01-028

       Petitioners appeal from an impartial hearing officer’s decision denying their request for an award of tuition reimbursement for their daughter’s attendance at the Lowell School during the 2000-01 school year. The hearing officer denied their request because he found that respondent had offered to provide an appropriate education to the student. The appeal must be sustained.

        At the outset, I will address respondent’s request that I excuse its delay in answering the petition and accept its answer. The Board of Education requested and received an extension of time to serve its answer until June 18, 2001. However, it did not serve its answer until August 14, 2001. Respondent requests that its almost two-month delay be excused because its attorney was assigned a high number of cases to prepare. Petitioners oppose this request. I find that respondent has not established a good cause for its delay, and I will not accept its answer (Application of a Child with a Disability, Appeal No. 00-017).

        Petitioners’ daughter was ten years old when the hearing in this proceeding was held in January of 2001. She has been classified as learning disabled by respondent’s Committee on Special Education (CSE). The child had been referred to the CSE while in the first grade at P.S. 200 in 1997, because of teacher concerns about her reading skills and ability to follow directions (Exhibit 8). When evaluated in 1997, the child achieved a verbal IQ score of 88, a performance IQ score of 91, and a full-scale IQ score of 87. Her visual motor skills were reported to be above age level expectation (Exhibit 9). An educational evaluator reported that the child’s speech/language skills were below grade level, while her broad reading, math and writing skills were found to be at the low end of the average range (Exhibit 8). There is no dispute about her classification as learning disabled. The child reportedly began receiving resource room services in the middle of the second grade during the 1997-98 school year, and speech/language therapy at the beginning of third grade.

        In the summer of 1999, the child was privately evaluated by a psychologist, who reported that the child had achieved a verbal IQ score of 73, a performance IQ score of 74, and a full scale IQ score of 71, all of which were in the borderline range (Exhibit F). An educator, who privately evaluated petitioners’ daughter reported that the child had achieved grade equivalents (and standard scores) of 2.9 (90) for letter-word identification, 2.8 (92) for word attack, 3.6 (98) for passage comprehension, 2.8 (81) for math calculation, 3.0 (91) for applied problems, and 2.0 (81) for writing samples on the Woodcock-Johnson Psychoeducational Battery - Revised. She opined that language processing was an area of weakness, and that the child had significant weaknesses in auditory discrimination and conceptualization. The educator recommended that the CSE consider increasing the child’s resource room service to two periods per day, and that petitioners consider supplementing school services with private tutoring by a learning disabilities specialist (Exhibit E). The child was also privately evaluated by a speech/language pathologist, who reported that the child had moderate delays in her receptive and expressive language skills (Exhibit D).

        While in the fourth grade at P.S. 200 during the 1999-2000 school year, the child received one hour of resource room services per day. The record does not reveal the amount of speech/language therapy she received that year. At the end of the second marking period, her teacher reported that the child was experiencing considerable difficulty in full class lessons, and that she did much better in small groups or on a one-on-one basis (Exhibit G). The teacher made a similar comment on the child’s report card for the third marking period. A literacy aide reportedly worked with the child on a regular basis. The child’s performance in math was unsatisfactory during the school year. At the hearing in this proceeding, the fourth grade teacher testified that the child functioned academically at the lower end of the class, with problems in reading comprehension, writing and organizing her thoughts, and abstract reasoning in math. Petitioners were reportedly notified that their child was at risk of not meeting the standards for promotion to the fifth grade, but they were subsequently advised by the Principal of P.S. 200 that those standards had been waived for the child because of her specific learning disability (Exhibit H).

        Petitioners asked that their child be reevaluated by the CSE. In July 2000, the child was evaluated by a school psychologist, who reported that the child had achieved a verbal IQ score of 91, a performance IQ score of 87, and a full-scale IQ score of 88. The child’s language related skills were described as stronger than other cognitive skills, and her quantitative skills were described as uneven. Her visual perceptual skills were below age expectancy. The child’s short-term auditory and visual memory was markedly delayed. The school psychologist described the child as socially well related. He noted that the child might lack independent learning strategies, and needed a multi-sensory instructional approach. The school psychologist also suggested that an ophthalmologic examination be performed (Exhibit 6).

        An educational evaluator for the CSE reported that an informal assessment of the child’s oral expressive language skills indicated that they were well developed for her age, but that her written expressive skills were in the below average range for the fourth grade. On the Kaufman Test of Educational Achievement, the child achieved grade equivalents of 3.6 for decoding, 3.3 for reading comprehension, 4.4 for spelling, 3.6 for math computation, and 2.4 for math applications. Her listening comprehension was reported to be at the upper second grade level. The evaluator noted that one could " present an argument for a small class to provide greater support and assistance" to the child (Exhibit 4).

        A speech/language pathologist reported that the child spoke in complete sentences that were grammatically correct and syntactically varied. However, the child had an auditory processing deficit that meant she had not mastered an understanding of age-appropriate abstract concepts, had difficulty processing and interpreting sentences having abstract concepts and including multi-step oral directions, and that her auditory memory and associative skills were below level. She noted that the child’s current level of speech/language skills could adversely affect her performance throughout all areas of the curriculum (Exhibit 7).

        The CSE met on August 9, 2000 to discuss the program to be offered petitioners’ daughter for her then upcoming fifth grade school year. Petitioners informed the CSE that their daughter needed a smaller group setting because she had foundered in the fourth grade whenever she returned from resource room to her regular classroom. They noted that the girl had academic difficulty in the fourth grade, notwithstanding the services provided by respondent and the private tutoring that they had obtained for her. For the 2000-01 school year, the CSE recommended that the child be enrolled in a regular education fifth grade class and receive five periods of resource room services per week, two periods of direct and one period of indirect consultant teacher services per week, and 30 minutes of speech/language therapy in a group twice per week. The individualized education program (IEP) that the CSE prepared for the student included the testing modifications of extended time limits and separate locations (Exhibit 3).

        Petitioners rejected the proposed educational placement for their daughter, and enrolled her in the Lowell School (Lowell) for the 2000-01 school year. The State Education Department has approved Lowell as a school for children with disabilities. Petitioners requested that an impartial hearing be held for the purpose of obtaining an award of tuition reimbursement. At the hearing held before the hearing officer on January 2, 2001, respondent claimed that it had offered to provide an appropriate educational program to the student. Petitioners asserted that their daughter needed more intensive special education services to benefit from her instructional program.

        In a decision that was rendered on March 6, 2001, the hearing officer noted that 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. Dept. of Educ., 471 U.S. 359 [1985]). He also noted that 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]).

        The hearing officer found that respondent had met its burden of proof because of evidence that the child had met the criteria for promotion to the fifth grade with the assistance of resource room services and speech/language therapy. He also found that the child could function well on objective tests, notwithstanding her disability. Addressing petitioners’ concern that their daughter needed to receive small group instruction, the hearing officer found that the proposed program included adults in sufficient numbers to allow for small group instruction for part of the school day. Finally, he indicated that the student was socially well adjusted to the public school setting.

        Petitioners challenge the CSE’s recommendations for the 2000-01 school year on procedural and substantive grounds. They contend that the CSE should have obtained the results of an ophthalmologic examination, as their school psychologist had suggested before recommending an educational program for the student. Petitioners also argue that the child’s resource room teacher, who participated by telephone in the CSE meeting, did not have the files and evaluative information that the other CSE members had with them at the meeting. They assert that their daughter’s IEP annual goals were not prepared at the CSE meeting or in consultation with them. With respect to the substance of the CSE’s recommendations, petitioners contend that the CSE failed to recommend adequate services for their daughter. They assert that the child made little or no academic gain during the 1999-2000 school year, and that her emotional state worsened as the year went on.

        A CSE must adequately evaluate a student to identify the nature and extent of the child’s disability, so that it can ascertain how the disability affects the student’s involvement and progress in the regular education curriculum and prepare a program that will address the student’s educational needs. At the hearing, the school psychologist member of the CSE testified that her colleague’s suggestion that there be an ophthalmologic examination had been addressed to petitioners. However, the evaluation had been done for the benefit of the CSE. In his report the evaluating school psychologist reported that the child had difficulty with visual perceptual organization, numerical sequencing, and short-term visual memory. I find that there was an adequate basis to believe that the suggested ophthalmologic examination would have been appropriate, and that the CSE should have obtained one before making its recommendations.

        The issue of a CSE member participating by telephone in a CSE meeting has been addressed in a number of recent decisions (e.g. Application of a Child with a Disability, Appeal No. 00-043; Application of the Board of Educ., Appeal No. 00-069). The State Education Department has advised school districts that individuals who participate by teleconference must have access to the same material available to all others involved in the process. In this instance, the child’s resource room teacher admitted at the hearing that she did not have a copy of the child’s file with her when she participated by telephone. Under the circumstances, I must find the CSE’s recommendations must also be annulled for this reason.

        Although I need not reach the issue of parental participation in formulating a child’s IEP goals, I will point out for the benefit of the parties that draft goals may be prepared in advance of a CSE meeting, so long as the parents have an opportunity to discuss those goals with the CSE. The record is unclear as to what happened in this instance.

        I have also considered petitioners’ substantive objection to their child’s proposed IEP, i.e., that the CSE failed to recommend adequate services to provide the child with a free appropriate education (20 U.S.C. § 1412[a][1][A]). A free appropriate public education (FAPE) must include special education and related services that are tailored to meet the unique needs of the particular child and must be reasonably calculated to enable the child to receive educational benefits (Walczak v. Florida Union Free School District, 142 F.3d 119 [2d Cir. 1998]).

        The record shows that petitioners’ daughter had a variety of educational needs to be addressed by special education services. It is evident from the various evaluation reports that this child has significant language processing difficulties that impair her ability to benefit from regular education curriculum instruction. As she proceeds through the upper grades, the demands upon her ability to understand multi-step instructions by her teachers and more advanced concepts in the curriculum will undoubtedly increase. The issue that I must determine is whether the special education services recommended by the CSE would have adequately equipped the student to deal with the increasingly sophisticated language requirements of the fifth grade during the 2000-01 school year.

        Since the recommended program for the fifth grade was similar to the program provided to the child during fourth grade, I have considered her achievement test scores from before and after the fourth grade. I note that there was some progress in one area of math skill, but a decline in another area. Although her reading decoding and comprehension grade equivalents improved modestly, there was a significant decline in her reading comprehension percentile score (Exhibits 4 and E). The hearing officer found that there was evidence that the child had met the criteria for promotion to the fifth grade. However, I must note that his finding is inconsistent with the letter the Principal of P.S. 200 sent to petitioners in May 2000 indicating that the criteria were being waived for their daughter (Exhibit H). In addition I must point out that while advancement in grade is an important consideration in determining the adequacy of a child’s special education program, it is not the sole determinant (Board of Educ. v. Rowley, 458 U.S.176 [1982]).

        Respondent’s fifth grade program would have maintained petitioners’ daughter in essentially the same program as before, with the one modification of a consultant teacher for two periods per week of direct services and for one period per week of indirect services. Respondent’s witnesses testified that the CSE was attempting to maintain petitioners’ daughter at her then current levels of performance. However, respondent’s school psychologist witness conceded that petitioners’ daughter was capable of performing at a higher level. Moreover, the witness acknowledged that the child had depended, at least in part, on the private tutoring she received while in the fourth grade. A CSE must propose a program that does not rely upon privately obtained services to provide an adequate level of support to a child with a disability.

        Contrary to the hearing officer’s finding that a sufficient number of adults would provide petitioners’ daughter with small group instruction for part of her day in the 2000-01 school year, the regular classroom teacher would have been the only adult in the classroom for one-half of each day, except for the two periods per week when the consultant teacher was present to provide direct services. I am not persuaded that the limited amount of small group instruction that would have been available in the regular education classroom would have been sufficient to meet all of the child’s needs in the regular education setting. I am compelled to find that respondent has not met its burden of proving that it had offered to provide an appropriate program to petitioners’ daughter.

        Petitioners bear the burden of proving the appropriateness of the services provided by Lowell to their daughter during the 2000-01 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education, Appeal No. 94-34). In order to meet that burden, they must show that the private school offered an educational program that met the student’s special education needs (Burlington supra; Application of a Child with a Disability, Appeal No. 94-29).

        Based upon the information before me, I find that the Lowell program met the student’s educational needs for the 2000-01 school year. Petitioners’ daughter needed the additional time and attention that could be given to her in the smaller classroom setting that Lowell offered. At Lowell, the child to adult ratio is 12:1+1. Instruction was provided in the fifth grade curriculum. The students in the child’s class were within a two-year age range and three-year functional range. A mentor teacher was present in the classroom two times per week for half a day. Services were being provided to petitioners’ daughter in the classroom, except for individualized reading instruction from a reading specialist provided twice a week as a pullout service. The child’s instructional group for math consisted of four students. With this staffing pattern, she received much attention and "hands-on, visual" based learning at Lowell.

        Since petitioners’ daughter began attending Lowell before the hearing was held, it is possible to ascertain how she actually performed there between the start of school in September 2000 and the hearing in January 2001. Lowell’s clinical coordinator described how petitioners’ daughter had acquired learned strategies and otherwise benefited from this experience. She had improved academically at the Lowell School in the areas of writing skills and organizational skills, even though no private tutor was provided to this student during her attendance at Lowell. The coordinator testified that petitioners’ daughter was dependent on supplementary aids when she started at Lowell, but she had become more independent in this environment and more willing to raise her hand in class and attempt to answer a question (Transcript pp. 69-70).

        The child’s mother testified that doing homework was no longer a concern for the child. The mother, who is a teacher, testified that her daughter had demonstrated a tremendous change in understanding concepts. She also testified that her child no longer came home from school angry and overwhelmed, and that attending Lowell had improved her self-image. The child has adjusted to her new school, and has made friends with her new classmates and has maintained her friends in the neighborhood.

        Lowell serves children who have been classified as learning disabled or speech impaired (Transcript p. 72). Although parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (LRE), it is nevertheless a factor to be considered in determining whether to award tuition reimbursement (M.S. v. Board of Educ., 231 F. 3d 96 [2d Cir. 2000]). This child was previously educated in a regular education setting. However, I find that she requires a more restrictive setting to provide her with the assistance she needs to benefit from instruction in the regular education curriculum. Lowell provides her with that opportunity. Therefore, I find that her placement in that school is consistent with the LRE requirement.

        I have also considered whether equitable considerations support petitioners’ claim for an award of tuition reimbursement. Petitioners brought their concerns and request to the attention of the CSE, and there is no evidence that they failed to cooperate with the CSE in this process. I find that equitable considerations support petitioners’ claim for an award of tuition reimbursement, and that petitioners are entitled to be reimbursed for the cost of their daughter’s tuition at Lowell for the 2000-01 school year.

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 expenditure for their child’s tuition at the Lowell School during the 2000-01 school year, upon petitioners’ submission of proof of payment for such expenditures.