96-053

       Petitioner appeals from the decision of an impartial hearing officer which denied his request that respondent be ordered to reimburse him for the cost of the physical therapy and occupational therapy which petitioner obtained for his child during the 1995-96 school year. Respondent cross-appeals from the hearing officer's order directing it to reimburse petitioner for the cost of his son's tuition in a private school and the services of an aide for the child in the school. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioner argues that I should disregard respondent's answer, in which its cross-appeal is asserted, because the answer was not served upon his attorney in a timely fashion. State regulation provides that an answer to the petition in an appeal to the State Review Officer is to be served upon the petitioner within 10 days after the service of the petition (8 NYCRR 279.5). The record reveals that the petition was served on July 25, 1996. The answer was not served until September 4, 1996, or 41 days after the petition had been served. In its answer, respondent asserts that it " ... has unfortunately been delayed ..." and refers to a letter its attorney reportedly sent to the State Review Officer. However, there is no letter on file. I note that petitioner has acknowledged that his notice of intention to seek review was served two days in excess of the prerequisite 30-day period prescribed by State regulation (8 NYCRR 279.2 [b]). However, he argues in his petition that there would be no prejudice to respondent, in part because he would grant any request for an extension of time to answer the petition. Although I would not otherwise excuse respondent's delay, I find that it at least had some basis for believing that the affirmative defense of untimeliness would not be asserted against it. I also note the late submission of respondent's decision has not delayed my decision, which was deferred with the consent of the parties. Therefore, I have accepted respondent's answer.

        Petitioner's son, who is six years old, was born prematurely. He has been diagnosed as having cerebral palsy with hemiplegia (paralysis) of the left side. In September, 1993, petitioner enrolled his son in the United Cerebral Palsy School (UCP), where he received physical therapy, occupational therapy, and speech/language therapy. The child remained in the UCP until January, 1995. In March, 1994, a UCP psychologist reported that the child had achieved a composite standard age score of 113 on the Stanford-Binet Intelligence Scale. She also reported that the child was functioning in the high average range of intelligence, and that he demonstrated strength in auditory memory, number concepts, and early computational skills and vocabulary. The child demonstrated relative weakness in the areas of visual perception and imagery. On the Vineland Adaptive Behavior Scales, with information provided by his teacher, the child attained adequate to moderately high age equivalents in all areas of adaptive behavior, except personal daily living skills which were impeded by his physical limitations.

        An educational evaluation was performed at the UCP in January, 1995, when the child was almost five years old. His gross motor skills were reported to be in the 12-14 month old range. He could walk with his walker independently, and could pull himself to a standing position at a table or a stationary object. The child's fine motor skills were reported to be in the 4-5 year old range. He could put puzzles together, and could string large and small beads. The boy could also use scissors to cut, but had difficulty cutting along a line or pattern. He could also copy lines and some shapes and patterns. His UCP teacher reported that the child could remove and put on most clothing with minimal assistance. She also reported that the child ate independently with a spoon and fork, and could drink from a cup independently. The teacher indicated that the child's activities of daily living skills were in the 3-4 year old range, and his cognitive development was in the 5-6 year old range. She reported that the child could identify all colors, shapes, letters, and numbers from 1-20. He could count by rote beyond 100, and with correspondence to 20. The child could identify some names and words in print, and could identify some words beginning with a specific letter or sound. The child's socialization skills were reported to be in the 4-5 year old range. He was described as having a good attention span for most activities, and being able to follow directions well.

        In January, 1995, a UCP speech pathologist reported that the child had age appropriate receptive and expressive language skills when he was formally tested in April, 1994. However, she noted that the child would often respond to questions with statements which were unrelated to the topic, and that he perseverated during conversations. She recommended that the child be re-evaluated to ascertain his functional levels in pragmatic speech, respiratory support for speech production, and oral motor activities.

        A UCP physical therapist noted that the child's attendance in school had been poor during the first half of the 1994-95 school year, and reported that the range of motion for the child's upper and lower extremities appeared to be within functional limits. The boy had low tone in his trunk muscles, and mild flexor tone in his upper extremities. The physical therapist reported that crawling was the child's primary means of independent mobility, but that he could ambulate with a forward walker device for short to moderate distances. A UCP occupational therapist also reported in January, 1995 that the child's visual, auditory, tactile and vestibular systems appeared to be intact and functional. She noted that the child's cutting skills had improved, and that he could follow multiple step directions. The occupational therapist further noted that the boy engaged in cooperative and imaginary play.

        At a prior hearing, petitioner testified that he believed that his child had benefitted from the services provided by the UCP during the 1993-94 school year. However, petitioner believed that the UCP was not appropriate for his son during the 1994-95 school year because he did not have appropriate role models in the UCP. The child's social skills had reportedly declined, as did his attendance at the UCP. In January, 1995, petitioner enrolled his son in an afternoon preschool program of the Park Avenue Methodist Day School (PAMDS). The PAMDS has reportedly been licensed by the New York City Health Department to operate a nursery school for children between the ages of three and six. However, it has not been approved by the State Education Department to provide special education services to preschool children with disabilities.

        Petitioner reportedly sought to have respondent pay for the child's tuition in the PAMDS, and for the cost of an individual aide whom petitioner had hired to assist the child. In March, 1995, respondent's Committee on Preschool Special Education (CPSE) reportedly recommended that the child be enrolled in a center-based program at the UCP, and that he receive speech therapy, occupational therapy, and physical therapy. I note that the individualized education program (IEP) which the CPSE prepared for the child is not part of the record of this proceeding. At petitioner's request, an impartial hearing was held in June, 1995 to review the CPSE's recommendation. The parties agreed that the child should be classified as "orthopedically impaired" (cf. 8 NYCRR 200.1 [ee]).

        On July 13, 1995, the hearing officer in that proceeding found that the UCP program which the CPSE had recommended for the child was not appropriate because the verbal and linguistic ability of the children in the UCP class was well below that of petitioner's son. The hearing officer further found that there were appropriate role models in the PAMDS, and that the child had made progress in that program. He also found that equitable considerations supported petitioner's request for tuition reimbursement in the amount of $3150. However, the hearing officer found that there was no basis in the record before him to find that the child required the services of an individual aide while attending the PAMDS. He denied petitioner's request for reimbursement of his expenditures for the services of an aide.

        The hearing officer reopened the hearing on October 11, 1995 to take additional evidence about the services provided by the child's individual aide. In his decision dated October 31, 1995, the hearing officer found that there was no dispute that the child required an aide for certain purposes to benefit from his school program. He directed respondent to reimburse petitioner for his expenditures for the aide, upon petitioner's submission of proof that the aide's services were provided to the child in the PAMDS. Respondent did not appeal from the hearing officer's orders of July 13, 1995, and October 31, 1995.

        During the pendency of the hearings with regard to the CPSE's recommendation for the child's program for the 1994-95 school year, the child came under the jurisdiction of respondent's committee on special education (CSE) which was responsible for recommending appropriate educational services for him in the 1995-96 school year. On June 15, 1995, the CSE recommended that the child be classified as orthopedically impaired. The CSE also recommended that the child be educated in a regular education program, with the assistance of consultant teacher services (see 8 NYCRR 200.1 [l]), and an individual aide. It further recommended that the boy receive individual physical therapy and occupational therapy, each twice per week. According to the child's IEP annual goals, the consultant teacher would assist the child in improving his time management, problem solving, and reading skills.

        The CSE recommended that the child be placed in a barrier-free school, but it did not identify a specific facility for him. At the hearing in this proceeding, respondent introduced into evidence a copy of its final notice of recommendation, which was reportedly sent to petitioner on July 21, 1995. Petitioner testified that he had not received the notice of recommendation. The assistant chairperson of the CSE testified that it was the CSE's practice to send a second copy of the notice of recommendation, whenever a parent did not respond to the mailing of the first copy of the notice of recommendation. He further testified that the CSE had no record of either a response from petitioner, or the mailing of a second copy of the notice of recommendation to petitioner.

        Petitioner enrolled his son in the PAMDS for the 1995-96 school year. He also engaged the services of an individual aide for the child, and paid for physical therapy and occupational therapy to be provided to the child. On or about November 30, 1995, petitioner's attorney requested that an impartial hearing be held. The hearing began on March 21, 1996, and concluded on April 16, 1996. The record does not disclose the reason why the hearing did not begin until almost four months after it had been requested (cf. 8 NYCRR 200.5 [c][11]). I note that petitioner has not challenged the untimeliness of the hearing.

        At the hearing, the assistant chairperson of the CSE testified that the kindergarten program which the CSE recommended for the child would have met the child's educational needs, and that the PAMDS program was inappropriate because it was a preschool program, and because the building in which it was located was not barrier-free. He also testified that although P.S. 199 was not identified as the child's placement at the June 15, 1995 CSE meeting, petitioner was well aware that the CSE was recommending that the child be placed in a regular kindergarten program in a barrier-free public school. Petitioner confirmed the assistant chairperson's testimony by stating that:

"I think I knew that P.S. 199 would be the placement, not that anybody said he is going there, but I knew that because as it has been testified here, we all knew it was the only appropriate place in the District ... " (Transcript, March 21, 1996, page 99)

        The assistant chairperson further testified that petitioner informed the CSE at the meeting that he had no intention of accepting the CSE's recommendation, and that he intended to keep the child in the PAMDS. Petitioner testified that his child was not ready to enter kindergarten in September, 1995, because he did not have the necessary attention span and social skills. He explained that he and his wife had applied for the child's admission to three private kindergarten programs, but that the child had not been accepted. Petitioner also testified that he preferred that the child be in the PAMDS afternoon preschool program so that the child could receive one and one-half to two hours of physical therapy each morning. Petitioner sought reimbursement in the amount of $6,700 for the child's tuition in the PAMDS. He also sought reimbursement for his expenditures for an aide for five hours per day, although the PAMDS program occurred between 1:00 p.m. and 3:50 p.m. Petitioner asked that respondent pay for 20 percent of the cost of the child's physical and occupational therapy, which was the portion of the cost not covered by petitioner's health insurance. He also sought reimbursement of the cost of transporting his son to and from the PAMDS.

        On June 3, 1996, the hearing officer rendered her decision. She found that respondent had failed to meet its burden of demonstrating the appropriateness of the program which its CSE had recommended, because it had not shown how the regular kindergarten program would have been adapted to meet the child's needs, or why the child required consultant teacher services. She further found that the amount and duration of the related services recommended by the CSE were inadequate. The hearing officer credited petitioner's testimony that he had not received a copy of the final notice of the CSE's recommendation, and she found that respondent had failed to offer a specific placement for the child. Although the child's peers in the PAMDS preschool program were younger than the child, the hearing officer found that the child was receiving instruction at the appropriate academic level. She also found that the child required a full-time aide in the PAMDS.

        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]). Although the hearing officer found that petitioner had prevailed with respect to the first two criteria for tuition reimbursement, i.e., the inappropriateness of the program offered by respondent, and the appropriateness of the PAMDS program, she denied petitioner's claim for reimbursement of tuition and the aide's services on the ground that his claim was not supported by equitable considerations. Specifically, she found that the child's parents had already determined to keep the child in the PAMDS program for the 1995-96 school year, as of the date when the CSE met to consider his needs for that school year, and that petitioner's only purpose in participating in the CSE process was to obtain public funding for his child in the PAMDS. Notwithstanding her finding that petitioner was not entitled to reimbursement for tuition, the services of the aide, or the related services of occupational therapy and physical therapy, under the Burlington criteria, the hearing officer ordered respondent to reimburse petitioner for tuition and the aide's services during the time the PAMDS was in session, on the ground that the PAMDS was the child's "then current", or pendency, placement under Federal and State law (20 USC 1415 [e] [3]; Section 4404 [4] of the Education Law), and that the child was entitled to remain in the PAMDS while petitioner challenged the CSE's recommendation for the 1995-96 school year. She denied petitioner's request for reimbursement of a portion of the cost of the child's physical therapy and occupational therapy, on the ground that it had not previously been requested. However, the hearing officer did order the CSE to revise the child's 1995-96 IEP to provide that he receive five sixty-minute sessions of individual physical therapy and three sixty-minute sessions of occupational therapy per week, on a twelve-month basis.

        The board of education bears the burden of demonstrating the appropriateness of the program 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 CSD 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]). Respondent argues that there was no dispute that the child belonged in a regular education program during the 1995-96, and that the regular education kindergarten placement which it offered for the child would have met his academic and social needs. It asserts that the only reports which petitioner provided to it about the child's need for physical therapy and occupational therapy were prepared at the UCP in January, 1995 (Exhibit 7 and 9), and it argues that those reports did not afford a basis for concluding that the child required more physical therapy and occupational therapy than the CSE had recommended, or that he required such related services on a twelve-month basis. Respondent contends that the hearing officer erred in finding that it failed to meet its burden of proof with respect to the appropriateness of the CSE's recommendation.

        I disagree with respondent's contention. Although it is true that the child's special education needs appear to be primarily physical in nature, I agree with the hearing officer that respondent simply failed to demonstrate how the boy's needs would be addressed in the proposed placement. No one who was familiar with either respondent's kindergarten program, or with P.S. 199, testified at the hearing. No one testified about the location of the proposed classroom, or its proximity to other rooms, such as the cafeteria and gymnasium. Although the CSE assistant chairperson testified that the PAMDS physical education equipment (swings, etc.) was inappropriate for the child, he did not explain what if anything, respondent proposed to provide to the child. Indeed, I must note that the box on the child's IEP relating to adaptive physical education was not checked, which meant that the CSE had not recommended that the boy receive adapted physical education. I also agree with the hearing officer that respondent failed to offer any cogent explanation for the CSE's recommendation that the child receive consultant teacher services. The CSE also failed to specify the amount of consultant teacher services to be provided to the child (cf. 8 NYCRR 200.4 [c][2][vi]). Therefore, I find that respondent failed to meet its burden of proof with regard to the first Burlington criterion for tuition reimbursement.

        Petitioner bears the burden of proof with regard to the appropriateness of the services which he obtained for the child at the PAMDS 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, petitioner 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, supra370, 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 record reveals that the child was enrolled in one of two preschool classes which were conducted in the PAMDS from 1:00 p.m. to 3:50 p.m., five days per week. The class in which the child was enrolled consisted of 14 four year old children, and 6 five year old children. Petitioner's child, who became six years old in April, 1996, was the oldest child in his class. The class was taught by two teachers, who were assisted by an assistant teacher. A fourth adult, the child's individual aide, was also present in the classroom. The aide lifted the child up a few stairs into the building. The child's classroom, the school library and bathrooms were located on the building's fourth floor, which was accessible by elevator. The child was also carried by the aide up a flight of stairs to the roof of the building where the PAMDS playground equipment is located. The Director of the PAMDS testified that the children were engaged in large motor muscle activities during the first hour each day, either on the roof of the building in fair weather, or in the school's basement during inclement weather. Petitioner's son engaged in "quiet" activities, such as games, drawing, or reading, under a teacher's supervision, and occasionally with two or three peers, during the first hour of the school day. The remainder of the school day was devoted to various arts and crafts, creative play, and readiness activities. The PAMDS Director acknowledged that her preschool did not provide a formal academic program, but she testified that petitioner's son was working on reading readiness activities, as well as "spontaneous", or informal, mathematical exercises. She described the reading readiness activities as including dictating stories, listening to and answering the teachers' questions, tracing letters, and writing.

        Respondent argues that petitioner failed to demonstrate how the PAMDS met the child's special education needs during the 1994-95 school year. In determining what those needs were, I have considered the IEP which respondent's CSE prepared for the boy, as well as the written reports by the child's occupational therapist, physical therapist, and his pediatrician which were entered into the record at the hearing. The boy's IEP indicated that he should apply time management skills and problem solving skills to the tasks he was required to do. The PAMDS Director testified that the child completed tasks at a slower rate than other children, which she attributed to his lower activity level. She further testified that the boy was given more adult attention to accomplish the things which his teachers felt that he should be able to do. The IEP also indicated that the boy needed to demonstrate phonetic analysis skills, and recognize common sight words. Respondent has not revealed why its CSE considered these to be special education needs. In any event, I find that the reading readiness activities which the PAMDS Director described in her testimony addressed the boy's reading needs. I note that respondent has not disputed the Director's testimony that the PAMDS teachers taught the child at his level of ability.

        Petitioner testified that the child was not socially ready for Kindergarten. His testimony was supported by the child's occupational therapist, who reported that the child's attentional difficulties and lack of mobility made it hard for him to socialize. She also asserted that the boy continued to need structure in order to learn in a group. The child's pediatrician noted that the boy had made progress, but had not consolidated his gains. He opined that the boy should remain in this preschool program. The PAMDS Director testified that the child had become more socially at ease during the 1995-96 school year.

        Respondent also argues that the PAMDS was inappropriate for the child because it was not accessible for this child. It relies upon the decisions in Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 30, and Application of a Child with a Disability, Appeal No. 95-1, for the proposition that carrying children between floors is not an appropriate means of providing access to mobility impaired children in a school setting. While those decisions are directly relevant to a board of education initiated placement, the issue here is whether the fact that the child had to be carried up the front steps of the school building and to the rooftop playground of the PAMDS should result in the denial of petitioner's claim for tuition reimbursement. I find that it should not, and that petitioner has demonstrated that the services which he obtained for the child at the PAMDS, and the aide's services which he provided, were appropriate under the IDEA. Therefore, I find that he has prevailed with respect to the second Burlington criterion.

        The third and final criterion for reimbursement is whether equitable considerations supported petitioner's claim. The hearing officer found that petitioner had not prevailed on this criterion because it appeared that petitioner's only interest in participating in the CSE's review of his child had been to obtain funding for the boy's attendance at the PAMDS in the 1995-96 school year. She noted that petitioner, who was not represented by an attorney at the time of the CSE meeting, had acknowledged that he had not presented evidence to the CSE to support his request for more intensive related services on a twelve-month basis. The hearing officer therefore denied petitioner's claim for tuition, the aide's services, physical therapy, occupational therapy, and transportation.

        I disagree with the hearing officer's finding. Although petitioner made no secret of his preference for retaining the child in the PAMDS during the 1995-96 school year, that fact would not per se preclude him from obtaining reimbursement (Application of the Bd. of Ed. of the City School District of the City of New York, Appeal No. 95-69). Petitioner participated in the CSE meeting which was held on June 15, 1995. He could have provided the CSE with updated reports from the child's physical therapist and occupational therapist. Although I do not condone petitioner's failure to provide the updated information to the CSE, it is the CSE's responsibility to have adequate information about a child's current special education needs, in order to prepare an appropriate IEP. In this instance, respondent does not challenge the recommendations of both therapists that the child receive more intensive related services than the CSE recommended, but it contends that the fact that the CSE did not have those recommendations should not be held against it. Upon the record before me, I find that equitable considerations support petitioner's claim for reimbursement in the amounts indicated in the record for tuition, the aide's services, physical therapy and occupational therapy. I further find that petitioner should be reimbursed for the requested transportation expenditures (See Section 4402 [4][d] of the Education Law).

        Having found that petitioner is entitled to reimbursement under the Burlington and Carter decisions, I do not reach the pendency issue.

        THE APPEAL IS SUSTAINED. THE CROSS-APPEAL IS DISMISSED.

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

        IT IS FURTHER ORDERED that respondent reimburse petitioner for his expenditures for tuition, the services of an individual aide, physical therapy, occupational therapy and transportation, in the amounts which were discussed at the hearing. Reimbursement shall be made, upon presentation of proof of those expenditures by petitioner to respondent.