00-064

       Petitioner appeals from an impartial hearing officer’s decision which found that respondent had offered to provide an appropriate educational program to petitioner’s son during the 1999-2000 school year. The hearing officer denied petitioner’s request for an order requiring the Board of Education to reimburse petitioner for the cost of her son’s tuition at the Beekman School (Beekman). The appeal must be sustained.

        Preliminarily, I will address two procedural issues raised in this appeal. First, petitioner requests that I accept a letter dated September 14, 2000 by the headmaster of Beekman regarding the services that Beekman provided to petitioner’s son during the 1999-2000 school year. It is well established that 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, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 95-41). I find that the letter in question completes the record in regard to the services the student received at Beekman, and I accept it as part of the record in this appeal.

        Petitioner requests that the Board of Education’s answer be rejected as untimely. An answer must be served within ten days of service of a petition (8 NYCRR 279.5). Respondent’s answer was due on September 28, 2000, but was not served until October 20, 2000. Respondent is represented by the New York City Law Department. Its attorney asserts that the hearing record that the Law Department initially received from respondent’s Impartial Hearing Office was incomplete, and that she did not receive a complete copy of the record that includes 74 exhibits until September 29, 2000. She asks that I excuse respondent’s delay. I note that petitioner has filed a reply to the answer, and therefore has not been deprived of an opportunity to address the issues raised therein. Although respondent should make every effort to file a timely answer, I find under the circumstances of this case that sufficient cause exists to excuse respondent’s delay, and will accept the answer.

        Petitioner’s son was an 18-year-old student in his senior year at Beekman when the hearing began in February 2000. The student has been classified as learning disabled. His learning disability is manifested by below average writing skills and average math calculation skills. The student’s classification as learning disabled is not disputed, and it is therefore not reviewed (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        Petitioner’s son participated in a gifted program while in the first and second grade at P.S. 9. Nevertheless, he was initially referred by his teacher to respondent’s Committee on Special Education (CSE) at the end of second grade, because of concerns about the boy’s reading. The CSE recommended that the student be classified as learning disabled and receive resource room services while enrolled in a regular education third grade class during the 1989-90 school year. However, he was placed by his parents in the Stephen Gaynor School, a private school for learning disabled children, for grades three through six. The student attended another private school, the Dwight School, for seventh and eighth grade. A neurologist who examined the student in the fall of 1993 reported that the student manifested some imperfections in fine and gross motor coordination and had a tendency to stutter, but appeared to have a well-focused attention span (Exhibit 13).

        Petitioner’s son entered respondent’s LaGuardia High School for the ninth grade in the fall of 1995. Shortly thereafter, he was privately evaluated at the Learning Center of the Jewish Board of Family and Children’s Services (Exhibit 18). The evaluating psychologist reported that the student’s verbal cognitive skills were solidly average, while his performance cognitive skills were significantly lower and variable. His ability to decode and recognize words was reported to be two years below grade level, but his reading comprehension was in the average range. The student’s spelling, punctuation and capitalization skills were reported to be substantially below grade level.

        The student remained at LaGuardia High School for six months, until he dropped out. He reportedly refused to attend the public high school, because he believed that it was overwhelming and he was unable to do the work. Petitioner’s son thereafter enrolled for grades nine through eleven in the Tutoring School, a private high school that allowed the student to be taught in small classes with only three or four other students in each class (Exhibit 22).

        By letter dated February 28, 1998, petitioner asked the CSE to recommend a placement for her son for the 1998-99 school year (Exhibit 19). In a social history taken in April 1998, petitioner indicated that her son had been receiving psychotherapy since he was seven years old, and that she was unsure about how to get him to comply with her requests (Exhibit 22). The student was observed in class at the Tutoring School by a CSE evaluator in April 1998. She reported that the student worked well in a one-to-one setting, and that he was benefiting from the individual attention offered in a small school setting (Exhibit 23).

        The CSE also had psychological and educational evaluations performed in April 1998. The student scored in the high average range on the Raven Coloured Progressive Matrices, a non-verbal, cognitive problem solving test. The evaluating school psychologist noted that the test was untimed, which aided the student. The evaluator also noted that the student was articulate and imaginative and used sophisticated language. She reported that the student appeared to have deep-seated, significant unresolved conflicts and fears beyond those expected during late adolescence. She recommended that consideration be given to the fact that the student appeared to best function in a sheltered and supportive environment (Exhibit 24). The CSE educational evaluator reported that petitioner’s son required extra time to complete most tests. On the Woodcock-Johnson Test of Achievement, the student achieved standard scores of 110 for broad reading, 98 for broad math, and 79 for basic writing (Exhibit 25).

        On May 7, 1998, the CSE recommended that the student be educated in regular education classes, with resource room assistance and the related service of counseling (Exhibit 27). A disagreement between the parties as to the appropriateness of the CSE’s recommendation for the 1998-99 school year led to the student’s unilateral placement in the Smith School by his parents. The Smith School is the new name of the Tutoring School (Transcript p. 34). It has not been approved by the State Education Department to instruct children with disabilities. An impartial hearing that had been commenced with regard to the matter was terminated by a stipulation of agreement pursuant to which the Board of Education paid for the student’s attendance at the private school (Exhibits 57 and 64).

        On January 25, 1999, petitioner asked the CSE chairperson to arrange for an appropriate placement for her son during the 1999-2000 school year (Exhibit 41). In mid-March 1999, the CSE received information about the student’s current educational program from the Smith School (Exhibit 44). He was enrolled in the school’s regular education program at the 12th grade level, but he lacked sufficient credits to graduate at the end of the school year. A school representative asserted that petitioner’s son required small classes of no more that 4:1 student-to-teacher ratio.

        A social history update was done on March 16, 1999 (Exhibit 48). On May 3, 1999, the student was observed at the Smith School by a CSE social worker, who reported that the student appeared to be lethargic in his government class. He was more involved in his English class, but appeared to be lost and behind, and required assistance and encouragement from his teacher (Exhibit 56). On May 8, 1999, a CSE educational evaluator reported that petitioner’s son had achieved standard scores of 131 for broad reading, 94 for math calculation and 102 for applied problems on The Woodcock Johnson Test of Achievement-Revised. She further reported that the student could organize his thoughts and express them clearly in a written paragraph, but that he needed to continue to improve his grammar, punctuation, spelling, and word usage. The evaluator indicated that the student could work well independently and appeared to be self-motivated (Exhibit 54).

        The CSE met on June 7, 1999 to develop the student’s individualized education program (IEP) for the 1999-2000 school year. It recommended a general education program for the student, with resource room services, and 45 minutes of individual counseling per week (Exhibit 58). I note that the IEP does not indicate the frequency of the resource room services, as required by 34 CFR 300.347(a)(6). In its answer, respondent asserts that the CSE recommended that the student receive those services four times per week. The IEP includes the testing modifications of doubled time limits and testing in a separate location, as well as one annual goal to improve the student’s writing skills, one goal to increase his attention and concentration, and one goal to improve his socialization.

        In a final notice of recommendation dated June 15, 1999, respondent offered a placement in its Environmental High School (Exhibit 62). By letter dated June 22, 1999, petitioner asked to observe the resource room at Environmental High School. She was not afforded the opportunity to see students at the school until September of 1999 because of the late date of the placement (Exhibit 65). Petitioner ultimately decided to unilaterally enroll her son at Beekman, after she visited Environmental High School in September. She advised the CSE chairperson of her determination to place her son in Beekman in a letter dated September 24, 1999. The enrollment contract was dated September 15, 1999 (Exhibit 67).

        On December 29, 1999, petitioner requested an impartial hearing (Exhibit 73). The hearing began on February 14, 2000. The hearing officer was informed of a proposed settlement by the parties and agreed to adjourn the hearing until May 8, 2000. A final agreement was not reached, and the hearing resumed on May 8. The Board of Education’s representative made an opening statement, and then rested the Board’s case. Petitioner briefly testified about her son’s needs, and answered the hearing officer’s questions about Beekman’s program. She explained that Beekman offered larger classes than her son’s previous school, but that its classes were still small. The student received some counseling at Beekman, although not necessarily once per week as the CSE had recommended, and continued to receive psychotherapy from his private therapist.

        The hearing officer rendered her decision on August 9, 2000. She found that the Board of Education’s recommended program was appropriate, and consistent with the requirement that respondent place students with disabilities in the least restrictive environment (LRE). Accordingly, the hearing officer denied petitioner’s request for tuition reimbursement.

        Petitioner asserts that she was not informed of respondent’s rejection of the proposed settlement until the afternoon of May 7, 2000. She contends that she was denied due process of law because she was forced to proceed with the hearing on May 8, 2000 without adequate time to prepare for the hearing, and the hearing officer did not explain her rights to her. Respondent asserts that petitioner was aware that the hearing would resume on May 8 if no settlement was reached, and that she was advised on May 8 that she could request an adjournment. The transcript of the May 8 hearing does not reveal that petitioner objected to going forward on that date, or that she was offered the opportunity of an adjournment. There is no evidence in the transcript of petitioner having been advised of her hearing rights by the hearing officer.

        An impartial hearing officer must ensure that there is an adequate record upon which to premise his or her decision, and to permit meaningful review of the issues (Application of a Child with a Disability, Appeal No. 97-62; Application of the Board of Educ., Appeal No. 95-25; Application of the Board of Educ., Appeal No. 94-35). I find that the hearing officer failed to adduce sufficient evidence to support her findings.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having 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 its 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]).

        Although a number of documents were introduced into evidence, no one testified on behalf of the Board of Education to explain how the CSE’s recommended educational program would have met this student’s needs. As part of its burden of proof, the Board of Education was required to demonstrate that petitioner’s son would have been suitably grouped for instructional purpose in the proposed resource room (Application of a Child with a Disability, Appeal No. 97-67). The Board of Education failed to introduce a profile of the students in the resource room, or otherwise establish whether the needs of those students were comparable to those of petitioner’s son. I must find that respondent has failed to meet its burden of proving that it had offered to provide an appropriate educational program to petitioner’s son during the 1999-2000 school year.

        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. Dep't 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]). I have found that petitioner has satisfied the first criterion for an award of tuition reimbursement.

        The burden of proof shifts to petitioner with regard to the appropriateness of the services provided to her son by Beekman 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 parent must show that the private school offered an educational program which met the student’s special education needs (Burlington, 471 U.S. at 370; 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).

        Beekman is a college preparatory general education school that follows the state-mandated academic curriculum, while providing extra support to students. Beekman has an enrollment of approximately 80 students, with a maximum of ten students placed in each class. Approximately 90 percent of its graduates go on to college. The school offers small classes, academic support, and a pace of learning that is appropriate for each individual student (Exhibit 68). The student’s fall academic schedule at Beekman consisted of health, eastern philosophy, English, and biology. He earned barely passing grades in health, philosophy, and English. The record does not reveal his grade in biology. During the second semester, he was enrolled in computers, electronics, biology and English (Exhibit 72). The hearing concluded before the semester ended, and there is no record of the student’s grades during the spring semester.

        According to the Beekman headmaster, petitioner’s son received the equivalent of resource room service directly in his general education classes during the 1999-2000 school year. The student was provided with such supports as graphic organizers, strategies for outlining his notes and assignments, techniques for preparing written assignments, drills to improve his writing and vocabulary skills, assistance in reading and developing reading skills, individualized work on assignments, and worksheets. The student was also allowed extra time to complete assignments and tests. Counseling was also provided to the student to improve his socialization skills and develop emotional maturity. The headmaster indicated that petitioner’s son had a successful year and had met the requirements for graduation from Beekman (Exhibit 1 to petition).

        Based upon the limited record that is before me, I find that petitioner has met her burden of proof. Her son’s evaluators have indicated that he needs a supportive environment with small classes in order to succeed. Beekman apparently provided him with that kind of environment. From the teacher comments on his report card, it is apparent that petitioner’s son could have applied himself more in completing assignments, and achieved more success at Beekman during the 1999-2000 school year. However, his failure to do so is not proof that Beekman was inappropriate for him, any more than a public school student’s failure to do homework is proof that the public school’s educational program is inappropriate.

        I have considered respondent’s argument that Beekman was not the least restrictive environment for this student. The LRE requirement applies to unilateral parental placements as well as to school district placements (M.S. ex rel. S.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]). Nevertheless, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688 [2d Cir. 1989]). Respondent’s assertion that this student could successfully function in large regular education classes with resource room services and counseling is not supported by the record.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent’s claim for reimbursement. There is no indication in the record that petitioner failed to cooperate with the CSE. Petitioner made a timely request for placement, and she continued to remain in contact with the CSE. Nothing in the record supports a finding that the cost of services provided at Beekman were excessive. Accordingly, I find that equitable considerations support petitioner’s claim for 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 the cost of her son’s tuition at Beekman during the 1999-2000 school year, upon petitioner’s submission of proof of payment of such tuition.