95-008

      Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for their child's enrollment in a private school for the 1994-95 school year, notwithstanding respondent's failure to establish that it had offered an appropriate program to the child. The appeal must be sustained.

        Petitioners' son is six years old. He developed at an average rate until the age of 18 months, when he was found unconscious in his family's swimming pool. After his near-drowning, the child's development was reported to be irregular and his speech was delayed. In a summary, dated April 21, 1993, of an evaluation conducted by the Albert Einstein College of Medicine, the child was described as functioning in the borderline range, with below-average adaptive behavior skills. He exhibited significant delays in his expressive and receptive speech, and his delayed auditory processing skills were thought to have depressed his performance on cognitive tests. Some oromotor deficits, e.g. jaw jerking and drooling, were noted. The child was reported to have poor coping skills, and difficulty with interpersonal interactions, especially with strangers. He also reportedly exhibited attentional deficits and difficulty remaining on task.

        During the 1993-94 school year, the child was enrolled in the preschool program of the Therapeutic Nursery of the Albert Einstein College of Medicine, where he received individual speech/language therapy three times per week and occupational therapy once per week. The child's placement in such program had been recommended by respondent's committee on preschool special education. The child was referred to respondent's committee on special education (CSE) to recommend an educational program for the 1994-95 school year, when the child would be eligible to attend kindergarten.

        In a report prepared in January, 1994 for the CSE by his teacher, the child was described as having a variable attention span and difficulty controlling his impulses. The teacher reported that the child did well when his tasks were structured and explained to him. She also reported that the child had a speech articulation problem, and that he appeared to have difficulty retrieving words for use in expressing himself. In a subsequent report, dated March 1, 1994, the teacher described the child as presenting an educationally puzzling combination of needs and strengths. She reported that the child was alert, outgoing and attentive, but sometimes seemed to have no interest in familiar activities. The teacher reported that the child's feelings and behavior could be extreme at times, and that he needed help modulating the degree of his response to what was warranted by the situation. She recommended that the child be placed in a kindergarten class with a low child to adult ratio, in which he could receive a combination of intensive language stimulation, varied learning strategies and strong behavioral support. An educational evaluator, who observed the child on January 25, 1994, reported that he had acquired many pre-readiness and some academic readiness skills. She also reported that the child generally participated appropriately in class activities and was attentive.

        On February 7, 1994, the child was evaluated by his speech/language therapist at the Therapeutic Nursery. The therapist reported that the child exhibited an approximately two-year delay on a test of his expressive and receptive vocabulary, and an almost three-year delay on the auditory comprehension portion of another language test. Although the child was able to comprehend and respond to one-step commands, he demonstrated difficulty with elaborate two-step commands. The therapist noted that the child exhibited severe deficits in his word retrieval skills and that he occasionally exhibited echolalia during his speech/language therapy. The child reportedly spoke in two to three word utterances. Although the child's use of language had improved, his therapist reported that the child did not use language to initiate conversations or to express his feelings. She reported that the child had a very limited use of interactive language, and had difficulty visually and verbally sequencing events. The therapist recommended that the child be placed in a specialized kindergarten class with a low child to adult ratio, and that his instruction focus upon developing his receptive and expressive language skills.

        A psychological evaluation of the child was completed on March 2, 1994. The psychologist reported that the child's composite score of 75 on a test of his cognitive ability placed him in the borderline, or slow learner, range. However, there was a marked discrepancy between his scores of 64 for short-term memory and 69 for verbal reasoning and his scores of 88 for quantitative reasoning and 97 for abstract-visual reasoning. Although the child initially attempted to attend to most tasks during the evaluation, he reportedly required much help in remaining focused and inhibiting impulsive responses. The psychologist reported that the child also had some difficulty with auditory sequencing. She reported that the child exhibited good perceptual discrimination and ability to analyze and synthesize in two or three dimensions. The child was reported to be inconsistent in his pencil and paper skills, and his visual-motor integration skills were reported to be in the low average range. The child's adaptive behavior was also assessed. He achieved a standard score of 96 for motor skills, but his scores of 71 for communications skills, 77 for daily living skills, and 76 for socialization were below average. The psychologist recommended that the child be placed in a small, highly structured language based school program, and that he continue to receive speech/language therapy and occupational therapy.

        On May 5, 1994, the child received a neuro-psychiatric evaluation. The examining psychiatrist reported that the child demonstrated mild to moderate restlessness and hyperactivity during the evaluation, but did not evidence any tics or other involuntary movements. The child's posture, gait and gross motor skills were found to be within normal limits, but his fine motor skills were reported to be somewhat delayed. The psychiatrist found no evidence of any thought disorder. He attributed the child's paucity of spontaneous speech and limited verbal responsiveness to the child's expressive and receptive language deficits. The psychiatrist diagnosed the child in medical terms as having an attention deficit hyperactivity disorder (ADHD), with a developmental language and speech disorder. He opined that the child might have residual static encephalopathy, i.e., degenerative brain disease. The psychiatrist recommended that the child be placed in a small class with a supportive environment, and that he receive speech/language therapy and occupational therapy. He opined that a clinical trial of a stimulant medication to ameliorate the symptoms of the child's attention deficit hyperactivity disorder would be helpful, although it was not immediately necessary.

        On May 16, 1994, a CSE consisting of a school psychologist, the child's preschool speech therapist, an educational evaluator, and the child's preschool teacher met with petitioners. The CSE recommended that the child be classified as speech impaired, and that he be placed in a modified instructional services - IV (MIS-IV) class with a 10:1 + 1 child to adult ratio, for the 1994-95 school year. The CSE further recommended that the child receive speech/language therapy twice per week on an individual basis and once per week in a group of no more than three children. Thereafter, petitioners were informed that the recommended MIS-IV class would be in P.S. 178. However, at the hearing in this proceeding, the CSE's representative testified that a specific class for this child was not established until late July or early August, 1994. In June, 1994, petitioners requested that an impartial hearing be held to review the CSE's recommendation. A hearing was scheduled to commence on August 19, 1994.

        In a notice dated July 11, 1994, the chairperson of the CSE informed petitioners that the CSE would meet with them at 9:30 A.M. on July 19, 1994. The chairperson did not specify the purpose of the proposed meeting. During the afternoon of July 18, 1994, petitioners' attorney faxed a letter addressed to respondent's attorney in the forthcoming impartial hearing, with a copy to the CSE chairperson, in which the attorney indicated that neither she nor petitioners could attend the CSE meeting scheduled for July 19, 1994. However, the attorney did not explicitly ask that the CSE meeting be rescheduled for a different date. The attorney requested that the CSE provide a written explanation of the need to reconvene with petitioners. On July 19, 1994, a CSE consisting of a psychologist, an educational evaluator, and a parent member of the CSE met. The child's preschool speech therapist participated by telephone. Petitioners were not present for the CSE meeting, nor did they otherwise participate in it. The CSE, which apart from the child's speech therapist did not include anyone who had participated in the prior CSE meeting, did not change the recommendation made by the CSE at its meeting of May 16, 1994.

        The hearing in this proceeding, scheduled for August 19, 1994, was adjourned with the consent of the parties until October 4, 1994. In the interim, petitioners placed the child in the private Stephen Gaynor School, where he has remained. The Stephen Gaynor School is not approved by the State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs. At the hearing, petitioners did not dispute the appropriateness of the child's classification as speech impaired. However, they challenged the CSE's placement recommendation on procedural and substantive grounds. The hearing concluded on November 22, 1994.

        In his written decision dated December 30, 1994, the hearing officer reiterated his oral decision of October 4, 1994, in which he rejected petitioners' assertions that the child's individualized education program (IEP) was procedurally flawed by the CSE's failure to have each of its required members at either the May 16 or July 19 meeting, and by its refusal or failure to reschedule the latter meeting at petitioners' request. While acknowledging that each of the required CSE members did not attend either CSE meeting, the hearing officer nevertheless declined to invalidate the CSE's recommendation because the parent member who was absent from the first meeting had attended the second meeting and the teacher member who was absent from the second meeting had attended the first meeting. With regard to petitioners' request for an adjournment of the second CSE meeting, the hearing officer found that the timing and ambiguity of the July 18, 1994 letter by petitioners' attorney were equitable considerations which afforded a basis for the CSE to meet without petitioners on July 19, 1994.

        Substantively, the hearing officer found that the child's IEP described the child's abilities and needs and set forth detailed goals for him. He further found that respondent's MIS-IV program was appropriate for the child because it emphasized language development, the area in which the child had the greatest need. The hearing officer rejected the testimony of the psychiatrist who had evaluated the child that the child was too vulnerable to attend class in a large public school. However, the hearing officer found that respondent had not demonstrated that the child would be appropriately placed in the specific MIS-IV class selected for him in P.S. 178 because the child appeared to be among the lowest functioning children in the class and because at least two of the children in the proposed class required management aides for behavioral difficulties. In addition, the hearing officer found that respondent had not presented any evidence to demonstrate that the child could achieve his IEP goals in the proposed MIS-IV class. He also found that the CSE had not offered any explanation for its failure to recommend that the child continue to receive occupational therapy, but he did not direct that such therapy be provided to the child. The hearing officer held that petitioners were entitled to reimbursement for the child's tuition at a private school, if such school provided an appropriate education to the child. 

        With regard to petitioners' request for tuition reimbursement at the Stephen Gaynor School, the hearing officer found that petitioners had failed to demonstrate that the private school was appropriate to meet the child's needs and to help him reach his IEP goals. His finding was based upon what he described as virtually no evidence of how the children are taught in the private school and the fact that the private school had not prepared an IEP for the child.

        There are two procedural issues to be addressed before reaching the merits of this appeal. The first issue concerns respondent's second "affirmative defense", in which it asserts that the hearing officer erred in finding that the proposed class for the child in P.S. 178 was inappropriate, and the request in its answer that the hearing officer's decision be upheld " ... in all respects, except as it holds invalid the CSE's recommendation that [the child] be placed in P.S. 178." Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties at the hearing unless appealed to the State Review Officer (20 USC 1415 [c]; Section 4404 [1] of the Education Law). A party seeking review of a hearing officer's decision must initiate an appeal by serving and filing a petition for review (8 NYCRR 279.4), which respondent has not done. A respondent in an appeal may cross-appeal from a hearing officer's decision in its answer to the petition (Application of a Child with a Handicapping Condition, Appeal No. 91-25), which respondent has also not done. A portion of a respondent's answer may be deemed to be a cross-appeal where the petitioner has not been deprived of an opportunity to address the issues raised by the cross-appeal (Application of the Bd. of Ed. Ellenville CSD, Appeal No. 94-43). In this instance, I find that it would not be equitable to do so. Respondent's answer does not request that the hearing officer's decision be set aside, nor does it afford petitioners an opportunity to file a reply (8 NYCRR 279.6). Petitioners have not had an opportunity in this appeal to address the issue raised by respondent, i.e., to defend the portion of the hearing officer's decision which respondent now challenges. Therefore, I will not consider respondent's claim that the hearing officer erred in finding that the proposed MIS-IV class in P.S. 178 was inappropriate.

        The second procedural issue is whether the documentary evidence which petitioners have annexed to their petition, but which was not part of the record before the hearing officer, should be considered in this appeal. Respondent asserts that petitioners' documentary evidence should not be included in the record of this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 94-32). The documents submitted by petitioners consist of the child's mid-year progress report and his report card, together with an affidavit by an administrator of the Stephen Gaynor School, who asserts that neither report had been prepared before the hearing ended, and that both reports are necessary to complete the record. I find that the evidence should be included in the record because it was unavailable at the time of the hearing, and because it is necessary to complete the record. The central issue in this appeal is whether the Stephen Gaynor School is providing an appropriate educational program for the child during the 1994-95 school year. The progress report and report card document the child's progress in the private school and provide useful information about the instructional program provided by the school.

        Petitioners contend that the hearing officer erred in finding that the CSE's recommendation for their son's placement had been prepared in accordance with the procedural requirements of Federal and State law. They assert that since each of the required CSE members was not present at either the May 16, 1994 CSE meeting or the July 19, 1994 CSE meeting, the recommendations made at both meetings are fatally flawed. Respondent asserts that all but one of the required CSE members, the parent member attended the May CSE meeting, and that the July CSE meeting, which the parent member attended, merely ratified the recommendation made at the May CSE meeting.

        Section 4402 (1)(b)(1) of the Education Law requires that each school district, and in New York City each community school district, appoint at least one CSE. It also requires that a CSE shall be composed of at least the child's teacher as defined by Federal regulation, a school psychologist, a representative of the district who is qualified to either teach or supervise the provision of special education, a school physician, and a parent of a child with a disability who resides in the school district. However, the school physician need not attend a CSE meeting, unless a child's parents request that the physician attend the meeting. Although the Education Law authorizes respondent to appoint CSE subcommittees, for which parent members are not required to attend, such subcommittees may not act in the place of a CSE in making a recommendation for initial placement in a special education class. In any event, respondent does not assert that a CSE subcommittee met on May 16, 1994. Neither the Education Law nor the Regulations of the Commissioner authorizes a CSE to prepare a child's IEP in the absence of a parent member of the CSE (Application of a Child with a Disability, Appeal No. 94-5). Therefore, I find that the recommendation made by the CSE on May 16, 1994 was a nullity.

        At the meeting held on July 19, 1994, the CSE consisted of a psychologist, an educational evaluator, and a parent member. The child's preschool teacher, who had attended the May CSE meeting, was not present at the July meeting. Although the child's preschool speech therapist participated by telephone in the July CSE meeting, I find that the record does not afford an adequate basis for concluding that the therapist could be considered to be the child's teacher for purposes of the Federal regulation (34 CFR 300.344 [a][2]). I note that respondent does not assert that the speech therapist was the child's teacher for purposes of having a validly composed CSE. Instead, respondent argues that the July meeting was no more than an extension or ratification of the May CSE meeting, and that the hearing officer correctly found that the two meetings could be considered together in determining whether all of the required CSE members had participated in the "final" recommendation of the CSE. I disagree. With the exception of the speech therapist, none of the individuals who attended the July meeting had participated in the May CSE meeting. The July meeting was not simply a continuation of the May meeting, but was an attempt to provide the "communication vehicle between parents and school personnel" required by Federal regulation to enable them to jointly decide upon the child's needs and the services to be provided (34 CFR Part 300, Appendix C, Question 32). If respondent's position in this matter was valid, parents could be compelled to meet individually with each of the required CSE members, and there would be no opportunity for the collective exchange of views which is at the heart of the requirement that there be a CSE meeting. Although respondents could have satisfied the Federal and State requirement that the child's teacher attend the CSE meeting by assigning any teacher qualified to provide education in the type of program in which the child could be placed, it failed to do so. I must find that the child's IEP which the CSE prepared at its July 19, 1994 meeting was a nullity because the child's teacher did not attend or otherwise participate in such meeting (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-19).

        Petitioners also contend that the CSE met improperly on July 19, 1994 because respondent was aware that petitioners were unable to attend the meeting, yet it did not reschedule the meeting. They assert that the CSE's representative at the hearing conceded that she knew of no reason why the meeting could not have been rescheduled, and argue that respondent's failure to reschedule the meeting was inconsistent with the Federal regulatory requirement that CSE meetings be scheduled at mutually agreed on times and places (34 CFR 300.345 [a][2]).

        The Federal regulation encourages, but does require, parental attendance at CSE meetings. It provides, in material part, as follows:

" (c) If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls.

(d) A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place such as -

(1) Detailed records of telephone calls made or attempted and the results of those calls;

(2) Copies of correspondence sent to the parents and any responses received; and

(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits." (34 CFR 300.346 [c] and [d])

        There is no information in the record about respondent's attempts, if any, to arrange for petitioners to participate in the CSE meeting by telephone conference call, or other alternative means of participation. Nor does the record afford any basis for finding that the meeting could not have been rescheduled, or that petitioners acted in bad faith by informing the CSE chairperson that they could not attend the meeting. I find that the hearing officer's determination that the CSE could meet without petitioners because they did not explicitly request that the meeting be rescheduled is inconsistent with the Federal regulation, and is unwarranted on the record before me.

        In view of the CSE's procedural violations, I must find that respondent did not discharge its obligation to offer an appropriate program of special education and related services, on a timely basis, as it was required to do by Federal and State law (20 USC 1414 [a][1]; Section 4402 [2][a] of the Education Law).

        A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). With regard to the first Burlington criterion, i.e., whether the services offered by respondent were appropriate, I have found that respondent did not meet its burden of proof.

        Petitioners bear the burden of proving the appropriateness of the educational program which they obtained for their son (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. Monroe-Woodbury CSD, Appeal No. 94-34). They must show that the services which the Stephen Gaynor School is providing their son during the 1994-95 school year are "proper under the Act [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra 370), i.e., that the private school is offering an instructional program which meets the child's special education needs. Although the Stephen Gaynor School has not been approved by the State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for the cost of tuition, that fact is not dispositive of petitioners' claim for tuition reimbursement by respondent (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

        The hearing officer found that petitioners' child appeared to be grouped with children having similar disabilities and needs in his private school. However, the hearing officer found that there was a dearth of evidence as to whether the Stephen Gaynor School could meet the child's needs, because the private school had not prepared an IEP for the child; demonstrated how it would address his speech/language needs; or demonstrated how it would provide him with instruction in reading and mathematics.

        Petitioners assert that the hearing officer erred in declining to find that the Stephen Gaynor School could provide an appropriate program for their child. I agree. There is no legal requirement that an unapproved private school prepare IEPs for its children (Florence County School District Four et al., supra; Application of a Child with a Disability, Appeal No. 94-20). Petitioners may demonstrate the appropriateness of the private school's program with other kinds of evidence. In this instance, they did so primarily through the testimony of the child's teacher in the Stephen Gaynor School. The teacher testified that there were seven children, including petitioners' son, in the class which she taught. She also testified that she was assisted by a full-time teaching assistant, and that the children in her class were divided by skill level into groups of two or three for instruction in reading and mathematics. The teacher noted that even in such small instructional groups, the child had difficulty remaining focused. She also testified that she provided a language based program, using multisensory teaching techniques. The teacher described the child as a visual learner, and testified that she had incorporated appropriate materials into the curriculum to address his visual learning strength. She further testified that some of the child's speech/language therapy and occupational therapy is provided in the classroom, and that she incorporates the concepts or techniques presented by the therapists into the child's curriculum. She also described the behavior modification program she used to encourage appropriate behavior by the child, and the "scripting" technique used to assist the child to express himself and interact with his peers.

        Upon the record before me, I find that the teacher's unrebutted testimony abut the instructional program which the child receives at the Stephen Gaynor School affords an adequate basis to conclude that the private school can appropriately address the child's special education needs. I have also considered the mid-year progress report and the child's report card, which were not available to the hearing officer. These documents read together with the evaluation data obtained in the Spring of 1994, demonstrate that the child has made progress in the traditional academic areas, as well as in speech/language, while enrolled in the Stephen Gaynor School. I also find, as did the hearing officer, that the child was appropriately grouped with children of similar needs and abilities. I have considered whether the child's placement in that school is consistent with the requirement that children be placed in the least restrictive environment (8 NYCRR 200.6 [a][1]). Having reviewed the testimony of the psychiatrist who evaluated the child and the child's teacher at the private school, I find that his placement in the Stephen Gaynor School for the 1994-95 school year is consistent with the least restrictive environment requirement.

        The third criterion for tuition reimbursement under the Burlington decision is that equitable considerations favor such reimbursement. There is no evidence in the record to indicate that petitioners were uncooperative with the CSE. The extensive delay between the child's initial referral to the CSE by no later than January, 1994 and the CSE's recommendation of July 19, 1994 precluded the timely resolution of this matter prior to the start of the 1994-95 school year. Under the circumstances, I find that equitable considerations favor petitioners' receipt of tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled; and,

IT IS FURTHER ORDERED that respondent shall reimbursement petitioners for their expenditures for the child's tuition at the Stephen Gaynor School during the 1994-95 school year, upon petitioners' presentation to respondent of proof of such expenditures.