The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parents, 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
Skyer & Associates, attorneys for petitioner, Susan J. Deedy, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Paul Ivers, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision which denied their request for reimbursement for the costs of and associated with implementing the program they obtained for their daughter for the 1999-2000 and 2000-2001 school years. The hearing officer denied the parents’ request for reimbursement despite having found that the individualized education programs (IEPs) developed by respondent’s Committee on Preschool Special Education (CPSE) at Community School District (CSD) 14 for each year were invalid. Respondent cross-appeals from the hearing officer’s decision to consider the parents’ request for reimbursement for the 1999-2000 school year. The appeal must be dismissed. The cross-appeal must be sustained.
Petitioners’ daughter was four years old when the hearing began in April 2001. She was receiving a home based program implemented by her mother and designed by the Institutes for Achievement of Human Potential (IAHP) in Philadelphia, Pennsylvania. The IAHP are a group of nonprofit institutes serving children with brain injuries and teaching parents to help their brain-injured children attain higher levels of accomplishment (Exhibit HH). Its objective is to help brain-injured children advance in the areas of physical, intellectual, and social growth to the extent the staff’s knowledge, the parents’ aspirations and the child’s injury will permit (Exhibit EE). The IAHP’s approach to the treatment of brain-injured children is based upon the concept that there is an interruption in the sensory and motor pathways in the brains of brain-injured children, and therefore, treatment should be directed at locating the interruption to either restore or establish new pathways (Exhibit B). The treatment method is designed to stimulate the brain through movement of the body through the normal stages of development.
When the child was approximately ten months old, she was diagnosed as having partial agenesis of the corpus callosum and delayed myelination (Exhibit 10). Partial agensis of the corpus callosum is an abnormality of the brain in which there is a partial absence of the corpus callosum, the area of the brain connecting the two cerebral hemispheres which enables them to communicate with each other (Transcript p. 487). Myelin, a protein sheath that envelops the fibers of the nervous system, is essential for the rapid transmission of information along the nerve cells (Transcript p. 491). Without the myelin sheath, the transmission of information is too slow to be useful. Typically, the myelin sheath is fully developed by the age of two (Transcript p. 487). However, results of brain scans reportedly show that there was a lack of myelin in the deep white matter of the child’s brain until the child was approximately four and one-half years old.
The evaluations in the record show that the child is multiply disabled, demonstrating significant delays across all domains (Exhibits 10, 11, 12, 14, 18, N, Q, GG, WW). She is non-ambulatory and unable to sit, creep or stand independently. She has poor grasping ability and no cortical opposition in either hand. Additionally, the child lacks the breath support necessary for normal speech and exhibits minimal functional communication. She is able to cry and smile, and reportedly reacts differently to people she likes and dislikes. The child also demonstrates difficulties with visual tracking and convergence. However, her visual processing ability has yet to be ascertained. The child is dependent for all self-care needs. She exhibits immature swallowing patterns, has difficulty eating and drinks from a bottle. With respect to cognitive abilities, the parents claim that their daughter’s reading and math skills are significantly above age level, while results of respondent’s testing place the child in the seven to twelve month range. The record includes a document dated November 2, 2000 referring to a recent dislocation of the child’s right hip (Exhibit K).
In 1997, the child began receiving special education, speech, occupational and physical therapy through the early intervention system (Exhibit 10). However, because the parents believed that their daughter was not making much progress with the traditional therapies she was receiving, they began to explore other programs (Exhibit 10; Transcript p. 651-54). During the summer of 1998, the parents began training at the IAHP (Exhibit 30). After the parents completed the training, the IAHP developed a program for the child, and her mother began implementing it.
In February 1999, when the child was two and one half years old, she was referred to respondent’s CPSE (Exhibit 43). The CPSE provided the parents a packet of information which included a consent form. The parents completed the form consenting to have their daughter evaluated and selecting an evaluation site (Exhibit 34). The consent form includes a statement acknowledging receipt of a copy of the notice of parental due process rights. It also includes a cautionary statement advising parents not to sign the form until they understand their legal rights. In May 1999 after the evaluations had been conducted, the CPSE met, classified the child as a preschool student with a disability and recommended that she be placed in a 12-month bilingual (English/Yiddish) center based program (Exhibit 40). Following the meeting, a notice of initial recommendation was sent to the parents (Exhibit 41). That notice included a statement indicating that a copy of the notice of parental due process rights was attached.
The parents were not interested in the program recommended by the CPSE (Transcript p. 1492). In a letter dated July 14, 1999, the CPSE advised the parents that because they did not consent to the recommended program, it would not proceed with placement of their daughter (Exhibits 29, 42). During the fall of 1999, the child’s mother reportedly attempted to contact the CPSE on numerous occasions to reopen her daughter’s case (Transcript p. 661). In early January 2000, the CPSE advised the child’s mother to request in writing that her daughter’s case be reopened (Exhibit 43). In a letter dated February 2, 2000, in addition to requesting her daughter’s case be reopened, the child’s mother also requested special education itinerant teacher (SEIT) services for her daughter (Exhibit Z). The child’s mother advised the CPSE that she was interested in continuing the IAHP program in conjunction with SEIT services. Later that month, the CPSE attempted to schedule an appointment with the child’s mother. However, the child’s mother could not decide on a date for an appointment (Exhibit 43).
The next documented contact between the parents and the CPSE was a letter dated July 31, 2000 in which the parents advised the CPSE that they wanted to meet regarding their daughter’s educational program for the 2000-01 school year (Exhibit 23). In a letter dated August 30, 2000, the CPSE advised the parents of the evaluation process and requested that they select an evaluation site (Exhibit 25).
A bilingual psychological evaluation was conducted in October 2000, during which the child was able to sustain eye contact for short periods of time and was able to focus for three to five minutes at a time (Exhibit 10). On the Bayley Scales of Infant Development-2nd Edition, the child demonstrated significant delays in both mental and motor development. In the mental area, she demonstrated abilities that corresponded to a developmental age range of 7 to 13 months. In the motor area, her abilities were consistent with an age equivalent of five months. The psychologist indicated that the child’s severe motor delays impacted negatively on her cognitive development. She recommended that the child be reassessed for speech/language, physical, occupational and vision therapy. She also recommended that the child’s hearing be evaluated.
A physical therapist who evaluated the child in October 2000 reported that the child displayed the gross motor skills of a three to four month old (Exhibit 11). When placed in the prone position, the child was able to weight bear on extended arms. When placed in a supported sitting position, the child was able to hold her head steady. She exhibited fluctuating muscle control, decreased postural stability and decreased antigravity control. The physical therapist recommended that the child receive physical intervention to improve her head and trunk control, gain postural stability and improve her gross motor skills.
The occupational therapist who evaluated the child in November 2000 reported that the child appeared to be alert and aware of her environment, but exhibited delays in most areas tested (Exhibit 12). The child’s visual tracking skills were delayed and she was unable to disassociate eye movements from head movements. She continued to be dependent in all antigravity positions such as sitting, kneeling, and standing. The child was unable to reach and grasp for a toy voluntarily. No isolated finger movement was noted and she continued to require hand over hand assistance to complete any fine motor tasks. The child also required assistance for feeding and drinking from a cup, and continued to be dependent in all other aspects of her daily living skills, such as toileting, grooming and dressing. The occupational therapist recommended that the child receive services to remediate her deficits and to facilitate acquisition of improved functional goals.
A speech/language evaluation conducted in November 2000 revealed that the child had deficits in oral motor structure and function (Exhibit 14). She had extremely limited control of the oral articulators, the tongue, lips and jaw. Voice articulation and fluency could not be measured due to the paucity of verbal output. The child was unable to express her wants and needs by gesturing, but was able to indicate pleasure or displeasure by smiling or whining. Because she was unable to point or focus her eyes, there was no way to adequately measure the child’s receptive and expressive language skills using a standardized test. The evaluator recommended ongoing diagnostic evaluation to determine if dysphagia (swallowing difficulties) were present. She also recommended a complete audiological evaluation.
The audiological evaluation was conducted on January 4, 2001 (Exhibit 16). The evaluator reported that that the child’s hearing status could not be determined due to the high noise level of the child’s breathing. However, limited results suggested some degree of hearing loss in at least the left ear. For conclusive results, the evaluator recommended that the child’s hearing be assessed with auditory brainstem response testing.
The CPSE met on January 9, 2001. However, additional information was needed and the meeting was rescheduled for the end of the month to complete the IEP (Transcript p. 38). During the meeting, the CPSE provided the parents a list of available programs for their daughter (Transcript p. 681). After contacting the programs on the list, the mother advised the CPSE that for various reasons, none of the schools could accept her daughter (Exhibit X). The child’s mother requested that the CPSE schedule a conference immediately.
The CPSE reconvened on January 29, 2001 (Exhibit 1). It recommended that the child be classified as a preschool student with a disability and that she be placed in a 12-month bilingual center based program. In a letter of the same date, the parents advised the CPSE that the recommended program was not appropriate for their daughter (Exhibit 27).
On February 1, 2001, the parents, through their attorney, requested an impartial hearing (Exhibit BB). The parents maintained that the program offered by respondent’s CPSE failed to meet their daughter’s unique special education needs because it failed to address her breathing condition and other aspects of her disability. They also requested reimbursement for the expenditures they had incurred in providing the services associated with the IAHP program.
The hearing began on April 24, 2001, and concluded on October 30, 2001. The hearing officer rendered her decision on November 30, 2001. She noted that prior to the sixth day of the hearing, she was unaware that the parents were seeking reimbursement for the 1999-2000 school year. She agreed to consider their claim for the 1999-2000 school year for the purpose of administrative efficiency. Finding that the IEPs for both the 1999-2000 and 2000-01 school years were procedurally and substantively defective, the hearing officer held that the school district had failed to meet its burden of proving the appropriateness of the programs recommended by its CPSE. However, she also found that the parents had not met their burden of demonstrating the appropriateness of the services they obtained for their daughter during both school years. She noted that there was no objective evidence that the child had made progress while receiving the program developed by the IAHP. She also noted that the Board of Education’s speech/language, physical and occupational therapy evaluators had determined that the child had not made progress in those areas while receiving the IAHP program, despite having needs in those areas.
Having found that the parents did not meet their burden of proof, the hearing officer determined that they were not entitled to reimbursement. She remanded the case to respondent’s Committee on Special Education (CSE), as the CPSE’s jurisdiction ended when the child became five years old in August 2001, to reconvene to develop a valid IEP. Additionally, the hearing officer ordered that an auditory evaluation be conducted. She further ordered a medical evaluation to determine the child’s blood gas levels, and the status of the child’s dislocated hip.
Petitioners appeal from the hearing officer’s decision on a number of grounds. They claim that the hearing officer failed to address the procedural and substantive errors relating to their daughter’s IEPs. They further claim that the hearing officer erred in finding that the evidence did not demonstrate that their daughter made progress in the IAHP program. The parents also contend that remanding the matter to the CSE is an inappropriate remedy because no practical or legal purpose would be served in revising an IEP for a school year that has ended.
I will first consider respondent’s cross-appeal from the hearing officer’s determination to consider the 1999-2000 school year. Respondent argues that petitioners’ claim for reimbursement for the 1999-2000 school year should be dismissed because they failed to provide proper notice and they delayed too long in asserting their claim. The due process provisions of federal and state law exist so that parents’ concerns about their child’s educational program can be promptly resolved and necessary corrections made to the child’s IEP. Parents must raise the issue of the appropriateness of an IEP within a reasonable period of time, by requesting a hearing (Bernardsville Bd. of Educ. v J.H., 42 F. 3rd 149 [3rd Cir. 1994]; Phillips v. Bd. of Educ, 949 F. Supp. 1108 [S.D.N.Y. 1997]).
Parents seeking reimbursement for their expenditures must show that their claim for reimbursement is supported by equitable considerations (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 ). The timeliness of their claim may be considered in determining if the claim is supported by equitable considerations (Application of a Child with a Disability, Appeal No. 95-32).
The record shows that petitioners did not request an impartial hearing to obtain reimbursement for the 1999-2000 school year. In an affidavit dated August 16, 2001, the child’s mother asserted that she was unaware of her right to an impartial hearing until the 2000-01 school year, and that the first time she ever received the notice of parental due process rights was in May 2001 in connection with the 2001-02 school year. In contrast, the Board of Education witnesses testified about the standard procedures concerning the evaluation process, including providing due process information to parents (Transcript pp. 27, 89, 1466).
There is no dispute that in February 1999, the parents were provided information regarding the evaluation process, or that in March 1999, the child’s mother signed the standard form letter consenting to an initial preschool evaluation of her daughter (Exhibit 34). The form not only includes language acknowledging receipt of a copy of the notice of parental due process rights, but also includes language advising parents not to sign it until they understand their legal rights. The parent signed, dated and completed the form. Additionally, the educational evaluator at the evaluation site selected by the mother testified that at the May 5, 1999 CPSE meeting, the child’s mother was advised that if she did not agree with the recommended program, she had the option of requesting an impartial hearing (Transcript p. 1492). I note that the May 5, 1999 notice of initial recommendation which advised the parents of the CPSE’s recommendation also included language indicating that a copy of the notice of parental due process rights was attached. The parent signed and returned that form to the CPSE. I also note that the chairperson of the CSE testified that prior to the child’s first evaluation, he spoke to the child’s mother and an advocate about reimbursement for the IAHP program (Transcript p. 24). The child’s mother claims her first contact with the CSE chairperson was during the 1999-2000 school year (Transcript p. 1502).
Petitioners assert that the CPSE was aware of their dissatisfaction with its recommendation for the 1999-2000 school year. The mother asserts that she made several attempts to reopen her daughter’s case in the fall of 1999, but the CPSE did not return her calls. The CPSE contact sheet shows that in January 2000, the mother agreed to request in writing that her daughter’s case be reopened and to have her daughter re-evaluated (Exhibit 43). In February 2000, the CPSE made several calls to the mother to schedule an appointment. In March 2000, the mother could not decide upon a date. The next contact between the parties documented in the record was after the 1999-2000 school year had ended, when the mother sent a letter to the CPSE dated July 31, 2000 requesting a conference regarding her daughter’s educational program for the coming year.
During the 1999-2000 school year, the CPSE sent the parents a withdrawal letter, explained that their daughter’s case needed to be to reopened and that she needed to be re-evaluated, and attempted to set up appointments with the parent. However, the parents did not pursue the process until after the 1999-2000 school year had ended. Under the circumstances, and given that special education services are voluntary at the preschool level, I am not persuaded that respondent should have known that the parents would be seeking reimbursement for the 1999-2000 school year. I further find that petitioners knew or should have been aware of their due process rights before the 1999-2000 school year, and that their delay in asserting their claim for reimbursement was unreasonable. Accordingly I find that their claim is barred by laches.
I shall now address petitioners’ claim relating to the 2000-01 school year. Petitioners seek reimbursement for the costs of and associated with their daughter’s educational program designed by the IAHP. A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington, 471 U.S. at 370). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The hearing officer found that the Board of Education did not meet its burden of demonstrating the appropriateness of its CPSE’s recommended program because the child’s IEP was both procedurally and substantively defective. As noted above, petitioners allege additional procedural and substantive defects with respect to the child’s IEP. While the hearing officer may have determined that the child’s IEP for the 2000-01 was invalid for reasons other than the reasons alleged by the parents, the end result is the same. Petitioners are not aggrieved by that portion of the hearing officer’s decision finding their daughter’s IEP invalid, and respondent has not cross-appealed from it. Accordingly, I will not review that finding (Application of a Child with a Disability, Appeal No. 99-29). Petitioners have prevailed with respect to the first criterion for reimbursement.
A student's parents bear the burden of proof with regard to the appropriateness of the services they obtained for the student (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the educational program they selected met their child’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The program need not employ certified special education teachers, nor develop its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).
The parents claim that the IAHP program is appropriate and that their daughter made progress there. The overall program designed by the IAHP has three components, physiological, physical and intellectual (Transcript p. 1004). The physiological component involves three respiratory therapies that are an integral part of the overall program. Such therapies are designed to provide brain-injured children the opportunity to have regular and deep breathing which, it is claimed by the IAHP, helps prevent respiratory infections, decreases gastroesophageal reflux and promotes other physiological benefits (Transcript pp. 405-407). One of the respiratory therapies is a technique referred to as masking, which involves placing a plastic mask over the child's mouth and nose for one-minute intervals every five minutes to temporarily increase carbon dioxide in the body. It involves intermittent rebreathing of one’s own expired air which causes a buildup of carbon dioxide. The brain responds to the increased levels of carbon dioxide by increasing the depth and rates of respiration, and will increase the flow of blood to the brain. I note that the Board of Education’s expert witness, an assistant professor of neurology at Yale University School of Medicine, testified that the theories behind masking therapy are fundamentally flawed. He explained that brain tissue which is not receiving enough blood flow through oxygen in the blood will release modulators which increase the blood flow to that tissue much more powerfully than anything introduced externally (Transcript p. 348).
The physiological component of the program also includes a technique referred to as patterning. Patterning is based upon the premise that if a child’s body could experience the feeling of movement as it would normally occur, then the brain could be taught how to move (April 24, 2001 Transcript p. 150). The procedure consists of passively superimposing the total patterns of movement involved in bodily mobility on the child’s body, reproducing, these patterns as precisely as possible, both at the child’s level of competence and at the next higher level (Exhibit B). It involves placing the child on her stomach on a patterning table, while at least three people move the child’s limbs imitating the kind of movement made when crawling or creeping (Transcript p. 1003). It is repeated many times during the day. I note that the Board of Education’s expert witness opined that there is no reason to believe that passive movement induces neural development, and that the basic premises upon which patterning is based are false and not accepted by the medical community (Transcript p. 343).
The physical component of the program addresses mobility and manual skills. The child’s physical program incorporates standing, walking and creeping. The child’s mother indicated that her daughter’s physical deficits are considered her second most important problem (Transcript p. 1005). The program begins with a 10 to 12 minute stretching session during which the child is suspended from the ceiling by her ankles to stretch her hips and correct her alignment (Transcript pp. 1187-1190). It also includes a vertical kinesthetic device which keeps the child in a standing position. The child is placed in this device three times per day for 30 minutes at a time. The physical program also includes a gravity free environment in which the child is placed in a harness suspended from the ceiling. The gravity free environment reportedly provides the child the opportunity to experience movement without the constraints of gravity and the opportunity to become more aware of her environment as well as to develop spatial awareness (Transcript pp. 1008-1010). The program also includes a gravity assisted environment which is a track attached to the ceiling from which the child is suspended in a harness either vertically for walking or horizontally for creeping (Transcript pp. 1010-1011). The child is in the gravity assisted environment two times per day for approximately two hours and one-half hours (Transcript pp. 1033).
The intellectual component of the program is comprised of the Bits of Information program and Programs of Intelligence. The Bits of Information program involves creating intelligence through bits of information simultaneously given to the visual and auditory pathways (Exhibit B). Discrete, precise, unambiguous bits of information are presented to the child frequently, but briefly. The Programs of Intelligence involves elaborating on the bits of information with facts and weaving them together (Transcript pp. 1026-27).
The IEP that the IAHP developed for the child for the 2000-01 school year included goals for language arts, which incorporated the respiratory therapies (Exhibit DD). The reading goal included an instructional objective to read two homemade books daily in English and Yiddish. The comments included in reading goal indicate that the mother reported that her daughter’s reading material was at the sixth to seventh grade level. The reading goal also included the objective to engage in the Bits of Intelligence program and Programs of Intelligence. The child’s mathematics goal was to complete the fourth grade textbook. It included objectives for alphabetical numerical values and continuing word problems. The mobility goal was to overcome all mobility problems by improving neurological function with instructional objectives to engage in a body weight suspension program, conversion program, gravity assisted program, vertical kinesthetic environment, and patterning. The child’s IEP also included goals for social and emotional development.
The program developed by the IAHP was intended to address the child’s physiological, physical and intellectual needs. However, the program fails to adequately address the child’s communication needs. The child’s language deficits are addressed by providing the respiratory therapies and enhancing environmental opportunities that stimulate spoken language. The record shows that the child’s ability to communicate using sounds, words or gestures is quite limited. It further shows that the child’s mother has been trained by the IAHP to interpret her daughter’s eye gaze (Transcript pp. 1020-1022). However, with the exception of two IAHP staff members in Philadelphia, the child’s mother is the only person who is so trained. Consequently, the only person the child can communicate with is her mother. The record shows that at present the child’s breath support is too weak for a verbal communication system, but there is nothing in the record to suggest that an augmentative communication system, such as a picture system, was explored. Without a functional communication system in place, it is difficult to accurately assess the child’s functioning levels in other areas. For example, the child’s level of cognitive functioning could only be determined with the assistance of her mother. As a result, there is no objective criteria supporting that the mother’s claims that her daughter is reading at the sixth to seventh grade level.
The IAHP program also fails to address the child’s feeding/oral motor deficits. There is nothing in the IAHP program to increase the child’s oral muscle tone or improve jaw, lip and tongue movements for eating and drinking. Further, the IAHP’s intellectual program is being presented to the child auditorily and visually, despite the fact that her auditory and visual functional levels have yet to be conclusively determined. Based upon the information before me, I find that the parents have not met their burden of demonstrating that the program they obtained for their daughter met her special education needs.
Petitioners also claim that the hearing officer erred in determining that the Board of Education was not responsible to reimburse them for the masking program because it required continuous supervision and was out of the range of school district competence. As noted above, the IAHP program consisted of three components. The physiological, which includes masking, and physical programs are provided throughout the course of the day and consume a large portion of the day (Transcript pp. 1092-1121, 1187-1211). The child’s mother claims that it is vital to address the physiological or general health needs of her daughter before addressing her other needs (Transcript p. 1004). Patterning is related to and considered to be part of the physical program as well as the physiological program (Transcript p. 1006). The child’s general health and reported improvement in visual acuity has been attributed to her respiratory therapies. Based upon the evidence before me, I find that the three components that comprise the child’s overall program are so interrelated and, in this case, cannot be neatly separated into categories of special education and related services for purposes of reimbursement. Therefore, I have considered the program as a whole and find that the parents have not demonstrated that it meets their daughter’s special education needs.
Having determined that the parents failed to meet their burden of demonstrating the appropriateness of the program they obtained for their daughter, it is not necessary that I address whether equitable considerations support their claim for reimbursement for the 2000-01 school year.
The parents also claim that that remanding the matter to the CSE is an inappropriate remedy because no practical or legal purpose would be served in recreating an IEP which had numerous defects one to two years after the school year had ended. However, that was not the purpose of the hearing officer’s directive. She directed the CSE to develop a new IEP so that the child could have an appropriate program in the future. The hearing officer remanded the matter to the CSE not only to develop a new IEP, but also for an auditory evaluation and medical evaluation to determine the child’s blood gas levels and the status of her dislocated hip. I agree with the hearing officer that additional evaluative information is necessary. The audiologist recommended additional testing. The school psychologist recommended a vision evaluation. The speech/language therapist recommended an evaluation for dysphagia. Furthermore, given the nature and extent of the child’s disability, the CSE should consider whether the child requires assistive technology as required by 8 NYCRR 200.4(d)(3)(v).
I have considered petitioners other claims, which I find to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it considered petitioners’ claim for reimbursement for expenses during the 1999-2000 school year on the merits.
Albany, New York
December 24, 2002
JOSEPH P. FREY