97-011

       Petitioner appeals from the decision of an impartial hearing officer which denied her claim for tuition reimbursement by respondent for the 1993-94, 1994-95, and 1995-96 school years on the grounds that she failed to assert her claim in a timely manner. Respondent cross-appeals from the hearing officer's order requiring it to reimburse petitioner for the cost of her daughter's private school tuition during the 1996-97 school year. The appeal must be dismissed. The cross-appeal must also be dismissed.

        At the outset, I will address certain procedural issues which the parties have raised. The board of education initially attempted to appeal from the hearing officer's decision, but it failed to personally serve its petition upon the child's parent in the manner prescribed by 8 NYCRR 275.8 (a). It requested authorization to alternatively serve its petition, in accordance with the provision of that regulation. In the interim, petitioner appealed from the hearing officer's decision. On March 3, 1997, the board's attorney was advised by the Office of State Review that the board of education could either serve its petition by the alternative method, or it could challenge the hearing officer's order by cross-appealing from that order in its answer to the parent's petition. The board of education chose the latter option. Petitioner has objected to the form and content of the board's answer and cross-appeal. I find that there is no merit to petitioner's objection.

        The board has objected to the parent's petition on the ground that she failed to serve copies of Exhibits II and III to the petition upon it. I note that the copy of the petition which is before me has only a single exhibit, Exhibit I. Exhibit I is a "Table of Comparison" which highlights alleged discrepancies between the tape recordings of the impartial hearing (designated as Exhibit II-C) which she obtained from respondent and the written transcript of the hearing. In her petition, the parent identifies Exhibit III as a memorandum of law which she submitted at the hearing. I note that the record of the hearing which the board of education has provided to me includes petitioner's memorandum of law. While I agree with the board of education that copies of exhibits to a petition should be included with the petition when it is served upon the respondent, I must note that respondent already had the two exhibits. Therefore, I find that the board of education has not been prejudiced by petitioner's failure to serve copies of the exhibits with her petition.

        Respondent objects to my consideration of Exhibit I to the petition, which highlights certain discrepancies between the text of the hearing transcript and the tape recording of the hearing. It insists that petitioner should have contacted respondent's impartial hearing officer to arrange for the correction of the transcript. While not disputing the accuracy of the information which is set forth in Exhibit I, respondent contends that petitioner's attempt to revise the transcript is untimely because the hearing officer has rendered his decision on the basis of the written transcript. It offers no legal basis for its contention, which I find to be without merit. Respondent further contends that any errors or omissions which occur in the written transcript are immaterial, and would not afford a basis for setting aside the hearing officer's decision. It is respondent's legal obligation to maintain a written or electronic verbatim record of the proceedings before the hearing officer (34 CFR 300.508 [a][4]; 8 NYCRR 200.5 [c][2]).

        Petitioner has not challenged the accuracy of the taped (electronic) version of the hearing. Although I find that respondent has literally complied with the regulatory requirement by maintaining a verbatim electronic version of the hearing, I agree with petitioner that the written transcript has several errors and omissions. Respondent is admonished to ensure that the written transcripts of its hearings accurately reflect the hearings. I must note that much of the hearing was conducted as an extended colloquy between the hearing officer, petitioner, a friend of petitioner's and the CSE representative. On several occasions, individuals interrupted each other, or spoke simultaneously, making it difficult to follow the discussion. It was the hearing officer's responsibility to conduct the hearing in a manner which would allow an accurate record of the hearing to be prepared (Application of a Child with a Disability, Appeal No. 93-4). Nevertheless, I am persuaded, after reviewing the tape recordings and the written transcript, that the flaws of the latter do not provide a basis for setting aside the hearing officer's decision.

        Petitioner's daughter, who is 17 years old, attended P.S. 8 for kindergarten and the first grade. Petitioner enrolled her child in a nearby parochial school for the second and third grade. Thereafter, she repeated the third grade in the Brooklyn Friends School. During the 1989-90 school year, the child was in the fourth grade at the Brooklyn Friends School. In February, 1990, petitioner referred her daughter to the committee on special education (CSE) of Community School District 13. The CSE recommended that the child be classified as learning disabled, and that she receive resource room services and counseling in P.S. 8.

        Petitioner did not accept the CSE's recommendation. At her request, an impartial hearing was conducted in July, 1990, to review the CSE's recommendation. She reportedly contended that the resource room services recommended by the CSE would be inadequate to address her daughter's special education needs, and she reportedly requested that the hearing officer order respondent to place the child in a private school for children with disabilities. The hearing officer found that the child was of average intelligence, and that her reading and mathematics skills were delayed by approximately one and two years, respectively, notwithstanding the fact that she had received remedial instruction. He further noted that the child appeared to have a poor attention span. The hearing officer found that petitioner's daughter was mildly learning disabled. In view of the child's educational history, the hearing officer further found that the resource room services that the CSE had recommended would not adequately address the child's needs. He concluded that she required instruction in a self-contained class for most, if not all, of her subjects. He directed the CSE to prepare a new individualized education program (IEP) for the child, so that she could be enrolled in one of respondent's modified instructional services-I (MIS-I) classes in September, 1990.

        Petitioner did not appeal from the hearing officer's decision. However, she chose to unilaterally enroll the child at her expense in the Stephen Gaynor School, which is a private school which has not been approved by the State Education Department as a school for children with disabilities. The record reveals that in a letter to the chairperson of the CSE of Community School District 13, dated January 18, 1991, petitioner indicated that she had enrolled the child in the Stephen Gaynor School, and that she would request that the child be re-evaluated by the CSE for the purpose of making a placement recommendation for the 1991-92 school year, as soon as she had acquired some additional information for the CSE to consider. The CSE chairperson for Community School District 13 advised petitioner to contact the CSE of Community School District 3, in which the Stephen Gaynor School is located, to reopen her child's case. The child remained in the Stephen Gaynor School from the 1990-91 through the 1992-93 school years. While in that school, she reportedly made up the year she had lost by repeating the third grade, so that she completed the eighth grade in the 1992-93 school year.

        In September, 1993, petitioner enrolled her daughter, at her expense, in the York Preparatory School, which is a private school in Manhattan. The York Preparatory School has not been approved by the State Education Department as a school for children with disabilities. The child remained in the private school through the 1996-97 school year, and was reportedly scheduled to graduate from it in May, 1997. Her transcript for the 1993-94 (ninth grade), 1994-95 (tenth grade), and 1995-96 (eleventh grade) school years indicate that she achieved passing grades in each of her typical "college prep" academic courses. In 1995, she scored in the 42nd percentile for verbal and the 35th percentile for mathematics on the PSAT administered by the College Entrance Examination Board.

        At the hearing in this proceeding, petitioner testified that she had not had any contact with the CSE of Community School District 13, or with the CSE of Community School District 2, to which her daughter's records had reportedly been sent by Community School District 13, during the 1993-94 and 1994-95 school years. A representative of the Community School District 2 CSE testified that the CSE had not prepared an IEP for the girl during either of these two school years. The CSE representative further testified that the CSE was not aware of the child until petitioner referred her to the CSE of Community School District 2, in a letter dated February 27, 1996. In her letter (Exhibit 3), petitioner indicated that:

" We are currently seeking a placement and provision of Special Education services for the 1996-97 academic year."

        In response to petitioner's letter, the CSE arranged to have petitioner's daughter evaluated. A school psychologist who evaluated the girl on April 25, 1996 reported that she had received a verbal IQ score of 85, a performance IQ score of 64, and a full scale IQ score of 73. It should be noted that the child's IQ scores were comparable to those which she had achieved when tested by a private psychologist in the Fall of 1995. The school psychologist opined that the discrepancy between the child's verbal and performance IQ scores was indicative of a learning disability in the visual/motor/perceptual areas which would affect the girl's ability to read and write. She noted that the child also had particular difficulty performing mathematical computations. The psychologist also reported that an analysis of the child's scores on the performance IQ subtests supported an inference that petitioner's daughter had depressive, withdrawing tendencies, reduced social sensitivity and attentiveness, and trouble with more complex processing situations. She described the child as being prone to defensiveness and avoidance. Projective testing suggested that the child's affect had not been fully developed, and she failed to acknowledge the emotional aspects of her own experience. However, the girl demonstrated no sign of a thought disorder. The school psychologist opined that the child would have difficulty in a regular education setting, unless she used compensatory techniques or received additional assistance. She recommended that the child receive counseling.

        Petitioner's daughter was also evaluated by a CSE educational evaluator on April 25, 1996. The girl reportedly could decode words at a mid-tenth grade level, but her reading comprehension skills were found to be at the early sixth grade level. At the time of the evaluation, the girl was in the eleventh grade. The evaluator reported that the mathematical computation skills of petitioner's daughter were also at the early sixth grade level, while her ability to solve applied mathematical problems were at the early fifth grade level. She further reported that the girl's writing skills were at the upper fourth grade level.

        On June 5, 1996, the CSE of Community School District 2 recommended that petitioner's daughter remain classified as learning disabled. It should be noted that the girl's classification is not disputed in this proceeding. The CSE also recommended that the girl receive five periods per week of supplemental instructional service (resource room) while enrolled in regular education classes, and that she be provided with individual counseling once per week. On or about June 20, 1996, petitioner was offered a placement for her daughter in respondent's Richard Green High School. Petitioner objected to the CSE's recommendation at least in part because the girl's IEP annual goals and short-term instructional objectives were allegedly inappropriate for her. On August 19, 1996, the CSE reconvened, and it reportedly revised the child's IEP goals and objectives. However, it adhered to its prior recommendation that the child receive resource room services and counseling during the 1996-97 school year.

        In the interim between the first and second CSE meetings with regard to the child's placement for the 1996-97 school year, petitioner requested that an impartial hearing be held for the purpose of obtaining the relief of tuition reimbursement for the child's tuition at the York Preparatory School during the 1993-94, 1994-95, and 1995-96 school years. The hearing briefly convened on July 31, 1996, when it was adjourned at respondent's request until September 16, 1996. On the latter date, the CSE representative sought an additional adjournment, which petitioner opposed. The hearing officer ruled that he would take testimony from an administrator of the York Preparatory School about the child's progress, and the services which had been provided to her by the private school. He denied respondent's motion to dismiss as a matter of law petitioner's tuition reimbursement claims for the 1993-94 and 1994-95 school years. With the agreement of both parties, the hearing officer accepted jurisdiction to determine petitioner's claim for tuition reimbursement at the York Preparatory School for the 1996-97 school year. The hearing resumed, and concluded on October 3, 1996. At the hearing, the CSE representative acknowledged that no IEP had been prepared for petitioner's daughter during the 1993-94, 1994-95, and 1995-96 school years. With regard to the IEP which the CSE had prepared for the 1996-97 school year, the CSE asserted on two occasions that the CSE was not defending its recommendation (Transcript, pages 57 and 62).

        In his decision which was rendered on January 13, 1997, 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 impartial hearing officer found that petitioner's failure to request an impartial hearing during the 1993-94 and 1994-95 school years barred her claim for tuition reimbursement for both school years. With regard to the 1995-96 school year, the hearing officer noted that petitioner had contacted the CSE in March, 1996 for the purpose of obtaining a placement for the 1996-97 school year, and that only when she requested a hearing at the end of the 1995-96 school year had she raised the issue of the child's placement for the 1995-96 school year. He found that it would be inequitable to award her tuition reimbursement for that school year. The hearing officer awarded tuition reimbursement to petitioner for the 1996-97 school year on the grounds that respondent had failed to make a timely placement offer because it did not have a properly constituted CSE until August 19, 1996, and that petitioner had demonstrated the appropriateness of the services which her daughter had received in the York Preparatory School. He further found that equitable considerations supported her claim for tuition reimbursement for the 1996-97 school year.

        Petitioner contends that she was denied procedural due process of law at the hearing because the hearing officer refused her request that five past or present board of education employees be subpoenaed to testify at the hearing. Four of the individuals were reportedly involved with the child when she was evaluated in 1990 by the CSE of Community School District 13. The hearing officer denied petitioner's request because, he found that the testimony of the proposed witnesses would not be relevant to determining petitioner's right to tuition reimbursement for the 1993-94 and subsequent school years.

        A hearing officer has an obligation to assist parents who are not represented by an attorney with their requests for subpoenas (Application of a Child with a Handicapping Condition, Appeal No. 92-8). However, a hearing officer has the power to require the parents to show that the witnesses to be subpoenaed would provide testimony which is relevant to the issues to be decided (Application of a Child with a Disability, Appeal No. 96-26). I concur with the hearing officer's determination that the events in 1990 to which petitioner alludes in her petition were not relevant to the issues in this proceeding. Petitioner also asked that Ms. Vivian O'Shaughnessy, an educational evaluator for the CSE of Community School District 2, be subpoenaed. Ms. O'Shaughnessy evaluated the girl in April, 1996. The CSE representative opposed petitioner's application for the subpoena on the ground that respondent was not defending the CSE's recommendation, but would simply let the hearing officer determine whether the CSE had recommended an appropriate educational placement for the 1996-97 school year. The hearing officer acquiesced to the CSE representative's objection to the subpoena. Although the matter may be moot in view of the hearing officer's decision to award tuition reimbursement for the 1996-97 school year, I find that the hearing officer abused his discretion in denying the requested subpoena for Ms. O'Shaughnessy.

        Turning now to the "merits of petitioner's claim for tuition reimbursement for the 1993-94, 1994-95 and 1995-96 school years, I note that the parties agree that none of respondent's CSEs prepared IEPs for the child for those school years. 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). Respondent has clearly failed to meet its burden of proof with respect to the first of the three criteria for tuition reimbursement pursuant to the Burlington and Carter decisions.

        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 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 met her burden of proof with respect to the appropriateness of the private school's services during the 1996-97 school year, but he did not render a decision on the second of the three criteria for tuition reimbursement with regard to the three preceding school years. In its appeal and cross-appeal, respondent argues that petitioner failed to demonstrate how the educational services provided by the private school specifically addressed the child's identified special education needs. It alludes to two previous decisions of the State Review Officer involving the York Preparatory School in which that school was purportedly found not to have provided any special education services (Application of a Child with a Disability, Appeal No. 94-15; Application of a Child with a Disability, Appeal No. 96-72). However, I recently noted in yet another appeal involving the same private school that I am required to base my decision in each appeal solely upon the record which is before me (Application of the Board of Education of the City School District of the City of New York, Appeal No. 97-12).

        Upon the record which is before me, I find that petitioner's daughter has a specific learning disability which manifests itself in an imperfect ability to read, write, and to do mathematical calculations. While the child appears to have a processing deficit, her educational performance has also been hampered by an attention deficit. Mr. Randy Kleinman, the Principal of the York Preparatory School, testified at the hearing that his private school provided a college preparatory curriculum to approximately 220 students, about one-third of whom have learning disabilities or attention deficit orders. The private school provided instruction to its students in classes of no more than fourteen children. Mr. Kleinman testified that students such as petitioner's daughter are given extended time to complete tests, and are taught study skills and learning strategies. Mr. Kleinman, who was also the child's case manager at the private school, described the ways in which the child's writing skills had been developed with the use of graphic organizers and other techniques, and how the child had been taught to make notes in the margins of her reading material to improve her reading comprehension skills. He further testified that the girl had been taught to verbalize and rephrase mathematical concepts, and that a behavioral modification program had been employed to address her behavioral issues. He opined that petitioner's daughter had made significant progress since her entry into the York Preparatory School in 1993.

        In addition to Mr. Kleinman's testimony, I have considered the documentary evidence which petitioner entered into the record, including the pupil progress reports (Exhibit F 112), her transcript (Exhibit 103-B), her PSAT results (Exhibit 103-A), and her honor roll certificates (Exhibit 114), with regard to her attendance in the York Preparatory School. I have also considered the child's standardized test scores from January, 1993 (Exhibit 104), which was approximately six months before the girl entered the York Preparatory School. I find that those test scores support Mr. Kleinman's opinion that the child made progress while enrolled in the York Preparatory School. Therefore, I find that petitioner has prevailed with respect to the issue of the appropriateness of the private school's services. In view of that finding, respondent's cross-appeal from the hearing officer's decision to award tuition reimbursement for the 1996-97 school year must be dismissed.

        The central issue to be determined in this appeal is whether the hearing officer correctly determined that petitioner had not prevailed on the third criterion for tuition reimbursement, i.e., whether equitable considerations supported her claim for tuition reimbursement for the 1993-94, 1994-95, and 1995-96 school years. There is no explicit statute of limitations prescribing the time within which petitioner was required to have asserted her claim for tuition reimbursement. Instead, the timeliness of petitioner's claim must be considered in determining whether her claim is supported by equitable considerations (Application of a Child with a Disability, Appeal No. 95-39; Application of a Child with a Disability, Appeal No. 95-43).

        At the hearing in this proceeding, respondent introduced into evidence a copy of a statement which petitioner had signed on March 5, 1990, when she gave her consent to have her daughter evaluated by the CSE of Community School District 13. In material part, the statement indicated that:

" I have received a copy of the booklet, Special Education: A Guide for Parents, and my due process rights have been explained to me." (Board Exhibit 2)

        Petitioner testified that she had been compelled to sign that statement prior to meeting with the school social worker who was to have explained petitioner's due process rights to her. She further testified that she did not receive a copy of the booklet which was described in her statement. In any event, it is indisputable that petitioner exercised her due process rights in 1990 by having a hearing held at her request to review the recommendation made by the CSE of Community School District 13. To the extent that petitioner asserts that she was unaware of her right to request a hearing in the ensuing years, I find that her assertion is untenable.

        Petitioner testified that she was unaware of her right to seek an award of tuition reimbursement from a hearing officer until February 15, 1996, and that she did not immediately seek tuition reimbursement for the 1993-94 through 1995-96 school years (Transcript, page 73). When asked why she had not gone to the CSE or requested an impartial hearing during the 1994-95 school year, petitioner asserted that she believed that her daughter would likely have been required to attend John Jay High School which she believed to be inappropriate for the girl, and

" ... I therefore decided first of all that I would see without wasting any time with all this nonsense that we're going through right now what was out there in the system ... " (Transcript, page 99)

        With regard to the 1993-94 school year, petitioner acknowledged at the hearing that she had been contacted by the CSE of Community School District 3 to bring in the child for her triennial evaluation in February, 1993, but that she did not have the child evaluated, after she discussed the matter with the staff of the Stephen Gaynor School, which the child was then attending.

        This is another of a series of appeals in which I have noted that 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 inaction. The primary purpose of a due process procedure is to provide children and their parents with a mechanism to ensure that children receive a free appropriate public education. In order to accomplish this purpose, it is essential that the parents promptly notify the CSE of their dissatisfaction with the CSE's recommendation. Prompt notice is necessary to afford the CSE an opportunity to rectify its mistake, if any (Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3rd Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992], Application of a Child with a Disability, Appeal No 95-83; Application of a Child with a Disability, Appeal No 95-86). In this instance, petitioner did not bring the CSE's omissions to the CSE's attention until it was too late for the CSE to take corrective action. While I in no way condone the failure of the CSE to perform its duties as required by Federal and State law, I must note that the boards of education in Bernardsville and Northeast had also failed to meet each of their obligations. I find that the rationale of those decisions is equally applicable in this matter. By her delay, petitioner precluded respondent from rectifying its CSE's mistakes. Therefore, I find that petitioner's tuition reimbursement claims for the 1993-94, 1994-95 and 1995-96 school years are not supported by equitable considerations.

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