01-033

        Petitioner appeals from the decision of an impartial hearing officer which denied her request for tuition reimbursement for her child’s enrollment in a private school for the 2000-01 school year, notwithstanding the failure by respondent’s Committee on Special Education (CSE) to recommend an appropriate placement for the child. The hearing officer denied tuition reimbursement on the ground that the private placement was not the least restrictive environment for the child. The Board of Education cross-appeals from the hearing officer’s decision regarding the inappropriateness of the CSE’s placement recommendation. The appeal must be sustained, and the cross-appeal must be dismissed.

        Petitioner’s daughter is 11 years old. When the child was 13 months old, she was placed in foster care with her younger brother, and has been receiving special education services since the age of two years. She attended a BOCES program for pre-school. A psychological evaluation conducted during that period indicated that the child, who had a history of behavioral problems, suffered global developmental delays. At some point, she was diagnosed with attention deficit hyperactivity disorder (ADHD), with symptoms of hyperactivity, distractibility and a short attention span, and placed on medication. The record does not indicate the child’s special education classification and placement between pre-school and the 1997-98 school year, but indicates only that during the 1997-98 school year, she was classified as learning disabled and attended a 15:1 special class in the Copiague public schools, with speech/language therapy three times each week. At the end of that school year, it was recommended that the child continue in the 15:1 special class for the following school year because of demonstrated deficits in all academic areas and problems in focusing and attending (Exhibits 8, 24).

        In July 1998, the child and her brother moved to Rochester after they were placed in the foster care of petitioner, who has since adopted them. In their new foster home, the children had frequent nightmares, and were aggressive towards each other. In September 1998, the child’s special education cadre referred her to the CSE for "temporary placement" (Exhibit 2). Both children were temporarily placed in a 15:1 special class in School 50, notwithstanding the demonstrated rivalry between them (Exhibits 6, 33). A speech/language assessment dated September 18, 1998 indicated that the child appeared to have mild to moderate expressive and receptive language delays, and had difficulty attending, following directions, taking turns and discerning between relevant and irrelevant information (Exhibit 3). On September 24, 1998, a private psychiatrist diagnosed the child with ADHD with possible developmental learning disabilities, and recommended that she be evaluated by the CSE for special education placement, and separated from her brother in school (Exhibit 5).

        A psychological evaluation conducted on October 5, 1998 revealed that the child’s cognitive skills were within the average range, but her academic skills continued to fall significantly below expectancy in all areas. On the Woodcock Johnson Tests of Achievement, she tested within the deficient range in the areas of letter-word identification, passage comprehension and writing, and achieved borderline to low average scores in mathematics. Her visual-motor and perceptual skills scored within the average range and her auditory perceptual skills were within normal limits. However, the child scored low in the areas of visual-spatial relationships and visual-sequential memory. The psychologist noted that the child’s difficulty with distractibility and attention span impacted upon her ability to learn, and observed that she worked best in small groups with minimal distractions. The psychologist concluded that, although the girl presented with some characteristics of learning disabled, her symptoms of distractibility and short attention span appeared to be the primary factors that affected her ability to focus, process and retain information at an expected level within the classroom. Consequently, the psychologist recommended that the child be classified as other health impaired, while noting that her current classroom ratio of 15:1 appeared to be meeting the child’s educational, management and behavioral needs (Exhibit 8).

        Noting that her reading and writing skills were significantly delayed, the CSE classified the child as other health impaired on October 19, 1998. It recommended that she be placed in a 15:1 classroom, and receive speech/language therapy and social work counseling (Exhibits 10, 12). Although the record does not include a copy of the individualized education program (IEP) generated from that meeting, the minutes of the meeting indicate that the child’s visual-spatial skills development would be monitored, particularly in reading, and that speech/language therapy would be provided based on the child’s needs in such areas as word-finding, social communication and problem-solving (Exhibit 10).

        The child’s report card for the 1998-99 school year indicated that she had made satisfactory progress in her academic subjects and on her IEP goals and objectives, but that she consistently functioned below grade level in reading, writing and mathematics. Her teacher recommended that the child continue reading and working on word cards during the summer (Exhibit 14).

        Petitioner’s daughter was enrolled in the Title I Summer Enrichment Tutorial Program at the end of the 1998-99 school year. However, the progress reports dated July 21, 1999 and August 9, 1999 indicated that the child had experienced extreme difficulty with all aspects of the academic program, despite the fact that many individuals had worked with her on a 1:1 basis (Exhibits 2, 15, 16).

        On November 17, 1999, the child’s teacher requested CSE intervention because the girl had been experiencing a great deal of difficulty academically, and had problems in following the simplest of directions (Exhibit 19). Thereafter, on January 10, 2000, petitioner referred her daughter to the CSE. In anticipation of the CSE meeting scheduled for February 29, 2000, the child was re-evaluated and re-assessed. On January 10, 2000, the child’s teacher reported that the child was in a classroom of 14 students who had varied learning disabilities and many significant behavioral concerns. The teacher reported that the child was friendly and well adjusted in the classroom, but required a great deal of supervision to monitor her ability to stay on task and participate in class activities. The child’s overall academic progress was being affected by her inattentiveness and inability to process information and follow through on assignments. The teacher reported that she needed frequent reminders to stay on task, shortened and more manageable assignments, and materials presented in varied formats (Exhibits 3f, 22).

        During a psychological evaluation conducted on February 14 and 15, 2000, several standardized tests were administered to the child. The Woodcock Johnson tests of achievement and cognitive ability indicated that the child was functioning in the average range. Her overall spatial skills were relatively strong, but a relative weakness was noted in her nonverbal reasoning skills. Auditory processing deficits were also detected in her ability to identify component sounds in words, but she was better able to identify a word when it was broken up into sound blends. Academically, the child functioned at a 1.6 grade level in reading and written language, and at a 3.0 grade level in mathematics. Her mathematical application and calculation skills were reported to be evenly developed and an area of strength. Her decoding and comprehension skills were weak. She struggled with spelling and with using picture and contextual cues, and evidenced a long latency during and between responses. The psychologist noted that, although the child reportedly was not a behavior problem in school, her ability to stay focused caused disruptions in class. The child’s drawings on the Ogden Scoring System projected possible feelings of insecurity and inadequacy, as well as impulsive tendencies. The psychologist concluded that the child’s placement in a 15:1 special class was not the most appropriate for meeting her needs in the classroom. She recommended that the CSE consider a more restrictive placement, such as an 8:1+1 setting, which would more appropriately address the child’s need for constant adult attention while decreasing her off-task and inattentive behaviors (Exhibits 3d, 24, 25).

        A speech/language assessment was conducted on February 16, 2000. The evaluator observed that the child appeared to be a motivated, multisensory learner with average cognitive linguistic functioning, who benefited from hands-on activities and concrete presentation and repetitions. She appeared to work best in small groups and did not manifest behavioral problems while receiving speech/language therapy. However, the child continued to have difficulty in all academic areas, especially reading and language arts, and with following through on tasks, staying focused, and paying attention to her class lessons. Based on updated testing and observation, the evaluator noted that, compared to her peers, the child was now functioning at age expectations. Her speech and language scores had improved greatly since her last complete evaluation in October 1998, and she had made great gains in speech/language therapy. The evaluator concluded that the child no longer qualified for speech/language therapy, but noted that the district might consider providing educationally related support services to her until the end of the school year (Exhibits 3i, 27).

        A Pupil Personnel Services Team report dated February 16, 2000 indicated that the child’s cognitive functioning was in the average range, and that her short-term visual memory and perceptual organizational skills were relatively strong, but that she had deficits in her nonverbal reasoning and auditory processing skills. She was deficient in her reading and language skills but had demonstrated strengths in mathematical computation and application. The child had adjusted well to her current classroom setting, but could be antagonistic towards the other students, and sought excessive attention from the adults and her peers. The report observed that the child needed to develop independent work skills, as well as strategies to deal with distractions in the classroom. The Pupil Personnel Services Team recommended that the child remain classified as other health impaired, but that she be moved to an 8:1+1 classroom setting because of her significant management needs (Exhibits 3b, 28).

        A social worker observed the child in her classroom setting on February 17, 2000. She noted that the child frequently talked while the teacher was talking, appeared easily confused by the teacher’s directions, was easily distracted by unrelated events inside the classroom, had difficulty staying focused, had to be constantly refocused to the task at hand, and required a tremendous amount of individual attention from the teacher. The social worker commented that the child had increased her negative attention-seeking behaviors, and that she accepted little responsibility for her actions (Exhibits 3g, 31).

        The CSE met on February 28, 2000, but adjourned without making a recommendation, pending its receipt of a functional behavioral assessment and plan for the child (Exhibit 34). On a Functional Assessment/Behavior Intervention Worksheet, dated March 1, 2000, the child’s teacher indicated that the two target behaviors that were most interfering with the child’s functioning in the classroom were her lack of positive response to following directions and her inappropriate attention-seeking behaviors. She noted that the child was often preoccupied with the actions of the other students, even when directed by the teacher to do her own work (Exhibit 3j). A functional behavior plan prepared on that date provided that the child would verbally repeat directions given by the teacher, would commence work within five minutes of receiving an assignment, and, with reminders from the teacher, would refrain from calling out to the teacher at inappropriate times during the school day. An evaluation of the plan three weeks later indicated that the child had made some progress with following directions, had completed more work than she had done before, but that she still called out to the teacher at inappropriate times. The evaluator noted that the plan needed to be enforced for a longer period before its effectiveness could be evaluated (Exhibit 35).

        On March 22, 2000, the CSE reconvened to review the child’s current program (Exhibits 2d, 40). The CSE continued its classification of the child as other health impaired, and recommended that the child remain in a 12-month 15:1 self-contained class. The CSE recommended that the child’s speech/language therapy be discontinued, but indicated that the child should receive counseling as a related service once per month. According to the minutes of the meeting, the CSE discussed the fact that the child had been receiving additional reading instruction from a student teacher and that, as a result, her ability to remain on a given task until completion had improved. It noted further that the speech pathologist who had been working with the child since September 1999 had been working on specific skills within the reading program in which the child was being instructed. Although it acknowledged petitioner’s concerns regarding the child’s 15:1 placement and her desire to have the child attend a private school known as Hope Hall, the CSE determined that the child was progressing academically and meeting the goals and objectives on her IEP. It concluded that the child’s 15:1 class was the least restrictive environment for her (Exhibits 2d, 40).

        By notice dated April 4, 2000, respondent informed petitioner that her child would be placed in a 15:1 special class at School No. 41 on April 10, 2000 (Exhibits 44b, 45). On March 22, 2000, petitioner requested an impartial hearing to review her child’s program, and, on August 22, 2000, she officially notified the district that she intended to enroll the child at Hope Hall and seek reimbursement (Exhibits 2g, 41, 60). Thereafter, petitioner enrolled the child in the private school for the 2000-01 school year.

        On July 6, 2000, Dr. James M. Wallace, a psychiatrist with the Unity Health System, prepared a progress report on the child. Dr. Wallace opined that the child had a fragile temperament, ADHD, learning problems and delays, and that she struggled with her academics, behavior and relationships. The doctor opined that the child needed a program to manage her tendency to experience sensory overload, and added that he knew of no program in the district that would meet that requirement (Exhibit 57).

        An end of year report card for the 1999-2000 school year at School No. 41 shows that for the four grading quarters, the child had performed below grade level and below average in reading, writing, listening/speaking, spelling and mathematics, but she had received mostly B grades in science, social studies, music, physical education and art (Exhibit 44). The teacher noted that, in the first marking period, the child struggled with her academics and often appeared to be distracted and disconnected from the rest of the class. In the second marking period, she had shown some improvement in completing her class assignments but still had difficulty focusing and staying on task. In the third and fourth marking periods, petitioner’s daughter reportedly made noticeable progress in maintaining focus and completing her assignments (Exhibit 44).

        By letter dated July 19, 2000, the school district notified petitioner that, pursuant to the March 22, 2000 CSE review, her child would be placed in a 15:1 special education class at School No. 41 as of September 6, 2000 (Exhibit 59). The impartial hearing that petitioner requested in March 2000 was originally scheduled for May 16, 2000, but, at the consent of the parties, was not held until October 13, 2000 (Exhibits 1a-1f).

        In a decision dated October 13, 2000, the hearing officer ruled that respondent had failed to develop a valid IEP for the 1999-2000 school year until March 2000, and that the class in which the child was enrolled during that school year may not have been appropriate for her because the needs of the children in the class differed significantly. Noting that the March 2000 IEP indicated that the next annual review would take place in March 2001, the hearing officer found that the CSE had been remiss in not conducting an annual review and preparing an IEP for the 2000-01 school year. He also found that the CSE did not have sufficiently current data to group the child for instructional purposes during the 2000-01 school year. Nevertheless, the hearing officer denied petitioner’s request for tuition reimbursement on the ground that the child’s placement in Hope Hall for the 2000-01 school year was inconsistent with the requirement that children with disabilities be educated in the least restrictive environment, because all of the children in that facility were disabled. The hearing officer ordered the district to reevaluate the child, and develop a new IEP for her.

        Petitioner challenges the hearing officer’s determination that she was not entitled to be reimbursed for her expenditures for the child’s tuition at Hope Hall during the 2000-01 school year. A board of education may be required to reimburse parents for their expenditures for private special education services, 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y. 1987]). The fact that the facility selected by the parents to provide special education services to their child is not approved as a school for children with disabilities by the State Education Department (as was the case here) is not dispositive of the parents’ claim for tuition reimbursement (Florence County School District Four, et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). Therefore, I shall first consider respondent’s cross-appeal which, if successful, would render petitioner’s appeal moot. To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Educ. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550[b]; 8 NYCRR 200.6[a][1]. An appropriate program begins with an IEP which accurately reflects the results of the evaluation to identify the child’s needs, provides for the use of appropriate special education services to address the child’s special education needs, and establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        The initial question is whether the hearing officer correctly determined that there was no IEP for the 2000-01 school year. Respondent has not directly addressed the question, but appears to rely upon the IEP that its CSE prepared on March 22, 2000. There is no other IEP for the 2000-01 school year in the record. On the March 22, 2000 IEP, the CSE specifically noted that it was developed for the child’s 1999-2000 school year, with a starting date of September 8, 1999, and that the next annual review would take place on March 22, 2001. The March 22, 2000 IEP also indicated that the child would participate in the fourth grade curriculum during the 2000-01 school year, "if the academic requirements are met" (Exhibits 2f, 40). Thus, it appears that the CSE intended that this IEP would cover a portion of the 1999-2000 school year, as well as part of the 2000-01 school year. Indeed, the subsequent placement notification to petitioner in July 2000 indicated as much, notwithstanding the notation on the IEP that it was for the 1999-2000 school year (Exhibit 59).

        Federal regulations require that an IEP be in effect at the beginning of the school year for each child with a disability (34 CFR § 300.342[a]), and that each IEP be reviewed not less than annually (34 CFR § 300.343[c][1]). The IEP in question could have been in effect at the beginning of the 2000-01 school year. However, the IEP indicates that the child would be enrolled in a 15:1 special education class, while respondent concedes in its answer that the building team for School No. 41 decided to disband the 15:1 class and move to an inclusion class prior to the start of the 2000-01 school year. Petitioner alleges, and respondent agrees, that an inclusion class was never discussed at the March 22, 2000 CSE meeting. At the hearing, respondent’s first witness testified that there would be 12 special education and 13 regular education students, with a regular education teacher, a special education teacher, and a full-time aide in the inclusion class at School No. 41. The record indicates that this student was easily distracted. In February 2000, respondent’s Pupil Personnel Services Team had recommended an 8:1+1 placement for the child. The CSE recommended placement in a 15:1 class, which was in fact unavailable in the fall of 2000. A placement recommendation that cannot be implemented is not an appropriate placement (Application of a Child with a Disability, Appeal No. 99-24; Application of a Child with a Disability, Appeal No. 92-33). Accordingly, I must find that respondent has not established that it had offered to provide an appropriate educational program to the child, and that its cross-appeal should be dismissed.

        Having found that respondent failed to meet its burden of proving the appropriateness of the program it recommended for the 2000-01 school year, I now turn to the second Burlingtoncriterion, namely, whether the services selected by the parents were appropriate. Petitioner bears the burden of proving the appropriateness of the services provided by Hope Hall during the 2000-01 school year (Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet her burden, petitioner must show that those services were "proper under the [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra, at 370), i.e., that the private school offered an instructional program which met the child’s special education needs (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 child (Application of a Child with a Disability, Appeal No. 94-20).

        The relevant question is whether the services provided to the child at Hope Hall addressed the child’s identified special education needs (Application of a Child with a Disability, Appeal No. 95-61). The executive director and principal of Hope Hall testified at the hearing that the school’s students all have central processing problems and many have ADHD (Transcript p. 176). She further testified that the students receive the same instruction as regular education students do in terms of the State curriculum, but that special, multisensory instruction is provided in the school’s "Mastery in Learning" program which she developed for use throughout the curriculum in Hope Hall. The executive director described the program as breaking down the State curriculum into small sequential learning tasks, and using specialized multisensory techniques to enable the children to retain the information presented to them. Each child is immediately evaluated, and "instructional correctives" are immediately applied, where necessary, to ensure that the child has achieved at least an eighty-percent level of mastery at each step. Petitioner’s child was enrolled in a class of eight students, with one more student expected to join the class.

        The executive director, who did not teach petitioner’s child directly, but worked with the child’s class for 15 minutes each day in moral and character development, testified about the social development of the child at Hope Hall. She reported that the child had developed strong friendships with the other students and was exhibiting leadership qualities in her class. The students had organized a dance club in which petitioner’s daughter assumed a leadership role. The director, however, offered no information regarding the child’s academic progress at Hope Hall.

        A child’s academic success is clearly one measure of the appropriateness of the educational services that the child’s parents have unilaterally obtained for her (Capistrano Unified School District v. Wartenberg, 59 F.3d 884 [9th Cir. 1995]). However, this child had only attended Hope Hall for a few weeks when the hearing in this matter was held. This child’s special education needs arise out of her inattentiveness and processing difficulties, as well as certain social and behavioral concerns. The executive director testified that the child’s IEP objectives would be worked upon and probably be exceeded at the private school. As described by the executive director, the Hope Hall program would appear to be appropriate to meet this child’s needs.

        The hearing officer found that Hope Hall was too restrictive a placement for petitioner’s daughter. I cannot agree with his finding. 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]). However, I must note that the CSE had recommended a restrictive placement for this child. Given the student’s attention and processing deficits, I find that her placement in Hope Hall does not contravene the requirement that children with disabilities be placed in the least restrictive environment.

        The third and final criterion for an award of tuition reimbursement is that the parent’s claim for tuition must be supported by equitable considerations. There is nothing in the record to indicate that petitioner did not cooperate with the CSE at all times. She promptly notified the CSE of her disagreement with its recommendation upon receipt of the July 19, 2000 letter notifying her of her daughter’s recommended placement for the 2000-01 school year.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her daughter’s tuition at Hope Hall for the 2000-01 school year, upon petitioner’s submission of proof of payment for such expenditures.