96-006

Petitioner appeals from an impartial hearing officer's decision which denied his request for an order requiring respondent to pay for the cost of his son's tuition during the 1995-96 school year in the Mary McDowell Center for Learning (Mary McDowell), an unapproved private school in New York City. The appeal must be sustained.

At the outset, I must note that the record which is before me is extremely limited because of the inexplicable failure of the committee on special education (CSE) of Community School District No. 15 to appear at the hearing which was held in this proceeding. A representative of respondent's Impartial Hearing Office testified that the CSE had been given timely notice of the hearing, but that the CSE allegedly had adopted a policy of not sending a representative to any hearing at which a parent was represented by an attorney. The parties to an impartial hearing have the right to be represented by attorneys, but are not required to do so. However, a school district has an obligation to be present at a hearing, and to provide whatever testimonial and documentary evidence is required in order for the hearing officer to have a basis for rendering a decision.

In this instance, the CSE's failure to appear has resulted in a record which is remarkedly deficient in information about the child's special education needs, and the services which would most appropriately address those needs. Nevertheless, the hearing officer made certain findings about the boy's needs and the appropriateness of the services which petitioner obtained for him in Mary McDowell. Since those findings have not been challenged in this appeal from the hearing officer's decision, I do not review those findings (34 CFR 300.509; Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). With regard to the issue presented in the appeal, i.e., whether equitable considerations support petitioner's claim for tuition reimbursement, I find that there is an adequate basis for a decision, so I will not remand the matter for an additional hearing. Nonetheless, I caution respondent to ensure that its CSE's meet their obligation to appear at future hearings.

Petitioner's son, who is eight years old, has been classified as learning disabled. Since the record does not include the results of an evaluation, or an individualized education program, it does not reveal the basis for the child's classification. At the hearing, in this proceeding, one of the child's teachers in Mary McDowell testified that the child was very distractible and impulsive. The teacher further testified that the child required individual instruction in reading and writing. Although the child could reportedly write four or five sentences in an appropriate sequence, his teacher testified that the child could not appropriately incorporate spaces between his words to permit his teachers to read his writing. In a profile of the children in the boy's class which the Mary McDowell teacher prepared, petitioner's son was described as having reading and mathematics skills which were at the beginning of first grade level. He reportedly has average to high average cognitive skills, but has expressive and receptive language deficits, as well as fine motor and visual motor problems. The child's classification as learning disabled is not disputed in this proceeding.

Petitioner and his son reside in Community School District No. 2. Although the CSE of Community School District No. 2 reportedly recommended that petitioner's son be enrolled in respondent's modified instructional services - IV (MIS-IV) program for the 1994-95 school year, respondent did not offer the child a placement in its MIS-IV program because it did not have space for him. Respondent issued a so-called "Nickerson letter" to petitioner. A "Nickerson letter" is a written authorization from respondent to the parent of a child with a disability to place the child, at respondent's expense, in a private school which has been approved as a school for children with disabilities by the New York State Education Department (see Jose P. et al. v. Ambach et al., [79 C 270, U.S.D.C.E.D. N.Y., 1982]).

During the 1993-94 school year, the child attended the West End Day School, at petitioner's expense. The West End School, which is an unapproved private school, reportedly advised the child's parents that the child could not return to that school for the 1994-95 school year. Petitioner reportedly had difficulty finding an approved private school which would accept the child. He and his wife enrolled the child in Mary McDowell, which as noted above has not been approved by the State Education Department as a school for children with disabilities. Since the Nickerson letter was valid only for the child's placement in an approved private school, petitioner had to pay for his child's placement in Mary McDowell. Thereafter, petitioner and his wife requested that an impartial hearing be held for the purpose of determining whether they should be reimbursed for the cost of their son's tuition in Mary McDowell for the 1994-95 school year. A hearing was held on June 26, 1995. In a decision which was rendered on July 14, 1995, the hearing officer ordered respondent to reimburse petitioner and his wife for their expenditure for the child's tuition in Mary McDowell for the 1994-95 school year.

In view of the fact that the child attended Mary McDowell during the 1994-95 school year, he reportedly passed from the jurisdiction of the CSE of Community School District No. 2, where he resides, to the CSE of Community School District No. 15, in which the private school is reportedly located. At the hearing in this proceeding, petitioner testified that he was unaware of any contact between the CSE of Community School District No. 15 and his family during the 1994-95 school year. Mary McDowell's Director testified that Community School District No. 15 had to have known about the child because it coordinated the child's transportation to Mary McDowell. Nevertheless, the CSE of Community School District No. 15 made no attempt to observe the child in the private school, or contact the private school about the child. Respondent concedes that neither the CSE of Community School District No. 15, nor that of Community School District No. 2, conducted an annual review of the child, or recommended an educational program for him for the 1995-96 school year.

On or about February 13, 1995, petitioner's wife signed an enrollment contract to reserve a place for the child in Mary McDowell for the 1995-96 school year. The contract provided that a non-refundable deposit of $2,500 was due by February 20, 1995. The contract also provided that a "first payment" of $7,300 would be due on or before September 1, 1995, and that a "second payment" of $7,300 would be due on or before January 1, 1996. With regard to withdrawal from school, the contract provided that:

"The tuition on deposit is non-refundable. After June 15, all contracts will be considered binding, and payment of the 1995-96 tuition will be expected in full, even in cases of absence, dismissal or withdrawal during the school year." (Parent's Exhibit C)

At the hearing which was held in this proceeding, Mary McDowell's Director testified that a deposit was required to hold a place for a student, and that the parents of three Mary McDowell students had forfeited their deposits by accepting public school placement offers. Petitioner testified that when his wife signed the enrollment contract, neither he nor his wife was aware of the possibility of obtaining tuition reimbursement from respondent through the due process procedure. He further testified that he and his wife became aware of the possibility of tuition reimbursement, shortly before they retained an attorney's services on May 30, 1995.

The hearing in this proceeding was requested on October 30, 1995, and was held on November 13, 1995. The hearing officer found that the CSE of Community School District No. 15 had received adequate and timely notice of the hearing. She took the testimony of the child's teacher in Mary McDowell, who testified that petitioner's son was enrolled in a class of nine students, whose abilities and needs were set forth in a profile. The class was taught by two teachers. Although the child reportedly had difficulty remaining focused even when he received individual instruction, his teacher opined that the child was making academic progress. She also opined that the child could not successfully function in a less restrictive environment. The Director of Mary McDowell testified that the private school serves 44 children, who are between the ages of five and eleven, and who have learning disabilities. She further testified that petitioner's son required instruction in a small group, with frequent questioning to ensure that he remained focused, and "hands on" activities. The Director noted that chronologically the child should have been in the third grade, but that he was learning at the first grade level. She testified that the child received speech/language in a group of two, and occupational therapy, the cost of both which was included in the private school's annual tuition charge of $17,100. The Director of Mary McDowell opined that petitioner's son was appropriately placed in the private school, and that Mary McDowell was the least restrictive environment for the child during the 1995-96 school year.

Petitioner, who testified at the hearing, acknowledged that he had not contacted the CSE of either Community School District No. 2, or Community School District No. 15, about conducting an annual review, or offering his son an educational placement for the 1995-96 school year. However, he testified that his wife, who was unable to attend the hearing, had been more involved with securing the child an educational placement. At the request of petitioner's attorney, the hearing officer agreed to accept a post-hearing affidavit by petitioner's wife. In her affidavit, a copy of which is annexed to the petition as Exhibit B, petitioner's wife asserted that she had contacted Community School District No. 2 " ... on number of occasions and was advised that I would not be contacted [regarding the child's program for the 1995-96 school year] until the late spring." She further asserted that she was never contacted by Community School District No. 2, and was finally advised that her son's file had been transferred to Community School District No. 15. Petitioner's wife also asserted that:

" At this time the school year was coming to a close. I called District 15 in late June, early July and was advised that I would be contacted. I was still attempting to seek an alternate to Mary McDowell as I was willing to risk my deposit as my family is having severe financially [sic] problems. I am still waiting for such a contact."

The hearing officer rendered her decision in this matter on December 19, 1995. She noted that 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]).

The hearing officer found that the Board of Education had failed to offer a free appropriate public education to the child for the 1995-96 school year. She further found that the child was receiving educational benefit from his placement in the Mary McDowell School during the 1995-96 school year. In effect, the hearing officer found that petitioner had prevailed with respect to the first and second criteria of the Burlington decision for an award of tuition reimbursement, i.e., that respondent had not offered an appropriate placement, and that the services which petitioner had obtained for the child were appropriate to address his special education needs. However, the hearing officer found that equitable considerations did not support petitioner's claim for tuition reimbursement. She premised her finding upon the fact that the child's mother had signed the enrollment contract with the private school for the 1995-96 school year, "...months before the CSE was obligated to offer the parents a placement for the 1995-96 school year." In essence, the hearing officer found that petitioner and his wife were predisposed to have their son attend Mary McDowell for the 1995-96 school year, and had not enrolled the child in the private school for that school year because of respondent's failure to offer the child a free appropriate public education. She also noted that although school districts are obligated to offer placements, parents have a responsibility to promptly challenge a school district's failure to offer a placement (Bernardsville v. J.H., 42 F 3d 149 [3d Cir., 1994]). In effect, she found that petitioner had failed to promptly do so, and denied petitioner's claim for tuition reimbursement.

Petitioner argues that the fact that his wife signed the enrollment agreement with the private school in February, 1995, to ensure that his son would have a placement for the 1995-96 school year, did not relieve respondent of its obligation to offer a placement for that school year. Consequently, he argues that it was illogical for the hearing officer to premise her finding that equitable considerations did not support his claim upon the fact that the enrollment agreement was signed in February, 1995. Petitioner testified at the hearing, and his wife asserted in her affidavit, that they would have considered a public school placement, if respondent had offered such a placement. While I agree with petitioner that respondent was obligated to offer the child a placement, regardless of whether his parents had signed an enrollment agreement, the fact that respondent failed to do so is not dispositive of the question whether equitable considerations support petitioner's tuition reimbursement claim (Application of a Child with a Disability, Appeal No. 96-5).

The central issue in this appeal is whether petitioner unduly delayed in asserting his claim, to the extent that his delay has prejudiced respondent. Respondent contends that it was unaware of a need for the "continued review" of his child's case, until petitioner requested a hearing on October 30, 1995. It further contends that petitioner failed to assert his claim until long after the opportunity to act upon it had passed. I find that respondent's position is without merit. First, I note that there is no evidence in the record whether petitioner or his wife were ever advised of their due process rights by respondent. Secondly, I find that, at the very least, respondent had the obligation to identify on a timely basis the CSE which had jurisdiction over the child, when as here, it reassigned the child to another CSE. Thirdly, respondent's assertion that it was unaware of the need to review the child's case for the 1995-96 school year, notwithstanding the hearing officer's decision in July, 1995 to award tuition reimbursement for the 1994-95 school year, is simply incredible. Finally, I must point out that respondent offers nothing to support its bare assertion that it was too late to do anything about the child's placement for the 1995-96 school year by the time petitioner requested the hearing on October 30, 1995.

Upon the record before me, I find that there is no evidence that petitioner and his wife failed to cooperate with the CSE. In her affidavit, petitioner's wife alleged that she contacted Community School District No. 2 about a placement for her child during the 1995-96 school year, prior to the conclusion of the 1994-95 school year, and that she contacted Community School District No. 15, shortly after learning that her child's case had been transferred to that district. She was advised to wait until the CSE contacted her. Respondent has not offered any evidence which contradicts the allegations of petitioner's wife. Under the circumstances, petitioner and his wife cannot be accused of failing to bring their child's need for an educational placement to the school district's attention. When the district failed to act, petitioner and his wife promptly resorted to due process proceedings to obtain a publicly funded educational placement for their child. Accordingly, I find that equitable considerations support the claim for 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 reimburse petitioner for his reasonable expenditures for the child's tuition in the Mary McDowell School for the 1995-96 school year, upon petitioner's presentation to respondent of proof of such expenditures.