96-018

        Petitioner appeals from the decision of an impartial hearing officer which dismissed his claim that respondent's committee on special education (CSE) had violated his due process rights by conducting an annual review of his child in the absence of petitioner or his wife, and which denied his claim that respondent should bear the expense of the child's enrollment in a private school for the 1995-96 school year. The appeal must be sustained.

        The record which is before me contains little information about the child, or her educational needs, because the parties chose to present the matter to the hearing officer as an issue of law, and did not present any testimony (cf. Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35). Petitioner has annexed a copy of the decision of another hearing officer in a prior proceeding to his petition in this appeal. The decision in the prior proceeding reveals that petitioner's daughter, who is seven years old, was classified by the CSE as emotionally disturbed, on June 25, 1994. The CSE recommended that the child be enrolled in respondent's specialized instructional environment VII-A (SIE-VII-A) program, with counseling and occupational therapy to be provided to her. However, respondent was reportedly unable to find space for the child in its SIE-VII-A program.

        In August, 1994, respondent reportedly issued a "Nickerson letter" to the child's parents. 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]). However, petitioner enrolled his daughter in the West End Day School, for the 1994-95 school year. The West End Day School has not been approved by the State Education Department as a school for children with disabilities.

        In March, 1995, a hearing was held at the request of the child's parents, who sought an order requiring respondent to reimburse them for the cost of their daughter's tuition in the West End Day School. 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 private school has not been approved by the State Education Department is not dispositive of a parent's claim, but the parent must show that the services which the child received appropriately met the child's special education needs (Florence County School District Four et al. v. Carter by Carter, ____ U.S. ____, 114 S. Ct. 361 [1993]). The hearing officer found that the private school had provided the services which had been called for in the child's individualized education program (IEP), and that the private school's tuition charges were reasonable. On April 28, 1995, she directed respondent to reimburse the child's parents in the amount of $15,000.

        The present proceeding arises from the CSE's annual review of the child at the end of the 1994-95 school year. In a notice which was dated June 7, 1995, the CSE chairperson informed the child's parents that the CSE would conduct its annual review at 9:00 a.m. on June 26, 1995. The notice invited the parents to attend the meeting, or to call the CSE to reschedule the meeting. The notice also asked the parents to "...indicate your intention at the bottom of this letter", and return that portion of the notice to the CSE. The portion of the notice which was to be returned included three responses. The first two indicated that the parent did not wish to have an annual review, and that the parent would attend the scheduled annual review, respectively. On June 16, 1995, petitioner put an "x" next to the third option, and annotated his response, which when completed read as follows:

"I cannot attend the annual review meeting scheduled for my child, please contact me to arrange an alternate meeting date or a telephone conference call. We will be out of town and cannot attend via phone conference" (Exhibit A).

        At the brief hearing which was held in this proceeding, the parties stipulated that upon receipt of the form with petitioner's annotation, a representative of the CSE spoke with petitioner's wife, who asked that the CSE meeting be deferred until July, 1995. The CSE representative refused the request for an adjournment, because of a concern that the child's private school teacher might not be available to meet with the CSE in July, 1995. The CSE met, as scheduled, on June 26, 1995. Neither petitioner nor his wife attended. They were reportedly in California on the day of the meeting. The CSE recommended that the child remain classified as emotionally disturbed and that she be enrolled in the SIE-VII-A program for the 1995-96 school year. It also recommended that the girl receive individual counseling twice per week, and small group counseling once per week. The CSE further recommended that the child receive individual occupational therapy twice per week. In a written notice which was dated July 24, 1995, the placement officer of Community School District No. 3 advised the parents of the CSE's recommendation from its June 26, 1995 meeting, and offered the child a placement in the SIE-VII-A program in respondent's P. 94.

        On August 8, 1995, the child's parents requested a hearing. The hearing was not held until December 14, 1995. The record does not reveal the reason for the delay, which has not been challenged by petitioner. Petitioner did not attend the hearing, but his wife did. No sworn testimony was taken. The parties stipulated to certain facts, as outlined above The parties agreed that the hearing officer should consider the issue of the validity of holding a CSE meeting without the parents, before they presented any evidence with respect to the appropriateness of the CSE's recommendation.

        In his decision which was dated January 20, 1996, the hearing officer found that the law did not require that a child's parents attend a CSE, in order for the CSE to conduct its annual review. He hypothesized that it was unlikely that a representative of the West End Day School would have been available to attend a CSE meeting, if the annual review had been postponed until July, 1995, and he opined that a CSE could not legally act if a representative of the child's private school did not attend the CSE's annual review. The hearing officer found that the child's parents had not presented any evidence of their inability to attend the annual review on June 26, 1995, or to participate by telephone in the review. He held that the parents had not been denied their due process rights, and denied their claim for tuition reimbursement.

        Petitioner argues that respondent denied him the procedural right afforded to him by Federal and State law to participate in the development of his daughter's IEP for the 1995-96 school year, by refusing to make any accommodation with him about the date of the CSE's annual review. Petitioner contends that since a CSE may not act in the absence of one of its mandatory members (see e.g. Application of a Child with a Disability, Appeal No. 94-16), the IEP which the CSE prepared on June 26, 1995 should be invalidated because neither parent attended the meeting. He also contends that it was unreasonable for the CSE not to accommodate his request that the CSE reschedule its annual review.

        Federal regulation requires that CSE meetings be scheduled at mutually agreed upon times and places (34 CFR 300.345 [a] [2]). The Federal regulation encourages, but does not require, parental attendance at CSE meetings. Under certain circumstances, a CSE may meet without the parents of a child (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 286; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-45). The relevant portions of the Federal regulation provide that:

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

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

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

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

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

        A CSE's action may be set aside, when the child's parents did not attend the CSE meeting and the CSE has not documented its attempts to arrange for a mutually convenient date and place for a meeting, or to provide for the parents' alternate means of participation (Application of a Child with a Disability, Appeal No. 95-8; Application of a Child Suspected of Having a Disability, Appeal No. 95-27). The limited record which is before me in this appeal reveals that the CSE representative spoke with petitioner's wife on the telephone in the interval between petitioner's written request for an alternate meeting date and the CSE's annual review on June 26, 1995. Petitioner's wife reportedly asked that the annual review be deferred until July, 1995. The CSE representative reportedly told her that the annual review could not be deferred, but that she and petitioner could ask the CSE to reconvene, if they disagreed with the recommendation which the CSE was to make on June 26, 1995. There is no evidence that the child's parents asked the CSE to reconvene. However, that is not dispositive of the matter.

        The possibility that a CSE may be rescheduled to another date, at the request of the parent, is explicit in the third option given to parents in respondent's notice of the proposed annual review, and implicit in the regulatory requirement that meetings be scheduled at mutually agreed upon times and places. In his petition, petitioner alleges that he and his wife were in California, on June 26, 1995, and that they could not reasonably be expected to participate by telephone in a 9:00 a.m. (6:00 a.m. local time) CSE meeting. Although respondent suggests in its answer that the child's parents " ... never desired to reach a compromise that would allow them to participate [in the annual review]," I must note that there is no evidence in the record of bad faith by the parents in simply requesting that the annual review be held on another day.

        The remaining question is whether the child's annual review could have been rescheduled to a mutually convenient time. Upon the record before me, I find that there is no basis upon which I could conclude, as the hearing officer apparently did, that the annual review could not have been rescheduled. The hearing officer's supposition that the annual review could not have been held in July is not supported by any established fact. It should be noted that Federal regulation requires that a CSE ensure that a representative of the private school in which a child is enrolled attend, or otherwise participate in, CSE meetings about the child, when the school district has placed the child in that private school (34 CFR 300.348), or the child receives special education or related services from the school district while attending the private school (34 CFR 300.349) In this instance, respondent neither placed the child in the private school, nor did it provide any services to her in that school. Even if I were to assume that respondent was nevertheless obliged to ensure that a representative attend, or otherwise participate, in the annual review, respondent has offered nothing to support its assertion that the review could not have been held in July, 1995. I must note that a representative of the private school did attend the June 26, 1995 annual review.

        Respondent was obligated to ensure that the "child's teacher", as that term is defined in State statute and Federal regulation, attended the child's annual review (Section 4402 [1][b][1] of the Education Law and 34 CFR 300.344 [a][2]). While respondent asserts that it has no means of compelling a private school teacher to attend a CSE meeting, I note that it could have complied with its statutory and regulatory obligation by designating any teacher qualified to teach in the area of the child's disability to serve as the teacher member of the CSE (Application of a Child with a Disability, Appeal No. 96-8). Parenthetically, I must note that respondent's concern that its CSE could be precluded from making a timely recommendation for a child if a child's parents or the private school teacher would not meet within a reasonable period of time must be viewed in the context of the three criteria for tuition reimbursement under the Burlington decision. One of those criteria is that equitable considerations support the parents' claim.

        I find that respondent has failed to demonstrate that it complied with its legal obligation to schedule its CSE's annual review of petitioner's daughter at a mutually convenient time. The appropriate relief to be granted is an order remanding this matter back to the CSE (Application of a Child with a Disability, Appeal No. 95-8; Application of a Child Suspected of Having a Disability, Appeal No. 95-27. While I am aware that the 1995-96 school year will shortly end, there is no basis in the limited record before me for determining whether petitioner may be entitled to tuition reimbursement for the 1995-96 school year pursuant to the Carter decision.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent's CSE shall reconvene at a time and place which is mutually convenient for it and petitioners to review the child's educational program, and to make a recommendation for the 1995-96 school year.