98-069

        Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for the cost of their daughter's tuition at Mount Bachelor Academy (MBA) in Prineville, Oregon for the 1996-97 school year. The hearing officer denied their claim, despite having found that respondent's committee on special education (CSE) had failed to evaluate the child within the required time frame. The appeal must be sustained in part.

        The child was sixteen years old and attending MBA at the time of the hearing. She was never enrolled in public school, having attended Packer Collegiate Institute (Packer) in Brooklyn through the seventh grade. She reportedly began having difficulty in fourth grade, and by seventh grade she refused to complete her school work. The child reportedly wanted to change schools while in sixth grade, and her parents agreed to enroll her in The Day School for the eighth grade during the 1994-95 school year.

        In March, 1994, while she was in the seventh grade at Packer, the child was privately evaluated by a psychiatrist. Petitioners requested the consultation because they were concerned about their daughter's rebelliousness, her defiance of parental authority, and her inability to accept reasonable limits on her behavior. The psychiatrist opined that the antagonistic separation of the child's parents two years earlier, and the continued hostility they displayed towards each other, especially with respect to the discipline of their daughter, appeared to be a factor in the child's behavior. The psychiatrist's impression was that the child had an oppositional defiant disorder (ODD). He recommended that she continue individual therapy. He further recommended that petitioners attempt to develop and impose a consistent, mutually-agreed upon behavioral plan which would include consensus about expectations and custody arrangements.

        The psychiatrist saw the child again in October, 1994. At that time she was attending The Day School in Manhattan. He reported that the child was still defiant and rebellious, and that she had begun to engage in sexual activities. The psychiatrist also reported that the child appeared desperate, that she expressed concern about being "out of control", and that she was angry and guilty about a recent sexual experience, which aggravated her feelings of estrangement and depressed mood. He also noted that she expressed passive suicidal ideation. The psychiatrist's clinical impression of the child was that she had acute situational depression and continuing ODD, and he recommended that she be hospitalized. On October 22, 1994, the child was admitted to the Payne Whitney Clinic of the New York Hospital (Payne Whitney Clinic).

        The child entered P169 at the Payne Whitney Clinic on October 27, 1994. In a note dated November, 1994, the child's teacher indicated that it was difficult to evaluate the child because she was non-compliant and uncooperative in the classroom. The child refused to participate in the classroom reading, discussions, and assignments. She also refused to do any of the work sent to her from The Day School. The teacher noted that the child's interactions with her peers was manipulative and often inappropriate.

        In a November, 1994 psychological evaluation completed at the Payne Whitney Clinic, the child achieved a verbal IQ score of 99, a performance IQ score of 95, and a full scale IQ score of 97 on the WISC-III, placing her in the average range of intellectual functioning. The evaluation included a notation that the inter-test scatter in the child's test results suggested that her intellectual functioning was in the high average range. The psychological evaluators reported that the child's cognitive functioning was impaired by her impulsiveness, her poor ability to anticipate the consequences of her behavior, and her experience of anxiety. She also tended to react to perceived demands in an angry, oppositional manner. While the child's verbal skills were reported to be above average, she obtained below average scores on tests measuring her ability to use appropriate judgment in social situations, her capacity to differentiate essential from non-essential detail, her ability to anticipate and understand continuities in interpersonal relationships, and her ability to plan and execute visual motor tasks. Projective test results indicated mild depression and significant anger associated with "...loss of support from nurturing figures." The psychological evaluators opined that the intensity of the child's affect, combined with her impulsiveness and oppositional manner interfered with her judgment and impaired her ability to function at the level of her full cognitive potential. They indicated that the child was unable to use her verbal skills as a means of coping with distress, but they concluded that the child would be able to replace her oppositional behavior with her more characteristic introspective and cooperative style of coping in a supportive environment.

        The child was discharged for the Payne Whitney Clinic at the end of November, 1994, and referred for therapy. The child's psychotherapist noted that the child's intelligence was well above average, and her cognitive functioning was severely interfered with by her anxiety and ODD. Due to the unresolved tensions in the family environment, she recommended that the child be placed in a very structured boarding school with staff trained to address her emotional and behavioral disorder. She further suggested that the child's parents seek placement assistance from an experienced educational consultant.

        The child attended The Day School for the remainder of the eighth grade and she reportedly attended it through March, 1996. Her attendance at The Day School was reportedly marked by truancy. She reportedly displayed provocative behavior, earned poor grades, and was placed on academic probation at the end of her first trimester. By March, 1996, the child reportedly stopped attending school, and refused to attend tutoring sessions arranged by her father.

        In June 1996, when the child was 15 years old, she was seen by two private psychologists for a second opinion regarding recommendations for a residential placement. The psychologists recommended that the child be placed in a therapeutic residential school due to her difficult family environment. The psychologists noted that the child had stopped going to school for approximately four months, had failed all of her subjects when she attended school that year and the previous year, had run away from home, was associating socially with men in their 20's and 30's, and had engaged in precocious and promiscuous behavior. They recommended a remedial, structured, disciplined, educational environment with developmentally oriented activities where structure and limit setting were combined with high academic standards as the child showed academic promise. They opined that the child needed to be removed from her current environment in New York City so that relationships with peers who were supporting her anti-social behavior could not continue. They diagnosed her as having a Conduct Disorder Adolescent-Onset type and Substance Abuse.

        At the recommendation of therapists, the child was sent to a three week wilderness program in Idaho called SUWS. Both SUWS and petitioners' educational consultant recommended that the child be sent to MBA. The child was enrolled in MBA in July, 1996.

        On August 22, 1996, the child's father, who is an attorney practicing in Manhattan, sent a letter to the CSE of Community School District 2 requesting that his daughter be evaluated. He also sent a letter dated August 23, 1996 requesting an evaluation to the principal of John Jay High School in Brooklyn, the school the child would have attended had she remained at home with her father who resided in Community District 15 in Brooklyn. At the end of August, he was contacted by a representative of Community School District 2 advising him that Community School District 15 was the proper district to handle his daughter's case. At the beginning of September, 1996, a Community School District 15 CSE representative advised petitioner that the CSE would not be able to evaluate the child because she was not living in New York State. Petitioner advised the CSE representative that if necessary, he would have his daughter tested in Oregon.

        There was no contact between the child's father and the CSE until November 20, 1996 when the child's father sent a letter to the CSE of Community School District 2, advising that he was available to supply any information to facilitate the evaluation of his daughter. The CSE of Community School District 2 forwarded the letter to the CSE of Community School District 15. On December 17, 1996, the child's father had a conversation with the assistant chairperson of the CSE of Community School District 15 during which the child's father indicated that the evaluation of his daughter in New York State could not interfere with her program at MBA. By letter dated January 2, 1997, the CSE chairperson proposed dates to have the child evaluated in January. Alternate dates were also suggested. On January 3, 1997, petitioner rejected the proposed dates because the child could not leave her program at MBA. He indicated that he would contact MBA for further information. The CSE closed the child's case that day. The child's father alleges that he attempted to contact the CSE chairperson on at least two occasions in January and March, 1997, but his calls were never returned.

        On June 26, 1997, petitioners requested an impartial hearing. On July 11, 1997, an educational evaluator from Community School District 15 advised petitioner that the CSE had no responsibility to evaluate the child until she was made available for testing in the District. He indicated that the case would be opened when the CSE was notified that the child would be available for testing. On the same day, the child's father requested that the child's evaluation which he had initially requested in August 1996 be completed. He offered to arrange for assessments to be completed in Oregon, but also stated that he would bring his daughter to New York for testing if given 30 days notice. On July 16, 1997, the child's father sent a letter to the CSE of Community School District 15 together with reports from the psychiatrist and psychologists who had evaluated his daughter.

        The child returned to New York for testing in August, 1997. The district's psychologist noted that the child performed well during testing, but had a somewhat superficial and impatient approach. She achieved a verbal IQ score of 100, a performance IQ score of 110, and a full scale IQ score of 110 on the WAIS-III, placing her in the high average range of intellectual ability. The district's psychologist reported that these scores were an underestimation of the child's intellectual potential because of the scatter in her subtests scores. Projective testing indicated that the child had internal rage and was unable to cope constructively with her anger. The child's affect was noted to be mildly dysphoric. The district psychologist opined that the child's emotional difficulties were significant and potentially dangerous. However, he believed that they were mental health and environmental issues, rather than educational issues.

        The impartial hearing in this proceeding was held on September 16, October 7 and October 15, 1997. The hearing officer rendered her decision on January 21, 1998. She found that the CSE failed to arrange for an evaluation of the child within the mandated time frame. The hearing officer further found that the child would have been classified as emotionally disturbed if she had been evaluated. The hearing officer then considered whether petitioners were entitled to an award of tuition reimbursement. Having found that the CSE failed to properly evaluate the child, she found that respondent did not meet its burden of proving that it had offered to provide an appropriate program to petitioners' daughter. However, she also found that the parents failed to meet their burden of demonstrating that the private placement they selected for their daughter was appropriate. She found that MBA was extremely restrictive and punitive, that there was no one on staff who had the professional qualifications required to meet the child's educational and emotional needs, and that the child's admission to MBA was based on emotional and family problems, rather than her academic needs. She further found that the classes were not grouped functionally, and that the ages of the students in those classes were not within the permissible three-year range. Additionally, the hearing officer determined that equitable considerations did not support the parents' claim for tuition reimbursement because the child had been referred to the CSE after the private school had been selected, thereby preventing the CSE from evaluating the child and making a timely recommendation, and depriving it of the opportunity to rectify any errors or propose other programs. She further found that the purpose of petitioners' referral was to obtain tuition reimbursement, not a free appropriate public education for their daughter.

        Petitioners appeal from the hearing officer's decision. They assert that it should be reversed because the hearing officer's conclusion that MBA was not appropriate is not supported by the record. They contend that they have met the criteria for an award of tuition reimbursement for the 1996-97 school year.

         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]).

        Respondent argues that petitioners are not entitled to tuition reimbursement because the child has never been enrolled in a public school. It argues that petitioners are precluded from obtaining an award of tuition reimbursement because of the 1997 amendments to the Individuals With Disabilities Education Act (IDEA). Section 1412(a)(10)(C)(ii) of the IDEA reads as follows:

"(ii) Reimbursement for private school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without consent of or referral by the public agency, a court or hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

        Respondent argues that the statute limits an award of tuition reimbursement to cases in which a child had previously received special education and related services from a public agency, such as a local school district. Petitioners' child had not received special education and related services from any public agency.

        In Application of a Child with a Disability, Appeal No. 98-25, it was noted that neither House Report No. 105-95 with regard to the bill which became the IDEA Amendments of 1997, nor the new Federal regulations implementing the 1997 amendments, addressed the issue of whether the provisions of Section 1412(a)(10)(C)(ii) apply to a child who has never attended public school. The statutory provision affirmatively provides that an award of tuition reimbursement may be made in certain circumstances, i.e., if the child has previously received special education and related services under the authority of a "public agency". However, the statute is silent with respect to whether a parent can receive an award of tuition reimbursement if those circumstances are not present. Absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district. Moreover, it is well established that an award of tuition reimbursement may be made pursuant the provisions of 20 USC 1415, which was not amended by the 1997 amendments upon which respondent relies.

        The hearing officer's finding that respondent had failed to evaluate the child within the appropriate time frame, and therefore failed to meet its burden of proof with respect to the first criterion for an award of tuition reimbursement has not been challenged by respondent, and is not reviewed in this appeal. Petitioners have therefore prevailed on the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, 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 MBA 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 hearing officer found that MBA was not an appropriate placement because it was to restrictive, no qualified staff were available to meet the child's needs, admission was based upon emotional and family problems, not academic needs, and classes were not appropriately grouped. However, the record shows that a highly structured, residential placement was recommended by all of the private professionals who evaluated the child. Only the district's psychologist who met with the child on one occasion found the placement to be too restrictive. The record further shows that MBA is a residential school that provides an academic and emotional growth curriculum designed for children with behavioral, emotional or motivational problems, or learning disabilities. The MBA provides an environment where students learn to address issues that have prevented them from achieving academic and personal success. The record also shows that psychological and psychiatric services are available to the students who attend MBA through local professionals who contract with MBA, and in fact, the students participate in group counseling sessions three times weekly. Further, while emotional and family needs may be a factor in the admissions process, MBA is an accredited high school which is authorized to issue diplomas, and is recognized by a number of both state and private colleges which accept its graduates. Additionally, the record clearly shows that the child's emotional difficulties had a severe impact on her academic performance. While at MBA, the record shows that she was receiving passing grades in school, and had earned a total of nine and one-half units of high school credit (Exhibit S).

        Petitioners must also show that their daughter's placement in a private residential school is consistent with the requirement that children with disabilities be placed in the least restrictive environment. However, the requirement that children be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). The question is whether the child required a residential placement to benefit from her educational program (Abrahamson v. Hershman, 701 F. 2d 223 [1^st Cir., 1980]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4^th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Disability, Appeal No. 95-33). Upon the information before me, I find that the child required a residential placement. Therefore, I find that petitioners did meet their burden of proof with respect to the second of the three criteria for an award of tuition reimbursement.

        In order to obtain an award of tuition reimbursement, petitioners must also show that their claim for reimbursement is supported by equitable considerations (Burlington, supra). As noted above, the hearing officer found that equitable considerations did not support petitioners' claim for tuition reimbursement because the referral to the CSE was made after the private school had been selected, the CSE was prevented from evaluating the child and making a timely recommendation, it was deprived of the opportunity to rectify any errors or propose other programs, and the purpose of petitioners' referral was to obtain tuition reimbursement, not a free appropriate public education for their daughter.

        The record shows that the child was already attending MBA when her father initially requested an evaluation in August, 1996. In December, 1996, the child's father advised the CSE that while he was willing to cooperate with the CSE, it would be necessary to coordinate its evaluation of his daughter with her obligations at MBA. I must note that respondent's CSE was entitled to have its own evaluation of the child (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1982]; Dubois v. Connecticut State Board of Education, 727 F.2d 44 [2d Cir., 1983]). When he rejected the dates in January, 1997 which the CSE offered for an evaluation, the child's father indicated that he would contact the CSE again. He claims that he called the CSE in January and March, 1997, but that his calls were not returned. Respondent has no record of those calls. The record shows that the child's father did not attempt to contact the CSE again until the end of June at the end of school year. While the child's father claims that he was at all times willing to cooperate to have his daughter evaluated, she was not made available for an evaluation until August, 1997. Further, though the child had been privately evaluated prior to her initial referral to the CSE in August, 1996, no reports were made available to the CSE until July, 1997, after the school year for which reimbursement is sought had ended. Upon the record before me, I am compelled to find that petitioners' claim for tuition reimbursement is not supported by equitable considerations (Lenhoff v. Farmington Public Schools, 680 F. Supp. 921 [E.D. Mich., 1988]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's finding that petitioners failed to meet their burden of proof with respect to the appropriateness of the placement which they obtained for their daughter during the 1996-97 school year is hereby annulled, but her order that respondent is not responsible for the child's tuition for the 1996-97 school year is sustained.