95-065

        Petitioners appeal from the decision of an impartial hearing officer which found that respondent had provided petitioners' child with an appropriate educational program during the 1994-95 school year, prior to petitioners' unilateral removal of the child from respondent's Finley Middle School and their placement of him in a private school in March, 1995. The hearing officer denied petitioners' request for an order requiring respondent to reimburse them for their expenditure for tuition in the private school from March through June, 1995. The appeal must be dismissed.

        Petitioners' son is 13 years old. Although he reportedly manifested signs of academic difficulty in reading and mathematics early in his educational career in respondent's schools, the child was not identified as a child with a disability by respondent's committee on special education (CSE) until March 24, 1994, when the child was in the sixth grade. The CSE recommended that the child be classified as learning disabled, because of a significant disparity between the child's expected and actual academic performance levels. The deficits in the child's reading comprehension, mathematical reasoning, written expression and writing fluency were particularly noteworthy. The child has remained classified as learning disabled, and his classification is not disputed in this proceeding.

        The child attended respondent's Landing Elementary School from kindergarten through the third grade. In the middle of the third grade, the child was referred by his mathematics teacher to a school psychologist, because the child was reportedly having academic difficulties in that subject, and was manifesting signs of emotional difficulties. His mathematics teacher had previously reported to the school's child study team that the child talked to himself, and made inappropriate and unrelated statements during class discussions. When evaluated by the school psychologist in January, 1991, the boy achieved a verbal IQ score of 101, a performance IQ score of 78, and a full scale IQ score of 89. He achieved standard scores of 117 in reading, 116 in spelling, and 113 in mathematics. On a test of his visual motor integration skills, the child manifested a delay of approximately two years. The child also manifested a deficit in his visual motor perceptual skill when he was asked to copy material from a wall chart. The school psychologist reported that the child manifested indications of anxiety, confusion, and hostility which could affect his academic performance. She also reported that projective testing revealed that the boy's self-image might be inadequate. The school psychologist recommended that the child be included in a school social development group on a short-term basis, and that petitioners seek private visual-motor training and counseling for the child. At the hearing in this proceeding, the school psychologist testified that the child's primary problem was emotional, but that the boy was not eligible for classification as emotionally disturbed because he did not manifest a significant discrepancy between his ability and his educational achievement (cf. 8 NYCRR 200.1 [mm][4]). She further testified that although the child manifested some signs of a fine motor deficit, she did not believe the deficit was severe enough to warrant the child's evaluation by an occupational therapist. In any event, the child was not referred to respondent's CSE.

        Petitioners enrolled the child in the All Saints Regional Catholic School in Glen Cove, New York for the fourth grade, during the 1991-92 school year. He remained in that school for the fourth through the sixth grade. The child reportedly received remedial reading instruction in the private school. His mother testified at the hearing that the child was successful in the fourth and the fifth grades in the All Saints School, but he began to fail mathematics, and exhibit impulsive behavior in his sixth grade classes. In October, 1993, when he was in the sixth grade, petitioners had the child evaluated by a private psychologist. The boy achieved a composite IQ score of 92. The psychologist reported that the child's verbal reasoning, quantitative reasoning, and short-term memory skills were in the average range, while his abstract/visual reasoning skills were within the poor range. On a second test of his cognitive skills, the child's score for analysis synthesis was significantly below average, which reflected a deficit in his visual reasoning skills. The psychologist opined that the child's auditory processing skills were stronger than his visual processing skills, and that the child worked more effectively with verbal information than with quantitative information. On academic achievement tests, the child achieved grade equivalent scores of 8.2 in word identification, 5.6 in passage comprehension , 7.3 in mathematical application, 4.0 in mathematical reasoning, 6.4 in spelling, 5.1 in writing samples, and 3.1 in writing fluency. The psychologist opined that the child should be classified as learning disabled because of deficits in his abstract/visual reasoning and visual processing skills. She noted that the child had difficulty with both synthesizing and analyzing, and she recommended that the boy receive instruction in study skills strategies, as well as help in areas of academic deficits. The psychologist also recommended that testing modifications, such as extended time limits, testing in separate locations, and allowing the boy to dictate his answers, be used with the child. She suggested that the boy might need to have recorded textbooks and note taking assistance in the future.

        In a letter to respondent's chairperson, dated November 5, 1993, the child's mother referred the child to the CSE. The CSE obtained a social history of the child, but chose to rely upon the private psychologist's evaluation of the child, in lieu of doing its own evaluation. The record does not reveal whether the CSE observed the child in his regular education classroom, as required by State regulation (8 NYCRR 200.4 [b][4][viii]). Petitioners attended a meeting of the CSE which was held on November 19, 1993. The CSE recommended that the child not be classified as learning disabled, because it believed that the child did not manifest a significant discrepancy between his expected and actual achievement (see 8 NYCRR 200.1 [mm][6]). At the hearing in this proceeding, respondent's school psychologist acknowledged that the child had manifested a learning disability in the Fall of 1993, but testified that the child did not meet the criteria for classification as a child with a learning disability pursuant to State regulation. In a letter to the Principal of the All Saints School, dated November 29, 1993, the CSE chairperson noted that the child had difficulty with abstract visual reasoning, organizational skills, and remaining focused on a task, and recommended that the child be given testing modifications in the All Saints School. She also suggested 12 annual goals for the child to achieve. The CSE chairperson testified that she had written a letter to the Principal of the All Saint School so that the child could obtain supportive services provided by the private school, because the Principal had agreed to provide those services three times per week, if the CSE would prepare goals and short-term instructional objectives for the child. On December 6, 1993, respondent approved the CSE's recommendation not to classify the child.

        In a letter to respondent's school psychologist, dated March 8, 1994, the private psychologist submitted an addendum to her October, 1993 evaluation report, in which she discussed the scores which the child had received on the Iowa Test of Basic Skills (IOWA) which he had taken in October, 1993. The IOWA had been group administered in the All Saints School. There is no indication in the record that the results of the IOWA test were available to the CSE when it met in November, 1993. With the exception of a grade equivalent score of 8.7 for spelling, the child's scores were all below the sixth grade level. He achieved grade equivalent scores of 4.1 in reading vocabulary, 2.7 in reading comprehension, 4.4 in mathematical concepts and 2.1 in mathematical problem solving. His grade equivalent scores of 3.6 in capitalization, 3.1 in punctuation and 5.0 in language usage were well below the 8.7 grade equivalent score he achieved in spelling. The child achieved overall grade equivalent scores of 3.3 in reading, 4.8 in language, and 3.2 in mathematics. In her addendum, the private psychologist urged that the CSE reconsider whether the child should be classified as learning disabled.

        The CSE reconvened on March 24, 1994. It had not conducted any additional evaluation of the child. At the time of the CSE meeting, the child was reportedly receiving supportive services three times per week in the private school. The CSE recommended that the child be classified as learning disabled, and that he receive resource room services five times per week. It also recommended that test modifications be employed with him, including extended time limits, special locations for tests, having the text read to him, and allowing him to use a calculator. The child's individualized education program (IEP) included annual goals for the child to improve his organizational and study skills, his reading and mathematic skills, and his written expression. The IEP also included an annual goal for the child to improve his social and emotional behavior, and his self-awareness. Petitioners accepted the CSE's recommendation.

        It must be noted that the record reveals that the CSE lacked one of its required members at the March 24, 1994 meeting. The child's teacher did not attend, or otherwise participate in, the meeting. The CSE chairperson, who is certified to teach special education, served as the child's teacher (see 34 CFR Part 300, Appendix C, Question 15). However, Federal regulation requires that a representative of the school district who is qualified to provide or supervise the provision of special education, "other than the child's teacher" shall attend the CSE meeting (34 CFR 300.344 [a][1]). The CSE chairperson could not simultaneously serve as the child's teacher and the person qualified to provide or supervise the provision of special education. The minutes of the CSE meeting do not indicate that any other participant was qualified to provide or supervise the provision of special education.

        In April, 1994, petitioners engaged the services of a psychiatrist, who prescribed a medication for the child to help control an attention deficit. They also arranged for the child to receive psychotherapy from a private psychologist on a regular basis. At the hearing in this proceeding, the private psychologist testified that he began seeing the child in April, 1994, in group therapy to develop the child's social skills, so that he could communicate and be more empathetic with others. He testified that the child had difficulty following a conversation, and that he missed social cues. When other children picked on him, the boy reportedly overreacted. The psychologist testified that the child would become extremely anxious and worried, and would fixate upon his worries.

        On July 12, 1994, the CSE met to conduct its annual review of the child and to prepare his IEP for the 1994-95 school year. Petitioners did not attend the CSE meeting, nor did the child's teacher. The CSE chairperson again served as the child's teacher. The CSE minutes disclose that no other individual who was qualified to provide or supervise the provision of special education attended the CSE meeting. At the hearing in this proceeding, the CSE chairperson testified that petitioners had informed her that they were uncertain whether the child would remain in the All Saints School, or would transfer to the St. Peter's School in Port Washington, New York, but petitioners wished to have the child continue to receive resource room services during the 1994-95 school year. The CSE acceded to their request, and recommended that the child receive daily resource room services during the 1994-95 school year. It also recommended that testing modifications be used with the child, and continued the child's IEP annual goals and short-term instructional objectives from his prior IEP.

        In September, 1994, petitioners enrolled the child in the seventh grade of the St. Peter's School. Respondent reportedly contracted with the Port Washington Union Free School District to provide resource room services to the child in St. Peter's. At the hearing, the child's private psychologist testified that the child manifested inappropriate behavior in St. Peter's, including giggling, touching people, and arguing, and that he had difficulty remaining focused in class. The psychologist worked with the St. Peter's staff to develop a behavior modification program for the child. However, the child was asked to leave St. Peter's after one month in school, because the school reported to petitioners that it could not meet the child's needs.

        In October, 1994, petitioners enrolled their son in respondent's Finley Middle School, where he was placed in regular education seventh grade courses in language arts, mathematics, social studies, science, and Italian. Prior to his entry into school, the child's regular education teachers and principal met with the child's mother to discuss his impulsive behavior, and his social and academic deficits. The principal of the school and the teacher team leader testified at the hearing that petitioners' child was placed in classes with children whose academic performance was in the average to above average range. In addition to his regular education classes, the child received resource room services for one period per day. The resource room teacher testified that she provided academic remediation and support to the child, and helped him to prepare for tests in his other classes. She also testified that the child would usually begin his tests in the regular education classes, but would complete them with her in the resource room. (The child's IEP provided for testing to be done in separate locations.)

        The CSE reconvened on November 14, 1994. No teacher from the middle school attended the meeting. The CSE chairperson served as the child's teacher, and once again, the CSE did not include another individual who was qualified to provide or supervise the provision of special education. Petitioners did not attend the meeting, and the record does not reveal what, if any, measures respondent took to ensure their participation (cf. 34 CFR 300.346 [c]). The CSE did not substantively alter the provisions of the IEP which had been prepared for the child in July, 1994.

        The child reportedly made satisfactory academic progress during the remainder of the first semester of the 1994-95 school year. On his report card as of January 20, 1995, the child achieved grades of 80 in language arts, 75 in social studies, 78 in mathematics, 72 in science, and 75 in Italian. His mathematics and Italian teachers commented that the child was disruptive in class, while his science teacher indicated that the child needed to improve his behavior. At the hearing, the child's social studies teacher, who was also the leader of the seventh grade "team" to which the child had been assigned testified that the child's father met with the child's teachers in January, 1995, at the teachers' request, because they were concerned about the child's behavior in school. He further testified that none of the child's teachers had expressed concern about the child's academic performance.

        In either December, 1994, or January, 1995, the child was reportedly transferred from one mathematics class to another. The pace at which material was presented was allegedly quicker in the child's new mathematics class. His grades and his behavior allegedly worsened in the new mathematics class. The child was reportedly removed from his mathematics class on more than one occasion because of his behavior, in February, 1995. He was also reported for misconduct by his language arts and Italian teachers. On or about February 2, 1995, the child was removed from his Italian class, and assigned to a resource room, because his Italian teacher had reportedly concluded that she could no longer manage the child in her class. The CSE was not informed of the child's removal from class. Whether the child's removal from his regular education Italian class constituted a "change in his program" (See 8 NYCRR 200.1 [e]) need not be determined for the purpose of finding if petitioners are entitled to be reimbursed for their child's private school tuition.

        The CSE was scheduled to meet on March 9, 1995, to discuss the child's academic and behavioral problems. However, petitioners withdrew their son from the Finley Middle School, and enrolled him in the Vincent Smith School in Port Washington, New York. The Vincent Smith School is a small private school for children in grades 3 through 8. Although approximately one-half of its students have reportedly been classified as children with disabilities, the school has not been approved by the State Education Department as a school for children with disabilities. At the hearing in this proceeding, the administrator of the Vincent Smith school testified that the school offered its students a regular education curriculum, in small classes, and provided remedial reading and resource room services to students who needed those services. Resource room services are provided by a public school teacher whose services are contracted for by the school districts whose residents are enrolled in the private school. The record reveals that petitioners's son received remedial reading and resource room services in the Vincent Smith School.

        At petitioners' request, the March 9, 1995 CSE meeting was rescheduled to be held on March 23, 1995. The child's father and a representative of the Vincent Smith School attended the CSE meeting. The CSE recommended that resource room services be provided to the child in the Vincent Smith School, five times per week. However, contrary to petitioners' assertion in this proceeding, the CSE did not recommend that the child be placed in the Vincent Smith School. The CSE also revised the child's IEP annual goals and short-term instructional objectives. Respondent approved the CSE's recommendation.

        In a letter addressed to the CSE chairperson, which was dated April 25, 1995, petitioners' attorney requested that an impartial hearing be held. The hearing began on June 12, 1995, and concluded on June 19, 1995. At the hearing, petitioners asserted that respondent had failed to provide their son with an appropriate educational program, as a result of which they were obligated to enroll the child in the Vincent Smith School. They contended that the child had made good progress since his enrollment in the Vincent Smith School, and asked the hearing officer to order respondent to reimburse them in the amount of $5192 for their expenditures for the child's tuition at the private school from March through June, 1995.

        In his decision, which was rendered on August 8, 1995, the hearing officer found that respondent's initial consideration of whether the child should receive special education services in 1991 was inappropriate because respondent's school psychologist had determined that the child was ineligible for services, rather than respondent's CSE. He further found that respondent had failed to notify the parents of their right to obtain a review by the CSE. The hearing officer described the March, 1994 CSE review of the child as cursory. While noting that the child had behavioral and social problems while attending the Finley Middle School, the hearing officer found that the parents had removed the child from school before the CSE could review the child's program in March, 1995. He also found that the child's IEP at the Vincent Smith School, which petitioners did not challenge, was virtually identical with the child's IEP at the Finley Middle School, and denied petitioners' request for tuition reimbursement.

        Petitioners contend that the hearing officer erred by finding that respondent had offered an appropriate program in its middle school for the child, and ask the respondent be ordered to reimburse them for the cost of the child's tuition. A board of education may be required to pay for education 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,___ U.S.___ , 114 S. Ct. 361 [1993]).

        The board of education bears the burden of demonstrating 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). 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 CSE 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 the evaluation 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).

        Petitioners challenge the appropriateness of the educational program provided by respondent during the 1994-95 school year on both procedural and substantive grounds. They argue that the IEPs which were prepared for the child at the CSE's meetings on July 12, 1994 and November 14, 1994 were fatally flawed by the absence of at least one required CSE member at those meetings. At both meetings, the CSE chairperson served as the child's teacher member of the CSE, and no other individual who was qualified to provide or to supervise the provision of special education attended the meetings. As noted above, Federal regulation requires that such an individual be a participant in meetings in which a child's IEPs are prepared. Respondent argues that the composition of the CSE is not relevant because petitioners have not explicitly challenged the child's IEP. Although there is more to a child's educational program than the child's IEP, that document is clearly the keystone of the child's program under Federal and State law. Therefore, I find that respondent's argument is without merit. Since the CSE was not validly composed at either meeting, the resulting IEPs were invalid (Application of a Child with a Disability, Appeal No. 95-4; Application of a Child with a Disability, Appeal No. 95-45).

        There are other reasons why I am constrained to find that respondent has not met its burden of proof with respect to the appropriateness of its program. Even if the child's July, 1994 IEP had been prepared by a validly composed CSE and was appropriate to meet his needs at that point in time, I find that this child's lack of success in the St. Peter's School with that IEP should have compelled the CSE to promptly re-examine the child's IEP when he entered respondent's middle school. Although it did review the child's IEP in November, 1994, the CSE failed to recommend that any additional services be provided to meet the child's needs. Indeed, when it was presented with additional evidence of the program's inadequacy in March, 1995, the CSE continued to adhere to the same educational program. I also note that the child's IEPs, whether of July, November, or March, set forth an extensive set of annual goals and short-term instructional objectives, each of which was to be achieved through the child's receipt of five periods per week of resource room services. I find that respondent failed to demonstrate how this was, or could have been, achieved. Upon the record before me, I find that respondent failed to meet its burden of proof with respect to the appropriateness of the program it provided during the 1994-95 school year.

        Petitioners bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at the Vincent Smith School (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet their burden, petitioners must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional 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).

        At the hearing in this proceeding, Ms. Arlene Wishnew, who identified herself as the head of the Vincent Smith School, testified that petitioners' child was enrolled in regular education seventh grade classes in English, social studies, mathematics and life science, as well as "special" subjects such as art, music and physical education. Although she testified that the child's teachers used a multisensory teaching technique, she did not represent that the teachers in those courses used any specific special education techniques, or modified their respective curricula to address the child's academic needs. Ms. Wishnew further testified that the child also received remedial reading instruction from a teacher who happened to be certified to teach special education. However, remedial reading is not per se special education. The child did receive special education instruction for one period per day in a resource room program. The nature and the amount of the service which he received were therefore comparable to that which he had received in respondent's program in the middle school. At its March 23, 1995 meeting, the CSE recommended that respondent provide, i.e., subcontract for, the child's resource room services at the Vincent Smith School. Petitioners do not allege that respondent failed to provide those services. Ms. Wishnew testified that she had not suggested to respondent that any other special education service be provided to the child. Under the circumstances presented in this appeal, I find that petitioners have not met their burden of demonstrating the appropriateness of the services which they obtained for their son at the Vincent Smith School (Application of a Child with a Disability, Appeal No. 94-2). In view of my finding with respect to the second of the three Burlington criteria, I do not reach the third criterion.

THE APPEAL IS DISMISSED.