94-015

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that for the 1993-94 school year, petitioners' child receive resource room services and counseling to address the child's special education needs, and which denied petitioners' request for tuition reimbursement for their unilateral placement of the child in a private school. The appeal must be sustained in part.

At the outset, I must address two procedural issues: the timeliness of respondent's answer to the petition and petitioners' attempt to submit a reply to respondent's answer. The Regulations of the Commissioner of Education require that an answer to the petition in an appeal from the decision of an impartial hearing officer be served upon the petitioner within 10 days after the petition has been served (8 NYCRR 279.5). The record reveals that the petition in this appeal was served upon respondent on May 23, 1994, but the answer was not served upon petitioners until June 10, 1994. Although I may excuse a respondent's delay in serving an answer, upon a showing of good cause for the delay, respondent has offered no excuse for its delay. Therefore, I have not accepted or considered respondent's answer to the petition (Application of a Child with a Handicapping Condition, Appeal No. 92-43; Application of a Child with a Disability, Appeal No. 93-34).

The Regulations of the Commissioner of Education also provide that no pleading other than the petition or answer may be accepted or considered by a State Review Officer, except a reply to any procedural defenses interposed in the answer or to any additional documentary evidence (8 NYCRR 279.6). Since I have not accepted respondent's answer, there is no basis upon which I could accept petitioners' reply.

Petitioners' child, who is 15 years old, is classified as learning disabled. The child has above-average cognitive skills, with relative strengths in receptive language and concept development. However, the child has specific deficits in visual memory, visual motor and sequencing skills. These deficits have impaired the development of the child's academic skills in spelling, written composition, the mechanics of writing, e.g., capitalization and punctuation, handwriting, and organization of his written expression. The child's mathematical computation skills have also been affected by his learning disability, but to a lesser degree than his spelling and writing skills. His classification as learning disabled is not in dispute.

In August, 1987, petitioners obtained a private psychoeducational evaluation of the child, because the child had reportedly reversed letters and numbers, and had difficulty accurately copying information written on a blackboard. At the time of his evaluation, the child had completed the second grade in respondent's P.S. 40. The child's verbal and performance IQ scores were within the superior range, but there was a disparity of 24 points between the two scores. Tests of the child's visual motor skills revealed that his skills were not as well developed as those of other children of the same age. The child's evaluator reported that the child exhibited relative weakness in performing tasks involving visual and auditory processing together with memory and motor integration skills. Academically, the child was found to be at or above grade level in all areas of reading, but below grade level in mathematics. The evaluator recommended that the child should receive remedial assistance in spelling and mathematics. The record does not reveal what, if any, remedial services were provided to the child while he was in the third grade during the 1987-88 school year.

In November, 1988, when he was in the fourth grade, the child was referred to the CSE by petitioners for an evaluation, because they were concerned about the child's handwriting and attention span, as well as his spelling and mathematics skills. A school psychologist who evaluated the child for the CSE reported that the results of tests of the child's cognitive skills were comparable to those of the private evaluation performed in 1987, except that the child's visual motor skills appeared to have improved. The CSE's educational evaluator reported that the child exhibited delays in his spelling, mathematical computation and writing skills. In January, 1989, the CSE recommended that the child be classified as learning disabled because of his deficits in spelling, mathematical computation and writing, and that he receive resource room services for one period per day in P.S. 40. The child's initial individualized education program (IEP) included annual goals to improve his handwriting and mathematical skills as well as to build his self-confidence.

During the 1989-90 school year, the child continued to receive resource room services, while he was in the fifth grade. His IEP annual goals again involved improving his mathematical skills and handwriting, but also included a goal to improve his spelling. The child reportedly received private tutoring, which continued until he was in the seventh grade. When the child's IEP was updated in March, 1990, his handwriting and perceptual skills were described as greatly improved. The child's IEP for the 1990-91 school year , during which he received resource room services for one period per day, included annual goals to improve his mathematical computation skills and to expand his written vocabulary and write more precise sentences.

For the 1991-92 school year during which the child was in the seventh grade in respondent's East Side Middle School, the child was again recommended by the CSE to receive one period per day of resource room services. His IEP annual goals were similar to those for the preceding school year, except that his 1991-92 IEP included a goal to improve his interaction with his peers. In December, 1991, petitioners requested that the child's resource room services be temporarily discontinued because they believed that the child's removal from class to receive such services interfered with his class schedule. Nevertheless, they requested that the child be evaluated by the CSE, and that the CSE consider providing him with after school tutoring, instruction during the Summer and other, unspecified services. Petitioners also arranged for the child to receive psychotherapy from a psychiatrist, during the period from December, 1991 through May, 1992.

The child's triennial evaluation was performed by the CSE in January , 1992. Although the child's verbal and performance IQ scores were somewhat lower in his triennial evaluation than in the prior evaluations, his relative strengths and weaknesses were similar to those reported in the prior evaluations. The CSE's school psychologist reported that the child continued to exhibit deficits in his short-term visual memory and sequencing skills, and recommended that he receive counseling to assist him in gaining self-confidence. The CSE's educational evaluator reported that the child's reading and mathematical application skills were above grade level, but that his spelling skills were at a 4.6 grade level. At the time of the evaluation, the child was in the fifth month of the seventh grade. The evaluator, who informally assessed the child's writing skills, reported that the child used satisfactory sentence structure, punctuation and grammar in his written expression.

On January 28, 1992, the CSE prepared a new IEP for the child, which was based upon the results of his triennial evaluation. The CSE recommended that the child continue to receive one period per day of resource room services and certain test modifications in his regular education classes. The child's IEP annual goals were to improve his spelling, short-term visual memory and sequencing skills. The IEP did not indicate that the child had a significant deficit in his written expression, or include an annual goal to improve his written expression. There is no evidence in the record that petitioners objected to the child's IEP during the remainder of the 1991-92 school year.

The child remained in respondent's East Side Middle School, where he was enrolled in the eighth grade for the 1992-93 school year. The record reveals that the East Side Middle School is an alternative, regular education program which is located within P.S. 158, which is an elementary school. In September, 1992, petitioners notified the administrator of the resource room program in P.S. 158 that they were withdrawing the child from the resource room program because they believed it conflicted with his regularly scheduled classes and had been unproductive in improving the child's skills. They also asserted that it was embarrassing for the child to participate in the program in an elementary school setting. Petitioners also requested a meeting with the CSE chairperson to explore alternatives to the resource room program.

The record does not reveal what, if any, response petitioners received to their request. However, in early December, 1992, the child was partially re-evaluated. The CSE school psychologist, who had also evaluated the child in January, 1992, re-evaluated the child's visual motor skills and his emotional state. The school psychologist reported that the child exhibited some difficulties, but that his visual motor skills appeared to be at a level appropriate for a child of his age. The school psychologist opined that the child's self-confidence and self-esteem had improved, but were still low, and again recommended that the child receive counseling. The CSE's educational evaluator who re-evaluated the child's writing skills, reported that the child's performance on a dictation test which assessed his spelling, punctuation and writing mechanics skills was equivalent to that of a child in the third grade. She further reported that the child's general written composition skills were at a fourth or fifth grade level, and recommended that the child continue to receive supplemental instruction in writing and developing study skills such as note-taking.

On January 25, 1993, the CSE reviewed the child's IEP, and recommended that the child continue to receive resource room services one period per day. Notwithstanding the school psychologist's recommendation that the child receive counseling, the CSE did not recommend counseling for the child. The child's IEP goals were revised to include goals to address the child's deficits in spelling, written composition, study skills and visual memory, and his IEP short-term instructional objectives were more precise than those in his prior IEPs.

At the hearing in this proceeding, the child's father testified that petitioners were dissatisfied with the CSE's evaluations of the child, but that their request for an independent evaluation had been rejected by the CSE at its meeting on January 25, 1993. Petitioners obtained at their expense an evaluation of the child by the School Problems Center of the Mount Sinai Medical Center ("Mt. Sinai"), which was completed in April, 1993. The Mt. Sinai evaluators reported that the results of the child's IQ tests were comparable to those obtained in the evaluations conducted by the CSE's school psychologist. However, they reported that an analysis of the child's scores on various portions of the IQ tests revealed that the child's ability to attend, organize and execute tasks in a timely manner was impaired. The Mt. Sinai evaluators further reported that the child's spelling, numerical computation and written expression skills were significantly below the expected levels for children with comparable cognitive skills, and expressed the opinion that the child would have difficulty performing any task involving the sequential organization of material in time or space. The child was described by the Mt. Sinai evaluators as sad, somewhat socially awkward, and concerned about his lack of academic success. The evaluators recommended that the child be instructed in a small, structured class, and receive what they described as cognitive remediation in the structure and mechanics of spelling and expository writing. They also recommended that the child become proficient with a word-processor, and be trained to take notes in class and to develop organizational strategies.

The child's father testified at the hearing that he gave a copy of the Mt. Sinai evaluation report to the CSE when it met with petitioners on April 14, 1993. However, the portions of the IEP which describe the child's abilities and needs which the CSE approved on April 14, 1993 do not refer to, or otherwise reflect, the results of the evaluation at Mt. Sinai. The CSE recommended that the child receive daily resource room services, notwithstanding a notation in the child's IEP that he had not participated in the resource room program since some time in the preceding school year. Although the child's IEP did not explicitly indicate that it was intended by the CSE to be implemented in the 1993-94 school year, and did not include any IEP objectives to be reviewed in such school year, the CSE's representative at the hearing asserted that the CSE was not required to make a new recommendation for such school year because petitioners had not requested the CSE to review the IEP adopted on April 14, 1993 (see also 34 CFR Part 300, Appendix C, Question 9).

After the April CSE meeting, petitioners asked that an impartial hearing be held to review the CSE's recommendation. A hearing was scheduled to take place in June, 1993, but was canceled as petitioners' then attorney and respondent's attorney attempted to arrive at a settlement of the matter. On or about June 25, 1993, petitioners advised the CSE that the child would not attend public school, but would be placed by them in a private school for the 1993-94 school year. The attorneys reportedly continued to negotiate through the Summer and into the Fall of 1993. Petitioners placed the child in the York Preparatory School, a private school which has not been approved by the State Education Department to provide instruction to children with disabilities. Petitioners renewed their request for a hearing. However, the parties attempted to resolve their differences at a CSE meeting held on November 19, 1993. Although the CSE revised the child's IEP to include some of the information about the child set forth in the Mt. Sinai evaluation report, it did not revise the child's IEP annual goals. The CSE again recommended that the child receive one period per day of resource room services, but did amend the child's IEP to include one period per week of small group counseling, as a related service. Approximately, 10 days after the CSE's November meeting petitioners were notified that the child could receive the resource room services and counseling recommended by the CSE in the Julia Richmond High School, which is reportedly the public high school nearest to the private high school which the child attends.

In a letter dated December 10, 1993, the child's father requested that an impartial hearing be held. A hearing began on January 20, 1994 and concluded on March 3, 1994. In a decision dated April 11, 1994, the hearing officer ordered respondent to reimburse petitioners for their expenditures for the child's independent evaluation by Mt. Sinai. He found that the child's IEP did not include annual goals which reflected the child's deficiencies in graphomotor and writing skills, notwithstanding the fact that the child's deficits in these skills had been established in his prior evaluations. The hearing officer directed that the respondent provide the child with therapy in graphomotor and writing skills for two hours per week from the date of his decision through the Summer of 1994, and directed the CSE to amend the child's IEP to reflect the provision of such therapy. However, the hearing officer found that the CSE had met its burden of demonstrating the appropriateness of the resource room program which it had recommended, and denied petitioners' request for reimbursement of the child's tuition at the York Preparatory School.

Petitioners assert that respondent violated their right to due process of law by failing to adhere to an alleged agreement settling their dispute with the CSE, as a result of which the child has not received any educational services from respondent for the 1993-94 school year. Petitioners allege that an impartial hearing had been scheduled to be held at their request on June 15, 1993, to review the recommendation for the child which the CSE made at its meeting on April 14, 1993. They further allege that they withdrew their request for that hearing upon the advice of their attorney, who informed them that the CSE chairperson was amenable to a settlement. However, petitioners were unable to reach an agreement with the CSE. In December, 1993, they requested a hearing, which request led to the hearing in this proceeding.

In essence, petitioners ask that I find the respondent, through its attorney, had entered into an agreement with petitioners, through their attorney, by which respondent would provide the child with services which were satisfactory to petitioners, and petitioners would withdraw their request for a hearing. They assert that the agreement existed, and that they relied upon it to their detriment, as a result of respondent's failure to adhere to the agreement. Petitioners have not offered any written evidence of the alleged agreement, which, in itself, could not have changed the child's program. Under Federal and State law, any change in the child's educational program would have to be recommended by the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-34, judgment granted dismissing petition to review, Dorian G. v. Sobol et al., 93-CV-0687, U.S. D.C. E.D. N.Y., 1994). Neither the CSE chairperson nor any other single member of the CSE could have altered the IEP which the CSE had recommended at its April 14, 1993 meeting (Application of a Child with a Handicapping Condition, Appeal No. 92-3). Petitioners do not allege that a majority of the CSE had agreed to alter the recommendation which the CSE had made on April 14, 1993.

Petitioners also assert that respondent violated their due process rights by failing to offer a specific educational program for the child until late November or early December, 1993, after petitioners had requested the hearing in this proceeding. They contend that the hearing officer erroneously held that respondent was not obligated to offer a public school placement for the 1993-94 school year because petitioners had unilaterally placed the child in a private school in September, 1993, and because the parties were engaged in on-going negotiations to resolve their disagreement.

A board of education is required to offer an appropriate educational program to each child with a disability who resides within the school district of such board (20 USC 1412; Section 4402 [2][a] of the Education Law). A parent's decision to unilaterally place a child in a private school does not relieve a board of education of its obligation to offer an appropriate public placement, either in a public school or in a private school at the board's expense (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Disability, Appeal No. 93-9). In this case, the CSE recommended that the child receive resource room services and counseling, but did not specify where such services would be provided. The record does not reveal whether the CSE was aware of the public high school which the child would attend for the 1993-94 school year, following his graduation from the East Middle School, when the CSE made its recommendation on April 14, 1993. In any event, there is no evidence in the record that respondent offered a specific public school placement to the child, subsequent to the April 14, 1993 recommendation by the CSE. Notwithstanding petitioners' general familiarity with respondent's resource room program, I find that they were entitled to receive an offer of a specific placement, in order for them to make an informed decision whether to accept the CSE's recommendation (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 376). I further find that respondent failed to offer a specific public placement for the child for the 1993-94 school year.

In addition to offering an appropriate public placement, a board of education must also offer to provide appropriate special educational services to a child whose parents have unilaterally placed the child in a private school (Application of a Child with a Handicapping Condition, Appeal No. 91-12; Application of a Bd. of Ed. Middle Country CSD, 27 Ed. Dept. Rep. 114; Matter of Bd. of Ed. City School District of City of New York, 24 id. 155). Although the CSE was aware of petitioners' intention in June, 1993 to enroll the child in a private school in September, the CSE's designee at the hearing in this proceeding testified that the CSE had not offered a program for the child because a hearing was pending regarding additional services for the child. However, petitioners had withdrawn their prior request for a hearing, and there is no evidence in the record of any hearing requested or pending until after petitioners met again with the CSE on November 19, 1993. The child's father testified at the hearing that neither he nor his attorney had asked respondent to identify a school in which the child could begin receiving resource room services and counseling in September, 1993. Nevertheless, I find that respondent had a duty to make such services available to the child while he attended the private school, and that respondent did not make a timely offer to do so (Application of a Child with a Disability, Appeal No. 94-4).

Even if respondent had made a timely offer to provide services, I would nevertheless be constrained to annul the hearing officer's finding that respondent demonstrated the appropriateness of the resource room program. Respondent bears the burden of establishing the appropriateness of the program which its CSE has recommended (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No.93-43). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). At the outset of the hearing, the hearing officer noted that the child's records did not reveal that the requisite triennial physical examination had been performed (cf. 8 NYCRR 200.4[e][4]), and he directed the CSE to have such an examination performed. In the absence of the child's required triennial physical examination, I find that the child's IEP did not reflect the results of a current evaluation (Application of a Child with a Disability, Appeal No. 93-42). As found by the hearing officer, the child's IEP also did not accurately reflect the results of the child's evaluation with respect to his graphomotor skills.

Petitioners also challenge the appropriateness of the child's IEP goals, as well as the adequacy of the services recommended by the CSE for the child to achieve his IEP goals. I find that the record does not afford an adequate basis for determining the appropriateness of the IEP goals or the resource room services recommended by the CSE. There is virtually no information in the record about the child's achievement of prior IEP goals and short-term objectives, because the goals and objectives lack continuity and respondent offered no explanation for the absence of continuity. There is also no information about the child's ability to function in the regular education programs in which he has been enrolled. Resource room programs are by definition supplementary, rather than primary, instruction (8 NYCRR 200.1 [hh]). The efficacy of such instruction cannot be determined in the absence of any information about the child's success in regular education. Although the child's independent evaluator recommended that the child become proficient with a word processor as a means of compensating for his graphomotor deficits, the child's IEP did not identify any need for the use of assistive technology devices. Petitioners raised the issue of the child's need for the use of a word processor, but respondent failed to address the issue at the hearing.

In order to meet its burden of proving that the resource room program in respondent's Julia Richmond High School would be appropriate for the child while he attended the private school selected by petitioners, respondent would have to demonstrate that the child would be placed in an instructional group of children having similar abilities and needs (8 NYCRR 200.6 [f][4]). 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 Disability, Appeal No. 93-13). At the hearing in the proceeding, the hearing officer directed respondent's staff to provide petitioners with a "general picture" of all of the children in the resource room program of the Julia Richmond High School. Respondent thereafter entered in evidence a profile of approximately 60 children, but did not identify which children would be in the resource room class with petitioners' child. Indeed, respondent's resource room supervisor testified that the composition of the resource room class was primarily determined by the scheduling requirements of the regular education program. I find that the hearing officer erred in directing respondent to enter such a profile in evidence, and that respondent did not prove that the child would be instructed in a group of children having similar needs and abilities.

Petitioners assert that they are entitled to receive reimbursement for their child's tuition at the York Preparatory School during the 1993-94 school year, or in the alternative that they should be reimbursed for their expenditures for what they describe as "management services" provided to the child by the private school. A board of education may be required to pay for educational services obtained by a 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D. N.Y., 1988]).

I have found that respondent did not meet its burden of proof with respect to the first of the three Burlington criteria. Petitioners bear the burden concerning the second criterion, i.e., the appropriateness of the York Preparatory School's program. It should be noted that the fact that the York Preparatory School has not been approved by the State Education Department to provide instruction to children with disabilities is not dispositive of the matter (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361). At the hearing in this proceeding, the principal of the York Preparatory School testified that York was a college preparatory school, rather than a special education school, although special education could be provided in the school for a fee in addition to the school's tuition. However, the record does not disclose what, if any, special education or related services have been provided to the child in the York Preparatory School. Although I have found that respondent failed to establish that it had offered an appropriate special education program on a timely basis to petitioners' child, it does not follow that petitioners are entitled to be reimbursed for the cost of a regular education program which they obtained for the child in a private school, but which they could have obtained by enrolling the child in one of the respondent's high schools (see 34 CFR 300.403 [a]). Therefore, I find that there is no legal basis for petitioners' request for an order directing respondent to reimburse them for the child's tuition in the York Preparatory School, in the absence of evidence that the child received special education to meet his special educational needs in such school (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra).

With regard to petitioners' claim for reimbursement for management services provided by the York Preparatory School during the 1993-94 school year and paid for by petitioners, I find that there is an inadequate factual basis in the record for such claim. Included in the record is a letter to the child's father from the principal of the York Preparatory School which described six "special services" which the School offered to provide the child, for a fee in addition to the tuition. One of six special services was described as supervised individual test modifications and weekly consultations with the child's regular education teachers by a learning disabilities specialist. At the hearing, the principal initially testified that the school had provided each of the six special services to be child, but upon cross-examination he testified that only some of the services had been provided. The hearing officer directed petitioners to submit evidence to establish what special services had been provided and the cost of such services. Following the conclusion of the hearing, petitioners submitted a copy of an invoice from the York Preparatory School, dated September 20, 1993 for an "interim" fee of $500. for management services. However, there is no evidence from the school that such services were, in fact, provided, or proof from petitioners that such fees was paid.

Petitioners contend that the hearing officer erred in declining to require respondent to provide or pay for the provision of the special services described by the principal of the York Preparatory School in his letter to the child's father, for the remainder of the 1993-94 school year. In essence, they contend that the hearing officer failed to provide an adequate remedy after he had found that the child's IEP was defective. However, the 1993-94 school year has ended, for all practical purposes. Therefore, no meaningful prospective relief could be granted to petitioners for such school year. I must find that this portion of petitioners' appeal is moot (Application of a Child with a Disability, Appeal No. 93-21). At the same time, I note that the CSE must recommend an appropriate special education program for the 1994-95 school year in a manner which is consistent with the terms of this decision.

I have considered petitioners' other assertions, and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that such portion of the hearing officer's decision that found that respondent had offered the child an appropriate program for the 1993-94 school year is hereby annulled.