97-007

        Petitioner, the Board of Education of the Frewsburg Central School District, appeals from the decision of an impartial hearing officer which ordered petitioner to pay for the cost of the regular education preschool program in which respondents had enrolled their son for the 1996-97 school year, and to transport the child to that program. The boy was enrolled by his parents in the Jamestown Community College Children's Center (Children's Center). The preschool program of the Children's Center has not been approved as a provider of special services or programs by the Commissioner of Education pursuant to Section 4410 (9) of the New York State Education Law. Petitioner contends that it is precluded by Section 4410 of the Education Law from paying for the child's tuition in an unapproved preschool program. The appeal must be dismissed.

        At the outset, I must address respondent's contention that a State Review Officer cannot impartially decide this appeal because the board of education is purportedly seeking a determination that the State of New York should pay for at least some of the cost of their son's tuition in his regular education preschool program. The Commissioner of Education has established criteria for the impartiality of State Review Officers (see 8 NYCRR 279.1 [c]). Having reviewed those criteria, I find that I have no personal, economic or professional interest in the outcome of this proceeding. Although the parties have alluded to the provisions of the New York State Education Law and to the alleged policies of the State Education Department, I must base my decision upon the facts which are presented to me in this proceeding, and upon the relevant provisions of Federal and State law. As was noted recently in M. M. and D. M. on behalf of J. M. v. Board of Education of the Waterville Central School District et al., (95-CV-1407, U.S. D.C. N.D. N.Y.), the State Review Officer acts independently of other State officials. I find that respondent's contention is without merit (see Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-79).

        Respondents' son, who recently became four years old, has been identified as a preschool child with a disability by petitioner's committee on preschool special education (CPSE). The child reportedly had poor lung development at birth, and required the assistance of a ventilator for some time after birth. He has required the use of a gastric feeding tube to satisfy his nutritional needs since he was approximately six months old. In February, 1995, the child was evaluated for a suspected hearing loss at the WCA Hospital in Jamestown, New York. Thereafter, his hearing was assessed at the Cleveland Clinic Foundation, where he was reportedly found to have at least a mild to moderate bilateral hearing loss. He reportedly began to use hearing aids in the Spring of 1995.

        I note that although the child reportedly received an audiological evaluation at the Helen Beebe Speech and Hearing Center (Beebe Center) in Easton, Pennsylvania, during August, 1995, there is no documentary evidence of the child's hearing loss in the record which is before me. At the hearing in this proceeding, the Executive Director of the Beebe Center, who is a speech/language pathologist and an audiologist, testified that the child's bilateral hearing loss ranged from severe in the lower frequencies to profound in the higher frequencies. The Executive Director further testified that when the child was evaluated in October, 1996, using an FM system to amplify sound, his hearing was in the normal range for low frequency sound, but the child had a mild hearing loss in the mid-frequencies, and a moderate hearing loss in the high frequencies. The development of the child's speech/language skills has also been delayed. When evaluated at the Beebe Center in August, 1995, the child attained an age equivalent score of six months for receptive language skills, and an age equivalent score in the four-to-eight month range for expressive language skills. He was twenty-six months old at the time of his evaluation. His hearing/listening skills were reported to be at the three and one-half month old level. There is no dispute about the child's eligibility for classification as a preschool child with a disability.

        Respondents' son began receiving occupational therapy at the age of approximately six months to improve his oral motor and fine motor skills. He also received speech/language therapy under the auspices of the Chautauqua County Early Intervention Program, which provides services to children with disabilities up to the age of three (see New York State Public Health Law Sections 2540 - 2559-b). While in that program, the child was evaluated in the Fall of 1995 at the Silver Creek Montessori School, Inc. He achieved an age equivalent score of twenty-one months on the Bayley Scales of Infant Development - 2nd Edition, which was indicative of a 25 percent delay in the development of his skills. However, the evaluator cautioned that the Bayley Scales had not been normed on a hearing impaired population. She reported that the child had demonstrated adequate fine and gross motor skills to complete requested tasks, and that he was able to successfully engage in various activities, with support/limitations provided by a caregiver. The evaluator also reported that the boy could focus for as long as five minutes upon tasks in which he engaged. The child used some sounds spontaneously, and other sounds when prompted.

        In July, 1996, the child was referred to petitioner's CPSE by the Early Intervention Program because the CPSE is responsible for recommending appropriate special education services for children with disabilities between the ages of three and five (see Section 4410 [3] of the Education Law). In accordance with the provisions of Section 4410 [4][b] of the Education Law, respondents opted to have the child evaluated by the Jamestown Public Schools.

        The Jamestown school psychologist who evaluated the child on August 29, 1996 reported that the boy was primarily nonverbal, and that he had difficulty attending to and following simple verbal directions. However, the child's performance improved significantly when he was given visual directions and was solving nonverbal problems. At the time of the evaluation, respondent's son was thirty-eight months old. He achieved an age equivalent score of twenty-seven months on the Bayley Scales, which was approximately two standard deviations below the mean. The psychologist noted that the child's low score was primarily due to the delays in his verbal skills which were caused by his hearing impairment, and cautioned that the test results should not be viewed as an accurate estimate of the child's future cognitive potential. She opined that the child's severe verbal delays could best be addressed " ... in a classroom setting for as much time per week as parents feel appropriate up to 5 hrs per day 5 days per week" (Exhibit 6). The Jamestown School psychologist also identified fifteen cognitive and social goals for the child to achieve. Relying upon information which the child's father had provided, another Jamestown evaluator assessed the child's adaptive behavior. The child achieved age equivalent scores of twenty-four months in the physical domain, twenty-six months in the self-help domain, twenty-two months in the social domain, twenty-one months in the academic domain, and twenty months in the communication domain.

        When the CPSE met with respondents on September 5, 1996, it reviewed the results of the child's evaluation, by the Jamestown Public Schools, in addition to a health report, the August, 1995 report from the Beebe Center, and reports from the child's speech and occupational therapists. However, it did not have the results of an audiological evaluation of the boy. The CPSE considered various educational programs for the child, ranging from the provision of only speech/language therapy and occupational therapy to placement in a self-contained special education class in the Rogers Elementary School of the Jamestown Public Schools. Respondents asked the CPSE to recommend that the child be placed in the regular preschool education program of the Children's Center, in which they had enrolled their son. They also requested that he be provided with speech/language therapy employing the auditory-verbal approach, as well as occupational therapy. Respondents were reportedly opposed to having their son placed in the self-contained special education class.

        The CPSE also discussed whether to provide the child with special education itinerant services (SEIS), in addition to speech/language therapy and occupational therapy. SEIS is defined by statute as an approved program provided by a certified special education teacher in accordance with the Regulations of the Commissioner of Education, at a site determined by the CPSE's board of education, which may include an approved or licensed prekindergarten or Head Start program, the child's home, a hospital, a state facility, or a child care location (Section 4410 [1][k] of the Education Law). Respondents reportedly rejected the CPSE's offer to provide SEIS because they believed that their son needed to have the consultant teaching services of a teacher of the deaf and hearing impaired, rather than those of a teacher having the generic certification as a teacher of special education (see 8 NYCRR 80.6) which the CPSE had offered. The CPSE recommended that respondents' son be classified as a preschool child with a disability. It further recommended that the child receive 30 minutes of individual speech/language therapy five times per week, and 60 minutes of individual occupational therapy twice per week.

        In a letter to the CPSE chairperson, dated September 19, 1996, the child's mother asserted that the speech/language therapy and occupational therapy which the CPSE had recommended did not address all of her son's needs. She requested that a hearing be held to review the CPSE's recommendation. The hearing in this proceeding was held on November 15, 1996. Respondents asserted that the CPSE's recommendation was inappropriate because it had not included the daily services of a teacher of the deaf, consultation once per month by an audiologist to assess the operating condition of the child's hearing aids, placement of the child in a regular preschool education program, and transportation of the child to that program. The board of education asserted that its CPSE had complied with the provisions of Section 4410 of the Education Law, and that it was explicitly precluded from using public special education funds to pay for regular preschool education services.

        The hearing officer rendered his decision in this proceeding on December 30, 1996. He noted that the CPSE had the burden of establishing that the individualized education program (IEP) which it had prepared for the child was reasonably calculated to enable him to receive educational benefits in the least restrictive environment (see Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982], and 34 CFR 300.550 [b]). The hearing officer found that the child needed to be placed in a regular education class, such as the class at the Children's Center in which his parents had unilaterally enrolled him, to appropriately develop his communication skills, and to receive a free appropriate public education. He held that it was the board of education's responsibility under Federal law to provide the child with a regular preschool education placement on a five day per week basis, at no cost to his parents. He also directed the board of education to reimburse the child's parents for their expenditures for the child's tuition at the Children's Center. The hearing officer further found that petitioner was required to provide the child with transportation to the site of the regular preschool education program, and to reimburse respondents for their expenditures for transportation.

        With regard to respondents' request that their son receive consultant teacher services from a certified teacher of the deaf and hearing impaired, the hearing officer found that the child should receive those services five times per week on an interim basis. However, he directed the CPSE to reassess whether the child required that amount of consultant teacher services. He directed petitioner to provide, or reimburse the parents for the cost of, the services of an audiologist to examine the child's hearing aids at least once every three months. The hearing officer also directed the board of education to provide, or pay for the cost of, training for the child's speech/language therapist in the auditory-verbal approach to speech/language therapy.

        In its appeal from the hearing officer's decision, the board of education asks that I determine only whether it should be responsible for the cost of the child's tuition in, and transportation to, the Children's Center. It asserts that its CPSE was required by the provisions of Section 4410 (5)(b)(i) of the Education Law to recommend only a facility or service provider which had been approved for that purpose by the Commissioner of Education. It further asserts that Section 4410 (10)(c) of the Education Law explicitly prohibits the expenditure of public funds for day care services at an unapproved facility. Section 4410 of the Education Law provides that each board of education is responsible for providing special services and programs to the preschool children with disabilities who reside within the school district, and that the "municipality" [in this instance, Chautauqua County] where the child resides is financially responsible for the cost of the approved program or services selected by the board of education. Petitioner alleges that Chautauqua County, which is not a party in this proceeding, has informed the board of education that the county will not pay for the cost of the child's placement in the Children's Center, which as noted above, has not been approved by the Commissioner of Education as a provider of special education services to preschool children with disabilities. The board of education asserts that if the hearing officer's decision is not annulled, it will be required to bear the cost of the child's preschool placement, contrary to the provisions of Section 4410 of the Education Law.

        This appeal presents a number of issues, although not necessarily each of those which petitioner has asked me to address. The initial question is whether the board of education was obligated to provide respondent's son with a free appropriate public education during the 1996-97 school year. In this instance, there is no dispute that the child is a preschool child with a disability. Therefore, it was petitioner's responsibility to provide him with a free appropriate public education (20 USC 1412 [2][B]; Section 4410 [2] of the Education Law). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CPSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 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 child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        The IEP which was entered into evidence by the board of education was a one-page document which indicated that the boy had been classified as a preschool child with a disability, and that he was to receive speech/language therapy and occupational therapy, beginning September 13, 1996. However, the IEP did not report the child's present levels of performance, nor did it include any annual goals or short-term instructional objectives (cf. 8 NYCRR 200.4 [c][2][i]+[iii]). Although the board of education offered a separate document purporting to be annual goals which the child's speech/language therapist had prepared, the CPSE chairperson conceded that the CPSE had not reviewed and approved the goals. I find that the board of education failed to meet its burden of proof.

        A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). In this instance, the board of education has failed to meet its burden of proof.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Children's Center during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (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. 94-20).

        Although the Director of the Children's Center testified that respondents' son had adapted well to the routine of his preschool class in the Children's Center, she did not identify any special education service which the Center was providing to the child. However, the hearing officer found, in effect, that the Children's Center addressed the child's special education needs because he needed to be placed in a classroom with peers having normal speech/language and behavioral skills in order for him to obtain a significant educational benefit from his educational program. The board of education in its appeal has not addressed the hearing officer's finding, which is critical to respondents' burden of proof with respect to the second of the three criteria for tuition reimbursement. In any event, I note that Ms. O'Boyle, the child's speech/language therapist testified that it was very appropriate for the child to be placed with non-disabled children who would provide him with appropriate models for syntax, enriched vocabulary, and pragmatic skills (Transcript, page 126). Ms. O'Boyle's testimony was supported by that of Dr. Goldberg, a speech/language pathologist with additional training in rehabilitative audiology. Dr. Goldberg, who was the Executive Director of the Beebe Center in 1995, and who subsequently became the boy's private speech/language therapist in March, 1996, testified that it was critical for the child to be grouped with his hearing peers to develop his communication skills (Transcript, page 165). The board of education did not rebut the testimony of either witness. In addition, I note that at least some of the cognitive and social goals which the Jamestown School psychologist had recommended for the child could only be accomplished in a classroom setting. Upon the record which is before me, I find that the child's parents have met their burden of proof with respect to the appropriateness of the services provided by the Children's Center (Application of the Board of Education of the City School District of the City of New York, supra).

        The third and final criterion for tuition reimbursement is whether equitable considerations support respondents' claim for tuition reimbursement. Although the child's mother acknowledged at the hearing that she had additional evaluative information about the child which she had not given to the CPSE, she asserted that CPSE had not asked her for additional information. In view of the limited information about this child which the CPSE appeared to have, I am troubled by the parent's failure to provide the additional information to the CPSE. Nevertheless, it was the CPSE's responsibility to acquire adequate information about the boy's needs to prepare an appropriate IEP for him. There is no evidence that respondents have failed to cooperate with the CPSE. I find that equitable considerations support respondents' claim for tuition reimbursement.

        With regard to respondents' claim for reimbursement for the child's transportation to and from the Children's Center, I note that Federal statute defines the term "related service" to include transportation (20 USC 1401 [a[1]), while neither State statute nor regulation includes transportation within the definition of related services. Nevertheless, Section 4410 (8) of the Education Law requires the board of education to provide suitable transportation to preschool children with disabilities. Having found that the program of the Children's Center provided respondents' son with the opportunity to improve his communication skills in the least restrictive environment with the consultant teacher and related services provided by petitioner, I further find that the child required transportation in order to benefit from his program of instruction. Accordingly I find that petitioner should reimburse respondents for their expenditures for the child's transportation to and from the Children's Center during the 1996-97 school year.

        Although I recognize that petitioner has asked me for what are at this point advisory opinions concerning how it could have prospectively contracted with an unapproved service provider, and whether the State, county, or school district should bear the cost of the child's tuition and transportation, I find that those questions are beyond the scope of this proceeding which was to determine what services should have been provided to the child during the 1996-97 school year, as well as the appropriate remedy for any failure to provide those services. Having determined what services should have been provided and that the hearing officer correctly applied the principles of the Burlington and Carter decisions to the facts in this proceeding to provide a remedy, my review must conclude.

THE APPEAL IS DISMISSED.