01-096

         Petitioner appeals from the decision of an impartial hearing officer who found that the respondent board of education had offered to provide an appropriate educational program to her son during the 2000-01 school year and denied petitioner’s request for reimbursement for the cost of her son’s tuition at The Mary McDowell Center for Learning (Mary McDowell). The appeal must be sustained.

        Respondent obtained an extension of time until December 12, 2001 to serve its answer, but did not serve its answer until December 28, 2001. It attributes its delay to the temporary displacement of the Corporation Counsel’s offices following the World Trade Center incident, and asks me to excuse its delay. Petitioner, who was also delayed in commencing this appeal for similar reasons, does not oppose respondent’s request. I will accept the answer.

        At the time of the hearing in April 2001, petitioner’s son was nine years old and in the second grade at Mary McDowell, where he had attended school since September 1999. He was previously enrolled in the Little Red Schoolhouse, a private school for children with disabilities. Mary McDowell also serves children with disabilities, but has not been approved to do so by the New York State Education Department.

        The child was initially referred to respondent’s Committee on Special Education (CSE) in September 1998, after a private psychological evaluation had revealed that he had superior intelligence, but also had delays in his prereading and premath skills. He reportedly displayed weakness in planning and organizing his approach to complex tasks. According to the psychologist who evaluated him, petitioner’s son expressed general feelings of anxiety, vulnerability, decreased self-efficacy, and anger (Exhibit D). The CSE recommended that the child be enrolled in a regular education first grade class and receive resource room services, occupational therapy, and speech/language therapy. Petitioner reportedly did not accept the CSE’s recommendations, and kept her son in the Little Red School House during the 1998-99 school year.

        For the 1999-2000 school year, the CSE recommended that the child be enrolled in respondent’s modified instructional services-IV program at P.S. 33. However, petitioner enrolled her son in Mary McDowell. During the 2000-01 school year, the child received occupational therapy twice per week at respondent’s expense, and private counseling once per week. In an occupational therapy progress report dated June 2, 1999, the therapist indicated that treatment had focused on improving the child’s postural control, bilateral coordination and graphomotor skills. On the Beery Test of Visual Motor Integration (VMI) and the Visual Perception and Motor Coordination Test, the child evidenced an approximate two-year delay in motor coordination, and a one-year delay in visual motor coordination. The therapist reported that the child’s difficulty in integrating visual and motor information was related to his poor registration of sensory stimuli, especially vestibular and proprioceptive stimuli (Exhibit 7).

        A school psychologist who evaluated petitioner’s son on July 1, 1999 reported that the child could plan and organize his responses on nonverbal tasks, but his problem-solving ability faltered when he was confronted with tasks that did not involve visual cues. His responses to verbal tasks were sophisticated and succinct, but he intermittently became distracted and needed to be refocused. Despite good articulation skills and the ability to speak in complete, complex sentences with a varied and descriptive vocabulary, the child occasionally had difficulty retrieving words. The psychologist reported that the child displayed a logical sequential thought process during story telling, and demonstrated an ability to follow directions and process lengthier and more complex questions. The psychologist reported that the child had deficits in his visual motor coordination, symbol-associative skills, and processing speed. She noted that he displayed signs of impulsivity, anxiety, and perfectionist tendencies, and that he tried hard to deny or minimize the anger and resentment he felt when confronted with academic tasks. The evaluator observed that, during those moments, the child needed extra attention, support and positive reinforcement to help keep him focused (Exhibit 5).

        Another psychologist observed the child in his class at Mary McDowell on December 8, 1999. She reported that he participated actively in the class, was not disruptive, attended appropriately to class activities, and responded correctly to most of the verbal tasks given to him by the teacher (Exhibit 9).

        In a January 2000 midyear report, Mary McDowell indicated that the child had made an excellent adjustment to the school, and was comfortable about approaching his teachers for support. He was instructed in reading with the Orton-Gillingham technique in a group of four children who met four times weekly for 45-minute sessions. The rate and fluidity of his reading was improving, but he continued to read at a slow rate, albeit with more confidence. The school reported that the neatness of the child’s handwriting was improving, and that he had participated in a writing workshop to improve his writing skills. The child’s math teacher reported that the child reversed numbers, which the teacher addressed with the use of multisensory activities such as skywriting and tracing a raised number (Exhibit 8). The school’s end of year report indicated that the child continued to make progress during the remainder of the 1999-2000 school year (Exhibit C).

        In a February 11, 2000 social history update, the child’s mother reported that she was pleased with her son’s experience at Mary McDowell, where the work was challenging and appropriately paced in order to foster stimulation without frustration. She also reported that her son’s private counseling was designed to assist him with his self-esteem and frustration difficulties, which she believed to be lessening as a result of the counseling and his attendance at Mary McDowell (Exhibit 3).

        On March 9, 2000, a third school psychologist evaluated the child. Noting that the child had achieved a verbal IQ score of 111, a performance IQ score of 115, and a full scale IQ score of 116 when evaluated in September 1998, the psychologist chose to administer only one subtest from the Wechsler Intelligence Scale for Children-III. Results of the digit span subtest were in the average range, suggesting that the child’s attention and working memory were intact, and giving no indication of a gross hearing difficulty. The psychologist reported that there was evidence of a delay in retrieving information from the child’s long-term memory, and noted that the child appeared to benefit from structure in performing tasks and for social purposes (Exhibit 4).

        An educational evaluation was conducted on March 29, 2000. On the Kaufman Test of Educational Achievement, the child achieved grade equivalents (and standard scores) of 2.7 (104) for math applications, 2.4 (99) for math calculation, 2.4 (101) for reading decoding, 1.4 (86) for reading comprehension, and 1.9 (94) for spelling. The evaluator compared those results to the results the child had achieved when last tested in June 1999, and noted that there had been at least some improvement in each area. The evaluator reported that the child’s written expression was seriously delayed, with deficits in letter spacing, punctuation and spelling. She noted that the child had mild auditory problems, and wore pressure-equalizing tubes in his ears (Exhibit 6). The child’s physician reported on April 14, 2000 that the child had hearing difficulties, but was otherwise physically healthy (Exhibit 10).

        The CSE conducted its annual review of the child, without its parent member, on April 14, 2000. Petitioner attended the review meeting, during which she signed a handwritten note stating: "I waive my right to a parent representative at the CSE review meeting for my son …" (Exhibit 11). The CSE recommended that petitioner’s son remain classified as learning disabled. It further recommended that he be instructed in an integrated modified instructional services-I (MIS-I) class with a student: teacher ratio of not more than 25:1. Such classes consist of regular education students and students with disabilities who are instructed by a regular education teacher and a special education teacher. At the hearing, the CSE’s psychologist testified that a paraprofessional would also have been assigned to the proposed class (Transcript pp. 31, 38).

        The CSE also recommended that the child receive 30 minutes of speech/language therapy in a three-person group once a week, 30 minutes of individual occupational therapy twice weekly, and 30 minutes of individual counseling once a week. The individualized education program (IEP) that the CSE prepared for the child included test modifications such as extended time limits and taking tests in a special location. The IEP also indicated that the child would be given preferential seating and small group instruction, and that that a multisensory approach to reading would be used. The IEP contained four annual goals and several short-term objectives to address the child’s academic concerns (Exhibit 2).

        Immediately following the CSE meeting, petitioner attended a placement meeting. In a Final Notice of Recommendation dated July 14, 2000, she was offered a placement for her son in class 704 at P.S. 126 in Manhattan. The notice indicated that she could have another placement meeting if she wished to discuss the proposed placement (Exhibit 13). By letter dated July 24, 2000, petitioner asked the placement officer to provide her with a description of her son’s proposed program and a profile of the proposed class, so she could determine the appropriateness of the proposed placement (Exhibit 14). Petitioner reportedly did not visit the class in P.S. 126. She enrolled her son in Mary McDowell for the 2000-01 school year. The record does not reveal when petitioner requested the hearing in this proceeding. On September 26, 2000, a CSE staff member informed petitioner’s attorney that the class profile was available, but would not be provided to petitioner until the day of the hearing (Exhibit 15).

        The impartial hearing commenced on April 6, 2001 and concluded on September 6, 2001. In his decision dated October 17, 2001, the hearing officer addressed several issues raised by petitioner at the hearing. He rejected petitioner’s claim that respondent had made procedural errors by not notifying her of a specific class placement for her son until July 2000, not inviting the child’s private psychologist to participate by telephone in the CSE meeting, having inconsistent written descriptions of the proposed placement in the IEP and the final notice of recommendation, and failing to provide a class profile until the hearing. The hearing officer found that the child’s IEP adequately described his special education needs, and included reasonable annual goals and objectives to address those needs, and that the recommended inclusive MIS-I class would have met the child’s special education needs. In doing so, he found that the child would have been suitably grouped for instructional purposes with the other students in the class, and he rejected petitioner’s claim that her son was too emotionally fragile to attend such a class. He concluded that petitioner was not entitled to an award of tuition reimbursement for the 2000-01 school year because the Board of Education had proven that it had offered to provide an appropriate educational program to petitioner’s son. Nevertheless, he found that respondent should pay for one month of tuition because petitioner did not have an opportunity to visit the proposed placement at P.S. 126 until September 2000, the first month of the 2000-01 school year.

        Respondent did not cross-appeal from the hearing officer’s decision granting partial reimbursement of tuition to petitioner, as it could have done pursuant to 8 NYCRR §279.4(b). However, in its answer to the petition, it asks that I reverse the hearing officer’s decision awarding one month’s reimbursement because it was not based on substantial evidence in the record. I must deny its request. Pursuant to federal and state regulations, an impartial hearing officer’s decision is final and binding upon the parties unless appealed to the State Review Officer (34 CFR §300.510[a]; 8 NYCRR §200.5[i][4][ii]). Having failed to appeal from the hearing officer’s decision, respondent is bound by that decision (Application of a Child with a Disability, Appeal No. 00-057; Application of the Board of Educ, Appeal No. 98-7).

        In this appeal, petitioner challenges her son’s IEP on procedural and substantive grounds. Her procedural objections include those expressly rejected by the hearing officer in his decision, as well as additional claims about the identity of the individuals who prepared her son’s IEP annual goals and the composition of the CSE. I agree with the hearing officer’s finding that there is no legal requirement that a child’s parents be afforded an opportunity of visiting a proposed class before the beginning of classes in September (Application of a Child with a Disability, Appeal No. 99-61). I am not persuaded that petitioner was genuinely confused by the discrepancies in the IEP and notice of final recommendation descriptions of her son’s proposed educational program and placement. She had the opportunity to discuss both of these at the CSE meeting and subsequent placement meeting, and was provided with a name and telephone number to contact for further information. Although it might have been helpful to do so, the CSE was not legally obligated to contact the private psychologist who was counseling the child.

        Petitioner asserts that the qualifications of the CSE members "may not have met the State’s requirements". I must note that this is the kind of issue that should be raised at the hearing so that an adequate factual record can be developed (Application of a Child with a Disability, Appeal No. 01-095). There is, however, one issue as to the composition of the CSE that was raised by petitioner’s testimony at the hearing, although petitioner does not raise it in this appeal. Petitioner testified that there was no additional parent member of the CSE when it met with her on April 14, 2000 to prepare her son’s IEP, and that she "had to sign a waiver" with respect to the absence of the additional parent member (Transcript p. 314). She wrote a single sentence on a piece of paper stating "I waive my right to a parent representative at the CSE review meeting for my son" (Exhibit 11). Although respondent called a social worker who was a member of the CSE as a rebuttal witness subsequent to petitioner’s testimony, the social worker was not asked about petitioner’s testimony about the waiver.

        For many years, the New York State Education Law has required that a CSE include a parent of a child with a disability residing in the school district or a neighboring district in addition to the parent of the child whose educational program is being considered by the CSE. On July 20, 1999, section 4402(b)(1)(a)(viii) of the Education Law was amended to provide that a student’s parents could request that the additional parent member of the CSE not attend the CSE for that student. On January 6, 2000, the Regulations of the Commissioner of Education were amended to provide that the notice given to parents of a prospective CSE meeting inform them of their right to decline, in writing, the participation of the additional parent member of the CSE in the meeting (8 NYCRR 200.5[c][2][v]). The record does not reveal what information petitioner was given with regard to her right to request that the additional parent member not participate in the CSE meeting.

        The statute requires that the additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate. I find that petitioner’s so-called waiver is ineffectual to overcome the requirement that the additional parent participate in the CSE meeting to develop her son’s IEP (Application of a Child with a Disability, Appeal No. 01-079). I must find that the IEP that was prepared at that meeting was a nullity (Application of a Child with a Disability, Appeal No. 00-092; Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 99-2).

        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 consideration support the parent’s claim (Burlington Sch. Comm. v. Dep’t. of Educ., 471 U.S. 359 [1985]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7). In view of my findings with respect to the composition of the CSE and resulting invalidity of the child’s IEP, I must find that respondent has not met its burden of proof.

        Petitioner bears the burden of proof with regard to the appropriateness of the services which she obtained for her son at Mary McDowell during the 2000-01 school year (Application of a Child with a Disability, Appeal No. 00-043; Application of a Child with a Disability, Appeal No. 95-57; 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 her child’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 00-043).

        The record reveals that petitioner’s son is of average intelligence, but is delayed in his reading, writing and comprehension skills, and has auditory processing and word retrieval difficulties. The child is frustrated by his academic difficulties and has low self-esteem. Both the child’s private psychologist and respondent’s own school psychologist suggested that the student’s frustration and anger might affect his ability to perform satisfactorily in school (Transcript pp. 31, 200, 214). The private psychologist testified that the child was anxious with regard to learning and his family and social life, and that he required structure and consistency (Transcript pp. 202, 215). He opined that it would not be appropriate to place the child in a class with nondisabled children because the child often chose to compare himself to the most capable child in a situation (Transcript p. 201). He further opined that the child required much individual attention, as well as small group instruction, in a small setting (Transcript p. 235).

        At Mary McDowell, petitioner’s son was in a class of ten students with a teacher and an assistant teacher, both of who are certified special education teachers, and a part-time paraprofessional. Students were grouped by ability for academic instruction. The child received reading instruction with the Orton-Gillingham approach integrated with a more typical text in a group of five students for four hours each week (Transcript pp. 259-260, 269-271, 276). At the beginning of the school year, the child read at a high first grade level, but completed the year at a mid-second grade level (Transcript p. 276). In mathematics, he was taught in a class of six students with the Math Land program. At the beginning of the school year, the child was pulled out for instruction in a group of three or four students who needed extra support. Within a few months, he was returned to his regular mathematics group and completed the year at a third grade level (Transcript pp. 253, 277-278, 280-281). The child continued to struggle with writing and graphomotor difficulties, which were being addressed in the writer’s workshop program (Transcript pp. 282-283). The child’s head teacher testified that she addressed the child’s distractibility and inattention by framing questions posed to him in a manner that ensured that he understood the topic being discussed. Although the school did not provide counseling, its staff was in contact with the child’s private psychologist during the school year to discuss matters of concern.

        I find that Mary McDowell was an appropriate placement for petitioner’s son. The child needed primary special education instruction for reading, math, and writing, which he received at the private school. Instruction was provided in small groups and in a small setting to address not only his distractibility, but also his emotional concerns. Accordingly, I find that petitioner has met her burden of proof regarding the appropriateness of the services she obtained for her son from the private school.

        The third criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. There is no indication in the record that petitioner failed to cooperate with the CSE. Accordingly, I find that equitable considerations support the parent’s claim for tuition reimbursement. Having found that petitioner has prevailed on all three criteria for an award of tuition reimbursement, I must sustain petitioner’s appeal.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her child’s tuition at The Mary McDowell Center for Learning during the 2000-01 school year, upon petitioner’s submission to respondent of proof of payment of such tuition.