96-011

         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 respondents, who are the parents of a child with a disability, for their expenditures for the child's tuition and related services in a private school during the 1995-96 school year. Petitioner concedes that it failed to meet its obligation to timely offer respondents' daughter an educational placement for the 1995-96 school year. However, it asserts that respondents failed to meet their burden of proof at the hearing with respect to the appropriateness of the private school's services, and that equitable considerations do not support respondents' claim for reimbursement. The appeal must be dismissed.

        At the outset, I note that respondents argue that the petition should be dismissed because it is allegedly untimely. State regulation requires that a board of education commence its appeal from the decision of an impartial hearing officer within 30 days after its receipt of the hearing officer's decision (8 NYCRR 279.2 [b], and 279.4). Respondents assert that the hearing officer's decision was "filed" on January 10, 1996, and that petitioner first attempted to serve its petition upon respondent, by leaving a copy of the petition with an employee of respondents' apartment building, on February 12, 1996.

        The board of education's attorney has submitted an affidavit, in which she asserts that on February 9, 1994, she telephoned the child's mother, who is an attorney, to alert her that the board of education would appeal from the hearing officer's decision. The board's attorney alleges that she unsuccessfully tried to serve the petition upon respondents, twice on the evening of February 9, 1996, and that the doorman at the apartment declined to accept service for respondents. On February 12, 1996, the board's attorney returned to respondents' apartment building, but was unable to personally serve respondents. She thereupon left a copy of the petition with the doorman, and sent another copy to respondents by regular mail. On February 13, 1996, she sent another copy to them by registered mail (see 8 NYCRR 275.8, and 279.1). The record does not reveal when petitioner in fact received a copy of the hearing officer's decision. Under the circumstances, including the fact that petitioner did attempt to effect service upon respondents on the 30th day after the date of the hearing officer's decision, I find that the appeal is timely (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35.

        Respondents' daughter will be seven years old, next month. In 1993, the child was medically diagnosed as having a static encephalopathy, which was manifested by spastic diparesis, visual maturation delay, and psychomotor delay. The individualized education program (IEP) which respondent's committee on special education (CSE) prepared for the child indicates that she has Cerebral Palsy, with spastic quadriplegia. The physician who made the diagnosis in 1993, recommended that the child receive physical therapy, occupational therapy, visual stimulation therapy, and speech/language therapy. The child reportedly needs visual stimulation because she has a cortical visual impairment. In June, 1994, the child's physician reported that the child had surgery on her Achilles' tendons, and required the assistance of an aide to develop her walking skills.

        Although there is little information about the child's preschool education in the record, she reportedly was enrolled in a preschool program of the United Cerebral Palsy Center of New York City, from 1992 until 1994. During the 1994-95 school year, the girl was enrolled, at petitioner's expense, in a prekindergarten in the program of the Lighthouse Child Development Center, on a twelve-month basis. She reportedly received speech/language therapy twice per week. In an educational progress report prepared in January, 1995, the child was described as functioning at the one and one-half year old level, with regard to her cognitive and language skills. The evaluator reported that the child could follow simple directions, with minimal verbal cuing. The child was toilet trained, and could eat with her fingers and drink from a cup independently. She needed assistance with all dressing tasks. The evaluator reported that the child was very aware of people around her, and responded to having her name spoken by smiling. The child could creep, and pull herself up to the standing position, independently, and could walk with the assistance of a walker. She was reportedly attracted to brightly colored objects and reflective surfaces, and could visually track objects, both horizontally and vertically.

        The child was referred to petitioner's CSE in the Spring of 1995, for the purpose of obtaining an educational placement for her during the 1995-96 school year. In a speech/language evaluation, the child was described as having a spontaneous speech vocabulary of approximately five words, and as having difficulty responding consistently to requests to point to objects. A school psychologist, who evaluated the child in April, 1995, reported that the child appeared to have some tactual discrimination skills, but could not identify shapes. He noted that the child was unable to transfer objects between hands. She appears to understand prepositional concepts, which in the opinion of the school psychologist suggested that the child had a higher cognitive potential. When tested, the child was five years and eight months old. On the Bayley Scales, she reportedly achieved an age equivalent score of 19.7 months. Her adaptive behavior was reported to be at the age equivalents of one year for daily living skills, one year and nine months for communication skills, and two years and four months for socialization. Although eye glasses had been prescribed for the child, I note that a vision report prepared in November, 1994 indicated that the child's vision in her left eye could not be assessed. One of petitioner's school social workers observed the child in her preschool classroom, in April, 1995. She reported that the child did not participate in an activity to make play dough objects, even with the assistance of a classroom aide. The child walked, with a walker, from the classroom to a recreation room, but she reportedly required a great deal of encouragement from her teacher and her aide. Although she responded to the voice of a talking computer, she did not answer any questions posed to her by the teacher.

        On June 2, 1995, petitioner's CSE recommended that the child be classified as multiply disabled, because of her speech, visual, and orthopedic impairments. It also recommended that the child be enrolled, on a ten-month basis, in petitioner's modified instructional services - IV (MIS-IV) program, in a self-contained class with a 10:1 + 1 child to adult ratio. The CSE recommended that the child receive individual speech/language therapy, physical therapy, and occupational therapy, each to be provided twice per week. It also recommended that she receive educational vision services on an individual basis, three times per week. To address the child's management needs the CSE recommended that an individual aide be assigned to her for the entire school day. Although respondents' attorney noted at the hearing in this proceeding that the CSE was not validly composed (see Section 4402 [1] [b] [1] of the Education Law), respondents do not challenge the child's classification as multiply disabled, or the CSE's recommendation with respect to the related services which she should receive.

        By letter dated June 30, 1995, the administrator of petitioner's Hard of Hearing Visually Impaired (HHVI) regional office informed the child's parents that the board of education did not have a suitable placement for the child. The administrator's letter is also known as a "Nickerson letter". 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. NY, 1982]).

        Respondents have annexed to their answer an affidavit by the child's mother, who asserts that she contacted a number of private schools for the visually impaired, the orthopedically impaired, and those with other impairments. She further asserted that none of the private schools, at least some of which have been approved by the State Education Department as schools for children with disabilities, was appropriate for her daughter. On August 8, 1995, respondents enrolled the child in the Cooke Foundation for Special Education, which placed the child in a classroom which the Cooke Foundation rented in Our Lady of Pompeii Elementary School, in New York City. The child has remained in that placement, at respondents' expense. The record reveals that the annual tuition for that placement is $19,895. The tuition charge does not include the cost for an individual aide or the related services which the CSE had recommended for the child, some of which have been provided at respondents' expense.

        At respondents' request, an impartial hearing was held on December 5, 1995. Respondents requested that the hearing officer direct the board of education to reimburse them for their expenditures for the child's tuition, and for the services of a private physical therapist and a private occupational therapist, each of whom had provided consultant services to the staff working with the child in the Cooke Foundation program. They also sought reimbursement for their expenditures for the child's speech/language therapy and educational vision services which were provided in the child's classroom by therapists who were paid by respondents. Respondents also sought to recover the cost of the individual aide's salary, which at the time of the hearing was being borne by the Cooke Foundation.

        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]). 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 conceded at the hearing that it had not met its burden of proof with respect to the first Burlington criterion for reimbursement, i.e., the appropriateness of the services which it offered the child for the 1995-96 school year.

        In a decision which was rendered on January 10, 1996, the hearing officer found that the parents had met their burden of proof with respect to establishing that the special education services which were provided by the Cooke Foundation were appropriate to meet the needs of the child. He noted the child had been placed in a self-contained class with a very low student to teacher ratio, and that the two other youngsters in her class were of similar age and abilities. The hearing officer also noted that the child was receiving instruction in academic and independent living skills, and credited the testimony of the child's teacher and her mother that the child had made progress while enrolled in the Cooke Foundation program. Therefore, the parents prevailed with respect to the second Burlington criteria, i.e., whether the services selected by the parents were appropriate. At the hearing, the hearing officer noted that the cost of the services selected by the parents would be considered in determining whether the parents satisfied the third Burlingtoncriterion, i.e. whether equitable considerations supported their claim (see also Application of a Child with a Disability, Appeal No. 96-8). He noted that the sum of $19,895 for tuition was comparable to that charged by approved private schools in New York City, but that the cost of the aide and the child's related services would far exceed that amount. The hearing officer found that since the CSE had recommended that the child receive each of the services, the board of education should be required to either provide them, or reimburse others for providing them. However, he limited the amount of reimbursement to the maximum amounts which the board of education would have paid, if it had contracted for the services, from the beginning of the 1995-96 school year until such time as the board began providing those services. He also ordered the board of education to issue "RSAs", which are authorizations to provide those services prospectively, at the expense of the board of education. The hearing officer ordered the board of education to reimburse the parents for their tuition expenditures, upon their submission of proof of those expenditures.

        The board of education contends that the parents did not meet their burden of proof with regard to the appropriateness of the services provided by the Cooke Foundation. It asserts that the record reveals that the child has not received all of the related services which the CSE recommended, and it argues that it was the Cooke Foundation's responsibility to ensure that the child received those services. At the hearing in this proceeding, Director of Programs for the Cooke Foundation testified that as a result of delays in petitioner's process of selecting approved service providers, a physical therapist had only recently been assigned to provide services to the child, and an occupational therapist was about to begin serving the child. In the interim since the start of school in September, 1995, the child's private physical therapist and occupational therapist had come to the child's school to provide consultant services to the school staff working with the child. The Director of Programs also testified that there was little prospect of a speech/language therapist or a vision therapist being assigned through petitioner's program of approving providers to serve children who attend private schools, and that the child's private speech/language therapist and her vision therapist were providing their services to the child in the classroom. The child's mother testified that respondents had paid for the vision therapist to provide 90 minutes of services per week, and for the speech/language therapist to provide 60 minutes of services per week, as called for in the child's IEP.

        I find that the board of education's argument is without merit. I note that the board's representative at the hearing conceded that children among the HHVI population frequently needed services which were not provided by the private schools in which they were enrolled, and that petitioner typically paid for those services. The child's teacher in the private program testified that the child was making progress towards achieving her IEP annual goals. She explained that language was becoming more meaningful to the child, and that the child was engaging in more pragmatic speech. The teacher testified that the child's ability to communicate her wants and needs had improved. She described the activities which occurred in her classroom. Those activities included pre-reading, pre-writing, arithmetic (identifying numbers and shapes), science, and independent living skills. Her description of those activities, and her opinion about the child's progress towards the achievement of her IEP goals have not been refuted. I also note that the teacher described the interaction which occurs between respondents' child and non-disabled children in the private school, who come to the child's classroom to eat lunch with her. Therefore, I find that respondents have met their burden of proof with regard to the appropriateness of the services provided to the child by the Cooke Foundation for Special Education, in the least restrictive environment for the child.

        The board of education challenges the hearing officer's finding that equitable considerations supported the parents' claim for reimbursement. It argues that the total cost of the child's tuition and related service fees is far in excess of the prevailing rate at other private schools which serve children who have needs similar to those of respondents' daughter. In this decision, the cost of the child's individual aide and the cost of her related services will be discussed separately because the parties have addressed them separately. However, it should be noted that the individual aide is a related service, as petitioner's CSE indicated on the child's IEP.

        At the hearing officer's request, the parties submitted brief statements about the cost of the child's education, after the hearing had concluded. The board of education estimated that the cost of the child's related services, and the salary of the child's individual aide would be $62,400. This cost, when added to the cost of the child's tuition ($19,895.), would result in a total cost of $82,295. The board of education asserted that the cost of providing the child with all of her IEP services at an approved private school would be $32,837. Respondents asserted that the board of education's cost estimate had been erroneously premised upon the belief that the child was to receive nine hours per week of related services, when in fact she was to receive four and one-half hours per week of related services. They also asserted that the board's estimated cost of $30 per hour for an individual aide was excessive, and that the services of an aide could be obtained for $15 per hour. It should be noted that at the hearing, the private facility's representative testified that the cost of the child's aide was $20 per hour.

        In his decision, the hearing officer found that the sum of $19,895 for tuition at the Cooke Foundation for Special Education was comparable to the sum charged by other private schools. Petitioner now asserts that the tuition charged by the Cooke Foundation is more than double the tuition charged for a student of similar needs and services. It offers a revised estimate of $66,185 for the cost of the child's educational program, and alleges that the child's needs could have been met in the program of the United Cerebral Palsy (UCP), in a class of nine children with a teacher and three aides, for the sum of $32,837. It further alleges that the cost of instruction, an aide, and related services in its specialized instructional environment - I (SIE-I) program, which has a child to adult ratio of 6:1 + 2, would be $39,025.

        Respondents assert that the UCP rate is illusory because it does not include the cost of either individual vision therapy, or an individual aide. They have submitted an affidavit by the Director of Programs for the Cooke Foundation for Special Education. The Director asserts that the board's estimates are erroneously based upon the assumption that the child will receive services for 40 weeks, when in fact she will receive services for only 36 weeks, and that an aide would cost $30 per hour. She also asserts that the board's assumption that related service providers will receive $45 per session is fallacious, because occupational therapists and physical therapists receive $32 per session, and a vision therapist receives $37.50 per session. She alleges that the cost of the child's program at the Cooke Foundation is in fact comparable to that charged by other facilities, for the same amount of services.

        Upon review of the record, I find that there is no basis for annulling the hearing officer's findings, or his order requiring reimbursement for the sums which respondents have spent for tuition and related services for the child. Petitioner has not demonstrated that the cost of the child's tuition, exclusive of the cost of her related services and her individual aide, is unreasonably excessive. At the rate of $20 per hour, for six hours per day, over 36 weeks, the aide in the child's private facility would cost approximately $21,600. Petitioner estimates that an aide in its SIE-I program would cost approximately $16,000 per year. I am not persuaded that the difference is excessive. With regard to the cost of the related services provided to the child, I note that the hearing officer limited the amount of reimbursement to the amount the board of education would have paid if it had contracted for those services.

        Finally, I note that respondents have raised an issue in their answer which was not raised at the hearing. They assert that they have paid the Cooke Foundation $11,850, and that they owe the remaining $8,045 for the child's tuition. They argue that they should not be required to pay the private facility, and thereafter be reimbursed by the board of education. They ask that the board of education be directed to pay the Cooke Foundation directly for the remaining balance of their child's tuition. They argue that the Supreme Court in its Burlington decision explicitly noted that in an appropriate case a court could issue a "prospective injunction" requiring a school district to implement, at public expense, a child's IEP in a private school. Since respondents have not appealed from the hearing officer's decision which limited their recovery to reimbursement for the sums which they have expended, or will expend, for tuition and related services (including the cost of the aide) and since petitioner does not have the opportunity to respond to their request (see 8 NYCRR 279.6), I will not reach that issue.

THE APPEAL IS DISMISSED.