94-005

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that for the 1993-94 school year, petitioner's child be enrolled in respondent's modified instructional services-V (MIS-V) program, rather than the modified instructional services-IV (MIS-IV) program favored by petitioner, and which denied petitioner's request for reimbursement of the tuition which she has paid or will pay for the child's enrollment in a private school. The appeal must be dismissed.

With petitioner's consent, respondent was granted an extension of time for filing its answer in this appeal. Nevertheless, respondent did not serve its answer until after the extended date. It now requests that its answer be accepted because of its counsel's misunderstanding about the status of this appeal. Petitioner has not objected to respondent's request, and the resolution of the appeal has not been delayed as a result of the late answer. In view of the unique circumstances involved with respondent's delay, I have accepted the answer.

Petitioner's child, who is seven years old, has Down Syndrome. In a psychological evaluation performed in May, 1992, the child was found to be functioning at the lower limit of the mildly mentally retarded range, with relative strength in verbal and visual reasoning and his greatest deficit in mathematical reasoning. He also exhibited delays in his large and small motor development. In an earlier psychological evaluation completed in January, 1991, the child exhibited a significant deficit in his adaptive behavior. In an educational evaluation which was also completed in May, 1992, the child was described as pleasant and cooperative, but difficult to understand because of his speech patterns. The most recent report of the child's speech/language skills which is in the record revealed that the child had articulation deficits, including sound omissions, substitutions and distortions, as well as deficits in his expressive and receptive language skills. The educational evaluator reported that the child exhibited delays in all areas, including readiness skills, general knowledge and comprehension, language, and graphomotor skills. The child wears glasses because of a condition known as lazy eye. He has been classified as mentally retarded. His classification is not disputed in this appeal.

The child began to receive infant stimulation services, including speech/language therapy, physical therapy and occupational therapy, at seven months of age in June 1987. During the 1989-90 school year, when he was three years old, the child was enrolled in a half-day preschool program. The child continued to attend the preschool program on a full-day basis during the 1990-91 school year. In February, 1991, the child was referred to the CSE of Community School District 26 (CSD 26) for a recommendation for classification and placement as a school-age child during the 1991-92 school year. On May 21, 1991, the CSE of CSD 26 recommended that the child be classified as mentally retarded, and be placed in respondent's MIS-V program, in which he was to receive the related services of speech/language therapy, physical therapy, and occupational therapy. Petitioner accepted the CSE's recommendation for an MIS-V class in P.S. 115. The child's individualized education program (IEP) was amended during the 1991-92 school year to provide the child with the services of a personal hygiene aide.

In the Spring of 1992, petitioner asked the CSE of CSD 26 to review the child's program, because petitioner believed that the child was not sufficiently challenged by the MIS-V program, which was designed to provide instruction to mentally retarded children. Petitioner urged that the child be placed in the MIS-IV program, which was designed to provide instruction to children with a higher level of cognitive skills but who have learning disabilities. The CSE of CSD 26 obtained updated psychological and educational evaluations, a report of an observation of the child in his MIS-V class and a report by his teacher. On May 13, 1992, the CSE of CSD 26 recommended that the child remain in the MIS-V program, but that the frequency and group size of his speech/language therapy be changed.

For the 1992-93 school year, the location of the child's class was changed to P.S. 213. In September, 1992, petitioner again requested that the child's placement be changed to respondent's MIS-IV program, because she believed that the child was not sufficiently challenged in the MIS-V program. The CSE of CSD 26 obtained reports from the child's teacher and his speech/language therapist, as well as an updated educational evaluation and new classroom observation. The child's teacher advised the CSE that the child was appropriately placed in the MIS-V program. At a meeting held on October 15, 1992, the CSE recommended that the child remain in the MIS-V program, because of its concern that the child would not function successfully in the MIS-IV program.

In October, 1992, the child's parents arranged at their expense for the child to receive one hour per week of tutoring in language development and pre-reading skills. In November, 1992, petitioner withdrew the child from public school and unilaterally placed the child in the Sts. Simon and Jude School, a private school which has been approved by the New York State Education Department to provide instruction to mentally retarded children. The child remained in the private school, while receiving related services provided by respondent. Petitioner did not seek tuition reimbursement for the 1992-93 school year. A January, 1993 progress report prepared by the child's private school teachers revealed that the child could count by rote to 25 and count with 1:1 correspondence up to 10, and could identify most of the letters of the alphabet. The child was reportedly able to answer appropriate "who and what" questions and to express personal information without assistance.

The Sts. Simon and Jude School is within the area served by Community School Board 21. In accordance with respondent's policy, the responsibility to conduct the child's annual reviews was re-assigned to the CSE of Community School District 21 (CSD 21). By notice dated June 1, 1993, petitioner was invited to attend a meeting of the CSE of CSD 21 on June 8, 1993, at which an annual review of the child would be conducted. On June 8, 1993, petitioner met with the CSE of CSD 21, the child's private school teacher and a supervisor from the private school. Information provided by the child's teachers in June, 1993 and recorded on the child's IEP for the 1993-94 school year indicated that the child's score on a one word picture receptive language vocabulary test was equivalent to that of a four year old child, while his expressive vocabulary test score was equivalent to that of a three year old child. The child could speak in two and three word phrases and verbalize his needs, and was able to follow three-step sequential directions.

In a notice dated July 13, 1993, respondent informed petitioner that the CSE had recommended that the child remain classified as mentally retarded and that he be enrolled for the 1993-94 school year in a MIS-V class in P.S. 115, which is in the child's community school district of residence. The CSE further recommended that the child receive speech/language therapy in a group of three, three times per week, individual physical therapy twice per week and individual occupational therapy twice per week, and that provision for the services of a personal hygiene aide be deleted from the child's IEP.

On November 12, 1993, petitioner requested a hearing to review the CSE's recommendation. When the hearing commenced on December 20, 1993, the hearing officer sua sponte raised the issue of whether each of the required members of the CSE had been present at the June 8, 1993 CSE meeting, because the parent member of the CSE had signed an attendance sheet for such meeting, but had not signed the child's IEP. Petitioner agreed to waive the 45 day requirement for the hearing officer to render a decision (34 CFR 300.512 [a]), and the hearing was adjourned until January 10, 1994. Respondent was directed to produce evidence that the parent member was present at the meeting or present argument why the parent member's presence was not required at the meeting. When the hearing resumed on January 10, 1994, the hearing officer reserved decision on the issue of the composition of the CSE, and allowed the parties to present evidence and testimony with regard to the CSE's recommendation.

In a decision dated January 31, 1994, the hearing officer held that a parent member of the CSE was not required to be present for the child's annual review, because the Education Law authorizes subcommittees of the CSE to conduct annual reviews, and that the child's IEP had been prepared in accordance with applicable law and regulations. The hearing officer further held that respondent had met its burden of proving the appropriateness of the recommended MIS-V program and of the recommended class in P. 115. As a result of her holding with regard to the recommended program and class, the hearing officer declined to address the appropriateness of the Sts. Simon and Jude program for the child, and denied petitioner's request for tuition reimbursement for the 1993-94 school year.

Petitioner asserts that the challenged recommendation is a nullity, because a parent member of the CSE did not participate in the June 8, 1993 meeting at which the child's IEP for the 1993-94 school year was prepared. Her assertion raises both factual and legal issues. When the issue was raised by the hearing officer on December 20, 1993, petitioner and a supervisor from the private school, both of whom attended the June 8, 1993 meeting, each testified that she could not remember whether the parent member was present for the entire meeting. On the second day of the hearing, the assistant chairperson of the CSE, who did not attend the June 8, 1993 meeting, testified that she had spoken with the parent member who had signed the attendance sheet for the June 8, 1993 meeting. The assistant chairperson further testified that the parent member, who could not remember the details of the meeting, had assured the assistant chairperson that she had not walked out of any meeting. Respondent did not present any witness who had attended the CSE meeting. However, petitioner did not offer any evidence which would controvert the assistant chairperson's testimony. Respondent has submitted, with its answer, an affidavit by a school social worker who attended the June 8, 1993 meeting. The social worker asserts that the parent member of the CSE attended and participated in the subcommittee meeting. Although respondent has not explained why it did not have the social worker testify at the hearing, I will nevertheless accept the affidavit as evidence in this appeal because the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 93-227). Upon the record before me, I find that the meeting held on June 8, 1993 to prepare the child's IEP was a meeting of the CSE and that each of the required members of the CSE attended such meeting.

Petitioner's assertion about the parent member of the CSE also raises the legal issue of whether a parent member of the CSE must attend every meeting at which an annual review of a child's program is conducted. At the hearing and in this appeal, respondent has argued that a parent member of the CSE need not participate in the annual review of a child who has been unilaterally placed by his parents in a private school. Notwithstanding my finding that the parent member did participate in the annual review of petitioner's child, I find that the issue should be addressed because of respondent's continuing insistence that its written policy authorizes a CSE to conduct an annual review without the participation of the parent member of the CSE, when a child has been unilaterally placed by his or her parents in a private school.

Neither the Education Law nor the Regulations of the Commissioner of Education authorizes a CSE to prepare a child's IEP without the presence of a parent member, regardless of whether the child has been unilaterally placed in a private school. Section 4402 (1)(b)(1) of the Education Law requires that each school district, and in New York City each community school district, appoint at least one CSE, and that a CSE shall be composed of at least the child's teacher as defined by Federal regulations, a school psychologist, a representative of the district who is qualified to either teach or supervise special education, a school physician, and a parent of a child with a disability who resides in the school district. However, the statute further requires that in cities of more than 125,000 inhabitants, the board of education shall appoint CSE subcommittees, which may perform the functions of the CSE, with certain exceptions which are not relevant in this appeal. The required members of a subcommittee are the child's teacher as defined in Federal regulations, a school district representative who is qualified to teach or supervise special education, and in certain circumstances, a school psychologist. There is no requirement for parent members of such subcommittees. Each subcommittee must report annually the status of each child with a disability within its jurisdiction to the CSE, and at the request of a parent, a subcommittee must refer to the CSE any subcommittee recommendation for identification, evaluation, or placement with which the parent disagrees (Section 4402 [1][b][1][b][i] of the Education Law).

Although the hearing officer in her decision and respondent in its answer have referred to the statutory provisions authorizing a CSE subcommittee to perform an annual review, the hearing officer did not find, and respondent has only belatedly suggested, that the June 8, 1993 meeting was conducted by the CSE's subcommittee. However, the notice of the meeting (Exhibit 32) and the notice of recommendation sent after the meeting (Exhibit 1) to petitioner refer only to the CSE. Exhibit 1 does not mention that the purpose of the meeting is to conduct an annual review, and the record reveals that respondent's policy requires that another form for notice of meeting be used for such reviews. I find that respondent's contention that a purported meeting of the CSE at which there is no parent member may be deemed to be a meeting of a CSE subcommittee is without merit. Respondent is not precluded from using CSE subcommittees to conduct annual reviews. However, it must ensure that parents receive notification that a subcommittee will conduct their child's annual review, and that if they disagree with the subcommittee's recommendation, they may request that the matter be referred to the full CSE. I recommend that respondent revise its written policy, a portion of which is in the record as Exhibit 31, to clarify that the teams without parent members who perform annual reviews must be subcommittees of the CSE and that such subcommittees must adhere to the procedures for subcommittees. This would prevent the confusion about the roles of the CSE and its subcommittees which the facts of this case so acutely demonstrate.

Having determined that the child's IEP was prepared by a lawfully constituted CSE, I now turn to the substantive issues in this appeal. Respondent bears the burden of establishing the appropriateness of the program which its CSE has recommended (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, respondent must demonstrate 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), 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 the child's 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). Petitioner asserts that the CSE's recommendation was not made with current evaluation data.

The record reveals that the CSE relied upon the results of a psychological evaluation performed in May, 1992 an educational evaluation performed in October, 1992 and reports by the child's related service providers, which were also prepared in 1992. In addition, the CSE considered the results of the child's January, 1993 progress report from the private school and information by the child's private school teacher which the CSE obtained at its June 8, 1993 meeting. Although petitioner asserts that respondent should have further evaluated the child because the child had made much progress in the private school, I find that there is no basis in the record for believing that the nature of the child's educational disability had significantly changed since he was evaluated in 1992. Absent evidence of such a change, respondent was not required to evaluate the child more frequently than once every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e]). I also note that there is no evidence that petitioner requested that the child be re-evaluated. I find that the CSE's recommendation was based upon appropriate information about the child's present educational needs. I further find that the child's IEP adequately describes the child's present levels of performance, and includes appropriate annual goals and short-term instructional objectives.

Petitioner asserts that the hearing officer's decision should be reversed because her child's needs would be more appropriately met in respondent's MIS-IV program than in its MIS-V program. In her petition, petitioner refers to a description of the MIS-IV program in a publication prepared by respondent, which is not part of the record before me. She asserts that the MIS-IV program in intended for children whose level of intellectual functioning is at least in the mild range of mental retardation, and that such program is more academically oriented than the MIS-V program. She further asserts that the child's most recent psychological evaluation revealed that her child was functioning at the lower limit of the mildly retarded range.

At the hearing, the assistant CSE chairperson, who is an educational evaluator, testified that petitioner's child was beginning to demonstrate the readiness skills which were appropriate for children placed in the MIS-V program. She also testified that the curriculum used in the MIS-V program was comparable to the curriculum which she had observed being taught to the child in his private school. The assistant chairperson further testified that the child's proposed annual goals for the 1993-94 school year, which had been prepared by the staff of the child's private school, could be achieved if the child were placed in the MIS-V program. Respondent's school psychologist testified that the child functioned at the lower end of the mildly retarded range, and that his adaptive behavior was comparable to that of children placed in the MIS-V program. Respondent's special education site supervisor testified that children who are placed in the MIS-IV program typically have a specific learning disability, rather than mental retardation. The supervisor opined that petitioner's child would be appropriately placed in the MIS-V program, and would not function successfully in the MIS-IV program. The child's private school teacher testified that the child's reading skills were at the kindergarten level and that his mathematics skills were at an end of kindergarten level. The teacher further testified that the child could read orally from a primer level reading text and was learning to recognize and write numbers in a kindergarten workbook. Although respondent's site supervisor testified that the child could not receive physical therapy during the school day without an adjustment of the therapist's schedule, there is no basis in the record for concluding that respondent would not meet its obligation to provide related services in an appropriate manner. Upon the record before me, I find that respondent has met its burden of proving the appropriateness of the recommended MIS-V program for the child.

Petitioner also challenges the appropriateness of the recommended class in P.S. 115. In order to meet its burden of proof with regard to the appropriateness of the recommended class, respondent must demonstrate that the child would be appropriately grouped with children having similar abilities and needs. State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6 [a][3]). The similarity of abilities and needs may be demonstrated through the use of a profile of the children in the proposed class, together with the testimony of a witness who is familiar with the proposed class (Application of a Child with a Disability, Appeal No. 93-13).

Respondent's site supervisor testified in the hearing in this proceeding that each of the children in the recommended class was at the readiness level, and was learning to recognize letters and numbers and to count with a 1:1 correspondence. A profile of the seven children in the recommended class revealed that each child had below average expressive and receptive language and writing skills, and that each child was of below average cognitive ability. All seven children were receiving speech/language therapy. The profile also revealed that six of the children had delayed gross/fine motor development, and that five of them were receiving physical therapy and four of them were receiving occupational therapy. Each of the children in the recommended class was reported to have delayed development of social behavior. Petitioner, who visited the recommended class on October 20, 1993, testified that the children in the class appeared to be functioning at a lower level than that of her child. She further testified that the teacher of such class told her that his students did not use books and could not identify colors. When asked by the hearing officer whether she wished to have the teacher testify, petitioner waived her right to call the teacher as a witness. Respondent's site supervisor disputed petitioner's assertion that the children in the recommended class did not use books. Petitioner also testified that some of the children in the recommended class exhibited inappropriate behavior, and expressed concern that her child would acquire the "bad habits" of such children. However, the child's private school teacher testified that petitioner's child reprimanded other children for their behavior, but did not imitate their bad behavior. Although she had not observed the children in the recommended class, the child's private school teacher nevertheless opined that respondent's recommended class would be inappropriate because there would be no other child to whom petitioner's child could look up to, i.e., that he would be the highest functioning child in the P.S. 115 class, and that the child was not ready to function socially with the other children. However, the private school teacher conceded that petitioner's child was one of the highest functioning children in the private school class. Her testimony about the child's social ability appeared to be based upon petitioner's description of the behavior of one of the children in the recommended class. Upon the record before me, I find that respondent has met its burden of proof with respect to the appropriateness of the grouping of the children in the recommended class.

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). In this instance, respondent has met its burden of proof with regard to the appropriateness of the services which it offered. Accordingly, there is no basis in the record upon which respondent could be compelled to pay for the child's tuition at the private school selected by petitioner (Application of a Child with a Disability, Appeal No. 93-48).

THE APPEAL IS DISMISSED.