95-069

          Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondent for the cost of her child's tuition, transportation, and counseling at the private school in which respondent unilaterally placed her child for the 1994-95 school year. The appeal must be dismissed.

        Respondent's son is ten years old. The boy was enrolled in a regular education program of the private Hillel Academy from prekindergarten through the second grade. He reportedly had academic and behavioral difficulties in the private school. One of his teachers reported that the child was an excellent reader, but was unwilling or unable to complete written assignments. The boy also reportedly engaged in disruptive behavior in school, and was poorly organized.

        In December, 1992, the child was evaluated, at respondent's expense, by a psychologist. The psychologist reported that the boy had achieved a verbal IQ score at the 92nd percentile, a performance IQ score at the 84th percentile and a full scale IQ score at the 91st percentile. Despite his many cognitive strengths, the child demonstrated relative weaknesses in mathematical reasoning and computation, and in graphomotor skills, such as writing, copying, and visual-motor integration. The psychologist reported that the child demonstrated relative difficulty organizing the components of a task, sequencing, and using temporal/spatial information without visual clues. She noted that the boy's listening comprehension skills were weaker than his reading comprehension skills, which may have impaired his ability to follow oral directions in class. On a test of his academic achievement, the child, who was then in the middle of the second grade, achieved grade level equivalent scores ranging from mid-second grade in numerical operations to the twelfth grade in oral expression. His spelling skills were reported to be at the third grade level, while his reading decoding skills were reported to be at the mid-fifth grade level. The psychologist noted that the child had declined to provide a writing sample, and suggested that the disparity between the child's expressive language and his spelling and organization skills contributed to the child's frustration and discouragement about writing. The psychologist also reported that the child's concentration and attention were highly variable, and that his low tolerance for frustration and an impulsive style interfered with his performance and ability to meet behavioral expectations in school. She noted that the child appeared to be upset by the discrepancies among his skills, and opined that this affected his ability to work effectively in any area. The psychologist recommended that the child begin play therapy, and offered suggestions for modifying his written assignments and improving his performance in school.

        In September, 1993, the child was enrolled in the third grade in respondent's P.S. 321. He reportedly had difficulty in class, and was referred by respondent to petitioner's committee on special education (CSE), in December, 1993. In a social history prepared for the CSE, the child was described by school personnel as a bright youngster, who occasionally crawled on the floor, and made inappropriate noises, in class. He was reportedly calm when drawing or reading to himself, but he rarely completed assignments. The child was receiving psychotherapy and academic assistance from a tutor, both of which were provided at respondent's expense. Respondent reported that the child did not like attending P.S. 321. At the hearing in this proceeding, respondent testified that her son was teased by other children in P.S. 321.

        In January, 1994, the boy was evaluated for the CSE by a school psychologist, who described the child as occasionally restless, verbally tangential, and avoiding certain tasks during the evaluation. The school psychologist noted that the child had achieved a verbal IQ score of 124, a performance IQ score of 125, and a full scale IQ score of 126, during a prior evaluation in March, 1993. When tested by the school psychologist in January, 1994, the child received a composite score of 121 on the Stanford Binet Test, which was reported to be in the superior range. The child's performance in the area of short-term memory was described as being in the average range, primarily because the child exhibited a weakness in performing one short-term visual memory task. The school psychologist noted that the child's short-term visual memory was worse when stimuli were presented simultaneously, than when they were presented sequentially. He opined that the boy's difficulty with short-term memory could reflect the child's anxiety when asked to perform an unfamiliar task. The child was described as anxious, dependent, and less mature than might be expected. He was also described as having a low stress tolerance. The school psychologist reported that the child had difficulty making friends in school, and in asserting himself in a socially acceptable manner. He opined that the child needed close supervision, reassurance, support and structure to function in school.

        The child also received an educational evaluation in January, 1994. The evaluator reported that the child's expressive and receptive language skills ranged between the fifth and sixth grade levels, and that his auditory attention span was significantly above age expectancy. His visual motor development was reported to be four years above age expectancy. The child, who was in the third grade, achieved grade level equivalent scores of 8.2 in the letter-word identification, 10.0 in passage comprehension, 4.5 in mathematical computation, and 4.9 in mathematical applications. The evaluator described the child's writing as immature, and reported that the child refused to write a short paragraph for the evaluator, but thereafter wrote several well thought out sentences for her. The evaluator opined that the child required structure and focus, in order to complete tasks.

        On February 10, 1994, a school based support team met to discuss the child's needs. The CSE met with respondent on February 18, 1994. The record reveals that the child's teacher did not attend the CSE meeting (cf. Section 4402 [1][b][1] of the Education Law). Although the CSE apparently prepared certain individualized education program (IEP) annual goals to be achieved by the child during the remainder of the 1993-94 school year, the CSE was reportedly unable to agree upon an appropriate classification of the child's disability. Petitioner alleges that additional evaluations of the child were obtained, and submitted to the CSE. The only evidence of additional evaluations in the record before me are an addendum to the child's educational evaluation and brief written statements about the child by two of his teachers.

        In her addendum which was prepared in May, 1994, the educational evaluator reported that the child's behavior had improved significantly after he was transferred to a different third grade class in February, 1994. However, he reportedly continued to read, draw, or work on puzzles independently while in class, and had difficulty organizing his work and copying from the blackboard. The evaluator also reported that the child had difficulty performing tasks that were presented to his third grade class, unless the tasks were broken down into their component parts. The evaluator opined that the child needed to be placed in a small, structured setting. On June 1, 1994, the child's third grade teacher reported that the child had difficulty following oral and written directions, and completing assignments. He described the child as distractible and reported that the child had little or no contact with his peers in class. He also reported that the child appeared unable to organize his skills and abilities in a setting with multiple activities occurring simultaneously. The child's mathematics teacher reported that the child had initially manifested unusual behavior, eg., barking, hissing, and talking to himself, during times of stress. The boy's behavior improved, but the teacher reported that he continued to require a great deal of individualized attention in order to function.

        The CSE reconvened on June 20, 1994, or six months after the child's initial referral to the CSE. Once again none of the child's teachers attended the CSE meeting. Although a person identified as a bilingual educational evaluator attended the CSE meeting, the record does not reveal the individual's qualifications to be considered as functioning as the child's teacher at the meeting (see 34 CFR Part 300, Appendix C, Question 15). As petitioner well knows, it has the responsibility of establishing the educational evaluator's qualifications in the record, if the educational evaluator is to be deemed to be a child's teacher (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-33; Application of a Child with a Disability, Appeal No. 94-41).

        At the June 20, 1994 meeting, it was agreed that the child should be classified as learning disabled. The boy's classification as learning disabled is not challenged in this proceeding, and I will not review its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The CSE recommended that the petitioner place the child as a day student in a private school for children with disabilities, and that the child receive small group counseling once per week. A case summary which was prepared for the CSE's use indicated that there was no appropriate public school program to address the child's unique combination of superior cognitive ability and serious learning disabilities.

        The CSE did not select a specific private school in which the child could be placed. At, or after, the CSE meeting, respondent was given a so-called "Nickerson letter", which is a letter which petitioner must provide to the parents of children with disabilities indicating that if petitioner failed to make a specific placement recommendation within 60 days after a child's referral to the CSE, petitioner would become obligated to pay for the cost of a child's enrollment in an approved private school selected by the parents (Jose P. et al. v. Ambach et al., [79 C 270, U.S. D.C. S.D. N.Y., 1982]). Respondent also reportedly received a list of private schools which had been approved as schools for children with disabilities by the State Education Department.

        In accordance with petitioner's practice, the child's file was given to a case manager on petitioner's center base support team. The case manager testified at the hearing in this proceeding that she received the child's file on July 6, 1994. Two days later, the case manager sent information about the child to ten private schools which have been approved by the State Education Department as schools for children with disabilities to ascertain whether any of those schools might have an appropriate program for the child. The case manager further testified that a number of the private schools to which she had sent the information indicated to her that they could not meet the child's needs. However, two private schools, the Lowell School and the Hallen Center for Education, indicated to the case manager that they had attempted to contact respondent to arrange for an interview with the child. The case manager testified that when she spoke to respondent in August, 1994 about the two private schools, respondent advised her that she was not interested in either school, and that she had enrolled her son in the Mary McDowell Center for Learning for the 1994-95 school year.

        Respondent testified that she was aware of a possible placement for the child in the two private schools to which the case manager referred, but further testified that she believed that neither school would have been appropriate for her son. She admitted that she had not spoken to a representative of either school. She also testified that she had informed the CSE at its June 20, 1994 meeting that she had already enrolled the child in the Mary McDowell Center for Learning for the 1994-95 school year. She acknowledged that she had been informed by the CSE that it could not recommend that the child be placed in that private school because it had not been approved by the State Education Department as a private school for children with disabilities (see Section 4402 [2][b][2] of the Education Law).

        Respondent sought to have petitioner provide transportation and counseling for the child while he attended the Mary McDowell Center for Learning. At the suggestion of the case manager, respondent sent a written request to petitioner's funding coordinator for those services, on August 11, 1994. Thereafter, petitioner provided transportation and counseling to the child during the 1994-95 school year. The child attended the Mary McDowell Center for Learning, at respondent's expense, during that school year. In December, 1994, respondent asked the CSE to recommend that her son's counseling be increased from one 30 minute session per week to two 30 minute sessions. On January 31, 1995, the CSE recommended that the child's counseling be increased, as requested.

        On April 20, 1995, respondent, through her attorney, requested that an impartial hearing be held for the purpose of obtaining reimbursement for her expenditures for the child's tuition in the Mary McDowell Center for Learning. The record reveals that the private school's tuition for the 1994-95 school year was $16,450. The hearing began on May 11, 1995, and ended on June 20, 1995.

        The hearing officer rendered his decision in this proceeding on September 5, 1995, and issued an amended decision on September 15, 1995. He found that the Mary McDowell Center for Learning had provided an appropriate educational program to the child during the 1994-95 school year, because the child had made substantial progress towards achieving many of his IEP annual goals. The hearing officer rejected petitioner's contention that the private school's program was inappropriate because it did not include counseling for the child, by noting that "outside" counseling was provided by petitioner. With regard to respondent's request for tuition reimbursement, the hearing officer framed the issue as whether respondent was precluded from obtaining reimbursement, on either legal or equitable grounds, because she had placed the child in an unapproved private school, notwithstanding the "apparent availability of approved facilities"? The hearing officer held that respondent was not obligated to place her child in an approved private school, in order to obtain reimbursement. He further held that respondent had not interfered with or hindered the CSE in fulfilling its responsibilities, by committing to have her child attend the Mary McDowell Center for Learning, before the CSE made its recommendation for a private school. The hearing officer also found that respondent's claim was not precluded by the equitable doctrine of laches. He ordered petitioner to reimburse respondent for the cost of the child's tuition.

        A board of education may be required to pay for education 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]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (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. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        Petitioner argues that the hearing officer erred by not finding that petitioner had offered respondent's child an appropriate placement. Indeed, it asserts that the appropriateness of the CSE's recommendation of an unspecified private school placement is undisputed, and that the child would have been offered a placement in a specific private school, if respondent had allowed the child to be interviewed by one or more of the approved private schools which had indicated an interest in interviewing the child.

        Petitioner's argument presupposes that its CSE had made a valid recommendation on June 20, 1994. However, a recommendation by a CSE which did not include the child's teacher, as that term is defined by Federal regulation is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 90-22; Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, Appeal No. 92-34; Application of a Child with a Disability, Appeal No. 93-28; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-41). As noted above, the record reveals that the child's regular education teacher in P.S. 321 did not attend the June 20, 1994 CSE meeting, nor has petitioner demonstrated that any other participant in that meeting was qualified to provide special education in the area of the child's suspected disability. I find that the CSE's recommendation of June 20, 1994 was a nullity. I further find that the CSE's recommendation was untimely. State regulation provides that a CSE must provide a recommendation to the board of education within 30 days of the receipt of parental consent to an evaluation, or within 40 days after the receipt of a referral of a child not previously identified as a child with a disability (8 NYCRR 200.4 [c]). In this instance, the child was referred to the CSE in December, 1993. Although the CSE met in February, 1994, it did not recommend a specific classification and program for the child until June 20, 1994, approximately six months after the child was referred to the CSE.

        The parent of a child with a disability has an obligation to cooperate with the CSE in the latter's efforts to identify an appropriate educational program and placement for the child (Antkowiak v. Ambach, 838 F. 2d 635 [2d Cir., 1989] Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]). The subsequent decision of the U.S. Supreme Court in Florence County School District Four et al. v. Carter by Carter, supra, while altering the law in New York with regard to tuition reimbursement for parental placement of children in unapproved private schools, did not vitiate the requirement of parental cooperation with the CSE. A failure to cooperate may well afford a basis for finding the equitable considerations do not support the parent's claim for tuition reimbursement. Although I do not condone respondent's failure to follow up with the case manager's invitation to arrange for the child's interviews with the two private schools who had expressed an interest in interviewing the child, I find that her inaction does not afford a basis for denying her request for tuition reimbursement, upon the facts presented in this case as discussed earlier in this decision. Therefore, I find that petitioner has not met its burden of proof with respect to the first Burlington criterion.

        Respondent bears the burden of proof with regard to the appropriateness of the services which she obtained for the child at the Mary McDowell Center for Learning (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet her burden, respondent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20). Although petitioner argues that the "statutory preference" for placement in an approved private school, i.e., the requirement that school districts place children in approved schools (Section 4402 [2][b][2] of the Education Law) also applies to parental placements, I find that there is no merit to its argument either in the Education Law, or the decision in Florence County School District Four v. Carter by Carter, supra.

        The record reveals that the child has significant academic needs, notwithstanding his superior cognitive skills. In relation to his overall ability, the child has poor spatial organization and memory skills, and his concentration and attention skills are variable. There is a disparity between his ability to understand mathematical concepts and his ability to perform mathematical computations, as well as a disparity between his expressive language and written expression skills. For a number of years, the child has been frustrated by his inability to perform academically at a level commensurate with his abilities, and has exhibited significant management needs in the classroom.

        At the Mary McDowell School, the child was instructed in reading, handwriting, and mathematics in a group of three children. Other instruction was provided in a group of nine children. The boy's private school teacher testified that the child had difficulty attending to task in a large group, and that he required a significant amount of individual attention from the teacher. The teacher testified that instruction was provided using small steps and manipulative materials, in order to maintain the child's attention. She also testified that she used a behavioral management plan to ensure the child's participation in academic activities. Although the child initially did not hand in his homework on time, the teacher testified that the child got used to the idea of completing his work on time. The head administrator of the Mary McDowell Center for Learning testified that the child had made significant progress socially while attending the school, and that his participation in class had improved. Although writing remained as a difficult task for the boy, the administrator testified that the boy would write on many occasions, and that his written work could be creative. Although the child was described as having difficulty making transitions from one activity to another, his teacher and the administrator testified that they had not observed the child engaging in the kind of inappropriate behavior which his public school teacher had described in the 1993-94 school year.

        The appropriateness of the child's grouping for instruction purposes with the children in the private school was extensively discussed at the hearing in this proceeding. Petitioner argues that the child was not instructed with children having similar functional levels, and emotional, social and management needs. However, the unrebutted testimony of the child's teacher and the school administrator established that the child's daily functional level in reading, and mathematics was below the level indicated by his standardized test results. They also testified that the child had been placed in groups of children with whom he was comfortable and had been able to experience academic success. I find that the boy was grouped appropriately for instructional purposes.

        Petitioner further argues that the child's placement in the Mary McDowell Center for Learning was inappropriate because the private school did not provide the child with on-site counseling which could be directly related to his performance in school. The child's IEP indicated that the child should receive small group counseling once per week, in addition to his program of special education instruction. The IEP was subsequently amended to provide for such counseling on a twice per week basis. Petitioner engaged the services of a private social worker to provide counseling to the child in the social worker's office, after school. According to the child's IEP, counseling was to be provided to assist the child in achieving the twin objectives of assuming responsibility for completing assignments and meeting course requirements, and starting to work on tasks without being reminded. Having considered the testimony of the child's private school teacher and the private school administrator about the child's growth in this area, I find that petitioner's argument is without merit, and that respondent has met her burden of proof with regard to the second Burlington criterion, i.e., whether the services she obtained for her child were appropriate.

        The third Burlington criterion for tuition reimbursement is that equitable considerations support the parent's claim for reimbursement. Petitioner asserts that the record establishes that respondent had enrolled her child in the Mary McDowell Center for Learning before the June 20, 1994 CSE meeting, and that she admitted that she had only asked petitioner to provide transportation and counseling. It also asserts that respondent did not communicate her dissatisfaction with the CSE's recommendation until April, 1995. Petitioner contends that it had the right to rely upon respondent's representation that she sought only counseling and transportation from petitioner. I find that petitioner's argument is without merit. As early as August, 1994, petitioner, through its case manager, was aware of respondent's dissatisfaction with the CSE's recommendation by respondent's announced decision to educate the child in the Mary McDowell Center for Learning. Respondent testified at the hearing that she signed petitioner's form for requesting only transportation and related services, after being advised that she had to do so in order to obtain those services. Petitioner also argues that respondent is guilty of laches by waiting until April 25, 1995 to request a hearing. I do not agree. Upon the record before me, including the CSE's long and unexplained delay in fulfilling its responsibilities despite its awareness that the child was having difficulty while attending P.S. 321, I find that equitable considerations support respondent's claim for tuition reimbursement.

        Petitioner also argues that the sum of $16,450 for tuition at the Mary McDowell Center for Learning is unreasonable in light of the fact that the tuition fee did not include the counseling which petitioner provided. Although there was a brief colloquy about the tuition fee, at the end of the hearing, I find that there is inadequate evidentiary basis in the record for determining that the fee was unreasonable.

THE APPEAL IS DISMISSED.