03-097

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for the cost of their son's tuition at a private school for the 2002-03 school year. Respondent cross-appeals from that part of the hearing officer's decision which found that it did not meet its burden of showing that its Committee on Special Education (CSE) had recommended an appropriate program for the child for the 2002-03 school year. The appeal must be dismissed. The cross-appeal must be dismissed.

      The child was seven years old and attending the Windward School (Windward) when the hearing began in October 2002. Windward has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities. The child is classified as autistic and his classification is not in dispute. I note, however, that in their petition, petitioners allege that the results of a psychological evaluation conducted in late 2002 established that their son's primary diagnosis is a learning disability or dyslexia, and that while he does not meet the clinical criteria for autism or a pervasive developmental disorder (PDD), he has some remnants of the disorder (Pet. ¶ 1, 30).

        The child was diagnosed as having a pervasive developmental disorder-not otherwise specified (PDD-NOS) in 1997 (Exhibits 3, 4, 5). His ability to process and interpret language is compromised, and as a result he experiences difficulty with academics and social interactions. Specifically, the child demonstrates weaknesses in phonological awareness affecting his ability to decode words and his reading comprehension. Difficulties with auditory attention and recall impact the child's ability to follow directions in the classroom, as well as to derive meaning from lengthy or complex utterances. He also has difficulty extracting meaning from implied information or figurative language making spontaneous conversations and social interaction difficult. In addition, he demonstrates weak pragmatic language skills and problems with social relatedness. The child also exhibits motor deficits, causing difficulties with organization, spelling and writing tasks. Finally, the child demonstrates difficulty with executive functions such as attending, planning and organization.

      The child began receiving early intervention services in April 1997 to address language delays (Exhibit 2). After being diagnosed as having PDD-NOS, his early intervention program was modified to include applied behavioral analysis (ABA), speech-language therapy and occupational therapy (Exhibits 2, 3, 4, 5). In 1998, the child transitioned to preschool and was classified as a preschool child with a disability (Exhibit 6). He was enrolled in a mainstream program where he received special education itinerant teacher (SEIT) services, related services and ABA (Exhibits 6, 8, 9).

        Respondent's CSE met in May 2000 to recommend a program for the child for the 2000-01 school year commencing September 2000 as the child would be turning five years old and transitioning to its jurisdiction (Exhibit 10). The CSE classified the child as autistic and recommended that he be placed in a 12:1+1 special class for kindergarten. In addition, the CSE recommended that the child receive speech and occupational therapy twice per week for 30 minutes, as well as therapeutic consults for speech and occupational therapy. The child's individualized education program (IEP) provided that he would be mainstreamed for physical education, specials, and kindergarten centers (Exhibit 10). The special class in which he was placed was a "looping K-1 special education class" described as a class where the same teacher teaches the same students for the two-year period covering kindergarten and first grade (Transcript p. 570).

        For first grade during the 2001-02 school year, the CSE continued to recommend that the child be placed in the looping K-1 special education class with related services of speech and occupational therapy (Exhibit 13). In addition to physical education and specials, the child was mainstreamed for a homeroom period each day. Initially, an aide accompanied the child and two other classified students to the general education homeroom, but eventually the aide's involvement was reduced because the students made progress assimilating (Transcript pp. 636, 1075). While the child was in first grade, petitioners reportedly provided him with daily tutoring in reading and writing, as well as occupational therapy, a therapeutic riding program and weekly visits to a private psychiatrist (Exhibit 11; Transcript pp. 1597, 1942-44).

        In November 2001, petitioners obtained a psychological/developmental evaluation in order to help them determine their son's needs and make decisions regarding placement and services for second grade (Exhibit 11). Administration of the Weschler Intelligence Scale for Children-Third Edition (WISC-III) yielded a full scale IQ score in the high average range (standard score 111). The evaluators noted that the child's verbal skills were more developed than his visual/perceptual skills and that his attending difficulties resulted in performance variability. The evaluators recommended speech-language therapy, social skills training and placement in a small, structured private mainstream setting.

        In December 2001, in order to complete private school applications, petitioners had their son evaluated by a private psychologist who completed a social-emotional assessment (Exhibit 12). The assessment revealed that the child had difficulty establishing eye contact. The psychologist noted that the child was internally distracted which caused him to abandon task orientation. Difficulty with transitions and perseverative tendencies were noted. The child was described as presenting as a younger child emotionally, who was prone to become dependent on adults when overwhelmed. Projective testing indicated that the child was anxious, and according to the child's mother, the child would physically retreat or retreat into a fantasy world when socially uncomfortable. Among other things, the psychologist recommended that the parents complete applications for several private schools, and that the child participate in a social skills group.

        At a parent teacher conference in December 2001, increasing the child's participation in the general education first grade classroom was discussed (Transcript pp. 1073-74). Beginning in January 2002, the child was mainstreamed daily for math class and a few weeks later he began mainstreaming for science (Transcript pp. 81, 648, 1067-68). The child continued to receive language arts instruction in his self-contained classroom (Transcript pp. 668-69, 1115). No amendments were made to the child's IEP to reflect the increase in mainstreaming, but petitioners did not object to the additional mainstreaming opportunities (Transcript p. 1655).

        Also in January 2002, the child's mother met with respondent's director of special education to discuss programming options for her son for the second grade (Transcript p. 1739). She expressed her dissatisfaction with the alternatives available at respondent's schools as she believed that self-contained classes were very restrictive and that mainstream classes offered only minimal support. She talked about moving to a school district that had inclusion classes.

        An initial educational screening of the child was conducted by Windward in March 2002 (Exhibit O). On the Wide Range Achievement Test - Revised (WRAT-R), the child received standard (and percentile) scores of 99 (47) for reading, 101 (53) for spelling and 108 (70) for arithmetic. On the Windward School - Test of Coding Skills, the child could read 65 percent of consonant vowel consonant (CVC) words correctly, 5 percent of consonant consonant vowel consonant consonant (CCVCC) words correctly, but no other single syllable or multisyllabic words.

        In April 2002, the child's special education teacher administered the Stanford Achievement Test Series, Ninth Addition, Abbreviated Battery (SAT-9) (Exhibit G). Testing yielded grade equivalent (and percentile) scores of 2.0 (55) for word study, 2.8 (83) for word reading, 1.7 (39) for reading comprehension, 2.0 (59) for total reading, 2.4 (72) for problem solving, 2.4 (76) for procedures and 2.4 (77) for total math.

        On May 14, 2002, the CSE met for the child's annual review (Exhibit 16). The CSE recommended that for the 2002-03 school year, the child be classified as autistic and placed in a general education second grade classroom with supplemental special education instruction in the form of resource room one period per day for 40 minutes. In addition, the CSE recommended related services of speech-language therapy in a group of five twice per week for 30 minutes and occupational therapy in a group of 3 once per week for 30 minutes. Program modifications included preferential seating, teacher prompting and refocusing. Testing accommodations included tests administered in a small group, and directions read and explained. Pursuant to the IEP, deficits in the child's social skills would be addressed through the second grade social skills curriculum. The IEP indicated that the child benefited from structured, individualized academic support to reinforce and reteach new concepts and develop consistent strategies for reading. The IEP rationale provided that the child's mother discussed sending her son to Windward with the Committee. The need for a 1:1 aide also was discussed, but ultimately rejected by the CSE as unnecessary (Transcript pp. 1306, 1318).

        By the end of the 2001-02 school year, the child was mainstreamed for the entire day, with the exception of an hour to an hour and one half for language arts which he received in the special class (Transcript pp. 669, 1116). An end of the year progress report revealed that the child had completed many of his 2001-02 IEP objectives including objectives related to attending, comprehending verbal information, understanding and using vocabulary, recognizing sight words, decoding, using mechanics in written language, demonstrating socially acceptable behavior, improving handwriting, and improving muscle strength.

        On July 19, 2002, petitioners, through their attorney, requested an impartial hearing (Exhibit 18). They claimed that the CSE's recommendations for the 2002-03 school year were inappropriate in that the proposed services were insufficient to meet their son's educational needs in the second grade. Specifically, petitioners contend that the CSE failed to recommend a 1:1 aide or consultant teacher to support their son in the general education environment. In addition, petitioners claimed that the district failed to meet state regulations for students classified as autistic by neglecting to offer sufficient levels of speech and parent counseling or training.

        Petitioners unilaterally enrolled their son in Windward for the 2002-03 school year. In September of 2002, petitioners obtained a comprehensive language evaluation through the Soifer Center (Exhibit T). The evaluating therapist recommended that the child receive individual language therapy to address narrative skill development, problem solving and verbal reasoning, and pragmatic language skills. Participation in a social skills group was suggested, as was follow-up with other professionals regarding the child's attending difficulties.

        Also in September 2002, the staff at Windward administered the SAT-9, the same test administered by the child's special education teacher in April 2002 (Exhibit P). The child achieved grade equivalent (and percentile) scores 1.8 (30) for vocabulary and 1.2 (8) for comprehension; significantly lower than his April 2002 scores. On the Windward Test of Coding Skills – Spelling the child was able to spell 50 percent of CVC words correctly.

        The impartial hearing began on October 21, 2002 and continued on November 14, and December 5, 2002. In November and December 2002 while the hearing was proceeding, a psychological evaluation of the child suggested that although the child no longer met the criteria for a PDD diagnosis, he continued to exhibit signs of the disorder, such as preoccupation with minutiae and poor social skills (Exhibit Y). The psychologist administered the WISC-III which yielded a verbal IQ score of 128, a performance IQ score of 116 and a full scale IQ of 125, placing the child in the superior range of intellectual functioning. She noted weaknesses in phonological awareness, following directions, inhibiting impulses, auditory attention and immediate auditory recall, word finding, executive functions, and graphomotor and organizational skills. The psychologist opined that the child "presents with an underlying dyslexic pattern including perceptual reversals and poor phonological processing." She indicated that his academic skills were significantly lower than the levels predicted by his IQ scores and that he met the criteria for a learning disability. She further indicated that the child's writing skills were "dangerously low" and that he appeared to suffer from combined motor deficits, problems with organization and poor application of grammar and spelling mechanics. The psychologist recommended that the child be taught reading and writing using Orton-Gillingham (OG) techniques, and that he receive language therapy in a group of two and participate in a social skills training group. A number of instructional suggestions were offered.

        Later that month, petitioners had their son evaluated by a private learning disabilities specialist to determine academic progress and assess his educational needs specifically as they related to reading (Exhibits V, X). Using the Wilson Assessment of Decoding and Encoding (WADE) as a diagnostic tool, the evaluator identified numerous sounds and words that the child could not decode. The child was able to read simple pre-primer books, but could not decode or comprehend grade level texts. The specialist noted that during a classroom observation of the child at Windward, the child had difficulty staying on task and he labored to complete a writing activity (Exhibit W). She concurred with the psychologist's diagnosis of dyslexia and opined that the child also exhibited an attention deficit disorder (ADD).

        The hearing continued on January 27, 2003. On January 29, 2003, the child's math and homeroom teachers completed the Conners' Teacher Rating Scale [Revised S] (Exhibits L, M). Both teachers indicated that the child was restless and inattentive, that he failed to finish things he started and that he fidgeted and had difficulty remaining still or in his seat. In February 2003, the child began taking medication for ADD (Transcript pp. 1698, 2535).

        The child's February 2003 progress reports from Windward rated numerous reading, spelling and writing skills. Mastered items included reading phonetically regular words with common suffixes, reading phonetically regular words with certain consonants, and reading phonetically irregular words. The remainder of the reading, spelling, listening and writing skills were either not addressed or were rated as "usually demonstrated" or "demonstrated with assistance". The child's teacher reported that the child benefited from OG instruction as he was able to decode materials used in class with increased accuracy and fluency. She noted that the child was able to answer comprehension questions based on his silent reading. The child had mastered a number of math skills including writing and recognizing numbers 1-20, counting to 100, adding and subtracting basic facts through 10, and counting by 2s to 20 and 5s and 10s to 100. His teacher reported that he could solve word problems with teacher assistance, but noted that he needed to be redirected throughout class. The child's social studies teacher reported that the child often needed to be asked to attend to class discussions. His second quarter report card included grades of "satisfactory" (and satisfactory +) for language arts, mathematics and social studies. In science the child's work was rated as "good" (Exhibit K).

        The hearing resumed on February 10, 2003, and after several more sessions concluded in May 2003. The hearing officer rendered his decision on September 21, 2003. He found that the proposed IEP for the 2002-03 school year was procedurally and substantively defective and consequently respondent did not meet its burden of demonstrating that it recommended an appropriate program for the child. Specifically, the hearing officer found that the IEP failed to meet the state regulations for students with autism because it failed to provide for sufficient language instruction and parent training. He further found that the general education second grade social skills curriculum was insufficient to meet the child's needs. The hearing officer also found that the program recommendation was insufficient to meet the child's educational needs in that his needs could not be met in a mainstream class without additional supports.

        Additionally, the hearing officer found that Windward was too restrictive because it did not offer a mainstream component. He noted that there was insufficient information in the record to determine how Windward addressed the child's social and pragmatic language deficits. Accordingly, the hearing officer denied petitioners' request for tuition reimbursement.

        Petitioners appeal from the hearing officer's decision denying their request for tuition reimbursement. They claim that the hearing officer erred in finding that Windward was not appropriate for their son and that it was too restrictive. Respondent Board of Education cross-appeals from that part of the hearing officer's decision which found that it did not demonstrate the appropriateness of its CSE's recommendation.

        I will address the cross-appeal first. 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. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and (b) that the IEP that its CSE developed for the child through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Rowley, 458 U.S. at 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        As noted above, there is no dispute that the child is classified as autistic. Pursuant to state regulation, instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six (8 NYCRR 200.13[a][4]). I agree with the hearing officer that the child's IEP fails to provide sufficient instruction to meet his individual language needs. The IEP provides for speech-language therapy for 30 minutes twice per week in a group of five. It also provides for daily resource room services for 40 minutes in a group of five. While the director of special education testified that the resource room services would be related to language development and that the general education language arts curriculum is a language-based program (Transcript p. 149), I agree with the hearing officer's finding that the evidence in the record is insufficient to conclude that the recommended program would meet the minimum requirements of the regulation.

        I also agree with the hearing officer that the IEP does not provide for parent counseling and training for the purpose of enabling parents to perform appropriate follow-up intervention activities at home as required by 8 NYCRR 200.13(d). At the very least, parent counseling and training should have been listed as a related service on the child's IEP. Furthermore, I note that there is nothing in the record to show that a special education teacher with a background in teaching students with autism would provide transitional support services as required by 8 NYCRR 200.13(a)(6). I remind respondent of its obligation to comply with the provisions of 8 NYCRR 200.13 regarding educational programs for students with autism.¹

        The hearing officer also found that the recommended program of general education with resource room and related services is insufficient to meet the child's educational needs. The CSE recommended that the child participate in all general education programs with resource room support and related services. The recommended program increased the child's participation in the general education program, while decreasing the amount of special education services to support that participation. Given the nature of the child's disability, the increased challenges of a second grade curriculum and the demands of the classroom setting, at the very least, the CSE should have recommended additional special education support services to be provided to the child in the general education setting at the beginning of the 2002-03 school year (8 NYCRR 200.1[cc]; 200.4[d][2][iv]; 200.6[a][1]). Based on the foregoing, I find that the IEP is insufficient and that respondent has not met its burden of demonstrating that it recommended an appropriate program for the child. Having so found, it is not necessary that I address the remaining challenges to the IEP.

        Petitioners are seeking reimbursement for the cost of their son's tuition at Windward. 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]).

        Petitioners bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled their son during the 2002-03 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; 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, petitioners must show that Windward offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; 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 child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20). 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 (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

        There is no dispute that the child has reading decoding and comprehension deficits. Additionally, he has deficits in pragmatic language and weak social skills. The child also is distractible, exhibits impulsive behavior and has poor attending skills. Despite these difficulties, he demonstrates relative strengths in science and mathematics (Transcript pp. 176, 582, 1081, 1108-09). Based upon the information before me, I am not convinced that the child requires a private special education school to meet his special education needs. The record shows that the child attended a mainstream preschool program and was provided mainstreaming opportunities while in kindergarten for physical education, specials and kindergarten centers. At the beginning of first grade, he was mainstreamed for physical education, specials and a daily homeroom period. As noted above, the services of an aide accompanying the child to the general education homeroom was reduced during the school year because he made progress assimilating. Additionally, the child's mainstreaming opportunities were gradually increased during first grade. In January 2002, the child was mainstreamed daily for math class and several weeks later he began mainstreaming for science. With the exception of language arts, by the end of the school year, the child was mainstreamed for most of the day. At the end of the school year, he was able to complete a writing project in the general education classroom.

        With respect to the child's experience in the general education setting, respondent's director of special education testified that the child's behavior was not considered to be disruptive to the child or the class, and that his behavior was not a significant factor in his ability to function in the classroom (Transcript pp. 362, 272). The child's special education teacher for kindergarten and first grade testified that the child was able to generalize the skills that he learned in the special education classroom to the larger general education classroom (Transcript p. 649). He further testified that the child was successful academically in the general education classroom, that he was interacting appropriately socially in the general education classroom, and that he was focusing well, doing his work and showing completed products in the general education classroom (Transcript pp. 660, 676, 683). The child's first grade general education teacher testified that the child had made a friend in her class, that he sits with that friend and that she tires to keep them together (Transcript p. 1083). She further testified that the child was very willing to correct inappropriate language and behavior, and that he was very serious about doing what he was supposed to do and being part of the group (Transcript pp. 1083-85). The child's first grade general education teacher also testified that compared to the other students in her class, the child was above average in science and math, average in the elements of language and his ability to use language, and below average with respect to his social skills (Transcript pp. 1108-11). She opined that the child did not require placement in a predominately special education setting (Transcript p. 1107). Given that the child's education has always included a mainstream component and that he has demonstrated an interest and ability to function in a general education setting with appropriate supports, I am unable to find that a full time special education placement was appropriate. Therefore, petitioners have not satisfied the second criterion for an award of tuition reimbursement. Having reached this conclusion, it is not necessary that I address whether the equities favor petitioners' claim for reimbursement.

        I have considered the parties' remaining issues which I find to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.