The State Education Department
State Review Officer

No. 96-79

 

 

 

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

Appearances:
Hon. Paul A. Crotty, Corporation Counsel, attorney for petitioner, Simon Gourdine, Esq., Phoebe V. Redmond, Esq., and Roslyn Roth, Esq., of counsel

Davis, Polk and Wardwell, Esq., attorneys for respondents, Marlane E. Melican, Esq., of counsel

 

 

DECISION

        Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondents in the amount of $935 for their expenditures for their son's tuition in a regular preschool program during the 1994-95 school year. The Board of Education challenges the hearing officer's refusal to recuse herself from conducting the hearing, as well as the hearing officer's conclusion that the child's parents were entitled to tuition reimbursement. The appeal must be dismissed.

        Respondents' son, who is five years old, has a profound bilateral loss of hearing. He has a moderate hearing loss even when he wears two hearing aids. During the 1994-95 school year, the child was not eligible to attend either a regular education or special education kindergarten because he was too young. He was, however, eligible to be provided with special education services as a preschool child with a disability, pursuant to Section 4410 of the Education Law (see also 8 NYCRR 200.16).

        During the 1993-94 school year, the child was enrolled in the early intervention program of the Lexington School for the Deaf. He was evaluated at the Lexington School for the Deaf in March, 1994. A psychologist reported that the boy was mentally functioning within the very superior range, on the Kaufman Assessment Battery for Children. His visual motor integration skills were appropriate for his age, as were his activities for daily living skills. The boy was described as being sociable, and well-related. He was reportedly developing early reading, writing, and mathematics skills. The school psychologist who performed the evaluation recommended that respondents' son be enrolled in a regular education school program, with hearing education services by a teacher of the deaf twice per week for sixty minutes each session, during the 1994-95 school year.

        In a separate speech/language evaluation which was also performed at the Lexington School for the Deaf, the child's evaluator noted that the boy wore postauricular hearing aids. She reported that the child's receptive language skills were at the 40-42 month level, while his expressive language skills were at the 36-40 month level. When tested, the child was 33 months old. The speech/language evaluator reported that the child gathered most information through audition and speech reading cues. She described the boy's speech as being mostly intelligible, despite his articulation errors. The speech/language evaluator recommended that the child receive individual speech/language therapy for 30 minutes, three times per week.

        On May 16, 1994, the boy was referred by his mother to the committee on preschool special education (CPSE) of Community School District No. 27. In lieu of obtaining another evaluation of the child, the CPSE accepted the evaluation reports from the Lexington School for the Deaf. In addition to the child's audiological, psycho-educational, and speech/language evaluations, the Lexington School for the Deaf also provided the results of the child's physical examination and a vision screening, both of which were unremarkable. In a letter to the CPSE, which was dated May 17, 1994, Lexington's Clinical Supervisor of Pupil Personnel Services reported that a multi-disciplinary team had recommended that during the 1994-95 school year the child should attend a mainstream (regular education) nursery school, with the related services of speech/language therapy and hearing education services.

        The CPSE met with the child's mother on June 3, 1994. It recommended that respondents' son be classified as a preschool child with a disability. However, it did not recommend that he be placed in either a regular or special education program. Instead, the CPSE recommended that the child receive individual speech/language therapy for sixty minutes, twice per week, and individual hearing education services for sixty minutes, twice per week, on a twelve-month basis. While the term hearing education services is not clearly defined in the record, the child received the recommended service from a teacher of the hearing impaired who testified that she had worked on the child's speech, hearing, and socialization skills. The child's individualized education program (IEP) which the CPSE prepared for implementation in the 1994-95 school year indicated that the CPSE also recommended that the child have the use of an FM receiver to amplify sounds for his residual hearing, as specialized equipment, or an adaptive device (see 8 NYCRR 200.4 [c][2][vii]). However, the record reveals that the child did not receive the use of an FM receiver during the 1994-95 school year.

        The boy was enrolled by his parents in the St. Luke's Nursery School, which is a private preschool program. The Board of Education provided the child with the speech/language therapy and the hearing education services which the CPSE had recommended for him. The hearing education services were provided to him at the St. Luke's Nursery School, after his nursery program had ended for the day. He received speech/language therapy at the Lexington Hearing and Speech Center.

        On or about June 22, 1995, respondents requested that an impartial hearing be held for the purpose of determining whether petitioner should reimburse them for the cost of their son's tuition in the St. Luke's Nursery School during the 1994-95 school year. The hearing which respondents requested was held on July 11, 1995. At the hearing the Board of Education reportedly asserted that the parents' claim for tuition reimbursement had to be denied as a matter of law because the Board of Education had no legal duty to provide a regular education program to any preschool child. The hearing officer proposed, and the parties agreed, that the legal issue which the Board of Education had raised should be determined by the hearing officer on a written motion to dismiss the parents' tuition reimbursement claim, before testimony was taken about this child's educational needs during the 1994-95 school year. The hearing officer then closed the hearing without taking any testimony.

        In a decision which was rendered on October 17, 1995, the hearing officer held as a matter of law that a board of education could be required to provide or pay for regular education for a preschool child with a disability, if access to non-disabled children is required as part of the child's IEP, or if the child's IEP provided that the child was to receive special education services in an educational setting and those services could be provided in a regular education setting. He also denied the Board of Education's request that he recuse himself on the grounds of an alleged conflict of interest.

        The Board of Education appealed from the hearing officer's decision, but it also challenged the authority of the State Review Officer to hear the appeal, because it allegedly involved a "policy" of the State Education Department. In essence, the Board of Education claimed that it had been directed by the State Education Department not to provide any regular education instructional services to preschool children, and that the State Review Officer was powerless to review that alleged directive. The Board of Education relied upon the provisions of 8 NYCRR 279.1 (c) (2), which indicate that a State Review Officer may not review the "actions of any officer or employee of the State Education Department."

        On December 19, 1995, the Board of Education's appeal was sustained in part by the State Review Officer, who found that he had jurisdiction to determine the appeal, but that the record which had been adduced at the hearing was inadequate to support any determination by a hearing officer (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-76). He noted that the State Review Officer was obligated to apply the law as he or she perceives it to the facts of the appeal which was before the State Review Officer. However, the transcript of that hearing indicated that no testimony had been taken, and no written evidence had been entered into the record. The State Review Officer held that the child's parents were entitled to have a hearing at which the merits of their claim for tuition reimbursement could be considered by a hearing officer. He annulled the hearing officer's decision, and directed the Board of Education to appoint a different hearing officer, within ten days after the date of his decision, for the purpose of conducting a de novo hearing.

        The hearing which the State Review Officer directed be held began on February 28, 1996. When the hearing reconvened on March 8, 1996, the Board of Education asked the hearing officer to recuse herself because of certain remarks she had made about an alleged delay in scheduling the hearing. The hearing officer took the motion to recuse herself under advisement, and invited the Board of Education to submit written legal argument in support of its motion. In its memorandum of law to the hearing officer (Exhibit B to the petition), the Board of Education asserted that the hearing officer should recuse herself because she had noted that the Board of Education could have sought the subpoena before the hearing was to begin, and because she had stated that she had repeatedly tried to have the hearing scheduled to begin after her appointment as the hearing officer. The Board of Education further asserted that the hearing officer had displayed a bias against the Board of Education in her statements to its attorney, and in her questioning of one of its witnesses. When the hearing reconvened on March 18, 1996, the hearing officer denied the motion to recuse herself. The hearing continued on that day, and it concluded on April 24, 1996.

        The hearing officer rendered her decision on September 26, 1996, and corrected the decision the following day. She noted that there was no dispute about the appropriateness of the child's classification as a preschool child with a disability, or the appropriateness of the speech/language therapy and the hearing education services which the Board of Education provided to the child during the 1994-95 school year. The hearing officer further noted that the boy's parents were challenging the CPSE's failure to recommend that the child be educated in a regular education nursery school during the 1994-95 school year, as the child's evaluators at the Lexington School for the Deaf had recommended to the CPSE. She held that the parents' claim for tuition reimbursement was subject to the tripartite test which the United States Supreme Court had articulated in School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 [1985]). In Burlington, the Court held that a board of education may be required to pay for educational services obtained for a child with a disability 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. Although the Burlington decision involved a claim for tuition reimbursement at a private school which had been approved by the State educational agency to offer services to children with disabilities, the Supreme Court subsequently extended the tuition reimbursement remedy to the parents of children unilaterally placed in an unapproved school, as is the case here (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        With regard to the appropriateness of the educational program which the Board of Education had offered, the hearing officer noted that the child's hearing education services teacher during the 1994-95 school year had opined that the child's instruction in the regular education nursery school class in St. Luke's Nursery School had been an essential component of the boy's education. Similarly, the child's speech/language therapist had testified that the boy's exposure to non-disabled children was necessary for him to derive the full benefit of his speech/language therapy. The child's teacher in the Lexington School during the 1993-94 school year also testified in support of respondents' position that the child was appropriately placed in a regular education program during the 1994-95 school year. The hearing officer found that the CPSE's recommendation that only related services be provided to the boy was inappropriate. Therefore, the parents prevailed with respect to the first of the three criteria for obtaining tuition reimbursement.

        Noting that respondent had not offered evidence about the qualifications of the child's teachers in the St. Luke Nursery School, or evidence of the similarity of needs of the youngsters in the boy's class, the hearing officer nevertheless found that the parents had met their burden of showing that the private school's services were appropriate for their son. The hearing officer premised her finding upon the testimony of the child's hearing services teacher and his speech/language therapist, who attributed at least part of the boy's progress in developing his speech/language and hearing skills to his enrollment in the nursery school.

        The hearing officer further found that the boy's parents had cooperated with the CPSE, and that the CPSE was aware of respondents' dissatisfaction with the CPSE's recommendation prior to their request for an impartial hearing. She concluded that equitable considerations supported their claim for tuition reimbursement, and she ordered the Board of Education to reimburse the child's parents in the amount of $935 for his tuition during the 1994-95 school year.

        The Board of Education, as it did in the prior appeal in this matter, questions the authority of the State Review Officer to determine this appeal because it might lead to a determination which " ... would have the effect of nullifying a published SED [State Education Department] policy." It contends that the State Education Department is a necessary party, and that unless the Department participates in this proceeding the record of the proceeding will be inadequate " ... to appropriately adjudicate SED's published policy." Respondents urge that petitioner's argument be rejected on the ground that Federal and State law clearly authorize an impartial hearing officer and a State Review Officer to make legal determinations which arise in the context of a dispute about the program or placement of a child with a disability, and that this proceeding does not involve any right or responsibility of the State Education Department.

        The relevant State regulation provides, in part, that:

"(1) State review officers shall not be designated to conduct State level review with respect to a hearing to which the State Education Department, or any educational program operated by the State Education Department, is a party.

(2) State review officers shall not have jurisdiction to review the actions of any officer or employee of the State Education Department ...

(4) A State review officer shall have no personal, economic or professional interest in the hearing which he or she is assigned to review. A state review officer shall, on his or her own initiative or on application of any party, recuse herself or himself and transfer the appeal to another State level review officer in the event that:

(I) such officer has in any way been substantially involved in the development of any State or local policy or procedure challenged by the hearing." (8 NYCRR 279.1 [c])

        Petitioner contends that its CPSE may only recommend and provide one or more of the services or programs which are described in Section 200.6 of the Regulations of the Commissioner of Education, and that the "published policy" of the State Education Department is reflected in a memorandum by the Department's Executive Coordinator of the Office of Special Education Services, which was addressed to chief school officers and others (Joint Exhibit III). The memorandum concerned ongoing correspondence between the U.S. Department of Education and the State Education Department about the services which must be provided to a preschool child with a disability.

        Even if I were to assume that Joint Exhibit III reflected the official policy of the State Education Department, it would not follow that I am divested of jurisdiction in this proceeding. The provisions of 8 NYCRR 279.1 (c)(4)(I), as set forth above, indicate that a State Review Officer may review a hearing officer's decision involving a State or school district policy, provided that the State Review Officer has not been involved in the development of the policy. I have had no involvement with the alleged policy described in Joint Exhibit III. I concur with the determination by the State Review Officer in the prior appeal in this matter that the State Education Department is not a necessary party in this proceeding. The relevant Federal and State policies, if any, will be considered in this appeal. However, I am bound to apply the law to the facts which are presented in this appeal. Accordingly, I find that petitioner's arguments with respect to my jurisdiction are without merit.

        Petitioner argues that the hearing officer should have recused herself when she was asked to do so by petitioner's attorney, because of the allegedly inappropriate remarks made by the hearing officer on February 28, 1996. Petitioner also argues that the hearing officer created facts to support her decision. Each hearing officer's decision must be based solely upon the record which is before him or her, as must my decision (8 NYCRR 200.5 [c][1]; 8 NYCRR 279.10; Application of a Child with a Disability, Appeal No. 96-16). Inappropriate remarks by a hearing officer may afford a basis for finding that the hearing officer was biased. I have carefully considered the entire hearing transcript, and I find that it does not reveal any sign of a bias against petitioner.

        With respect to petitioner's request that the hearing officer issue a subpoena for a potential witness, I must note that petitioner was represented at the hearing by an attorney, who could have issued a subpoena in her own name (see Section 2302 [a] of the Civil Practice Law and Rules). The hearing officer did issue the requested subpoena, notwithstanding respondents' objection about the delay which would result if the hearing were adjourned to take the testimony of the proposed witness sought by petitioner. In the resulting colloquy, the hearing officer indicated that she had made numerous requests to petitioner's Impartial Hearing Office to schedule the case, and that she had been advised that petitioner had objected to going forward with the hearing which the State Review Officer had ordered because petitioner had not decided whether it would seek judicial review of the State Review Officer's decision. One of the two attorneys representing petitioner did not deny the truth of the hearing officer's statement. Indeed, he insisted that it would not have been proper to schedule the case until the parties had decided whether either one would seek judicial review of the State Review Officer's decision. The hearing officer pointed out that petitioner could have instituted a court proceeding, and sought a stay of the hearing ordered by the State Review Officer, but that it had not done so.

        As petitioner knows, a party to an appeal to the State Review Officer must commence an action or proceeding to review the State Review Officer's decision within four months after the decision has been rendered (Section 217 [1] of the Civil Practice Law and Rules; Gerasimou v. Ambach 636 F. Supp. 1504 [E.D. N.Y., 1986]). However, it does not follow that petitioner could simply disregard the State Review Officer's decision for four months. The hearing officer was aware of her obligation to render a decision within 45 days after a hearing had been requested, which in this instance could reasonably be construed to have been the State Review Officer's decision on December 19, 1995 which ordered that a new hearing be held. In any event, I find that the hearing officer's remarks did not reflect a bias against petitioner.

        I have also considered the hearing officer's questions to the CPSE's representative at the hearing about the basis for the representative's testimony. Since the representative was not present at the CPSE meeting on June 3, 1994, it was entirely appropriate for the hearing officer to ask the CPSE representative to identify the source of information for her testimony about the CPSE's actions on that date. The hearing officer also questioned the CPSE representative about the continuum of placements which petitioner maintained (see 34 CFR 300.551). I find that the hearing officer's questions were appropriate. Consequently, I find that petitioner has failed to demonstrate any basis for its position that the hearing officer should have recused herself.

        As noted above, there is no dispute about the appropriateness of this child's classification, or the appropriateness of the hearing education services and the speech/language therapy which he received during the 1994-95 school year. The issue is whether the CPSE should have recommended that the boy be placed in a regular education nursery school. Petitioner argues that it is not required by either Federal or State law to recommend or provide regular education programs to preschool children with disabilities, and it asserts that it does not in fact provide such programs to those children. It relies upon the provisions of Section 4410 of the Education Law, as well as the October, 1994 field memorandum (Joint Exhibit III) for support of its argument.

        Section 4410 (5)(b)(i) of the New York State Education Law provides, in material part, that if a CPSE determines that a preschool child has a disability, it:

" ... shall prior to recommending any program, consider the appropriateness of providing related services or special education itinerant services (see Section 4410 [1] [k] of the Education Law) only. The committee shall recommend approved appropriate services or special programs. The recommendation shall be based on the individual needs of the child."

        In essence, petitioner contends that since a regular education nursery school program is not a "special program", its CPSE was not authorized to recommend that respondents' child be placed in the St. Luke's Nursery School, or any comparable regular education program. The term "special program" is defined in Section 4401 (2) of the Education Law, and does not appear to include a regular education class or program. However, the CPSE must base its recommendation upon the individual needs of the child, as a matter of both Federal and State law. Both parties are aware of the extended correspondence between the United States Education Department's Office of Special Education Programs and the New York State Education Department's Office For Special Education Services with regard to the issue presented in this proceeding (Joint Exhibit I). Federal law requires that a free appropriate public education, as defined in 20 USC 1401 (a) (18), be made available to all eligible preschool students with disabilities, regardless of whether New York State makes educational programs available without cost to non-disabled preschool children (20 USC 1412 [2][B]). The Office of Special Education Programs has opined that if a CPSE determines that a preschool child with a disability needs interaction with non-disabled peers as part of the child's educational program, the child's school district must make an educational program of that nature available to the child, at no cost to the child's parents (22 IDELR 630). A school district is not required to create a regular education preschool program for one of its preschool children with disabilities, if it does not operate such a program. It may place the child in the preschool program of another public agency, or a private school (Note to 34 CFR 300.552). If a school district places the child in the program of another agency, or in a private school, the school district would be responsible for paying the cost of the child's tuition (34 CFR 300.401 [a][2]). Having reviewed the applicable statutes and regulations, as well as the opinions given by the United States Education Department's Office of Special Education Programs, I find that petitioner's argument that its CPSE was not authorized or required to recommend a placement in a regular education preschool program, even if the child required that placement to receive a free appropriate public education, is without merit.

        Petitioner contends that the hearing officer erred by finding that its CPSE had failed to recommend an appropriate educational program for respondents' son. It bears the burden of proving that its CPSE recommended an appropriate educational program for the boy (Application of a Child with a Disability, Appeal No. 93-51; Application of a Child with a Disability, Appeal No. 96-33). To meet its burden of proof, petitioner must show that the recommended program was 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 program or service was to be provided in the least restrictive environment for the child (34 CFR 300.550 [a]; 8 NYCRR 200.16 [h][1]; 8 NYCRR 200.6 [a][1]. In support of the CPSE's recommendation at the hearing, petitioner presented the current administrator of its CPSE, who testified that she had not been involved in the CPSE's preparation of the child's IEP. The administrator opined that the child's IEP annual goals were appropriate for him, and that the related services recommended by the CPSE were adequate to help the child achieve his IEP goals. She acknowledged that she did not know if the CPSE had even considered placing the child in a regular education preschool program, and she testified that it was her understanding that a CPSE could not recommend that a child be placed in a regular education program. The boy's IEP indicates that the CPSE also considered "non-handicapped" and center-based programs, and it concluded that neither alternative was appropriate for the child.

        In this appeal, petitioner asserts that the child's special education needs were confined to his hearing and speech/language skills. It argues that the hearing education services and the speech/language services which it provided adequately addressed the child's special education needs. Respondents point out that the evaluation team of the Lexington School for the Deaf specifically recommended that the child attend a regular education nursery school (Parents' Exhibit D). At the hearing, the child's hearing education services teacher testified that during the 1994-95 school year she attempted to develop the child's language and socialization skills. She testified that the boy's social skills were below average because of his weak language skills. The teacher opined that a regular education placement was a necessary component of the child's educational program because the children in a regular education class had better language and social skills, and would be good role models for respondents' son. She testified that it was beneficial to the child to be in a class where he would have to use his language skills appropriately to get what he wanted. She also explained that the child's placement in the nursery school afforded him an opportunity to carry out the skills which she taught him. Although she acknowledged that the boy's language skills would have improved with just the services which she provided, the teacher asserted that the improvement in the boy's language skills was enhanced by his placement in a regular education nursery school.

        The child's speech/language therapist testified that it was very important for the child to interact with non-disabled peers because he would be forced to try harder to make himself understood than would have been the case if he had merely worked on his speech/language skills with an adult. She opined that the boy's exposure to non-disabled peers was " ... what really pushed [the child's] Speech and Language skill along" (Transcript, March 18, 1996, page 49).

        The child's teacher during the 1993-94 school year attended the CPSE meeting at which the child's IEP for the 1994-95 school year was developed. She testified that she had recommended that the boy be placed in a regular education class. She explained that the child did not function like a deaf child, and that he would have been inappropriately placed in a center-based program with other hearing impaired children. The child's former teacher explained that as socialization became more meaningful for a deaf child like respondents' son, his language skills would start to "explode". Although she had not observed the child in the St. Luke's Nursery School, and had not taught the child during the 1994-95 school year, the child's former teacher testified that she had informally observed him when he came to the Lexington School for the Deaf to receive speech/language therapy in the 1994-95 school year. She further testified that the child's vocabulary level and language skills had improved.

        The pivotal question is whether respondents' son needed to interact with his non-disabled peers in a regular education classroom in order to achieve his IEP annual goals and objectives. His IEP goals included using additional vowels and consonants in conversational speech, and improving his use of residual hearing. The boy's IEP short-term objectives also referred to his skills being developed in conversations. With regard to the child's residual hearing, I note that the child's speech/language teacher testified that the child used a combination of residual hearing and lip reading to understand what was said to him. The boy's annual goal was intended to reduce his dependence upon lip reading, and to increase his use of residual hearing with amplification devices such as his hearing aids. Although each goal and objective could certainly have been worked upon during the individual hearing education services and speech/language therapy which the boy received, I am persuaded by the testimony of the individuals who provided those services that the child needed to interact with his non-disabled peers to attain the appropriate levels of communication. Accordingly, I find that the petitioner has not demonstrated that its CPSE recommended an appropriate educational program for the boy, and that respondents have prevailed with respect to the first of the three criteria for tuition reimbursement.

        For the purpose of obtaining tuition reimbursement, a child's parents have the burden of proving that the educational services which they obtained for the child were appropriate (Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parents must show that the services were "proper under the act" [Individuals with Disability Education Act] (School Committee of the Town of Burlington v. Department of Education Massachusetts, supra 370).

        Petitioner contends that the child's parents failed to meet their burden of proof because they did not present any evidence of the appropriateness of the services which the child received at the St. Luke's Nursery School. It asserts that the hearing officer's decision cannot be sustained because there was no evidence that the child received any specialized instruction to meet his special education needs (Board of Education of the Waterville Central School District, Appeal No. 95-12). Petitioner alleges that the hearing officer's decision was based upon her own speculation, rather than the evidence which was in the record.

        In her decision, the hearing officer found that the child needed to have the socialization and communication experiences which he could not have, unless he was educated with non-disabled peers. Her finding was premised upon the testimony of the child's hearing education services teacher, and his speech/language teacher. Although it had the opportunity to do so, petitioner failed to refute that testimony. The hearing education services teacher also testified that she found it beneficial to observe the child in his nursery school class so that she could ascertain how the boy interacted with his non-disabled peers and his teachers. As a result of her observations, the child's hearing education services teacher was able to focus the related services which she provided upon those skills which the boy lacked when he interacted in a group. As the hearing officer noted, the child's interaction with his non-disabled peers in the nursery school provided the remediation which he required. I agree, and I find that respondents were not required to show that the boy received specialized instruction in the nursery school. Petitioner's reliance upon the Waterville decision is misplaced, because the preschool child in that appeal had a number of different special education needs, including a need for a structured setting to develop appropriate techniques, which were apparently not addressed in the private school selected by the child's parent. Upon the record which is before me, I find that the hearing officer's determination that respondents had met their burden of proof with regard to the appropriateness of the services which the child received at the private nursery school was supported by the record. Therefore, respondents have prevailed with respect to the second of the three criteria for tuition reimbursement.

        A parent's claim for tuition reimbursement must be supported by equitable consideration. Petitioner argues that respondents' claim is not supported by equitable considerations because they waited until June, 1995 to challenge the appropriateness of the CPSE's recommendation for the 1994-95 school year. The hearing officer found that respondent had cooperated with the CPSE at all times. She noted that the child's father, who did not attend the CPSE meeting at which his son's IEP was prepared, had testified that neither he nor his wife had raised the issue of the child's placement in a regular education nursery school with the CPSE because they had previously been informed by the then CPSE chairperson that the CPSE could not recommend such a placement. The child's father further testified that his wife had signed the notice of the CPSE's recommendation accepting that recommendation because they were unaware that the Board of Education might be responsible for paying for the child's placement in a nursery school.

        Petitioner contends that the testimony of the boy's father reflects the belief that the sole purpose of an impartial hearing is to enable a parent to obtain tuition reimbursement for a unilateral private school placement (cf. Application of a Child with a Disability, Appeal No. 95-86; Application of a Child with a Disability, Appeal No. 96-5). As petitioner points out, a child's parent should promptly resort to the due process procedures, so that school authorities have an opportunity to correct mistakes or omissions in providing the child with a free appropriate public education (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F. 3rd 149 [3rd Cir., 1994]). However, I note that petitioner failed to introduce any evidence about when respondents became aware of their due process rights. In addition, I find that respondents' claim was timely because it was brought within the same school year. Therefore, I find that respondents' claim was supported by equitable considerations.

        I have considered petitioner's other contentions, and I find that they are without merit.

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated: Albany, New York __________________________
February 13, 1997 ANN R. ELDRIDGE