01-032

         Petitioner appeals from an impartial hearing officer’s decision denying her request for tuition reimbursement for the unilateral placement of her son in a private school for the 2000-01 school year. Although the issues were not raised at the hearing, petitioner now seeks tuition reimbursement for the 1998-99 and 1999-2000 school years, in addition to, reimbursement for private tutoring and expenses incurred from the due process hearing. The appeal must be sustained in part.

        There are three procedural issues that must be addressed. First, petitioner has annexed four exhibits to her petition that were not part of the record before the hearing officer. Documentary evidence not presented at a hearing may be considered in an appeal from the 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. 98-55; Application of a Child with a Disability, Appeal No. 95-41). All the exhibits, except A and E, could have been introduced at the hearing when petitioner presented her case. I will accept exhibits A and E, but I will not accept the other annexed exhibits because I find the record to be complete without them.

        The second procedural issue concerns respondent’s failure to serve its answer within 10 days after service of the petition as required by 8 NYCRR 279.5. Petitioner attempted to commence this appeal on or about March 31, 2001 by serving a copy of her petition by certified mail. On or about April 12, 2001, she was advised by the Office of Counsel of the New York State Education Department that her petition was deficient in certain respects and that it needed to be personally served. Respondent was informed that it did not need to respond to the petition until after it had been properly served. The petition was personally served on or about April 20, 2001, but respondent’s attorney did not learn of this fact until later the next month. The petition that was served on April 20, 2001 was apparently identical to the petition that had been previously served and found to be deficient (Affidavit of Vanessa Sheehan, Esq.). Respondent served its answer on May 30, 2001. It requests that I excuse its delay. I find that it would be equitable to excuse its delay, particularly in light of petitioner’s failure to comply with the Office of Counsel’s instructions to include a notice with petition when she reserved the petition and the absence of any harm to petitioner by the delay. Therefore, I will excuse the delay and accept the answer.

        The third procedural issue concerns the scope of my review in this appeal. This is the second appeal involving petitioner’s son. In Application of a Child with a Disability, Appeal No. 98-55, I dismissed petitioner’s appeal from an impartial hearing officer’s decision upholding the recommendation of respondent’s Committee on Special Education (CSE) to change the student’s classification from speech impaired to multiply disabled, and to provide various special education services to him during the 1997-98 school year. Petitioner asserts that some of the information provided to me in that appeal was misleading, and contends that I erred in describing the child to adult ratio in her son’s class during the 1993-94 school year. Federal and state regulations provide that the decision of the State Review Officer is final unless reviewed by a court of competent jurisdiction (34 C.F.R. § 300.510[d]; 8 NYCRR 200.5[j][3]). The issues that were raised in the prior appeal cannot be revisited in this appeal.

        Petitioner’s son was 11 years old and in the sixth grade at Crestwood Country Day School (Crestwood) when the impartial hearing began in December 2000. Crestwood is a private regular education day school located in Melville, NY. The school has not been approved by the New York State Education Department to instruct children with disabilities. The student’s educational history and prior evaluations are described in my prior decision, and will not be repeated in detail here.

        Petitioner’s son was initially classified as speech impaired in 1994, and he continued to be classified as speech impaired until the 1997-98 school year. In the spring of 1997, a school psychologist who had evaluated the student as part of his triennial evaluation suggested that a classification as multiply disabled, autistic, or learning disabled would more accurately reflect the student’s disabilities and service needs. She opined that his mind was both too active and too obsessive, and she indicated that his internal disorganization and sensitivity to external noises appeared to interfere with his concentration. The evaluator described the student as having a mild pervasive developmental disorder, with impairments in language, cognitive processing, communication, concentration and attentional abilities, as well as fine and gross motor skills (Exhibit SD-3).

        In June 1997, the CSE recommended that the student be classified as multiply disabled and that he receive consultant teacher services, adaptive physical education (ADP), occupational therapy, physical therapy, and speech/language therapy during the 1997-98 school year. The CSE agreed in August 1997 to make certain changes in the student’s individualized education program (IEP), to reflect an agreement between petitioner and the student’s elementary school principal. The CSE recommended that the student continue to be classified as speech impaired, and it eliminated physical therapy and occupational therapy from the IEP. It also reduced the amount of his speech/language therapy, and indicated that his ADP should be provided in gym. The student was to have a classroom aide, the use of whom would be reviewed by a CSE subcommittee in November 1997.

        In November 1997, a subcommittee of the CSE recommended that the student’s classification be changed to multiply disabled, and that he continue to receive the services of a full time aide. Petitioner did not agree with the new classification or the continuation of the aide, and ultimately requested an impartial hearing that was to begin in December 1997. While that proceeding was pending, petitioner met with the CSE in April 1998 to obtain amendments to her son’s IEP for the 1997-98 school year. The CSE declined to make the changes that petitioner sought, and she sought due process review of the CSE’s decision. Her hearing request was consolidated with the pending proceeding. In August 1998, the impartial hearing officer held that the evidence supported the recommended change in the student’s classification to multiply disabled, and that the student’s IEP's for the 1997-98 school year were appropriate to meet his needs. Petitioner appealed from the hearing officer’s decision, seeking an order declassifying her son. As noted above, her appeal was dismissed (Exhibit SD-3).

        In June 1998, a psychologist at Hofstra University evaluated the student at petitioner’s request. The student achieved a verbal IQ score of 100, a performance IQ score of 104, and a full scale IQ score of 102 on the Wechsler Intelligence Scale-Third Edition (WISC III). The evaluator reported that petitioner’s son was functioning in the average range of intelligence and that that his verbal and non-verbal abilities were developed to a similar degree (Exhibit SD-9). The student’s scores on the WISC III were significantly higher than the scores he had achieved when evaluated by respondent’s school psychologist in May 1997. In May 1997, the student achieved a verbal IQ score of 85, a performance IQ score of 79, and a full scale IQ score of 81 on the WISC III. The school psychologist had opined that the student showed signs of Asperger’s Syndrome (Exhibit SD-11). Due to the discrepancy in scores in the two evaluations, respondent wished to have an updated evaluation to ascertain the student’s needs and plan a program for him (Transcript p. 304).

        In August 1998, petitioner obtained a neurological evaluation of her son at the Queens Long Island Medical Group (Transcript p. 285). The examining physician noted that the student had some difficulty with right-left orientation and that he had a mild speech dysarthria. However, the results of the examination were reported to be unremarkable, and the physician reported that the boy’s history was not suggestive of autistic features (Exhibit SD-7).

        An annual review of the student’s program by the CSE was scheduled for December 1, 1998, to develop an IEP for the 1998-99 school year (Exhibit SD-76). An annual review was initially scheduled for the spring of 1998, but was postponed because the impartial hearing regarding the 1997-98 school year was still in progress (Exhibit SD-74 and SD-29). Respondent would only consider convening a CSE meeting to develop an IEP for the 1998-99 school year after the impartial hearing officer had rendered his decision. However, the impartial hearing officer had rendered his decision in August 1998.

        Petitioner indicated that she was unable to attend the CSE meeting in December because of illness (Exhibit SD-75). Instead, she requested that the meeting be scheduled after January 11, 1999 (Exhibit SD-73). Respondent’s director of pupil services agreed to reschedule the CSE meeting, and indicated that he would have staff at the student’s elementary school develop interim IEP goals to be used until the student’s IEP for the 1998-99 school year was prepared (Exhibit SD-74). On December 23, 1998, the director of pupil services sent a copy of the interim goals to petitioner, and asked her to advise him when she would be able to attend a CSE meeting (Exhibit SD-80).

        By letter dated March 1, 1999 petitioner informed the director of pupil services that she had enrolled her son in Crestwood as of that date (Exhibit SD-72). I note that petitioner did not indicate in the letter that she was seeking tuition reimbursement, nor did she indicate the reasons for her son’s transfer to Crestwood. Petitioner also requested that all related services recommended by respondent’s CSE be provided to the student at Crestwood. Respondent agreed to provide the student’s related services to him at Crestwood, including an aide (Transcript pp. 172 and 177).

        On March 16, 1999, the CSE met to develop an IEP for the 1998-99 school year. The student’s parents were reportedly notified of the meeting, but they did not attend. I note that there are two versions of the IEP that was reportedly developed at that meeting in the record (Exhibits SD-17, P-13). The more complete version indicates that the CSE recommended that petitioner’s son remain classified as multiply disabled and that he remain in regular education classes with an hour of consultant teacher services per day, 30 minutes of adaptive physical education per week, and 30 minutes of speech/language therapy twice per week. A copy of the IEP was reportedly mailed to petitioner on or about March 25, 1999 (Exhibit SD-68). Petitioner apparently did not request an impartial hearing to review the IEP.

        The record does not reveal whether the CSE conducted an annual review to prepare the student’s IEP for the 1999-2000 school year. There is no IEP for that school year in the record. The student remained at Crestwood during the 1999-2000 school year. His consultant teacher noted in an end of the year report that respondent had provided consultant teacher services, a full time aide, and speech/language therapy. The consultant teacher provided push in and pull out services daily as well as ongoing consultations with teachers and the aide. Speech/language therapy was provided to the student twice a week in a small group setting (Exhibit SD-5).

        In January 2000, petitioner requested a CSE meeting to discuss the possibility of having an aide accompany her son on the school bus. She also requested that the student’s ADP services be reviewed. The director of pupil services informed her that he would schedule a CSE meeting to discuss these issues and to review the student’s goals and objectives. Petitioner refused to discuss her son’s goals and objectives because they had already been discussed less than a year before. On January 5, 2000, petitioner requested an impartial hearing, citing the above concerns (Exhibit P-5). On January 21, 2000, respondent’s deputy superintendent sent the forms to request an impartial hearing to petitioner (Exhibit SD-63). There is no indication that petitioner completed the forms or that an impartial hearing was commenced.

        In a report dated June 22, 2000, the student’s consultant teacher reported that the student had demonstrated growth over the previous year in his ability to volunteer and to participate in large group discussions, as well as success in classroom tests with modifications. Notes were frequently scribed for the student, although his handwriting had become legible by midyear. The length of his assignments was modified to assist him in coping with frustration, tolerance and stamina. Significant deficits were noted in his self-management of materials at his desk, his management of written work and management of his homework. The student’s aide helped him address his organizational difficulties. The student participated in an incentive program in which his behaviors were charted and consistent environmental rewards were provided. The consultant teacher indicated that the student demonstrated significant growth in the comprehension of computation, good recall of classroom reading, and the ability to reflect and make inferences in discussions. She recommended that he continue to receive consultant teacher service and the services of a full time aide in the sixth grade during the 2000-01 school year (Exhibit SD-5).

        In May 2000, respondent attempted to obtain petitioner’s consent to conduct a triennial evaluation. One of respondent’s school psychologists contacted her to make arrangements to conduct the evaluation. Petitioner reportedly declined to make her son available for an evaluation (Exhibit SD-62). Respondent agreed to allow petitioner to select an outside psychologist for the evaluation, which the Board of Education agreed to pay for (Exhibit SD-61). It appears that petitioner chose Hofstra University to conduct the evaluation. However, there is no evidence of the results of such evaluation in the record.

        On August 5, 2000 petitioner requested a CSE meeting to be scheduled as soon as possible (Exhibit D-59). Respondent’s director of pupil services advised petitioner that a CSE meeting would be scheduled upon receipt of a report of the Hofstra evaluation (Exhibit D-57). The record does not reveal whether the CSE ever received the evaluation report. A CSE meeting was scheduled for September 22, 2000 at Crestwood. However, the meeting was cancelled because petitioner reportedly would not permit her son’s teacher at Crestwood or any other Crestwood personnel to speak with the CSE (Exhibits D-55 and D-53).

        The CSE finally convened on November 8, 2000. The CSE noted that while the student had made progress the previous year, he was often prone to considerable frustration and anxiety if he did not achieve a high grade on a test or if he became confused by the material. It was further noted that he required a great deal of support to sustain his academic progress. However, significant progress was reported in the area of speech and language goals. The CSE recommended that the student continue to be classified as multiply disabled, and that he be placed in a sixth grade regular education program at one of respondent’s middle schools. In addition, it recommended that the student receive the services of a one-to-one aide for six hours per day, consultant teacher services for 40 minutes per day, 30 minutes of speech and language therapy in a small group twice per week, and 30 minutes of individual speech/language therapy once per week. On the student’s IEP, the CSE indicated that the aide was needed for organization, note taking and modifying assignments. The CSE also recommended that an ADP evaluation and a physical therapy evaluation be conducted (Exhibit D-14).

        Petitioner insisted that the topic of tuition reimbursement be discussed at the CSE meeting. The CSE chairperson indicated that he would have to schedule another CSE meeting to discuss that issue. On November 13, 2000, petitioner requested an impartial hearing (Exhibit SD-1). She did not identify the relief she was seeking. About a week later, respondent sent a letter to petitioner requesting her consent for an ADP and physical therapy evaluation. Petitioner refused consent to the evaluations (Exhibit SD-42 and Transcript p. 50).

        The impartial hearing began on December 19, 2000. The record does not reveal the reason for the delay in its commencement. It concluded on January 4, 2001. The issues before the hearing officer were petitioner’s request for tuition reimbursement and respondent’s request for an order requiring petitioner to cooperate fully with the evaluation process. Petitioner refused to attend the impartial hearing for fear of her safety, apparently because of an earlier incident in January 2000 in which she was removed by the police from school district premises after allegedly destroying documents in her son’s school records. Besides assuring her of her personal safety, the impartial hearing officer made accommodations to have the impartial hearing off respondent’s premises. However, petitioner found those accommodations to be unacceptable. Instead she insisted on participating in the hearing by telephone. The hearing officer granted the request only after he explained that her presence would be much more effective than telephone participation. Arrangements were made for a conference call hook up in petitioner’s home.

        During the presentation of respondent’s case, petitioner frequently interjected with testimony, although, she had not been sworn in as a witness. In addition, she demanded that the hearing officer render his decision within the 45 day period, as required by Section 200.5 (i)(4) of the Regulations of the Commissioner of Education, without regard to the completeness of the record. The hearing officer indicated that he would only render a decision after he obtained all the facts. Petitioner participated in the hearing for two days, after which she refused to come to the telephone. On February 18, 2001, the hearing officer rendered his decision. He found that respondent had provided petitioner’s son with an appropriate education, and denied petitioner’s request for tuition reimbursement. He also ordered petitioner to cooperate fully with respondent in obtaining an evaluation of the student.

        Petitioner asserts numerous claims in her petition. I will first address petitioner’s claim that she is entitled to tuition reimbursement for the 1998-99 and 1999-2000 school years. There is no evidence that petitioner raised a claim for tuition reimbursement for 1998-99 and 1999-2000 at the impartial hearing. In fact, the hearing officer indicated that the issues before him were specific to the 2000-01 school year (Transcript p. 772). As a result, petitioner never clearly raised the claim of reimbursement for the 1998-99 and 1999-2000 school years at the impartial hearing. Issues which were not raised at a hearing are beyond the scope of my review (Application of a Child with a Disability, Appeal No. 99-60; Application of a Child with a Disability, Appeal No. 98-14).

        Second, I will address petitioner’s claim that the hearing officer erred in finding that respondent provided an appropriate education to her son for the 2000-01 school year. 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        I find that the hearing officer erred in determining that respondent provided the student with an appropriate educational program for the 2000-01 school year. Respondent cannot meet its burden of proof with respect to the student’s IEP because the CSE failed to have an IEP in place for the student at the beginning of the 2000-01 school year as required by 34 C.F.R. § 300.342(a) (Application of a Child with a Disability, Appeal No. 00-084). While I understand the CSE’s desire to have more current evaluative information before preparing the IEP, it could not simply postpone taking action until it received a report of the independent psychological evaluation from Hofstra. I note that when the CSE did prepare an IEP at its November 8, 2000 meeting, it did have achievement test results from May 2000, as well as the June 22, 2000 report by the student’s consultant teacher.

        The CSE meeting scheduled to take place on September 22, 2000 was cancelled because petitioner reportedly would not allow her son’s teacher at Crestwood to participate in the meeting. A child’s regular education teacher is a required member of the CSE when it prepares the child’s IEP (34 C.F.R. § 300.344[a][2]). The regular education teacher who serves as a member of the CSE should be a teacher who is, or may be, responsible for implementing a portion of the child’s IEP (34 C.F.R. Part 300, Appendix A, Question 26). If the student’s teacher at Crestwood was unavailable, respondent could have designated one of its middle school regular education teachers to serve as the regular education teacher member of the CSE.

        A board of education may be required to pay for educational services obtained for a student by his 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]). As stated above, respondent cannot demonstrate the appropriateness of its recommended program. Therefore, I find petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.

        Petitioner bears the burden of proof with regard to the appropriateness of the services she obtained for her son for the 2000-01 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioner must show that the private school offered an educational program that met the child’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).

        I find that petitioner did not meet her burden of proof with regards to the appropriateness of Crestwood for the 2000-01 school year. No one from Crestwood testified at the hearing about the services that the private school provided to petitioner’s son, or how it addressed his special education needs. I note that Crestwood appears to provide a regular education program. While there is some evidence that the student’s academic and social skills improved at Crestwood, those gains appear to be attributable to the services that respondent provided to him at Crestwood. Under the circumstances, there is no basis upon which I could find that the private school offered an educational program that met the student’s special education needs (Application of the Board of Educ., Appeal No. 00-052).

        Since petitioner, has not prevailed with respect to the second criterion for an award of tuition reimbursement, it is not necessary to discuss the third criterion of tuition reimbursement. Finally, I have considered petitioner’s other claims and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s finding that the Board of Education had met its burden of proving that it had provided an appropriate educational program to petitioner’s son during the 2000-01 school year is hereby annulled.