97-033

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for an order requiring respondent to reimburse them for their expenditures for their granddaughter's private school tuition during the 1994-95 and 1995-96 school years. The appeal must be dismissed.

        At the outset, I note that the hearing officer's decision was rendered on February 28, 1997, and was amended twice thereafter. On March 17, 1997, petitioners served their notice of intention to seek review upon the board of education. The affidavit of service for the notice of petition and petition indicates that those documents were served upon the board of education on March 28, 1997. The board of education's answer to the petition was served by mail upon petitioners on April 14, 1997. Petitioners ask that I not accept respondent's answer, because it was not served within ten days after respondent's receipt of the petition, as required by 8 NYCRR 279.5. Respondent has not indicated in its answer why its response to the petition was delayed by approximately one week. In the absence of any explanation for its delay, or a request by respondent for an excuse of its delay, I will not exercise my discretion to excuse respondent's delay, and will not consider its answer.

        I must also note that although petitioners reportedly mailed their notice of petition and petition to the State Education Department shortly after they served those documents upon respondent, the Office of State Review did not receive copies of the notice of petition and petition. Upon receipt of respondent's answer, the Office of State Review notified petitioners that it had not received their papers. Petitioners mailed a duplicate set of papers which the Office of State Review received on May 16, 1997.

        Petitioner's granddaughter, who is ten years old, was reportedly removed from her mother's home at the age of one by the New York City Children's Protective Services Agency. She has resided with petitioners for most of the time since then. The girl was reportedly enrolled in regular education classes for kindergarten and the first grade in three different elementary schools. In May, 1993, while the child was in the first grade, she was evaluated by one of respondent's speech/language therapists. The therapist reported that the child's articulation of polysyllabic words was distorted, and that her receptive and expressive language skills were below her age expectancy. The child did not recognize the letters of the alphabet, nor could she recite them in sequence. The therapist reported that the child had difficulty with grammar, syntax, sequencing, content, and organization, and that she could not generate age appropriate sentences upon demand. She also exhibited delays in her auditory discrimination skills. The therapist opined that the child's delayed auditory discrimination skills and her delayed language skills negatively impacted upon her ability to meet academic standards. The therapist recommended that the child receive speech/language therapy. Respondent's committee on special education (CSE) recommended that the child be classified as speech impaired, and that she be enrolled in respondent's modified instructional services-IV (MIS-IV) special education program. The child was enrolled in the recommended program at P.S. 73.

        In March, 1994, the child was re-evaluated because she was "aging-out" of the MIS-IV program. One of respondent's educational evaluators reported that the girl mainstreamed appropriate eye contact, and used appropriate spontaneous language, i.e., her sentences were complete and she did not manifest any gross grammatical or syntactical errors. Although the child's receptive language skills appeared to be intact, some of her responses to questions were "off-the-mark." The child's writing sample revealed that her letter formation and spacing were excellent, but she frequently reversed letters and words, i.e., "cow" was spelled "woc." When tested, the child was seven years and four months old, and was in the second grade. She received age equivalent scores of 5.8 for letter-word recognition, and 6.5 for passage comprehension. Her grade equivalent scores were K.5, and 1.2, respectively. The evaluator reported that the girl had weak reading decoding skills, and limited reading comprehension skills. The child achieved age equivalent scores of 6.6 for mathematical calculation, and 5.3 for applied problem skills. Her grade equivalent scores were 1.2, and K.2, respectively. Her science and social studies skills were reported to be at the beginning kindergarten level. The evaluator reported that the child displayed age-appropriate gross motor skills, and excellent visual motor skills. However, her ability to visually discriminate between upper and lower case letters was at the first grade level.

        The CSE of Community School District 9 reportedly recommended that the child's classification be changed to learning disabled, and that she be enrolled in respondent's modified instructional services-I (MIS-I) program, with speech/language therapy and counseling as related services for the 1994-95 school year. I must note that the individualized education program (IEP) which embodied the CSE's recommendation for the child's placement during the 1994-95 school year (see 8 NYCRR 200.4 [c]) was not entered into evidence in this proceeding. At the hearing, the CSE's representative testified that in July, 1994 petitioners were offered a specific placement for the child in P.S. 110, beginning in September, 1994.

        Petitioners were dissatisfied with the child's rate of progress in respondent's schools. At the hearing, the child's grandfather also indicated that petitioners were concerned about the fact that another child had reportedly inflicted injuries upon their granddaughter in her MIS-IV class. In any event, petitioners opted to place her, at their expense, in the Learning Tree Educational Cultural Center (Learning Tree) which is a private school in the Bronx. The Learning Tree has not been approved by the State Education Department as a school for the instruction of children with learning disabilities. The child remained in the Learning Tree for the 1994-95 and 1995-96 school years, and she was attending that school when the hearing in this proceeding was held in December, 1996.

        The record does not reveal what, if any, special education services were provided to the child by the Learning Tree. However, she did receive speech/language therapy from an entity which is identified in the record as Mount Saint Ursula. According to one of the petitioners, Medicare paid for that related service. The child's report card for the 1994-95 school year indicates that she received satisfactory grades for academics and conduct in the third grade. However, she repeated the third grade during the 1995-96 school year. Her teacher for that school year indicated on the child's report card that the girl made steady progress "at her level", but that she was still not on grade level by the end of the year.

        The record also does not reveal whether the CSE conducted an annual review of the child, as required by regulation (8 NYCRR 200.4 [c][1]), or made a recommendation for the child's placement during the 1995-96 school year. As noted above, the child remained in the Learning Tree for that school year. There is no evidence in the record that respondent had offered the child a placement by the beginning of the 1996-97 school year.

        An impartial hearing was held at petitioners' request on November 14, 1996. In his written decision adjourning the hearing at the request of both parties, the hearing officer noted that petitioners were seeking tuition reimbursement for the 1994-95 and 1995-96 school years, and they wanted the child to be further evaluated. The parties agreed that the CSE would re-evaluate the child, and would consider any private evaluations which petitioners might obtain.

        Petitioners' granddaughter had been privately evaluated by a psychiatrist on October 23, 1996. The psychiatrist reported that the child demonstrated signs of an attention deficit disorder, and that she whined and talked like a much younger child. It should be noted that although the psychiatrist indicated that the child was eight years old, she was in fact almost ten years old when she was evaluated. The psychiatrist diagnosed the child as having an Adjustment Reaction Mixed Disturbance of Emotions and Conduct with mild learning lags, and a Learning Disorder NOS (not otherwise specified) which impaired her reading, spelling, and mathematical skills. He also opined that the child was having some difficulty adjusting to socio-environmental stressors. The psychiatrist recommended that the child receive individual psychotherapy to alleviate her depression and enhance her self-concept.

        The child was also privately evaluated by a psychologist in late October, 1996. The psychologist reported that the child was impulsive, inattentive, and frustrated by her inability to perform certain tasks. The girl achieved a verbal IQ score of 59, a performance IQ score of 94, and a full scale IQ score of 74. The psychologist indicated that the child's fund of general knowledge, understanding of social convention, and abstract reasoning ability were far below expectancy for a child of her age. While her non-verbal perceptual motor skills were in the average range, the girl displayed relative weakness performing tasks where speed and accuracy were required, or where abstract conceptualizing, visual sequencing or anticipating events was necessary. The psychologist also reported that the child's ability to sustain attention, and exert mental control was an area of relative weakness. He described the child's speech as inarticulate, and immature in structure and presentation. Her auditory discrimination skills were reported to be below average. The child's writing sample revealed that she was unable to differentiate right from left efficiently. Her writing was a mix of printing and script, with poorly spaced and poorly spelled words which were difficult to decipher. On the Wide Range Achievement Test-Revised 3, the child achieved standard scores of 67 in reading, 72 in spelling, and 70 in arithmetic. In a test of her oral reading skills, the child read impulsively, omitted words, and made many word substitutions and additions. The results of her spelling test indicated that she had poor encoding skills, and a limited awareness of phonics.

        The psychologist opined that the child had an immature understanding of the world, and that she could be blaming herself for her perceived abandonment by her mother. He indicated that the girl's passive approach to learning, lack of self-confidence, and limited perseverance were barriers to improving her academic performance. The psychologist opined that the girl would have difficulty functioning in a large class, and he recommended that she be instructed in a MIS-I class in which she could receive more individualized instruction. He further recommended that she receive individual psychotherapy.

        The private psychologist's report had not been received by the parties when the hearing was scheduled to resume on December 16, 1996. With their consent, the hearing was adjourned until January 15, 1997. On January 14, 1997, petitioners met with the CSE of Community School District 9, which recommended that the child remain classified as learning disabled. It further recommended that she be instructed in all subjects in a MIS-I class, and that she receive speech/language therapy in a group of no more than three twice per week, and small group counseling once per week. The IEP which the CSE prepared for the child included annual goals to improve her reading and mathematics skills, as well as her speech/language skills. It also included an annual goal which was related to the counseling which she was to receive.

        When the hearing resumed on January 16, 1997, the hearing officer ascertained from petitioners that the issues for her to resolve were whether they should receive tuition reimbursement for the 1994-95 and 1995-96 school years, and whether respondent should issue a "Nickerson" letter for the 1996-97 school year to them. When respondent issues a Nickerson letter to the parents of a child with a disability, the parents may place their child in an approved private school, at respondent's expense (see Jose P. et al. v. Ambach et al. [79 C 270, U.S. D.C., E.D. N.Y., 1982]). The parties agreed that the child's classification as learning disabled was not in dispute. A CSE representative testified that the MIS-I class which had been recommended for the child would provide her with the individualized instruction which she required to meet her academic needs. She further testified that the child had been offered a specific placement in a class in P.S. 109, on January 15, 1997. The CSE representative also testified that most of the fourteen children who were enrolled in the MIS-I class were reading at about the first grade level, and that their mathematics skills were at a comparable level. No other evidence of the similarity of needs, (see 8 NYCRR 200.6 [g][2]), was introduced. The CSE representative indicated that because of the passage of time it had been difficult to determine who were the children in the MIS-I class which had been recommended for the child during the 1994-95 school year, and whether their needs were similar to those of petitioners' granddaughter. In their testimony, petitioners expressed their strong belief that respondent did not have an appropriate educational program for the girl.

        In her decision which was rendered on February 28, 1997, and amended on March 5, 1997, the hearing officer found that petitioners were entitled to be reimbursed for the child's tuition at the Learning Tree from September, 1996 through February, 1997. She further found that petitioner should receive a Nickerson letter for the child's placement in an approved private school for the remainder of the 1996-97 school year. With respect to petitioners' claim for tuition reimbursement for the two prior school years, the hearing officer found that respondent had not met its burden of proof that it had offered the child an appropriate educational placement, and that petitioners had met their burden of proving that the Learning Tree had provided appropriate special education services to the child. However, she denied petitioners' claim for reimbursement on the ground that the petitioners had apparently been aware of their right to request a hearing to review the CSE's recommendations, but had failed to do so until October, 1996.

        Since the child's classification as learning disabled is not disputed by the parties, I am precluded from addressing the issue of the appropriateness of that classification (Hiller v. Board of Education Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). For similar reasons, i.e., the finality of the unchallenged portions of the hearing officer's decision, I do not review her findings that respondent failed to demonstrate that it had offered an appropriate educational placement to the child during the 1994-95 and 1995-96 school years, and that the Learning Tree had offered the child special education services during those school years. Petitioners challenge the hearing officer's determination that they were not entitled to receive tuition reimbursement because of their delay in requesting a hearing.

        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]). There is no explicit statute of limitations prescribing the time in which parents must assert their claim for tuition reimbursement. Instead, the timeliness of the parents' claim for reimbursement must be considered in determining whether their 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).

        Petitioners acknowledge that they did not ask for a hearing until October 16, 1996, which was well after the 1994-95 and 1995-96 school years had ended. They do not explicitly address the hearing officer's determination that they were apparently aware of their right to seek a hearing, but had delayed in requesting a hearing. The hearing officer premised her finding upon a remark which the child's grandfather made in response to a question by the hearing officer. The hearing officer asked the grandfather whether an impartial hearing with regard to the child had previously been held. The grandfather testified that a hearing had been held, and "That's how she got the 110 [apparently referring to a placement in P.S. 110]" (Transcript, page 48). He further testified that he had received a written decision from the hearing officer in the prior proceeding.

        Federal and State statutes and regulations envision that a child's parents and the CSE will cooperate in developing an educational program for the child which will ensure that the child receive a free appropriate public education (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra). Those statutes and regulations incorporate an elaborate set of procedural safeguards, in the event the parents and CSE cannot reach an agreement. Among the most important procedural safeguards is the right to obtain review of a CSE's recommendation by an impartial hearing officer. Although a hearing officer may award a parent the relief of tuition reimbursement, the primary purpose of conducting a hearing is to ensure that the child receives a free appropriate public education (Application of a Child with a Disability, Appeal No. 95-82; Application of a Child with a Disability, Appeal No. 95-83). Parents must promptly resort to the due process procedures, 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, 79 NY 2d 598 [1992]). In view of the grandfather's testimony about the prior hearing in which he had challenged an earlier recommendation by the CSE, and in the absence of an explanation by petitioners for their delay in requesting the hearing in this proceeding, I find that their claim for tuition reimbursement for the 1994-95 and 1995-96 school years is not supported by equitable considerations (Application of a Child with a Disability, Appeal No. 97-11).

THE APPEAL IS DISMISSED.