96-039

         Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his son's tuition at a private school during the 1995-96 school year. The hearing officer found that respondent had failed to demonstrate that it had offered the student an appropriate education program for that school year, but that petitioner had failed to meet his burden of proving that the private school had addressed his son's special education needs in the least restrictive environment. The appeal must be dismissed.

        Initially, I note that the petition in this appeal was served upon respondent on June 18, 1996. On July 3, 1996, the Office of State Review advised respondent that it was in default because its answer had not been filed within the prescribed period of time. Respondent was advised that if its answer was received before my decision was rendered, I might consider the contents of its answer. However, respondent was expressly advised to indicate in its answer the reasons for its late submission. The answer, which the Office of State Review received on November 6, 1996, does not set forth any explanation for its delay. In an accompanying letter, respondent's attorney merely indicates that there was confusion because petitioner brought two appeals relating to his two sons. Under the circumstances, I will not consider respondent's answer.

        Petitioner's son is 15 years old, and has been classified as learning disabled. His classification is not disputed. During the 1995-96 school year, this child and his twin brother, whose placement was the subject of Application of a Child with a Disability, Appeal No. 96-40, were unilaterally placed by petitioner in the Eagle Hill School in Greenwich, Connecticut. Petitioner initiated this proceeding on November 29, 1995, by requesting that an impartial hearing be held to review the recommendation which respondent's committee on special education (CSE) had made on October 18, 1995. The CSE recommended that the student receive resource room services five times per week, and counseling in a group of no more than three students, once per week, while enrolled in a regular education high school program for the 1995-96 school year.

        The hearing in this proceeding began on December 8, 1995, and concluded on February 13, 1996. Although this child attended the Eagle Hill School on a residential basis, petitioner did not seek reimbursement for the student's room and board at the private school. His attorney explained at the hearing that petitioner believed that it was beneficial for his son to remain at the Eagle Hill School for four nights per week during the dissolution of petitioner's marriage, but did not claim that a residential placement was educationally necessary. Petitioner asked the hearing officer to find that respondent should reimburse him for the cost of the child's tuition in the Eagle Hill 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 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, 510 U.S. 7 [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]).

        In her decision which was rendered on May 6, 1996, the hearing officer found that respondent could not meet its burden of proving that it had offered an appropriate educational placement to the child because the CSE's recommendation was fatally flawed by the absence of some of the required members of the CSE. Neither the child's teacher nor a certified special education teacher had participated in the CSE meeting (cf. 34 CFR 300.344 [a][1] and [2]). The hearing officer further found that the CSE's evaluation of the child was defective because the child had not been observed in his class (cf. 8 NYCRR 200.4 [b][4][viii]). In addition, the hearing officer found that petitioner had not been afforded a meaningful opportunity to participate in the CSE meeting because the meeting had not been scheduled at a mutually agreed upon time (34 CFR 300.345 [a][2]). The hearing officer also found that petitioner had not met his burden of proof with regard to the appropriateness of the private school's educational program for his son because he had failed to demonstrate that the boy's special education needs were so severe that they could only have been met in the restrictive setting of a full-time special education program. Parenthetically, the hearing officer noted that equitable considerations did not "stand in the way" of petitioner's request for tuition reimbursement.

        Petitioner contends that the hearing officer erred by not weighing respondent's procedural failures, in evaluating the child and conducting a CSE meeting, when she considered whether petitioner had met his burden of proof with regard to the child's placement in the Eagle Hill School. He further contends that the hearing officer ignored the testimony of the child's psychiatrist with regard to his son's need for a full-time special education program, and argues that the Eagle Hill School was not an overly restrictive placement for the boy.

        The record reveals that the child attended a public school in Chappaqua, New York for kindergarten and the first grade. He repeated the first grade in respondent's P.S. 24, where he was reportedly identified as a child with a disability. Resource room services were provided to him for one year. In the child's social history, petitioner reported that the child's educational performance had not improved much as a result of his receipt of resource room services. The child remained in P.S. 24 until the fifth grade. Although the child's elementary school transcript is not included in the record, I note that a private psychologist who evaluated the child in 1994 reported that the child's reading skills had been at the 95th percentile, and his math skills were at or above the 97th percentile when he was in the third grade. His reading and mathematics skills were reported to be at the 73rd and 95th percentiles, respectively, when he applied for admission to the fifth grade of the private Hackley School. At or about that time, petitioner and his wife separated, and the child and his twin brother began to live with petitioner.

        Except for the private psychologist's report, there is no information in the record about the child's academic performance while in the Hackley School. The psychologist evaluated the child in December, 1994 when the child was in the seventh grade of the Hackley School. In her report, the psychologist asserted that the child's recent report card indicated that he had received grades of B and C, but that he had difficulty following instructions, and had manifested other signs of an attention deficit disorder (ADD). However, I note that the psychologist also reported that the child had achieved an index score of 106 (66th percentile) when she tested his cognitive skills. She reported that the child had achieved a verbal IQ score of 93, a performance IQ score of 73, and a full scale IQ score of 82. The psychologist cautioned that those scores were minimal estimates of the child's potential. She reported that the child's scores had been adversely affected by the fast speed at which he had attempted to perform tasks. She also noted that the child had exhibited signs of perceptual difficulties, e.g., figure-ground problems. On a test of his written language skills, the child demonstrated strong thematic maturity, but relatively weak vocabulary, spelling and stylistic skills. The psychologist recommended that a physician be consulted to assist the child with his ADD, and that the child be placed in a school which could meet his academic and emotional needs.

        In a letter to the CSE chairperson of Community School District 2, which was dated February 21, 1995, petitioner referred his son for an evaluation and possible special education placement. A school social worker reportedly attempted to ascertain the child's residence, since respondent's records indicated that the boy had previously been a resident of Community School District 10. By letter dated March 8, 1995, the social worker asked petitioner to indicate where the child lived, and where he went to school. Although petitioner responded to the social worker in a letter dated March 21, 1995, the CSE's representative testified at the hearing that the CSE had no record of having received petitioner's letter. There was no further contact between petitioner and the CSE until June 30, 1995, when petitioner sent another letter to the school social worker to inquire about the status of the child's referral.

        The child was evaluated by one of respondent's school psychologists on September 29, 1995. The school psychologist described the child as somewhat resistant and hostile at first, and anxious about his performance throughout the evaluation. He achieved a verbal IQ score of 100, a performance IQ score of 78, and a full scale IQ score of 88. The school psychologist suggested that the child's intense anger and inner conflict about whether to succeed or fail had pervaded his capacity to perform. While noting that the child did manifest attentional deficits as the private psychologist had reported, the school psychologist reported that the child had not evidenced any sign of a spatial-visual processing difficulty. However, the child's attention to detail, short-term visual memory, and synthesis of part-whole relationships were reported to be at the bottom of the low average range. His ability to sequence and understand social situations was in the borderline range. She described the child as having a somewhat tuned-out, highly self-absorbed quality, which was reflected in his performance in the social area. Projective testing revealed that the child was an immature adolescent, who was struggling to succeed or fail. The school psychologist reported that the child's anger and limited ability to take responsibility for his behavior interfered with his ability to attend and to allow himself to do well.

        The child also received an educational evaluation on September 29, 1995. At that time, he was enrolled in the ninth grade at the Eagle Hill School. On the Kaufman Test of Educational Achievement, the boy received grade equivalent scores of 7.5 in reading decoding, 7.3 in reading comprehension, 9.0 in mathematical computation, 10.8 in mathematical applications, and 7.1 in spelling. The educational evaluator reported that the child was cooperative, but restless, during the evaluation. She further reported that the child had excellent expressive language skills, but that his mechanical and expressive writing skills appeared to be immature, i.e., his grammar and spelling skills were below expectations for the child's age level. She noted that the child had difficulty with syllabication when reading multi-syllable words, and that he substituted letters or sounds when reading unfamiliar words. Although the child could answer literal questions about what he had read, he had some difficulty answering questions which required him to draw inferences.

        In addition to the child's educational and psychological evaluations, the CSE also had a written statement by the child's psychiatrist who indicated that the child had been diagnosed as having an attention deficit hyperactivity disorder (ADHD) in December, 1994. The psychiatrist further indicated that at least partial success had been achieved in ameliorating the child's ADHD symptoms with the use of medication. He opined that the child had presumptive substrate of static encephalopathy, which he explained at the hearing in this proceeding was a mild, non-progressive abnormality of the central nervous system. He also opined that the child was affected by psychostressors related to his parents' pending divorce and child custody proceeding. He indicated that the child should begin to use another medication, and expressed his belief that the child's enrollment in the Eagle Hill School would be beneficial.

        By letter dated October 11, 1995, petitioner was notified that the CSE would meet with him on October 18, 1995. One day before the meeting, petitioner requested that the meeting be rescheduled to another day. However, the CSE met on October 18, 1995. Petitioner did not attend the meeting. As noted above, the CSE recommended that the child be classified as learning disabled, and that he receive resource room services five times per week and small group counseling once per week. It also recommended that time limits be waived during the child's tests, and that he be tested in a special location.

        The hearing officer's findings with regard to the CSE's failure to observe the child in his classroom as part of its evaluation, as well as its failure to schedule its meeting at a mutually convenient time and to have each of the required members present at the meeting, are not subject to review in this proceeding because they are not challenged (See 34 CFR 300.509). Therefore, petitioner has prevailed with respect to the first of the three criteria for tuition reimbursement under the Burlington decision.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Eagle Hill School during the 1995-96 school year (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 that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational 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).

        The pivotal issue in this appeal is whether the child required full-time special education for primary instruction during the 1995-96 school year, as petitioner contends, or whether his special education needs could have been met with part-time supplemental special education instruction, as the CSE's representative contended at the hearing. Petitioner relies upon the testimony by Dr. Williams, the child's psychiatrist, who had initially seen the child in August, 1995, and had seen him again in December, 1995. Dr. Williams opined that merely providing resource room services to the child would not meet his needs because he had ADHD and emotional turmoil in addition to his specific learning disability. He explained that the child was impulsive, restless, and oppositional, and that he was also discouraged and depressed. Dr. Williams testified that the child had been only marginally functional, and had required special psychiatric intervention while in a prior private special education setting. I must note for the record that there is no evidence to support Dr. Williams' apparent belief that the Hackley School provided special education to the child. As noted above, there is very little evidence of the child's academic performance at the Hackley School in the record which is before me. There is a brief reference in the child's social history to the fact that the child reportedly had not been invited to return to the Hackley School for the 1995-96 school year. In any event, Dr. Williams also premised his opinion upon the fact that the Eagle Hill School had reported that the child had made significant progress academically and emotionally in the Fall of 1995. He also opined that mainstreaming was not appropriate for the child at that time.

        Mr. Robert Breakell, the child's educational adviser in the Eagle Hill School, also testified at the hearing in this proceeding. He testified that the Eagle Hill School provided instruction to 184 students who were learning disabled. He opined that the child was properly classified as learning disabled, and added that the child's impulsiveness affected his ability to maintain himself consistently in an organized manner. Mr. Breakell testified that the child attended six classes each day: study skills, transitional grammar and composition, biology, mathematics, literature, and a tutorial class. There were eleven children in each class, except the mathematics and the tutorial classes which had five and four children, respectively. Mr. Breakell opined that the child required small group instruction, as well as individual assistance from time to time to clarify teachers' directions and to process work in his classes. He also opined that the Eagle Hill School was meeting the child's needs. While he opined that the child had "come a long way" in his organizational and writing skills, Mr. Breakell did not otherwise describe the child's achievement. I must note that there is no written report of the child's achievement at the Eagle Hill School in the record which is before me.

        I find that the child has mild deficits in his reading and writing skills, and that with the exception of the first grade when he reportedly received resource room services, he did not have the benefit of any special education services prior to his entry into the Eagle Hill School. The record is devoid of adequate information about his educational performance prior to his entry into that private school. Under those circumstances, I further find that Dr. Williams' opinion that the child required a full-time special education placement without any mainstreaming is untenable. Although Dr. Williams expressed significant concern about the child's emotional needs, I note that there is no evidence that the Eagle Hill School provided the child with counseling or otherwise addressed those needs. Therefore, I find that petitioner has not met its burden of proof with regard to the appropriateness of the private school's services for his son.

THE APPEAL IS DISMISSED.