96-017

         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 her expenditures for her daughter's tuition at a private school during the 1993-94 and 1994-95 school years. The hearing officer's decision was rendered in a hearing which was held pursuant to my decision in a prior proceeding (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-26). The appeal must be sustained in part.

        In October, 1992, the child was referred by her father to the committee on special education (CSE) of Community School District No. 2. In December, 1992, the CSE recommended that the child be classified as speech impaired/learning disabled. She reportedly had deficits in her expressive and receptive language skills, and an articulation disorder. The child also evidenced a delay in reading readiness, as well as distractibility and impulsivity. Her classification is not in dispute in this proceeding. The CSE recommended that the child be enrolled in petitioner's modified instructional service-III (MIS-III) special education program, and that she receive individual speech/language therapy twice per week.

        The board of education reportedly did not offer a placement to the child until May 10, 1993, when it offered a placement in P.S. 158. In a letter to the CSE, dated May 17, 1993, the child's mother indicated that she and her husband had decided to enroll the child in the Stephen Gaynor School, in September, 1993. She requested that the board of education provide transportation for the child to the private school. On June 1, 1993, the child's mother signed a copy of petitioner's PSF-1 notice, in which she indicated her intention to enroll the child in the Stephen Gaynor School, at her expense, and requested that transportation be provided pursuant to the "Assembly bill" (see Section 4402 [4][d] of the Education Law). The child attended the Stephen Gaynor School, at her parents' expense, during the 1993-94 and 1994-95 school years. The board of education provided transportation to the child during both school years.

        The Stephen Gaynor School is a private school for children with disabilities located in New York City. It has not been approved by the New York State Education Department as a school for children with disabilities, for the purpose of providing State reimbursement to school districts for the tuition costs of children placed in the school. At the time when the child was initially placed in the Stephen Gaynor School, her parents could not seek tuition reimbursement from the board of education because the private school was unapproved (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3d Dept., 1978]).

        On or about March 1, 1995, respondent requested that an impartial hearing be held. The hearing was held on March 17, 1995. At the hearing, the assistant chairperson of the CSE acknowledged that petitioner had not offered an appropriate and timely placement to the child for the 1994-95 school year. He also acknowledged that he could not establish that a placement had been offered to the child for the 1993-94 school year, although the board of education has offered proof of its placement offer for the 1993-94 school year in the subsequent hearing which is the subject of this appeal.

        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 no longer 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]).

        On April 13, 1995, the impartial hearing officer ordered the board of education to reimburse respondent for the child's tuition costs from November, 1993 (when the Carter decision was rendered) through the remainder of the 1993-94 school year, and for all of the 1994-95 school year. The board of education then appealed from the hearing officer's decision.

        In my decision in Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-26, which was rendered on July 3, 1995, I noted that the record which had been developed at the hearing did not include any testimony, and only one document, with regard to the child's educational program at the private school. I found that the child's individualized education program (IEP) which the CSE had prepared in December, 1992, afforded a basis for finding that the child had special education needs, as of September, 1993, but that there was no evidence of the manner in which the private school had addressed the child's special education needs. Accordingly, I found that there was no basis in the record for the hearing officer's determination that the private school provided an educational program designed to meet the child's special education needs during the 1993-94 and 1994-95 school years.

        The other issue which was presented in the prior appeal in this matter was whether respondent's claim for tuition reimbursement for the 1993-94 school year was untimely, because she had not requested that an impartial hearing be held until well after the school year had ended. I found that the record which was before me was also inadequate to afford a basis for determining whether respondent's claim should be barred because of the equitable doctrine of laches. I also found that neither party to the proceeding had been accorded the due process to which they were entitled as a matter of Federal and State law because of the inadequate hearing which had been held. I found that they were entitled to another opportunity to fully present their respective positions with respect to the appropriateness of the private school's educational program for the child, as well as the equities involved in respondent's claim for tuition reimbursement for the 1993-94 and the 1994-95 school years, and directed that petitioner schedule a hearing to resolve both those issues.

        The hearing in the present proceeding began on October 20, 1995, and ended on January 19, 1996. It was conducted by the hearing officer who had conducted the prior hearing. The board of education called the assistant chairperson of the CSE as a witness to describe the interaction between the child's parents and the CSE, and to describe the extent to which the parents had been notified of their due process rights. The record reveals that on or about October 30, 1992, the CSE reportedly sent a Notice of Referral to the parents, which indicated that they would be contacted by a social worker to discuss their child's evaluation by the CSE, and to obtain their consent to having the child evaluated. The Notice of Referral also indicated that:

"During your meeting with the social worker the purposes of the evaluation(s) will be explained, a copy of the booklet, Special Education: A Guide for Parents will be given to you, and your rights under the law will be explained." (Exhibit 3)

        On November 7, 1992, both of the child's parents signed the requisite consent form for the child's evaluation. The consent form indicated, in material part, that:

"I have received a copy of the booklet, Special Education: A Guide for Parents, and my due process rights have been explained to me." (Exhibit 4)

        It should be noted that the booklet, Special Education: A Guide for Parents, while not introduced into the record of this case, sets forth a description of parental due process rights in connection with the identification, classification, and placement of children with disabilities, including the reasons for which parents may ask for an impartial hearing (Application of a Child with a Disability, Appeal No 95-83).

        The social worker who interviewed the child's parents on November 7, 1992 did not testify. A copy of her report, much of which was illegible, was introduced into evidence. In the report, the social worker indicated that: "They [the parents] understand their due process rights and will cooperate ... " She did not indicate whether she had given a copy of the booklet to the parents. Respondent testified that the social worker did not explain parental due process rights to her, and that she could not recall receiving a copy of the booklet. She acknowledged that she had signed the evaluation consent form, but asserted that she had not read the form.

        Respondent testified that she had expected petitioner to offer the child a placement for the remainder of the 1992-93 school year, within a reasonable time after the CSE meeting in December, 1992. When no placement was offered by petitioner, respondent asked the attorney who is representing her in this proceeding for assistance. By letter dated April 28, 1993, the attorney asked the CSE chairperson to advise him on the status of the child's case. On May 10, 1993, petitioner's placement officer sent a Final Notice of Recommendation to the child's parents. The Final Notice of Recommendation did not indicate when the placement was to be effective. At the hearing, petitioner's attorney asserted that the placement offer was intended for the 1993-94 school year. Respondent testified that she rejected petitioner's placement offer because she believed the offer was only a "token gesture." She acknowledged that she had made arrangements, and paid a deposit, for the child's enrollment in the Stephen Gaynor School for the 1993-94 school year, prior to receiving the Final Notice of Recommendation.

        The Final Notice of Recommendation also included the following due process information:

"If you do not agree with the recommendation, you have the right to request an Impartial Hearing by writing to the Board of Education, Impartial Hearing Office, Room 118, 110 Livingston Street, Brooklyn, NY 11201. For a full description of your right to appeal, please refer to the booklet, Special Education: A Guide for Parents. If you do not have a booklet, you can get one from us." (Exhibit 16)

        Respondent testified that she was advised by the private school of her right to obtain transportation for the child to that school. She also testified that she had written to petitioner about the child's placement for the 1994-95 school year, but the only response which she had received pertained to the child's transportation to the Stephen Gaynor School for that school year. Respondent further testified that she did not discover the possibility of seeking tuition reimbursement, until her attorney spoke at a meeting at the Stephen Gaynor School in February, 1995. Shortly after that meeting, she retained the attorney, and requested an impartial hearing.

        The child's teachers in the Stephen Gaynor School testified about the child's program of instruction, and her progress, during the 1993-94 and 1994-95 school years. In addition, respondent entered into evidence approximately 80 pages of progress reports prepared by the private school. The child's teacher during the 1993-94 school year described the child as very perseverative, oppositional, and defensive. The teacher testified that the child was difficult to teach, and had difficulty working in groups, until April, 1993, when she began taking a medication to control her distractibility. The teacher reported that thereafter, the child was less defensive, and had more self-esteem. She testified that the child's academic performance also significantly improved during the latter portion of the 1993-94 school year. The teacher testified that the child was essentially a non-reader when she entered the Stephen Gaynor School in September, 1993. By the end of the 1993-94 school year, the child was reportedly at the primary level in reading decoding and comprehension. The child received speech/language therapy from another teacher, who reported that the child's inferencing and pragmatic language skills had improved during the 1993-94 school year. The child's mathematic skills were reportedly at or about the second grade level at the beginning of the 1993-94 school year, and at the third grade level by the end of the school year. The child's primary teacher during the 1993-94 school year testified that the child had received very structured instruction, using the Orton-Gillingham method for reading, and behavior modification techniques to improve her behavior. The speech/language teacher's report indicated that a Dolch list had been used to improve the child's sight word vocabulary.

        The child's teacher for the 1994-95 school year, who had observed her in class during the preceding school year, testified that the child was much less oppositional, and that her self-esteem had improved when she entered school in September, 1994. The child was instructed in groups of three or four for reading, two for mathematics, and three for spelling. She opined that the child had made some progress during the 1994-95 school year, particularly in mathematics. She acknowledged that the child's progress in reading and spelling had been less than it was for mathematics. By the end of the 1994-95 school year, the child was reportedly still reading at a first grade level, spelling at a second grade level, and doing mathematics at the end of third grade level. The teacher opined that although the child had made academic and social/emotional progress, she nevertheless continued to require full-time special education instruction because of her difficulty with following directions, and processing language.

        The hearing officer rendered his decision on February 14, 1996. He found that the educational program of the Stephen Gaynor School had been appropriate for the child for both the 1993-94 and 1994-95 school years. In support of that finding, he also found that the child had been appropriately grouped for instruction with children of similar needs and abilities, and had benefitted from the instruction which she had received. Accordingly, he found that respondent had prevailed with respect to the second Burlington criterion, i.e., whether the educational services obtained by the parent were appropriate. With respect to the third Burlington criterion, i.e. whether equitable considerations supported respondent's claim for tuition reimbursement for both school years, the hearing officer found in respondent's favor. He found that there was no evidence of what the social worker had reportedly explained to respondent about her due process rights during the child's evaluation in 1992, and that respondent had not been informed of the right to seek tuition reimbursement until shortly before she requested that an impartial hearing be held. He directed petitioner to reimburse respondent for her expenditures for the child's tuition during the 1993-94 and 1994-95 school years.

        In the prior proceeding involving these parties, the board of education acknowledged that it had not met its burden of proof that it had offered an appropriate educational program to the child for either the 1993-94 or 1994-95 school years. The issues to be determined in this proceeding are whether respondent has met her burden of proof with respect to the appropriateness of the services provided by the Stephen Gaynor School, and whether equitable considerations support her claim for tuition reimbursement for both school years. Petitioner challenges the hearing officer's findings with respect to both of these issues.

        The board of education contends that the hearing officer erred by finding the private school's services were appropriate for the child. To the extent that it attempts to compare the private school's program with that of its own MIS-III program, I find that petitioner's argument is without merit because petitioner did not prevail on the issue of the appropriateness of its program. Instead, I have considered the recommendation by a neurologist in the Mount Sinai Medical Center in 1992 (Exhibit 8) that the child be placed in a special education class with a reduced student to teacher ratio, within a small school environment. The neurologist also recommended that the child receive a program of remedial instruction both reading and mathematics. I find that the child received the kind of program which the neurologist had recommended by attending the Stephen Gaynor School during both school years. Petitioner's contention that respondent failed to adduce sufficient evidence of the nature of the instructional program provided by the private school is without merit. I have considered the degree of academic progress which the child made in the 1993-94 and 1994-95 school years, and cannot agree with petitioner's contention that the child failed to make any meaningful progress while in the private school's program. Given the nature of the child's disabilities, I concur with the hearing officer's finding that she derived educational benefit from the instructional program provided by the private school. The benefit which the child derived was attributable, at least in part, to the specialized techniques and small group instruction which she received at the private school. I have considered petitioner's contention that the Stephen Gaynor School was not the least restrictive environment in which the child could have been instructed, and find that it is without merit, as is petitioner's other contention that the child was not suitably grouped for instructional purposes while in the private school. Accordingly, I find that respondent has prevailed with respect to the second Burlington criterion.

        The remaining issue is whether respondent's claim is supported by equitable considerations. I note that petitioner has referred to the four questions which the State Review Officers have posed in other cases involving the timeliness of tuition reimbursement claims (see Application of a Child with a Disability, Appeal No. 95-49). Those questions are as follows. First, whether the parents received adequate notice of their due process rights? Second, when did the parents become aware of, or should have become aware of, their right to seek tuition reimbursement for their child's attendance at a non-approved private school? Third, when did the CSE become aware of, or when should it become aware of, the parents' dissatisfaction with the CSE's recommendation, or failure to make a recommendation? Fourth, did the parents cooperate with the CSE during the period of time in question?

        Petitioner does not contend that respondent failed to cooperate with the CSE. It does contend that respondent was given adequate notice of her due process rights in 1992 because she reportedly received a copy of the booklet, Special Education: A Guide for Parents in November, 1992, and because the social worker reportedly explained the due process rights to her at that time. It also argues that respondent was further apprised of her rights when she received the Final Notice of Recommendation in May, 1993. Petitioner does not challenge respondent's testimony that she did not learn of her right to seek tuition reimbursement until February, 1995, but it argues that the record demonstrates that respondent was aware of her right to obtain transportation for the child, and had consulted an experienced attorney about her child's rights, prior to the start of the 1993-94 school year.

        With respect to her November, 1992 interview with petitioner's social worker, respondent asserts that she signed "whatever was put in front of me", but denies that the social worker explained parental due process rights to her. She acknowledged that she consulted her attorney in April, 1993, but contends that her consultation " ... dealt with the rights of a parent in forcing placement in a State-approved school ... if the school rejects the child ... " Respondent also argues that she placed the child in the Stephen Gaynor School as an act of desperation, only after petitioner had failed to offer a placement and two State-approved private schools had denied admission to the child.

        Upon consideration of the record before me, I find that respondent was adequately apprised of her right to seek a due process hearing, especially in light of the Final Notice of Recommendation which she does not deny that she received. I must also note that at the hearing, respondent acknowledged that she had consulted her attorney about her legal remedies, as a result of petitioner's failure to make a timely recommendation. At the time of her consultation with the attorney and her receipt of the Final Notice of Recommendation, respondent could not have know about remedy of obtaining tuition reimbursement, because that remedy did not exist in New York State. However I find that the fact that respondent was not aware of a particular remedy until February, 1995 is not dispositive of the question of whether equitable considerations support her claim for tuition reimbursement.

        This is another of a series of appeals in which I have noted that the extensive due process provisions of Federal and State law are intended to provide an inexpensive and expeditious method by which a parent can obtain review by an impartial decision maker of a CSE's action, or inaction. The primary purpose of a due process procedure is to provide children and their parents with a mechanism to insure that children receive a free appropriate public education. In order to accomplish this purpose, it is essential the parents promptly notify the CSE of their dissatisfaction with the CSE's recommendation. Prompt notice is necessary to afford the CSE an opportunity to rectify its mistake, if any (Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3rd Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992], Application of a Child with a Disability, Appeal No 95-83; Application of a Child with a Disability, Appeal No 95-86). In this instance, the CSE's omissions were not brought to petitioner's attention until it was too late for petitioner to take corrective action. While I in no way condone the failure of petitioner's CSE to perform its duties as required by Federal and State law, I must note that the boards of education in Bernardsville and Northeast had also failed to meet each of their obligations. I find that the rationale of those decisions is equally applicable in this matter. By her delay, respondent precluded petitioner from rectifying its CSE's mistakes. Therefore, I find that respondent's tuition reimbursement claim for the 1993-94 school year is not supported by equitable considerations.

        Petitioner also contends that equitable considerations do not support respondent's claim for tuition reimbursement for the 1994-95 school year, during which respondent did challenge the CSE's failure to act. I find that there is no merit to petitioner's contention. Accordingly, there is no basis for disturbing the hearing officer's finding with respect to respondent's claim for tuition reimbursement for the 1994-95 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it orders petitioner to reimburse respondent for the cost of the child's tuition during the 1993-94 school year, is hereby annulled.