00-038

         Petitioner, the Board of Education of the Greenport Union Free School District (Greenport) appeals from an impartial hearing officer's decision which found that its Committee on Special Education (CSE) had failed to recommend an appropriate educational program for a student, and which ordered petitioner to reimburse the student’s parents for the cost of their son's tuition and fees at the DeSisto School for the 1999-2000 school year. The appeal must be dismissed.

        At the outset, I note that the student in this appeal is 20 years old, and one of the issues at the hearing was whether he was emancipated from his parents and had established a different residence. The student and his parents are represented by the same attorney, and will be referred to collectively as "respondents" in this decision. The student's parents are residents of the Oysterponds Union Free School District (Oysterponds), which contracts with Greenport for the education of Oysterponds' pupils in grades seven through twelve (Transcript p.339).

        The student attended elementary school in Oysterponds. He was referred by his parents to the CSE of Oysterponds while in the third grade. A school psychologist who evaluated the student in January 1989 noted that the boy had been referred because he had a history of fighting and aggressive behavior. The psychologist reported that the boy had achieved a verbal IQ score of 140, a performance IQ score of 123, and a full scale IQ score of 135. The student’s academic achievement was generally at grade level. However, he was upset by the fact that he had been accepted on only a limited basis by his peers at school. The psychologist recommended that the student receive counseling at school (Exhibit 6). The Oysterponds CSE reportedly did not classify the student as a child with a disability. His parents reportedly referred him again to the CSE at the end of sixth grade. The CSE again declined to recommend that he be classified.

        The student entered petitioner’s schools at the beginning of the seventh grade. While in the seventh, eighth, and ninth grades, he was involved in a number of disciplinary incidents (Exhibits 32-42). He reportedly achieved satisfactory marks for academic performance in those grades (Exhibit 7). The student was removed from the public schools at the end of the 1994-95 school year by his parents, who enrolled him in the Wilberham and Munson Academy for the 1995-96 school year. He reportedly did not do well in the private school, which requested that he undergo a neuropsychiatric evaluation. On October 24, 1995, the physician who had performed the evaluation reported that the student had an attention deficit disorder (ADD), with some signs of hyperactivity (Exhibit 15). The student was reportedly home-tutored for two months after the evaluation, and he then returned to the Greenport schools, where he repeated the ninth grade (Transcript p.53). His final grades that school year were satisfactory (Exhibit 7).

        The student was referred to the CSE again during the 1996-97 school year, while enrolled in the tenth grade in petitioner’s high school. An educational evaluator who tested the student on March 17, 1997, noted that the boy was taking Ritalin three times per day because he had been diagnosed as having an attention deficit hyperactivity disorder (ADHD). The educational evaluator also noted that although the student expressed concern about organization and keeping up with his work, his performance on a standardized achievement test was close to or above the twelfth grade level. She suggested that he might benefit from resource room services and testing modifications (Exhibit 7). On April 17, 1997, the Greenport CSE recommended that respondents’ son be classified as other health impaired, receive three hours of resource room services per week, and have the benefit of certain testing modifications (Exhibit 4).

        The student continued to have disciplinary problems during the remainder of the 1996-97 school year (Exhibits 22-24), and during the next school year (Exhibits 17-21). In April 1998, one of his teachers suggested that he be placed in a residential school to "stop a downward spiral" in his behavior (Exhibit 8). The student’s private therapist advised the CSE chairperson that the student had been diagnosed as having an adjustment disorder with mixed disturbance of emotion and conduct in 1992, and that he was becoming increasingly disengaged from family and friends (Exhibit 12). He indicated that the student was running away from home, and opined that the student should be placed in a highly restrictive setting. The psychiatrist who had previously evaluated the boy also recommended a residential placement because the boy was very angry and in a downward spiral of self-destruction (Exhibit 11).

        On April 24, 1998, the student’s parents placed him in the DeSisto School in Stockbridge, Massachusetts. Shortly thereafter, the Greenport CSE recommended that the student be reclassified as multiply disabled and placed in a residential program for the remainder of the 1997-98 school year (Exhibit 10). On the student’s individualized education program (IEP), the CSE noted that he had already been placed by his parents in an out-of-state residential school, and it did not recommend another placement. It should be noted that the DeSisto School has not been approved by the New York State Education Department (NYSED) to provide instruction to children with disabilities. Therefore, the Board of Education could not contract with the school to educate the student (Antkowiak v. Ambach, 838 F.2d 635 [2d Cir., 1988]).

        The Greenport CSE reportedly failed to recommend a program and placement for the student for the 1998-99 school year. In a letter dated August 31, 1998 and addressed to the Greenport CSE chairperson, respondents’ lay advocate requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for the 1998-99 school year (Exhibit D). In February 1999, the student left the DeSisto School, and returned to Greenport, where he reportedly lived with friends and worked for a local business. The student met with petitioner’s Director of Guidance and Special Education during late February or March 1999 for the purpose of gaining admission to regular education classes in the Greenport High School (Transcript pp. 84-85). The Director suggested that the student enroll in a GED program, and gave him a form to fill out to establish that he was a resident of the Greenport Union Free School District. At the hearing, the Director testified that petitioner’s superintendent wanted to establish whether the student was in fact a resident of the district (Transcript p. 86). He further testified that the student had not completed the residency form and had subsequently advised the Director that he did not intend to return to school.

        Although respondents’ August 1998 hearing request was addressed to the Greenport CSE, the hearing officer was apparently appointed by the Oysterponds Board of Education. The parties met with the hearing officer in December 1998 and thereafter, but no formal hearing was conducted (Transcript pp. 348-357). In a decision dated July 20, 1999, the hearing officer asserted that two issues were before him. The first was whether Oysterponds should reimburse the student’s parents for the cost of the student’s tuition at the DeSisto School during the spring of 1999. The second issue was whether Oysterponds was required to pay for the student’s attendance at the DeSisto School for the 1999-2000 school year. The hearing officer held that Oysterponds was required to pay for the student’s instruction at DeSisto during the spring of 1999. However, he further held that Oysterponds was not required to pay for the student’s instruction at that school during the 1999-2000 school year because there was a placement available for him in an NYSED approved private school, or in two private schools which were NYSED approved for emergency placements (Exhibit H). Neither Oysterponds nor the boy’s parents appealed from that decision.

        In the summer of 1999, the student was charged with Fourth Degree Grand Larceny, Fourth Degree Criminal Possession of Stolen Property, and the Unauthorized Use of a Motor Vehicle on Shelter Island. He was released on his own recognizance and the criminal matter was adjourned, contingent upon him returning to the DeSisto School (Exhibit 55; Transcript p.251). The student returned to that school in August 1999. The student’s parents requested a CSE meeting which was scheduled to be held on September 2, 1999, but was adjourned at their request (Exhibits 13 and J). The CSE met with the student’s parents on September 17, 1999. The student participated by telephone in the CSE meeting. The student’s parents were advised by the CSE to consider placing their son in either the Elan School, which is in Poland Springs, Maine, or KidsPeace, which has various locations in Pennsylvania. The CSE did not make a formal recommendation, or prepare an IEP for the student.

        When the CSE reconvened on October 18, 1998, the student’s parents advised it that they were opposed to placing their son in either of the two private schools suggested by the CSE. The CSE prepared an IEP for the student, on which it indicated that he should be placed in a residential program (Exhibit A-1). The CSE did not identify a specific school, but a notation at the bottom of the second page of the IEP indicated that it had recommended placement in Elan or KidsPeace. The CSE also noted that the recommendation had not been accepted by the student’s parents. At the hearing in this proceeding, Greenport’s Director of Guidance and Special Education acknowledged that the student’s acceptance by Elan was contingent upon a successful interview at the school, and that KidsPeace had an immediate opening in its diagnostic unit, but there was no guarantee of a permanent placement in the facility (Transcript pp. 103,124).

        By letter dated December 10, 1999, respondents’ attorney asked the Greenport Director of Guidance and Special Education for an impartial hearing to determine if the student had been offered an appropriate and timely placement for the 1999-2000 school year (Exhibit A). The hearing began on February 29, 2000 and ended on March 7, 2000. In a decision dated May 3, 2000, the impartial hearing officer in this proceeding found that the student was a resident of Oysterponds, notwithstanding the student’s claim that he was emancipated from his parents and living in Greenport. However, he further found that since Greenport was responsible for providing special education to Oysterponds students in grades 7-12, it was incumbent upon the Greenport CSE to have convened and produced an IEP for the balance of the 1998-99 school year after the student stopped attending the DeSisto School in February 1999. He additionally found that the IEP which the Greenport CSE prepared at its October 18, 1999 meeting for the 1999-2000 school year was deficient because, among other things, it did not have measurable annual goals and short-term objectives or benchmarks and did not address the fact that the student was taking medication and allegedly could not be taking medication upon admission to the Elan School. The hearing officer concluded that the Greenport CSE had failed to recommend an appropriate placement for the 1999-2000 school year. He ordered Greenport to reimburse the student’s parents for the cost of the student’s tuition at the DeSisto School during the 1999-2000 school year.

        On March 28, 2000, Greenport’s Superintendent of Schools informed the student and his parents that he would conduct a residency hearing on April 20, 2000. That hearing took place on May 25, 2000. In his decision dated May 26, 2000, the Greenport Superintendent of Schools determined that the student was not a resident of Greenport because he was still being supported by his parents who were residents of Oysterponds. The student appealed from the Superintendent’s decision to the Commissioner of Education pursuant to Section 310 of the Education Law. On January 17, 2001, the Commissioner dismissed the appeal, upon a finding that the student had not produced evidence to establish his residence in Greenport (Appeal of a Student with a Disability, Decision No. 14531).

        Before addressing the parties’ respective arguments, I note that both parties have requested that various documents be added to the record. The documents include the Commissioner’s decision in the residency appeal, a September 19, 2000 letter by the NYSED Coordinator of Residential Placement Services, an April 4, 2000 letter by NYSED’s Chief of Program Services Reimbursement Unit, and a March 20, 2001 STAC-3 Approval Information Listing. 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 it (Application of a Child with a Disability, Appeal No. 95-41). The documents in question were not available at the time of the hearing, and will be admitted to the record.

        The Board of Education contends that the hearing officer exceeded his jurisdiction by deciding the issue of this student’s residency. It asserts that Section 100.2(y) of the Regulations of the Commissioner of Education confers jurisdiction upon a board of education or its designee to determine whether a child is entitled to attend a school district’s schools, with an appeal from that determination to be made to the Commissioner under Section 310 of the Education Law. Although petitioner is correct about the regulation, I find that it is not dispositive of this appeal. As noted above, the student was a resident of Oysterponds prior to his attempt to establish a separate residence in Greenport. Greenport was responsible for providing special education services to Oysterponds residents. Therefore, the hearing officer’s determination affixing at least initial responsibility to provide services upon Greenport is not inconsistent with the Commissioner’s finding that the student was not a resident of Greenport. Any fiscal liability which Greenport may incur as a result of the hearing officer’s decision may be a claim against Oysterponds, which is not a party to this proceeding.

        The Greenport Board of Education also contends that the hearing officer was precluded from ordering it to reimburse respondents for the cost of their son’s tuition at DeSisto because the hearing officer in the prior proceeding had determined that Oysterponds would not be liable for such tuition. It asserts that the prior hearing officer’s decision was final and binding upon respondents because they did not appeal from the decision (see 20 USC 1415[i][1][A]; Section 4404[1] of the Education Law). Respondents argue that the hearing officer in the prior proceeding did not base his decision on the record because no hearing was in fact conducted, and he purported to usurp their son’s future due process rights. They also assert that the hearing officer failed to provide notice of the right to appeal from his decision (see 34 CFR 300.504; 8 NYCRR 200.5[c][11]). In its reply to the answer, petitioner asserts that the parties in the prior hearing stipulated to certain facts, which the hearing officer relied upon in rendering his decision. It further asserts that it provided the requisite due process notices to respondents "at the required intervals".

        I agree with petitioner that a hearing officer’s decision is final and binding upon the parties unless appealed from (Application of a Child with a Disability, Appeal No. 97-26). I may not review such a decision even if I disagree with the hearing officer’s factual or legal conclusions (Application of a Child with a Disability, Appeal No. 99-4). The question I must now answer is whether respondents, who were represented by another attorney in the first proceeding, were adequately apprised of their right to appeal from the first hearing officer’s decision. The copy of the decision in the record before me does not include a notice of the right to appeal to the State Review Officer. Petitioner urges me to take notice of the NYSED prescribed procedural safeguards notice which was reportedly sent to school districts in various field memoranda. However, I am obliged to base my decision solely upon the record before me (8 NYCRR 279.10), and there are no procedural safeguard notices in the record. I find that petitioner has the burden of proving that the hearing officer in this proceeding was precluded by the finality provisions of federal and state law from reaching the issue of tuition reimbursement for the 1999-2000 school year, and that it has failed to do so because it has not established that respondents were given the requisite notice of their right to appeal.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        I find that petitioner’s CSE had an obligation to make a timely and appropriate placement recommendation for the 1999-2000 school year, notwithstanding the fact that the student and his parents were residents of Oysterponds. Although the student acknowledged at the hearing that he had advised Greenport’s Director of Guidance and Special Education that he did not intend to return to school in the spring of 1999, he was clearly still eligible for services as a child with a disability. I find that the CSE should have convened in the spring of 1999 to consider the student’s needs and recommend appropriate services for him. Instead, it waited until it was asked by respondents in late August 1999 to recommend a placement for the student. The CSE failed to make a specific recommendation at either its September 17, 1999 or October 18, 1999 meetings. As noted above, the student’s admission to Elan was contingent upon an interview which had not been conducted when the CSE made its dual recommendation, and there was no long-term opening for him at KidsPeace at the time of the recommendation. Under the circumstances, I must find that the Greenport CSE failed to make a timely recommendation for the student’s placement during the 1999-200 school year.

        Respondents bear the burden of proof with regard to the appropriateness of the services provided by the DeSisto School during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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 student (Application of a Child with a Disability, Appeal No. 94-20).

        The student's IEP indicated that he had difficulty meeting his academic responsibilities, notwithstanding his above average cognitive skills. The IEP also indicated that he required an academically oriented behavior modification program to motivate and sustain his learning. In addition to improving his attentiveness and concentration skills, the IEP established annual goals and objectives to eliminate oppositional behavior, decrease avoidant behavior, reduce self-destructive behavior, i.e., substance abuse, and improve his relationship with peers and adults (Exhibit A-1). The student's therapist at the DeSisto School testified that he required a structured program to decrease his anxiety and impulsivity.

        The Director of Recruitment for DeSisto testified that the school offered a college preparatory curriculum for students of average or above-average intelligence who exhibit behavioral disorders including substance abuse and chronic depression. Classes at the school average from six to eight students. Students receive four and one-half hours of instruction per day, and are required to participate in two hours of evening study. Students who fail to complete their homework assignments have to attend a late afternoon study hall. The Director of Recruitment testified that respondents' son received at least 45 minutes of individual counseling per week, and participated in a 90-minute therapeutic session with others in his dormitory once per week. He also testified that various behavior modification techniques, including a token economy, were used by the school. The Recruitment Director testified that the student had made significant progress in addressing his emotional concerns, and had become more open to attempting to do things. He acknowledged that the student had testified that his relationships with peers had improved, and that the student displayed less oppositional and work avoidance behavior. She described the school's program regarding substance abuse. The school's behavioral approach to dealing with its students was also described at the hearing by its Director of Enrollment, who explained how peer pressure was used to get students to complete their assigned tasks. The school's Academic Director testified that the student had been generally successful prior to running away in February 1999, and had done well in school during the 1999-2000 school year (Transcript pp. 4450-452). In the absence of any evidence refuting the testimony of respondents’ witnesses, I find that they have met their burden of proving that the DeSisto School offered their son appropriate educational services during the 1999-2000 school year.

        The third and last criterion for an award of tuition reimbursement is whether the parents’ claim for reimbursement is supported by equitable considerations. Petitioner contends that the hearing officer erred in finding that respondents’ claim was supported by such considerations. It asserts that the sum of $66,795 which the school charged respondents for tuition, room, and board is excessive. The cost of the services which the parents obtained for their child may be considered in determining whether equitable considerations support the parents’ claim for reimbursement (Florence County School District Four et al v. Carter by Carter, supra ; Application of a Child with a Disability, Appeal No. 96-8). Petitioner suggests that I consult the records of the NYSED to establish what petitioner pays for the cost of educating a child with a disability. However, that is not the test of whether a particular private school’s charge is excessive, and it is petitioner’s obligation to establish a basis for its assertion that the charges are excessive (Application of a Child with a Disability, Appeal No. 99-40). The Board of Education is correct that it should not have to pay for textbooks which could have been loaned to the student pursuant to Section 701 of the Education Law, or for clothing, supplies, telephone calls, and other personal expenditures by the student.

        Petitioner also argues that respondents failure to promptly alert the district that their son had left the DeSisto School in February 1999 deprived petitioner of an opportunity to locate a suitable placement for him. I must note that petitioner’s Superintendent of Schools testified that she was aware that the student had left school and had discussed the matter with Greenport’s CSE chairperson in late February 1999 (Transcript p. 363). I find that petitioner’s argument is without merit. I have considered petitioner’s other arguments, which I also find to be without merit.

THE APPEAL IS DISMISSED.