97-097

        Petitioner appeals from the decision of an impartial hearing officer which upheld, with one modification, the recommendation by respondent's committee on special education (CSE) that her son be enrolled in a modified instructional services-I (MIS-I) class in respondent's P.S. 68 during the 1997-98 school year. The hearing officer denied petitioner's request that respondent be ordered to reimburse her for the cost of her son's tuition in the Eagle Hill School. The appeal must be sustained in part.

        Petitioner's son, who will be ten years old this week, reportedly achieved his developmental milestones within normal limits, and has no significant health problems. At the age of three, the child was enrolled in a Montessori preschool program where, according to petitioner, the boy was initially thought to be color blind because he could not recall colors, but he was in fact manifesting a visual processing problem (Exhibit 2). The child next attended the Fieldston School (Fieldston) for preschool and early elementary education. He repeated kindergarten at Fieldston because he reportedly exhibited signs of developmental delay and had not acquired certain readiness skills (Ibid.).

        In February, 1996, the boy was privately evaluated by a psychologist at the Bronx Mental Health Center to ascertain the level of his cognitive and emotional functioning (Exhibit 6). The psychologist noted that the child had difficulty separating from his mother, and appeared to be depressed throughout the formal assessment process. Although the psychologist did not provide specific IQ or achievement test scores in her report, she indicated that the child's verbal IQ score was in the low average range, while his performance and full scale IQ scores were in the average range. She reported that the child had scored in the borderline range on the subtest which measured his fund of knowledge, while noting that the subtest was particularly sensitive to one's emotional status. The psychologist further reported that the child had manifested pervasive language-based deficits. She indicated that his poor decoding and encoding skills made it difficult for him to decipher words and to express his thoughts in writing. The psychologist also reported that projective tests had revealed signs of depression, poor self-perception, and vulnerability. She recommended that the child be evaluated by a psychiatrist, and that he receive individual and family therapy. In addition, she recommended that his phonics skills be remediated to improve reading and spelling ability.

        In May, 1996, the child was referred by petitioner to the CSE of Community School District 10, where petitioner lives. The child was then in the first grade at Fieldston, which provides a regular education program. At the hearing in this proceeding, petitioner testified that she had been advised by Fieldston staff to find a more appropriate setting for her son. The CSE of Community School District 10 transferred the case to the CSE of Community School District 11 where the child's private school was apparently located. The latter CSE determined that the child was learning disabled and recommended that he be placed in a MIS-I class in P.S. 153 for the 1996-97 school year. However, after visiting the proposed class, petitioner determined that her son would be inappropriately grouped for instructional purposes. I note that the record indicates that petitioner is employed by respondent as a special education teacher. The child returned to Fieldston, where he was enrolled in the second grade for the 1996-97 school year. The CSE's representative testified that the case was closed after petitioner had indicated her intention to keep her son in Fieldston.

        The child received instruction from a language specialist in a group of approximately six children during the first and second grades at Fieldston. Although the child was not formally tested at Fieldston, his language specialist testified that the child's reading skills were probably at an end of first grade level by the end of the second grade. She indicated that the child worked very well in a 1:1 situation, but his attention wandered in a large group. The child's second grade teacher at Fieldston also testified that petitioner's son had difficulty with reading and spelling, and that she had modified his assignments. During the 1996-97 school year, petitioner's son was also assisted by a colleague of petitioner who was a language specialist. Petitioner testified that her son's academic skills had improved because of the additional assistance he had received, but had not improved enough to allow him to continue to attend Fieldston.

        On April 26, 1997, petitioner had her son privately evaluated by a psychologist in the Bronx. The psychologist noted that the child was easily distracted and frustrated as the testing progressed, and he opined that academic tasks frustrated the child. The child achieved a verbal IQ score of 104, a performance IQ score of 117, and a full scale IQ score of 111, placing him in the average, average and high average ranges, respectively. The psychologist reported that the child did not manifest specific weaknesses or deficits in his IQ tests, " … other than his attitude" (Exhibit 5). However, on the Wide Range Achievement Test-Revision III, the child achieved standard scores of 79 for reading, 81 for spelling, and 81 for arithmetic, which were not consistent with his expected performance based upon his IQ tests. The psychologist reported that the child was struggling in all three areas, and that he was painfully aware of his shortcomings in reading, spelling, and arithmetic. He described the child as possibly being at a cross-roads because he had the intellectual potential to do well academically, but lacked the skills and attitude to succeed. The psychologist recommended against placing the child in a special education program.

        On April 30, 1997, petitioner signed an enrollment agreement with the Eagle Hill School (Eagle Hill) in Greenwich, Connecticut for the 1997-98 school year (Exhibit A). Eagle Hill, which has not been approved by the New York State Education Department to provide special education to children with disabilities, is reportedly approved by the State of Connecticut. Its Assistant Headmaster testified that Eagle Hill provided remediation to approximately 195 learning disabled children between the ages of 6 and 16 who were enrolled in either its Lower or Upper School. He further testified that speech/language therapy, psychological and/or counseling services were available to Eagle Hill students if they needed those services. Petitioner's son had attended an Eagle Hill summer remedial program during the summer of 1996. A report from Eagle Hill relating to that program indicated that he had received 1:1 tutoring in reading, using first and second grade level materials, and had been instructed in a group of three in mathematics (Exhibit E). Petitioner testified that not only had the child's academic skills improved while attending the Eagle Hill summer program, but his feelings about himself improved.

        By letter dated May 21, 1997, petitioner's attorney requested that a hearing be held to challenge the appropriateness of the MIS-I class in P.S. 153 which the CSE of Community School District 11 had recommended for the child on October 30, 1996. At a hearing on July 10, 1997 involving petitioner, her attorney, and a representative of the CSE of Community School District 10, it was agreed that there was in fact no CSE recommendation for the 1997-98 school year to be reviewed by the hearing officer, and that the CSE of Community School District 10 would review the existing data, complete all necessary evaluations, and make its recommendation. A new social history was obtained from petitioner on July 25, 1997 (Exhibit 2). Petitioner indicated that her son would not return to Fieldston in the fall, and that Eagle Hill would provide a beneficial environment for the boy.

        On July 15, 1997, the boy was evaluated by one of respondent's educational evaluators (Exhibit 3). The evaluator reported that the child was able to complete all tasks with the use of a good deal of praise and reinforcement, although the child had repeatedly asked when the testing would end. The child's receptive and expressive language skills, which were assessed informally and with the Woodcock Language Proficiency Battery-Revised, were reported to be age appropriate. The child was able to relate a short story in a sequenced manner using the main ideas, and his syntax and grammar skills were assessed to be appropriate. His vocabulary was reported to be within the average range, and his listening comprehension skills were determined to be grade appropriate. On the Woodcock Johnson Tests of Achievement, the child earned standard scores of 99 for letter-word identification, 96 for passage comprehension, 99 for word attack, 97 for broad reading, 87 for mathematical calculation, 113 for applied problems, and 104 for broad mathematics. His instructional range for reading was reported to be between the 2.1 and 3.3 grade levels, and his instructional range for mathematics was reported to be between the 2.3 and 3.9 grade levels. The evaluator noted that the child performed mathematical computations very slowly, but was able to use his general reasoning powers to solve problems. The child achieved a standard score of 1.9 for spelling. The evaluator reported that the child had difficulty with irregular sound/symbol combinations. The child's handwriting, although legible, was described as immature and awkward looking. The child wrote in very simple, but complete sentences. He did not use capital letters appropriately, or use periods at the end of his sentences. The evaluator indicated that the child's writing skills were below grade level. On the Woodcock Johnson Tests of Achievement, the child achieved standard scores of 103 for science, 103 for social studies, 87 for humanities, and 98 for broad knowledge.

        On July 16, 1997, the child was evaluated by one of respondent's school psychologists, who noted the results of the child's two prior IQ tests and did not re-test his IQ. She did administer the Gray Oral Reading Test to the boy, who achieved a grade equivalent score of 2.8. The school psychologist suggested that the child perhaps needed to re-learn the basic reading skills since he read slowly and laboriously, and with many self-corrections. On a test of his visual motor integration skills the child's mental age score of 7.0 to 7.5 was three years below his actual age. The school psychologist also assessed the child's emotional development with certain projective tests and an interview. She reported that the test results indicated severe emotional inhibition, with a great deal of anger and aggression being held in control. The child was aware of his learning problems, and was reported to have low self-esteem and depression. The school psychologist recommended that petitioner's son receive counseling.

        On July 18, 1997, the CSE of Community School District 10 reportedly recommended that the child be classified as learning disabled, but that he remain in a regular education program and receive resource room services and counseling. Petitioner was dissatisfied with the CSE's recommendation because she believed that her son could not function successfully in a regular education program, and that he did not need counseling. The hearing in this proceeding was to begin on September 3, 1997. However, the parties asked the hearing officer to adjourn the matter, pending further discussion. The CSE decided to reconvene on September 5, 1997 to consider additional information which has been provided by a school psychologist employed by Fieldston. In a letter dated September 2, 1997 (Exhibit 13), the school psychologist indicated that the child had poor phonemic awareness, and possible weaknesses in his visual sequential memory and auditory processing skills. She noted that the child had had difficulty acquiring academic skills in the first and second grade, and she reported that he had a poor sight vocabulary and weak phonics skills. She indicated that the child's reading comprehension was adversely affected by his poor reading decoding skills, and that he had difficulty putting his thoughts in writing. His mechanics of writing skills were poor and his spelling skills were weak. The school psychologist further reported that the child was painfully aware of his learning difficulties, and she opined that his low self-esteem as a learner was impeding his overall cognitive functioning. She indicated that the child had often required direct 1:1 attention from an assistant teacher in the second grade at Fieldston, and she recommended that the child be placed in a small, self-contained classroom with students of similar ability.

        At its meeting on September 5, 1998, the CSE again recommended that the child be classified as learning disabled. However, it changed its recommendation of a placement to indicate that the child should be enrolled in a MIS-I class with a child to adult ratio of 15:1. The CSE indicated on the child's individualized education program (IEP) that the child required a small structured classroom setting (Exhibit 1). The CSE did not recommend that the child be mainstreamed for instruction in any subject. The child's IEP included testing modifications of extended time limits, testing in separate locations, and having test questions read aloud to the child and his answers recorded for him. The IEP included two annual goals for mathematics, one goal for spelling, one goal for written expression, one goal for handwriting, plus goals for completing parallel curricula in art, music, and health.

        Petitioner chose to enroll her son in Eagle Hill at her expense for the 1997-98 school year. The hearing resumed on September 15, 1997, at which time respondent defended the CSE's September 5, 1997 recommendation of a MIS-I placement in respondent's P.S. 68. A special education site supervisor at P.S. 68 briefly testified about the proposed placement, and respondent entered into evidence a profile of the children who had been assigned to the class in question (Exhibit 12). The CSE representative, who had no personal knowledge of the child or of the CSE's rationale for its recommendation, testified that P.S. 68 was the child's home zoned school, i.e. the school which he would attend if he were not a child with a disability. Two of the child's teachers and the school psychologist from Fieldston, the psychologist who had privately evaluated the child in April, 1997, and the Assistant Headmaster of Eagle Hill also testified on behalf of petitioner. Petitioner and the child's father also testified.

        In her decision which was rendered on November 7, 1997, the hearing officer found that petitioner's son had moderate difficulties with his reading and spelling skills. She also found that those difficulties did not warrant placing the child in a private school for children with disabilities like Eagle Hill, which she determined to be a more restrictive placement than the MIS-I placement which the CSE had recommended. Accordingly, she upheld the CSE 's recommendation, but directed the CSE to add the related service of counseling to the child's IEP.

        Petitioner challenges the hearing officer's decision on three grounds. First, she asserts that the hearing officer did not render a timely decision. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). Petitioner does not assert that the hearing officer should have rendered her decision within 45 days after petitioner's request for a hearing in May, 1997. She does assert that the hearing officer's decision was due on or before October 16, 1997. At the conclusion of the hearing on September 15, 1997, the parties discussed a post-hearing submission of an undated profile of a MIS-I class, and they agreed to the hearing officer's request to extend her time to render a decision until October 16, 1997. As noted above, the hearing officer rendered her decision on November 7, 1997, approximately three weeks after the date that the parties had agreed. While not condoning the hearing officer's brief delay, I find that her delay does not afford a valid basis for annulling her decision (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child With a Disability, Appeal No. 97-62).

        Petitioner contends that the CSE's recommendation must be set aside because one of its legally mandated members did not participate in the July 18, 1997 and September 5, 1997 meetings. She argues that, as amended by the Individuals with Disabilities Education Act Amendments of 1997, Federal Law requires that a representative of the proposed special education site at P.S. 68 participate in the discussions which led to the creation of her child's IEP. In fact, the relevant portion of Federal law indicates that the CSD must include a representative of the local education agency who:

(I) is qualified to provide or supervise the provision of special designed instruction to meet the unique needs of children with disabilities

(II) is knowledgeable about the general curriculum;

(III) is knowledgeable about the availability of the resources of the local education agency" (20 USC 1414 [d][B][iv]).

        I find petitioner's argument to be without merit.

        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 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). Having reviewed the IEP's description of this child's educational needs I find that the IEP accurately reflects the results of the child's evaluations. I have also reviewed the child's annual goals and short-term instructional objectives. I find that there is a serious omission. Each person who has evaluated this child has noted the child's reading difficulties. His teacher at Fieldston also testified about his reading difficulties at the hearing. However, the child's IEP does not have an annual goal to address his reading difficulties.

        The central dispute in this proceeding is about the special education services which the CSE recommended for this child. Respondent was required to demonstrate how the MIS-I class would have addressed this boy's special education needs, and show that the child would have been grouped for instructional purposes with children who had similar levels of academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6 [g]). I have carefully reviewed the limited testimony about the proposed MIS-I class. While that class may indeed have been appropriate, I am constrained to find that respondent failed to produce sufficient evidence to demonstrate the appropriateness of that placement. The P.S. 68 site supervisor briefly alluded to a specific reading program which was used in the MIS-I class, but she did not explain how the reading program would be helpful to meet this child's reading difficulties nor did she explain how the MIS-I program would address his spelling, writing and mathematics difficulties. In order to demonstrate the similarity of needs of the children in a proposed class, a school district may submit a class profile, as respondent did in this case (Exhibit 12). I must note that this child's reading and mathematics skills appear to have been above those of the other children in the MIS-I class.

        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]). 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 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]). I have already found that respondent failed to meet its burden of proof with respect to the appropriateness of the program which its CSE recommended.

        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 Eagle Hill School during the 1997-98 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).

        As noted above, Eagle Hill's Assistant Headmaster testified about the private school in general. He indicated that all of the school's teachers were certified or licensed special education teachers. He was not able to testify about the size or the nature of this child's classes in Eagle Hill. In addition to the Assistant Headmaster's testimony, I have also considered a written description of Eagle Hill which is in the record as Exhibit D. That document indicates that Eagle Hill uses a "language-immersion program", in which child receives a daily tutorial in language arts, plus three other language classes. The document further indicates that instruction in the four daily language classes includes " … emphasis on decoding, reading comprehension, handwriting, written expressive language, mechanics and grammar, spelling, study skills, oral language development, vocabulary, and listening skills." It also indicated that the student-teacher ratio in the Lower School was 3:1. However, the record does not include any specific description of the class or classes in which petitioner's son was enrolled, or of the techniques which were used in the classes to remediate his academic deficiencies. Unilateral parental placements are subject to the Federal and State requirement that each child be placed in the least restrictive environment, when tuition reimbursement is sought (P. J. v. State of Connecticut, 788 F. Supp. 673 [d. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, Decision Sustained sub nom., Lord v. Bd. of the Fairport CSD et al., 92-CV-6286 [W.D.N.Y., 1994]). I note that Eagle Hill is a residential school although petitioner has only requested reimbursement for tuition. Nevertheless, I am not persuaded by the record which is before me that this child requires so restrictive a placement as a school, either public or private, which serves children with disabilities exclusively. There is no reason to believe that this child could not function successfully in a less restrictive environment. For all of the forgoing reasons, I am compelled to conclude that petitioner has not met her burden of proof with respect to the appropriateness of the services which she retained for her child at Eagle Hill during the 1997-98 school year. In view of that finding, I do not reach the issue of whether equitable considerations favor her claim for tuition reimbursement.

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that the decision of the hearing officer is hereby annulled.