03-077

        Petitioners appeal from an impartial hearing officer’s decision which denied reimbursement of one-half of their son’s tuition at the Kildonan School (Kildonan) for the 2002-03 school year and denied reimbursement of one-half of the cost for an independent psychological evaluation. Respondent cross-appeals. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioners’ son was 13 years old and in the eighth grade at Kildonan when the impartial hearing commenced in January 2003. Kildonan is a private school which has not been approved by the New York State Education Department to provide education to children with disabilities.

        The student attended a nonpublic elementary school for the primary grades. He had difficulty learning to read in first grade; consequently petitioners arranged tutoring by a college student and enrolled him in a six-week summer academic camp (Transcript p. 691). In November 1996 while the student was in second grade, a psychologist evaluated the student for a learning disability. Administration of the Wechsler Intelligence Scales for Children–III (WISC-III) yielded a verbal IQ score of 113, a performance IQ score of 119 and a full scale IQ score of 118 placing the student in a high average classification of intelligence. The student’s scores on the Peabody Individual Achievement Test–Revised (PIAT-R) indicated that his academic achievement was well below expected in reading and spelling. The psychologist diagnosed a developmental reading disorder and recommended multisensory remedial instruction (District Exhibit 18). The psychologist also noted some signs of an anxiety related disorder and recommended consideration of supportive psychotherapy. In January 1997, petitioners hired a certified reading teacher to provide their son with tutorial assistance (Transcript pp. 482-484; Parent Exhibit O).

        When the student was reevaluated in January 1999, the psychologist noted that the student’s reading recognition score on the PIAT-R showed a gain of only seven months after more than two years of academic training supplemented with individual tutoring (District Exhibit 31). The psychologist recommended a private school specializing in the education of learning disabled students such as Kildonan. He further suggested a mental health assessment and counseling to address the student’s anxiety. When the psychologist evaluated the student for a third time in November 2000 during the student’s sixth grade year, he encouraged petitioners to consider obtaining district classification of the student as having a learning disability or enrollment at a school such as Kildonan (Parent Exhibit C). Shortly thereafter, petitioners referred their son to the district’s committee on special education (CSE) and applied to Kildonan.

        In December 2000, the school psychologist administered the WISC-III and the Wechsler Individual Achievement Test (WIAT) to the student. The WISC-III yielded a verbal IQ score of 125, a performance IQ score of 120 and a full scale IQ score of 125 indicating that the student was functioning in the superior range of intellectual ability. The student’s scores on the WIAT indicated uneven development of skills ranging from the 3rd to the 94th percentile. The psychological evaluation report notes that there was a significant discrepancy between the student’s cognitive functioning and academic scores in the areas of writing, spelling and reading (District Exhibit 16). The student’s lowest score was in handwriting legibility (Transcript p. 129). Petitioners applied to Kildonan, but there was no placement available (Transcript pp. 811-812). In February 2001, the CSE recommended classification as a student with a learning disability, and the student began attending regular education classes at respondent’s junior high school with a daily resource room period to focus on his reading, writing and spelling deficiencies as well as individual occupational therapy twice per week for thirty minutes (District Exhibit 21; Transcript p. 156).

        During the summer before his seventh grade, the student began exhibiting symptoms of an obsessive compulsive disorder (OCD) (Transcript p. 972), and petitioners sought treatment by a psychiatrist. During the seventh grade year, the student cursed often at school aggravating other students and causing conflicts which resulted in his having to report to the assistant principal’s office (Transcript p. 136). The school psychologist testified that the student lacked the ability to identify specific social cues and deal with the minor things that occur in school. As a result, the student was missing a significant amount of academic time leaving class to call his parents to talk about the resulting conflicts (Transcript p. 140). In March 2002, the school psychologist prepared a behavior intervention plan that limited the student to reporting conflicts to the assistant principal’s office when he arrived in the morning, prohibited the student from calling home except during lunch period "no matter how much he begged," and required immediate notification to petitioners if the student cursed (District Exhibit 2). According to the behavior plan, the student would "lose all electricity for the night" if petitioners were notified he had cursed at school that day. Petitioners also agreed to set up a reward system for the student’s positive behavior and follow up with "outside help."

        In April 2002, petitioners agreed with a district recommendation that the student only attend school in the morning and that he be released from each class five minutes early (Transcript pp. 763-768). The student’s treating psychiatrist wrote a letter recommending the modified schedule (Parent Exhibit J). Before the student was placed on an abbreviated schedule, the school psychologist learned that the student was being treated for an OCD (Transcript p. 193), and on April 26, 2002, petitioners provided the district with an authorization to obtain the student’s records from the student’s treating psychiatrist (Transcript p. 976).

        In early May 2002, a school guidance counselor suggested that the student be placed on home instruction and asked petitioners to obtain a note from his doctor. The student’s treating psychiatrist who had recommended the modified schedule did not support removing the student from school; thus petitioners obtained a note from the student’s pediatrician (Transcript pp. 776-778). The guidance counselor testified that she and the principal were concerned about the student’s safety (Transcript p. 327). The school psychologist testified that "it just wasn’t a good idea for (the student) to be in school at that time because he had problems with socializing and teasing, and he just had a real difficult time getting along with other children" (Transcript p. 1033). The school psychologist further testified that he was not only in fear of the student’s safety, but everyone’s safety as well (Transcript p. 1033). The student received home instruction for the remainder of the 2001-02 school year.

        A subcommittee of the CSE met for an annual review on June 11, 2002 and proposed placing the student in a special program in an integrated setting (District Exhibit 10; Parent Exhibit JJ). Petitioners objected to the proposed individualized education program (IEP) and asked the district to provide a neuropsychological evaluation at the district’s expense, but the district refused. Instead, the district recommended a multisensory reading/spelling and a speech language evaluation (District Exhibit 10; Transcript p. 781).

        On June 13, 2002, Kildonan accepted the student (Parent Exhibit NN). Although petitioners had not yet decided whether to enroll their son at Kildonan, they made a $1,000 deposit towards the $24,000 tuition (Transcript p. 813; District Exhibit 43).

        Following the recommendation of their son’s treating psychiatrist, petitioners brought their son to the Rusk Institute of New York University Medical Center for a neuropsychological evaluation. The neuropsychologist in charge of pediatric psychology and neuropsychology prepared a report which was given to the CSE (Parent Exhibit H). The report indicates that the student had elements of an OCD, a social phobia, emotional issues and learning issues which hampered his ability to benefit from a regular education environment (Transcript pp. 409-410; Parent Exhibit H). The June 2002 speech and language evaluation performed by the district indicated that the student had average to above average language ability (Transcript p. 202; District Exhibit 34).

        On August 15, 2002, the CSE convened and recommended a daily ninety minute period in a special class with a 12:1 student to teacher ratio in an integrated setting, a support period three times per six day cycle, a forty minute individual multi-sensory reading class twice per six day cycle, and a thirty minute individual occupational therapy consultation once a month (District Exhibit 6). The IEP also provided for the use of testing accommodations and assistive technology. Annual goals were set in the areas of study skills, reading, comprehension, the mechanics of writing and written expression. Although the IEP notes that the school social worker would contact petitioners to discuss a social skills group, it states that the student’s "social and emotional levels and abilities are within age appropriate expectation," and the IEP does not specify any management needs.

        By letter dated August 16, 2002, petitioners advised the district of their disagreement with the IEP and their decision to unilaterally place their son at Kildonan (Parent Exhibit KK). The district requested an impartial hearing on the tuition reimbursement request (Transcript p. 8). The hearing commenced on January 16, 2003, and continued on February 12, 20, and 27, 2003, March 10 and 25, 2003, and April 9 and 30, 2003. At the parties’ request, the impartial hearing officer (IHO) extended the hearing to permit the submission of memoranda of law. In a decision dated July 22, 2003, the IHO found that respondent did not meet its burden of showing that its recommended placement for the student for the 2002-03 school year was appropriate. The IHO found, with some reservations, that Kildonan School provided an appropriate program and that portions of the independent evaluation were useful in the hearing, but that incorrect age limits were used in scoring the SCAN-C test of auditory processing. The IHO approved an award of only one-half of the Kildonan tuition, one-half of transportation costs and one-half of the cost of the independent evaluation.

        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 School 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 School 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 (Application of a Child with 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 (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]).

        State and federal law require that a child’s IEP be reviewed and, if appropriate, revised periodically, but not less than annually (20 U.S.C. § 1414[d][4][A][i]; 8 NYCRR 200.4[f]). What constitutes a suitable evaluation depends upon the nature of the child’s disability and the nature of the change in the child’s placement (Application of a Child with a Disability, Appeal No. 93-22). Although a functional behavioral assessment is required in the initial evaluation of a child whose behavior impedes his or her learning or that of others, both state and federal regulations also provide that any subsequent IEP review "shall…in the case of a student whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including behavioral interventions, and supports to address that behavior" (8 NYCRR 200.4[d][3] [emphasis added], 8 NYCRR 2004.[f][1][i]; 34 C.F.R. § 300.346[a][2][i], 34 C.F.R. § 300.346[b]). Federal regulations specify that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child’s IEP would constitute a denial of FAPE to the child" (Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38).

        Where behavior impedes a student from learning, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Glen Cove, Appeal No. 01-060). To properly assess behavior, a functional behavioral assessment should be developed to determine why the student’s behaviors occurred and the impact of the behavior on the child’s academic progress (Application of a Child with a Disability, Appeal No. 00-081). Respondent’s witnesses testified that the student’s behaviors caused them to fear for his safety and the safety of others. As a result, the student received home instruction during the final months of the 2001-02 school year. In spite of these behaviors, the record contains no functional behavioral assessment, and the IEP generated on August 15, 2002 states that the student’s social and emotional levels and abilities are within age appropriate expectations. The CSE erred in failing to ensure that a formal functional behavioral assessment of petitioners’ child was performed and that his social and emotional needs were addressed. Therefore, upon the record before me, I find that respondent has not met its burden of proving that the program recommended by its CSE was reasonably calculated to confer educational benefit.

        A student's parent bears the burden of proof with regard to the appropriateness of the services selected (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 94-34; 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 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 academic dean of Kildonan testified that the school serves students with dyslexia or specific language based learning disabilities (Transcript p. 821). In its eighth grade, the average class size is approximately seven students. The students are instructed using the Orton-Gillingham method, which is a structured multisensory approach to teaching language. In addition, each day every student receives an individual forty-five minute tutoring period with a language training teacher (Transcript p. 827). Moreover, the record indicates that the student progressed well during the 2002-03 school year. The student showed progress in his academic courses which included pre-algebra, literature, earth science and history (Parent Exhibits TT, UU, VV, WW). In addition to meeting the student’s academic needs, the record establishes that the program at Kildonan met his emotional needs. Respondent’s intensive reading coordinator testified that petitioners’ son would benefit from intensive multisensory reading and written expression remediation (Transcript p. 47). The psychologist who performed the independent evaluation testified that a large school and classroom environment could be emotionally and neurologically overwhelming for petitioners’ son and recommended that the student attend small sized classes with teachers utilizing a multisensory approach (Transcript pp. 409-412). The student’s treating psychologist testified that the student’s anxiety symptoms decreased while he was at Kildonan (Transcript pp. 533, 538). The student’s mother testified that he was happier at Kildonan and did his work independently (Transcript p. 800). She further testified that he was learning to eliminate some of his compulsive behaviors such as calling home during the school day and asking an excessive number of questions (Transcript pp. 803-804).

        The child's 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]). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S., 231 F.3d 96). However, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688 [2d Cir. 1989]; Application of the Bd. of Educ. of the Bay Shore Union Free Sch. Dist., Appeal No. 00-080). The record contains ample evidence concerning the student’s difficulty in a regular education environment, and the district itself recommended home instruction for the final months of the prior school year. Balancing LRE requirements against the need to provide an appropriate placement, I conclude that Kildonan was not unduly restrictive, and I find that petitioners have met their burden of demonstrating the appropriateness of the placement at Kildonan for the 2002-03 school year.

        The third and final criterion for an award of tuition reimbursement is that the parents’ claim must be supported by equitable considerations. The board of education argues that petitioners’ claim for reimbursement is unsupported by equitable considerations because petitioners failed to share medical information about the student’s OCD or anxiety on a timely basis and rebuffed the district’s attempts to provide counseling. Having reviewed the record, I find that it does not afford an adequate basis to conclude that the parents failed to cooperate with the CSE. Petitioners opted to obtain private counseling for their son and promptly authorized the release of records requested by the district. Under the circumstances, I find that their claim is supported by equitable considerations and that there is no basis in the record for me to direct that the tuition award be reduced or denied.

        Federal and state regulations provide that a parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense, if he or she disagrees with a school district's evaluation. However, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that a school district's evaluation is appropriate, a parent may obtain an independent evaluation, but not at public expense (34 C.F.R. § 300.502, 8 NYCRR 200.5[g]). At the June 13, 2002 CSE meeting, petitioners requested an independent psychological evaluation, but the district refused to provide one at district expense. Petitioners admit that one of the tests administered by the psychologist was not properly normed for the student’s age, but they contend that the psychologist did not rely upon the results of that test in drawing his conclusions and that the test was only used as a screening device. Based on this testing error, the IHO approved reimbursement of only one-half of the cost of the independent evaluation. In its cross-appeal, respondent contends that reimbursement can be denied where invalidated test results are incorporated into the evaluation. However, the record indicates that the district denied petitioners’ request for an independent evaluation without initiating a hearing. Although the CSE could ask the parents for information concerning the nature of their disagreement with the district’s evaluation, it could not delay instituting a hearing (Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 01-089). Based upon the information before me, I find that the CSE should have either ensured that the evaluation was provided at public expense or initiated a hearing to show that its evaluation was appropriate. Therefore, I find that there is no basis to deny or limit petitioners’ reimbursement claim for the independent evaluation which they obtained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is annulled; and

IT IS FURTHER ORDERED that upon the submission of proof by petitioners to respondent of the amount of the tuition at the Kildonan School from September 2002 through June 2003, respondent shall reimburse petitioners for such expenditure; and

IT IS FURTHER ORDERED that upon the submission of proof by petitioners to respondent of the amount of the independent psychological evaluation, respondent shall reimburse petitioners for such expenditure less any insurance payments petitioners have received.

THE CROSS-APPEAL IS DISMISSED.