01-053

       Petitioners appeal from an impartial hearing officer’s decision denying their request for reimbursement for the cost of an educational program that they had created for their son at Yeshiva Tiferes Yisroel in Brooklyn, New York during the 2000-01 school year. The appeal must be dismissed.

        Initially, I note that respondent asks me to excuse its delay of one business day beyond the extended date that it had been given to serve its answer to the petition. I will exercise my discretion and accept respondent’s answer, in view of its brief delay (Application of a Child with a Disability, Appeal No. 00-006).

        Petitioners’ son was 12 years old at the start of the 2000-01 school year. He had been classified as speech impaired in June 1993 by respondent’s Committee on Special Education (CSE). In October 1995, his classification was changed to emotionally disturbed, and in July 1998, the CSE recommended that he be classified as multiply disabled. At its annual review of the student in June 2000, the CSE recommended that petitioners’ son be classified as mentally retarded. There is no dispute in this proceeding about the appropriateness of his present classification.

        Petitioners’ son was in a private preschool when he was initially referred to the CSE in 1993. He has remained in private schools since that time, except for the 1998-99 school year, when he received instruction at home as an interim placement (Transcript pp. 18-20). Respondent’s CSE had apparently recommended a nonpublic school placement for him since 1997 (Transcript pp. 23-24). In September 1999, the student began attending school at Yeshiva Tiferes Yisroel, where he was individually instructed in a program that petitioners had arranged for him, but reportedly participated in some non-academic activities with other students. The parents requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for the 1999-2000 school year. The CSE had recommended that the student be placed in an approved private school during that school year, but was unable to locate a placement in an approved private school for him. Accordingly, the CSE agreed to petitioners’ request for tuition reimbursement (Transcript pp. 16-21). During the 1999-2000 school year, respondent continued to provide home instruction to the student in addition to paying for his private school tuition, reportedly by mistake (Transcript p. 20).

        In the spring of 2000, the CSE updated its evaluations of the student. The evaluation report noted that petitioners’ son achieved a verbal IQ score of 46, a performance IQ score of 46, and a full scale IQ score of 40 on the Wechsler Intelligence Scale for Children-III (WISC-III), indicating that he was functioning in the moderately mentally retarded range. Many of his verbal responses were echolalic. The examining psychologist noted that the test results were consistent with those which the student had achieved in previous evaluations. She described petitioners’ son as a friendly young man whose social skills, ability to attend, act, think, and perform independently appeared to be at a very immature level (Exhibit 4).

        An educational evaluator reported in April 2000 that the student could name most letters that were shown to him, but did not appear to have developed sight reading skills. All of the student’s academic skills were found to be at the beginning kindergarten level. The evaluator also reported that the student had tried to interact, but was very immature and his conversation was somewhat irrelevant (Exhibit 7). A structured observation of the student at his private school was conducted by the CSE in June 2000. The observer noted that petitioners’ son had difficulty with language comprehension, and that he frequently manifested involuntary hand movement in class. The student participated enthusiastically in recess, and his interactions with others were mostly appropriate, but there was little verbal interaction (Exhibit 9).

        On June 27, 2000, the CSE recommended that the student be enrolled in respondent’s Specialized Instructional Environment-VI (SIE-VI) program at P.S. 36, with 30 minutes of individual speech/language therapy five times per week, 30 minutes of individual occupational therapy five times per week, 30 minutes of individual counseling twice per week, and 30 minutes of individual physical therapy three times per week, during the 2000-01 school year (Exhibit 10). The individualized education program (IEP) that the CSE prepared for the student included a behavior management plan for the purpose of improving his ability to remain on task. On July 6, 2000, petitioners were sent a final notice of recommendation indicating that a placement would be available in P.S. 36.

        Petitioners did not accept the program offered by respondent, and chose to have their son continue in the individual program they had created for him at Yeshiva Tiferes Yisroel during the 2000-01 school year. The Board of Education provided speech/language therapy, physical therapy and occupational therapy to the student at the school. It also continued to provide home instruction to him for at least part of the school year (Transcript p. 25). On February 26, 2001, petitioners requested an impartial hearing to obtain an award of tuition reimbursement. A hearing was held on April 3 and April 23, 2001.

        In a decision dated May 25, 2001, the impartial hearing officer found that the recommended SIE-VI program with its emphasis on life skills instruction would have been appropriate for petitioners’ son. However, she further found that the student’s management needs were too severe to be successfully educated within a class with a 12:1+2 child to adult ratio, and that his proposed behavior management plan did not adequately address his behavioral difficulties, which included aggressive and self-stimulatory behaviors. The hearing officer ordered the CSE to perform a complete functional behavioral assessment of the student. The hearing officer also found that placement in the proposed class could not be sustained because the age range of the students in the class exceeded three years (8 NYCRR 200.6[g][5]). She also noted that physical therapy and occupational therapy were not available at P.S. 36 during the 2000-01 school year.

        The hearing officer denied the petitioners’ request for tuition reimbursement because she found that they had failed to meet their burden of showing that the private school had provided an educational program that met their son’s special education needs. In particular, she noted that the record did not support petitioners’ claim that their son needed a full time program of applied behavioral analysis (ABA), and that in any event, it was not clear that he had in fact received such a program in the private school. The hearing officer also held that petitioners were not eligible for an award of tuition reimbursement because there was no evidence that they had paid any tuition, or were obligated to pay any tuition, for the school year in question. She directed the Board of Education to provide home instruction and all of the related services indicated on the June 27, 2000 IEP to the student until the CSE developed an appropriate program for him. With the parties’ agreement, she also directed respondent to pay for an appropriate special education summer camp for the student.

        Petitioners contend that the hearing officer erred in finding that they had not demonstrated the appropriateness of their son’s educational program at the private school. They also argue she erred in holding that they could not be awarded tuition reimbursement because they had not yet paid the tuition. A board of education may be required to pay for educational services obtained for a student by his 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 Sch. 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 Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

        Respondent 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]). I note that in its answer to the petition, respondent outlines the testimony in support of its program that was offered at the hearing. However, it has not appealed nor cross-appealed from the hearing officer’s finding that it had failed to meet its burden of proof with regard to the inappropriateness of the educational program that it had offered to provide to petitioners’ son. In the absence of such an appeal or cross-appeal, I must find that the hearing officer’s determination of that issue is final and binding upon the parties (Application of a Child with a Disability, Appeal No. 00-057). Therefore, petitioners have prevailed with respect to the first criterion necessary for an award of tuition reimbursement, that the program offered by the school district was inappropriate for the child (Application of a Child with a Disability, Appeal No. 99-15).

        Petitioners bear the burden of proof with regard to the appropriateness of the services they obtained for their son during the 2000-01 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 parents must show that the educational program they obtained for their son met his special education needs (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29).

        Petitioners’ son is moderately mentally retarded, meaning that he is functioning at a level that is approximately four standard deviations below the mean. In his most recent psychological evaluation on March 1, 2001, the student achieved a test composite score of 36 on the Stanford-Binet Intelligence Scale, Fourth Edition. His performance on that test was comparable to his performance on the WISC-III in May 2000. At the hearing, a CSE school psychologist testified that the student evidenced maladaptive or avoidant behavior when faced with a challenging task (Transcript p. 39). Although the psychologist who evaluated the student in March 2001 noted that the student’s willingness to participate in formal activities had improved, he nevertheless continued to evidence a short attention span as well as impulsiveness.

        Throughout the record, there are numerous references to inappropriate behavior by the student, such as making inappropriate statements in an attempt to discourage interaction with the teacher (as reported in a home instruction school progress report dated March 1, 2001), spitting when introduced to new teachers (Transcript pp. 215-216), and various disruptive behavior which interfered with his education, as reported in the lesson plans maintained by the private placement instructors (see Exhibit H, pages dated 12/22, 01/06, 01/21, 02/22).

        During the 2000-01 school year, the child received a program of one-on-one instruction created and coordinated by a special education teacher selected by the petitioners. Instruction was provided by two teachers, selected by the program coordinator and the student’s parents. One teacher worked with the student in the morning. The second teacher worked with the student in the afternoon, after he had received his related services. Instruction was provided to the student in his own classroom at Yeshiva Tiferes Yisroel, but he reportedly had some contact with other students at the private school for physical education, lunch, recess and non-academic activities. The private school apparently exercised no control over the student’s program (Transcript p. 8), but it facilitated payment for the teachers and the program coordinator. It has billed petitioners 30,000 dollars for the cost of the program (Exhibit I). I note that no one from Yeshiva Tiferes Yisroel testified at the hearing.

        The program coordinator testified that the student’s program included academic and behavioral components, but it was not an ABA program (Transcript pp. 155, 191). She created the program at the request of the student’s mother, after observing the student. During the 2000-01 school year, the coordinator observed the student twice per week, and communicated with his teachers by telephone during the week. The two teachers communicated with each other once a week. One of the teachers was completing work to obtain her BA degree, while the degree status of the other teacher was unclear (Transcript pp. 175, 181-182).

        The coordinator testified that petitioners’ son had made academic and behavioral progress during the 2000-01 school year. She explained that the student’s sight word vocabulary had increased from 20 words in May 2000 to 200 words in April 2001, which she equated with the second to third grade level (Transcript pp. 160-161). The coordinator asserted that the student could read and answer some "Wh" questions (who, what, where) about what he had read (Transcript pp. 157-158). She further testified that his ability to identify numbers had increased from two during the 1999-2000 school year to 19 during the 2000-01 school year, and that his writing had improved (Transcript pp. 163-164). The coordinator also testified that the program had addressed the student’s behavioral difficulties, and she asserted that he no longer spit at his peers. However, she further testified that his self-stimulatory behavior had increased (Transcript p. 166), and that petitioners had engaged the services of a behavioral specialist. The behavioral specialist did not testify. The record includes a brief letter by the specialist describing her recommendations and a proposed behavioral intervention plan (Exhibit J). The record does not indicate if her recommendations and plan were implemented.

        The program coordinator stressed that the student’s program was very informal, and acknowledged that she could not document his progress (Transcript p. 189). She also testified that she did not disagree with the evaluation report and testimony by the CSE’s educational evaluator (Transcript p. 161). I note that the evaluator testified that the two teachers’ lesson plans lacked objectives and did not indicate how it was determined that the student had made progress (Transcript pp. 130-131). She also testified that it was difficult to ascertain from the lesson plans what was being done to improve the student’s behavior and communication skills (Transcript p. 133).

        The evaluator had administered the Woodcock Johnson Tests of Achievement to the student on March 8, 2001. She compared the results of that testing with results the student had achieved on the same test in April 2000, and concluded that he appeared to have made only minimal academic progress (Transcript p. 139; Exhibit 6). The evaluator testified that the student could name most letters of the alphabet, and could read a few sight words. He could name primary colors and shapes, and could count objects to ten. He could also recite the alphabet and the days of the week (Transcript pp. 123-125). The evaluator noted that her assessment of the student’s skills was consistent with results reported by the student’s home instruction teacher (Exhibit 8).

        The hearing officer also heard testimony by a CSE school psychologist who analyzed the results of the Vineland Adaptive Behavior Scales that were administered in 1996 (Exhibit O) and in March 2001 (Exhibit 5), with the student’s mother providing the responses. The school psychologist expressed concern that the student appeared to be "going backwards" socially (Transcript p. 40). The psychologist noted that the student had achieved an age equivalent score of three years and five months for socialization in 1996, and his score had declined to two years and five months in 2001. I note that during the same period, the student’s daily living skills improved by two months, while his communication skills improved by 13 months.

        I find that there is little evidence in the record to indicate the effectiveness of the program that was actually offered to the student, and nothing to show that it was designed to meet the stated program goals (Exhibit A). The daily lesson plans offered into evidence list the various activities covered in general terms such as "reading" (book), reading (rhyming), reading (vocabulary), or "writing" or "emotional and social". However, they do not contain sufficient detail as to what was actually covered in the daily lessons. This makes it difficult to determine if the daily material offered was appropriate for the student. It also makes the coordinator’s claim of progress difficult to sustain, in the absence of any testimony by the student’s teachers or data that they collected and maintained to document his progress. The objective evidence that is in the record suggests that the student’s progress was indeed minimal, as the CSE’s educational evaluator opined in her testimony. In reaching this conclusion, I am of course aware of the nature of his disability.

        I am also concerned about the absence of a detailed curriculum or instructional plan for this student, especially because of the limited information about the qualifications and experience of the two individuals who were instructing the student and their apparent lack of coordination of effort. While it is settled that the failure of a private program to have a fully certified instructional staff does not preclude an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 94-20), it is nevertheless important to show that the student received effective instruction that was relevant to meeting his special education needs. This student has significant special education needs that needed to be addressed in a coordinated and logical manner. I have considered the very general written program description, the teacher lesson plans, the testimony by the program coordinator, and the program coordinator’s written progress report (Exhibit B). I find that it is very difficult to infer from the evidence that the student’s needs were being addressed in that manner during the 2000-01 school year.

        For these reasons, I agree with the hearing officer’s determination that petitioners did not meet their burden of proving that the special education services that they had obtained for their son were appropriate. Since that finding precludes an award of tuition reimbursement, I do not reach the second reason given by the hearing officer for denying reimbursement.

THE APPEAL IS DISMISSED.