97-008

         Petitioner appeals from the decision of an impartial hearing officer which denied her request for an order requiring respondent to reimburse her for her son's tuition in a private school during the 1995-96 school year. The appeal must be sustained.

        At the outset, I note that respondent contends that petitioner's service of the notice of petition and the verified petition are untimely, and must be dismissed. The decision of the hearing officer was rendered on November 19, 1996. However, the record does not reveal when petitioner received a copy of the decision. On December 17, 1996, a notice of petition was served upon respondent, but no petition was attached to that notice of petition. Upon receipt of the notice of petition, on January 6, 1997, the State Education Department informed petitioner's attorney that petitioner's appeal could not be accepted because she had not filed a notice of intention to seek review, and had not submitted a verified petition in the prescribed format. Petitioner's attorney was directed to serve a new petition upon respondent, within two weeks thereafter. On January 16, 1997, petitioner served a notice of intention to seek review, again with no petition attached. Finally, on January 29, 1997, a notice of petition and verified petition were served upon respondent.

        Although petitioner appears to have been slightly dilatory in perfecting her appeal, I find that respondent has been on notice since December 17, 1996 that petitioner intended to seek review of the hearing officer's decision. Respondent has not alleged that it has been prejudiced by petitioner's delay. Under the circumstances, I will exercise my discretion, and excuse petitioner's delay (Application of a Child with a Disability, Appeal No. 95-20; Application of a Child with a Disability, Appeal No. 96-10).

        Petitioner's son, who is eight years old, was diagnosed at birth as having Down Syndrome. He was initially classified as mentally retarded by respondent's committee on special education (CSE) in 1993. At that time, the CSE recommended that the child be placed in respondent's modified instructional services-V (MIS-V) program. Petitioner reportedly did not accept the CSE's recommendation, and she requested that an impartial hearing be held to review the CSE's recommendation. However, the hearing was ultimately discontinued, at petitioner's request. During the next two school years, the child was educated at home by petitioner.

        On May 30, 1995, respondent's CSE recommended that the child be classified as mentally retarded, and that he be instructed in a self-contained MIS-V class with a 10:1+1 child to adult ratio. The individualized education program (IEP) which the CSE prepared for the child indicated that his cognitive skills were at the second percentile, and that his short-term auditory and visual memory skills were weak. It also indicated that he had heart, lung and kidney conditions which limited his physical exertions. The IEP annual goals for the boy included improving his auditory and visual skills, pre-academic skills, language skills, fine and gross motor coordination skills, and his social/behavioral skills. Although the CSE did not recommend that the child receive any related services, it nevertheless included annual goals for speech/language and occupational therapy in his IEP.

        On or about June 7, 1995, respondent notified petitioner that a place for the child would be available at PS 18 in Manhattan. However, petitioner had already requested that an impartial hearing be held to review the CSE's recommendation. A hearing was reportedly convened by telephone conference call on June 22, 1995. At that time, petitioner requested an adjournment so that she could prepare her case and obtain witnesses. The hearing officer reportedly declined to grant an open-ended adjournment, and indicated that he would close the case, with leave for petitioner to reopen it at a later date.

        In September, 1995, petitioner enrolled her son, at her expense, in the Sts. Simon and Jude School, which is a private school which has been approved by the State Education Department to instruct children with disabilities. The child remains in the Sts. Simon and Jude School for the current school year. However, he was placed by respondent in that school for the 1996-97 school year.

        On November 3, 1995, petitioner again requested that an impartial hearing be held because she wanted to "decline [the CSE's] recommendation," and to obtain "reimbursement of school program." (Exhibit C). At the hearing which was held in the instant proceeding, petitioner testified that she had been advised by respondent's staff to cancel her request for a hearing in order to first address some issue about related services for the child. By letter to the CSE, dated December 5, 1995, petitioner asked the CSE to review speech/language, occupational therapy, and physical therapy evaluations of the boy at the Columbia Presbyterian Hospital. Thereafter, the child's case was apparently transferred from the CSE of Community School District 6 to that of Community School District 21. On February 21, 1996, petitioner asked the latter CSE to evaluate her son. She also indicated in her letter to the CSE that "I am requesting that the CSE authorize and fund my son's private school placement." (Exhibit F).

        On or about April 3, 1996, petitioner requested that an impartial hearing be held with regard to her child's transportation to the private school. That matter was reportedly settled by the parties.

        On July 26, 1996, petitioner requested that an impartial hearing be held for the purpose of obtaining tuition reimbursement for the 1995-96 school year. The hearing in this proceeding was held on August 20, 1996, and October 29, 1996. At the hearing, respondent's representative stipulated that the child had received appropriate special education services at the Sts. Simon and Jude School during the 1995-96 school year. The parties agreed that the boy's classification as mentally retarded was not disputed. However, respondent contended that it had offered the boy an appropriate educational placement for the 1995-96 school year, and that it should not be required to reimburse petitioner for the cost of the child's private school tuition. At the hearing, petitioner testified that she had been advised by a representative of Community School District 6 to unilaterally enroll her son in a private school, wait a few months, and then ask the CSE to evaluate the child, as prerequisites for obtaining public funding of a private school placement. She testified that she had followed the representative's advice.

        In his decision, which was rendered on November 19, 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 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 demonstrate that there was an appropriate public school placement available for the child during the 1995-96 school year, in part, because it failed to explain how the recommended MIS-V program would have addressed the child's special education needs.

        Since petitioner had prevailed on the first of the three Burlington criteria for tuition reimbursement, and respondent had conceded that petitioner had met her burden of proof with regard to the second criterion, i.e., the appropriateness of the private school's services, the hearing officer turned to the third criterion, i.e., did equitable considerations support petitioner's request for tuition reimbursement. He found that equitable considerations did not support her request for tuition reimbursement because petitioner had allegedly failed to work with the CSE, and to give it an opportunity to find a suitable placement for her child after the CSE had made its recommendation on May 30, 1995. The hearing officer found that, rather than communicating with the CSE about the nature of her disagreement with its recommendation, petitioner had simply unilaterally enrolled her child in a private school. He suggested that if petitioner had worked cooperatively with the CSE, it was possible that an appropriate public school placement would have been found for the boy.

        As an initial procedural matter, I must note that respondent's second affirmative defense asserts that the CSE's recommendation of an MIS-V placement with no related services for the 1995-96 academic year was suitable and appropriate. It requests that the hearing officer's decision that it did not offer a suitable and appropriate public placement for the child for the 1995-96 academic year be reversed. Federal and state statutes provide that a hearing officer's decision is final and binding upon both parties at the hearing, unless appealed to the state review officer (20 U.S.C. 1415; Section 4404 [1] of the Education Law). A party seeking review of a hearing officer's decision must initiate an appeal by serving and filing a petition for review at (8 NYCRR 279.4), which respondent has not done. Although a respondent in an appeal may cross-appeal from a hearing officer's decision in its 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 proposed MIS-V class offered was inappropriate (Application of a Child with a Disability, Appeal No. 95-8).

        Although a parent is not precluded, as a matter of law, from obtaining reimbursement for the cost of services which were provided prior to the date when the parent initiated due process proceedings (Northeast Central School District v. Sobol, 78 NY 2d 598 [1992], the timeliness of a claim for tuition reimbursement is one of the elements which may be considered in determining whether the parent's claim is supported by equitable considerations (Bernardsville Board of Education v. J.H. et al., 42 F 3d 149 [3d Cir., 1994]; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25). As has been indicated on a number of occasions, prompt resort to due process proceeding must be made, so that school authorities have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education.

        At the hearing, a representative of the CSE of Community School District 6, who had attended the CSE meeting on May 30, 1995, testified that the CSE was aware of petitioner's dissatisfaction with the CSE's recommendation at that meeting. She further testified that petitioner had been given a list of state approved private schools. Petitioner also put the CSE on notice of her dissatisfaction by requesting a hearing shortly after the CSE meeting. Although the hearing was apparently discontinued, without prejudice to reopening, there is no evidence in the record that petitioner ever advised the CSE that she had withdrawn her objection to the CSE's recommendation, or that she did not wish to pursue her due process right to a hearing. The fact that she later requested a hearing with respect to the adequacy of the child's transportation to the private school does not, in my opinion, support an inference that she had abandoned her right to challenge the May 30, 1995 CSE recommendation that the boy be placed in the MIS-V program for the 1995-96 school year. Her November 11, 1995 request for a hearing specifically raised the issue of tuition reimbursement. Under the circumstances, I find that respondent was well aware of petitioner's desire to obtain tuition reimbursement long before she requested a hearing on July 26, 1996, and that it had an ample opportunity to correct any inadequacy or inappropriateness in the educational program and placement recommended by the CSE.

        While I do not review the hearing officer's determination with respect to the appropriateness of the recommended program, I must note that in a letter dated May 17, 1995, a physician at Columbia Presbyterian Hospital had recommended that the child receive speech therapy, occupational therapy, physical therapy, psychological counseling, and computer communication training (Exhibit A). The CSE representative acknowledged at the hearing that the CSE was aware of the boy's "outside" evaluations, but it failed to incorporate the results of those evaluations in his IEP, or to conduct its own tests to ascertain whether he required those related services. The fact that petitiner provided that information to the CSE, and that she thereafter worked with the CSE in an attempt to have his related services needs assessed is further evidence of her cooperation with the CSE. I therefore find that the hearing officer's determination is not supported by the record, and that equitable considerations support petitioner's claim for tuition reimbursement for the 1995-96 school year (Application of a Child with a Disability, Appeal No. 95-96; Application of a Child with a Disability, Appeal No. 96-72).

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition in the Sts. Simon and Jude School for the 1995-96 school year, upon petitioner's presentation to respondent of proof of those expenditures.