01-068

         Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for their daughter’s tuition at a private school for the 2000-01 school year. Despite having found that the program recommended by respondent’s Committee on Special Education (CSE) was inappropriate and that the program petitioners obtained for their daughter was appropriate, the hearing officer denied petitioners’ request for tuition reimbursement on the basis that equitable considerations did not favor their claim. Respondent Board of Education cross-appeals from the hearing officer’s finding that the program recommended by its CSE was not appropriate and that the private school program was appropriate. The appeal must be sustained. The cross-appeal must be dismissed.

        The student was 13 years old and in the equivalent of the seventh grade at the Steven Gaynor School (Gaynor) when the hearing concluded in April 2001. Gaynor has not been approved by the New York State Education Department to provide education to children with disabilities.

        The student attended the Riverdale Country Day School (Riverdale) from kindergarten through the third grade (Transcript p. 466). During the student’s third grade year, the principal at Riverdale, a private psychologist and an educational professional suggested that she be placed in a different educational setting due to learning difficulties. She was enrolled by her parents at Gaynor for the fourth grade for the 1997-98 school year and has remained at Gaynor since that time. In 1998, the student began taking medication for separation anxiety (Transcript p. 167).

        The student was reportedly classified as learning disabled by the CSE of Community School District 10 (Transcript p. 86). In the spring of 2000, the CSE of Community School District 3 conducted the student’s annual review which included an educational evaluation (Exhibit 1). The educational evaluator noted that the student had made progress in reading and reading related areas since she was last evaluated in June 1999. However, the educational evaluator reported that the student exhibited errors consistent with a reading disability. She substituted words and letters, and demonstrated visual perceptual and processing speed difficulties. She also demonstrated weaknesses in receptive vocabulary, requiring improvement in word retrieval skills. In mathematics, the student regularly misread signs, which, the evaluator noted, was reflective of her learning disability. While the student showed improvement in written language skills, she remained weak in spelling and usage skills.

        In a psychological evaluation conducted on March 12, 2000, the student achieved a verbal IQ score of 102, a performance IQ score of 102 and a full scale IQ score of 102 on the Weschler Intelligence Scale for Children - III (WISC-III), placing her in the average range of intellectual functioning (Exhibit 5). The student exhibited the most difficulty in the area of psychomotor speed. The psychologist noted that emotionally, the student appeared to be insecure about her academic skills and potential, which created a great deal of internalized anxiety lowering her academic performance in the classroom environment. She recommended a speech/language evaluation.

        A speech/language evaluation was conducted on April 26, 2000 (Exhibit 3). The speech/language therapist reported that the student exhibited a severe receptive language delay and a mild expressive language delay characterized by difficulty in following directions, listening effectively and processing information received. She recommended that the student continue to receive speech/language therapy twice per week in a small group setting.

        On June 19, 2000, the CSE met for the student’s annual review and to develop her individualized education program (IEP) for the 2000-01 school year (Exhibit 8). A school social worker served as the district representative at the meeting. The CSE recommended that the student continue to be classified as learning disabled and that she be placed in a modified instructional services-I (MIS-I) special class with counseling and speech/language therapy. At the conclusion of the CSE meeting, a placement meeting was held, during which an MIS-I program at M.S. 141 was offered (Exhibit 10). A final notice of recommendation identifying M.S. 141 as the student’s placement was prepared on June 28, 2000 (Exhibit 11). By letter dated July 10, 2000, petitioners advised the CSE that they were unable to accept the recommendation without additional information (Exhibit C). They requested a class profile listing the reading and math levels of the students in the proposed class and they indicated that they would observe the program during the first week of school. Additionally, the parents advised the CSE that their daughter would remain at Gaynor until they could verify that the program at M.S. 141 would meet her needs. In a response dated August 1, 2000, the parents were advised that a class profile was not available because class registers had not yet been finalized, but it was anticipated that the information would be available during the first week of school (Exhibit 12).

        Petitioners visited one of respondent’s MIS-I classes in the fall of 2000, and believed that it was not appropriate for their daughter (Transcript pp. 480-81). They requested an impartial hearing on September 21, 2000 (Exhibit F). The hearing began on January 22, 2001 and was held on various days, concluding on April 20, 2001. The hearing officer rendered his decision on June 20, 2001. He determined that pursuant to 20 U.S.C. §1412 (a)(10)(C)(ii), petitioners were barred from being awarded any tuition reimbursement because their daughter had not previously received special education or related services in a public school. However, acknowledging that the State Review Officers have determined that the Individuals with Disabilities Education Act Amendments of 1997 (IDEA '97) does not bar the granting of an award of tuition reimbursement to the parents of a child who has not previously attended a public school, he proceeded to consider petitioners’ claim for tuition reimbursement. Finding that the school social worker was not qualified to serve as the district representative member of the CSE, the hearing officer determined that the CSE was improperly constituted, and therefore, the resulting IEP was a nullity. The hearing officer further found that the program at Gaynor was appropriate. Finally, the hearing officer determined that equitable considerations did not favor the parents’ claim and he denied their request for tuition reimbursement.

        Petitioners appeal from the hearing officer’s decision. They claim that the hearing officer erred in determining that they are not entitled to tuition reimbursement. The parents assert that the hearing officer’s interpretation of 20 U.S.C. § 1412 (a)(10)(C)(ii) is erroneous. They also assert that his findings with respect to equitable considerations are not supported by the record, are arbitrary, and demonstrate bias against them.

        Respondent cross-appeals from the hearing officer’s decision. It claims that a school social worker can serve as the district representative member of a CSE, and that the CSE was therefore properly composed. It also claims that its CSE had recommended an appropriate program for the student, and that Gaynor is not appropriate because it is not the least restrictive environment (LRE) for the student.

        I will first address respondent’s cross-appeal. Respondent argues that the hearing officer erred in finding that a school social worker is not qualified to serve as a district representative member of a CSE. The CSE must include a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider or the school psychologist (8 NYCRR 200.3[v]). The hearing officer noted that the terms special education and related services are distinct categories, and that each term is distinctly defined in federal and state law and regulation. He found that a person qualified to provide only related services is clearly unqualified to serve as a district representative on a CSE. Finding that the school social worker that served as the district representative of the CSE was not shown to have any additional qualifications, the hearing officer concluded that she could not serve as the district representative and determined that the CSE was not properly constituted. In reaching that conclusion, he relied on my decision in Application of a Child Suspected of Having a Disability, Appeal No. 96-57. In that decision, I found that the failure to provide proof that the social worker could lawfully provide or supervise special education afforded a basis for finding that the CSE’s recommendation was a nullity.

        Special education is defined in the New York State Education Law, in pertinent part, as specially designed instruction which includes special services or programs provided at no cost to the parents to meet the unique needs of a child with a disability (N.Y. Educ. Law §4401[1]). Special services or programs are defined to include related services, such as counseling, that are furnished to students with disabilities (N.Y. Educ. Law §4401[2]). The school social worker testified that she had been permanently licensed as a school social worker by the New York City Board of Education, and had worked for respondent for the past ten years in various capacities, including providing individual and group counseling to students with disabilities. She further testified that she had received training about curriculum standards and had access to pamphlets and literature regarding the standards for kindergarten through the 12th grade. The social worker also testified as to her knowledge of the district’s resources.

        Having considered the statute, as well as my prior decision, I conclude that the latter should not be construed as holding that a school social worker may not, as a matter of law, provide special education. In this instance, respondent has provided an evidentiary basis for determining the school social worker’s qualifications. I find that the social worker met the qualifications to serve as the district representative member of the CSE. She is qualified to provide the related service of counseling which is a special service or program included in the definition of special education, and she is knowledgeable about the general curriculum and the availability of resources in the district. I note that a school psychologist was present at the CSE meeting. Pursuant to state regulation, he too was qualified to serve as the district representative. Based upon the information before me, I find that the CSE was properly composed.

        Respondent claims that its CSE recommended an appropriate program. 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 its 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Respondent’s CSE recommended that the student be placed in a MIS-I program with a student:staff ratio of no greater than 15:1. It further recommended that the student receive related services of counseling and speech/language therapy. Petitioners argue that the recommended program is inappropriate for various reasons, including that respondent failed to demonstrate that their daughter would be suitably grouped for instructional purposes.

        As part of its burden of proof, respondent must show that the student would be suitably grouped for instructional purposes with children having similar individual needs (8 NYCRR 200.6[g][2]). It may do so by offering a profile of the students in the class, or having a witness testify about needs and abilities of the students in the class (Application of a Child with a Disability, Appeal No. 97-68). In this case, respondent’s supervisor of special education at M.S. 141 testified about the needs and abilities of the students in the proposed class. He had prepared a class profile a few months before the hearing and he testified that the instructional range for the students in the proposed class was between a 4.5 and 6.0 grade equivalent in reading and between a 3.0 and 5.0 grade equivalent in math (Transcript pp. 259, 429). He indicated that the information listed on the class profile was based upon teacher assessments of current functioning levels rather than standardized tests or formal assessments (Transcript pp. 413, 429). He acknowledged that there were no students in the proposed class functioning at the seventh grade level in math (Transcript p. 428). The supervisor of special education also testified about the IEPs of the students in the proposed class. His testimony revealed that the reading scores listed on those IEPs ranged from kindergarten to below the fourth grade level. I note that neither the class profile nor the IEPs of the students’ in the proposed class were submitted into evidence.

        The student’s IEP indicates that she is functioning at a seventh grade math level and a fifth grade reading level. There is no dispute that she would not have been appropriately grouped for math. With respect to reading, there are significant discrepancies among the functioning levels listed on the class profile and the test scores listed on the IEPs of the students in the proposed class. While the supervisor of special education testified that the functioning levels listed on the class profile were based upon informal teacher assessment, there was no explanation for the significant variations from the scores on the IEPs. Nor was there any attempt to explain why the functioning levels listed on the class profile were a better or more accurate measure of the abilities of the students in the proposed class. From the information before me, I am unable to ascertain the actual functioning levels of the students in the proposed class. Consequently I cannot determine whether the student would be suitably grouped in the proposed class. I find that respondent has not met its burden of demonstrating that the student would be suitably grouped for instructional purposes. Accordingly, I find that respondent has failed to demonstrate the appropriateness of its recommended program.

        Petitioners are seeking tuition reimbursement. 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. 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 School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        As noted above, the hearing officer determined that petitioners are barred from being awarded any tuition reimbursement because their daughter had not previously received special education or related services in a public school. State Review Officers have declined to construe IDEA '97 as limiting the authority of a hearing officer, review officer, or court under 20 U.S.C. § 1415 to grant an award of tuition reimbursement to the parents of a child who has not previously attended a public school, absent convincing evidence to the contrary of Congressional intent to do so (Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-25). I continue to adhere to that position, and I note that the U.S. Department of Education appears to concur with that position (Letter to Luger, March 19, 1999, 33 IDELR 126).

        I find that petitioners have prevailed with respect to the first criterion for an award of tuition reimbursement because respondent failed to demonstrate the appropriateness of its recommended program. With respect to the second criterion for an award of tuition reimbursement, petitioners bear the burden of proof with regard to the appropriateness of the services selected 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 private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        The record shows that the student has reading, writing and speech/language deficits, and that her reading difficulties carry over into math. Additionally, the student experiences severe anxiety when under stress. The record further shows that she requires a small, structured classroom environment. The head teacher at Gaynor testified that her class consisted of ten students, an assistant teacher, and a student teacher three times per week (Transcript p. 531). She noted that student’s ability to process information was slow and that she required support in understanding directions, assignments and language. The head teacher indicated that the student received individual attention for most assignments. Directions and assignments were broken down for the student and she was asked to repeat and rephrase them. She also received constant reinforcement and restructuring.

        The student’s reading specialist at Gaynor testified that the student has deficits in decoding and fluency, as well as difficulty with figurative language (Transcript p. 553). She further testified that the student’s academic difficulties caused her to become anxious and she required an encouraging small class environment with plenty of opportunities to practice reading. The reading specialist indicated that the student received reading instruction using a multisensory approach in a group of five students with two teachers four days per week for 45 minutes.

        The speech/language therapist at Gaynor testified that the student’s expressive language is limited by a reduced vocabulary, that she has word finding difficulties, trouble organizing her thoughts and ideas, and that abstract language is difficult for her. She further testified that the student received small group speech/language therapy once per week and group language therapy with the entire class once per week (Transcript p. 577). She indicated that she worked on expressive and receptive language skills in the small group session and communication skills, following directions and figurative language in the large group session. The speech/language therapist indicated that she assists the teacher with an academic writing class once per week helping the class to organize their thoughts and ideas in writing.

        The record also shows that the student made progress at Gaynor. The educational evaluator testified that the student made significant progress over the past ten months. She noted that the student had improved her scores on the letter-word identification and passage comprehension subtests of the Woodcock Johnson Psycho-Educational Battery Revised (WJR) by at least three years. Based upon the information before me, I find that Gaynor offered an educational program which met the student's special education needs.

        I have considered respondent’s contention that Gaynor is not the LRE for the student. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]). In view of the fact that the CSE did not recommend that the student be mainstreamed for any instruction, and the nature of her special education needs, I find that the parents met their burden of proving the appropriateness of the program they obtained for their daughter.

        The third and final criterion for an award of tuition reimbursement is whether equitable considerations support the parents’ claim. The hearing officer found that petitioners never intended to work with the CSE to design a program to meet their daughter’s needs. Noting that petitioners never had any intention of sending their daughter to public school, the hearing officer determined that they had not established entitlement to tuition reimbursement as an equitable remedy. Even if the hearing officer’s assumption is true, it does not inevitably lead to the conclusion that petitioners’ claim was not supported by equitable considerations. The record reveals that petitioners cooperated at all times with the CSE. I find that petitioners’ claim is supported by equitable considerations and that they are entitled to reimbursement for the cost of their daughter’s tuition at Gaynor for the 2000-01 school year. Having determined that the hearing officer erred in finding that equitable considerations did not support petitioners’ claim, it is not necessary that I address their assertion that the hearing officer was biased.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that respondent shall reimburse petitioners for the cost of their daughter’s tuition at Gaynor for the 2000-01 school year upon petitioners’ submission of proof of such payment.