96-085

         Petitioner appeals from the decision of an impartial hearing officer which denied her request for an order requiring respondent to reimburse her for her expenditures for her daughter's tuition in a private school during the 1993-94, 1994-95, and 1995-96 school years. The appeal must be sustained in part.

        At the outset, I note that respondent's answer was served approximately 30 days after the date by which it should have been served. Respondent requests that I excuse its delay. Its attorney alleges that respondent did not send the petition to the New York City Law Department until after the ten-day period for serving an answer had expired. However, the answer was still not served until 30 days after the attorney received the petition. Although I would normally not excuse such a lengthy delay, I note that petitioner's daughter had graduated from high school at, or about, the time when petitioner requested an impartial hearing in this proceeding. Respondent's delay in filing its answer did not affect the child's placement, or result in a denial of any services to her. I will accept the answer, but I caution respondent to ensure that petitions in appeals of this nature are promptly referred to the Law Department, and that answers are promptly prepared.

        Petitioner's daughter entered the first grade of P.S. 3 in Community School District No. 2, in 1993. She remained in that school through the sixth grade. At the hearing in this proceeding, petitioner testified that her child had difficulty keeping up academically in elementary school. The child began to be privately tutored by a learning disability specialist while in the fourth grade. Her cumulative record indicates that the child received "G's" for good in most of her academic subjects throughout elementary school, but that her performance was only "fair" for written expression, social studies, mathematics, and science during the sixth grade.

        In August, 1988, just prior to her entry into the sixth grade, the child was privately evaluated by a neuro-psychologist. The neuro-psychologist noted that the child had been reportedly delayed somewhat in achieving her developmental milestones, especially with regard to her speech. He also noted that the child had struck her head on a car windshield during an accident which occurred when she was four years old, and that she was prone to having headaches. Although she was well behaved in school, the child reportedly manifested anger and defiant behavior after school. The neuro-psychologist, who administered three subtests of the Wechsler Intelligence Scale for Children - Revised (WISC-R) to the child, reported that she scored in the superior range on the subtest for verbal similarities, but in the low average range on the fund of information subtest. On the picture completion subtest, which required the use of non-verbal memory and visual perceptual skills, the child achieved a score in the average range.

        In early September, 1988, the neuro-psychologist administered the Block Design Subtest of the WISC-R to the child. He reported that the child's score was in the borderline range, and indicated that she evidenced signs of an organically based perceptual motor delay. He also found evidence of a deficit in her short-term auditory memory, and signs of an attention deficit. Projective testing of the child revealed signs of impulsivity, confusion, and possible aggressive tendencies. On the word reading subtest of the Wide Range Achievement Test - Level I Revised, the child's skills were found to be at the beginning third grade level. The neuro-psychologist opined that the child's essential difficulty appeared to be a lack of familiarity with a wider range of reading material, rather than a specific skill deficit. He further opined that the child had an operationally defined learning disability.

        On November 30, 1988, the child was referred to a subcommittee of the committee on special education (CSE) by her teacher, who reported that the child was reading at the beginning fourth grade level, and that her mathematics skills were at the third grade level. She also indicated that the child had difficulty thinking abstractly, responding to questions, and following directions. The teacher reported that the child had poor study skills.

        On December 12, 1988, petitioner was interviewed for the child's social history by a school social worker. In her written report of that interview, the social worker indicated that: "Due process rights were explained as well as a Rights Booklet given to the mother." (Exhibit 5). Petitioner gave her consent to have the child evaluated by the CSE, in a form which she signed on December 12, 1988. The consent form included the following statement: "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 6). At the hearing in this proceeding, petitioner testified that she could not recall whether her due process rights had been explained to her by the school social worker. However, she testified that she had not received the due process rights booklet at that time, or at any other subsequent time, despite the assurances by respondent's staff members that a copy of the booklet would be sent to her.

        On December 13, 1988, the child was evaluated by an educational evaluator, who reported that the child had achieved grade equivalent scores of 4.0 for reading decoding, 6.2 for mathematical computation, 3.9 for mathematical applications, and 4.6 for spelling, on the Kaufman Test of Educational Achievement. The child's skills were also assessed on the Brigance Diagnostic Comprehensive Inventory of Basic Skills. She achieved grade equivalent scores of 4.0 in oral reading, 4.5 in reading comprehension, 6.0 in listening comprehension and 3.5 in word recognition skills. The educational evaluator noted that the child's reading decoding skills were inconsistently used, and that her reading comprehension skills were stronger than her decoding skills because she used contextual clues to ascertain the meaning of words. She also noted that the child wrote independently in manuscript, but could write only lower case cursive letters. The evaluator described the child's handwritten letters as being often poorly formed, and unevenly sized and spaced. The child's deficient spelling skills were described as being consistent with her deficient reading decoding skills. Although the child's mathematical computation skills were satisfactory, her mathematical application skills were weaker because she had difficulty deciding what was the appropriate strategy or mathematical operation to use in solving problems. The educational evaluator recommended that multi-sensory techniques be used with the child to teach reading and writing, and she opined that the child's delays could be remediated in a resource room program.

        A CSE psychologist, who had evaluated the child in January, 1989, reported that she had achieved a verbal IQ score of 92, a performance IQ score of 93, and a full scale IQ score of 92. Although the girl's IQ test scores were within the average range, the psychologist noted that there was a significant range of subtest scores, which was indicative of a specific learning disability. The child could visually organize well, but showed a deficit of up to three years in her perceptual motor functioning. The psychologist reported that the child had poor fine motor control. In addition, projective testing revealed that the child was anxious, and often felt that she was inadequate in comparison to her peers. The psychologist opined that the child's academic difficulties had contributed to the child's poor self-image. The psychologist also reported that certain family issues appeared to have upset the child, and he suggested that the child receive therapy to address those issues.

        On February 1, 1989, a CSE subcommittee, which lacked the required child's teacher member (cf. Section 4402 [1] [b] [1] [b] [i] of the Education Law), recommended that petitioner's daughter be classified as learning disabled. It also recommended that the child receive resource room services five times per week, to address the deficits in her reading, writing, and mathematics skills, and to improve her self-image. On the same day, petitioner gave her consent to having the child receive resource room services, by signing a final notice of recommendation form. That form indicated that:

"If, after your meeting with the CSE you do not agree with the recommendation, or, if the CSE does not issue a final recommendation within ten (10) working days, you have the right to request an Impartial Hearing. You may request an Impartial Hearing by writing to the Board of Education, Rm. 118, 110 Livingston Street, Brooklyn, N.Y. 11201. For a full description of your right to appeal, please refer to your booklet, Special Education: A Guide For Parents. If you do not have a booklet, you can get one from us." (Exhibit 10).

        The child received resource room services during the remainder of the 1988-89 school year. In September, 1989, she entered the seventh grade of I.S. 88 in Brooklyn, where she continued to receive resource room services five times per week. Petitioner testified that the child's performance improved during the first semester of the 1989-90 school year, but that she was still behind, and was struggling during the second semester of that school year. The annual review of the child's educational program was scheduled to be held by the CSE of Community School District No. 15 on March 8, 1990. The individualized education program (IEP) which was prepared on that date for the child's educational program during the 1990-91 school year indicates that the participants in the annual review were two teachers and petitioner's husband. The record does not reveal whether the two teachers who attended the meeting included at least one of the child's teachers, and a school district representative who was qualified to provide or supervise the provision of special education, as was required by 8 NYCRR 200.3 [c] [2].

        At the hearing, petitioner testified that she believed that her child's IEP was too broad, and that her resource room services were not related to the child's classwork. Although she discussed her concerns with the principal of I.S. 88, petitioner did not challenge the CSE subcommittee's recommendation for her daughter's educational program for the 1990-91 school year. However, petitioner and her husband decided to remove the child from the public school system, and to enroll her in the Berkeley Carroll School, which is a private college preparatory school in Brooklyn. The child repeated the seventh grade in the private school during the 1990-91 school year. She was enrolled in the private school's eighth grade during the 1991-92 school year.

        The child's parents were reportedly concerned about the competitive nature of the academic program at the Berkeley Carroll School. They explored the possibility of placing the child in one of respondent's high schools, but they enrolled her in the ninth grade of the York Preparatory School in Manhattan, for the 1992-93 school year. The child remained in the York Preparatory School, at her parents' expense, for four years. As noted above, she graduated from the private school in May, 1996, and had entered a college program for learning disabled students in the fall of 1996.

        At the hearing, petitioner testified that she had not been contacted by the CSE since the annual review which was conducted on March 8, 1990. She also testified that she had been informed by the principal of I.S. 88 that the child would not receive any services from respondent if her parents placed her in a private school. Petitioner testified that she assumed that she and her husband would be responsible for her child's tuition in a private school. In February, 1996, petitioner attended a parents meeting at the York Preparatory School. She testified that she first became aware that she might be entitled to obtain tuition reimbursement from respondent when she attended that meeting. Shortly thereafter, petitioner sought and obtained copies of her child's educational records from respondent.

        On May 23, 1996, respondent received a request by petitioner for an impartial hearing with regard to her claim for tuition reimbursement for the 1993-94, 1994-95, and 1995-96 school years. The hearing was scheduled to begin on June 13, 1996, at which time petitioner requested that the hearing be adjourned to afford her more time to prepare her case. The hearing transcript indicates that the parties reportedly agreed to adjourn the hearing until July 15, 1996. On July 15, 1996, petitioner appeared with a friend, who was to act as her advocate. However, her friend, who was also one of respondent's employees, withdrew because of a potential conflict of interest. The parties agreed that respondent's attorney would outline respondent's case, and that a representative of the CSE of Community School District 15 would testify about petitioner's involvement with the CSE. It was also agreed that the hearing would be adjourned until August 1, 1996, at which time petitioner would cross-examine the CSE representative. On August 1, 1996, the CSE representative was unavailable. The principal of the York Preparatory School testified about petitioner's daughter, and the services which had been provided to her at the York Preparatory School. When the hearing resumed on September 16, 1996, petitioner objected to the fact that respondent was represented by an attorney at the hearing. However, she conceded that the hearing officer had advised her of her right to be represented by an attorney. Petitioner also objected to the fact that a subpoena which respondent sought for the child's records in the York Preparatory School had reportedly been signed by a hearing officer who was not the hearing officer assigned to this proceeding. The CSE representative was cross-examined by petitioner, who also testified, and was cross-examined on September 16, 1996. The hearing concluded on that date.

        In her decision, which was rendered on October 10, 1996, the hearing officer 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). 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]). The hearing officer found that respondent had failed to meet its burden of proving that it had offered the child a free appropriate public education during any of the school years in question. Therefore, petitioner prevailed with respect to the first of the three criteria for obtaining tuition reimbursement.

        With respect to the second criterion for tuition reimbursement, the hearing officer noted that petitioner had the burden of demonstrating the appropriateness of the special education services which she had obtained for her child at the York Preparatory School. She found that petitioner had failed to meet her burden of proof because no evidence of the child's academic program had been presented at the hearing, and because the services which the child received at the York Preparatory School were not necessarily special education in nature. Therefore, petitioner did not prevail with respect to the second of the three criteria for tuition reimbursement.

        The hearing officer also found that petitioner's claim for tuition reimbursement was not supported by equitable considerations, which is the third criterion for tuition reimbursement. She found that petitioner had been advised of her due process rights, and that she had not exercised those rights in a timely manner. The hearing officer indicated that it would be inequitable to award tuition reimbursement because petitioner had waited until it was too late for the Board of Education to have an opportunity to rectify its failure to offer the child a free appropriate public education in any of the years in question.

        Petitioner contends that the hearing officer's decision should be annulled because the hearing officer allegedly displayed a bias against petitioner in the manner in which she conducted the hearing. She asserts that the hearing officer erred by allowing an attorney to represent respondent, "when regulations require that a 5-day notice be given to parent". However, each party to an impartial hearing has the right to be represented by an attorney (8 NYCRR 200.5 [c] [5]). The right to such representation is not subject to advance disclosure to the opposing party, as is the case with the introduction of evidence at a hearing (8 NYCRR 200.5 [c] [9]).

        Petitioner also asserts that the hearing officer should not have permitted respondent to have presented part of its case on July 15, 1996, and should not have adjourned the hearing from that date until August 1, 1996. The hearing officer summarized the results of an off-the-record discussion on July 15, 1996, in which the parties had reportedly agreed to the arrangements about which the petitioner now complains. The hearing officer asked respondent's attorney and petitioner whether she had accurately described their off-the-record discussion, and whether her description should be amended. Petitioner answered that inquiry in the negative. Consequently, I find that there is no merit to her assertion. I have also considered petitioner's claim that the hearing officer unfairly granted hearing adjournments to respondent, over her objection. Having reviewed the hearing transcript, I find that petitioner's claim is without merit.

        Petitioner also claims that the hearing officer and respondent's attorney badgered the principal of the York Preparatory School during his testimony at the hearing which was held on August 1, 1996. However, I find that petitioner's claim is not supported by the record. The principal was allowed to testify without interruption. The questions which respondent's attorney and the hearing officer posed to the principal were neither improper nor irrelevant.

        With regard to the merits of the hearing officer's determination, I note that there is no dispute about the appropriateness of the child's classification as learning disabled, even though she has not been re-evaluated as required by Federal and State regulations (34 CFR 300.354 [b]; 8 NYCRR 200.4 [e] [4]). In the absence of a dispute about the child's classification, I will not review the appropriateness of that classification, or the child's continued eligibility to receive a free appropriate public education under Federal and State law (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). The hearing officer's determination that respondent failed to meet its burden of proof with respect to showing that it had offered the child a free appropriate public education for each of the three school years in question has not been challenged, and will not be reviewed in this appeal.

        Petitioner contends that the hearing officer erred by finding that she had failed to establish that the educational services which her daughter had received at the York Preparatory School were appropriate. The child's parent bears the burden of proof in regard to the appropriateness of the services which the parent obtained for the child (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education 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, 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 initial question is what were the child's special education needs during the period in question. Although the child's prior evaluations were outdated by the time she entered the York Preparatory School, those evaluations revealed that her reading, writing, and spelling skills were delayed because of deficits in her perceptual motor and fine motor skills, short-term auditory memory, and attention span. At the hearing, the principal of the York Preparatory School testified that when she entered that school, petitioner's daughter evidenced signs of moderate deficits in her language skills, problems with her auditory sequential memory, and other memory weaknesses. He also noted that the child was disorganized and that she had weak study skills, which had also been noted by the child's sixth grade teacher in P.S. 3.

        The principal testified that the York Preparatory School offered a mainstream high school program to its students, approximately two thirds of whom had mild or moderate learning disabilities. All services for learning disabled students were provided within the school's regular program. The majority of the school's teachers were not certified in special education. The principal, who is certified to teach special education in the public schools of New York, testified that he supervised the instruction which was provided to the learning disabled students, and provided in-service training to the school's teachers. He acknowledged that the York Preparatory School held itself out as a general education school, but he asserted that the curricular modifications and individualized instruction which petitioner's daughter received in the York Preparatory School were similar to the services which were provided by respondent's resource room program. The child was instructed in classes which ranged from six to fifteen students. The principal testified that the deficits in the child's language skills had been addressed by her English teacher. The child received individual tutoring after school in English, mathematics, and science, as well as the other subjects in which she needed help from time to time. He further testified that the child had been taught to improve her study skills in her regular classes, and that he had individually tutored her to improve her study skills. The child also had to attend a study hall, in which a teacher checked the child's homework assignment notebook. Various modifications were made to address, or to accommodate, the child's perceptual and fine motor deficits. She received outlines and copies of teacher notes in order to relieve her of the burden of taking notes. Her teachers previewed reading assignments with her, and gave her lists of questions and vocabulary words to ease her understanding of the material which had been assigned to her. She took tests in separate locations.

        The principal testified that the child had grade equivalent scores of 6.1 in reading and 6.4 in mathematics when she entered the ninth grade in September, 1992. When tested in August, 1994, just prior to her entry into the eleventh grade, the child achieved grade equivalent scores of 10.2 in reading and 8.9 in mathematics. With the exception of two eleventh grade courses which she initially failed, but then passed in summer school, petitioner's daughter achieved satisfactory grades while pursuing a traditional college preparatory curriculum in the York Preparatory School. Upon review of the record, I find that petitioner has met her burden of proof with respect to the appropriateness of the services which the York Preparatory School provided to her daughter. While attending respondent's school, petitioner's daughter had received primary instruction in a regular education classroom, with supplementary instruction provided in a pull-out resource room program. The services which the child received in the York Preparatory School, while provided in an inclusive setting, were nevertheless similar in nature to those which she had been receiving in respondent's resource room program.

        In order to obtain tuition reimbursement, petitioner must also prevail on the third Burlington criterion, i.e., equitable considerations must support her claim for tuition reimbursement. The hearing officer found that petitioner had been advised of her due process rights, and that she had unduly delayed in asserting her claim for tuition reimbursement, to respondent's detriment. Petitioner challenges the hearing officer's finding that she had been made aware of her due process rights. She contends that there was no evidence in the record that she had ever received the parental due process rights booklet, notwithstanding the fact that she signed a form in December, 1988 indicating that she had received the booklet. She also asserts that since the United States Department of Education had determined that the booklet which respondent distributed to parents at that time was defective in certain respects, that booklet would not have adequately apprised her of her due process rights. Having examined the booklet (Exhibit S), I find that it explicitly indicated that a parent could request an impartial hearing, if the parent disagreed with the recommendation by the CSE. Even if petitioner had not been given the booklet in December, 1988, I note that the notice of recommendation which she signed on February 1, 1989, clearly indicated that she could request a hearing, if she disagreed with the CSE's recommendation, and indicated where she could obtain a copy of the booklet. Under the circumstances, I find that petitioner was apprised of her due process rights (Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-15; Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-17; Application of a Child with a Disability, Appeal No. 96-72).

        Although I am not precluded, as a matter of law, from ordering a board of education to reimburse a parent for the cost of educational services which the parent unilaterally obtained over a period of more than one school year, or for a period of time preceding the date when the parent initiated due process proceedings by requesting that an impartial hearing be held (Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]), I must nevertheless consider whether it would be equitable to order respondent to pay for the child's tuition for the three school years prior to the date when petitioner asked for an impartial hearing (Bernardsville Board of Education v. J. H. et al., 42 F. 3d 149 [3d Cir., 1994]). At the hearing, petitioner acknowledged that during the summer of 1990 she had informed the principal of I.S. 88 that she was withdrawing her child from school. Although she was not satisfied with the resource room program which respondent had provided to the child, petitioner acknowledged that she had not asked to meet with the CSE, nor had she requested an impartial hearing prior to May, 1996. The CSE representative testified that the CSE was unaware of petitioner's dissatisfaction with her child's educational program.

        Petitioner did not initiate any contact with respondent until after she learned that she might be able to obtain tuition reimbursement through a due process proceeding. Although tuition reimbursement is one remedy which may be obtained from an impartial hearing, it is not the sole purpose of having an impartial hearing. The extensive due process provisions of Federal and State law are intended to provide an inexpensive and expeditious manner 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, supra; Bernardsville Board of Education v. J.H. et. al., supra). I find that petitioner's failure to promptly raise the issue of the CSE's failure to make a recommendation for the 1993-94 and 1994-95 school years deprived respondent of any opportunity to correct its error. I further find that equitable considerations do not support petitioner's claim for tuition reimbursement for either of those school years (Application of a Child with a Disability, Appeal No. 95-86; Application of a Child with a Disability, Appeal No. 96-72).

        Petitioner's claim for tuition reimbursement for the 1995-96 school year was raised near the end of that school year. Notwithstanding petitioner's delay, which reportedly precluded respondent's CSE from observing the child attending classes in the York Preparatory School, I note that the hearing officer asked whether the CSE had been prejudiced by the delay. Respondent's attorney at the hearing acknowledged that children are generally not removed from their present placements during the school year, and that respondent would have been unlikely to prevail even if the hearing had been requested earlier in the school year. In any event, I find that petitioner's claim for tuition reimbursement for the 1995-96 school year was made during that school year, and that it was supported by equitable considerations (Application of a Child with a Disability, Appeal No. 95-77).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer's decision which denied petitioner's claim for tuition reimbursement for the 1995-96 school year is annulled;

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition in the York Preparatory School for the 1995-96 school year, upon petitioner's presentation to it of proof of such expenditures.