NYCRR 200.4[c], now 8 NYCRR 200.4[d]). An IEP is more than a description of the special education services to be provided to a child. It must also include a description of the child’s present levels of performance, set forth annual goals and short-term objectives and/or benchmarks, describe supplementary aids and services, and describe the testing modifications that the child needs. The appropriateness of the child’s proposed educational program cannot be ascertained by a parent until all this information is set forth in an IEP. I find that respondent’s unexplained delay in providing this information to petitioners was unreasonable, and that consequently petitioners have prevailed with respect to the first of the three criteria for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 99-81).

        Petitioners bear the burden of proof with regard to the appropriateness of the services provided by the Eagle Hill School to their daughter during the 1999-2000 school year (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, 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).

        As noted above, this child has significant deficits in reading decoding, comprehension, math concepts, and written language. She also has weak organizational and planning skills. Respondent’s educational evaluator opined that the child would benefit from a placement in a small, structured, integrated setting in which a multisensory instructional methodology is employed.

        At the hearing, the child’s educational advisor at the Eagle Hill School described the program provided by Eagle Hill during the 1999-2000 school year. Eagle Hill is located in Greenwich, Connecticut, about a 25-minute trip from the child’s home. It has an enrollment of approximately 200 students, all of whom are enrolled in special education classes. During the 1999-2000 school year, petitioners’ daughter attended classes in mathematics, writing, combined science and social studies, and literature. She also participated in a tutorial (Transcript p. 208).

        There were two other students in her math class. The educational advisor testified that the child had finished double-digit multiplication with regrouping, knew her facts automatically through five, and had started dividing one number into two numbers. The child was in a class of seven students meeting once per day in a combined social studies/science course, and a class of six meeting once per day for literature. There were five students in her daily writing class. She was one of two students in the tutorial, which focused upon developing early reading decoding skills. Initially, the child was in the tutorial for one period per day. However, the advisor testified that as the child’s decoding skills developed, the frequency of the class was increased to twice per day to incorporate more reading and writing (Transcript p. 210). The educational advisor also testified that the students were grouped for instructional purposes by needs and levels of performance (Transcript p. 215).

        The child’s IEP indicated that she had some difficulty sustaining relationships, which appears to have been attributable to her limited expressive language skills and limited social skills. The educational advisor from Eagle Hill described some of the inappropriate social responses that the child had exhibited on occasion, and explained that the child had participated in the school’s "I can problem solve" program during the 1998-99 school year. The advisor noted that the child’s speech therapist was working on pragmatic language skills with the child, and that her teachers had a consistent goal of improving her ability to resolve difference with others. She testified that there were weekly meetings with the students to foster development of social skills, and that petitioners’ daughter had also been seeing the school’s psychologist about this subject (Transcript p. 228).

        At the hearing, respondent’s teacher in charge of the special education program compared the results the child had achieved on standardized achievement tests that had been administered to her in September 1999 and May 2000 (Exhibit D-24). Respondent asserted at the hearing that the child did not make progress at the Eagle Hill School, and argued that the private school was therefore an inappropriate placement for her. The Board of Education makes the same argument in this appeal. However, I find that it is difficult to draw any definitive conclusions about the efficacy of the private school’s educational program from the child’s test results.

        While her vocabulary score decreased from the 12th to the 5th percentile from September 1999 to April 2000, the child’s comprehension score increased from the 4th to the 9th percentile over the same period, resulting in a small total decline from the 7th to the 6th percentile in reading. In math, a decline from the 7th to the 3rd percentile was detected in problem solving, while her performance in computation increased from the 3rd to the 6th percentile. Thus, while the child’s performance declined in some areas, based upon her test score performance, she improved in others over the course of the academic year at Eagle Hill. Given this pattern, it is not appropriate to judge the Eagle Hill program based on her performance on the standardized tests. In addition, a review of the child’ scores from August 1997 reveals an inconsistency, in that she scored in the 34th percentile in vocabulary in August 1997, but dropped to the 10th percentile in May 1998 (while still in respondent’s schools). Her score rose to the 60th percentile in September 1998, but dropping to the 5th percentile in April 2000.

        Respondent asserts that the Eagle Hill School is not the least restrictive environment in which the child could have been educated in the 1999-2000 school year. 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.3^rd 96 [2d Cir. 2000]). However, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that those children receive an appropriate education (Briggs v. Board of Educ., 882 F. 2d 688, 692 [2d Cir. 1989]). The record reveals that this child has significant special education needs that affect both her academic performance and ability to interact successfully with others. Under the circumstances, I find that respondent’s assertion is without merit, and that petitioners have met their burden with respect to the second criterion for an award of tuition reimbursement.

        The final criterion for an award of tuition reimbursement is whether the parents’ claim for reimbursement is supported by equitable considerations. In this case, the record shows that the child’s parents were extensively involved in the selection of her educational program, and made an effort to discover what the school district had to offer her. I find that their claim is supported by equitable considerations.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the respondent school district shall reimburse the petitioners for their reasonable expenditures for the child’s tuition at the Eagle Hill School for the 1999-2000 school year, upon presentation by petitioners of proof of such expenditures.