97-002

       Petitioner appeals from a decision of an impartial hearing officer which denied her request for an order requiring respondent to reimburse her for the cost of her son's tuition in a private school for the 1996-97 school year. The appeal must be sustained in part.

        Petitioner's son, who is 18 years old, was medically diagnosed as having Tourette Syndrome in 1988, when he was nine years old. His Tourette Syndrome is primarily manifested by multiple tics (involuntary movements). The boy has also been diagnosed as having an attention deficit hyperactivity disorder (ADHD), and an oppositional compulsive disorder (OCD). He has been classified for educational purposes as other health impaired (see 8 NYCRR 200.1 [mm][10]), since March, 1992. The child's classification is not disputed by the parties in this proceeding. However, as is noted below, the hearing officer sua sponte found the evidence in the record was insufficient to support the child's classification as a child with a disability in general, and as an other health impaired child in particular. Both parties suggest that the hearing officer exceeded his jurisdiction. I agree. While I share the hearing officer's frustration with the paucity of information about the child's special education needs in the record, I find that the issue of the child's classification had not been raised by the parties, and was not for the hearing officer to determine (Application of a Child with a Disability, Appeal No. 95-86).

        Although he was diagnosed as having Tourette Syndrome while in the elementary school of another school district, the boy was not classified as a child with a disability, and he reportedly remained in a regular education program. He entered respondent's regular education program in the fourth grade, and he remained in that program through the seventh grade. Petitioner enrolled the boy in a local parochial school for the eighth grade during the 1991-92 school year. However, shortly thereafter petitioner referred her son to respondent's committee on special education (CSE), which evaluated the boy. Petitioner's son was briefly enrolled in respondent's junior high school during the 1991-92 school year.

        For reasons that are unclear from the record, the Saratoga County Family Court placed the boy in the Parsons Child and Family Center, which has been approved by the State Education Department as a school for children with disabilities. Petitioner's son remained at Parsons as a residential student for the majority of the 1992-93 school year.

        During the 1993-94 school year, petitioner's son attended the Saratoga Springs High School for the ninth grade. He apparently achieved passing grades academically, but had behavioral difficulties. The child was reportedly placed in a fully self-contained special education program for that school year. For the tenth grade during the 1994-95 school year, petitioner's son was placed in a regular education program for all classes but science, at petitioner's insistence.

        In November, 1994, petitioner removed her son to a private facility, the North Hampton School, in New Hampshire. The North Hampton School reportedly asked petitioner's son to leave after only two weeks in attendance. Petitioner then enrolled her son at the Oxford School, a private school for emotionally disturbed students in Westbrook, Connecticut. After a period of five weeks, petitioner's son was reportedly asked to leave the Oxford School. In February, 1995, petitioner enrolled her son at the Hampshire Country School, where the student remained for the remainder of the 1994-95 school year. The student continued to attend the Hampshire Country School for all of the 1995-96 school year. It has not been approved by the State Education Department as a school for children with disabilities. While in the Hampshire Country School, petitioner's son reportedly performed well academically, and met with some social success.

        In September, 1995, petitioner instituted a due process proceeding to obtain reimbursement for the cost of her son's tuition in the Hampshire Country School during the 1995-96 school year. In December, 1995, an impartial hearing officer determined that the boy should remain in the Hampshire Country School, until the State Education Department could help respondent's CSE identify an appropriate educational placement for him. He also directed respondent to reimburse petitioner for the cost of the boy's tuition in the private school since his initial placement, and awarded her attorney fees and expenses. The Saratoga Board of Education appealed from the hearing officer's decision.

        In Application of the Board of Education of the Enlarged City School District of the City of Saratoga Springs, Appeal No. 96-9, I found that the impartial hearing officer had exceeded his jurisdiction to the extent that he ordered respondent to reimburse petitioner for the cost of the boy's tuition during the 1994-95 school year, which was not the subject of that proceeding, and to the extent that he had awarded attorney fees and expenses to petitioner. With respect to the 1995-96 school year, I found that the board of education had failed to meet its burden of proof with respect to the appropriateness of another private school which its CSE recommended that the boy attend, and that there was sufficient evidence in the record to indicate that the boy could reasonably be expected to achieve his individualized education program (IEP) annual goals in the Hampshire Country School. Consequently, I found that petitioner had met her burden of proof regarding the appropriateness of that school's educational program. In addition, I determined that equitable considerations supported petitioner's claim for tuition reimbursement for the 1995-96 school year. The boy remained in the Hampshire Country School, where he received all A's and B's, except for one C, on his report card. According to respondent's school psychologist, the boy's standardized achievement test results in March, 1996 indicated that he had made positive growth in all areas tested.

        In June, 1996, petitioner removed her son from the Hampshire Country School, and enrolled him for the summer in the Woodhall School, which is located in Bethlehem, Connecticut. According to petitioner, the attendance at the summer session was a prerequisite for the child's acceptance into the Woodhall School for the 1996-97 school year. In September, 1996, petitioner's son commenced his twelfth grade education at the Woodhall School, where he has remained. Petitioner alleges that her son could not remain in the Hampshire Country School during the 1996-97 school year because the private school decided not to offer a twelfth grade program. Consequently, she was obligated to find another placement for her son. However, two of respondent's witnesses at the hearing challenged petitioner's explanation for the reason why she withdrew the boy from the Hampshire Country School. I note that in an August 26, 1996 letter to petitioner (Exhibit B) the school's interim headmaster confirmed that the child had not been accepted back for the summer, or the 1996-97 school year. In any event, petitioner notified the CSE chairperson on or about May 29, 1996 that her son would not return to the Hampshire Country School, and that she wanted him to attend the Woodhall School (Exhibit A).

        At a meeting on July 17, 1996, respondent's CSE prepared the child's IEP for the 1996-97 school year. It recommended that the boy be placed in a 24-hour residential program commencing in September, 1996. The IEP which the CSE prepared for the boy indicated that he did not require related services or adaptive devices. The IEP did provide that the time limits on the boy's tests should be waived. At the hearing, respondent's school psychologist testified that the extended time limits were intended to address the boy's anxiety, which is a manifestation of his Tourette Syndrome. Although the CSE determined that petitioner's son could not be educated in a traditional high school setting, and that he required a highly structured environment and small classes, it did not recommend a specific placement for the student. Instead, it contacted the State Education Department about possible placements pursuant to the Department's emergency interim placement procedure. On or about August 14, 1996, a representative of the Department suggested that three out- of-state private schools should be considered by the CSE. Two of those schools subsequently indicated to the CSE that the boy would not be appropriately placed with them. The Department representative also informed respondent's CSE chairperson that respondent could not place the boy in the Woodhall School because that school had not been approved as a school for children with disabilities by the State of Connecticut.

        On August 9, 1996, petitioner requested that an impartial hearing be held with regard to her son's IEP, and respondent's alleged failure to offer the boy a free appropriate public education (see 20 USC 1401 [a][18]) for the 1996-97 school year. The hearing was held on September 30 and October 2, 1996. In his decision, which was undated, but reportedly rendered in November, 1996, the hearing officer determined that respondent's CSE met its burden of proof with regard to the appropriateness of the educational program and placement which it had recommended for the boy. This was based upon the fact that the child did not appear to require a residential placement, and that the proposed placement was not the least restrictive placement for him.

        The hearing officer also found that the record did not reveal to his satisfaction how the child's Tourette Syndrome had impaired the boy's educational performance, and he concluded that the child's classification as other health impaired appeared to be improperly established. He indicated that there was a serious question as to whether the child could be appropriately classified as a child with a disability, noting that the State Education Department had reportedly expressed a similar concern to the CSE. The hearing officer also indicated that he had sought a description of the child's special education needs from the parties, but that neither the parties nor the boy's IEP had described those needs. He also found that the boy's IEP annual goals and short-term instructional objectives were defective. He concluded that the CSE had not accurately identified the boy's special education needs, nor had it recommended appropriate special education services to address those needs. The hearing officer went on to find that no special education services were being provided to the student at the Woodhall School, and he denied petitioner's request that respondent be required to reimburse her for the cost of her son's tuition in the Woodhall School for the 1996-97 school year.

        As a procedural matter, I must note that in paragraph 16 of its answer, respondent asserts it had offered an appropriate placement to petitioner's son. Federal and State statutes provide that the hearing officer's decision is final and binding upon both parties at the hearing, unless appealed to the State Review Officer (20 USC 1415; Section 4404 [1] of the Education Law). Parties seeking review of a hearing officer's decision must initiate an appeal by serving and following a petition for review at (8 NYCRR 279.4), which respondent has not done. Although respondent in an appeal may cross-appeal from a hearing officer's decision as an answer to the petition (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Disability, Appeal No. 95-2), respondent has not done so. A portion of respondent's answer may be deemed to be a cross-appeal when petitioner has not been deprived of an opportunity to address the issues raised by the cross-appeal (Application of the Board of Education, Ellenville CSD, Appeal No. 94-43). In this instance, petitioner has not been afforded that opportunity. Therefore, I will not consider respondent's claim that the hearing officer erred in finding that the CSE's proposed placement was appropriate (Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Disability, Appeal No. 97-8).

        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 has not been 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). I must note that not only has respondent failed to properly raise the issue of the appropriateness of the placement which its CSE recommended by cross-appealing from the hearing officer's decision, but that it has failed to demonstrate that there was in fact any specific placement available for the boy as of September, 1996. Indeed, the CSE had failed to recommend a specific placement for him. Although respondent's witnesses referred to the boy's possible placement in the Eagle Hill School, which was the third of the three private schools which had been suggested by the State Education Department's representative, respondent's school psychologist testified that an administrator of the Eagle Hill School had indicated to her that there were no openings in the school. Respondent's CSE chairperson also testified that there was no place for petitioner's son in the Eagle Hill School.

        With respect to the second Burlington Prong, 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 Woodhall School during the 1996-97 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 initial question is what are the boy's special education needs. Unfortunately, the boy's IEP does not adequately describe those needs. In determining what the boy's needs are, I have considered the entire record, which includes the hearing officer's decision and my decision in the prior proceeding. In my prior decision, I noted that the boy had a history of self-injurious behavior, emotional fragility, and victimization while attending respondent's schools. At the hearing in this proceeding, respondent's school psychologist testified that the boy continued to be impulsive and anxious, but that his emotional condition had improved by June, 1996. She attributed the improvement in the boy's emotional condition to the fact that he had attended the Hampshire Country School during the 1995-96 school year. However, she testified that the petitioner's son continued to have highly intensive management needs which would be appropriately addressed in a residential school with small classes, a flexible discipline policy, and a challenging academic program. Although the achievement test scores which the boy had achieved in March, 1996 indicated that his academic achievement was in the above average range, the school psychologist testified that the boy continued to have deficits in his study skills. Respondent's CSE chairperson also testified that the boy required a structured environment, with small classes, and academically challenging courses.

        When questioned by the hearing officer about the extent of the boy's management needs, the CSE chairperson testified about the child's prior experience in respondent's schools, and she asserted that the boy's management needs were more severe than those of other children with Tourette Syndrome who were being educated in respondent's schools. She also testified that the boy had apparently had some behavioral difficulties while attending the Hampshire Country School. The CSE chairperson testified that the boy continued to exhibit a poor decision making ability, which was related to his educational disability, and that he had difficulty maintaining satisfactory relationships with his peers and with adults, which was also a manifestation of his disability.

        Petitioner contends that the hearing officer's decision is not supported by the record. She asserts that her son's need for special education services was established in the prior proceeding, and that he continues to require special education services, notwithstanding the fact that he enjoyed academic success and emotional growth while attending the Hampshire Country School during the 1995-96 school year. Petitioner argues that the hearing officer ignored the testimony by respondent's school psychologist and its CSE chairperson which supported her own testimony about her son's continuing need for special education services. Although the hearing officer was not foreclosed from ascertaining what the child's present special education needs were for the 1996-97 school year by the findings which I and the other hearing officer had made in the prior proceeding, I find that the testimony of the school psychologist and the CSE chairperson established that petitioner's son continued to have special education needs during the 1996-97 school year.

        The next question is whether there is a basis in the record to conclude that the Woodhall School provided appropriate services to address the boy's special educational needs. The hearing officer noted that the Woodhall School appeared to offer an educational program which was similar to that of the Hampshire Country School, in which the boy had done exceptionally well. He further noted that the Woodhall School had more age appropriate peers for petitioner's son than he would have had if he attended the Hampshire Country School. Nevertheless, the hearing officer found that petitioner could not prevail with respect to the appropriateness of the Woodhall School's services because the boy was not in fact receiving any special education services in that school. He further found that petitioner had failed to demonstrate that the Woodhall School was the least restrictive environment for petitioner's son during the 1996-97 school year.

        The hearing officer premised his decision with regard to the nature of the services which were being provided to the boy by the Woodhall School at least in part upon a statement made by the CSE chairperson at the hearing. When the hearing officer asked her what special education needs of the boy were being met at the Woodhall School, the CSE chairperson responded:

"There are no special education needs being met at Hampshire Country School or Woodhall, other than the fact of the environment. And, that has been a question that has been raised a number of times" (Transcript, page 164).

        I find that the CSE chairperson's statement must be appraised in light of the rest of her testimony which unequivocally established that she believed that petitioner's son could not be successfully educated in a regular education placement. In this proceeding, as in the prior proceeding, the CSE determined that the boy had special education needs which could not be met in respondent's schools, or in the local BOCES. The term "special education" is defined by Federal and State statutes as "specially designed instruction" to meet a child's unique needs (20 USC 1401 [a] [16]; Section 4401 [1] of the Education Law). As noted above, this child has difficulty remaining on task, and has weak study/organizational skills. His hyperactivity has affected both his academic achievement, and his ability to successfully interact with others. When he becomes frustrated by his lack of academic and social success, the boy becomes anxious. His anxiety may be reflected by an increased amount of tics, i.e., involuntary muscle motor movements. He requires more adult supervision than most of his peers, and those who work with him must be aware of his Tourette Syndrome and related conditions, and the ways in which he manifests those conditions.

        Regrettably, no representative of the Woodhall School testified at the hearing in this proceeding. However, that omission is not dispositive of the matter (Application of a Child with a Disability, Appeal No. 96-9). Petitioner introduced into evidence a brief written description of the Woodhall School, which indicated that:

"The Woodhall Program is designed to meet the needs of students who manifest one or more of the following characteristics: lack of motivation, low self-confidence, difficulty with academic or study skills, problematic family- or health-related issues, a mild learning disability, attention deficit disorder, or a neurological impairment. Each student has a faculty advisor who meets with him at the beginning of the day and who monitors all aspects of a student's growth... Communications Groups on Self-Expression with Accountability meet twice weekly under the guidance of a trained faculty leader. The Committee for Accountability, composed of faculty and students, provides a vehicle for resolving School-related issues" (Exhibit C).

        At the hearing, petitioner testified that the Woodhall School was providing her son with the academically challenging instruction in a structured setting which the boy required. She explained that the "Communications Groups on Self-Expression" which were referred to in Exhibit C consist of groups of four or five students and a teacher, which met for the purpose of developing the students' social skills, their ability to articulate their needs, and their ability to communicate with peers and adults. Petitioner also testified that the child's program was closely supervised at the Woodhall School to prevent him from becoming over-stimulated, and manifesting more symptoms of Tourette Syndrome. Her testimony is unrefuted in the record. Indeed, the testimony by respondent's school psychologist and CSE chairperson supported petitioner's testimony. Under the circumstances, I find that petitioner met her burden of proof with respect to the appropriateness of the Woodhall School's services to address her son's unique needs.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's request for reimbursement. The hearing officer did not reach this issue because of his finding with respect to the second criterion for reimbursement. Having found that petitioner has prevailed with regard to the second criterion, I now reach the issue of the third criterion. My review of the record has led me to conclude that petitioner has cooperated with the CSE at all times. She promptly raised the issue of a new placement for her son with the CSE, and she attended the CSE review of her son's program. Although she raised the issue of the boy's placement on a timely basis, petitioner did not receive an offer of an appropriate placement by the beginning of the school year. I find that equitable considerations support her claim for tuition reimbursement for the period from September, 1996 through June, 1997.

        There is one more issue to be determined: whether petitioner is also entitled to receive tuition reimbursement for the expense of her son's tuition in the Woodhall School during July and August, 1996. Although respondent's CSE had recommended that the boy be instructed on a twelve- month basis during the 1995-96 school year, the CSE recommended that he be instructed on a ten-month basis during the 1996-97 school year. I concur with the CSE's recommendation for the latter school year. Eligibility for twelve-month educational programming is to be determined in accordance with the criteria set forth in 8 NYCRR 200.6 (j), which, in general, provides that such programming is to be provided when necessary to prevent a substantial regression in a child's skills. I find that there is no basis in the record to support a finding that the boy's skills would have substantially regressed without an instructional program during July and August, 1996. I have also considered petitioner's claim that her son had to attend the Woodhall School in July and August, 1996 in order to be eligible to attend that school during the 1996-97 school year. I find nothing in the record to substantiate that claim. I note that the school's summer school reports indicate that the boy was well prepared academically for the school's curriculum. Therefore, I will deny petitioner's claim for summer school tuition reimbursement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that it denied petitioner's claim for tuition reimbursement for the period from September, 1996 through June, 1997; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition at the Woodhall School during the 1996-97 school year, upon petitioner's presentation to respondent of proof of such expenditures.