02-014

        Petitioner appeals from the decision of an impartial hearing officer which denied her request for an award of tuition reimbursement for the cost of her son’s tuition at the Manhattan Day School (Manhattan Day) for the 2000-01 school year. The Board of Education cross-appeals from the hearing officer’s finding that it had failed to demonstrate the appropriateness of the program it had offered to provide to the student. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioner’s son was 11 years old when the hearing was held in this proceeding. He was initially referred to respondent’s Committee on Special Education (CSE) while in the second grade of a private school. The CSE reportedly classified him as health impaired in November 1997, but changed his classification to speech impaired in June 1998. He was enrolled by his parents in Manhattan Day in September 1998, and has remained in that school.

        The parents requested an impartial hearing to obtain an award of tuition reimbursement for the 1998-99 school year. The hearing officer denied their request for reimbursement. In Application of a Child with a Disability, Appeal No. 99-24, the hearing officer’s decision was annulled, and respondent was ordered to reimburse the parents for the cost of their son’s tuition at Manhattan Day. Respondent’s CSE was ordered to have the student evaluated for the presence of a possible neurological disorder, within 30 days after February 28, 2000, because the student had been observed to have head and shoulder tics, gross and fine motor deficits, an awkward gait and articulation problems, and was slow to complete his work. The record in the present appeal indicates that the neurological evaluation was never done.

        Petitioner and respondent, by stipulation, settled a dispute involving the 1999-2000 school year, which is not part of this proceeding. On July 14, 2000, respondent’s CSE reclassified the student from speech impaired to learning disabled. That classification is not in dispute.

        For the 2000-01 school year, the CSE recommended that the student be enrolled in respondent’s Modified Instructional Services-I (MIS-I) program with a 15:1 student: teacher ratio for all subjects except for mathematics, for which he was to be mainstreamed. The individualized education program (IEP) that the CSE prepared for the student indicated that he would be provided with 30 minutes of individual speech/language therapy and 30 minutes of speech therapy in a group each week, 30 minutes of occupational therapy in a group of three twice per week, 30 minutes of individual physical therapy per week, and 30 minutes of counseling in a group of three each week (Exhibit 1).

        On July 31, 2000, respondent offered a placement at P.S. 197 for the 2000-01 school year (Exhibit B). On or about August 7, 2000, petitioner indicated that she could not accept or reject the proposed program before observing it in September (Exhibit 11). She also sought an additional 30 minutes of individual speech/language therapy each week for her son. Petitioner testified that after visiting P.S. 197 in September 2000, she determined that the proposed class would have been inappropriate for her son. She chose to keep her son at Manhattan Day, and requested an impartial hearing to obtain tuition reimbursement.

        The hearing was held on June 12 and 20, 2001. At the hearing, petitioner’s advocate asserted that the student’s IEP was inadequate because the CSE had failed to conduct a neurological evaluation. Petitioner testified that she had not specifically asked the CSE during its July 14, 2000 meeting for a neurological evaluation of her son (Transcript p. 152). In her decision dated September 26, 2001, the hearing officer found that respondent failed to demonstrate that the program it had offered to provide was appropriate, because it had not completed a neurological evaluation or satisfactorily explained why it had not been performed. However, the impartial hearing officer also found that the student’s parent had failed to demonstrate that Manhattan Day had met her son’s educational needs, and she denied her request for tuition reimbursement.

        I will begin with the Board of Education’s cross-appeal from the hearing officer’s finding with respect to the educational program it had offered to provide. 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 (Bd. 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). In essence, the hearing officer found that the student’s IEP did not accurately identify his special education needs, which could not be completely determined in the absence of a neurological evaluation.

        The Board of Education appears to argue that the parent is foreclosed from asserting that the CSE’s recommended program was inappropriate because no neurological evaluation had been performed, since she had not specifically requested that such evaluation be performed. It also asserts that my directive in Application of a Child with a Disability, Appeal No. 99-24 to perform a neurological evaluation was not binding upon the Board of Education with respect to any future IEP for the student. Respondent seriously misperceives its responsibility to comply with my directive in the prior appeal involving this student. Absent a request for judicial review of the decision, my decision became final and binding upon the parties (34 C.F.R. § 300.510[d]; 8 NYCRR 200.5[j][3]). Respondent’s obligation to perform a neurological evaluation was not contingent upon a request by petitioner to perform the evaluation.

        There is nothing in the record of this appeal that suggests that the student no longer manifested the physical conditions that led me to conclude in the prior appeal that he should receive a neurological evaluation. Indeed, a school psychologist who evaluated the student on February 23, 2000 noted that he appeared to have tremors while performing certain tasks (Exhibit 4). At the hearing, another school psychologist who was a member of the CSE that prepared the student’s IEP opined that the tremors noted by the other school psychologist could have been caused by the student’s low muscle tone (Transcript pp. 44-45). However, the CSE’s psychologist had no personal knowledge of the student, and at best appears to have speculated about this matter.

        A CSE must adequately evaluate a student to ascertain the conditions which hinder the student from participating successfully in a regular education setting and to establish his special education needs. I agree with the hearing officer that respondent’s CSE failed to adequately evaluate petitioner’s son.

        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]).

        I have determined that the Board of Education has failed to meet its burden of proof with respect to the program that it had offered to provide to the student. The burden of proof now shifts to the student’s parent (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, petitioner 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).

        The hearing officer found that the student’s parent could not demonstrate the appropriateness of Manhattan Day’s program for her son during the 2000-01 school year for the same reason that respondent could not demonstrate the appropriateness of its program, i.e., because a neurological evaluation had not been performed. I cannot agree with her reasoning. It was respondent’s obligation, not petitioner’s, to see that a neurological evaluation was performed. Although all of the student’s needs may not have been identified because of the Board of Education’s failure to perform a neurological evaluation, it does not follow that petitioner should be denied reimbursement, provided that the record contains sufficient information to identify most of the student’s needs and show that the private school addressed those needs during the 2000-01 school year.

        Petitioner’s son is of average intelligence, with relative strength in nonverbal abstract reasoning and relative weakness in tasks requiring verbal fluency. The school psychologist who evaluated him in February 2000 noted that petitioner’s son needed to be constantly reassured about his performance during testing. She also noted that his handwriting was difficult to read (Exhibit 4). In the same month, an educational evaluator reported that the student’s reading and writing skills were in the average range, although he did display some difficulty with decoding. The student’s math skills were in the high average range, except for his knowledge of quantitative concepts, which was in the low average range (Exhibit 9). In June 2000, the student’s speech/language therapist reported that he had a mild to moderate receptive/expressive language disorder characterized by below age level vocabulary, decreased ability to follow written and verbal directions, decreased ability to express narratives, and decreased critical thinking skills (Exhibit 7). When observed in a class of five students and two adults in October 1999, petitioner’s son engaged in off-task behavior (Exhibit 8).

        The student’s English teacher at Manhattan Day testified that there were two teachers assigned to each self-contained class of not more than ten students. She also testified that the student had difficulty comprehending and making inferences about what he had read, but that his skills had improved during the year (Transcript p. 127). The teacher testified that petitioner’s son had made significant progress in improving his spelling skills, and his writing ability had improved during the 2000-01 school year. She indicated that although the student could work independently on some tasks, he needed to have someone to look over his shoulder to check his work and answer his questions (Transcript p. 118). The student’s teacher testified that his organizational skills were very poor, and that as a result, he became frustrated and had to be removed from class on occasion (Transcript pp. 121-123). She also testified that he had received social skills training during the school year.

        I find that the private school addressed the student’s most immediate needs, even though there may have been other needs that a timely neurological evaluation would have revealed. The witness from Manhattan Day conceded at the hearing that petitioner’s son might have been able to attend a mainstreamed class for math, provided that he had someone to help him, such as a resource room teacher. Although the student received math instruction in a self-contained class at Manhattan Day, I am not persuaded that the provision of such instruction to him should lead me to conclude that the private school’s services were inappropriate for the student. I find that petitioner has met her burden of proof with respect to the second criterion for an award of tuition reimbursement.

        With respect to the third criterion, i.e., whether equitable circumstances support petitioner’s claim for reimbursement, I note that there is nothing in the record to indicate that petitioner has not cooperated with respondent’s CSE. At the hearing, petitioner’s representative conceded that the private school’s tuition charge of $21,000 included a donation of $1500 as well as $800 for a non-tuition expense (Transcript p. 149). Respondent asserts that it should not be required to pay for the donation and the $800 charge. I agree that respondent should not be obligated to pay for either the $1500 donation or the $800 charge.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son’s tuition, as limited by this decision, at the Manhattan Day School for the 2000-01 school year, upon petitioner’s presentation to respondent of proof of such expenditures;

IT IS FURTHER ORDERED that within 30 days after the date of this decision, the CSE shall have the student evaluated for the presence of a possible neurological disorder.