02-083

         Petitioner, the Board of Education of the West Hempstead Union Free School District (district), appeals from an impartial hearing officer's determination requiring the district to reimburse respondents for the cost of providing special education to their son for the 2001-02 school year. The appeal must be dismissed.

        At the time of the hearing, respondents' son was ten years old and a student at the Hebrew Academy of Five Towns and Rockaway (HAFTR). Since kindergarten, he has attended HAFTR's special education program, Communities Acting to Heighten Awareness and Learning (CAHAL). The district's Committee on Special Education (CSE) classified the student as other health impaired (District Exhibit 9). That classification is not disputed.

        When respondents' son was six years old, a psychiatrist diagnosed him with Asperger's Syndrome (Parent Exhibit 3). The student's intellectual functioning is in the average range (District Exhibit 3). He performs on grade level in language arts, math, and social studies but exhibits difficulty with other subjects (Parent Exhibit 18). He exhibits weaknesses in pragmatic language, transitioning and sensory processing (District Exhibits 2, 5, 6). During testing, the student displayed facial grimaces and extraneous movements (District Exhibit 5). His mother reported that he has temper tantrums, poor frustration tolerance and difficulty meeting new people, and that he is anxious (District Exhibit 6).

        The CSE convened on June 14, 2001 to develop an individualized education program (IEP) for the 2001-02 school year (District Exhibit 8). Three placement options were discussed, and the CSE agreed to recommend a placement after the parents observed them (District Exhibit 8). The CSE reconvened on September 4, 2001, at which time it recommended placement in a special class with a student-teacher ratio of 15:1 and participation in the mainstream for science, lunch/recess, art, music, and physical education. The CSE discussed that students left the special class at various times during the school day for electives and mainstreaming, leaving approximately half of the students in the class for most of the day (District Exhibit 9). The mother testified that she was undecided about the placement (Transcript p. 687); therefore, she enrolled her child in CAHAL. She visited the placement recommended by the CSE in October (Transcript pp. 687-88). In November, the parents' attorney requested an impartial hearing to obtain tuition reimbursement for the 2001-02 school year (District Exhibit 18).

        On January 10, 2002, the CSE developed two IEPs for respondents' son. The first IEP was referred to as a dual enrollment IEP. That IEP indicated that the recommended placement was a special class with a student to staff ratio of 15:1 and that no related services were being offered outside of the special class (District Exhibit 10). The second IEP also described the recommended placement and indicated that a dual enrollment IEP had been developed (District Exhibit 11).

        The hearing began on February 11, 2002, and it continued over the course of five days, concluding on June 28, 2002. The hearing officer considered the IEPs developed on January 10, 2002. She held that the district did not provide respondents' son with a free appropriate public education (FAPE) because its CSE inappropriately failed to offer dual enrollment services. The hearing officer ordered the district to reimburse respondents for the cost of their child's tuition at CAHAL. She further ordered the CSE to reconvene to review the Handbook on Services to Pupils Attending Nonpublic Schools, a publication of the New York State Education Department, and the recommendations of the speech-language pathologist who performed an evaluation pursuant to an order by the hearing officer during the course of the hearing (Transcript pp. 744-45; Parent Exhibit 34).

        Petitioner board of education appeals asserting that the CSE recommended an appropriate placement, that the parents' unilateral placement was inappropriate, and that equitable considerations did not warrant tuition reimbursement. Petitioner further asserts that the hearing officer did not properly address its responsibility to provide services to a student enrolled in a private school.

        Petitioner is correct in its assertion that the hearing officer failed to properly address its responsibility to provide services to a student enrolled in a private school. Parents may seek reimbursement of tuition when they unilaterally place their children in private schools due to a school district's alleged denial of a FAPE (34 C.F.R. § 300.403[c]).¹ The fact that a student has always attended private school does not preclude parents from asserting their due process rights (Application of a Child with a Disability, Appeal No. 01-079).

        Respondents' son is entitled to a FAPE, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). 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]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 02-092).

        In order to meet its burden to show that it offered to provide a student with a FAPE, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015).

        An IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals and objectives or benchmarks, and provide for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014). Evaluations were performed in June 2001 in anticipation of the student's triennial review (District Exhibits 4, 5, 6, 8). A speech-language therapist screened the student using the Clinical Evaluation of Language Fundamentals – Revised (CELF-R) and administered the Test of Problem Solving (TOPS). The student's scores on the CELF-R screen, which measures vocabulary, auditory processing and oral language production, fell within age norms. He achieved a total age equivalent of 8.0 and a total percentile of 17 on the TOPS. The evaluator indicated that the student exhibited a relative weakness in pragmatic language skills but that his overall language skills were "grossly within age expectations" (District Exhibit 5). The school psychologist indicated that, during his observation, respondents' son gave inappropriate responses and required more individual attention than other students in the class (Transcript pp. 36-39). The student's pragmatic language skills had been evaluated in the past (Parent Exhibits 6, 7). In June 2000, a speech-language pathologist recommended that the CSE consider addressing the student's pragmatic language through counseling (District Exhibit 41). At that time, the CSE recommended declassification of the student, but it did not recommend declassification support services (see 8 NYCRR 100.1[q]; District Exhibit 39). The student has a history of weakness with pragmatic language, and the evidence shows that he continues to experience difficulties. In light of the student's relatively low pragmatic language scores on the TOPS and his history of difficulties in that area, the CSE should have performed further evaluations of the student's pragmatic language skills. Such evaluations are needed in order to develop goals and objectives indicating how the student would improve his pragmatic language skills.² Given the student's needs in the area of pragmatic language, the lack of an adequate evaluation of those needs, and the inadequacy of the IEP in addressing his pragmatic language deficits, the failure to perform adequate evaluations constitutes a procedural violation that resulted in the loss of educational opportunity and resulted in formulation of a program that was not reasonably calculated to enable the student to receive educational benefits.³

        The CSE recommended a program that included a class with a student to teacher ratio of 15:1 (District Exhibit 9). The student was grouped with other students who had similar needs (District Exhibit 19). Students left the class at various times during the school day for electives and mainstreaming, which left approximately half of the 15 students in the class for the majority of the day (District Exhibit 9). The evidence shows that the student was distractible and often needed to be redirected and that he had difficulty with transitions (District Exhibits 2, 22, 23; Transcript pp. 38-42). A classroom atmosphere that includes students exiting to and returning from mainstream classes and electives is not appropriate for a student who is easily distracted. Although approximately half the students would consistently be absent from the classroom, the class could potentially have 15 students. The size of the recommended class is too large for a student who needs consistent redirection and who has difficulty with transitions. I find that the CSE did not recommend an appropriate program because the program was not reasonably calculated to enable the child to receive educational benefits.

        Respondents bear the burden of proof with regard to the appropriateness of the services selected for their son during the 2001-02 school year (Application of a Child with a Disability, Appeal No. 02-093). In order to meet that burden, they must show that the private school provided an educational program that met their son's special education needs (Burlington, 471 U.S. at 370). 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 evidence shows that the student had needs in transitioning and in social functioning. The district's psychologist observed that the student needed to be redirected during class and needed assistance transitioning among activities (Transcript pp. 37-42). The student's teacher testified that respondents' son had difficulty making eye contact, he did not always seem to be aware that others were present, and he easily lost focus (Transcript pp. 449-52, 458). The staff at CAHAL created an IEP for the student that addressed those needs. The goals on the IEP included following oral directions in a timely manner, maintaining attention and concentration during group lessons, transitioning independently among tasks, asking questions, establishing eye contact, speaking in an appropriate volume, expressing feelings, establishing positive peer relationships, and interacting in group activities (Parent Exhibit 29). The student to staff ratio in the student's class at CAHAL is 7:1+2. The teacher testified that she addressed listening skills and worked with respondents' son to improve his eye contact (Transcript p. 450). The student also participated in a social skills class (Parent Exhibit 26). A staff member was available to prompt the student to ask questions when he needed assistance (Transcript p. 454). To address difficulty with transitions, the teacher maintained a schedule of activities on the board with the necessary supplies for each activity. She also reviewed a checklist of activities with her students every day (Transcript p. 465). The student was making appropriate academic progress (Exhibits P-18, P-32).

        Petitioner asserts that the private placement was not in the least restrictive environment (LRE). To the maximum extent appropriate, students with disabilities must be educated with nondisabled students (34 C.F.R. § 300.550[b][1]; 8 NYCRR 200.6[a][1]). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the placement selected by the parents may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105). I have found that the placement recommended by petitioner was inappropriate because the student has needs that cannot be met in a class with a student to teacher ratio of 15:1. In the private placement, there are fewer students and more staff, and the student's needs for redirection and assistance with transitioning are met in the classroom. The student also participates in a social skills class to help him develop appropriate peer and adult relationships (Parent Exhibit 26). I find that the private placement does not violate the requirement that students be educated in the LRE.

        The evidence shows that the unilateral placement appropriately addressed the student's needs. Furthermore, the evidence shows that the parents were cooperative with the CSE and willing to consider the CSE's recommendation. Equitable considerations do not warrant a denial of tuition reimbursement.

THE APPEAL IS DISMISSED.