95-42

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances:

Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Christopher Reo, Esq., of counsel

 

DECISION

 

Petitioner appeals from a decision of an impartial hearing officer which denied petitioner's request for tuition reimbursement at an unapproved private school for a portion of the 1994-95 school year. The hearing officer found that respondent's modified instructional services-I (MIS-I) program, with related services, which had been offered to the child for the 1994-95 school year was appropriate to meet his special education needs. The appeal must be sustained in part.

Petitioner's child who is 12 years old, has been classified as learning disabled. In January, 1995, the child achieved a verbal IQ score of 126, a performance IQ score of 111, and a full scale IQ score of 121. The school psychologist who evaluated the child reported that the boy had extremely well developed verbal skills, but had weaknesses in attention and concentration, immediate recall of verbally presented information and rote copying skills. He also has deficits in fine muscle motor skills. The child exhibited no visual-motor integration delays. Projective testing revealed that the child had a high level of anxiety which interfered with his attention and concentration. The child reportedly exhibited acting out behaviors, which were primarily intellectual and verbal in nature. The record reveals that the child takes medication to address his attention deficit. In an educational achievement evaluation which was performed in December, 1994, the child achieved grade equivalent scores of 1.6 in reading decoding, 1.5 in reading comprehension, 2.0 in spelling, 7.0 in mathematical computation, and 9.8 in mathematical application. The child's classification as learning disabled is not in dispute.

In May, 1995, the time of the hearing in this proceeding, the child had attended the Mary McDowell Center for Learning for four years, at petitioner's expense. The child's parents had placed him in the private school, rather than accept respondent's offer of a placement in its MIS-I program. The private school provided the child with speech/language therapy, and respondent provided him with counseling.

Respondent's committee on special education (CSE) met on March 14, 1994, to consider a request by the child's parents that the child's counseling be increased from once per week to twice per week. The individualized education program (IEP) prepared by the CSE at its March 14, 1994 meeting indicated that the CSE recommended that he be placed in a MIS-I program with individual speech/language therapy twice per week, individual occupational therapy twice per week, and individual counseling twice per week. A notice of the CSE's recommendation, dated April 4, 1994, was sent to the child's parents, in which they were offered a placement in respondent's P.S. 221, and they were advised of their right to request an impartial hearing if they disagreed with the recommendation (Presumably, this offer was for the 1994-95 school year and not the remainder of the 1993-94 school year. The IEP itself does not indicate the proposed dates of service (cf. 34 CFR 300.346 [a][4]). Petitioner's wife signed the notice, with the notation that "[the child] will continue to attend Mary McDowell 9-94 to 6-95."

In a letter to the CSE chairperson dated November 28,1994, petitioner asked the CSE to "revisit the IEP for my son ... and aid in placing him in an appropriate setting for the school year starting in September 1995". Petitioner indicated that the child would "age out" of the Mary McDowell Center for Learning at the end of the 1994-95 school year.

The CSE met with the child's parents on February 9, 1995. The list of participants at the CSE meeting reveals that the CSE lacked the required parent member (cf. Section 4402 [1][b][1] of the Education Law). Although respondent has denied petitioner's assertion in his petition that the CSE was improperly constituted it has not offered any proof that all of the required CSE members attended the February 9, 1995 meeting. The IEP which was prepared at that meeting indicated that the CSE had recommended that the child attend a private day school providing classes of no more than 12 children with a teacher and an aide. No specific school was identified. The CSE also recommended that the child continue to receive individual counseling, speech/language therapy, and occupational therapy, each twice per week. The CSE indicated on the child's IEP that it had considered respondent's MIS-I program for the child, but had concluded that in order to progress academically, the child required a smaller instructional group, with more adult attention. The CSE also indicated that the child required intensive, small-group instruction to address his unique academic need which could not be appropriately met in a public school.

In two letters to respondent's Impartial Hearing Office, dated March 14, 1995 and April 6, 1995, petitioner's attorney asked that an impartial hearing be held, but he did not identify the subject of the requested hearing. The hearing in this proceeding was held on May 1, 1995. The child's parents, who attended the hearing were represented by their attorney. The assistant chairperson of the CSE of Community School District #15 appeared on behalf of respondent. The CSE assistant chairperson requested that the hearing be adjourned in order to obtain representation by an attorney from respondent's Office of Legal Affairs. The hearing officer denied the adjournment request on the ground that the parties had been notified on April 11, 1995 that the hearing would be held on May 1.

At the hearing, petitioner's attorney asserted that the CSE's recommendation on February 9, 1995 that the child be placed in a private day school was a tacit admission that the MIS-I program which the CSE had previously recommended for the child during the 1994-95 school year was inappropriate for the child. The CSE assistant chairperson testified that the IEP prepared at the February 9, 1995 CSE meeting was for the child's placement during the 1995-96 school year. Although respondent introduced 13 exhibits into evidence, it did not present any testimony with regard to the appropriateness of the MIS-I program for the child. One of the child's teachers at the Mary McDowell Center for Learning testified about the services which the child had received at the private school and his academic progress. Petitioner testified about his November, 1994 request for a CSE review, and the February 9, 1995 CSE meeting.

The hearing officer rendered his decision on May 26, 1995. He found that the child's parents " ... have not shown that the proposed public placement violates IDEA" (The Individuals with Disabilities Education Act). He further found that the MIS-I program could have suited the child's intensive reading remediation needs. He noted that if the child's parents had made a timely challenge to the program which was offered to them in April, 1994, and the program had been found to be inappropriate, respondent would have had an opportunity to offer an appropriate public or private placement to the child for the remainder of the 1994-95 school year. The hearing officer held that the child's parents were not entitled to reimbursement by respondent for the cost of the child's tuition at the Mary McDowell Center for Learning for any portion of the 1994-95 school year. He also found that the CSE's February, 1995 recommendation that the child attend a private school was invalid because there was no parent member of the CSE at that meeting. He ordered the CSE to reconvene within 15 days to make a new recommendation for the child's placement during the 1995-96 school year. The record reveals that the CSE met on June 6, 1995, when it recommended that the child attend a private day school during the 1995-96 school year.

A CSE is required to recommend an appropriate program for each child with a disability in its jurisdiction. The child's parents are not required to accept the program or placement offered by the CSE, and may place the child in a private school. A board of education may be required to reimburse parents for the cost of a child's educational services obtained by the 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 for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 95-37).

Prior to November 9, 1993, a parent was precluded from seeking tuition reimbursement at a private school which had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3rd Dept., 1978]). The record reveals that the Mary McDowell Center for Learning has not been approved by the State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts which placed children in that school. On November 9, 1993, the U.S. Supreme Court held that a parent could obtain reimbursement or tuition in an unapproved private school, if the private school provided the child with an appropriate education (Florence County School District v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

The first Burlington criterion is whether the educational services offered by a board of education were appropriate. I reject as unfounded the petitioner's view that the February 9, 1995 IEP was a tacit admission by the respondent that the MIS-I program previously recommended for 1994-95 was inappropriate. Petitioner relies upon the portion of the February 9, 1995 IEP which indicated that the CSE had considered the MIS-I program, but had found that the child required a smaller instructional group than is provided in the MIS-I program. I find that petitioner's reliance upon this IEP provision is misplaced, because the February 9, 1995 IEP was intended for the 1995-96 school year, as will be discussed below.

It was the impartial hearing officer's conclusion that the MIS-I program was indeed appropriate. However, this decision was premised upon an error of law as to the burden of proof, and was unsupported by the record. Petitioner did not have the burden of proving that the MIS-I program was inappropriate. Respondent had the burden of proving that the program was appropriate for the child (Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No.93-1). In his decision, the hearing officer described the MIS-I program in terms of both the needs of the children it is intended to serve and the nature of the services which are provided. The record contains no documentary evidence or testimony regarding the MIS-I program. A hearing officer's decision must be based upon the record before the hearing officer (8 NYCRR 200.5 [c][11]). A hearing officer may not rely upon program descriptions, however accurate, that are not part of the record (Application of a Child with a Handicapping Condition, Appeal No. 92-31). Therefore, upon the record before me, I find that respondent failed to meet its burden of proof with regard to the appropriateness of its MIS-I program. Therefore, petitioner has prevailed with respect to the first Burlington criterion.

The parents of a child with a disability bear the burden of proving the appropriateness of the educational services which they obtained for their child (Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-8). To meet that burden in this instance, petitioner must show that the Mary McDowell Center for Learning provided his son with an instructional program which met the child's special education needs. The child's teacher at the Mary McDowell Center for Learning testified that the private school provides instruction to children between the ages of five and eleven who have learning disabilities. During the 1994-95 school year, petitioner's child was enrolled in a class of nine children. The teacher, who was assisted by another teacher assigned to that class, testified that the nine children receive instruction together in science and social studies. Petitioner's child received instruction in mathematics at the seventh grade level, in a group of two students. The teacher testified that the child received individual instruction in phonics and whole language reading, at the first grade level. He also received individual instruction in writing. She testified that in September, 1994, the child was able to decode simple words and read simple sentences at the kindergarten level. She further testified that the child was reading at the second grade level in May, 1995. Although the child's instruction in reading was provided by another teacher, there is nothing in the record which contradicts the testimony of the witness with regard to the services provided to the child, or his academic progress. In view of the nature of the child's academic and emotional needs, I find that the Mary McDowell Center for Learning met the child's needs in the least restrictive environment, and that petitioner has prevailed with regard to the second Burlington criterion.

In order to obtain tuition reimbursement, petitioner must also demonstrate that equitable considerations support his claim for reimbursement. This is the third Burlington criterion. Petitioner asserts that equitable considerations do support his claim for reimbursement because the CSE's February 9, 1995 recommendation was procedurally invalid. In the alternative, he argues that the recommendation was a belated acknowledgement by the CSE that the MIS-I program was inappropriate for the child during the 1994-95 school year. Respondent asserts that the February 9, 1995 CSE meeting was held in response to petitioner's November 28, 1994 letter asking the CSE to develop a program for the child for the 1995-96 school year when he could no longer attend the Mary McDowell Center for Learning because of his age.

At the hearing, petitioner acknowledged that he had requested a placement for "next September" i.e., September, 1995, in his November 28, 1994 letter asking for a CSE review. He testified that the issue of whether the IEP which was prepared at the February 9, 1995 CSE meeting was intended for the 1994-95 or 1995-96 school years was never raised at the CSE meeting. The IEP prepared at that CSE meeting did not indicate a projected date for the initiation of services, despite the regulatory requirement that an IEP include such date. Nevertheless, petitioner did not refute the CSE assistant chairperson's testimony that the February 9, 1995 CSE recommendation was for the 1995-96 school year. Given these facts and admissions, I find that petitioner is, in fact, challenging the CSE's March 14, 1994 recommendation of a MIS-I program for the child for the 1994-95 school year.

Although petitioner was formally notified of the CSE's recommendation of a MIS-I program for the 1994-95 school year in April, 1994, he did not seek to challenge the appropriateness of the MIS-I program until his attorney requested a hearing in the attorney's letter dated March 14, 1995. Neither that letter, nor the attorney's subsequent letter of April 6, 1995, put respondent on notice that petitioner was challenging the appropriateness of the MIS-I program for the 1994-95 school year, because the nature of petitioner's complaint was not disclosed in either of those letters. There is nothing in the record before me which reveals that respondent was made aware of the reason why petitioner requested a hearing prior to May 1, 1995, when the hearing was held.

Petitioner testified that he became aware of his right to obtain tuition reimbursement at an unapproved school pursuant to the Carter decision after the February 9, 1995 CSE meeting had been held. There is no express time limit for asserting a tuition reimbursement claim, in either Federal or State law. The date when an impartial hearing is requested is not determinative of the question whether equitable considerations support a parent's claim for tuition reimbursement (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25). Nevertheless, the timeliness of a parent's challenge to the child's IEP may be considered in determining whether the parent's claim for tuition reimbursement is supported by equitable considerations (Application of a Child with a Disability, Appeal No. 95-28). The Federal and State statutes contemplate a mutual effort by parents and school districts to arrive at the satisfactory placement of children. In this instance the impartial hearing was the first occasion for respondent to be made aware of petitioner's dissatisfaction with the child's IEP. Under the circumstances, it is appropriate to limit petitioner's recovery for tuition reimbursement to the period between May 1, 1995 (the date of the hearing) and the end of the 1994-95 school year (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]).

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED;

 

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

 

IT IS ORDERED that respondent reimburse petitioner for his expenditures for the child's tuition at the Mary McDowell Center for Learning for the period from May 1, 1995 to the end of the 1994-95 school year, upon petitioner's presentation to respondent of proof of such expenditures.

 

 

 

Dated: Albany, New York

September , 1995 DANIEL W. SZETELA