96-072

         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 private school tuition for the 1993-94, 1994-95, and 1995-96 school years, despite having found that respondent had not met its burden of proving that it had offered the child an appropriate educational program during those years. The appeal must be dismissed.

        At the outset, I note that petitioner has asked me to reject respondent's answer because it was not served upon him within ten days after his petition was served upon respondent, as required by 8 NYCRR 279.3. The petition was served on October 11, 1996. Respondent's answer was served on November 18, 1996. In its answer, respondent asks that its delay be excused. Its attorney asserts that the matter was not assigned to him until October 22, 1996, and that petitioner refused his request for an extension of time. In view of the fact that the answer was not served within even ten days after the attorney received the case, I decline to excuse respondent's delay, and have not considered its verified answer in my review.

        Petitioner's son, who is 17 years old, has been classified as learning disabled/emotionally disturbed. Although petitioner does not directly address the issue of classification in his petition, I note that at the hearing in this proceeding, petitioner asserted that the basis for the emotionally disturbed portion of the classification had not been explained to him. In any event a resolution of that issue is not necessary in order to render a decision in this appeal. The boy reportedly had difficulty in reading, while in the early elementary grades. He was enrolled, at his parents' expense, in the Mary McDowell School, a private school for learning disabled children, from the second through the fifth grades. The principal of the McDowell School referred the child to the committee on special education (CSE) of Community School District #15 during the 1989-90 school year, because the child would age out of the private school at the end of the school year.

        On January 2, 1990, the child's mother signed a written consent to evaluate form, in which she acknowledged that she had received a copy of respondent's booklet Special Education: A Guide for Parents, and that her due process rights had been explained to her. The school social worker who had obtained the mother's consent to the evaluation of the child indicated in his report that the booklet, which explains parental due process rights (see Application of the Board of Education of the City of New York, Appeal No. 95-79), had been given to the child's mother.

        In February, 1990, the CSE recommended that the child be classified as learning disabled/emotionally disturbed. It further recommended that he be placed in a 12:1+1 special education class in the private Churchill School, with small group counseling once per week, for the 1990-91 school year. The CSE, in its referral of the child to respondent's Central Based Support Team, described the child as emotionally fragile, and as requiring constant supervision and attention. The child was placed in the Churchill School, at respondent's expense, with his parents' consent. He remained in the Churchill School through the end of the 1992-93 school year. In his individualized education program (IEP) for the 1992-93 school year, the child was described as a bright, friendly student who struggled with significant learning disabilities as well as secondary emotional problems. The IEP indicated that the child's primary weaknesses were in visual perception, visual integration, auditory attention span and organizational skills. His impulsive nature reportedly impacted upon his academic and social functioning.

        In October, 1992, the Churchill School's Director of Admissions notified the CSE of Community School District No. 2, in which the private school was located, that petitioner's son would be aging out of Churchill in June, 1993. The CSE began a process of updating its information about the child in the Fall of 1992. In November and December, 1992, a school social worker interviewed the child's mother, who had separated from petitioner within the prior year. The child's mother indicated that she was satisfied with the Churchill School and that she was considering a small number of private schools for the boy. In her report, the school social worker indicated that due process rights had been re-discussed with the child's mother.

        On January 8, 1993, the child was re-evaluated by a school psychologist, as part of the child's triennial evaluation. The school psychologist reported that the child had achieved a verbal IQ score of 109, a performance score of 108, and a full scale IQ score of 109. The psychologist opined that the child's anxiety had impaired his test performance as evidenced by his low scores on subtests which measured his short-term auditory and visual memory skills. He reported that the child's visual motor skills were delayed by approximately two years. The child was described by the psychologist as having a great need to control his impulses, and as being hypersensitive to social opinion. The psychologist reported that the child had strong feelings of inferiority and inadequacy.

        In a letter dated March 2, 1993, the CSE chairperson informed the child's parents that an educational evaluation of the child had been scheduled to take place on April 3, 1993. The chairperson's letter was sent to the child's mother, as were similar letters in June, July, and August, 1993. The child's mother reportedly had custody of the child until June, 1993. Thereafter, petitioner had custody of the boy. Neither parent responded to the CSE chairperson's letters scheduling educational evaluations for the boy.

        The CSE did not meet, or make a recommendation for the child's placement, before the beginning of the 1993-94 school year. Petitioner unilaterally enrolled his child in the York Preparatory School, which has not been approved by the State Education Department as a school for children with disabilities. The child remained in the private school, at petitioner's expense, for the 1993-94, 1994-95, and 1995-96 school years.

        At the hearing in this proceeding, petitioner testified that the Bursar of the York Preparatory School mentioned to him that some of the school's students were publicly funded. He requested that respondent pay for his son's education in the York Preparatory School, in an interview with a school social worker of the CSE of Community School District No. 2 on November 23, 1993. Petitioner testified that the school social worker promised to look into the matter, and get back to him. In her written report, the school's social worker indicated that due process procedures had been discussed with petitioner, and that petitioner was given a copy of the due process booklet. However, petitioner testified that he had not received the booklet, and that due process rights were not discussed. The school social worker also informed petitioner that the CSE needed to perform a triennial evaluation of the child (see 8 NYCRR 200.4 [e] [4]).

        On November 23, 1993, a school psychologist and an educational evaluator evaluated petitioner's son. The school psychologist noted that the child's cognitive skills had been tested in January, 1993, and did not repeat that test. However, he reviewed the results of the earlier IQ testing, and opined that the child could function in a regular education classroom under optimal conditions. The school psychologist further reported that the child exhibited anxiety, passive-aggressive personality features, and magical thinking. He opined that the child's anxiety needed to be addressed because it interfered with his learning potential. The educational evaluator reported that the child was able to work independently but that he worked at a very slow pace. She also reported that the boy, who was in the ninth grade, had achieved grade equivalent scores of 5.9 in reading decoding, 8.0 in reading comprehension, 4.1 in spelling, 7.5 in mathematical computation and 10.8 in mathematical application. His writing skills were reported to be at the fourth grade level.

        On December 9, 1993, the child was observed by a CSE representative in a mathematics class at the York Preparatory School. The observer reported that the child was attentive and contributed to the class discussion, despite being fidgety. He indicated that the child appeared to be comfortable, and was benefiting from instruction in the York Preparatory School.

        On December 10, 1993, petitioner and his son met with a three-member CSE, which did not include the required parent member, or the child's teacher (cf. Section 4402 [1] [b] [1] of the Education Law). The CSE recommended that the child be classified as learning disabled and emotionally disturbed. It further recommended that he be placed in a modified instructional services - I (MIS-I) special education class with a child to adult ratio of 15:1. Although the IEP which the CSE prepared for the boy indicated that no related service had been recommended for him, the IEP nevertheless included an annual goal for counseling. It also included annual goals for reading, writing, spelling, social studies, and science.

        In a notice of final recommendation which was dated December 28, 1993, petitioner was informed of the CSE's recommendation, and his son was offered a placement in the John Jay High School in Brooklyn, New York. Although petitioner asserted at the hearing that the notice was sent to his former wife, he acknowledged that he had received the notice. The notice indicated, in material part, that:

"If you do not agree with the recommendation, you have the right to request an Impartial Hearing. You may request an Impartial Hearing by writing to the Board of Education, 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 29)

        In a letter to the CSE chairperson, which was dated January 26, 1994, petitioner expressed his displeasure with the conduct of the CSE meeting, and complained that the CSE had been insensitive to the child by discussing the results of his evaluations at the meeting. He also objected to the CSE's recommendation that the child be classified in part as emotionally disturbed, without making petitioner aware of the basis of that recommendation. He did not specifically address the CSE's recommendation of a MIS-I class, nor did he request that an impartial hearing be held to review the CSE's recommendation. A follow-up notice of authorization to attend special education program (Exhibit 31) was sent to the same address on or about February 16, 1994. That notice also informed the parent of the right to request an impartial hearing. Petitioner testified that he did not request a hearing because he had already paid the private school's tuition for the 1993-94 school year.

        There was no further communication between the CSE and petitioner during the 1993-94, or 1994-95 school years. At the hearing in this proceeding, the CSE's representative testified that an administrator of the Churchill School allegedly informed the CSE that the child had moved to New Jersey. On November 14, 1995, a CSE representative completed a pupil change form (Exhibit 32), indicating that the boy had been "discharged" from respondent's Division of Special Education because he had moved to New Jersey. Nevertheless, the record includes a notice from the CSE to the parent, dated December 16, 1995, indicating that the CSE had received a referral of the boy, and that he needed to be evaluated by the CSE. The record does not reveal the basis for the alleged referral. I note that respondent's notice indicated that the child was attending the Churchill School, which he had not attended since June, 1993.

        In a letter dated April 12, 1996, petitioner asked the CSE chairperson to have the boy evaluated, so that the boy could take the Scholastic Achievement Test (SAT) on an untimed basis. Approximately five weeks later, the CSE chairperson responded to petitioner that the child did not need to be evaluated in order to have a time waiver for completing the SAT. In June, 1996, the child was reportedly evaluated by the CSE which reportedly made a recommendation for the child's placement during the 1996-97 school year. That recommendation is not part of this proceeding.

        On June 21, 1996, petitioner requested that an impartial hearing be held so that he could obtain reimbursement for his son's private school tuition. A hearing was begun on July 22, 1996, at which time the CSE's representative sought an adjournment until after the beginning of school in September, 1996. The CSE representative asserted that petitioner had not disclosed the evidence which he wished to present at least five days before the hearing (cf. NYCRR 200.5 [c] [9]). He also claimed that he had been unable to locate potential witnesses because of the summer vacation, and that he needed more time to consult with respondent's attorneys. Petitioner opposed the CSE representative's request. The hearing officer initially granted an adjournment until September, but shortly thereafter she granted an adjournment until July 25, 1996. The hearing resumed before a different hearing officer on July 25, 1996. The CSE representative and one of respondent's educational evaluators testified on behalf of respondent. Petitioner testified, and the principal of the York Preparatory School testified by telephone. The hearing officer disclosed that she would be unable to render a decision within 45 days after petitioner had requested a hearing, and that she had asked petitioner to agree to an extension of time in which to write a decision, as is permitted by 34 CFR 300.512(c). She also disclosed that petitioner had initially asked the hearing officer to recuse herself from the hearing. However, petitioner, who was not represented by an attorney at the hearing, agreed to withdraw his recusal request, and to grant the hearing officer an extension of time in which to render her decision (Transcript, page 71). The hearing concluded on July 25, 1996.

        The hearing officer rendered her decision on September 12, 1996. She noted that 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). The hearing officer found that respondent had not met its burden of proof that it had offered the child an appropriate educational program during the 1993-94, 1994-95, or 1995-96 school years. With respect to the first school year, she found that the CSE had been invalidly composed, and that respondent had not offered any evidence describing the proposed MIS-I class at the John Jay High School. She further found that there was no evidence that the child had been offered a placement for either the 1994-95 or 1995-96 school years.

        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 York Preparatory School during each of the school years in question (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 hearing officer found that petitioner had failed to meet his burden of proof. She noted that although the private school's principal had testified that the York Preparatory School was a general education school which provided special education services to students with learning disabilities, he had not specified what special education services the child had received. However, the principal did testify that the child had been placed in small classes, and had received individual tutorials, reading classes, books on tape, assistance with homework, and testing modifications at the private school. The hearing officer further found that no evidence had been presented to establish that the private school had continued to assess the child's educational needs, or had formulated plans to address those needs. She also noted that two reports from the private school indicated that the child was not making adequate progress there as a result of his placement.

        The hearing officer also found that equitable considerations did not support petitioner's claim for tuition reimbursement. She found that the petitioner's former wife had acknowledged receipt of respondent's booklet detailing parental due process rights, and noted that petitioner admitted that he had received the CSE's final notice of recommendation dated December 28, 1993 (Exhibit 29), which referred to that booklet, and indicated that respondent would provide another copy upon request. However, petitioner had not requested an impartial hearing to challenge the CSE's recommendation for the 1993-94 school year, or its failure to recommend a placement for the next two school years, until his belated request of June 21, 1996. She held that petitioner's extensive delay in raising his claim for tuition was unjustified, and that it barred his recovery of tuition.

        Petitioner asserts that he was denied a fair hearing by the two hearing officers. With regard to the first hearing officer, who conducted the hearing on July 22, 1996, petitioner argues that he was denied the opportunity to proceed with his case when the principal of the York Preparatory School was available to testify. He asserts that the hearing officer was aware that the principal would not be available to testify in person on July 25, 1996, the date to which the hearing was adjourned. However, I find that petitioner's assertion is not supported by the record. When the hearing officer initially ruled that the hearing would be adjourned until September, the principal indicated that he would be available to testify. The hearing officer closed the record. She reportedly left the hearing room. According to petitioner, the hearing officer returned about fifteen minutes later. She reopened the record, and announced that having done some legal research on the five-day evidence rule, she believed that the hearing should proceed later that week. She asked petitioner whether he could have the principal appear later that week. There was no response by petitioner. The hearing officer asked the parties to select a new date for the hearing. When the date of July 25 was mentioned, petitioner stated: "That's fine with me." (Transcript, page 36). Although the principal did not attend the hearing on July 25, 1996, he did testify by telephone on that date.

        Petitioner contends that the second hearing officer, i.e., the hearing officer who conducted the hearing on July 25, 1996 unfairly asked the CSE's representative leading questions, and questioned petitioner in a hostile and aggressive manner. I find that petitioner's contention is wholly without merit. Neither party was represented by an attorney at the hearing. It was the hearing officer's responsibility to ascertain the facts which would allow her to decide the issues which were germane to this proceeding. Petitioner's claim for tuition reimbursement for the 1995-96 and the two preceding school years raised questions about the appropriateness of respondent's MIS-I program, and the York Preparatory School's program. It also raised questions about the timeliness of petitioner's request for a hearing to obtain the remedy of tuition reimbursement, which the hearing officer was required to consider in determining whether equitable considerations supported petitioner's claim (Application of a Child with a Disability, Appeal No. 95-37, Application of a Child with a Disability, Appeal No. 95-48). Her questions to both parties were intended to elicit information about whether petitioner was aware of his due process rights, and when he became aware of those rights. In that context, the hearing officer questioned petitioner about why he had not asked for an impartial hearing prior to June, 1996.

        Petitioner also contends that the hearing officer erred by not allowing him to use his memorandum of law to establish issues of fact, and by refusing to read his memorandum of law. Issues of fact are established by evidence, not the legal argument set forth in memorandum of law. The hearing officer declined to read petitioner's memorandum of law during the hearing, but promised to read it before she rendered her decision. She also indicated that she was thoroughly familiar with the legal issues surrounding tuition reimbursement claims pursuant to the Carter decision. I have also considered petitioner's contention that the hearing officer improperly interfered with the York Preparatory School principal's attempt to testify about the special education services which the school provided to the child. I disagree with his contention. The transcript reveals that the principal was afforded an ample opportunity to testify. When the hearing officer asked petitioner whether he had any more questions for the principal, petitioner answered in the negative. His request that this matter be remanded for another hearing at which additional testimony could be given must be denied.

        Although petitioner has not raised any issue in his petition except his allegedly unfair treatment by the hearing officers, I have reviewed the findings by the second hearing officer with regard to petitioner's claim for tuition reimbursement. I have not reviewed the hearing officer's finding that respondent failed to meet its burden of proof regarding the appropriateness of the educational programs which it offered the child during the years in question. Therefore, petitioner has prevailed with respect to the first of the three criteria for an award of tuition reimbursement under the Burlington decision.

        The record which is before me is quite limited with respect to the issue of the appropriateness of the services which the child received in the York Preparatory School, which is the second Burlington criterion for reimbursement. Petitioner relies upon a description of the private school which is set forth in a brief report prepared by a visiting committee of the Middle States Association Commission on Secondary Schools (Exhibit 8). The report indicates that the school has a well developed program which includes a community service component, English as a second language, and the usual college preparatory courses. The report also indicate that support and diagnostic testing for all students "particularly those known to have learning disabilities/styles and behavior issues" are integrated within the school's curriculum.

        Mr. Randy Kleinman, the school's principal, testified that the York Preparatory School is a "mainstream" middle school and high school which accepts students with mild and moderate learning disabilities. Students are placed in mainstream (regular education) classes, and receive "disability support services" from a mediator, or case manager. Class size in the school ranges from twelve to fifteen students. When asked by the hearing officer what special education services were provided at this school, Mr. Kleinman referred to a reading class, books on tape, tutorial help from teachers, an after school study hall, and test modifications, such as allowing oral responses to test questions. However, it is not clear from the record what specific services petitioner's son received. Although two brief academic reports were entered as evidence, there is no evidence of the effect of the private school's services in meeting this boy's specific special education needs, as identified in his evaluations. Therefore, I must concur with the hearing officer's finding that petitioner failed to meet his burden of proof with regard to the appropriateness of the private school's services for his son during any of the years in question.

        While my finding with regard to the lack of proof of the appropriateness of the private school's services is dispositive of petitioner's claim for tuition reimbursement for any of the three school years in question, I further find that equitable considerations do not support his claim for reimbursement for the 1993-94 and 1994-95 school years. Even if I accept petitioner's testimony that his due process rights were not discussed by the school social worker on November 23, 1993, I find that he did see the final notice of recommendation which was mailed to his former wife on or after December 28, 1993. That notice informed him of his right to request an impartial hearing, and advised him that he could obtain a copy of respondent's booklet detailing his due process rights.

        When asked why he did not request a hearing at that point in time, petitioner testified that he had already paid the child's tuition at the private school. Implicit in petitioner's response is the premise that the sole purpose of an impartial hearing is to enable a parent to obtain tuition reimbursement. However, 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 failure to act. Prompt resort to the due process procedures must be made, so that school authorities have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir., 1994]). Petitioner's failure to promptly raise the issue of the inappropriateness of the CSE's recommended program for the 1993-94 school year, or its failure to make a recommendation for the 1994-95 school year deprived respondent of an opportunity to correct its error. I find that equitable considerations do not support petitioner's claim for tuition reimbursement for the 1993-94 and 94-95 school years (Application of a Child with a Disability, Appeal No. 95-77; Application of a Child with a Disability, Appeal No. 95-86).

THE APPEAL IS DISMISSED.