98-074

        Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that her son not be classified as a child with a disability, and which denied petitioner's request for tuition reimbursement for the 1997-98 school year. The appeal must be sustained.

        Petitioner's son was a 14 year old student at the York Preparatory School (York Prep) at the time of the hearing. York Prep has not been approved by the State Education Department to provide instruction to children with disabilities. The child's educational history and evaluations are described in a prior decision (Application of a Child with a Disability, Appeal No. 97-51), and will not be repeated here, except to note that he was initially classified as autistic, but his classification was changed to learning disabled in 1991. He was unilaterally enrolled by petitioner in the Stephen Gaynor School (Gaynor) for the elementary grades. Gaynor has not been approved by the State Education Department to instruct children with disabilities.

        Respondent's CSE did not conduct its annual review of the child for purposes of recommending a placement for the 1996-97 school year prior to the beginning of that school year. On or about September 13, 1996, petitioner requested an impartial hearing, which was adjourned by consent. The CSE ultimately convened on January 10, 1997 and recommended that the child no longer be classified as a child with a disability. Its notice of recommendation was sent to petitioner on or about January 16, 1997. An impartial hearing was held at petitioner's request on March 14, 1997. The hearing officer in that proceeding found that the child no longer met the definition of a child with a disability, and found that the child was no longer eligible to receive special education services. She denied petitioner's request for an order directing respondent to pay for the child's tuition at Gaynor for the second half of the 1996-97 school year. Petitioner appealed from that decision to the State Review Officer (SRO) in July, 1997.

        During the pendency of the appeal from the hearing officer's decision, petitioner unilaterally placed her son in York Prep for the 1997-98 school year. The CSE had not made a recommendation for that school year. Petitioner filed a request for an impartial hearing on September 22, 1997, but the parties agreed to adjourn the hearing pending receipt of the SRO's decision on the appeal of the prior proceeding. In my decision dated June 1, 1998, I found that the CSE had appropriately recommended that the child be declassified because the record did not demonstrate that he could only receive appropriate educational opportunities from a program of special education. However, I further found that it would have been appropriate for the CSE to recommend that the child receive counseling as a declassification service to assist him in transitioning to a regular education program. Accordingly, I concluded that respondent failed to meet its burden of proving the appropriateness of the CSE's recommendation for the boy's educational program for the period subsequent to the CSE's recommendation. Nevertheless, I denied petitioner's request for an award of tuition reimbursement because I found that she failed to meet her burden of demonstrating that Gaynor offered an educational program which met the child's special education needs during the 1996-97 school year since there was insufficient information in the record about the child's special education program at Gaynor. Petitioner appealed that decision to the United States District Court for the Southern District of New York, and that action is still pending.

        The hearing in this proceeding began on June 26, 1998. With the agreement of both parties, the decisions of the hearing officer and the SRO, as well as the record of the prior proceeding, were incorporated into the record of this proceeding. The hearing officer rendered her decision on September 25, 1998. She found that respondent had met its burden of demonstrating that the recommendation it made to declassify the child was appropriate. Accordingly, she found that petitioner was not entitled to an award of tuition reimbursement for the 1997-98 school year.

        Petitioner appeals from the decision of the impartial hearing officer on a number of grounds. She argues that the hearing officer's decision in the prior proceeding should not be part of the record in this proceeding because she has recently discovered that the hearing officer in the prior proceeding is married to one of respondent's assistant principals. Petitioner contends that it was improper for the hearing officer in this proceeding to rely upon the hearing officer's decision in the prior proceeding. I find that her argument is without merit. The first hearing officer's decision about the 1996-97 school year was entered into the record with the consent of both parties as background information. The hearing officer's task in this proceeding was to make an independent determination about the child's needs for the 1997-98 school year. I find that there is nothing in her decision to afford a basis for concluding that she failed to do so. While it is not essential to the disposition of this appeal, I must note that a challenge to the prior hearing officer's impartiality on the same grounds was recently dismissed in another appeal (Application of a Child with a Disability, Appeal No. 98-51).

        Petitioner seeks an award of tuition reimbursement. A board of education may be required to pay for educational services obtained for a child with a disability 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 initial question is whether petitioner's son was a child with a disability during the 1997-98 school year, given the fact that the CSE 's decision to declassify the child as of January 10, 1997 was upheld by a hearing officer in the prior proceeding and was being reviewed by the SRO during the 1997-98 school year. As noted above, the prior proceeding is now pending in the United States District Court for the Southern District of New York. Therefore, a final determination about whether the boy was properly declassified by the CSE in January, 1997 has yet to be made. Under the circumstances, I am constrained to find that the boy was a child with a disability during the 1997-98 school year by virtue of the "pendency" provisions of Federal and State law (20 USC 1415; Section 4404 [4] of the Education Law).

        The next question is what, if any, services respondent should have offered to provide to petitioner's son for the 1997-98 school year. I must note that there was no pendency placement to be maintained because the child has never attended public school, or been placed by mutual agreement in a private school, although respondent has settled some of petitioner's previous tuition reimbursement claims. Therefore, I must look to the record to determine what special education needs the boy may have had during the 1997-98 school year. The record does not include any additional evaluation data or other evidence of special education needs, apart from a need for assistance in making the transition to a regular education program which I found that he required in my decision in the prior proceeding. As noted above, respondent's CSE chose not to make a recommendation, pending its receipt of my decision. Accordingly, I find that respondent should have offered to provide counseling to assist the boy in making a transition to regular education, and that petitioner has prevailed with respect to the first of the three criteria 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 the York Prep during the 1997-98 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 principal at York Prep, who also is a licensed special education teacher and a learning specialist, testified at the hearing that York Prep is a mainstream college preparatory school with 220 students in grades six through 12. Approximately 50% of the children at York Prep are special needs students. The principal testified that petitioner's child was impulsive, tended to lose focus, and required frequent reassurance. He further indicated that the child was placed in a class of 11 students where he was able to get individual attention from his teacher. The principal testified that instructional material was presented to the child in small units, and that the child was provided notes and preprinted assignment sheets. Additionally, the principal stated that the child met with his math teacher on an individual basis twice per week before school began to review math concepts and get assistance completing math problems. The child was allowed extended time on writing assignments and exams. He was given the option of making oral presentations in lieu of writing assignments, as well as completing writing assignments on the computer. The principal indicated that the child had been recommended to participate in the school's Jump Start program, which offered two tutorial periods per week focusing on reading comprehension skills, writing skills, social skills and homework. The program also included an hour meeting each afternoon with a learning specialist.

        The principal further testified that the child showed improvement during the 1997-98 school year at York Prep. The child was able to navigate his way around the school, which the principal described as larger than Gaynor. Additionally, the child showed improvement in social skills and appeared comfortable with the regular education population. Upon the record before me I find that the services which York Prep provided to the child helped him make the transition from a very small, special education school like Gaynor, and were therefore consistent with the child's needs. Accordingly, I find that petitioner met her burden of demonstrating the appropriateness of the program she obtained for her son.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support petitioner's claim. The record shows that petitioner's request for tuition reimbursement in this matter was limited to the 1997-98 school year. She filed her request for a hearing in September, 1997 during that school year. There is no indication in the record that petitioner was unwilling to cooperate with the CSE. Based upon the information before me, I find that petitioner has met her burden of proof with respect to the third criterion for an award of tuition reimbursement.

THE APPEAL MUST BE SUSTAINED.

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

IT IS FURTHER ORDERED that the Board of Education shall reimburse the parent for her expenditures for the child's tuition at the York Preparatory School during the 1997-98 school year, upon the parent's presentation of proof of those expenditures.