94-002

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' child be enrolled in a BOCES non-residential special education program for the 1993-94 school year, and which found that the information in the record of the hearing did not afford an educational basis for placing the child in the private residential school in which petitioners had enrolled the child. Upon the limited record before me, I must find that respondent has not demonstrated the appropriateness of the program recommended by its CSE, and will sustain petitioners' appeal to that extent. However, I must further find, as did the hearing officer, that the record does not afford an adequate basis for finding that the child's educational needs required that she be placed in a residential school, and that petitioners are not entitled to be reimbursed for their expenditures for the child's tuition at the private residential school during the 1993-94 school year.

Petitioners' child, who is 17 years old, is classified as learning disabled. The child's classification is based upon the results of prior psychological and educational evaluations which revealed that the child had cognitive difficulties which affected her language, perception, perceptual organization, and computational skills, as well as difficulties attending, i.e., concentrating. In an educational evaluation conducted in September, 1990, as the child entered the ninth grade, her reading and mathematical skills were found to be at the mid-fourth grade level, while her spelling skills were reported to be at the seventh grade level. The child's writing skills were found to be in the first stanine. Her classification as learning disabled is not disputed in this appeal.

The child reportedly experienced academic difficulty in the early elementary grades. She participated in respondent's Learning Strategies Program for children with organizational processing deficits. In the sixth grade, the child began to receive private tutoring and therapy. During the 1989-90 school year, the child failed seventh grade English, mathematics and social studies. In August, 1990, petitioners referred the child to the CSE, which recommended that she be classified as learning disabled and that she receive resource room services for the eighth grade during the 1990-91 school year.

In September, 1991 the child entered the ninth grade in respondent's high school. The child, who continued to receive resource room services during the ninth grade, reportedly cut classes and had academic difficulties early in the 1991-92 school year. On October 30, 1991, the child was placed by petitioners in a psychiatric hospital in Connecticut. In the hospital admission summary, the child was reported that she had become increasingly depressed since starting high school, and that conflicts between petitioners about her performance in school and adherence to her parents' rules had escalated to the point of violence. The child was medically diagnosed as having a major depression and oppositional disorder, as well as a learning disability.

Respondent paid for the child's education while she was hospitalized. In December, 1991, the child was unilaterally placed by petitioners in a private school in Massachusetts. On January 16, 1992, the CSE recommended that the child's classification be changed to learning disabled/emotionally disturbed, and that the child be placed in a public school or a private school approved by the New York State Education Department. The CSE rejected petitioners' request that respondent pay for the child's tuition at the private school in Massachusetts, which was not approved by the New York State Education Department.

The child remained in the private school in Massachusetts for the remainder of the 1991-92 school year. During the Summer of 1992, the child was interviewed by a representatives of the BOCES of the Southern Westchester County, to whom the child had been referred by the CSE. The child was determined to be eligible to attend the BOCES Project Learn Program at the Ardsley High School for the 1992-93 school year. However, the CSE did not specifically recommend the Project Learn Program for petitioners' child. Petitioners placed the child in the Forman School, a private, residential school located in Connecticut, which is not approved by either New York or Connecticut to provide instruction to children with disabilities. The child remained in the Forman School for all of the 1992-93 school year.

In March, 1993, petitioners requested that an impartial hearing be held to review the child's program and placement for the 1992-93 school year and the CSE's refusal to recommend that respondent pay for the child's tuition at the Forman School. The hearing was completed on June 7, 1993. In a decision dated July 14, 1993, the hearing officer held that the child should be classified as learning disabled, rather than learning disabled/emotionally disturbed. The hearing officer further held that respondent had failed to demonstrate that it had offered an appropriate program for the child for the 1992-93 school year, because of the CSE's failure to specifically recommend a program for the child. Nevertheless, the hearing officer denied petitioners' request for tuition reimbursement on the ground that the child did not require so restrictive an environment as a residential placement.

In September, 1993, petitioners appealed from the hearing officer's decision to the State Review Officer. In Application of a Child with a Disability, Appeal No. 93-38, the State Review Officer held that respondent had not met its burden of proof to establish the appropriateness of the programs which the CSE had recommended for both the 1991-92 and 1992-93 school years. Noting that the record contained little, if any, useful information about the child's current achievement levels and no evidence of an assessment of the child's vocational skills, aptitude and interests, the State Review Officer directed the CSE to prepare an individualized education program (IEP) which accurately identified the child's special education needs. The State Review Officer further held that petitioners were not entitled to receive tuition reimbursement for the 1991-92 and 1992-93 school years because neither of the private schools which the child attended were approved by the New York State Education Department, and because there was no evidence that the child required placement in a residential school for educational purposes. The State Review Officer declined to consider petitioners' claim for an order directing respondent to pay for the child's tuition at a private school during the 1993-94 school year because petitioners had failed to exhaust their administrative remedy of having an impartial hearing.

The decision in Appeal No. 93-38 was rendered on October 20, 1993. In the interim between the decisions of the hearing officer and the State Review Officer, the CSE met with petitioners on August 3, 1993, to prepare the child's IEP for the 1993-94 school year. At that meeting, the CSE had the evaluation reports which it had considered in 1990, 1991 and 1992, as well as an updated social history and physical examination. Although none of the child's teachers in the Forman School could attend the CSE meeting, petitioners provided the CSE with copies of written grade reports and teacher comments which had been prepared by her teachers in June, 1993. The CSE recommended that the child remain classified as learning disabled, and that she be enrolled for the 1993-94 school year in the BOCES Project Learn Program in the Ardsley High School. The IEP which the CSE prepared provided that the child be permitted to use test modifications, including extended time, oral directions and questions, separate locations and the use of a word processor and calculator.

On August 12, 1993, the child and her father were interviewed by BOCES representatives, who described the Project Learn Program for them. A profile of the proposed class for the child was subsequently provided to petitioners. In early September, the child and her father also visited the site of the Project Learn Program, although the students in the program were away from their classrooms during the visit.

By letter dated September 23, 1993, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on October 20, 1993 and concluded on November 1, 1993. In a decision dated December 14, 1993, the hearing officer opined that the CSE should have obtained more current educational information about the child before making its recommendation, but nevertheless found that the BOCES program which the CSE had recommended was appropriate to meet the child's educational needs. The hearing officer rejected respondent's assertions that he could not consider the appropriateness of the Forman School because of the alleged res judicata effect of the State Review Officer's decision in Appeal No. 93-38. However, the hearing officer held that a residential school placement was not the least restrictive environment for the child and that petitioners had not demonstrated the appropriateness of the private school's program. The hearing officer remanded the matter to the CSE to conduct an observation of the child in her private school and a new educational evaluation, prior to preparing a new IEP for the child.

Petitioners assert that the hearing officer erred in finding that respondent had demonstrated the appropriateness of the BOCES Project Learn Program. Respondent bears the burden of establishing the appropriateness of the program recommended by its CSE (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). 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 objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Disability, Appeal No. 93-12).

The initial issue in this appeal is whether respondent's CSE had adequate information about the child's special education needs to prepare an IEP which accurately identified such needs and provided appropriate services to address those needs. Federal and State regulations require that a child who had been identified as having a disability must be re-evaluated at least once every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). At its August 3, 1993 meeting, the CSE relied upon the results of a psychological evaluation completed in November, 1991, a psychiatric evaluation completed in August, 1992, an educational evaluation completed in September, 1990, a physical examination completed in June, 1993 and a social history update completed in July, 1993.

Although the evaluation reports upon which the CSE relied at its August 3, 1993 meeting were all within the three year regulatory limit for evaluations, I nevertheless find that the CSE lacked sufficient information about the child's current special education needs to prepare an adequate IEP. An IEP must identify and address a child's present special education needs. Notwithstanding the regulatory requirement that an IEP report the child's present levels of performance (8 NYCRR 200.4 [c][2][i]), this child's IEP for the 1993-94 school year merely lists the results of group administered standardized reading and mathematics tests in June, 1990, with an additional statement of "See Current Achievement Data From The Forman School 6/93". However, the data from the private school are not otherwise identified, and I find that the cursory information set forth in the material provided by the Forman School (Exhibit 7 in evidence) does not provide sufficient information to determine the child's present levels of academic performance or the extent of her individual needs in each of the four required areas (8 NYCRR 200.4 [c][2][i]). The IEP also describes the child's social/emotional development, as derived from the original and updated social histories. However, the updated social history which is in the record does not support the statements made in the IEP, which in any event are too vague to be of significant use by the child's teachers. Despite petitioners' unilateral decision to place the child in a private school, respondent's CSE has an obligation to recommend an appropriate educational program for the child, which must be premised upon an adequate and current evaluation (Application of a Child Suspected of Having a Handicapping Condition, 24 Ed. Dept. Rep. 218).

Federal regulation also requires that a child with a disability must be evaluated before there is any significant change in the child's placement (34 CFR 104.35 [a]). In this instance, the child's last mutually agreed upon educational program, except for the period of time during which she was hospitalized, was a regular education program with resource room services. The BOCES Project Learn Program recommended by the CSE is described in the record of this appeal as a program of departmentalized, high school level special education classes having a child to adult ratio of 12:1+1, with mainstreaming limited to physical education, special subjects and particular academic subjects if a child's IEP so provides. This child's IEP for the 1993-94 school year makes no provision for mainstreaming in the child's academic subjects. I find that the CSE's recommendation involves a significant change in the child's placement (Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Disability, Appeal No. 93-22). However, the information which was considered by the CSE and is now in the record before me does not afford a basis for determining whether the child requires a program of exclusively special education primary instruction, either in terms of her academic deficits or her management needs. In view of my finding that respondent's CSE lacked sufficient information about the child's present strengths and deficits to prepare an IEP which identifies those needs and strengths, it necessarily follows that respondent cannot demonstrate that it has offered to provide the child with appropriate services to address those as yet undefined needs.

A board of education may be required to pay for educational services obtained by parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents are appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Dept. of Education Massachusetts, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 93-9). As the result of respondent's failure to adequately evaluate the child and to demonstrate the appropriateness of the program recommended by its CSE, petitioners have satisfied the first element of the Burlington criteria. Petitioners bear the burden of proof with regard to the second element of the Burlington criteria, i.e., the appropriateness of the Forman School's program to meet the child's special education needs during the 1993-94 school year.

Respondent asserts that petitioners are precluded from re-litigating the appropriateness of the Forman School's program because of the adverse determination they received in their prior appeal to the State Review Officer. However, I find that respondent's assertion is without merit, because petitioners' prior appeal concerned petitioners' claim for tuition reimbursement for the 1991-92 and 1992-93 school years, while this appeal involves their claim for tuition reimbursement during the 1993-94 school year. In addition, the decision of the State Review Officer in petitioners' prior appeal was premised in part upon the fact that the Forman School was not approved by the New York State Education Department to provide instruction to children with disabilities. At the time of the decision in that appeal, the settled decisional law in New York was that a private school selected by parents must be State approved in order to obtain tuition reimbursement (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]). However, shortly after the State Review Officer rendered his decision in petitioners' prior appeal, the United States Supreme Court held that parents who unilaterally place their child in a private school which is not State approved may nevertheless be entitled to reimbursement for their educational expenses, if the public school's program was inappropriate and the private school's program was appropriate (Florence County School District Four et al. v. Carter by Carter, U.S. , 126 L. Ed. 2d 284).

In order to meet their burden of proving that the placement which they selected for the child's education during the 1993-94 school year is appropriate, petitioners must demonstrate that the Forman School's program meets their child's special education needs. This requires that the record must provide adequate information about the child's current special education needs and about the services which the child is receiving in the school selected by the child's parents, so that there is a rational basis for determining if such school can meet the child's special education needs. Petitioners cannot meet their burden of proof for two reasons. First, the record of this appeal is inadequate to ascertain the child's current special education needs. Although the evaluation reports in the record suggest that the child had cognitive deficits and difficulty attending, it is not possible to infer from the record either the present nature or the extent of her learning disability. For example, the end-of-year reports by the child's teachers in the Forman School describe the child's attention span in terms ranging from "good" to "self-distracting." Similarly, the child's algebra teacher reported that much of the child's work was done orally because of difficulty with writing, while her language training teacher reported that the child was to be commended for her growth as a writer. The second reason for petitioners' failure to meet their burden of proof is that the present record does not reveal the nature of the special education services which the Forman School provides. Although a teacher in the Forman School testified at the hearing in this matter, her testimony consisted of a factual description of the students' day in the school and her unsupported opinion that the child could not benefit from an educational program that did not have the "full day support" provided by the Forman School. However, the teacher's testimony did not disclose the techniques or services which the school provides to its students, except for one period per day of language training. However neither the teacher's testimony nor the written report of another teacher who provided the language training to the child discloses the precise nature of the services received by the child. Consequently, I must find that petitioners have not met their burden of proof (Application of a Child with a Disability, Appeal No. 93-42).

In addition, the Federal and State requirement that each child be placed in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]) is applicable to unilateral parental placements for which public funding is sought (P. J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1992]; Application of a Child with a Handicapping Condition, Appeal No. 92-30; Application of a Child with a Handicapping Condition, Appeal No. 92-34). For petitioners to prevail on their claim for residential placement expenditures, they must show that the child requires a residential placement in order to benefit from her educational program (Abramson v. Hershman, 701 F 2d 223 [1st Cir., 1983]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir.,, 1990]; Kerkam v. Superintendent, D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSE and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Handicapping Condition, Appeal No. 92-34). Where there is nothing intrinsic in a child's condition which would necessitate a residential placement in order for the child to learn, the child's school district is not obligated to provide such a placement (Hall by Alread v. Freeman, 700 F. Supp. 1118 [N.D. Ga., 1987]).

At the hearing in this matter, the child's father testified that petitioners sought to obtain a program which offered support after the end of the regular school day. The teacher from the Forman School testified that the school provided a supervised study hall for the students in this child's grade, from shortly after dinner until 8:30 p.m., and that some of the school's dormitory house parents were also teachers in the school, which is approved by the State of Connecticut to provide general secondary school instruction. In the absence of sufficient evidence to ascertain the child's special education needs or that the child requires a nightly supervised study hall in order to benefit from her instructional program, I find that there is no educational basis in the record for such a restrictive educational placement as a residential school.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision, to the extent that it found that respondent had offered the child an appropriate placement for the 1993-94 school year, is annulled; and it is

FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall obtain the results of an appropriate re-evaluation of the child and shall meet with petitioners to prepare an appropriate IEP for the remainder of the 1993-94 school year.