92-043

Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that, for the 1992-93 school year, petitioner's child be placed in a modified instructional services-IV (MIS-IV) class at P.S. 222. Petitioner seeks an order compelling respondent to pay for the child's tuition during the 1992-93 school year at a private school selected by petitioner. The appeal must be sustained.

At the outset, I must note that respondent failed to timely answer the petition in this appeal, despite having obtained, with petitioner's consent, a 30 day extension of time in which to serve an answer. A copy of the answer was faxed to the Office of State Review seven days after the answer should have been served upon petitioner, and respondent filed its answer two days thereafter. However, it has failed to provide proof of service of the answer upon petitioner (cf. 8 NYCRR 279.5). It has also failed to offer any explanation for its lateness in filing its answer. Accordingly, I have not accepted or considered the answer in rendering my decision.

Petitioner's six-year-old child has Down Syndrome. The child was born with a systolic heart murmur, for which he underwent surgery while he was an infant. The child had additional corrective heart surgery in 1990. In March, 1991, when the child was almost four years old, he was psychologically evaluated. The evaluation established that he was functioning cognitively at the level of approximately a two year old child. The evaluator found that the child's perceptual motor and receptive language skills had improved since a prior evaluation in March, 1987. In an assessment of the child's adaptive behavior completed in June, 1991, a school psychologist reported that the child's daily living skills were near the level of a two year old child and that his communication skills were at the level of a one year old. The school psychologist opined that the child's cognitive functioning was in the low-moderately retarded range. The child's classification as mentally retarded is not disputed.

At five months of age, the child began to attend a private educational program of the New York League for Early Learning, Inc. (NYLEL), on a part-time basis. The child received occupational therapy, physical therapy and speech/language therapy at NYLEL. The child continued to attend NYLEL on a full-time, 12-month basis until September, 1991. In January, 1991, the child was referred to the CSE of Community School District 22, the district in which the child lives, for placement as a school-age child in September, 1991.

The CSE's staff obtained a social history of the child, and performed an educational evaluation. The educational evaluator reported that the child had a short attention span, but was able to follow simple directions. The evaluator noted that the child's speech was echolalic, and opined that the child's language skill was equivalent to that of a child of slightly less than two years of age. Further information about the child's language ability was obtained by the CSE from a NYLEL speech/language evaluation which was performed on January 17, 1991. The speech/language evaluator reported that the child communicated his wants and needs through combinations of gestures, facial expressions, single-word utterances and signs. In a March 1, 1991 psychological evaluation, a NYLEL psychologist reported that the child functioned within the range of a one to two year old child in daily living skills, gross and fine motor skills, socialization and communication, and that the child became easily frustrated with difficult tasks.

In May, 1991, the CSE of Community School District 22 recommended that the child be classified as mentally retarded, and that he be enrolled for the 1991-92 school year in respondent's MIS-V program with a child to adult ratio of 10:1+1. However, the CSE revised its recommendation in June, 1991, when it recommended that the child be placed in a MIS-IV program. On the advice of the child's physician that the child should not climb more than two steps, the CSE revised its recommendation in August, 1991, to include adaptive physical education and permission for the child to use an elevator in school.

Because respondent failed to make a specific placement recommendation for the child within 60 days after the child's referral to the CSE, and in accordance with the order of the Court in Jose P. et al. v. Ambach et al. (79 C 270, USDC EDNY, 1982), respondent became obligated to pay for the cost of the child's enrollment in an approved private school selected by his parents. The child was enrolled by his parents in St. Brendan's School of the Archdiocese of Brooklyn. When the special education program of St. Brendan's was discontinued, the child was transferred to St. Simon and St. Jude Elementary School, also of the Brooklyn Archdiocese.

In January, 1992, the CSE of Community School District 21 became responsible for conducting the annual review of the child's individualized education program (IEP) because the initial private placement was located in Community School District 21. On May 7, 1992, the CSE of Community School District 21 met at the child's private school to develop his IEP for the 1992-93 school year. The child's teacher and all other required CSE members participated in the CSE meeting. For the 1992-93 school year, the CSE recommended that the child be enrolled in the MIS-IV program in a barrier-free building. The CSE further recommended that the child receive individual and small group speech/language therapy. The CSE of Community School District 21 asked Community School District 22 to offer a specific site at which the recommended program could be provided. On June 9, 1992, Community School District 22 offered a placement for the child at P.S. 222.

The child's parents declined to accept the CSE's recommendation, pending an opportunity to observe the instructional program in the recommended class at P.S. 222. On September 15, 1992, the child's mother saw the class at P.S. 222. The mother believed that the class would not be appropriate for the child. On September 28, 1992, the child's parents requested a hearing to review the CSE's recommendation, and to obtain an order requiring respondent to pay for the child's tuition at the private school for the 1992-93 school year. At the hearing which was held on October 8, 1992, the hearing officer limited the introduction of proof at the hearing to the issue of the appropriateness of the CSE's recommendation. The hearing officer advised the parties that he would reconvene the hearing, if necessary, for the purpose of adducing evidence concerning the placement selected by the parents.

By decision dated October 27, 1992, the hearing officer found that the program and class recommended by the CSE were appropriate, although he noted that the testimony given at the hearing about the composition of the class had been confusing because the composition had changed. The hearing officer addressed the parent's concern about changing the child's program, but found that such concern did not afford a basis for concluding that the class recommended by the CSE was inappropriate.

Petitioner asserts that respondent failed to meet its burden of proof in establishing the appropriateness of the MIS-IV program and the suitability of the special education class at P.S. 222. In determining whether a board of education has provided an appropriate program, it is necessary to ascertain whether the program is reasonably calculated to enable the child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S 176; Karl v. Board of Education of the Geneseo Central School District, 736 F. 2d 873 [2nd Cir., 1984]), and whether the program offers appropriate opportunities to meet the annual goals set forth in the child's IEP (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 83; Application of a Child with a Handicapping Condition, 29 id. 339).

An appropriate program begins with an IEP which accurately identifies and addresses the child's special education needs (Application of a Child with a Handicapping Condition, Appeal No. 92-1; Application of a Child with a Handicapping Condition, Appeal No. 92-41). Upon a review of the child's evaluation information and his IEP prepared at the May 7, 1992 CSE meeting, I find that the child's IEP accurately and adequately describes his needs for programming purposes. The child's most significant deficiencies are in his cognitive and communication skills. The child's IEP provides annual goals to improve his sight-word vocabulary, his comprehension of stories read to him and recognition of the letters in the alphabet, and to develop his basic number skills and fund of personal information. The IEP goals which relate to the child's communication needs include learning to follow two-step directions, improving his ability to identify objects by name, improving memory skills and recognizing rhyming words, synonyms and antonyms, as well as developing the child's articulation skills.

A school psychologist testified at the hearing that the MIS-IV program was designed for children in the lower elementary grades who have a variety of cognitive and communication deficits and who are not considered to be below the mild range of retardation. The school psychologist, who was a member of the CSE and was at its May 7, 1992 meeting, opined that the MIS-IV program would be appropriate for the child, because it would provide more stimulation than a program designed for children with more substantial cognitive deficits. The school psychologist testified that the child's teacher had informed the CSE that the child was at the reading readiness level, and that the child knows more than he shows. The school psychologist further testified that the CSE recommended that the child's speech/language therapy be increased to three sessions per week, because it believed that the child's language problems tended to mask his knowledge. The special education site supervisor for P.S. 222 testified that the child's IEP goals could be addressed in the recommended MIS-IV program, and described techniques which a teacher in that program could use to help the child achieve his IEP goals.

Although I find that there is substantial evidence in the record to establish the appropriateness of the MIS-IV program for this child, I am constrained to find that respondent has not met its burden of proof that the class at P.S. 222 would be appropriate for the child. State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development and the management needs of the children (8 NYCRR 200.6 [a][3]). The children may have the same disabilities, or different disabilities but with similar needs (8 NYCRR 200.6 [f][3]). The similarity of abilities and needs may be demonstrated through the use of a profile of the children in the proposed class, together with the testimony of a witness who is familiar with the proposed class (Application of a Child with a Handicapping Condition, Appeal No. 91-26; Application of a Child with a Handicapping Condition, Appeal No. 91-28). In this instance, the documentary and testimonial evidence in the record about the abilities and needs of the children in the class at P.S. 222 is neither clear nor compelling, and the manner in which the evidence was allowed into the record violated petitioner's right of procedural fairness.

State regulation accords each party to an impartial hearing the right to prohibit the introduction of any evidence the substance of which has not been disclosed to the party at least five school days before the hearing (8 NYCRR 200.5 [c][9]; 8 NYCRR 200.1 [m]). The right to bar the introduction of evidence not disclosed five school days in advance may be waived (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 137). The record reveals that copies of 15 of the 16 documents introduced into evidence by respondent were given to petitioner on October 2, 1992. The remaining document, the class profile, was delivered to petitioner's family on October 5, 1992. School was not in session on October 3, 4 or 7. The hearing was held on October 8, 1992. At the outset of the hearing, the hearing officer acknowledged that none of respondent's exhibits had been delivered to petitioner five school days before the hearing. Referring to an off-the-record discussion, the hearing officer stated:

"It is clear to me certainly that the parents were not prejudiced by the failure to have those documents given to them within the time required by the regulations. And I have asked the parents to waive that requirement so that we can go forward today. The alternative is that I will adjourn this hearing to some date so that the five day notice would have been complied with by virtue of the October 2 delivery. And the parents have agreed to waive." (Transcript, page 5)

Petitioner asserts that he did agree to waive his right to bar the introduction of the first 15 of respondent's exhibits, i.e. those delivered to him on October 2, but that he did not agree to waive his right to bar the introduction of exhibit 16, the class profile, which he did not receive until October 5, 1992.

Upon the record before me, I find that petitioner did not waive his right to bar the introduction of the class profile, even though he did not subsequently object to references to the class profile during the hearing. Petitioner was not represented by an attorney. The hearing officer's remarks about the absence of prejudice to petitioner and his stated intention to adjourn the hearing if petitioner did not consent to waive his objection concerning the documents delivered on October 2 were inappropriately inhibiting (Application of a Child with a Handicapping Condition, Appeal No. 92-38), as well as an improper attempt by the hearing officer to circumvent the five day requirement (Application of a Child with a Handicapping Condition, Appeal No. 91-29). Therefore, I find that exhibit 16, the class profile, was improperly allowed into the record of the hearing by the hearing officer.

Respondent also offered evidence about the abilities and needs of the children in the class at P.S. 222 through the testimony of a special education site supervisor. However, the record reveals that throughout her testimony, the supervisor referred to a document which was not disclosed to petitioner or entered into evidence, for information about the needs and abilities of the children in the class at P.S. 222. The document, at times referred to as a "G-Form" was used by the supervisor because it contained more current and/or accurate information about the children than was set forth in the class profile. By not offering the document for introduction into evidence, respondent did not afford petitioner, who was unrepresented, the opportunity to challenge the accuracy or relevance of the information set forth on the document or to object to the use of the document on the ground of respondent's failure to disclose the substance of the document at least five school days before the hearing. I find that the hearing officer erred in permitting respondent's witness to read into the record information from the undisclosed document (Application of a Child with a Handicapping Condition, Appeal No. 91-34).

The record does not include any information about the children in the proposed class at P.S. 222, other than the class profile and the testimony of the site supervisor based upon the G-Form which was not entered as evidence. Therefore, I must find that respondent has not met its burden of proof concerning the similarity of grouping of children in the class at P.S. 222. In view of my finding, I do not reach petitioner's additional assertions about the use of particular teaching methods or the possible effect which a change of placement might have upon the child. However, I must note that the record reveals that the teacher of the recommended class at P.S. 222 is certified to teach common branch subjects, i.e., the elementary grades, but is not certified to teach special education. She is described as presently working to obtain certification to teach special education.

State regulation requires that instruction in special education be provided by persons who are appropriately certified (8 NYCRR 200.6 [b][4]; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 52). There are two exceptions. Where there is no certified and qualified special education teacher available to fill a permanently vacant position, a board of education may employ an individual who is not a certified special education teacher but who meets certain minimum educational requirements, provided that the board of education obtains a temporary license for such individual in accordance with the provisions of 8 NYCRR 80.18 (a) (Appeal of Nettles, 31 Ed. Dept. Rep. 437). When a certified special education teacher is temporarily absent but is expected to return, a board of education may employ a substitute teacher who does not possess the requisite certification, under certain circumstances (8 NYCRR 80.36). The record does not reveal whether respondent has obtained a temporary license for the teacher of the recommended class at P.S. 222, but it does include a brief remark at the hearing by the site supervisor that the teacher who had previously been assigned to the class had gone on maternity leave in September, 1992. Although the record does not afford a basis for me to conclude whether respondent has complied with the teacher certification requirements, I remind respondent of its obligation to comply with those requirements.

Although I have found that respondent failed to prove that it had offered petitioner's child an appropriate placement for the 1992-93 school year, there is no need to remand the matter to the hearing officer to adduce evidence of the appropriateness of the child's present private school placement, as suggested by the hearing officer's decision. Tuition reimbursement for a parent who has unilaterally placed a child in a private school requires a showing that the placement recommended by the CSE is inappropriate, that the placement selected by the parent is appropriate and that equitable considerations support the claim for reimbursement (Burlington School Committee, Town of Burlington, Massachusetts et al. v. Dept. of Ed. Commonwealth of Massachusetts et al., 471 U.S. 357). However, this child was placed in a private school by petitioner pursuant to the order in Jose P. et al., supra, and the private school is the child's pendency placement for purposes of Federal and State law (Application of a Child with a Handicapping Condition, 24 Ed. Dept. Rep. 118; Application of a Child with a Handicapping Condition, 27 id. 65). It is important to note that under Jose P. et al., supra, the child could only have been placed in the private school if such placement were approved as appropriate by respondent. Accordingly, I find that the hearing officer's determination that this case was subject to the three-pronged test in Burlington, supra was in error. Since the matter is not subject to the Burlington analysis, I need not reach the issue of whether the hearing officer's ruling to only allow testimony concerning the appropriateness of the placement recommended by the CSE violated petitioner's right to due process. Having considered all of the facts of this case, including the fact that it is late in the school year, I would urge respondent to consider whether it's equitable to conduct another hearing to allow respondent an opportunity to prove the appropriateness of the recommended class and relieve respondent of its obligation to pay for the child's attendance in his current placement for the remainder of the 1992-93 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.