01-066

        Petitioner, the Board of Education of the Shenendehowa Central School District, appeals from a hearing officer’s decision which found that its Committee on Special Education (CSE) failed to recommend appropriate programs for respondent’s son for the 1999-2000 and 2000-01 school years. The hearing officer found that the program respondent obtained for her son for the 1999-2000 school year at a private school was appropriate, and he awarded tuition reimbursement for that year. He further found that the program respondent obtained for her son for the 2000-01 school year at another private school was more appropriate than the program recommended by petitioner’s CSE for that school year. However, he awarded respondent only partial tuition reimbursement for the 2000-01 school year based upon his finding that the program she obtained for her son for the 2000-01 school year was not better suited to his needs than the program he attended during the 1999-2000 school year. Respondent cross-appeals from that portion of the hearing officer’s decision which granted only partial tuition reimbursement for the 2000-01 school year. The appeal must be sustained. The cross-appeal must be dismissed.

        The student was 17 years old and in the tenth grade at The Adirondack School (Adirondack) when the hearing began in May 2000. Adirondack, a private school in Greenwich, New York, has not been approved by the New York State Education Department to provide education to students with disabilities.

        The student has an extensive medical history (Exhibits P-20, P-51). He wears orthotics to offset a deformity of the right foot and receives physical therapy to improve gait, balance and endurance. The results of an MRI conducted in 1996 indicated frontal lobe damage present since birth. The student was diagnosed as having a pervasive developmental disorder, not otherwise specified (PDD) in 1996, and he was diagnosed as having a nonverbal learning disorder and a generalized anxiety disorder in 1999.

        The parties stipulated to certain facts at the first hearing date on May 17, 2000. Those facts are included below and designated as "Stipulated fact." The hearing that day was limited to the issue of the student's pendency placement. In an interim decision dated August 31, 2000, the hearing officer ordered the Board of Education to provide consultant teacher services to the student at Adirondack and to transport the student to and from Adirondack School each day. The Board of Education appealed from that decision. In Application of a Child with a Disability, Appeal No. 00-073, I annulled the hearing officer’s decision, upon a finding that the pendency provisions of federal and state law did not compel the Board of Education to provide services to the student at Adirondack, or to transport him to that school. A second interim decision by the hearing officer requiring the Board of Education to transport the student to the Doane Stuart school during the 2000-01 school year because it had allegedly become the student’s pendency placement was annulled by my decision in Application of the Bd. of Educ., Appeal No. 00-085.

        The student began receiving related services when he was in preschool (Exhibit P-3). When he entered petitioner’s school district for the second grade during the 1990-91 school year, he was classified as orthopedically impaired (Transcript p. 42). He repeated second grade at one of petitioner’s elementary schools and continued to attend public school through the fourth grade (Transcript p. 46). For fifth grade during the 1994-95 school year, respondent enrolled her son in the Robert C. Parker School (Parker), a private school in Wynantskill, New York (Transcript p. 47). In 1995, his classification was changed to learning disabled (Exhibit P-7). He continued at Parker for the 1995-96 and 1996-97 school years (Transcript p. 47). In 1996, the student’s classification was changed to other health impaired, based on the MRI results obtained that year. He remained at Parker through the end of his ninth grade year in June 1999. While the student attended Parker, petitioner had individualized education programs (IEP) in place for the student and provided various services to him (Stipulated fact 1).

        The CSE met on April 26, 1999 to develop the student’s IEP for the 1999-2000 school year. At that meeting, the parent advised the CSE that her son would be attending Adirondack for the 1999-2000 school year (Stipulated fact 7). The CSE recommended related services for the student, but deferred making a placement recommendation pending a discussion with petitioner’s director of student services. On May 10, 1999, the CSE chairperson, the school psychologist and an administrative intern who served as chairperson at the April 1999 meeting met with respondent and recommended that her son receive resource room services five times per week for 40 minutes, and that he be independently evaluated (Stipulated fact 8).

        The student began attending Adirondack in the fall of 1999. Petitioner was unable to arrange for special education services to be provided at or near Adirondack (Stipulated fact 11). The CSE chairperson informed respondent that if services could not be provided at Adirondack or a neighboring school district, they would be provided to her son at the Shenendehowa High School at a time during the school day when his schedule would be least impacted (Stipulated fact 12). Respondent was opposed to the provision of services at Shenendehowa High School because she did not want her son’s schedule at Adirondack to be interrupted.

        In an independent psychological evaluation conducted in December 1999, the student achieved a verbal IQ score of 80, a performance IQ score of 55 and a full scale IQ score of 65 (Exhibit P-51). The psychologist indicated that the student’s performance IQ score was in the mentally retarded range. In achievement testing, the student achieved above grade level scores in basic reading and spelling, and well below grade level scores in mathematical reasoning. The psychologist noted that there was a sizable discrepancy between the student’s achievement scores and intelligence scales, and indicated that the student was able to share factual information learned by rote, but had difficulty with reasoning or abstract/inferential tests. He experienced the most difficulty in situations that involved new learning or problem solving. On the Beery Developmental Test of Visual Motor Integration, the student made a significant number of errors. The psychologist noted the student’s difficulty with social interactions and with pragmatic aspects of language, as well as his restricted repertoire of interests and behaviors. She indicated that such symptoms were consistent with a diagnosis of PDD, stressing that he fell at the milder end of the spectrum. Additionally, the student’s statistically significant discrepancy between his verbal comprehension and perceptual organization abilities, weaknesses in mathematical reasoning and difficulties with social judgment indicated a nonverbal learning disability. The psychologist also diagnosed the student as having a generalized anxiety disorder, based upon his excessive worries about his competence and quality of performance to a degree that at times it interfered with his functioning and learning, particularly in novel situations.

        The psychologist indicated that the student would be best served by placement in a small, structured, familiar environment, with many opportunities for individual and small group instruction and as much structure, routine and predictability as possible. She suggested that the student’s program target his critical thinking, assertiveness and social skills, and affective understanding, as well as anxiety management.

        On January 3, 2000, respondent requested mediation because she was not satisfied with the manner in which the CSE’s recommendations were being implemented (Exhibit P-69). At the mediation on February 24, 2000, the parties agreed that, with the exception of transportation, the student’s May 10, 1999 IEP was appropriate, and that petitioner’s staff would confer about providing resource room services at and transportation to Adirondack (Exhibit P-46). On February 8, 2000, respondent requested an impartial hearing to review the delay in implementing the 1999-2000 IEP, as well as petitioner’s refusal to deliver services at and transport her son to Adirondack (Stipulated fact 13). There was no dispute about the student’s related services, or an additional evaluation that the CSE had recommended for him (Stipulated fact 14).

        The student was evaluated by a psychiatrist in April 2000 for anxiety relating to test situations and new environments (Exhibit P-74). The psychiatrist reported that when he discussed the reasons for the evaluation, the student became tremulous, anxious and uncomfortable. The psychiatrist was unable to complete a mental status evaluation because the student declined to continue with the evaluation. The psychiatrist interviewed the parent, who noted that her son had two periods of depression in the fall and winter of 1999. He reviewed previous psychological evaluations, and noted that the student had exhibited feelings of nervousness since kindergarten and that he had compulsions and obsessions. The psychiatrist agreed with the diagnosis of PDD, and concluded that the student had prominent symptoms of anxiety disorder and panic disorder that interfered with his functioning. He recommended a trial of Paxil to address the student’s symptoms of anxiety.

        In June 2000, the student was evaluated by a speech/language therapist who reported that the student exhibited significant deficits in language skills, especially pragmatic language and higher order language skills, which caused him to misinterpret directions and misunderstand many social interactions and comments (Exhibit P-78). She also noted that the student’s general conversational skills were adequate, but his receptive and expressive language skills were severely compromised. The student had difficulty making inferences, identifying emotions and drawing conclusions. The speech/language therapist noted that such language areas are intricately related to success in English, mathematics, science and social studies. She opined that some of the student’s anxiety could be attributed to his being aware of the social situations that were difficult for him because he did not always understand what was expected of him and how he fit into conversations and situations.

        The student began attending the Doane Stuart School in September 2000. Doane Stuart, a private school in Albany, New York, has not been approved by the New York State Education Department to provide education to students with disabilities. On September 18, 2000, respondent’s attorney requested an impartial hearing seeking reimbursement for the cost of tuition at Doane Stuart for the 2000-01 school year. The hearing for the 1999-2000 school year began on May 1, 2000, and continued on September 25. The parties agreed to a consolidated hearing for both school years. The hearing was held on various days and concluded on November 29, 2000.

        The hearing officer rendered his decision on June 22, 2001. Relying on the testimony of the student’s counselor who had expressed concern about the student’s ability to function well in large or unstructured settings, the hearing officer found that public school would not be appropriate for the student. He further found that Adirondack provided an appropriate program because it offered small classes and an opportunity to be with nondisabled peers. Additionally, the hearing officer found that while Doane Stuart offered small classes with nondisabled peers, it was academically competitive and the student would have difficulty working at grade level. Consequently, he found that Doane Stuart was not better suited to the student’s needs than Adirondack.

        He also found that respondent failed to provide timely notice to petitioner of her tuition reimbursement claims, but concluded that her failure to provide timely notice did not foreclose an award of tuition reimbursement. However, he indicated that her failure to provide timely notice of her claim for the 2000-01 was a consideration in his determination to award only partial reimbursement for that school year. He ordered the Board of Education to fully reimburse respondent for the cost of tuition and fees at Adirondack during the 1999-2000 school year, and to pay her an equivalent amount for the 2000-01 school year, notwithstanding the fact that Doane Stuart had charged respondent a higher amount during that school year. He also ordered the Board of Education to pay for the student’s transportation "at the statutory rate" for both school years.

        I will address the 1999-2000 school year first. Petitioner argues that it recommended an appropriate program for the student. 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]).

        Petitioner concedes that its CSE did not have all of the required members at the meeting when the recommendation for the 1999-2000 school year was made. An IEP which was prepared by a CSE that lacked each of its required members is a nullity (Application of a Child with a Disability, Appeal No. 99-54; Application of the Bd. of Educ., Appeal No. 99-38; Application of a Child with a Disability, Appeal No. 99-19). Under the circumstances, I must find that petitioner cannot demonstrate that it offered an appropriate program to respondent’s son for the 1999-2000 school year.

        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 Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Having found that the IEP was a nullity, I find that respondent has prevailed with respect to the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, a student's parent must demonstrate the appropriateness of the services selected (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. 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, 471 U.S. at 370; 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).

        Petitioner contends that the hearing officer erred in finding that Adirondack offered an appropriate program to the student because there is no evidence in the record demonstrating that Adirondack provided specialized instruction to meet the student’s unique needs. It also claims that there is no evidence in the record demonstrating that the student improved while attending Adirondack.

        The record shows that the student has been diagnosed as having an anxiety disorder. His high levels of anxiety interfere at times with his functioning and learning. The student also has been diagnosed as having PDD. He has difficulty with social interaction and the pragmatic aspects of language, as well as sifting through information and responding appropriately. Additionally, the student has a nonverbal learning disability in that he has difficulty with abstract or inferential reasoning, including mathematical reasoning. The student also has significant visual motor integration deficits. As noted above, the private psychologist opined that a structured, routine, predictable environment would be beneficial to the student, and that he would benefit from small group and individual instruction. Noting that the student was then attending Adirondack, the psychologist recommended certain modifications, including a special education specialist/teacher to help individualize his program and work on areas of weakness. The psychologist also recommended specific strategies to address the student’s weaknesses in critical thinking skills, social skills and anxiety management. Her findings and recommendations were not refuted.

        Adirondack is not a school for students with special needs (Transcript p. 373), and there is no evidence that the school provided any primary or supplemental special education instruction to the student. During the 1999-2000 school year, there were 38 students enrolled in grades seven through 12. The school provided classes with low student:teacher ratios in a small, nurturing environment. However, there is nothing in the record demonstrating that Adirondack provided an individualized program, as the private psychologist had recommended, nor any information in the record indicating how Adirondack addressed the student’s deficits associated with his diagnosis of PDD, such as difficulties with social interaction and pragmatic language skills. The record does not show how, if at all, Adirondack assisted the student in evaluating information and responding appropriately. Similarly, except for placing the student in a math tutorial when the traditional math class became too stressful for him, there is no specific information in the record showing how Adirondack addressed the student’s deficits associated with his nonverbal learning disability including difficulties with abstract or inferential reasoning (Transcript p. 392).

        As noted above, this student had special education needs. However, respondent has not demonstrated how Adirondack’s program addressed any of her son’s special education needs. Although there is some suggestion in the record that the student’s anxiety may have lessened at Adirondack because of reduced academic expectations for him at that school (Transcript p. 272), I cannot find that it affords an adequate basis for concluding that the school addressed his special education needs. The student did receive counseling and physical therapy while attending Adirondack, but those services were provided by the school district. Based upon the information before me, I am unable to find that the program at Adirondack met the student’s special education needs. Accordingly, I must find that respondent has not met her burden with respect to the second criterion for an award of tuition reimbursement (Application of the Bd. of Educ., Appeal No. 00-052; Application of a Child with a Disability, Appeal No. 01-030).

        I now turn to the 2000-01 school year. The record shows that the IEP for the 2000-01 school year was developed at a meeting on August 10, 2000 that was attended by the CSE chairperson, the school psychologist and the parent. Although the parent was advised that the CSE did not have all of the required members, she chose to continue with the meeting to ensure that services would be in place when the school year began (Transcript p. 68). Petitioner argues that respondent should be foreclosed from challenging the validity of the IEP because she agreed to proceed knowing that the CSE was not fully constituted. With the exception of the physician member of a CSE, who need not be present unless requested by a child's parent, each statutorily required member of a CSE must be present at a meeting during which the CSE makes a recommendation concerning a child. A board of education may not dispense with or simply ignore the statutory requirement concerning the composition of a CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-41). As noted above, a recommendation made by a CSE without all the required members is invalid. Consequently, I find that petitioner cannot prove the appropriateness of its recommended program, and that respondent has prevailed with respect to the first criterion for an award of tuition reimbursement for the 2000-01 school year.

        The burden of proof now shifts to respondent to demonstrate the appropriateness of the services she obtained for her son at Doane Stuart. The director of student services at Doane Stuart testified that there were approximately 88 students in the upper school with an average class size between 10 and 13 students (Transcript pp. 423, 432). However, he also testified that Doane Stuart does not provide special education (Transcript p. 429). Apart from providing a small, predictable environment where the student could achieve a level of comfort, there is no information in the record demonstrating how Doane Stuart met any of the student’s special education needs. The record shows that the student received consultant teacher services, counseling, occupational, physical and speech/language therapy at district expense while attending Doane Stuart. The director of student services testified that the consultant teacher assisted the student with chemistry and literature, kept him on task, and helped to keep his stress level down (Transcript p. 441). He further testified that the consultant teacher services were not in place during the first week of school, and the student was essentially lost (Transcript p. 449). Based upon the information before me, I find that respondent has failed to demonstrate that Doane Stuart met her son’s special education needs. Consequently, I do not address petitioner’s assertions that equitable considerations do not support the parent’s claim. I find that respondent is not entitled to an award of tuition reimbursement for the 2000-01 school year. Having found that respondent is not entitled to reimbursement for the cost of tuition at Doane Stuart for the 2000-01 school year, I must dismiss her cross-appeal challenging the hearing officer’s award of partial tuition reimbursement for the 2000-01 school year.

        The hearing officer also awarded reimbursement for transportation expenses for the 1999-2000 and the 2000-01 school years. Having found that the parent has not demonstrated that the private school programs she obtained for her son for the 1999-2000 and 2000-01 school years were appropriate to meet her son’s special education needs, I further find that she is not entitled to reimbursement for transportation to those schools.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED THAT the hearing officer’s decision is hereby annulled to the extent that it found that respondent was entitled to an award of tuition reimbursement for the 1999-2000 and 2000-01 school years.