00-060

       Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their son’s tuition at the Cooke Center for Learning and Development (Cooke) for the 1999-2000 school year. The hearing officer found that respondent’s Committee on Special Education (CSE) had prepared an appropriate individualized education program (IEP) for petitioners’ son for that school year. The appeal must be sustained.

        Petitioners’ son was six years old, and attending Cooke’s Corlears School at the time of the impartial hearing. He was diagnosed as having a Pervasive Developmental Disorder (PDD) at the age of two and one-half. The student temporarily attended the Chelsea Day School when he was two years old, but he lacked social skills, and the school recommended that petitioners withdraw their son from the school and have his hearing checked (Transcript p. 233). Upon examination, the student was not found to have a hearing deficit, although he later had a history of chronic otitis media. In October 1998, the student had patent equalization tubes inserted bilaterally (Transcript p. 233, Exhibit K).

        The student was enrolled in an early intervention program at the Jewish Board of Family Services, Child Development Center, and also received daily one-to-one home tutoring using the Applied Behavior Analysis (ABA) technique. Petitioners’ son aged out of the Child Development Center program at three years of age. He was subsequently enrolled in the First Presbyterian School, a small mainstream nursery school with full-time special education itinerant teacher (SEIT) services. The student later returned to the Chelsea Day School with full-time SEIT services, two teachers, and a student teacher (Transcript p. 235). He received ABA instruction, speech/language therapy, and occupational therapy at home during this time. During the 1998-99 school year the student was enrolled in a regular education kindergarten class at Cooke, with consultant teacher services, speech therapy, and occupational therapy, per his IEP (Exhibit E).

        Petitioners’ son was administered two psychological evaluations within a three month period in 1998. The first evaluation was by a private psychologist and the second by a Board of Education psychologist. Both psychological reports found that the student had language and attention deficits (Exhibits 1, 2). The student was found to be functioning in the average range of intelligence. He achieved a verbal IQ score of 99, a performance IQ score of 106, and a full scale IQ score of 103 on the Wechsler Primary and Preschool Scale of Intelligence (WPPSI). The private psychologist who administered the test opined that the boy’s scores had been affected by his expressive language deficit and distractibility, and did not accurately reflect his true potential of cognitive functioning. On the Wechsler Individual Achievement Test, which is normed for five-year-old children, he scored above average, at the kindergarten level (Exhibit 1). On selected sub-tests of the WPPSI administered to the student in March, scores improved from those reported January. The student’s home program teacher testified at the hearing that the increase in scores was consistent with the fact that the student often asked for the correct answer, and performed better when he was more familiar with the situation and was less anxious (Transcript p. 100).

        According to the school psychologist, the student’s intelligence was within the average range, and he was functioning at grade level (Transcript p. 17). Vocabulary and mathematics were areas of weakness. The student’s consultant teacher at Cooke testified that, with curriculum modifications, the student was at grade level in several skill areas (Transcript p. 188). The teacher also testified that the student had a learning style that required pre-teaching and one-on-one instruction (Transcript p. 176). The student needed visual supports and tasks broken down for him to learn. The coordinator of the student’s home program testified that the student was easily distracted and frustrated, and needed redirecting and coaxing to remain focused (Transcript p. 95). There were deficits in the student’s social skills because he had trouble interpreting the intentions and language of others, which led him to become overly competitive (Transcript p. 177). The coordinator opined that the student needed counseling, occupational therapy, speech and language therapy, a consultant teacher to modify goals, and a paraprofessional to help him break down tasks and to focus and redirect him (Transcript p. 103). The student’s consultant teacher stated that it was important that the student have a paraprofessional to check his understanding in class, and a consultant teacher to help make necessary teaching modifications (Transcript p. 165).

        In November 1998, a speech/language pathologist reported that the student was functioning in the above average range on concrete language tasks, but he was approximately 1 1/2 years below age expectancy in pragmatic language and auditory processing. She noted that he was unable to stay on topic, and spoke tangentially in related but unconnected thoughts (Exhibit K). When re-evaluated in March 2000, the student was found to have a moderate to severe deficit in his auditory processing skills, and a mild deficit in his pragmatic language skills which affected his ability to learn and to socialize effectively (Exhibit J). At the hearing, the student’s speech therapist testified that he had deficits in auditory processing, pragmatics, and narrative discourse (Transcript p. 123). The therapist opined that the student needed more than just speech/language therapy to be successful in the classroom, and asserted that he needed to have an aide and a consultant teacher (Transcript p. 132).

        The CSE met on May 11, 1999 to develop the student’s IEP for the 1999-2000 school year. It recommended that petitioners’ son be classified as speech impaired. I note that the student’s classification is not in dispute by the parties, and is therefore not reviewed in this appeal (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). The CSE also recommended that the student be placed in a regular education first grade class, and receive 30 minutes of individual speech/language therapy per week, 30 minutes of individual occupational therapy per week, and 30 minutes of group counseling per week (Exhibit 9). Unlike its recommendation for the 1998-99 school year (Exhibit E), the CSE did not recommend consultant teacher services. A CSE psychologist testified that the CSE had recommended counseling as a way to ease the student’s transition from consultant teacher services (Transcript p. 25).

        In a notice of final recommendation dated June 1, 1999, respondent offered a placement for the student in its P.S. 11 (Exhibit 11). The student’s mother advised the CSE chairperson by letter dated August 10, 1999 that she had visited P.S. 11, and had determined that it could not offer an appropriate classroom for her son. She indicated that she would enroll him in Cooke for the 1999-2000 school year, and request a hearing to obtain an award of tuition reimbursement (Exhibit D). The hearing began on December 6, 1999, and ended on May 16, 2000.

        In her decision which was rendered on July 14, 2000, the hearing officer rejected petitioners’ challenge to their son’s IEP on procedural grounds. They had contended that the CSE which prepared the IEP did not include one of their son’s regular education teachers, and that the IEP was therefore a nullity. The hearing officer found that since the student was not attending respondent’s schools, respondent could appoint a regular education teacher who could have instructed the student to serve as the regular education teacher member of the CSE. The hearing officer also dismissed petitioners’ claim that the IEP was inadequate because it lacked measurable criteria for measuring progress in achieving the student’s speech/language therapy and small motor skill annual goals, and failed to identify goals in academic areas. She noted that the parties were in general agreement that the student should be placed in a regular education class, but could not agree upon the level of support he required. The hearing officer found that the record did not establish that the student required the services of a consultant teacher or an aide in order to function successfully in a regular education class. She further found that respondent had met its burden of proving that it had offered to provide an appropriate educational program to petitioners’ son during the 1999-2000 school year, and denied petitioners’ request for an award of tuition reimbursement.

        Petitioners appeal from the hearing officer’s decision on several grounds. They challenge the hearing officer’s finding with regard to the composition of the CSE. The parents assert that the regular education teacher who attended the meeting was not their son’s teacher, and was not proven to be a teacher who was likely to be responsible for implementing their son’s IEP.

        The Individuals with Disabilities Education Act (IDEA) was amended in 1997 to provide that an IEP team (the CSE or its subcommittee in New York) must include at least one "regular education teacher of the child," if the child is or may be participating in the regular education environment (see also 34 C.F.R. § 300.344[a][2], and 8 NYCRR 200.3[a][1][ii]). Federal regulations further require that the regular education teacher "must, to the extent appropriate, participate in the development, review, and revision of the child’s IEP." This includes assisting in determining appropriate behavioral strategies and supplementary aides and services and program modifications or supports for the student (34 C.F.R. § 300.346[d]). In its official interpretation of the Regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child’s IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Question 26).

        The regular education teacher member of this child’s CSE was not his current regular education teacher. The student’s kindergarten teacher from Cooke was interviewed before the CSE met to develop his IEP, but she was not invited to attend the meeting or asked for her input during the meeting (Transcript p. 231). However, I do not agree with petitioners’ assertion that the student’s teacher at Cooke was the only individual who could have served as the regular education teacher member of the CSE. The Board of Education could have appointed a regular education teacher who might be responsible for implementing the student’s IEP in the future

        A board of education cannot reasonably be expected to designate a teacher who will necessarily be a student’s regular education teacher to serve on the CSE before the CSE has met to determine the student’s needs. Nevertheless, it can be expected to have sufficient information about the student to ascertain what grade level is appropriate for the student, and designate a regular education teacher who is teaching at that grade level. The record does not reveal the qualifications of the individual selected by respondent to serve as the regular education teacher member of the CSE. It is respondent’s obligation to show that the IEP was developed in accordance with the provisions of federal and state regulations. Accordingly, I must find that the Board of Education has failed to meet its burden of proving that the regular education teacher member of the CSE met those requirements.

        In her decision, the hearing officer found that the parents had failed to present any evidence that the individual in question "did not satisfy the regulation’s requirements." However, respondent has the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). In meeting its burden of proof, respondent must show that the CSE which prepared the IEP was validly constituted (Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of Child with a Disability, Appeal No. 95-8).

        I must find that the Board of Education has not met its burden of proof because it has not demonstrated either at the hearing or in this appeal that the regular education teacher member of this student’s CSE met the federal and state regulatory requirement. In view of my finding that the Board of Education failed to demonstrate the appropriateness of its recommended program, it is not necessary that I address petitioner’s other complaints about the program.

        A board of education may be required to pay for educational services obtained for a student by his or her 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 (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        Petitioners have prevailed with respect to the first criterion for an award of tuition reimbursement. They bear the burden of proof with regard to the appropriateness of the services selected during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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 student (Application of a Child with a Disability, Appeal No. 94-20).

        I find that Cooke was an appropriate placement for petitioners’ son. During the 1999-2000 school year, the student was enrolled in a regular education first-second grade class, in which he received the assistance of a consultant teacher for approximately three to four hours per week, and of a paraprofessional whom he shared with another student (Transcript p. 147). Petitioners’ son received counseling services once a week, and speech/language therapy twice a week, one time individually, and one time in a small group setting (Transcript p. 150). The speech therapist at Cooke testified that the student had made progress in most areas during the 1999-2000 school year (Transcript p. 133, see also Exhibit J). The student did not receive occupational therapy, as recommended by the CSE. However, Cooke’s occupational therapist evaluated the student at his mother’s request, and found that the student had made many gains in his fine motor skills and did not need occupational therapy (Transcript p. 153). The record reveals that the student progressed in reading, writing, math, language, and critical thinking skills (Transcript pp. 105, 182-187). The assistance he received at Cooke enabled the student to stay on task, receive proper reinforcements, have an appropriate pace set for him, have tasks broken down for him, and learn to better express himself.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support petitioners’ claim. There is no indication in the record that petitioners failed to cooperate with the CSE. The student’s mother visited the proposed placement at P.S. 11 in good faith, and decided to unilaterally enroll her son in Cooke because she was worried her son could not be successful in that environment without the support of a paraprofessional or consultant teacher. The reasonableness of the cost of services which a parent has obtained are to be considered in determining whether equitable considerations support the parents claim for tuition reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). Where the costs of private services are excessive, a hearing officer may limit a parent’s claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 96-8; Application of a Child with a Disability, Appeal No. 97-10). Petitioners’ son was in a regular education program at Cooke with many support services provided throughout the program. The $28,000 tuition includes the student’s regular classroom program, consultant teacher services, a paraprofessional, speech and language therapy, and counseling. Nothing in the record supports a finding that the services provided by Cooke were excessive. Accordingly, I find that equitable considerations support petitioners’ claim for tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son’s tuition at Cooke during the 1999-2000 school year, upon petitioners’ submission of proof of payment of such tuition.