01-072

       Petitioner appeals from an impartial hearing officer’s decision finding that respondent had offered to provide a free appropriate public education (FAPE) to her daughter and denying petitioner’s request for reimbursement for the cost of her daughter’s tuition at the York Preparatory School (York) for the 2000-01 school year. The appeal must be sustained in part.

        Petitioner’s daughter was 17 years old and in the 11th grade at York when the hearing began in May 2001. Prior to attending York, the student attended the Stephen Gaynor School for the second through fifth grade and the Eagle Hill School for the sixth through eighth grade. She was reportedly initially identified as a student with a disability by respondent’s Committee on Special Education (CSE) in 1997. The CSE of Community School District 2 recommended that she be classified as learning disabled, and she has apparently remained classified as learning disabled. Petitioner does not expressly challenge her daughter’s classification in this proceeding.

        In 1997, the CSE recommended that petitioner’s daughter be enrolled in respondent’s Modified Instructional Services-I (MIS-I) program and receive occupational therapy, speech/language therapy, and counseling. However, the student apparently attended private school instead. The record does not reveal what recommendations the CSE may have made for the subsequent school years.

        The CSE of Community School District 3 began evaluating the student in early 2000 in preparation for its annual review. The student was observed in her tenth grade biology class at York on January 26, 2000. The observer reported the student contributed only once to the class discussion, and that she repeated a comment previously made by another student. The student did take some notes and appeared to be listening, although at one point the student shook her head as the teacher spoke as if she did not understand something (Exhibit 9).

        The school psychologist, who evaluated the student on February 7, 2000, reported that she had achieved a verbal IQ score of 92, a performance IQ score of 73, and a full scale IQ score of 81, which were almost identical to the scores she had achieved in 1997. The student exhibited age-appropriate expressive vocabulary and general and acquired knowledge, but her short-term memory for non-meaningful stimuli was in the low average range. On nonverbal manual subtests, her performance ranged from mentally deficient to average. She exhibited a mild delay in her visual motor integration skills. The psychologist noted that the size of the student’s drawings suggested that she was emotionally constricted. Projective testing revealed that she had many age-appropriate interests and concerns (Exhibit 7).

        On or about February 7, 2000, the student’s physician indicated that she was treating the student with Zoloft for a mood disorder (Exhibit 10). I note that at the hearing, petitioner revealed that her daughter was being seen by a psychiatrist on a weekly basis, and was being treated with Concerta to improve her ability to remain focused (Transcript pp. 125, 132). In a social history that was performed on February 7, 2000, petitioner expressed concern that her daughter continue to do well and attend York. She believed that her daughter’s self-esteem was affected by her learning disability, and that York provided her daughter with additional support and guidance throughout the school day (Exhibit 4).

        On April 4, 2000 an occupational therapy evaluation was performed. The evaluator noted the student had received occupational therapy five years ago. She reported that the student had difficulty with reciprocal hand movements and the ability to copy gestures and motions, but that she had the good fine motor skills required for writing. The evaluator did not recommend occupational therapy for the student, but did provide petitioner with activities her daughter could do to facilitate bilateral arm use (Exhibit 13).

        A speech and language pathology assessment was conducted on April 26, 2000. The evaluator reported the student had previously received speech and language therapy but that she had not received therapy during the 1999-2000 school year. The student displayed age-appropriate pragmatic language skills, and she achieved scores in the average range for receptive and expressive language on the Clinical Evaluation of Language Fundamentals-Third Edition. Accordingly, the evaluator did not recommend speech and language therapy for the student (Exhibit 6).

        An educational evaluation was conducted on May 2, 2000. On the Woodcock Johnson Psycho-Educational Battery Revised, the student achieved grade equivalent (and standard) scores of 11.9 (106) for broad reading, 7.3 (88) for broad mathematics, 7.7 (90) for broad writing, and 6.5 (85) for broad knowledge. The student was in the 11th grade when tested. The evaluator noted that the student’s reading proficiency decreased as the passages increased in length. On the math subtest, the student had difficulty with problems involving long division, negative and positive integers, and algebraic equations (Exhibit 5).

        On July 10, 2000, the CSE reviewed the results of the student’s evaluations and developed the student’s individualized education program (IEP) for the 2000-01 school year. It recommended that the student maintain the classification of learning disabled, and that she be placed in the general education program, while receiving five periods of resource room services per week and 30 minutes of counseling in a group of no more than three (Exhibit 1). The IEP testing modifications included doubled time limits, separate locations, use of a calculator, having test directions read to her, and her answers recorded for her.

        In its written rationale, the CSE noted that a representative of York had participated by telephone in the July 10 meeting. The CSE indicated that the student had difficulty expressing her thoughts and feelings orally, which would be addressed through counseling, and that her difficulty with written expression would be addressed in the resource room. It concluded that her needs could be met with part-time supplemental instruction (Exhibit 3). In a final notice of recommendation dated July 26, 2000, petitioner was offered a placement for her daughter at Washington Irving High School (Exhibit 2).

        Petitioner disagreed with the recommended placement, and requested an impartial hearing. The hearing was held on May 16, June 8 and 29, 2001. The hearing officer rendered his decision on July 24, 2001. He determined that the IEP prepared by the CSE was appropriate and would provide the student with a FAPE as required under the Individuals with Disabilities Education Act 1997 Amendments (IDEA’97) (20 U.S.C. § 1400 et seq.). In addition, the hearing officer found York was not an appropriate placement for the student. He concluded that York did not know how to "deal" with the student and that there was no testimony from anyone directly involved with the student’s education at York to establish that the student had received any benefit from her enrollment there. Accordingly, the hearing officer found that petitioner was not entitled to an award of tuition reimbursement.

        Petitioner appeals from the hearing officer’s decision on several grounds. She asserts that her daughter’s IEP for the 2000-01 school year is procedurally and substantively flawed, and should not have been upheld by the hearing officer. She contends that her daughter needs small classes on a full time basis, as provided by York, and that she should therefore receive an award of 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]).

        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]). To meet its burden, the Board of Education must show that the recommended program is reasonably calculated to confer educational benefits upon the child (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). An IEP must be prepared in accordance with certain procedural requirements, including a properly composed CSE.

        Petitioner asserts that the composition of respondent’s CSE was defective because it did not include at least one special education teacher of her daughter. The IDEA’97 requires that at least "one special education teacher, or where appropriate, at least one special education provider of such child participate in the meeting at which the student’s IEP is developed" (20 U.S.C. § 1414[d][1][B][iii]). The implementing regulation requires that an IEP team include at least "one special education teacher of the child, or if appropriate, at least one special education provider of the child" (34 C.F.R. § 300.344[a][3]). The new regulation does not include the language of the footnote to the former 34 C.F.R. § 300.344 authorizing a board of education to designate the child’s teacher member of the CSE in certain circumstances. In its official interpretation of the new regulations, the U.S. Department of Education has indicated that "the special education teacher or provider of the child who is a member of the child’s IEP team should be the person who is, or will be, responsible for implementing the IEP" (See Appendix A to Part 300- Notice of Interpretation, Question 26).

        As was noted in Bd. of Educ., Appeal No. 00-031, a student’s special education teacher member of a CSE could be the student’s private school teacher, a special education teacher who was likely to implement the student’s IEP, or the student’s related service provider. Although a board of education cannot be expected to know who the student’s special education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a special education teacher who was not only appropriately certified to teach the student, but was also teaching in one of the programs which might be appropriate for the student.

        Although a representative of York, Dr. Reese, participated by telephone in the CSE meeting, he identified himself as a psychologist employed by York when he testified at the hearing (Transcript p. 163), and there is no reason to believe that he was the student's teacher at York. The record shows that one of respondent’s educational evaluators was designated to serve as the special education teacher member of the CSE. At the hearing, the evaluator testified that he had a Masters degree in special education, and that he had taught in various special education programs for respondent, including its resource room program, before becoming an educational evaluator for the CSE of Community School District 3 (Transcript p. 84). In order to be qualified to teach in New York State, an individual must hold the requisite teaching certificate issued by the Commissioner of Education, except for those individuals who received teaching licenses from the Boards of Education of New York City or Buffalo under the former licensing provisions. Although I have no reason to doubt that the evaluator was appropriately certified or licensed, I must note that respondent should have established that fact in the record.

        Even if I were to assume that the educational evaluator was an appropriately certified teacher, it would not resolve the matter. Respondent must also show that the individual might have been responsible for implementing the student’s proposed IEP. Respondent does not allege that this individual who serves on the CSE of Community School District 3 would have been working as a resource room teacher during the 2000-01 school year. I find that the educational evaluator could not serve as the student’s special education teacher member on the CSE because he was not the student’s current special education teacher and there is no evidence to suggest that he was likely to implement her IEP in the 2000-01 school year (Application of a Child with a Disability, Appeal No. 00-087). Accordingly, I find that the Board of Education has not met its burden of proof because of its failure to have a validly constituted CSE when the student’s IEP was prepared.

        I find that petitioner has prevailed with respect to the first criterion for an award for tuition reimbursement because the Board of Education could not demonstrate the appropriateness of the CSE’s recommendation. A student’s parent bears 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 a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). 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 [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).

        During the 2000-01 school year, petitioner’s daughter was enrolled in "lower track" regular education 11th grade classes at York. The York psychologist, Dr. Reese, testified that instruction in the lower track was designed to match the level of the students in the track (Transcript p. 149), but he did not suggest that it was individualized instruction. Although York has a "Jump Start" program consisting of two individual tutoring sessions with a certified special education teacher, and a total of nine before and after school group tutoring sessions per week, petitioner’s daughter was not enrolled in the program. Dr. Reese testified that the student’s parents had arranged for language tutoring outside of school and extra assistance from the student’s math teacher (Transcript p. 147). The student also apparently consulted with her teachers after school on an occasional basis (Transcript pp. 161, 165). However, York did not provide any tutoring to her (Transcript pp. 166-167).

        Dr. Reese testified that the student did not receive any counseling at York (Transcript p. 160). I note that a psychiatrist testified that he had begun to treat the student in March or April 2001 because of her inability to focus in class and complaints from her teachers that she was not preparing her work, or performing up to grade level (Transcript p. 208). He described the student as being immature, and requiring a great deal of adult intervention and supervision (Transcript pp. 210, 212).

        In essence, Dr. Reese testified that York was meeting the student’s needs by providing instruction in small classes which allowed her to get feedback and more attention from her teachers than would be possible in large classes (Transcript pp. 145-146). Dr. Reese testified that the student had achieved passing grades for the third quarter of the 2000-01 school year (Transcript p. 160), but there is no other evidence of her achievement during the year in the record. I must concur with the hearing officer’s decision that petitioner did not meet her burden of proof of demonstrating that the services provided by York met the student’s special education needs. It is not necessary that I address the third criterion of equitable consideration.

        I have considered petitioner’s other claims and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it found respondent’s recommended program to be appropriate.