05-010

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Staten Island Montessori School for the 2004-05 school year.  The appeal must be sustained.

            At the time of the hearing on November 24, 2004, the child was nearly five years old and attending the Staten Island Montessori School (Montessori School) where she had been unilaterally placed by her parents at the beginning of the 2004-05 school year. The Montessori School has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.   The determination of respondent’s Committee on Special Education (CSE) on May 28, 2004 that petitioners’ daughter is eligible for special education services as a child having a speech or language impairment is not in dispute (Dist. Ex. 2 at p. 1; see 8 NYCRR 200.1[zz][11]).  The services recommended by that CSE are also not in dispute and are considered appropriate by the parties. The recommended services are occupational therapy, physical therapy, speech/language therapy, and the provision for the child of a 1:1 health paraprofessional (Dist. Ex. 2). She is currently receiving these services at the Montessori School (Tr. p. 51). The central issue in this appeal is whether the 12:1+1 special class recommended by the CSE is appropriate. Petitioners contend that it is not and assert that a general education class is the least restrictive environment (LRE) for their daughter.

            The child was enrolled in the Volunteers of America Staten Island Early Learning Center (VOA) for preschool services in September 2002 (Dist. Ex. 3 at p. 1, Dist. Ex. 4 at p. 1, Dist. Ex. 5 at p. 1) and remained there until she was enrolled by her parents at the Montessori School in September 2004 (Dist. Ex. 1). According to a VOA educational progress summary by the child’s special education teacher, dated January 5, 2004, the child participated in all activities at VOA and received speech/language, occupational and physical therapy (Dist. Ex. 3 at p. 1).  In addition, she was provided a 1:1 paraprofessional due to decreased static and dynamic standing balance (id.). The summary describes the child as exhibiting global delays, with significant delays in cognition, severe delays in speech/language skills, and delays in fine and gross motors skills, self- help skills, and social-emotional skills (Dist. Ex. 3). The child’s social-emotional skills were addressed by the special education teacher who noted that the child had just begun to interact and play imaginatively with the other children and that she enjoyed being in school and participated in all activities. The special education teacher opined that the child continued to need a small structured classroom to meet her needs (Dist. Ex. 3 at p. 2, see Dist. Ex. 8 at p. 2).

            A June 20, 2004 letter, by a pediatric neurologist who evaluated the child, noted the child has quadriplegia with significant weakness, balance difficulties, and motor and fine motor coordination deficits. He recommended the services of a health related professional while in school for safety reasons and to assist with adaptive needs (Dist. Ex. 7).  

           On May 28, 2004 respondent’s CSE convened and recommended a special class, with a 12:1+1 student to staffing ratio, in a district community school with the above-mentioned related services (Dist Ex. 2). Respondent's school psychologist testified that the CSE recommendation was based upon teacher reports, observation, prior testing, parent contact, review of records, and extensive teacher and related service provider interviews (Tr. p. 9). He testified that he observed the child in the VOA classroom and that he was familiar with the specific 12:1+1 class recommended for the child (Tr. pp. 11, 19). He described the recommended 12:1+1 placement as  “geared toward” early childhood readiness years and that it "parallels the curriculum of kindergarten" (Tr. p. 20).  He testified that there were children in the class with pervasive developmental disorder (PDD) and children with speech or language impairments (id.).  He noted that reading and math levels of the 11 children in this class were reported to be between the .5 to 1.5 grade level (Tr. pp. 20, 25).  He stated that mainstreaming opportunities were available, that academically and “functionally” she would “fit within” the class, and the class would be appropriate for the child (Tr. pp. 21, 26).

           By letter dated September 4, 2004, petitioners notified respondent they did not believe that the recommended placement offered by the CSE was appropriate for their daughter, they had enrolled their daughter at the Montessori School, and requested an impartial hearing asserting a claim for tuition reimbursement for the 2004-05 school year (Dist. Ex. 1).  The one-day hearing commenced on November 24, 2004.

           At the hearing the child’s mother testified that she observed the recommended classroom three weeks prior to the impartial hearing for half an hour (Tr. p. 47) and witnessed one child screaming, crying and banging his head on the floor and another child who turned her back to the teacher for the entire observation (Tr. p. 48).  She also reported observing that most of the children appeared nonverbal, engaged in little interaction, and that classroom instruction did not match her daughter’s learning style (id.).  Petitioners also submitted a letter from the child’s pediatrician, dated October 29, 2004, stating the child “would be best served if placed in an educational environment where she would be challenged and given the opportunity to maintain higher standards both academically and physically” and recommending that she be placed in a “regular education environment where she can imitate other age appropriate students” (Parent Ex. K-1). 

           At the hearing the mother reported that at Montessori her daughter is in a classroom consisting of approximately 26, mostly nondisabled, very verbal and social, 4 to 6 year old children providing opportunities for interaction with nondisabled students (Tr. pp. 46-47). She testified that her daughter receives assignments in the morning based upon her ability and is able to work at her own pace (Tr. p 46).  She reported that in the afternoon her daughter works with other students in small groups, “she’ll read a book,” and she’s been engaged in activities involving the children naming themselves after dinosaurs (id.).  She also reported that her daughter is receiving the recommended related services at the Montessori School (Tr. p. 51) and that she believed the private placement instruction was appropriate for her daughter (Tr. p. 49). Further, the child’s mother indicated that she had experience with special education services because her brothers had been special education students and she taught special education at a junior high school (Tr. p. 58).

          The child’s Montessori School teacher testified that the child’s class is staffed with three adults (Tr. p 63).  She stated that the child “is enjoying her classroom days,” that she is called on to volunteer and “give news” with other children in a group setting, and that every day she must do language, math, and handwriting work, as well as work in science and geography (Tr. p. 63). She testified that the child “interacts well with other children,” the other children enjoy her company (Tr. p. 66), she verbalizes her wants and needs, “she’s really learning very well” (Tr. p. 67), and she’s “made great improvements…since September” (Tr. p. 64).  

          In a decision dated December 16, 2004, the impartial hearing officer denied petitioners' request for tuition reimbursement for the 2004-05 school year finding that respondent offered an appropriate program and that petitioners did not demonstrate that the private placement was appropriate (IHO Decision at p. 10).  The impartial hearing officer further found that the Montessori School was not an appropriate placement citing, inter alia, the credentials of the teacher, the failure to provide a special education class, the teacher’s lack of familiarity with the child's individualized education program (IEP), and the absence of a nurse and existence of barriers in the school (id.).

         The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). 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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's failure to select a program 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]).  The 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. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043). 

         To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

         An appropriate educational 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. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

        An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]). 

        An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

        In addition, the IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).

       The test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with the use of supplemental aids and services, and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R., 874 F.2d at 1048; Oberti 995 F.2d at 1213; Warton, 217 F. Supp.2d at 274; A.S. v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). Several factors must be considered at each stage of the inquiry. When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, these factors include, but are not limited to: "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Oberti, 995 F.2d at 1217-18; see also Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. at 987-990; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).

        I disagree with the impartial hearing officer’s determination that respondent offered the child a FAPE for two reasons. First, respondent has not demonstrated that its proposed program was based upon sufficient evaluative data to determine this child’s particular educational needs.  The record does not contain any evaluations, nor references to evaluations, that should have been conducted as part of the CSE referral and eligibility determination process (8 NYCRR 200.4 [b]). Moreover, although the school psychologist testified that the CSE recommendations were based in part upon testing of the student, those test results are not part of the record.  Second, neither the IEP document nor testimony concerning the CSE decision-making process, indicate that the CSE gave sufficient consideration to whether education of the child could be satisfactorily achieved in the regular education environment with the use of supplementary aids and services (8 NYCRR 200.1[cc], 200.4[d][4][ii]).

       Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the student for the 2004-05 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by the Montessori School during that school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  In order to meet that burden, the parent must show that the private school provided services that met the student's special education needs (Burlington, 471 U.S. 359, 370).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

       The record shows that that despite the student’s delays she was recommended for regular education placement by her pediatrician, in part to model nondisabled peers, and that she was successfully integrating with nondisabled peers. There is evidence from both her mother and teacher that she was receiving appropriate instruction to match her learning style. Moreover, the record indicates that she was making progress at the Montessori School.  The record would have been more complete had the teacher provided specific examples of, or data pertaining to, measurable progress, as well as more detailed information concerning how the Montessori School program matched the child’s needs as identified by the proposed IEP.  However, I note that the impartial hearing officer limited the teacher’s testimony and did not allow her to testify about the appropriateness of the recommendations contained in the IEP (Tr. p. 64). The impartial hearing officer did not allow her to testify about the IEP recommendations because the teacher did not have a degree in special education (Tr. p. 65). I find that he erred in doing so; the witness had been teaching preschool and kindergarten for 22 years (Tr. p. 62) and was aware of the IEP and knowledgeable about the child (Tr. p. 64).  As a result of his ruling, he impeded the development of an adequate hearing record pertaining to the appropriateness of the private placement (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 00-039).  Despite the impartial hearing officer’s incorrect evidentiary ruling, I find there is sufficient evidence to conclude that the private placement at the Montessori School is appropriate.

         The final criterion for an award of tuition reimbursement is that the parents' claim be supported by equitable considerations.  A review of the record reveals that the parents cooperated with respondent's CSE in its development of an appropriate program for their daughter.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent shall reimburse petitioners for the cost of their child’s tuition at the Montessori School for the 2004-05 school year upon petitioners’ submission of proof of payment for such expenses.