99-021

         Petitioner appeals from the decision of an impartial hearing officer which denied her request for tuition reimbursement for the cost of her son's tuition at York Preparatory School (York Prep) for the 1998-99 school year. The appeal must be sustained.

        The parties have raised some procedural issues which I will address before reaching the merits of this appeal. I note that respondent's answer was due on April 15, 1999, but was not served upon petitioner until May 12, 1999. Respondent asks that I excuse its delay in serving the answer. Petitioner requests that I exclude the answer from record. Respondent asserts that its delay did not prejudice petitioner, and that she had the opportunity to submit a reply pursuant to 8 NYCRR 279.6. I find that respondent's delay did not delay the decision in this appeal, and I note that petitioner's reply goes somewhat beyond the scope permitted by the regulation. In the interest of fairness to both parties, I am accepting both documents.

        Additionally, petitioner annexed a letter by the Assistant Principal at Humanities High School to her petition which she asserts will complete the record. Respondent argues that the information set forth in the letter was available at the time of the impartial hearing and should be disregarded. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). The letter summarizes a conversation about the availability of the recommended placement which petitioner had with the assistant principal and about which petitioner testified at the hearing. I will accept it so that I will have a more complete record.

        Petitioner's son was 17 years old and a senior at York Prep at the time of the hearing. He was initially referred to the CSE in Community School District 2 in 1988 when he was seven years old. While it is unclear from the record whether the child was classified at that time, the CSE recommended that he be placed in regular education and that he receive occupational and speech/language therapy. In 1989 at the end of his second grade year, the child was referred to the CSE by his teacher. There is no additional information in the record regarding that referral. The record does include the child's individualized education program (IEP) for the 1991-92 school year, which indicated that he was classified as learning disabled and other health impaired. It also indicated that the child had Erb's Palsy, which is a condition affecting the use of his upper right extremities. In November, 1992, the CSE amended the child's IEP, at petitioner's request, to include a health alert that her son had Tourette's Syndrome. The child attended P.S. 41 through the 1992-93 school year and respondent's School of the Future through the 1994-95 school year. He reportedly received resource room and speech therapy and physical therapy each academic year through the 1994-95 school year.

        In September 1995, petitioner placed her son in York Prep, and requested that respondent continue to provide related services to the boy. The boy remained in York Prep for the 1996-97 and 1997-98 school years. York Prep has not been approved by the New York State Education Department to provide education to children with disabilities. While there is no IEP in the record covering the first semester of the 1995-96 school year, an IEP dated January 1, 1996 indicated that the child's classification was other health impaired. That IEP also indicated that the CSE adopted the recommendation by the boy's speech therapist to discontinue the boy's speech/language therapy. He continued to receive physical therapy. In September, 1997, the child's classification was changed to learning disabled/other health impaired.

        In a letter dated March 16, 1998 and addressed to the CSE at Community School District 3, petitioner requested special education services for her son for the 1998-99 school year, and indicated that her son's file would be transferred to Community School District 3 from Community School District 2 because York Prep had relocated to Community School District 3.

        In a social history update conducted on March 26, 1998, based upon an interview with the child's mother, the evaluator reported that the child was doing well in school, but that he was still below grade expectancy because of learning problems. The child's mother advised the evaluator that her son was a good student who was working to his potential to do the best he could in all subject areas. She indicated that resource room and other services had been crucial to her son's academic success.

        A vocational assessment was conducted by a school psychologist on March 26, 1998. The school psychologist reported that the child demonstrated interest in the arts, office operations and social cluster jobs, such as social services, but that he had no real direction. The school psychologist indicated that it would be helpful for the child to work with a guidance or vocational counselor to establish realistic goals based on his strengths. I note that although petitioner reportedly sent a copy of an independent psycho-educational evaluation of her son to the CSE on April 9, 1998 (Exhibit RR), a report of that evaluation is not part of the record.

        In an educational evaluation conducted on March 26, 1998, the child performed at the 48^th percentile, within the average range, in overall broad reading skills on the Woodcock-Johnson Tests of Achievement-Revised (WJ-R). Although his letter-word identification skills were reported to be in the high average range, the child performed at the 25th percentile in passage comprehension and at the 27^th percentile in reading vocabulary. The evaluator noted that the child had developed good reading decoding strategies for reading unfamiliar words, but that he had to read passages more than once to grasp the main idea. She opined that the child needed to use strategies to assist him in restating the main idea, and to simplify and structure complex reading material The educational evaluator concluded that the child could receive instruction in reading at the eighth grade level.

        The child's overall math skills were assessed to be in the average range. The educational evaluator reported that the child's ability to apply mathematical knowledge in practical situations was above grade level. She concluded that he could receive instruction in math at his current grade level. The child's broad written language skills were assessed to be within the average range. The evaluator reported that the boy's ability to express his ideas in writing was comparable to his knowledge and use of basic writing mechanics, i.e., spelling, punctuation, capitalization and word usage. His formation of letters and spacing were poor. She recommended practice in this area. The child's general knowledge fell within the average range in overall skills. He demonstrated strength in social studies and had retained information over a long period of time. The educational evaluator concluded that while the child was performing within the average range in all areas, he was experiencing difficulties with the acquisition of meaning when reading because of the deficits in his reading vocabulary and comprehension skills. She noted that his comprehension skills were approximately four years below grade level, and reading vocabulary was approximately three grades below grade level. The educational evaluator concluded that the child could benefit from a small setting that would address his reading comprehension difficulties.

        The child's IEP for the 1998-99 school year includes the results of the Clinical Evaluation of Language Fundamenatals-3 (CELF-3) which was administered on April 2, 1998. The child was assessed to be functioning above age level expectancy in language, with strengths in identifying word classes, semantic relationships, recalling sentences and sentence assembly.

        A classroom observation was conducted by one of respondent's social workers on April 29, 1998 during a class discussion of a novel. The social worker noted that the child sat in the front row and answered some of the questions posed by the teacher. She further noted that the child followed the discussion, but appeared to be shy. The social worker reported that the child appeared to be a motivated student with a good capacity to learn. The child's teacher advised the social worker that the child was doing well in his English class. The headmaster advised the social worker that the child was an excellent student who was doing exceptionally well. Teacher evaluations indicated that the child was an excellent student who consistently produced assignments of commendable quality. The social worker reported that the child had an average of 93, was on the principal's list, and consistently received grades of excellent for his application.

        At its meeting on May 22, 1998, the CSE recommended that the boy remain classified as learning disabled and other health impaired. His classification is not disputed in this proceeding, and I make no determination of its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The CSE also recommended that the child be placed in a Supplemental Instructional Services-I (SIS-I) program (resource room) for one period per day, five days per week with a student to teacher ratio of 5:1 at the Humanities High School. The CSE also recommended that the child continue to receive physical therapy for his Erb's palsy and that he be provided a lap top computer. Additionally, various testing modifications were recommended. In the IEP description of the child's management needs, his IEP indicated that he required "small group (8:1) part time remediation in the resource room." Petitioner rejected the CSE's recommendation and requested that it recommend another placement. The CSE did not make another recommendation, and petitioner reenrolled her son in York for the 1998-99 school year, his senior year. Petitioner requested a hearing in November, 1998 (Exhibit AAA).

        The hearing was held on December 10, 1998. The hearing officer rendered his decision on February 5, 1999. He found that respondent offered the child an appropriate and timely placement at the Humanities High School. In doing so, the hearing officer dismissed petitioner's assertion that an assistant principal of the Humanities High School had told her that the program which the CSE had recommended for her son could not be implemented in that school. Having found that respondent offered an appropriate placement, the hearing officer did not address the remaining criteria for an award of tuition reimbursement.

        Petitioner does not dispute the appropriateness of the resource room services and the physical therapy which the CSE recommended for her son during the 1998-99 school year (paragraph 3 of the petition). However, she challenges the hearing officer's determination that respondent had offered her son an appropriate placement, i.e., that having the resource room services and physical therapy provided in Humanities High School was appropriate. Petitioner asserts that the hearing officer erred by rejecting her testimony that the assistant principal in charge of special education at the Humanities High School had informed her the resource rooms in that building did not provide remediation, but instead helped students with their homework, and that student to adult ratio in resource room was 8:1, rather than 5:1 as indicated at one point on her son's IEP (Transcript, pages 27-28). Petitioner also testified that the assistant principal recommended that petitioner ask the CSE to provide another placement. The letter which is annexed to the petition is signed by the assistant principal to whom petitioner referred in her testimony. In her letter, the assistant principal asserts that "…I refused [the child's] placement into the Humanities Resource Room Program and referred you (petitioner) back to the CSE of District 3 for a more appropriate placement".

        As noted above, respondent objects to my consideration of its assistant principal's letter in this appeal, but it does not otherwise challenge the accuracy of her statement that she "refused" the boy's placement in the Humanities High School. A placement which cannot be implemented is not an appropriate placement (Application of a Child with a Handicapping Condition, Appeal No. 92-33; Application of a Child with a Disability, Appeal No. 98-10). Upon the record which is before me, I am compelled to annul the hearing officer's determination that respondent had demonstrated that it had offered an appropriate placement to petitioner's son.

        Petitioner is seeking tuition reimbursement. 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]). Having found that respondent failed to demonstrate the appropriateness of its program, I find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.

        The second criterion for an award of tuition reimbursement is whether the services selected by petitioner were appropriate. The record shows that the child had deficits in the area of reading comprehension. The principal at York, who was also the child's reading teacher and a certified special education teacher, testified that the child also had difficulty with note taking. He further testified that the child was a reluctant student who needed assistance from his teachers to be more engaged. The principal stated that he referred to the child's IEP to plan the services and accommodations for the child and that he met with the child's other teachers to review the types of services the child was receiving to ensure that they were appropriate. He explained that there were no special classes or resource rooms in York, and that the services and modifications which a learning disabled student needed are provided to him in the school's regular education classes. He further stated that some of the supplemental service instruction that he provided to the child included worksheets focusing on literal and inferential questions based upon reading assignments as well as worksheets to assist the child to outline and organize his writing. He further indicated that there was a program in place to assist the child with transition skills for college. The York principal also testified that his school was a mainstream high school. Based upon the information before me, I find that the placement at York addressed the child's special education needs. Accordingly, I find that petitioner has met her burden of proving the appropriateness of the placement she obtained for her son at York.

        The third criterion for an award of tuition reimbursement is whether the equities support petitioner's claim for reimbursement. There is nothing in the record to suggest that petitioner failed to cooperate with the CSE. Nevertheless, respondent asserts that petitioner was aware of the placement which it had offered in June, 1998, and that she unreasonably delayed requesting a hearing until November, 1998. While I agree with respondent that a parent should promptly notify a CSE of his or her dissatisfaction so that the CSE can take corrective action, if appropriate, the record reveals that the CSE was aware of petitioner's dissatisfaction in June.

        The reasonableness of the cost of the services which a parent has obtained for a child may also be considered in determining whether equitable considerations support the parents claim for reimbursement (Florence County School District Four, supra). When the cost of the services which a parent has obtained is excessive, the hearing officer or reviewing officer may properly limit the parents claim for reimbursement (Application of a Child with a Disability, Appeal No. 97-10). Respondent asserts that petitioner's recovery must be limited to the equivalent of what respondent pays its resource room providers. I note that the record does not reveal what that sum may have been for the 1998-99 school year. Moreover, the special educational services which York provided, as described by Mr. Kleinman, would not appear to be easily quantifiable for purposes of apportioning a fraction of the tuition charges for them. Therefore, I must reject respondent's contention. I note that the sum charged by York included fees that may not be properly reimbursable. Therefore, I will limit petitioner's recovery to the cost of the child's tuition, the technology and library fee and only those portions of the combined fee that cover additional costs for the classes the child participated in during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 98-79).

        Although petitioner has raised a number of issues in her petition, I do not reach each of them because of my determination that she is entitled to an award of tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her reasonable expenditures for her son's tuition at York during the 1998-99 school year, with the limitations which are indicated in this decision, upon presentation by petitioner of proof of her payment for her son's tuition.