92-034

Petitioner appeals from the decision of an impartial hearing officer which granted petitioner's request for tuition reimbursement for the unilateral placement of her child in a residential child care facility for the 1991-92 school year, but denied petitioner's request for reimbursement of her expenditures for the child's residential care at such facility. The appeal must be dismissed.

Petitioner's child is eight years old. During the 1989-90 school year, the child attended kindergarten at respondent's P.S. 158. On May 18, 1990, the child was suspended from school for five days, for allegedly having struck a child and having thrown objects at other children. The school principal described petitioner's child as being out of control during the incident. When the child returned to school, he was placed in another kindergarten. On May 25, 1990, the child's teacher referred the child to the committee on special education (CSE). The child was later evaluated. On June 26, 1990, the CSE recommended that the child not be classified as a child with a handicapping condition.

In September, 1990, the child entered first grade at P.S. 158. In October, 1990, petitioner requested that the child be provided with the services of a crisis management aide, and that the CSE re-evaluate the child. The child's teacher also requested a re-evaluation. A school psychologist updated her evaluation of the child. On December 26, 1990, the CSE again recommended that the child not be classified and that he remain in a regular education program. Although an aide was not assigned to the child, respondent did provide one-to-one counseling of the child by a school social worker from October, 1990 through June, 1991, as an educationally related support service pursuant to Section 3602 (32) of the Education Law.

On April 17, 1991, the child was suspended from school for three days, for an outburst in the school lunch room and recess area during which the child allegedly would not heed the requests of teachers and pinched a school aide who attempted to restrain him. On May 15, 1991, the child's first grade teacher referred him to the CSE. The child's prior evaluations were updated and additional evaluations were performed.

On July 31, 1991, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed in respondent's specialized instructional environment VII (SIE-VII) program on a twelve-month basis and receive individual and group counseling. On August 7, 1991, petitioner was offered a placement for the child which was located in P.S. 15. Petitioner did not consent to the recommended placement.

On the first day of school for the 1991-92 school year, the child was suspended for five days from his regular second grade class in P.S. 158 for his involvement in an incident in which he allegedly threw objects at other children and struck the acting principal and another school employee. In a letter to petitioner, the acting principal asserted that the child had continued to misbehave when removed to the school office, and that the police and an emergency medical service team were summoned to the school to deal with the child. The child did not return to P.S. 158 after the September 11, 1991 incident.

On November 6, 1991, the CSE met to consider petitioner's request for an alternative placement in a private day or residential school. At the request of petitioner's advocate, the CSE deferred making a recommendation until additional information could be provided. On November 13, 1991, petitioner placed the child in Children's Village, a child care facility located in Dobbs Ferry, New York. The property owned by the Children's Village, which was formerly the New York Juvenile Asylum, was established in 1928 as a "special act" school district, and is known as the Union Free School District Number Eleven of the Town of Greenburgh (Chapter 780 of the Laws of 1928). Although the Greenburgh Eleven Union Free School District (Greenburgh Eleven) primarily serves children living in Children's Village, the chairperson of the Greenburgh Eleven CSE testified at the hearing that the district also serves other children. The child was reviewed by the CSE of Greenburgh Eleven, because of his admission to Children's Village. On December 19, 1991, the Greenburgh Eleven CSE recommended that the child be classified as emotionally disturbed and admitted to a special class in that school district, where he remained for the rest of the 1991-92 school year.

On November 22, 1991, nine days after petitioner placed the child in Children's Village, respondent's CSE affirmed its July, 1991 recommendation that the child be placed in respondent's SIE-VII program located in P.S. 15. On November 26, 1991, petitioner requested that an impartial hearing be conducted to review the CSE's recommendation. The hearing did not commence until March 18, 1992. In January, 1992, two representatives of the CSE visited the Children's Village, to observe the child in the Greenburgh Eleven special education class. In February, 1992, petitioner was offered another site for the recommended SIE-VII program at P.S. 188. At a later explained review conducted on February 24, 1992, the CSE re-articulated its recommendation that the child be enrolled in the SIE-VII program. However, references in the child's individualized education program (IEP) were amended to read that the SIE-VII's child:adult ratio was expected to be 6:1+1, instead of the 10:1+1 that had been listed in July and November, 1991.

When the hearing commenced on March 18, 1992, the hearing officer was advised by the parties of a proposed settlement agreement, in which respondent would concur with the child's residential placement at Children's Village. Noting that respondent's CSE had not yet recommended a residential placement for the child, the hearing officer adjourned the hearing to afford the parties an opportunity to adduce evidence of the inappropriateness of the SIE-VII program and the CSE an opportunity to make a new recommendation for a residential placement.

The proposed resolution in fact did not occur, and on May 6, 1992, the hearing resumed. Respondent asserted that its SIE-VII program was appropriate and that a residential placement was not the least restrictive environment. The hearing continued on May 13, 18 and 20, and concluded on June 25, 1992. By decision dated July 9, 1992, the hearing officer held that the child was appropriately classified as emotionally disturbed and that a SIE-VII program was appropriate and the least restrictive environment for the child. Nevertheless, the hearing officer found that petitioner was entitled to tuition reimbursement, because respondent's CSE had erroneously specified a SIE-VII program with a 10:1+1 child to adult ratio for the child in its July 13 and November 22, 1991 recommendations, despite the attempt by the CSE to correct the ratio for the SIE-VII program to 6:1+1 in February, 1992. The hearing officer rejected petitioner's request for reimbursement of her expenditures for the residential care of the child, upon the ground that the child did not require a residential environment to meet his educational needs. In the alternative, the hearing officer suggested that petitioner might be entitled to receive reimbursement for tuition because respondent was obligated to either provide or pay for the child's instruction while living in a child care facility pursuant to Section 3202 (6) of the Education Law.

The record reveals that in June, 1990, the child achieved a full-scale IQ score of 125, and the psychological evaluation showed no significant disparity between his verbal and performance IQ scores. While the evaluator found that the child exhibited poor organizational skills, the child did not reveal any evidence of a learning disability. Projective tests results were interpreted by respondent's school psychologist as establishing that the child was insecure, trying to cope with concerns which overwhelmed him and caused him to exhibit inappropriate behavior. In essence, the school psychologist opined that the child was upset by his parents' 1987 divorce. At the hearing, the school psychologist testified that the child was easily over-stimulated emotionally, and when over-stimulated, the child acted out, physically or verbally. A social worker who privately counseled the child opined at the hearing that the child had an oppositional defiant disorder. The child's private psychiatrist diagnosed the child as having a conduct disorder with mixed emotional features. At the hearing, the psychiatrist testified that the child's destructive behavior was a manifestation of the child's attempt to control his environment through manipulation, and that the child misbehaved in school in order to be returned to his mother.

An educational evaluation completed in June, 1991, as the child was completing first grade, revealed that his reading and mathematics skills were at or above grade level, but that the child displayed weakness in writing. The child achieved comparable results in an educational evaluation performed by the Greenburgh Eleven CSE, in which only his spelling was below grade level. The parties do not dispute the child's classification as emotionally disturbed. Consequently, I am precluded from reviewing the appropriateness of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

Petitioner asserts that the hearing officer exceeded his authority by refusing to allow the parties to settle the matter at the March 18, 1992 hearing. Although the hearing officer could not have proceeded with the hearing if petitioner had withdrawn her request for a hearing (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138), there is no evidence in the record that petitioner had withdrawn her request for a hearing. The transcript of the March 18, 1992 hearing reveals that petitioner's attorney and a lay representative of the CSE had advised the hearing officer that the parties agreed that the children should remain in Children's Village and that they sought an order by the hearing officer directing that the child's tuition charges be paid by respondent and the State of New York, retroactively from the date of his placement at Children's Village on November 13, 1991. I find that the hearing officer did not exceed his jurisdiction by requiring the parties to offer proof of the inappropriateness of the CSE's recommended placement and the appropriateness of the placement selected by petitioner, as a prerequisite for the issuance of an order of the hearing officer by which petitioner would be reimbursed for her expenditures (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359). I also note that the proposed settlement could not have been implemented without action by the CSE to amend the child's individualized education program (IEP), which the CSE declined to do (Application of a Child with a Handicapping Condition, Appeal No. 92-15).

Petitioner challenges the manner in which the hearing officer conducted the hearing, by his active participation in the examination and cross-examination of the witnesses. Petitioner asserts that the hearing officer dominated the hearing, and interfered with petitioner's right to cross-examine the witnesses. I do not agree. Petitioner, who was represented by another attorney at the hearing, not petitioner's attorney of record in this appeal, was afforded an opportunity to cross-examine each of the witnesses presented by respondent. Although a hearing officer at a hearing where each party is represented by counsel may normally rely upon counsel to elicit the testimony needed for the hearing officer to reach a decision, it is nevertheless the responsibility of each hearing officer to ensure that the record is adequate to address the issues raised at the hearing. In this instance, the hearing officer advised the parties in an interim order issued after both parties had rested their cases that the record was inadequate to ascertain the extent to which the child's behavior adversely affected his educational performance. As a result, the hearing was reconvened so that additional evidence could be adduced. Upon review of the entire record, I find that the hearing officer did not abuse his discretion by questioning the witnesses, nor did he foreclose either party from raising any issue.

The central issue in the appeal is whether respondent is obligated as a matter of law to reimburse petitioner for expenditures which she incurred for the residential care of the child at Children's Village from November 13, 1991 through June 30, 1992. In addition to room and board, the child received weekly individual counseling and he and his family have received family counseling once per month by staff of Children's Village. Such counseling was separate from the counseling provided by Greenburgh Eleven. At the hearing, the Greenburgh Eleven CSE chairperson testified that Greenburgh Eleven provided counseling on school related issues, while the child's counselor at Children's Village was not familiar with the counseling given to the child in Greenburgh Eleven.

Petitioner may prevail, upon a showing that the program offered by respondent was inadequate, that the placement obtained by petitioner was appropriate and that equitable considerations support petitioner's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra; Matter of Northeast CSD v. Sobol et al., 170 AD 2d 80; Application of a Child with a Handicapping Condition, 92-25). Although the SIE-VII program described in the record appears to be comparable to the educational program provided by Greenburgh Eleven, I make no determination as to the actual suitability of SIE-VII program, because respondent has not appealed from the hearing officer's finding that respondent should bear the cost of the child's tuition for the 1991-92 school year as a result of the CSE's error in establishing the child to adult ratio in the initially recommended program.

Even if the child to adult ratio had been accurately established, I would be nonetheless compelled to find that respondent failed to offer an appropriate program on a timely basis. It is apparent from the record, and respondent concedes, that the CSEs which met on July 31 and November 22, 1991 were not validly constituted because neither a parent member nor the child's teacher attended those meetings. Indeed this flaw may explain the February, 1992 CSE review. However, the prior CSE recommendations for the child's placement in the SIE-VII program which were developed at the July and November, 1991 meetings are nullities (Section 4402 [1][a] of the Education Law; Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, Appeal No. 92-31).

Although petitioner has satisfied the first element of the Burlington criteria, in order to prevail on her claim for residential care expenditures, petitioner must show that the child required a residential placement in order for the child to receive an educational benefit from his educational program, i.e. to make educational progress (Abramson v. Hershman, 701 F2d 223 [1st Cir., 1983]; Burke County Bd. of Ed. v. Denton, 895 F.2d 973 [4th Cir., 1990]; Kerkam v. Superintendent, D.C. Public Schools, 931 F.2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Handicapping Condition, Appeal No. 92-27). I am compelled to find that petitioner has not satisfied the second element, i.e. that the placement which she selected is appropriate, because it is not the least restrictive environment. Federal and State regulations require that each child with a handicapping condition be placed in an educational program of the least restrictive environment (34 CFR 300.552; 8 NYCRR 200.6 [a]; Application of a Child with a Handicapping Condition, Appeal No. 92-7). The least restrictive environment requirement applies to unilateral placements by parents when public funding for such placements is sought (P.J. v. State of Connecticut, 18 IDELR 1010 [D.C., D. Conn., 1992]; Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-30).

Although the record reveals that the child has made academic and social progress while in Children's Village and the Greenburgh Eleven school, it is fair to conclude that he would have made progress without the restrictiveness of residential care. Indeed, the record discloses that the child made educational progress when he was in a regular education day program. The child's regular education first grade teacher testified at the hearing that, despite his difficult behavior, the child did learn and had received "satisfactory" grades in all areas except his behavior. The results of the June, 1991 educational evaluation by respondent's staff corroborate the teacher's testimony. Throughout the hearing petitioner and her witnesses attempted to contrast the child's behavior in regular education with his behavior in his current special education program. However, the child has never been in any other special education program, many of which would be less restrictive than the residential placement favored by petitioner. The record provides ample evidence that a day special education program with appropriate behavior modification techniques and a small, structured class, would be successful in meeting the child's educational needs. I have also considered petitioner's testimony about the difficulty she has encountered with the child at home. However, a child's behavior at home does not, per se, afford a basis for finding that a day program is inappropriate, absent evidence that the child requires a residential placement to benefit from instruction (Application of a Child with a Handicapping Condition, Appeal No. 91-28). While there is evidence of the child's psychiatrist on this point, the credible evidence of the school psychologist, the school social worker and the supervisor of special education lead me to conclude that while the educational component here is necessary and reimbursable, the residential component is more restrictive than necessary and not reimbursable.

THE APPEAL IS DISMISSED.