01-049

         Petitioners appeal from an impartial hearing officer’s decision which denied their request for reimbursement for the cost of their son’s tuition at the Mary McDowell Center for Learning (McDowell) during the 2000-01 school year. The appeal must be sustained.

        Preliminarily, I note that respondent requested and received an extension of time to September 30, 2001 to answer the petition. However, it did not serve its answer until November 16, 2001. Although I may excuse a respondent’s delay in serving an answer upon a showing of good cause for the delay, respondent has offered no explanation for its delay, nor has it demonstrated good cause. Therefore, I have not accepted or considered respondent’s answer to the petition in this appeal (Application of a Child with a Disability, Appeal No. 94-15).

        State regulation provides that the notice with petition shall advise the respondent that if an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the State Review Officer (8 NYCRR 279.3). A decision of the State Review Officer was annulled by the New York Supreme Court because the decision was based on an independent review of the record, rather than the allegations in an unanswered petition (Arlington Cent. School Dist. v. State Review Officer of the New York State Educ. Dep't, 185 Misc. 2d 560 [2000]). However, that decision has been appealed, and I must respectfully decline to follow it in the instant appeal because it would not allow me to fulfill my obligation to examine the entire record (34 C.F.R. § 300.510[b][2][i]), and to make an independent decision (20 U.S.C. § 1415[g]). The facts in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioners’ son was six years old and attending McDowell when the hearing began in January 2001. McDowell has not been approved by the New York State Department of Education to provide instruction to children with disabilities. The child attended Brooklyn Friends (Brooklyn Friends) Academy for preschool during the 1997-98 and 1998-99 school years (Exhibit 5). Staff at Brooklyn Friends expressed concern about the child’s language processing abilities and his attentional difficulties (Exhibit 15). In March 1999, petitioners had their son, then approximately four and one-half years old, evaluated at the New York University Child Study Center (NYU) (Exhibits 11, 13, 14 and 15). On the Weschler Primary and Preschool Scale of Intelligence-Revised (WPPSI-R), the child achieved a verbal IQ score of 111, a performance IQ score of 90, and a full scale IQ score of 101, placing him in the average range of intellectual functioning. The psychologist noted a significant discrepancy between the child’s verbal and nonverbal scores, as well as significant variability within both the verbal and nonverbal realms. As a result, the psychologist cautioned that the child’s scores should not be considered to be an accurate representation of his overall intellectual abilities. The psychologist did note, however, that the child’s test performance provided an accurate profile of his strengths and weaknesses. NYU determined that petitioners’ son had language-based learning difficulties, attentional difficulties, significant receptive and expressive language delays, and graphomotor delays. Upon NYU’s advice, petitioners enrolled their son at McDowell for the 1999-2000 school year (Transcript p. 160). On January 14, 2000, they referred him to respondent’s Committee on Special Education (CSE) for evaluation and placement (Exhibit 12).

        Beginning in February 2000, the CSE conducted various evaluations of the child (Exhibits 3, 4, 5, and 8). In a psychological evaluation dated February 28, 2000, the school psychologist reported that the child’s difficulties with self-control were immediately evident (Exhibit 3). He also noted articulation problems which, at times, rendered the child’s remarks unintelligible. Additionally, he noted that the child did not appropriately respond to questions he had been asked. Projective testing indicated high levels of anxiety and emotional reactivity which, at various times, caused lessening of language abilities, distractibility, and impulsivity.

        An educational evaluation was also conducted on February 28, 2000 (Exhibit 4). The educational evaluator noted that the child’s hyperactivity interfered with his performance. She reported that the child’s academic skills were within the average range with potential for higher level functioning. Delays were noted in the areas of speech, and fine and gross motor skills.

        At a meeting on March 27, 2000, the CSE classified the child as learning disabled and recommended that he be placed in a modified instructional services-IV (MIS-IV) program with related services of counseling, occupational therapy, and speech/language therapy (Exhibit 2). It found that specific verbal difficulties affected the child’s listening, phonological awareness, and precision of oral expression (Exhibit 1). The child’s individualized education program (IEP) developed at the March 27, 2000 meeting noted his impulsive and distractible behavior, and his need for a predictable, structured setting with clear expectations (Exhibit 2). At the March 27, 2000 meeting, the CSE issued a final notice of recommendation to the parents identifying P.S. 27 as their son’s placement (Exhibit 9). While there are no dates on the final notice of recommendation indicating when the placement would commence, the parties appear to agree that the recommendation covered the remaining months of the 1999-2000 school year (Petition paragraph 17, Transcript p. 199). Petitioners were also advised at the March 27, 2000 CSE meeting that it was likely that there would be another placement made for their son for the fall for the 2000-01 school year (Transcript p. 199).

        The child’s mother visited P.S. 27 at the end of May 2000, but found it to be inappropriate (Transcript p. 165). She communicated her concerns regarding the proposed program to the social worker member of the CSE who suggested that she visit P.S. 29. The mother visited the program at P.S. 29. She also found that program inappropriate and advised the CSE social worker (Petition paragraph 55, Transcript p. 182). The CSE social worker told the mother that she would be receiving another communication from the Board of Education (Petition paragraph 55, Transcript p. 182). A final notice of recommendation was prepared on June 19, 2000 for petitioners’ son to attend P.S. 261 (Exhibit 16). Again, no dates were contained in the final notice of recommendation indicating when the placement would commence. The child’s mother testified that she did not receive the final notice of recommendation placing her son at P.S. 261 (Transcript p. 165). Petitioners continued their son’s placement at McDowell for the 2000-01 school year.

        Petitioners requested a hearing on September 14, 2000 seeking reimbursement for the cost of their son’s tuition at McDowell for the 2000-01 school year (Hearing Officer’s Decision p. 4). The hearing was held on January 26, 2001 and April 2, 2001. The hearing officer rendered his decision on April 30, 2001. He determined that pursuant to 20 U.S.C. § 1412(a)(10)(C)(ii) petitioners are barred from being awarded any tuition reimbursement because their son had not previously received special education or related services in a public school. However, acknowledging that the State Review Officers have already determined that the Individuals with Disabilities Education Act Amendments of 1997 (IDEA '97) does not bar the granting of an award of tuition reimbursement to the parents of a child who has not previously attended a public school, he proceeded to consider petitioners’ claim for tuition reimbursement. The hearing officer found that the CSE appropriately evaluated, classified and placed the child. Because he found that the Board of Education had sustained its burden of establishing that it offered the child a free appropriate public education (FAPE), he denied the parents’ request for tuition reimbursement.

        Petitioners appeal from the hearing officer’s decision on several grounds. Initially, they claim that the hearing officer’s interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) is erroneous. As noted above, State Review Officers have declined to construe IDEA '97 as limiting the authority of a hearing officer, review officer, or court under 20 U.S.C. § 1415 to grant an award of tuition reimbursement to the parents of a child who has not previously attended a public school, absent convincing evidence to the contrary of Congressional intent to do so (Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-25). I continue to adhere to that position.

        Petitioners also appeal from the hearing officer’s determination that they were chargeable with the receipt of the June 19, 2000 final notice of recommendation identifying P.S. 261 as their son’s placement for the 2000-01 school year. They assert that the Board of Education’s failure to communicate its proposed placement renders the IEP inadequate. As noted above, the record shows that at the March 2000 meeting, the CSE completed a final notice of recommendation placing the child at P.S. 27, and advised the child’s mother that it was likely that another placement would be made for the following school year. On June 19, 2000, the CSE prepared a final notice of recommendation placing the child at P.S. 261. However, the parents claim they never received the notice identifying P.S. 261 as their son’s placement for the 2000-01 school year.

        Pursuant to state regulation, the IEP shall indicate the recommended placement (8 NYCRR 200.4[d][2][xiv]). It is therefore the Board of Education’s responsibility to demonstrate that it advised the parents of the placement recommendation. Other than the document itself, there is nothing in the record establishing that the CSE actually provided notice of the June 19, 2000 placement recommendation to the parents. Respondent did not produce any evidence demonstrating that the June 19, 2000 final notice of recommendation was, in fact, ever sent to petitioners. Nor did it produce any information concerning respondent’s procedures for advising parents of a recommended placement, and that those procedures were followed in this case. I find that the CSE failed to identify the recommended placement for the 2000-01 school year. Accordingly, respondent has not met its burden of proving that petitioners’ son was offered an appropriate program for the 2000-01 school year.

        Petitioners are seeking tuition reimbursement. 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]). 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 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]).

        With respect to the first criterion for an award of tuition reimbursement, I have found that respondent did not demonstrate the appropriateness of its recommended program because it failed to notify petitioners of the placement recommendation for the 2000-01 school year. Accordingly, I find that petitioners have met the first criterion for an award of tuition reimbursement.

        Petitioners bear the burden of proof regarding the appropriateness of the services provided by McDowell during 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, they must show that the private school offered an educational program which met their child’s special education needs (Burlington, 471 U.S. at 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 the McDowell program met the child’s special education needs for the 2000-01 school year. The record shows that the child had significant receptive and expressive language deficits, as well as attention difficulties. The parties agree that he required a small structured class environment. His class at McDowell consisted of only nine students grouped by age as well as academic and social levels, with a teacher and an assistant (Transcript pp. 120 and 129). The class broke down into smaller groups for reading, math, writers’ workshop, art, and for most science classes (Transcript pp. 129-30). In light of the child’s attention and language difficulties, directions were repeated and consistent language was used every day in his classroom at McDowell (Transcript pp. 132 and 134). The child’s teacher testified that she used a language-based curriculum (Transcript p. 132). She helped the child express his ideas by providing him with the words he needed and having him repeat them to build pragmatic language skills (Transcript p. 132). Additionally, the child received speech therapy twice per week in a small group and once per week in the classroom for whole class speech (Transcript p. 134).

        The record also shows that petitioners’ son required much individual attention to stay on task (Transcript pp. 132-34). The child’s teacher testified that she used frequent reminders with the child. She noted that it helped to have a teacher sit near him to refocus him physically or with a short verbal prompt. A behavioral system was also in place in the classroom (Transcript p. 133). Additionally, the child received occupational therapy and a school psychologist was regularly in his classroom and met with his teachers (Transcript pp. 135 and 155).

        The record also demonstrates that petitioners’ son has made academic and social progress at McDowell. He has made progress in reading, despite his continuing difficulty with making inferential observations in abstract materials (Transcript p. 136). His teacher testified that he now more easily understands basic stories and their structure. With teacher direction, petitioners’ son was reading at an early to middle first grade level. Additionally, the child has incorporated into his vocabulary the routine of the school day (Transcript p. 135). He switched activities independently. While he continues to experience difficulty in following directions, he has shown improvements. There also has been a decrease in the child’s use of violent themes during play (Transcript p. 141). I note that in a classroom observation conducted at McDowell, one of respondent’s psychologists found the child to be fairly attentive, in that he looked in the teacher’s direction and responded to visual auditory prompts from the teacher (Transcript pp. 52-53 and 55). The psychologist attributed the child’s attentiveness at McDowell, relative to the more impulsive way he acted during individual testing, to the structure that a school setting with predictability provided, noting that predictability set the tone for the child and helped him. Based upon the entire record, I find that the parents have met their burden of showing that McDowell was an appropriate program reasonably calculated to benefit their son during the 2000-01 school year.

        While acknowledging that it was unnecessary for him to do so, the hearing officer determined that the MIS-IV program recommended by the CSE offered a substantially better educational opportunity to the child than the program at McDowell. He found that the professional preparation of the child’s teacher at McDowell involved no special education courses and no special education experience before her arrival at McDowell. I note that there is no requirement that a private school employ a certified special education teacher (Application of the Board of Educ., Appeal No. 00-023, Application of a Child with a Disability, Appeal No. 94-20).

        The third criterion for an award of tuition reimbursement is whether equitable considerations support petitioners’ claim. Petitioners cooperated with the CSE in its review process and informed respondent about their son, his needs, and the public schools that were visited and considered. I find that equitable considerations support petitioners’ claim, and therefore, petitioners are entitled to reimbursement for the cost of their son’s tuition for the 2000-01 school year.

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 petitioners for their expenditures for their child’s tuition at McDowell during the 2000-01 school year, upon petitioners’ submission to respondent of proof of payment for such expenditures.