01-102

       Petitioners appeal from a decision of an impartial hearing officer holding in part that respondent had offered to provide a free appropriate public education (FAPE) to petitioners’ son for the 2000-01 school year and denying their application for an award of tuition reimbursement for the cost of their son’s attendance in the CAHAL program at the Hebrew Academy of the Five Towns and Rockaway (HAFTR). The appeal must be sustained.

        Petitioners’ son was 11 years old and a student in the fourth grade class in the CAHAL program at HAFTR at the commencement of the hearing in May 2001. The CAHAL program at HAFTR provides education to children with special education needs, but it has not been approved by the State Education Department to provide instruction to children with disabilities. The student has attended the CAHAL program at HAFTR since approximately September 1996. Prior to his enrollment in the CAHAL program, the student had attended a preschool special education program for two years and then was enrolled in the South Shore Yeshiva for kindergarten. He repeated kindergarten upon his entry into HAFTR.

        The student has been classified as speech impaired since 1996. His classification is based upon deficits in his auditory processing and comprehension, and other language related difficulties. The student was diagnosed with attention deficit hyperactivity disorder (ADHD) at six years of age by a pediatric neurologist at the Columbia Presbyterian Hospital Neurological Institute (Exhibit 1; Transcript pp. 394-95). In March 1999, the student achieved a verbal IQ score of 83, a performance IQ score of 72, and a full scale IQ score of 76, the latter score placing him in the borderline range of intellectual functioning (Exhibit AA). At the time of the hearing, the student was taking Nortriptyline for ADHD and Tenex for hyperactivity.

        During a structured observation of him in his third grade class at HAFTR on February 4, 2000, the student was told on more than one occasion to stop talking to his neighbor. He was reported to have displayed appropriate classroom behavior at least some of the time (Exhibit D).

        At the end of February 2000, the student’s occupational therapist reported that the student’s gross motor skills were within normal limits. She indicated that the student had weaknesses in some elements of handwriting and that his daily living, cognitive and visual perception skills were appropriate. The therapist noted that attention difficulties affected the student’s ability to complete classroom tasks. She recommended that the student’s twice a month occupational therapy be discontinued (Exhibit F).

        The student’s speech/language therapist reported in March 2000 that the student had achieved some speech/language individualized education program (IEP) objectives, but continued to need services (Exhibit H). She indicated that the student had difficulty following a story line for content, recalling simple information, and ordering events logically, and she recommended that new IEP goals be established for auditory processing, memory sequencing, and overall comprehension skills. In June 2000, she reported that the student’s performance on the Test for the Auditory Comprehension of Language – Revised (TACL-R) was approximately two standard deviations below the mean and that his performance on the Peabody Picture Vocabulary Test – Revised (PPVT-R) was approximately one and one-half standard deviations below the mean (Exhibit H). The speech/language therapist recommended that the student continue to receive speech/language therapy for 45 minutes twice a week. She also recommended that the student remain in his current classroom placement, indicating that the student appeared to benefit greatly from the small group instruction and multisensory teaching.

        At its annual review of the student on June 13, 2000, respondent’s Committee on Special Education (CSE) recommended that the student remain classified as speech impaired during the 2000-01 school year. The IEP prepared for the student included the CSE’s recommendations that his educational program be reduced from 12 months to 10 months, that his occupational therapy be discontinued, and that his speech/language be increased from 45 minutes once per week to 45 minutes three times per week. The IEP further provided that the student would attend a combined 4th/5th-grade 15:1+1 special education class at its George Washington Elementary School. The IEP included annual goals and benchmarks/short term objectives for speech/language and auditory perception and for the student’s social, physical, and academic development (Exhibit N).

        The student’s father and a private psychologist visited the recommended combined 4th/5th-grade special education class on June 15, 2000. Petitioners advised respondent by letter dated August 2, 2000, that they were rejecting the special education class at respondent’s elementary school, and that their son would continue to attend the CAHAL program at HAFTR during the 2000-01 school year (Exhibit X). In a letter dated January 17, 2001, petitioners’ counsel asserted that the IEP was not procedurally valid or substantively appropriate, and requested an impartial hearing for the purpose of obtaining tuition reimbursement for the student’s continuing placement at the CAHAL program (Exhibit Y).

        The hearing commenced on May 24, 2001 and ended on June 18, 2001. In his decision issued on August 28, 2001, the hearing officer found that respondent had offered to provide a FAPE to the student, notwithstanding the fact that the student’s IEP had been prepared by a CSE that did not include a regular education teacher. He also found that the IEP’s annual goals and short term objectives were global and all-encompassing and that the IEP did not include information about the manner and frequency with which the student’s progress was to be reported to the petitioners. Nevertheless, the hearing officer denied petitioners’ request for an award of tuition reimbursement. The hearing officer expressed concern that language difficulties might no longer be the student’s primary disability, and recommended that the CSE conduct additional evaluations to clarify the nature of the student’s disability and revise the student’s IEP, if appropriate.

        Petitioners appeal from the hearing officer’s decision on numerous grounds including that the CSE was not properly constituted, that the IEP’s goals and objectives were inadequately stated, and that the IEP should have included a behavior management plan (BMP). I note that petitioners do not challenge the CSE’s recommendations to reduce their son’s educational program to a ten-month program and to discontinue his occupational therapy. Neither party has appealed from the hearing officer’s recommendation to further evaluate the student and review his classification. Therefore, I do not review those matters.

        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 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 (LRE) (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). I find that respondent cannot meet its burden of proof with respect to the student’s program for the 2000-01 school year because the CSE that prepared the student’s IEP on June 13, 2000 did not include a regular education teacher of the student as required by the applicable federal regulations and state law (34 C.F.R. § 300.344[a][2]; N.Y. Education Law, Section 4402[1][b][1][a][ii]).

        The student was enrolled in certain mainstream courses including music, science, and gym (Transcript pp. 317-319) as part of his third grade CAHAL program. Moreover, for the following year, the CSE recommended that he participate in a mainstream physical education class (Exhibit N). Therefore, one of the student’s regular education teachers should have attended the CSE meeting (Application of a Child with a Disability, Appeal No. 01-055; Application of the Bd. of Educ., Appeal No. 99-38). I find no merit to respondent’s argument that it satisfied its obligation to have a regular education teacher present at the CSE meeting because the student’s CAHAL classroom teacher participated in the meeting. The CAHAL classroom was not a regular education environment. Witnesses for both parties testified that the CAHAL program is a special education program for children with disabilities (Transcript pp. 161, 296, 356). In the absence of the required regular education teacher member, the CSE could not have recommended a valid IEP, and the student’s recommended IEP for the 2000-01 school year is therefore a nullity (Application of the Bd. of Educ., Appeal No. 01-043).

        Even if the CSE had been properly constituted, I would nevertheless be constrained to find that the IEP was deficient. At its June 13, 2000 meeting, the CSE recommended that the student continue to be classified as speech impaired and that his speech/language therapy be increased during the 2000-01 school year. However, the IEP briefly lists his age equivalent score on the CELF-3 that was administered in March 1996, and does not provide any other basis for those recommendations. It does not include the results of the speech/language testing that was performed on the day of the CSE meeting. The student has been diagnosed with ADHD and was taking medication for this condition. The IEP indicates that the student "has physical and/or medical problems", and that he "requires medication for a medical condition" (Exhibit N). Such statements are of limited value to the individuals who are required to implement the student’s IEP. The student’s teachers testified that he exhibited obsessive compulsive tendencies and behaviors (Transcript pp. 263-264, 335, 336, 339, 347). The IEP contains no information about these characteristics.

        The CSE chairperson and one of the student’s teachers testified that the student’s behavior and attention difficulties interfered with his ability to learn (Transcript pp. 230, 303). A narrative progress report from the CAHAL program indicated that the student’s progress was hindered by his focusing difficulties (Exhibit J). The IEP indicates that the student was prone to distractibility and off task behavior, had a short attention span, was attention seeking, and needed to improve his impulse control. It also indicated that he required an environment free of distractions to learn, and that he would benefit from a behavior modification program to help motivate and sustain his learning (Exhibit N). The student’s IEP contains 27 goals, 15 of which are described as being related to speech/language and the remaining 12 are "auditory". Although some of the auditory goals relate to the student’s listening skills are related to his inattentiveness, they do not appear to address all of his behavioral needs. The IEP also indicates that the student has a moderate problem relating appropriately to adults and peers. However, there is no goal related to this identified need. Although the IEP indicates that the student would benefit from a BMP, it does not include a BMP. I find that the IEP should have included a BMP.

        For all of the reasons outlined above, I find that respondent has not sustained its burden of proving the appropriateness of the program recommended by its CSE for the 2000-01 school year. Having made this determination, it is not necessary that I address petitioners’ other challenges to the IEP or to the respondent’s proposed program for the student (Application of a Child with a Disability, Appeal No. 00-075).

        Petitioners bear the burden of proof with regard to the appropriateness of the services they obtained for their son in the CAHAL program during the 2000-01 school year (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, petitioners must show that the CAHAL program at HAFTR offered an educational program that met their son’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).

        The CAHAL program at HAFTR is an educational program for children with special education needs (Transcript pp. 161, 296, 356, 479). The program includes a number of different special education classes located inside, and operating within, a regular education private school building (Transcript pp. 316-17, 355-57). During the 2000-01 school year, petitioners’ son was enrolled in a fourth grade CAHAL class of eight children who were between the ages of nine and 11 (Transcript pp. 288, 266, 343-44). The class had two teachers, one in the morning and a different teacher in the afternoon. The class also had two classroom aides, one of whom was present all day, the other from 9:30 a.m. to 3 p.m. (Transcript pp. 267-68, 282-83, 285, 322, 333, 344). The CAHAL class provided a self-contained educational program with individual, small group, and whole instruction (Exhibit 3). The student received instruction in spelling, vocabulary, reading comprehension, grammar, Hebrew language and holidays, handwriting, math, and social studies within the CAHAL class (Transcript pp. 271, 284-86). He was mainstreamed for physical education, science, computer class, lunch, library, and music (Transcript pp. 270, 315, 319-20, 325, 362).

        The student’s teachers testified that he was reading at or about the appropriate grade level, that his writing skills were at the third grade level, that he was a very strong speller with a very high vocabulary, and that he was working at grade level in math (Transcript pp. 268, 337-38, 345). They also testified that the student’s social development and his classroom participation had improved, as had the pace of his work. The teachers further testified that his reading comprehension, handwriting and ability to express himself in writing and orally had improved, and that he had progressed in reading, spelling, vocabulary, and math (Transcript pp. 262, 269-70, 272-73, 298-301, 326, 336, 338, 350). The increase in the student’s performance improved concomitantly with a decrease in his level of distractibility and self-stimulating behavior earlier in the year (Transcript pp. 327, 343, 349-50). However, his need for individual attention continued to be relatively high in relation to others in the class, and he continued to show a constant need for refocusing and redirection, and prompting and cueing (Transcript pp. 301, 328, 342-43, 352, 359). The testimony of the student’s teachers was consistent with a written, narrative progress report prepared by one of them in March 2001 (Exhibit J; Transcript p. 375).

        The CAHAL program used a number of specific techniques or devices to focus and/or maintain the student’s attention on his class work and to facilitate his ability to learn from, pay attention to, and participate in his class. Those techniques included both oral and verbal prompting and cueing (Transcript pp. 273, 303, 339), at least two well developed and effective positive behavior reinforcement programs (Transcript pp. 304, 365, 376-77), and the use of enlarged copies of work sheets and desk copies of material shown to the class on the overhead projector. He was also provided with written copies of relevant math rules when working on math problems (Transcript pp. 339-40, 341), and prompted to assist him in thinking through math problems and in improving the expressiveness of his written work (Transcript pp. 341-42, 366). I find that the CAHAL program at HAFTR addressed the student’s special education needs.

        Respondent argues that the requirement that students with disabilities be placed in the LRE precludes the student’s placement at the CAHAL program at HAFTR. Although the LRE requirement (20 U.S.C. § 1412[a][5]) applies to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2nd Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]). In this instance, the student would have received instruction in a self-contained class for much of the school day if he had attended the program recommended by the CSE. At HAFTR, he was mainstreamed for science, computer class, lunch, library, and music (Transcript pp. 270, 315, 319-20, 325, 362). I find that respondent’s argument is without merit. I further find that petitioners have prevailed with respect to the second criterion for an award of tuition reimbursement.

        The third and final Burlington criterion for an award of tuition reimbursement is that the petitioners’ claim for tuition reimbursement must be supported by equitable considerations. Respondent alleges that the hearing officer found that equitable considerations militate against a payment of tuition reimbursement because petitioners allegedly failed to cooperate with respondent’s efforts to place the student. However, the hearing officer did not in fact address the issue of petitioners’ cooperation with the CSE. Petitioners sought from respondent information about what educational program it would provide for their student. They made the student available to visit respondent’s elementary school and its combined 4/5th grade special class prior to the CSE meeting. In addition, petitioner father attended the CSE meeting and brought the student’s private psychologist to the meeting as well. Petitioner father and the psychologist also visited the class the CSE proposed for the student at its June 2000 meeting. I find that equitable considerations support petitioners’ claim for tuition reimbursement. Having found that petitioners have prevailed on all three criteria for an award of tuition reimbursement, I must sustain their appeal.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of their son’s placement at the CAHAL program at HAFTR during the 2000-01 school year, upon petitioners’ submission of proof of payment for such expenses.