The State Education Department
State Review Officer

No. 96-9

 

 

Application of the BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF THE CITY OF SARATOGA SPRINGS for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
McCary and Huff, Esqs., attorneys for petitioner, Kathryn McCary, Esq., of counsel
Hicks and Bailly, Esqs., attorneys for respondent, Stephen F. Bailly, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Enlarged City School District of the City of Saratoga Springs, appeals from the decision of an impartial hearing officer which directed petitioner to reimburse respondent for her expenditures for her son's tuition in the Hampshire Country School, a private school in which respondent had unilaterally enrolled her son. The hearing officer also directed petitioner to maintain the child in the private school, at petitioner's expense, until petitioner's committee on special education (CSE), respondent, and the child's physician could agree on an alternative placement, and to pay reasonable attorneys' fees to respondent. The appeal must be sustained in part.

        Petitioner's son, who is seventeen years old, was medically diagnosed as having Tourette Syndrome in 1988, when he was nine years old. A physician who treated the child from September, 1993 through February, 1995, reported that the child had a primary diagnosis of Tourette Syndrome, with associated diagnoses of an attention deficit hyperactivity disorder (ADHD), and an oppositional [compulsive] disorder (OCD). The physician indicated that the child manifested his Tourette Syndrome by multiple tics (involuntary movements), and manifested his ADHD by having an extremely low tolerance of frustration, and a tendency toward impulsivity. She also reported that the child had extremely low self-esteem. In a letter to the CSE chairperson, dated September, 1995, the child's current physician referred to the behavioral symptoms associated with Tourette Syndrome, and reported that the child was "doing better" as a result of his treatment with medication. At the hearing in this proceeding, respondent testified that the boy was no longer taking medication to control the Tourette Syndrome symptoms, while in school. The child has been classified for educational purposes as other health impaired (8 NYCRR 200.1 [mm][10]), since March, 1992. At the hearing in this proceeding, the CSE chairperson testified that the boy had been classified as other health impaired because his Tourette Syndrome and ADHD had adversely affected his educational performance in a traditional school environment. The child's classification is not disputed in this proceeding.

        The child was enrolled in a regular education kindergarten class in the Shenendehowa Central School District, and in regular education first, second and third grade classes in the Germantown Central School District. He reportedly received speech/language therapy, while in the third grade. The child began attending petitioner's schools in the 1987-88 school year, when he was enrolled in a regular education fourth grade class. Although he was diagnosed as having Tourette Syndrome in 1988, the child was not classified as a child with a disability. He remained in petitioner's regular education program through the 1990-91 school year, when he completed the seventh grade in petitioner's junior high school. The child reportedly received medication and counseling to address the needs created by his Tourette Syndrome. The record does not include any information about his academic performance in the lower grades. The boy reportedly had behavioral and academic difficulties in the seventh grade.

        Respondent enrolled her son in a local parochial school, identified in the record as "Spa Catholic", for the eighth grade during the 1991-92 school year. In October, 1991, respondent referred her child to petitioner's CSE. The child was reportedly evaluated in December, 1991. He was reportedly asked to leave Spa Catholic, and he briefly returned to petitioner's schools. However, respondent's physician reportedly arranged to have the child admitted to the Four Winds Psychiatric Hospital, in Saratoga Springs, in March, 1992. The record does not reveal the medical basis for the child's hospitalization. The CSE met in March, 1992, when it classified the child as other health impaired. The CSE chairperson testified that the CSE also recommended an educational program for the child, but the record does not reveal the nature of that program. In any event, the child reportedly remained in the Four Winds Psychiatric Hospital for the duration of the 1991-92 school year. The record does not reveal what, if any, educational services were provided to the child while he was in the hospital.

        The record reveals that the Saratoga County Commissioner of Social Services had custody of the child from June, 1992 until September, 1993, as a result of a "PINS" (person in need of supervision) proceeding, which was reportedly commenced so that the child could obtain treatment at the Parsons Child and Family Center, in Albany, New York. He reportedly repeated the eighth grade while receiving special education instruction as a residential student in Parsons, which has been approved by the State Education Department as a school for children with disabilities.

        In August, 1993, the child, who was leaving Parsons, was again referred to the CSE. He returned to petitioner's junior high school for the ninth grade, during the 1993-94 school year. The boy was reportedly enrolled in special education classes with a 15:1 child to adult ratio for instruction in English, social studies, general mathematics, and earth science. When tested in September, 1993, the boy achieved grade equivalent scores of 6.0 in reading comprehension, 12.2 in total vocabulary, 7.7 in numeration, 7.0 in computation, and 5.9 in mathematical application. His total written language quotient was reported to be 87. While reportedly successful in structured classes, the child allegedly failed less structured studio art and physical education courses. At the hearing, petitioner's school psychologist testified that the child continued to have problems with his peers during the ninth grade, but that his social problems were not as severe as they had been during the seventh grade.

        For the 1994-95 school year, petitioner's CSE recommended that the child be enrolled in tenth grade special education classes for social studies, mathematics, and science, and in regular education classes for English, physical education, and the elective subjects of creative cooking and relationships. The CSE also recommended that the child receive five periods per week of resource room services to support his instructional program, and that he receives counseling on a consultant basis. It recommended that the child have the benefit of extended time limits, and the use of alternative locations, for school tests. Respondent reportedly asked that the child's tenth grade schedule be changed to provide for more regular education, and less special education. Although the CSE did not formally amend the child's individualized education program (IEP) until November 2, 1994, the child reportedly began attending regular education social studies and mathematics classes in petitioner's senior high school well before the CSE had amended his IEP to provide for such instruction.

        The child reportedly had difficulty making the transition from junior high school to senior high school. Respondent requested that the child be independently evaluated. The record does not reveal whether the child was independently evaluated. The child's triennial evaluation, which was to have been performed in December, 1994, was instead performed in the Fall of 1994.

        In her psychoeducational evaluation of the child, petitioner's school psychologist reported that the child had displayed behavior typical of a student with ADHD, when he was observed in class. The child was described as inattentive when verbal directions were given, and he reportedly drew pictures in his notebook when he should have been taking notes. The boy was also easily distracted, and impulsive. Although the child's teachers reported that he had become more socially accepted by his peers, the other students reportedly laughed at the child when he got into a conflict with another child or a teacher. The boy's English teacher reported that the boy was failing English, primarily because he did not complete homework assignments. The teacher also reported that the child had difficulty remaining focused in class. His mathematics teacher reported that the child's first quarter average was 65, and that the child tended to talk throughout the class period. The teacher opined that the child would benefit from more individualized attention. Although the child's science test scores were good, his teacher indicated that his science homework and notebook materials were inconsistent and disorganized. The science teacher also indicated that the child's peer relationships had improved, but that he was easily irritated and became defensive at times. The teacher reported that the child left class when he became anxious, and indicated that the child had missed too many classes.

        The school psychologist reported that the child's score of 104 on a test of his cognitive skills was within the average range. She noted that the child did not display any significant strengths or weaknesses in his cognitive skills. The child's reading skills were reported to be in the high average range, while his mathematics skills were found to be the average range. The child reportedly had difficulty with problems, involving decimals, algebra, and long division. The child's writing skills were also found to be in the average range, with a relative weakness in spelling and capitalization. The school psychologist reported that the child's test scores were commensurate with those which he had achieved when tested during the previous evaluation in 1991. She noted that the child's performance was at, or above, grade level when individually tested, but that he encountered much more difficulty performing in a regular education setting. Although the child's responses to test questions which were designed to measure his self-concept, depression, and anxiety indicated that he had an adequate self-concept and was not depressed or anxious, the school psychologist cautioned that the test results did not correlate with the child's observed behavior. Noting that the child had been receiving private individual and family counseling, the school psychologist opined that the child would continue to benefit from counseling. She recommended that the child remain classified as other health impaired, and that he remain in his current educational program. She suggested that the child's teachers view a videotape about Tourette's syndrome, and that a behavior monitoring plan be implemented. The school psychologist recommended that a system of daily communication between the child's teachers and respondent be implemented to ensure that the child completed his homework assignments.

        In an update of the child's social history, the child was described by respondent as generally liking school, but fearful of attending school because of threats reportedly made to him by other students. Respondent also reported that the child had difficulty transferring from class to class, and was anxious about moving from class to class. At the hearing, in this proceeding, respondent testified that varying the amount of child's medication had been only partially successful in controlling his symptoms of Tourette Syndrome.

        When the CSE met on December 7, 1994 to review the results of the child's triennial evaluation, it recommended that the child's classification and placement remain unchanged. However, the child was no longer enrolled in petitioner's schools. Respondent had withdrawn the child from petitioner's schools in November, 1994, and unilaterally enrolled him in the North Hampton School, a private school for children with learning disabilities in New Hampshire. The child reportedly stayed in the North Hampton School for approximately two weeks, until he was withdrawn at the school's request because of the child's hyperactivity in his dormitory.

        Respondent thereafter enrolled the child in the Oxford School, a private school for emotionally disturbed children, in Westbrook, Connecticut. The child reportedly remained in the Oxford School for four weeks. He was withdrawn from that school because of his hyperactivity. A psychologist who briefly counseled the child when he was at the Oxford School reported that the child's adjustment to the private school had been difficult because environmental stress had affected his behavior. In a letter to respondent, which was dated April 20, 1995, the psychologist opined that the child would be better served in a smaller school, in which his specific needs could be addressed. At the hearing, respondent testified that she enrolled the child in the Hampshire Country School because the psychologist had indicated to her that the school could meet her son's needs. The child entered the Hampshire Country School, on February 12, 1995.

        In a letter to the CSE chairperson, which was dated March 9, 1995, respondent asked for a meeting with the CSE to discuss her son's educational placement. The CSE's annual review of the child was held on May 26, 1995. At the hearing in this proceeding, the CSE chairperson testified that the CSE discussed the child at the May 26, 1995 meeting, but it did not make any recommendations for his educational program or placement. The CSE reconvened on June 13, 1995. The CSE chairperson testified that the CSE had considered the options of placing the child in one of petitioner's self-contained special education classes, a special education program of the local board of cooperative educational services (BOCES), a day treatment program in Parsons, and a residential school. She further testified that petitioner's self-contained class was rejected by the CSE because it had been tried before, and because the child needed a more academically challenging program than he could receive in that class. The BOCES program was rejected because it was vocationally, rather than academically orientated, and the BOCES students were more likely to victimize respondent's child. The CSE also rejected the Parsons day treatment program because it believed the students in that program would not be suitable peers for respondent's son.

        On June 13, 1995, the CSE recommended that the child attend a residential school on a twelve-month basis during the 1995-96 school year. It did not identify a specific school for the child. The CSE recommended that the child be instructed in 12:1+1 special education class in all subjects, and that he receive resource room services once per day to improve his organizational skills and management of time. The CSE also recommended that the child receive individual counseling twice per week, group counseling once per week, and family counseling. The child was described in his IEP as needing a highly structured instructional program, with clear expectations for his performance, although he was able to learn the regular education academic curriculum at an age appropriate rate. The child's IEP provided that he would successfully complete the course requirements for eleventh grade social studies, science, English, and mathematics, and would work toward completing the requirement for receipt of a high school diploma. The IEP also included annual goals for the child to develop his social and coping skills, and for his family to increase its understanding of his disability.

        At the hearing in this proceeding, the CSE chairperson testified that she contacted the residential placement service (RPS) of the State Education Department, which provided her with a list of nine approved private schools which might have an appropriate program for the child. On July 26, 1995, the CSE chairperson applied to all nine schools for the child's admission. She testified that all of the schools had rejected the application for admission, by early September, 1995. In a letter to the State Education Department which was dated September 11, 1995, the CSE chairperson indicated that the child had not been accepted at any of the nine schools recommended by RPS. She also indicated that on September 7, 1995, the CSE had recommended that the child receive instruction at home for ten hours per week, pending his placement in a residential school, and that respondent had declined the offer of home instruction. It should be noted that boards of education in New York have no authority to contract with a private school which has not been approved by the State Education Department as a school for children with disabilities (Section 4402 [2][b][2] of the Education Law).

        The CSE chairperson asked the State Education Department to assist petitioner in finding a residential placement for the child through the Department's emergency interim placement (EIP) procedure. She testified that pursuant to the EIP process a child could be placed by a school district in an out-of-state private school which had not been approved by the New York State Education Department as a school for children with disabilities, but which was approved by the educational agency of the state in which it was located. She also testified that she had discussed the possibility of an EIP placement of the child in the Hampshire Country School with an Education Department employee. The latter wrote a letter to the CSE chairperson on September 18, 1995, in which he indicated that the Department would not approve an EIP placement in the Hampshire Country School because it was not approved as a special education school by the Commonwealth of New Hampshire. In addition, he indicated that the private school's headmaster had informed him that the school would not accept a child with an IEP, since it did not provide, or contract for the provision of, special education for any child.

        The State Education Department employee advised the CSE chairperson that respondent's son would be approved for an EIP placement in a private school approved for that purpose. He indicated that the Grove School in Madison, Connecticut was an approved EIP facility, and that an interview of the child at the Grove School had been tentatively scheduled for September 28, 1995. Respondent, who had returned her son to the Hampshire Country School, agreed to visit the Grove School with the CSE chairperson and petitioner's school psychologist. However, she declined to remove the child from his school to be interviewed at the Grove School because it would reportedly result in his loss of three days of school. After her visit to the Grove School with respondent on September 28, 1995, the CSE chairperson offered to arrange for an interview of the child at the Grove School on a Friday afternoon, to minimize the disruption to his schooling. The child has not been interviewed at the Grove School, which has not formally accepted him.

        On September 27, 1995, one day before she visited the Grove School, respondent requested that an impartial hearing be held. The hearing began on November 6, 1995, and ended on November 8, 1995. At the hearing, the child's need, if any, for the counseling which the CSE had recommended was extensively discussed, as was the appropriateness of the private school in which respondent had unilaterally enrolled her son.

        The hearing officer rendered his decision on December 23, 1995. He found that the Grove School would not have been an appropriate placement for the child, apparently because the child's physician had opined in a letter that the child did not require the services of a school which specialized in addressing the needs of children with emotional disorders. The hearing officer also noted that the cost of the Grove School's services was significantly greater than the cost of the services provided by the Hampshire Country School. He apparently found that the counseling recommended the CSE was unnecessary, because he remanded the matter to the CSE to delete the "counseling and coping" components from the child's IEP. The hearing officer ordered that the child remain in the Hampshire Country School, until the State Education Department located another placement which petitioner, respondent, and the child's physician agree is "equally or more appropriate to meet [the child's] needs." He also directed the Board of Education to reimburse respondent for the tuition which she had paid to date, as well as reasonable attorneys fees and expenses.

        Petitioner challenges the hearing officer's decision on the grounds that he allegedly acted in excess of his jurisdiction by ordering the Board of Education to reimburse respondent for her tuition expenditures during the 1994-95 school year, and by ordering the Board of Education to pay respondent's attorneys' fees. Petitioner also argues that the hearing officer's decision is not supported by substantial evidence.

        Before reaching the merits of petitioner's arguments, I will first address petitioner's request that I order that a hearing be held to receive additional oral evidence, pursuant to 8 NYCRR 279.8. That regulation provides that if the State Review Officer determines that additional oral evidence is necessary, he shall direct that a hearing be held to receive such additional evidence. In support of its request, petitioner asserts that it disputes the significance and reliability of the written opinions by the child's physician, who did not testify at the hearing, that the child's counseling could be discontinued, at least temporarily (Exhibit 24), and that the child did not need the services provided by the Grove School, but did appear to be benefitting from the services provided by the Hampshire Country School (Exhibit H). Petitioner asks that I direct that a hearing be held to receive oral evidence from the child's physician. I find that there is no basis for doing so. It is the responsibility of the parties to determine which individuals will be called to testify at a hearing (34 CFR 300.508 [a][2]). There was no requirement that the child's physician testify at the hearing. The fact that she did not testify goes to the weight which is to be given to the physician's written opinions. Petitioner also asserts that a hearing should be held to receive the testimony of the Headmaster of the Hampshire Country School and an employee of the State Education Department's Office of Special Education Services, "to the extent that the State Review Officer may determine that the Hampshire Country School should have been approved by SED ... ". However, I am expressly precluded from reviewing the actions of any officer or employee of the State Education Department (8 NYCRR 279.1 [c][2]). I find that there is no basis for ordering that a hearing be held to receive additional oral evidence.

        Petitioner contends that the hearing officer exceeded his jurisdiction by awarding tuition reimbursement for the part of the 1994-95 school year during which the child was enrolled in the Hampshire Country School because respondent did not challenge the appropriateness of the educational program offered by the school district during the 1994-95 school year, at the hearing in this proceeding. In her answer to the petition, respondent has not denied petitioner's contention. Respondent's request for a hearing is not part of the record before me. At the outset of the hearing, the hearing officer invited the parties' attorneys to explain the issues. Neither attorney raised the issue of the appropriateness of the child's IEP for the 1994-95 school year, nor did the hearing officer explicitly find that the child's IEP for the 1994-95 school year was inappropriate. The primary task of a hearing officer is to determine the appropriateness of the program or placement which the CSE has recommended (Application of a Child with a Handicapping Condition, Appeal No. 90-17). Upon the record before me, I find that the recommendation which was the subject of the hearing in this proceeding was the CSE's recommendation for the 1995-96 school year. Therefore, I find that the hearing officer exceeded his jurisdiction by purporting to rule upon the appropriateness of the child's IEP for the 1994-95 school year, a necessary condition for awarding tuition reimbursement for any portion of that school year (Application of a Child with a Disability, Appeal No. 94-27).

        In his decision, the hearing officer directed the Board of Education to pay the child's mother reasonable attorneys' fees and expenses, but provided that payment of the attorneys' fees and expenses be held in abeyance pending the outcome of any appeal of his decision. Petitioner contends that hearing officers lack the authority to award attorneys' fees. I agree that the authority to award attorneys' fees rests with a reviewing court, under 20 USC 1415 (e)(4), rather than with an administrative officer (Application of a Child with a Disability, Appeal No. 94-18).

        With regard to the 1995-96 school year, petitioner contends that the hearing officer's decision is not supported by substantial evidence. 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 placement is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). In this instance, petitioner's CSE had not recommended a specific placement for the child at the time of the hearing, apparently because the Grove School had not yet formally accepted the child for admission. However, both parties have presented their respective cases as if the CSE had in fact recommended the Grove School. Since the CSE may have been precluded from recommending the Grove School because respondent had not made the child available for an admission interview at the Grove School, I will not find that the Board of Education has failed to meet its burden of proof solely because the Grove School has not accepted the child. The extent to which respondent may have precluded the CSE from recommending a specific placement by not making the child available for an interview would, of course, be relevant in determining whether equitable considerations support her claim for tuition reimbursement.

        In addition to the child's actual placement, the only significant dispute between the parties is about the individual's group and family counseling which the CSE recommended. The child's IEP indicated that the child's counseling should be provided to help him develop improved impulse control, keep his attention focused upon the activities in an instructional group, work cooperatively on group activities, and demonstrate appropriate behavior in unstructured activities. The IEP also indicated that the counseling would help the child develop a better understanding and acceptance of his disability, recognize and express his feelings, and help him cope effectively with transitions in life. At the hearing, petitioner's school psychologist testified that the child needed counseling to gain insight into his disability, to have more self-esteem, and to improve his social skills. She conceded that her opinion was based upon what she knew about the child in the Fall of 1994. The CSE chairperson in her testimony alluded to the child's impulsive behavior, and suggested that counseling would help the child make the transition from high school to post-secondary education. Respondent testified that the child was making satisfactory academic and social progress at the Hampshire Country Day School, without counseling. She also testified that the child was no longer taking medication to control the symptoms of his disability. Respondent's testimony was supported by a written progress report from the private school. As noted above, the child's physician briefly opined in writing that the child's counseling could be discontinued at least temporarily. With regard to family counseling, respondent testified that her family had previously received private counseling, and did not require more counseling. Upon the record before me, I find that petitioner has not met its burden of proof with regard to the appropriateness of the counseling recommended by its CSE.

        The parties agree that the child is capable of benefitting from instruction in the traditional, high school academic subjects, but that he cannot be successfully educated in a regular high school setting because he has difficulty in large, unstructured settings. They also agree that the child must be educated in classes of no more than fifteen children, and that his impulsivity and lack of organization negatively impact upon his educational performance. His IEP indicated that he should be given clear expectations about his educational performance. The child would appear to have more significant management needs than were testified about at the hearing. I note that the "least restrictive environment statement" (Exhibit 9) which the CSE chairperson prepared for the State Education Department alluded to the child's history of self-injurious behavior, his emotional fragility and victimization. Respondent testified that the child had an especially difficult time changing classes in high school, and riding the school bus. She also briefly alluded to an incident involving the child and his peers in one of the private residential schools. In any event, both parties agree that the child requires a residential placement, and the hearing officer has concurred. Accordingly, I will not review the child's need for a residential placement (see 34 CFR 300.509).

        With regard to the child's specific placement, petitioner contends that the Grove School would be an appropriate placement for the child. Its school psychologist testified that the Grove School would provide a small nurturing environment, as well as an appropriate academic curriculum, for the child. She further testified that seven of the approximately 75 children who attend the Grove School have Tourette Syndrome. The school psychologist further testified that all of the children who attend the Grove School have social or emotional needs which are addressed by the individual, group, and family therapy which the school provides. She conceded that the Grove School would not be appropriate, if the child did not require counseling. I note that a written description of the Grove School's program which is in the record indicates that the school has three psychiatrists, three psychologists, and three psychiatric social workers on its staff, and that all students are seen twice each week in individual psychotherapy. The description also indicates that:

"Our chief emphasis is on mental hygiene and psychological guidance in the service of maximizing the students' educational abilities." (Exhibit 12)

        This child's physician has indicated in writing that she is familiar with the Grove School and that the child is not, at the present time, in need of such a school. Upon the record before me, which as noted above, includes only brief references to the child's emotional problems, I find that petitioner has failed to meet its burden of proving that the Grove School would offer an appropriate program for respondent's son. Therefore, respondent has prevailed with respect to the first of the three criteria for tuition reimbursement under the Burlington decision.

        Respondent bears the burden of proof with regard to the appropriateness of the services which she has obtained for the child at the Hampshire Country School during the 1995-96 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 her burden, respondent 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).

        Although no representative of the Hampshire Country School testified at the hearing in this proceeding, respondent submitted in evidence various documents which describe the school's program. In a letter to the CSE chairperson, the Headmaster of the Hampshire Country School indicated that from 25 to 30 children are enrolled in the school, which has fifteen faculty members. He also indicated that the school serves children of high ability who require an unusual amount of structure, adult direction, and personal attention. The Headmaster described the school's students as socially awkward. At the hearing, respondent testified that approximately four of the students have Tourette Syndrome. The school's parent handbook indicates that the school's primary mission is to provide an academic education, rather than behavioral or therapeutic treatment. While students are expected to meet academic standards which are similar to those of other schools, they often meet those standards as a result of more structure, support, and external motivation, with fewer distractions, than in some other schools. Students attend five academic classes each day. Each class has from four to eight children. Student progress is monitored through daily homework assignments, tests and quizzes, research projects, and annual standardized tests. The students are assigned to dormitories, or residences, which house approximately eight students, under the supervision of one or two house parents. Each student's day is reportedly structured from morning until evening, with supervised homework preparation in the evening.

        The Headmaster of the Hampshire Country School has indicated that respondent's child is appropriately grouped with the other students who attend that school. In a progress report dated May 29, 1995, the private school indicated that although the child was still volatile (capable of sudden outbursts of temper and negative involvement with others), he had become more relaxed and was attempting to control his behavior and upgrade the quality of his academic work. The child achieved the grades of  B or B+ in all of his academic courses during the 1994-95 school year. The Headmaster also indicated that the child's alertness and school work had improved, after he stopped receiving medication to control the symptoms of his disability. Respondent testified that the child was having a successful year at the Hampshire Country School, during the 1995-96 school year. With regard to the Headmaster's alleged statement to the Education Department employee that the Hampshire Country School did not accept any child with an IEP, respondent testified that the Headmaster had denied to her ever having made that statement. Instead, he reportedly informed the Education Department employee that the private school would not accept a child whose IEP the school could not implement. Given the nature of this child's needs and his successful experience at the Hampshire Country School during the latter part of the 1994-95 school year, I find that there is ample evidence in the record to conclude that the child could reasonably be expected to achieve his IEP annual goals for the 1995-96 school year in the Hampshire Country School. Therefore, I find that respondent has met her burden of proof with respect to the second Burlington criterion for tuition reimbursement.

        Having found that respondent has prevailed with respect to the first two criteria for tuition reimbursement, I must now consider whether equitable considerations support her claim for reimbursement. A parent's failure to cooperate with a school district may relieve the latter of its obligation to reimburse the parent for tuition expenditures (Andress v. Cleveland Independent School District, _____F 3d _____ [5th Cir., 1995], 22 IDELR 1134). As noted above, the child did not accompany his mother, the CSE chairperson, and the school psychologist when they visited the Grove School on September 28, 1995. In a letter to respondent, dated October 11, 1995, the CSE chairperson indicated that the CSE "...would very much like to have [the child] visit the school and be interviewed by the intake team." The CSE chairperson also indicated that petitioner would attempt to arrange the child's trip to the Grove School so as to minimize the disruption of the child's instruction at the Hampshire Country School. The record does not reveal whether the child did subsequently visit the Grove School. In the absence of proof that respondent refused the CSE chairperson's request to have the child visit the Grove School, as well as the fact that I have found that petitioner has failed to establish the appropriateness of the Grove School's program for the child for reasons unrelated to the fact that the child may not have been interviewed at the school, I find that equitable factors support respondent's claim for tuition reimbursement. However, I caution respondent to make the child available for evaluations and interviews which the CSE may request in the future.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the hearing officer's decision is annulled, to the extent that it directed the Board of Education to reimburse respondent for the child's tuition in the Hampshire Country School during any part of the 1994-95 school year, and to the extent that it ordered the Board of Education to pay respondent for attorney's fees and expenses.

 

 

Dated: Albany, New York __________________________
April 8, 1996 FRANK MUŅOZ