01-020

           Petitioner appeals from an impartial hearing officer’s decision that denied her request for an order requiring respondent to fund her daughter’s placement in the Laboure Special Education Program at St. Simon and St. Jude Elementary School, a private school, for the 2000-01 school year. The Laboure program is operated by the Catholic Archdiocese of Brooklyn (Transcript p. 185). The appeal must be sustained.

        At the outset, I must note that respondent has not filed an answer to the petition. 8 NYCRR 279.3 provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department." The New York State Supreme Court recently annulled a decision of the State Review Officer on the ground that the decision was based upon an independent review of the record, rather than the recitations in an unanswered petition (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc. 2d 560 [2000]). The Court’s decision is being appealed, and I must respectfully decline to follow it in this appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.510 [b][2][i]), and to make an independent decision (20 USC 1415[g]). The facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        I also note that the relief petitioner requested at the impartial hearing and in this appeal is a "Nickerson" letter pursuant to Jose P. et al. v Ambach et al., 79 C 270, USDC EDNY 1982). Petitioner’s daughter was receiving special education and related services under an individualized education program (IEP) for the 1999-2000 school year. Although respondent’s preparation of a new IEP and proposal to place petitioner’s daughter for the 2000-01 school year were not timely, petitioner was offered a placement which she rejected. Petitioner then unilaterally placed her child in St. Simon and St. Jude. Therefore, I will treat petitioner’s request as one for tuition reimbursement.

        Petitioner’s ten-year-old daughter is classified as multiply disabled. She has been diagnosed with Down syndrome, congenital heart disease and an attention deficit hyperactivity disorder (ADHD). She wears a pacemaker. The student was enrolled in respondent’s Modified Instructional Services-V (MIS-V) program at P.S. 63 for the 1998-99 and 1999-2000 school years. By letter dated January 4, 2000, petitioner requested a review of her daughter’s IEP (Exhibit 9). On February 2, 2000, petitioner signed a form indicating that she consented to having her child observed in class and an updating of her social history, but did not consent to any other assessments or evaluations (Exhibit 12).

        Respondent’s Committee on Special Education (CSE) met with petitioner on March 14, 2000. The CSE had available for review a series of reports prepared over the preceding two years. A psychological evaluation was conducted on April 22, 1998 at the Association for the Help of Retarded Children (Exhibit 3). The child obtained a verbal IQ score of 67, a performance IQ score of 58, and a full scale IQ score of 60, all within the intellectually deficient range. The child achieved a composite score of 60 on the Vineland Adaptive Behavior Scales. The evaluating psychologist recommended placement in a classroom suitable for a child with mild mental retardation and attention deficit hyperactivity disorder, including a low teacher/child ratio and a one-to-one paraprofessional skilled in behavior management (Exhibit 3).

        A second psychological evaluation was conducted on May 5, 1998 by the school psychologist. She found that the child presented as a restless, impulsive girl who required much praise and encouragement in order to sustain attention and motivation. The student scored in the mildly mentally deficient range overall, although her performance was not uniform. Delays were noted in all areas of social adaptive functioning. The psychologist noted that the child had a history of behavior management problems, and would require support to achieve maximum learning. The psychologist also noted that petitioner’s daughter would continue to need a small self-contained class to provide intensive academic remediation and to address her behavior management needs (Exhibit 4).

        An educational evaluation was conducted on May 8, 1998, while the child was in the second grade in the MIS-V program. The student was found to be working at about a kindergarten level in reading and math. Weaknesses and delays were noted in her receptive and expressive vocabulary, auditory memory, listening comprehension, phonetic strategies and visual discrimination, which hampered the student’s academic progress. The evaluator commented that the child’s immature behavior and difficulty paying attention also impacted on her ability to learn. The evaluator recommended continuation of intensive remediation, with consistent focusing, encouragement and praise. Short, concentrated work periods with concrete materials were recommended. The evaluator also suggested that behavior modification techniques could help to increase the student’s attention and concentration skills (Exhibit 5).

        A school district evaluator updated the student’s social history after interviewing petitioner on February 2, 2000. Petitioner indicated that she wanted to revise the math goals on the student’s IEP, and to mainstream her for art, music or some other appropriate class. Petitioner also indicated she would obtain a private physical therapy evaluation so that her daughter could receive physical therapy at home. The report indicates that the child was behaving appropriately at home and in the community (Exhibit 13).

        The child was observed during a reading lesson on February 2, 2000. She spoke with moderate misarticulation, but was intelligible. She had some difficulty attending to task when reading in a group and had to be refocused by the teacher. She was somewhat fidgety, but was attentive when she was asked to work independently with a book (Exhibit 14). The child was observed again on February 29, 2000, while she was in the auditorium with her class to see a play. She behaved appropriately during this activity, but asked to sit with her teacher, rather than between two other students (Exhibit 19).

        In a written report dated February 3, 2000, the child’s teacher estimated that the child was reading at beginning first grade reading level and her math skills were at kindergarten level. She noted that the student had a very short attention span, was easily distracted, and tended to be unable to remain focused on a task without assistance. The teacher also found that the child was sensitive, impulsive, anxious, and had difficulty accepting correction or criticism (Exhibit 16).

        A counseling report by the school-based support team social worker stated that the child exhibited a wealth of vocabulary and the ability to verbalize her day-to-day life and emotions. The social worker reported that the child required much structure and consistency. When not structured physically, she had difficulty staying on task. Her ability to transition before and after counseling was improving. The social worker recommended continuation of weekly counseling (Exhibit 15). The child’s speech therapist, occupational therapist and physical therapist also prepared written reports recommending that their respective services be continued at current levels (Exhibits 17, 21, 22).

        At its March 14, 2000 meeting, the CSE recommended that petitioner’s child remain in the MIS-V program at P.S. 63, and that she continue to receive speech/language therapy, occupational therapy, physical therapy, and counseling with the school social worker. It also recommended that a full time health aide continue to assist the child in school. The child’s IEP prepared on that day included annual goals and short-term objectives for handwriting, reading decoding and comprehension, math computation, awareness of safety rules, speech, physical skills, and counseling. A behavior intervention plan regarding the student’s difficulty with transitions and with following directions was appended to the IEP (Exhibit 23). A final notice of recommendation was sent to petitioner on March 16, 2000.

        By letter dated March 24, 2000, petitioner advised the district placement officer that she was not satisfied with her daughter’s IEP because it did not reflect what had been agreed upon at the CSE meeting (Exhibit 24). She requested that the CSE review her child’s IEP, and was in turn asked to consent to having her child re-evaluated. On April 8, 2000, petitioner declined to consent, and indicated that she would have the child privately evaluated (Exhibit 26).

        The CSE reconvened with petitioner on May 22, 2000. At that meeting, the parent and the CSE agreed to certain changes in the child’s IEP, including a behavior intervention plan (Transcript p. 19). However, the CSE continued to recommend that the student should attend an MIS-V class, and receive related services as described above (Exhibit 32). The CSE meeting minutes indicate that petitioner was unhappy with the MIS-V class at P.S. 63, and felt her daughter could not learn reading and math through the DISTAR method employed in that class. Petitioner also stated that her daughter needed a more nurturing environment and more support from her assigned paraprofessional. Possible placement in an MIS-V class outside Community School District 27 was discussed (Exhibit 33). At the hearing in this proceeding, a CSE representative testified that obtaining a variance to allow the child to attend school in another Community School District was the parent’s responsibility (Transcript pp. 25-26).

        In a final notice of recommendation dated July 12, 2000, petitioner was offered a placement in an MIS-V class at P.S. 115 in Community School District 26 in September 2000 (Exhibit 34). In an August 8, 2000 letter to a member of the New York City Council, the Chairperson of the District 27 CSE stated that because Community School District 27 "could not offer an appropriate higher functioning special education class, we worked closely with the parent and a neighboring district and all parties agreed that [her daughter] would attend a new school in September" (Exhibit A). Petitioner did not receive a copy of her child’s IEP from the May 22, 2000 CSE meeting until August 2000 (Transcript p. 102). On August 29, 2000 petitioner requested an impartial hearing, stating that respondent had failed to offer her daughter a placement in a timely manner and requested a "Nickerson" letter (Exhibit 35).

        By letter dated September 11, 2000, petitioner notified respondent that she rejected the proposed placement at P.S. 115. She stated that the class was lower functioning than her daughter needed, the teacher could not describe the curriculum, the teacher and assigned paraprofessional did not intervene when students behaved inappropriately, and the class did not provide a nurturing environment (Exhibit 36). Petitioner placed her daughter at St. Simon and St. Jude, which has been approved by the State Education Department to provide instruction to children with disabilities.

        An impartial hearing was conducted on October 30, November 7 and December 14, 2000. At the hearing, respondent presented evidence about the appropriateness of the child’s MIS-V class at P.S. 63, but no evidence about the MIS-V class at P.S. 115. By decision dated February 16, 2001 the impartial hearing officer denied petitioner’s requests for a "Nickerson" letter or tuition reimbursement. She found that the MIS-V class at P.S. 63 was an appropriate placement for the child. She declined to reach the question of whether the placement at P.S. 115 would have been appropriate because she found that the P.S. 115 class was offered to petitioner "as an accommodation," and was not the CSE’s actual placement offer. The hearing officer also found that respondent’s failure to provide petitioner with a copy of the written IEP after the May 22, 2000 CSE meeting until August 2000, while inexcusable, did not warrant the relief requested by petitioner. She further found that petitioner’s claim for tuition reimbursement was not supported by equitable considerations because petitioner had not cooperated with the CSE in having her child re-evaluated. The hearing officer ordered respondent to provide related services to the child.

        Petitioner contends that the hearing officer erred in finding that respondent had met its burden of proving that it had offered to provide an appropriate educational program to her daughter at P.S. 63. She asserts that the placement at P.S. 115 was offered because the CSE agreed that the MIS-V class at P.S. 63 was not an appropriate placement. Petitioner argues that the hearing officer further erred by declining to consider whether the MIS-V class at P.S. 115 was appropriate for petitioner’s daughter.

        The initial question is what was the placement that respondent offered to petitioner’s child for the 2000-01 school year. At the hearing, the school psychologist member and the educational evaluator member of the CSE that met on May 22 testified that the CSE recommends programs, but does not make placements (Transcript pp. 26, 37). In any event, the educational evaluator also testified that the CSE had discussed the child’s then current placement at P.S. 63, and determined that it was appropriate for her (Transcript p. 38). Petitioner testified that the CSE had orally agreed at that meeting to help her find another MIS-V placement for her daughter (Transcript pp. 99, 101). The IEP that the CSE prepared for petitioner’s daughter after the May 22, 2000 meeting recommended an MIS-V program with related services, but did not identify a specific placement, i.e., class (Exhibit 32). The only specific placement that was offered to the child for the 2000-01 school year after the May 22, 2000 CSE meeting was the MIS-V class in P.S. 115 (Exhibit 34).

        At the hearing, a CSE representative suggested that it was unnecessary to send a placement notice for P.S. 63 to petitioner because one had been sent to her after the March 14, 2000 CSE meeting (Exhibit 24). She asserted that no notice was sent because Community School District 27’s placement officer was helping petitioner to obtain a variance so that the child could attend school in another community school district (Transcript p. 111). The representative contended that the CSE’s actual recommendation was that petitioner’s daughter attend the MIS-V class at P.S. 63, and that a place remained available for her at P.S. 63 after her mother rejected the P.S. 115 placement (Transcript p. 112). The record does not establish that respondent notified the parent that it continued to recommend P.S. 63. I must also note that on the last day of the hearing, respondent introduced into evidence a profile of the MIS-V class at P.S. 115, and had a site supervisor from Community School District 26 testify about the class. Accordingly, I find that the impartial hearing officer erred in premising her decision upon the appropriateness of the MIS-V class at P.S. 63.

        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]). 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]).

        Petitioner’s objection to the MIS-V class at P.S. 115 appears to be that her daughter would not have been suitably grouped for instructional purposes in that class, as required by 8 NYCRR 200.6(g). I note that the site supervisor testified that the age range of the students in the class exceeded 36 months, in violation of 8 NYCRR 200.6(g)(5). Petitioner and the child’s service coordinator at St. Mary’s Hospital for Children, who had visited the class in the fall of 2000, testified that the class was made up of students who functioned at a lower level than petitioner’s daughter (Transcript pp. 105, 141). According to the class profile (Exhibit 41), the reading and math proficiency of the class ranged from pre-primer to the middle of the first grade. The child’s teacher had reported in February 2000 that the child’s reading skills were at a beginning first grade level and her math skills were at the kindergarten level (Exhibit 16). At least academically, the child would appear to have been suitably grouped in the class at P.S. 115. However, children with disabilities who are placed in special classes must also be grouped with students having similar social/emotional strengths and needs.

        Petitioner and her child’s service coordinator testified that during their visit on September 7, 2000, the MIS-V teacher and the paraprofessional at P.S. 115 had permitted the students to engage in inappropriate behavior (Transcript pp. 106, 140). The service coordinator noted that the student was likely to imitate the behavior of those around her and needed a stable, controlled environment to learn (Transcript pp. 140-41). The Community School District 26 site supervisor testified that none of the students in the class had "significant" management needs (Transcript p. 201). She further testified that one student had difficulty with transitions, as does petitioner’s daughter. On the class profile, all of the students in the class were reported to have below age-level social behavior, and to need help with activities of daily living skills and following school rules. I find that petitioner raised a serious issue with respect to needs of the children in the proposed class, which the record does not resolve. Since it was respondent’s burden to show that the child would have been suitably grouped for instructional purposes, I find that it did not meet its burden of proof.

        Petitioner bears the burden of proof with regard to the appropriateness of the services she obtained for the child at St. Simon and St. Jude during the 2000-01 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, petitioner 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).

        Petitioner testified that her daughter was doing very well at the private school, and was happier than she has been in a number of years. She further testified that her child’s self-esteem and behavior with family members were improving (Transcript p. 107). The student’s teacher at St. Simon and St. Jude testified that the child was progressing academically and was eager to do her work (Transcript pp. 171-72). The teacher described the special techniques she used to ensure that the child learned (Transcript pp. 183-184). The child continued to have trouble with transitions, but was responding well to the teacher’s practice of giving her verbal warnings before transitions occurred (Transcript p. 171). The student received individual attention in managing transitions (Transcript pp. 178-79). The teacher also described the token-based system of behavioral improvement that she used in the class (Transcript pp. 177-78). I find that petitioner has demonstrated how the private school met her daughter’s special education needs, and has therefore satisfied the second criterion for an award of tuition reimbursement.

        The hearing officer concluded that equitable factors did not support petitioner’s claim for tuition reimbursement because she did not cooperate with the CSE when she refused consent for evaluations. Respondent mailed petitioner a notice dated April 4, 2000 stating that additional evaluations were necessary to carry out the IEP review she had requested. Petitioner’s response dated April 8, 2000 states "I do not give my consent to reevaluations. I am having my own independent private evaluation done." (Exhibit 26).

        A parent must cooperate with a CSE to make a child available for such evaluations as are necessary for the CSE to have adequate information about the child’s needs to prepare an appropriate IEP for the child. Although I am troubled by petitioner’s response to the CSE’s request for consent to an additional evaluation, I note that the CSE already had reasonably current evaluative data about the child when it prepared her IEP for the 2000-01 school year on March 14, 2000. The CSE’s request was made after the parent objected to the CSE’s recommendations for the 2000-01 school year. On the facts of this case, I find that petitioner’s refusal to consent to an additional evaluation does not afford a basis for concluding that her claim for tuition reimbursement is not supported by equitable considerations.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for tuition at St. Simon and St. Jude Elementary School during the 2000-01 school year, upon petitioner’s submission of proof of payment of tuition.