99-013

        Petitioner appeals from the decision of an impartial hearing officer which denied her request for reimbursement for the cost of her son's tuition at the Dwight School for the 1998-99 school year. Although the hearing officer found that respondent failed to prove that it had offered an appropriate placement to petitioner's child, she further found that petitioner failed to show that her unilateral placement was appreciably different or more appropriate than that which the Board of Education had previously provided to the child, and that equitable considerations did not favor the parent's request for reimbursement. The appeal is sustained.

        At the time of the hearing, petitioner's son was eleven years old. The child was attending the Dwight School, a private school located in Manhattan, New York. He was initially referred to the Committee on Special Education (CSE) in the spring of 1996, when he was in the third grade in P.S. 87. The child was referred because he was easily distracted at home and school, and had difficulty with organization, attention, and work completion. The child also reportedly had difficulty processing language. He was described as being sensitive to criticism, and he felt that other children believed he was stupid.

        When evaluated in May 1996, by a private psychologist, the child achieved a verbal IQ score of 94, a performance IQ score of 91, and a full scale IQ score of 92. The evaluator reported that the boy evidenced signs of a specific language disability, as well as attention difficulties. The evaluator recommended that the child receive 1:1 remedial language instruction (Exhibit D). On the Kaufman Test of Educational Achievement, the child achieved grade equivalent scores of 4.0 for reading, 2.9 for spelling, and 3.3 for mathematics. He exhibited relative weakness in reading multi-syllabic words, doing word problems in math, and spelling (Exhibit 1).

        On August 26, 1996, the CSE recommended that petitioner's son be classified as learning disabled, and that he receive five periods of resource room service per week (Exhibit 1). It also recommended that the testing modifications of extended time limits and testing in a separate location be used with him. Petitioner accepted the CSE's recommendations. Her son remained in P.S. 87 for the fourth grade during the 1996-97 school year. His IEP annual goals involved improving his reading, writing, and mathematics skills.

        At the child's annual review in November, 1997, the CSE recommended that the child continue to be classified learning disabled, and continue to receive resource room support one period per day, five times per week, and testing modifications (Exhibit 3). His IEP again focused upon improving his reading, writing, and mathematics skills. The boy received the recommended services while in the fifth grade at P.S. 87 during the 1997-98 school year.

        On June 8, 1998, the principal of P.S. 87 wrote the child's parents a letter recommending that the child be in a "mainstreamed class setting with a small pupil-teacher ratio no greater than 15 to 1 to optimize individual attention." The principal further wrote that the child needed a pull-out resource room type program five days per week (Exhibit B). In a letter dated June 10, 1998, petitioner requested that the CSE evaluate her son because of his lack of academic progress (Exhibit C). The record does not reveal what the CSE did in response to this request. The child completed the fifth grade at P.S. 87 in June, 1998, and would have been assigned to an intermediate school for the sixth grade. Instead, he was enrolled, at petitioner's expense, in the Dwight School for the 1998-99 school year.

        At the hearing in this proceeding, petitioner testified that she began to consider placing her child in a private school during the fall of 1997. One of the schools which she considered was the Dwight School, a private school in Manhattan. The child had to take a competitive examination for admission, which he took that fall (R. 76). The child was reportedly accepted by the Dwight School in April, 1998 (R. 78). According to the parent, she had applied to other public schools, but her applications were rejected (R. 76). Petitioner made the decision to send the child to the Dwight School in May, 1998 (R. 78). The child's mother testified that she had informed P.S. 87 in writing that the child would attend the Dwight School starting in September, 1998, by indicating that fact on a form used to forward student records to a new school (R. 78, 79). The parent did not inform the CSE that the child would be attending a private school during the 1998-99 school year. In October, 1998, the parent requested a fair hearing at which she was seeking tuition reimbursement for the 1998-99 school year. Respondent's CSE was not scheduled to conduct its annual review of the child until November, 1998. In its answer, respondent asserts that it did not conduct its annual review of the child because petitioner had requested an impartial 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]).

        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 benefit (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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.)

        I concur with the hearing officer's finding that respondent did not meet its burden of proof because the CSE did not recommend a placement for the child for the year in question. Federal and State regulations require that a disabled child's program be reviewed at least annually (34 CFR 300.342[a] and 8 NYCRR 200.4 [e]). The pendency provisions of Federal and State law (20 USC 1415 [j] and Section 4404 [4] of the New York State Education Law) do not preclude a CSE from conducting an annual review of a child and recommending an appropriate program for the child (Application of a Child with a Disability, Appeal No. 97-13). Because no IEP was created for the year in question, respondent could not meet its burden of proof (Application of a Child with a Disability, Appeal No. 99-17).

        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 Dwight School during the 1998-99 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 record shows that the child experienced deficits in language processing (Exhibits 1, 2, 3 and D). The record further shows that the child was easily distracted and had organizational problems (Exhibit 1). While a student in P.S. 87, the child was classified learning disabled and was receiving resource room support services five days per week. The student-teacher ratio in the resource room was 8:1 (Exhibit 3).

        The Dwight School is not a school specifically designed to serve children with special needs (R. 40). It is a private, regular education institution, which has a special education program (the "Quest" program) that is separate from the regular education program. The child received special education services in the Quest program. Tuition for the Quest program is paid in addition to the tuition paid for the regular education program (R. 71). In the Quest program, the child received resource room support four times in a six-day cycle, and speech/language therapy twice in a six day cycle (R. 38). The resource room services and speech/language therapy were provided on a one-to-one basis (R. 38, 58).

        The child's resource room teacher testified that she helped him with his daily class assignments and she taught skills necessary for the child to succeed in the classroom (R. 43, 53). At the time of the hearing, the child's grades and his ability to pay attention seemed to be improving (R. 54). While the teacher acknowledged that this might be because the child had adjusted to his new environment, she also felt that one-on-one resource room was helping the child improve his grades (R. 55).

        The speech/language therapist testified that she assisted the student with oral word retrieval, memory retention, sequencing and vocabulary (R. 57). The therapist stated that she noticed improvements in the child's general organization and study skills. She opined that the child was transferring the skills he learned in speech/language therapy to the classroom (R. 58). Based upon the information which is before me, I find that the placement at the Dwight School addressed the child's special education needs. Accordingly, I find that petitioner has met her burden of proving the appropriateness of the special education services which she obtained for her son in the Quest program at the Dwight School, and will annul the hearing officer's finding that there was insufficient evidence to show that the Dwight School's Quest program addressed the boy's special learning needs.

        The third criterion for an award of tuition reimbursement is that equitable considerations support the parent's claim for reimbursement. The hearing officer found that equitable considerations did not support petitioner's claim for tuition reimbursement because petitioner did not notify the CSE of her dissatisfaction with its recommended placement for her child, or inform the CSE that she intended to place the boy in a private school. She characterized petitioner's conduct as an intentional failure to cooperate with the CSE.

        I disagree with the hearing officer's determination. First, I note that a requirement that a parent notify a CSE of his or her intention to enroll the child in a private school at public expense was added to the Individuals with Disabilities Education Act (IDEA) on June 4, 1997 (see 20 USC 1412 [a][10][c][iii][I][aa]). However, there is an exception to that requirement for parents who were not notified by the school district of the new requirement (20 USC 1412 [a][10][c][iv][IV]). The record does not reveal what, if any, notice petitioner received regarding the new requirement that she inform the CSE that she intended to place her son in the Dwight School. I must further note that the new statutory provision indicates that a parent is to provide notice of dissatisfaction with the placement proposed by the CSE " ... at the most recent IEP meeting that the parents attended prior to removal of the child from the public school". In this case, the last IEP meeting was the annual review which was held in November, 1997, approximately ten months before the start of the 1998-99 school year. Petitioner did not inform the CSE at that time that she was dissatisfied with its recommendation, although she was contemplating a private placement for the child as early as November, 1997. In any event, the recommendation which was made at that meeting was primarily for the boy's placement during the 1997-98 school year.

        Although the parent did not seek a fair hearing until October, 1998, she did inform the school district in writing in June, 1998 that her son would attend a private school during the 1998-99 school year. While this alone would not place the CSE on notice that petitioner had concerns about her son's placement, I must note that she also wrote a letter to the CSE requesting that her son be evaluated. Petitioner acknowledged that her letter requesting an evaluation of her son was written after she had made her decision to enroll the child in a private school (Exhibit C, R. 78). However, this admission by the parent does not excuse the apparent failure by the CSE to act upon the mother's request for an evaluation, nor does it afford a basis for concluding that equitable considerations do not support petitioner's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 97-44). I find that equitable considerations support petitioner's claim for an award of reimbursement for the cost of the special education services provided to her son by the Dwight School in its Quest program.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's findings with regard to the appropriateness of the private school's services and petitioner's alleged failure to cooperate with the CSE are hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the Quest program at the Dwight School during the 1998-99 school year, upon petitioner's presentation to respondent of proof of those expenditures.