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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Hon. Paul A. Crotty, Corporation Counsel, attorney for petitioner, Simon P. Gourdine, Esq. and Alexandra Michalos, Esq., of counsel


        Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondent for his expenditures for his son's tuition in the York Preparatory School during the 1996-97 school year. The appeal must be dismissed.

        At the outset, I note that respondent asserts that he never saw the documentation to show that the "service [of the petition] was official". He appears to be referring to the affidavit of service which petitioner prepared after it had served its petition on respondent. He does not otherwise challenge the manner of service, which in any event appears to have been properly done.

        Respondent's son, who is eighteen years old, has been classified as learning disabled by petitioner's committee on special education (CSE) of Community School District No. 2. The boy was unilaterally enrolled by his father in the York Preparatory School, for the 1993-94 school year. He has remained in that private school, at his father's expense. In June, 1996, respondent initiated a due process proceeding to obtain tuition reimbursement for the 1993-94, 1994-95, and 1995-96 school years. An impartial hearing officer in that proceeding found that the Board of Education had failed to demonstrate that it had offered the child an appropriate educational placement for each of the school years in question. However, she denied the parent's request for tuition reimbursement, on the grounds that he had not demonstrated that the York Preparatory School had provided an appropriate educational program to his son, and that equitable considerations did not support the parent's claim for tuition reimbursement. The boy's father appealed from the hearing officer's decision. On December 19, 1996, I dismissed the father's appeal on the grounds that he had not shown how the private school had addressed his son's special education needs, and that he had delayed too long in asserting his tuition claims for the 1993-94 and 1994-95 school years (Application of a Child with a Disability, Appeal No. 96-72).

        The present proceeding, which was commenced by respondent's request for a hearing in a letter dated October 10, 1996, concerns the boy's educational program and placement during the 1996-97 school year. More specifically, it concerns the recommendation made by petitioner's CSE for the child's instruction during the 1996-97 school year. On June 25, 1996, the CSE met with respondent to review his son's educational program, and to recommend a program and placement for the 1996-97 school year. The record reveals that the principal of the York Preparatory School participated by telephone in the CSE meeting.

        At respondent's request, the boy had reportedly been re-evaluated on June 1, 1996. The boy's individualized education program (IEP) which the CSE prepared on June 25, 1996 indicated that the child had achieved a verbal IQ score of 109, a performance IQ score of 108, and a full scale IQ score of 109. He reportedly had strong reasoning skills, and very superior vocabulary usage and social judgement. However, the boy reportedly could not apply such knowledge in every day life, and he continued to have organizational difficulties. Projective testing revealed that he was reticent to interact with others, and that he repressed much anger toward what he viewed was a hostile world. The child's IEP indicated that respondent's son had word identification skills which were at the 8.9 grade level, and that his passage comprehension skills were at the 6.9 grade level. His mathematical calculation ability was at the 7.8 grade level, while his mathematical application skills were at the 8.7 grade level. He reportedly responded to the evaluator's questions with simple but complete sentences, and could follow four-step directions. He continued to have difficulty with written expression. The boy's IEP also indicated that he had expressed interest in pursuing a career in cooking, or the military.

        At its June 25, 1996 meeting, the CSE recommended that respondent's son be enrolled in regular education classes in petitioner's Richard Green High School in Manhattan, where he was to receive resource room services for one period per day, and counseling in a group of no more than three students for one period per week. The IEP indicated that the recommended counseling for the boy was intended to address his "interfering anxiety". Respondent reportedly did not receive the CSE's recommendation until after the 1995-96 school year had ended. He was therefore unable to visit the recommended high school until September 24, 1996. On that day, the principal of the Richard Green High School informed respondent by letter that there was " room for any additional students this time" (Exhibit I).

        In a letter to the CSE, which was dated October 7, 1996, respondent enclosed a copy of the principal's letter to him, and indicated that unless the CSE communicated with him within fifteen days, he would assume that the CSE had no placement for his son. Three days later, respondent requested that an impartial hearing be held. The hearing, which was to begin on November 6, 1996, was adjourned at the request of the parties until November 22, 1996.

        At the hearing which was held on November 22, 1996, the CSE's designee, Dr. Richard Curci, conceded that the CSE had not met its obligation to provide a placement for respondent's son. Respondent asked the hearing officer to order petitioner to reimburse him in the amount of $17,600 for the cost of his son's tuition in the York Preparatory School during the 1996-97 school year. Mr. Randy Kleinman, the Principal of the York Preparatory School, testified that the school was a mainstream college preparatory school for children in grades six through twelve. He further testified that the school accepted children with mild to moderate learning disabilities and attention deficit disorder. For children like respondent's son, the school provided testing modifications, such as extended time limits, separate testing locations, and the use of oral, rather than written, responses to portions of tests. Mr. Kleinman testified that allowing respondent's son to orally answer test questions was appropriate because the child had difficulty expressing himself in writing. He also testified that the boy received individualized assistance during after school meetings with his teachers. Mr. Kleinman testified that he had reviewed the IEP which the CSE had prepared for the boy, and that he had designed supplementary work sheets for the child, in consultation with the boy's teachers. He indicated that the work sheets were designed to address the child's educational weaknesses, as had been revealed on the IEP. Mr. Kleinman testified that he monitored the boy's progress in monthly meetings with his teachers. He also intended to meet periodically with the boy to address his need to advocate for himself and to manage his time and organize his school work. The child was also going to be counselled by Mr. Kleinman and a guidance counselor regarding his anxiety about taking tests, and his need for self-advocacy.

        In his decision which was rendered on January 15, 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 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]).

        With regard to the first criterion for reimbursement, the hearing officer found that petitioner had failed to meet its burden of proving that it had offered an appropriate placement to respondent's son. He further found that respondent had met his burden of proof with respect to the appropriateness of the educational services which the York Preparatory School was providing to his son, which is the second criterion for tuition reimbursement. The hearing officer also found that respondent had fully cooperated with the CSE, and that equitable considerations supported respondent's claim for tuition reimbursement. In view of his findings with regard to the three criteria for tuition reimbursement, the hearing officer directed the Board of Education to reimburse respondent for the cost of the child's tuition, less a $425 fee for what Mr. Kleinman had testified was a voluntary contribution to the private school's scholarship foundation.

        In its appeal from the hearing officer's decision, petitioner acknowledges that its failure to hold open a position for the child in the Richard Green High School until respondent could visit the school might support the hearing officer's finding that petitioner had not offered an appropriate placement to the child. However, the Board of Education argues that the hearing officer's finding that respondent had met his burden of proving that the educational services of the York Preparatory School were appropriate for the child is not supported by the record.

        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 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, Massachusettssupra 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).

        Petitioner asserts that respondent was required to show that the York Preparatory School specifically addressed the boy's identified special education needs, and that the child was appropriately grouped for instructional purposes at York with children having similar abilities and needs. It contends that in two prior decisions, the State Review Officer found that the York Preparatory School did not provide any special education services (see Application of a Child with a Disability, Appeal No. 94-15; Application of a Child with a Disability, Appeal No. 96-72).

        Although parental requests for tuition reimbursement at the York Preparatory School were denied in each of the appeals to which petitioner refers, I must point out that I am required to base my decision in this appeal solely upon the record which is before me in this appeal (8 NYCRR 279.10). I am of course aware that the second of the two decisions to which petitioner refers involved this child's education at the York Preparatory school during the three school years prior to the 1996-97 school year, but I must determine whether respondent should receive tuition reimbursement for the 1996-97 school year, based upon the evidence which was adduced at the hearing on November 22, 1996.

        In this instance, Mr. Kleinman testified that respondent's son had a difficult time completing reading and writing assignments, and that he had been given extra time in which to complete his assignments. He explained that the private school had created what amounted to a twelve-month program for the boy, by providing him with individual tutoring during the summer to allow him to catch up with his classmates. Mr. Kleinman opined that the child could catch-up at the end of the 1996-97 school year during a several week period between the end of classes for seniors and graduation. In his testimony, Mr. Kleinman evidenced an awareness of the child's special education needs with regard to his depressed reading and mathematics skills, weakness in written expression, lack of organization, and anxiety about taking tests. Those needs were all identified on the boy's IEP, which Mr. Kleinman had reviewed. His testimony that he had prepared work sheets to provide the child with additional drills in the areas of his academic weakness is unrebutted. Moreover, Dr. Richard Curci, petitioner's sole representative at the hearing stated that:

"...I think the base issue now is that this is a senior who is very, very close to graduating and if all goes well as projected, he should graduate and I think it would be inappropriate educationally to take him out of this environment." (Transcript, page 19)

        Under the circumstances, I find that the hearing officer's determination that respondent had prevailed with respect to the appropriateness of the private school's educational services is supported by the record. In view of the fact that this is the fourth consecutive year in which petitioner has failed to meet its obligation to this child, and that respondent cooperated with the CSE, I concur with the hearing officer's determination that equitable considerations supported respondent's claim for tuition.


Topical Index

District Appeal
Unilateral PlacementAdequacy of Instruction