01-073

          Petitioners appeal from an impartial hearing officer’s decision finding that respondent had offered to provide an appropriate educational program to their daughter for the 2000-01 school year, and denying their request for reimbursement for the cost of the student’s tuition at the Stephen Gaynor School (Gaynor) during that school year. The appeal must be sustained.

        At the time of the hearing, petitioners’ daughter was 12 years old. She attended the Hewitt School, a private school located in Manhattan, for kindergarten through the fourth grade. After reportedly experiencing difficulty in the fourth grade, she was referred to respondent’s Committee on Special Education (CSE), which initially determined that she was ineligible for classification in August 1999 (Transcript pp. 18-19). Petitioners enrolled their daughter in Gaynor, which is private school for children with learning disabilities, for the 1999-2000 school year. In October 1999, the CSE recommended that the student be classified as other health impaired, and receive consultant teacher services. The student’s classification was apparently based upon the fact that she has been diagnosed as having an attention deficit disorder (ADD). She has remained classified as other health impaired, and there is no dispute about her classification.

        A psychologist who privately evaluated the student in January 1999 noted that she was being treated with Ritalin to help maintain focus, and reported that she was impulsive and restless during the evaluation. He also reported that she had achieved a verbal IQ score of 95, a performance IQ score of 103, and a full scale IQ score of 99, and had demonstrated a particular weakness on a comprehension subtest measuring her practical reasoning ability. On educational testing, the student manifested a particular weakness on the subtest measuring memory for words. Her performance on an academic achievement test indicated that she had acquired generally age and grade appropriate skills, with relative weaknesses in calculation, spelling and punctuation (Exhibit 1). When tested by a school district psychologist in May 1999, the student’s IQ scores were higher than those obtained in the private evaluation. It should be noted that the same IQ test was used, and there may have been some practice effect. The school district psychologist reported that the student had displayed some active and appropriate fantasy life, as well as a positive self-image (Exhibit 2).

        An educational evaluation was performed for the CSE in January 2000. On the Wechsler Test of Individual Achievement, petitioners’ daughter achieved standard scores of 114 for basic reading, 106 for reading comprehension, 89 for numerical operations, 94 for math reasoning, and 84 for spelling. The evaluator reported that the student’s reading skills were at the beginning seventh grade level, but her math computation and reasoning skills were at the mid-fourth grade level for instructional purposes. Her written expression was also at the fourth grade level (Exhibit 14).

        Respondent’s CSE conducted its annual review of the student on May 26, 2000. Three staff members from Gaynor participated by telephone in the review. The CSE recommended that petitioners’ daughter be enrolled in respondent’s Modified Instructional Services-I (MIS-I) program, and receive 30 minutes of counseling in a group of no more than three twice per week. The MIS-I program provides instruction in self-contained special education classes with a student : teacher ratio of 15:1. On the individualized education program (IEP) that it prepared for the student, the CSE indicated that she should have extended time, separate location, and questions and directions read to her during testing, as well as the use of a calculator. The IEP included annual goals for improving her spelling, writing and editing, and math skills, as well as a goal to learn to feel safe with her peers (Exhibit 19). In its written rationale, the CSE noted that the Gaynor representatives had indicated that the student displayed organizational problems, inattention, and nonparticipation at the school. Those representatives also indicated that the student was made fun of by other students, and had been placed in a lower functioning group for social, rather than academic, reasons (Exhibit 20). On the IEP, the CSE noted that the student seemed to do better with peers who were having more difficulty in school than she was, and that she was intimidated by peers who were her equal or better.

        Petitioners waived an immediate meeting with the district placement officer. In a final notice of recommendation dated June 15, 2000, they were offered a placement in respondent’s I.S. 167 (Exhibit 21). They chose to maintain their daughter’s enrollment at Gaynor for the 2000-01 school year. By letter dated November 15, 2000, petitioners’ attorney requested that an impartial hearing be held to obtain an award of tuition reimbursement (Exhibit F). The hearing in this proceeding was held on May 14 and 17, 2001. In a decision rendered on July 16, 2001, the hearing officer found that the CSE had prepared an appropriate IEP for the student. He rejected petitioners’ contention that the IEP was defective because it did not address their daughter’s speech/language needs. He also rejected their contention that the student required a smaller class size than the MIS-I class, and he found that she would have been suitably grouped for instructional purposes. Having found that respondent had met its burden of proving that it had offered to provide a free appropriate public education (FAPE) to petitioners’ daughter, he denied their request for an award of tuition reimbursement.

        Petitioners argue that the hearing officer erred in finding that the proposed MIS-I placement would have been appropriate for their daughter. 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).

        Petitioners allege that their daughter’s IEP goals may have been prepared before the CSE meeting. However, that practice does not per se violate statute or regulation, provided that the student’s parents are not deprived of the opportunity to discuss the draft goals at the CSE meeting (Application of a Child with a Disability, Appeal No. 00-068; Application of a Child with a Handicapping Condition, Appeal No. 90-13). There is no indication in the record that petitioners were deprived of that opportunity at the CSE meeting. As a result, I find that petitioners’ contention is without merit.

        Petitioners note that the annual goal relating to counseling indicated that it would be provided once per week, while the section of the IEP listing related services indicates that counseling would be provided twice per week, as did the final notice of recommendation. At the hearing, it was explained as a typographical error in the goal that would have been corrected. Accepting that explanation as true, I find that the error does not afford a basis for finding that the proposed program was inappropriate.

        Petitioners claim that the CSE failed to recognize the severity of their daughter’s speech/language needs. They assert that she has a history of speech/language difficulties, and that the CSE was aware of the fact that she was receiving thrice weekly speech/language therapy at Gaynor. They acknowledge that in October 1999, respondent’s speech/language evaluator had concluded that speech/language therapy was not warranted as a related service (Exhibit 23). However, petitioners dispute the evaluator’s conclusion that the student’s speech/language needs could be addressed in the classroom without therapy, and claim that the IEP should have provided for speech/language therapy and included annual goals for speech/language.

        In her report, respondent’s speech/language evaluator noted that the student had achieved scores in the average and above average range on the Clinical Evaluation of Language Fundamentals-3, but on the Word-R Test she had scored approximately one year below age expectancy with regard to synonyms and antonyms. The evaluator concluded that it would be beneficial to have the student’s language needs addressed in regularly scheduled classroom activities. A school psychologist for the CSE testified that language processing deficits could be addressed in the classroom (Transcript p. 83). The student’s speech/language therapist at Gaynor testified that the student had receptive and expressive language difficulties that might be reflected in a need to have directions repeated and a need for assistance with organizing and formulating her ideas (Transcript p. 140). The therapist opined that the student required speech/language therapy to derive an appropriate benefit from her educational program (Transcript p. 143). Having reviewed the testimony by the two teachers from the MIS-I program about the ways in which instruction is provided in that program, I find that the student’s language needs could have been appropriately addressed in that program without speech/language therapy.

        Petitioners assert that the CSE’s recommendation is defective as a matter of law because the student’s IEP indicates a class size of 15, but that size is allegedly not permitted by state regulation. They have attached a copy of New York State Education Department Office of Vocational and Educational Services for Individuals with Disabilities Policy Memo 00-09 to their petition as alleged support for their position. The Policy Memo explains that as a result of Chapter 60 of the Laws of 2000, section 4402(6) of the Education Law was amended with regard to the authority of certain school districts to exceed the class size limits imposed by the Regulations of the Commissioner. Respondent’s authority to exceed the size limits for certain special education classes expired on June 30, 2000. The Policy Memo indicates that as of July 1, 2000, special education classes must conform to the limits imposed by 8 NYCRR 200.6(g)(4). In pertinent part, that regulation provides that:

Special class size for students with disabilities. The maximum class size for those students whose special education needs consist primarily of the need for specialized instruction, which can best be accomplished in a self-contained setting shall not exceed 15 students, or 12 students in a State-operated or State-supported school….

        I find that petitioners’ argument is without merit. The CSE recommended that the student be placed in a special education class of no more than 15 students with a single teacher, which is consistent with the Regulations of the Commissioner of Education. The Regulations do prescribe a lower student : teacher ratio in classes for students with significant management needs. Petitioners assert that their daughter would have been unable to successfully function in a class of 15 students and one adult, and contend that she needed a placement in a small class within a small educational environment, i.e., school. In essence, they contend that their child required an intensive structured program with very close adult supervision because of deficits in her ability to process language and maintain attention. The record reveals that the student requires redirection from time to time and instruction at a slower pace than in a regular education class. I find that she could have received that kind of assistance in an MIS-I class with a 15:1 student : teacher ratio. The CSE psychologist opined at the hearing that petitioners’ child could have handled the proposed MIS-I class (Transcript p. 88). On the record before me, I concur with that opinion.

        As part of its burden of proof, respondent must also show that the student would have been suitably grouped for instructional purposes with the other students in the MIS-I class at I.S. 167 (Application of a Child with a Disability, Appeal No. 00-014). The Board of Education submitted a profile of the students showing their instructional levels for reading and math, their language skills, learning characteristics, physical development social development, and management needs (Exhibit 22). According to the profile, the students in the MIS-I class were functioning between the 1.6 and 4.5 grade levels in reading and math, except for one child who was reading at the 4.6 – 5.5 grade level. Petitioners’ daughter had an instructional reading level at the beginning seventh grade for basic reading (decoding) and the beginning sixth for comprehension. Her math and writing skills were at the fourth grade level (Exhibit 14).

        At the hearing, the MIS-I teacher who would have been responsible for instructing petitioners’ daughter in reading, language arts and science testified that her students were divided by proficiency into five reading groups, and that none of the students were reading at the level of this student (Transcript pp. 105-106). She further testified that students with reading skills like those of petitioners’ daughter were mainstreamed, usually for language arts or some other subject (Transcript p. 105). However, this student’s IEP indicated that she was to receive reading instruction in a 15:1 special education class. It is not apparent from the record how respondent would have provided instruction in reading to this student at I.S. 167. I find that there would have been a substantial disparity between the reading skills of petitioners’ daughter and most of the children in the MIS-I class. I am aware that 8 NYCRR 200.6(g)(7) does not prohibit the grouping of students whose reading skills vary by more than three years. I am also aware of the student’s reported need to feel superior to other students in her class to maintain her confidence. However, I nevertheless find that the range of achievement in reading would have been excessive in this case, and conclude that respondent has not met its burden of proof with regard to the appropriateness of the proposed placement.

        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 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]). With respect to the first criterion for an award of tuition reimbursement, whether that services offered by the board of education were appropriate, I have found that respondent has failed to meet its burden of proof.

        A student’s parents bear the burden of proof with regard to the appropriateness of the services they have obtained for their child (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 parents must show that the private school offered an educational program that 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).

        Gaynor uses a language based curriculum for its approximately 120 students, who are assigned to classes of nine or ten students. Each class is taught by a head teacher with the assistance of an assistant teacher. During the 2000-01 school year, petitioners’ daughter was in instructional groups of five for math and eight for reading and social studies, except that once per week she received reading and language instruction in a group of two and math instruction on an individual basis (Transcript pp. 159-160). The students in her reading group were functioning at a mid-fourth to beginning sixth grade level, and the students in her math group were functioning at an early fifth grade level (Exhibit I).

        The student’s head teacher testified that the student’s ability to participate in class during reading and math instruction had improved during the school year, but she remained withdrawn during social studies (Transcript pp. 161-162). He also testified that the student had been instructed in the subjects and skills set forth in her 2000-01 IEP annual goals (Transcript pp. 164-166). Although counseling was not provided to the student as a related service at Gaynor, the head teacher testified that her social skills had been addressed by various staff members at Gaynor. A written progress report for the 2000-01 school year at Gaynor (Exhibit D) indicates that there had been a great increase in the student’s academic and social confidence and independence. It also indicates that the student was using strategies developed by her teacher to organize materials, break up assignments, and manage her time.

        Respondent asserts that Gaynor was too restrictive a placement for this student. Although the least restrictive environment requirement (20 U.S.C. § 1412[a][5]) applies to unilateral parental placements (M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). I must note that in the CSE’s recommended program, the student would have received all academic instruction in special education classes. While the setting of a private school serving students with disabilities is more restrictive than I.S. 167, which also has regular education classes, I find that it does not afford a basis for concluding that Gaynor was inappropriate. I conclude that the parents have prevailed with respect to the second criterion for an award of tuition reimbursement.

        The third and final criterion for an award of tuition reimbursement is whether the parents’ claim is supported by equitable considerations. The Board of Education points to the fact that the student’s mother testified at the hearing that she had signed a contract for the 2000-01 school year with Gaynor in March 2000, approximately two months before the CSE conducted its annual review. However, I do not find that fact affords a basis for concluding that the parents’ claim is not supported by equitable considerations. There is nothing in the record to indicate that the parents did not cooperate with the CSE at all times. I find that petitioners’ claim is supported by equitable considerations.

        Finally, I note that the Board of Education has raised the argument that petitioners are not entitled to an award of tuition reimbursement because their daughter has never attended public school (20 U.S.C. § 1412[a][10][c][ii]). The State Review Officers have declined to construe the statute as limiting the authority to award tuition reimbursement, in the absence of any convincing evidence of the intent of Congress to do so (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-25). Accordingly, I find that petitioners have demonstrated that they are entitled to tuition reimbursement for the 2000-01 school year.

THE APPEAL IS SUSTAINED.

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

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