02-024

        Petitioner, the Board of Education of the Hyde Park Central School District (district), appeals from an impartial hearing officer's decision ordering the district to provide or pay for special education services at the private school respondents' child attends, unless respondents agree to services at a different location. The district also appeals from the hearing officer's order that it provide an individual aide to the student at the private school, if the private school becomes unable to provide the aide. Respondents cross-appeal from those portions of the impartial hearing officer's decision that denied their requests for reimbursement of their child's tuition for the 2001-02 school year, for an extended school year for their child, and for payment of their child's tuition at summer camp. Respondents also seek compensatory education. The appeal must be sustained in part. The cross-appeal must be dismissed.

        Respondents have submitted academic reports from the 2000-01 and 2001-02 school years that were not part of the hearing record, and request that I accept such additional evidence. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable me to render a decision (Application of a Child with a Disability, Appeal No. 98-55; Application of a Handicapped Child, 23 Ed. Dept. Rep 390). I will consider the academic report from the 2001-02 school year (Exhibit A to the Answer and Cross-Petition) because it was not available at the time of the hearing. There is no evidence that the academic report from the preceding school year (Exhibit B to the Answer and Cross-Petition) was unavailable at the time of the hearing, and although I do not find it to be dispositive of the issues raised in this appeal and therefore necessary, I will nevertheless exercise my discretion and accept the document, in part because petitioner did not object to its submission (Application of a Child with a Disability, Appeal No. 91-25).

        At the time of the hearing in the fall of 2001, respondents' son was ten years old and in the fourth grade of the Upton Lake Christian School (Upton Lake). Respondents unilaterally placed their son in Upton Lake, which has not been approved by the State Education Department as a private school with which school districts may contract to educate children with disabilities. The student had previously attended one private school for kindergarten and another private school, the Bishop Dunn Memorial School (Bishop Dunn), for the first through fourth grades. He repeated the fourth grade at Upton Lake by respondents' choice. The student was initially identified as learning disabled by petitioner's Committee on Special Education (CSE) in April 2000, but his classification was changed to other health impaired in January 2001. There is no dispute about his classification. In a prior proceeding, the parents' request for an award of tuition reimbursement for kindergarten through the third grade was denied because the request had not been made in a timely manner (Application of a Child with a Disability, Appeal No. 01-087).

        In July 2000, the CSE recommended that the student receive five hours of direct consultant teacher services in a group of five for language arts and social studies, as well as skilled nursing services on an as needed basis and the support of an individual aide during the 2000-01 school year (Exhibits 6, 8, 10). It subsequently amended the student's individualized education program (IEP) for the 2000-01 school year to clarify that the specific services recommended for respondents' son were being offered if the student attended public school (Exhibits 11 and 12).

        An occupational therapy evaluation conducted in February 2001 revealed weaknesses in the student's upper limb speed and coordination, visual memory and visual sequential memory. The evaluator recommended that the student receive group occupational therapy two times per week (Exhibit 17). On the Key Math Test-Revised, which was administered in March 2001, the student achieved a total test score in the low average range, with deficits noted on the rational numbers, subtraction, mental computation, time and money, and problem solving subtests (Exhibit 27). About the same time, the student achieved a level three on the New York State English Language Arts examination. Students who achieve a score in the level three range have demonstrated an understanding of written and oral text with some attention to meaning beyond the literal level, and their writing is generally focused and organized (Exhibit 20).

        In April and May 2001, the district administered the Behavior Assessment System for Children (BASC) to respondents' son. The results of that assessment, when compared to those of the BASC administered during the spring of 2000, indicated that the student's behavior had deteriorated both at home and in school. The evaluator recommended that the student receive individualized education at his instructional level. She noted that instruction at a fourth or fifth grade level, when his skills were at the second and third grade levels, would lead to frustration, minimal progress, and his continued withdrawal from the academic environment including appropriate social interactions with peers (Exhibit 4, 18).

        The student's second quarter report card from Bishop Dunn revealed that he was not graded in grammar, spelling, mathematics and social studies because of incomplete work (Exhibit I). In May 2001, the student's private therapist noted that the student was exhibiting depressive symptoms, lack of motivation, low frustration tolerance and difficulty with anger, and recommended that he be placed in a summer program to address his emotional and behavioral needs (Exhibit I).

        A neuropsychological evaluation was conducted in May and June 2001. The student obtained a verbal IQ score of 100, a performance IQ score of 93 and a full scale IQ score of 96 on the Wechsler Intelligence Scale for Children - III (WISC-III). The evaluating psychologist noted that the student's scores on several subtests were lower than those he had obtained when tested in February 2000. The psychologist reported that the student’s inattention and distraction had increased and that he was experiencing difficulty interpreting cues in social interaction. She recommended that he receive individual attention in a small class, and that he continue to receive counseling. She also recommended psychiatric, vision and speech/language evaluations (Exhibit 23). In July 2001, the principal of Bishop Dunn asked the school district to provide an individual aide for the student (Exhibit 21).

        On August 8, 2001, the CSE recommended that respondents' son be placed in a regular education fifth grade class in the district's Ralph R. Smith Elementary School, and that he receive direct consultant teacher services five times per week for 60 minutes for math and organizational skills, and a full time individual aide. It also recommended that the student receive 30 minutes of individual counseling per week, 30 minutes of group occupational therapy twice per week, skilled nursing services as needed, a behavior modification program and testing modifications (Exhibit 25). It did not recommend a 12-month school program for the student. The CSE indicated on the student's IEP for the 2001-02 school year that the parents would dually enroll their child at Bishop Dunn (Exhibit 25).

        On August 10, 2001, the student's mother requested an impartial hearing because she was dissatisfied with the CSE's recommendation that her son receive special education services only if he attended the district's schools (Exhibit 26). The impartial hearing was held over the course of five days during November and December 2001. The parents sought reimbursement of their child's tuition at Upton Lake and a 12-month program (Transcript pp. 7, 165). On the second day of hearing, the parents requested a 1:1 aide for their child during the course of the hearing (Transcript pp. 20, 21). In an interim decision dated November 15, 2001, the hearing officer denied the parents’ request for an aide. During the course of the hearing, the district acknowledged that a regular education class was an inappropriate placement for the student, but continued to assert that the other components of the program recommended by the CSE were appropriate (Transcript pp. 121-127).

        In a decision dated February 2, 2002, the hearing officer denied the parents' request for an award of tuition reimbursement for the 2001-02 school year upon a finding that the student had not made academic or social progress while attending Upton Lake. He further found that the student was not eligible for a 12-month educational program during the 2001-02 school year because there was no evidence that he would substantially regress without such a program, and the hearing officer denied respondents' request for reimbursement for the cost of their son's summer camp. The hearing officer noted that there was no dispute about the appropriateness of the consultant teacher services, the individual aide and the related services of counseling and occupational therapy that the CSE had recommended for the student. He ordered the district to provide or pay for direct consultant teacher services and the related services of counseling and occupational therapy at Upton Lake, unless the parents consented to another location. The hearing officer also ordered the district to provide or pay for the cost of an individual aide at Upton Lake if the existing volunteer aide discontinued services. Finally, the hearing officer ordered the CSE to reconvene to find an appropriate placement for the student and to determine whether the student would require a program during the summer of 2002.

        As a preliminary matter, I must first address petitioner's argument that respondents' disagreement with the proposed IEP should not have been adjudicated by an impartial hearing officer. The district contends that the hearing officer exceeded his jurisdiction because the state complaint procedure (8 NYCRR 200.5[k]), rather than an impartial hearing, is the exclusive process for challenging the alleged denial of services to a student with a disability privately enrolled in a nonpublic school. In making this argument, petitioner fails to distinguish between federal and state law concerning the due process hearing rights for children with disabilities who are enrolled by their parents in private schools when a free appropriate education (FAPE) is not an issue. Relying upon 34 C.F.R. § 300.457, petitioner asserts that respondents had no right to invoke the impartial hearing provisions of either the Individuals with Disabilities Education Act (IDEA) or Article 89 of the New York Education Law. Petitioner's argument is without merit. Section 300.457 identifies procedures available to resolve "complaints" and reads as follows:

1. Due process inapplicable

   The procedures in Secs. 300.504-300.515 [including due process hearings] do not apply to complaints that an LEA [board of education] has failed to meet the requirements of Secs. 300.452-300.462, including the provision of services indicated on the child’s services plan.
    

2. Due process applicable

   The procedures in Secs. 300.504-300.515 do apply to complaints that an LEA has failed to meet the requirements of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
    

3. State complaints

   Complaints that an SEA or LEA has failed to meet the requirements of Secs. 300.451-300.462 may be filed under the procedures in Secs. 300.660-300.662.

        A board of education must offer to provide a FAPE to each student with a disability residing in the school district who requires special education services (20 U.S.C. § 1412[a][1][A]; Education Law § 4402[2][a]). A board of education's alleged failure to offer a FAPE may be challenged in a proceeding brought pursuant to the due process provisions of the IDEA and Article 89 (20 U.S.C. § 1415[f][1]; Education Law § 4404[1]). Parents who choose to enroll their child in a private school, however, may not rely on the IDEA due process provisions to compel a board of education to provide special education to children so enrolled (34 C.F.R. § 300.457[a]), except insofar as the parents assert that the board failed to offer their child a FAPE (34 C.F.R. § 300.403).

        Although federal law may not provide a basis for the hearing officer’s exercise of jurisdiction in this matter, state law does. Federal regulations (34 C.F.R. §§ 300.450-300.457), adopted in 1999, concerning the rights of private school children with disabilities, did not lead to any corresponding changes in New York State law or regulations. Section 4402(2) of the Education Law requires boards of education to provide special services or programs to students with disabilities. A student with a disability is defined as "a person under the age of twenty-one who is entitled to attend public schools pursuant to section thirty-two hundred two of [the Education Law] and who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education" (Education Law § 4401[1]). If the recommendation of the CSE is not acceptable to the parents, the parents are entitled to the appointment of an impartial hearing officer to review that recommendation (Education Law § 4404[1], 8 NYCRR 200.5 [c]).

        Additionally, section 3602-c of the Education Law requires the provision of special education services to students with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made (Education Law § 3602-c[2]). The timeliness of respondents' request for services is not in dispute. Timely requests for services are to be reviewed by the CSE, and review of the CSE’s recommendation is available by means of the impartial hearing process (Education Law §§ 3602-c[2] and 4404[1]). For students with disabilities enrolled in private schools, Section 3602-c incorporates by reference the Section 4404[1] due process hearing rights made available to students with disabilities in public school. Petitioner's CSE recommended services for respondents' son during the 2001-02 school year but did not indicate on the IEP the site of the services (Exhibit 25). The district indicated, however, in its opening argument that the student was to be placed in the district's elementary school (Transcript pp. 33-34). Respondents objected to the IEP prepared for their son based on the alleged failure of the CSE to recommend that the services be provided at the nonpublic school attended by their son (Exhibit 26). Because respondents sought review of the recommendation of the CSE, they were entitled to an impartial hearing to obtain that review (Education Law § 3602-c[2]), and the hearing officer properly exercised jurisdiction in this matter (Application of a Child with a Disability, Appeal No. 01-106; Appeal of a Student with a Disability, 41 Ed Dept Rep ___, Decision No. 14630, dated August 23, 2001; Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 448).

        Petitioner further argues that the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. In pertinent part, the IDEA provides that:

To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services in accordance with the following requirements… (20 U.S.C. § 1412 [a][10][A][i])

        The federal regulation implementing this statutory provision specifies that:

No private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school. (34 C.F.R. § 300.454[a][1]).

        Although boards of education are required by the IDEA to provide some special education services to some students enrolled privately by their parents in nonpublic schools, no such students are individually entitled under the IDEA to any or all of the services they would receive if enrolled in a public school. The IDEA also authorizes the delivery of whatever special education services are to be provided to such students "on the premises of private, including parochial, schools, to the extent consistent with law" (20 U.S.C. § 1412[a][10][A][i][II]).

        In contrast to the IDEA, New York State law does confer an individual entitlement to special education services to eligible students enrolled by their parents in nonpublic schools. Section 3602-c (2) of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. While subdivision 9 of that section provides that such students "shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools," the New York State Court of Appeals has held that:

"[t]he statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school. Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise [citation omitted], but that is not a matter of statutory compulsion under section 3602-c." (Bd. of Educ. v. Wieder, 72 N.Y. 174, 184 [1988]).

        Petitioner correctly argues that Education Law § 3602-c does not mandate the location where services are to be provided to a student, but its contention that such services can be provided only in the regular classes of the public schools is clearly not supportable in light of Wieder, 72 N.Y. 174 (1988).

        Having determined that dual enrollment services can be provided to students with disabilities either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends, it is necessary to determine where the services required by respondents' son are to be provided. As noted above, there appears to be no dispute that the committee appropriately recommended that the student receive direct consultant teacher services, a full time individual aide, individual counseling, occupational therapy in a group, and skilled nursing services as needed. The district argued that all of those services should be provided at the public school, while the hearing officer concluded that they should be provided at Upton Lake or at another location upon the consent of the parents.

        Related services such as counseling and occupational therapy may be provided to a student in the classroom or in a separate location. The record indicates that individual counseling was recommended for the student because he is anxious, depressed, and withdrawn, and that he needs behavior modification (Exhibit 23). The student requires occupational therapy in a group to improve his visual motor integration skills and upper limb speed and coordination (Exhibit 17). There is nothing in the record to indicate that counseling and occupational therapy could not be appropriately provided to the student at a site other than Upton Lake.

        The purpose of direct consultant teacher services is to develop the student's math and organizational skills to help him benefit from his regular education classes (Exhibit 25; 8 NYCRR 200.1[m][1]). In order to provide such services effectively, it is necessary to provide them in the student's regular class at the nonpublic school he attends. Similarly, the services of a 1:1 full time aide can clearly be provided only at the nonpublic school. As the student's IEP does not specify the nature of the skilled nursing services recommended for him, it is not possible upon this record to determine the location at which they are to be provided.

        In their cross-appeal, respondents seek tuition reimbursement for their son's attendance at Upton Lake during the 2000-01 school year. 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]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; 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 of showing that it had offered to provide a free appropriate public education to an individual child, a board of education must show that it complied with the procedural requirements set forth in the IDEA, and that the recommended program developed through the IDEA's procedure is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). In this instance, the district conceded that the regular education class placement recommended by its CSE did not appropriately address the student's needs and does not challenge in this appeal the hearing officer's finding that it failed to offer respondents' son a FAPE (Transcript p. 126). Therefore, petitioner failed to meet its burden of showing that the program it offered was appropriate.

        Respondents bear the burden of proof with regard to the appropriateness of the services they selected for their son during the 2001-02 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, they must show that the private school offered an educational program which 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 record reveals that the student required primary special education instruction in math and writing, as well as ongoing assistance with transitions, attending and organization (Exhibits 4, 18, 19, 23, 27, K; Transcript pp. 50, 97, 98, 229). He also required counseling to improve his social skills and self-awareness, and related services to address his handwriting difficulties (Transcript pp. 64-68, 238). The student's teacher at Upton Lake detailed the modifications and supports that were provided to him at that school. She minimized the amount of material the student was required to copy from the chalkboard (Transcript p. 230). She also redirected him and allowed him to go to a quiet space in the classroom to complete tests (Transcript pp. 235, 254). His teacher indicated that she simplified test directions, and she gave the student additional time to complete assignments and tests (Transcript pp. 250, 251, 254). She reported that, when possible, she worked with the student individually (Transcript p. 252).

        The teacher acknowledged that she followed a regular education fourth grade curriculum (Transcript p. 229). The student's report cards revealed that he failed math for the first and second quarters of the 2001-02 school year. The student's second quarter report card indicated that skills such as "understands concepts" and "computes accurately" declined from satisfactory to needs improvement during the second marking period (Exhibit A of Cross-Petition).

        The student's language arts grade improved. His report card indicated, however, that he continued to need improvement in written expression, including sentence structure, punctuation and capitalization. The student's ability to apply spelling skills in writing was unsatisfactory (Exhibit A of Cross-Petition). Although his teacher outlined modifications employed to reduce the burden of writing for the student, she confirmed that she did not have time to teach him mapping or outlining strategies (Transcript p. 253). His teacher described handwriting as one of the student's biggest challenges. She opined that he would benefit from assistance in that area because she didn’t have the time to work with him individually, nor did she have the expertise to address his specific motor weaknesses (Transcript p. 238).

        The teacher reported that the student was not a behavior problem and that he had friends in school (Transcript pp. 255, 235). The evaluating psychiatrist reported that the student was doing poorly at school and continued to have difficulty with moodiness and peer relationships (Exhibits 28). The student’s private psychologist reported that the student’s depression and anxiety affected his academic functioning, his social interaction, and his behavior at home (Exhibit F). She opined that the program at Upton Lake was appropriate for the student; however, she acknowledged that she had not worked with the student on attending or academic based skills (Transcript pp. 203, 206, 213-216). She also testified that she did not have any direct contact with his teachers at Upton Lake, nor had she discussed strategies with them (Transcript pp. 217, 218). While the program at Upton Lake appeared to address some of the student’s organizational and social needs, it did not adequately address his deficits in math, written expression, and handwriting with special education instruction. The program at Upton Lake provided the student with accommodations, not specialized instruction in his main areas of need. Accordingly, respondents have not met their burden of proving that Upton Lake provided their son with appropriate services, and they are not entitled to tuition reimbursement. Because respondents are ineligible for tuition reimbursement due to their failure to establish the appropriateness of the program provided at the nonpublic school they selected for their son, it is unnecessary to address whether equitable considerations would prohibit such reimbursement (Application of the Bd. of Educ., Appeal No. 01-014; Application of the Bd. of Educ., Appeal No. 00-045).

        The hearing officer denied respondents' request for a 12-month program, including the request for reimbursement for summer camp tuition, because he did not find evidence that the student would experience substantial regression in the absence of a 12-month program. Twelve-month programming is warranted when a student exhibits severe management needs, is multiply disabled, is recommended for home/hospital instruction, exhibits needs requiring placement in a seven-day residential facility, or exhibits the need for a 12-month special service or program to prevent substantial regression (8 NYCRR 200.6[j]). Substantial regression is the "inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]).

        Respondents rely upon letters written by the student's private psychologist (Exhibits F, I). In May 2001, the psychologist recommended a summer camp, but she acknowledged that she did not know if the camp included an academic component (Transcript p. 208). In her December 2001 letter, the psychologist recommended a summer program in order to "prevent decompensation and loss of academic skills." She stated, however, that she was not familiar with the criteria for determining whether a student is eligible for a 12-month program (Transcript p. 220). The record does not show that the student would suffer substantial regression, and would therefore require a 12-month program. Consequently, the hearing officer properly denied respondents' request for a 12-month program.

        In their cross-petition, respondents requested compensatory education. I find that the issue is beyond the scope of my review because it was not raised below (Application of a Child with a Disability, Appeal No. 01-010; Application of a Child with a Disability, Appeal No. 99-60).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer is annulled insofar as it required that the related services of counseling and occupational therapy be provided at the nonpublic school attended by respondents' son or at another location upon consent of the parents.