00-035

       Petitioner appeals from the decision of an impartial hearing officer which denied her request for an award of tuition reimbursement for the expense of her unilateral placement of her child at the Stephen Gaynor School (hereinafter Gaynor), for the 1999-2000 school year. The hearing officer found that petitioner’s claim for tuition reimbursement was not supported by equitable considerations because petitioner allegedly did not exhibit a cooperative attitude towards the efforts by respondent’s Committee on Special Education (CSE) to find an educational placement for her son. The appeal must be sustained.

        Petitioner’s son was eleven years old at the time of the hearing. The boy attended a regular education parochial school for kindergarten and the first grade. He was reportedly found by the CSE to be eligible to receive special education services while in the first grade, when the CSE recommended resource room services for him (Transcript p. 100). The student’s parents placed him in Gaynor for the second grade in September 1996. He has remained at Gaynor, which serves students with disabilities, but has not been approved for that purpose by the New York Education Department. In a prior proceeding, a hearing officer awarded tuition reimbursement for the 1998-99 school year, after finding that respondent’s offer of a placement in its modified instructional services-I (MIS-I) program at P.S. 871 had not been made in a timely manner (Exhibit D).

        The parties are in agreement as to the student’s classification as learning disabled under the Individuals With Disabilities Act, (IDEA), which I do not review (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]). The student’s cognitive abilities are reported to be in the average to high average range. In 1996, a neurolgist reported that the boy had dyslexia and an attention deficit disorder, secondary to cerebellar vestibular dysfunction, according to a CSE psychologist who reviewed the boy’s file in December 1997 (Exhibit 6). The student was taking Dextrostat to address his distractibility (Exhibit C).

        As part of the CSE’s annual review process, an educational evaluation was performed on January 16, 1999. The student’s speech and language skills were assessed to be age appropriate, as were his vocabulary skills. His overall reading skills were found to be at the mid-third grade level, and his math skills were determined to be at the beginning fourth grade level. Writing was described as a "physically arduous task" for him. His social studies and science skills were measured to be at the fourth grade level. The evaluator noted that the boy initially demonstrated good attention to task, but began to lose interest during the evaluation and had to be refocused (Exhibit 1). The educational evaluator testified at hearing that the student’s weaknesses were in the areas of reading and writing, probably requiring a smaller educational setting to compensate for his language deficits as well as attention deficits (Transcript pp.14-16).

        A speech and language evaluation performed on January 16, 1999 indicated that the student’s language skills were generally above grade level, but he had some weaknesses in identifying word classes. The evaluator reported that the boy’s weaknesses could be addressed in the classroom (Exhibit 3). An observation of the student in class at Gaynor on March 16, 1999 found the student to be performing appropriately during a spelling lesson, responding as such to teacher prompted questions (Exhibit 4).

        On May 24, 1999, the CSE recommended petitioner’s son continue to be classified as learning disabled and attend an MIS 1 program with a staffing ratio of fifteen children to one staff person (Exhibit 8). It also recommended that he receive 30 minutes of individual and 30 minutes of group counseling each week, and that occupational therapy be discontinued. Petitioner did not attend the CSE meeting. She apparently received a copy of a notice inviting her to attend the CSE meeting, indicating that the CSE would "discuss the educational needs of your child" (Exhibit 11). At the hearing in this proceeding, she testified that she misunderstood the purpose of the meeting, and thought it was related to the due process proceeding regarding her claim for tuition reimbursement for the 1998-99 school year (Transcript p. 102).

        Subsequent to the May 24, 1999 CSE meeting, petitioner received a Final Notice of Recommendation dated June 17, 1999 which offered her son a placement at P. 41, and made reference to an attached individualized education program (IEP) (Exhibit 12). Petitioner testified that the IEP was not attached (Transcript p. 102). She also testified that on August 6, 1999, she wrote a letter to the CSE requesting more information about the composition of the proposed class for her son, but that she did not receive a response to her request (Transcript pp 103-105). Petitioner further testified that she ultimately made an appointment to visit P. 41 in December 1999 because she was unable to take time off from work until then (Transcript p 112). I note that in her petition, she asserts that she is employed by a hospital as a physical therapist. When she visited the school, the students in the proposed class were temporarily reassigned to other classes because the teacher had left employment.

        In a letter dated August 6, 1999, petitioner’s attorney informed the CSE that the student would attend Gaynor during the 1999-2000 school year, and that an impartial hearing would be requested (Exhibit 13). By letter dated September 2, 1999, the attorney formally requested a hearing (Exhibit 14). The hearing was to begin on February 1, 2000, but was adjourned by agreement. It was held on March 7, 2000.

        In her decision which was rendered on April 12, 2000, the hearing officer found that the CSE’s placement recommendation was procedurally flawed because the CSE had held its annual review without documenting its attempts to have the parent participate in the meeting, as required by 34 CFR 300.345(d). She further found that petitioner had met her burden of proving that Gaynor had met her son’s special education needs during the 1999-2000 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). However, she found that petitioner’s claim for tuition reimbursement was not supported by equitable considerations in light of the fact that petitioner had not attended the CSE’s annual review and had failed to visit the recommended placement until December 1999. While noting that respondent had failed to respond to petitioner’s August 6, 1999 request for information about her son’s proposed class, the hearing officer held that respondent’s failure to do so did not afford a basis for petitioner to unilaterally enroll her son in Gaynor and seek tuition reimbursement for that placement.

        A Board of Education may be required to pay for the educational services obtained for a child with a disability 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 for reimbursement (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]). The United States Supreme Court held in Florence County School District Four v. Carter by Carter, 510 U.S. 7 (1993), that the parents’ right to tuition reimbursement includes the right to obtain reimbursement for tuition in a private school which is not State approved, if the private school provided the child with an appropriate education.

        In view of respondent’s failure to appeal or cross-appeal from the hearing officer’s determination that petitioner had prevailed with respect to the first two criteria for an award of tuition reimbursement, I find that the hearing officer’s decision on the first two criteria is final and cannot be reviewed in this appeal (34 CFR 300.510[a]). Therefore, the only issue which I will consider is whether petitioner’s claim for an award of tuition reimbursement is supported by equitable considerations.

        Petitioner argues that the hearing officer’s determination with regard to the third criterion for an award of tuition reimbursement is not supported by the law or the record. She asserts that she misapprehended the purpose of the CSE meeting, and that the CSE could have corrected her misapprehension if it had telephoned her to explain the need for her presence. Petitioner further asserts that by delaying its Final Notice of Recommendation until June 17, 1999, respondent precluded her from visiting the proposed class for her son prior to the end of the 1998-99 school year. She also contends that respondent’s failure to respond to her August 6, 1999 request for information about the class prevented her from obtaining adequate information upon which to decide if her son should attend the class. Petitioner asserts that when she did visit P.S. 41 in December 1999, she was not informed that the proposed class had only temporarily been disbanded.

        Respondent argues that it would be inequitable to award tuition reimbursement to a parent who failed to attend a CSE meeting, or visit a proposed class until three months after she had enrolled her son in a private school. It also notes that annual tuition at Gaynor is approximately $22,000. The reasonableness of the cost of the services which a parent has obtained for her child may be considered in determining whether equitable considerations support the parent’s claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, supra; Application of a Child with a Disability, Appeal No. 98-6). However, the issue was not raised below, and will not be considered in this appeal. Upon the facts in the record before me, I cannot agree with the hearing officer’s determination that petitioner’s claim for tuition reimbursement was not supported by equitable considerations.

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 the cost of her son’s tuition at the Stephen Gaynor School for the 1999-2000 school year, upon petitioner’s presentation of proof of payment of such tuition.