01-055

      Petitioner appeals from an impartial hearing officer’s decision finding that the Board of Education had provided a free appropriate public education (FAPE) to her son during the 1999-2000 school year, and denying her request for tuition reimbursement for the unilateral placement of her son at the Utah Boy’s Ranch between April 4, 2000 and August 31, 2000. The appeal must be sustained in part.

        Before reaching the merits of petitioner’s appeal, I must address several procedural issues. Respondent argues that petitioner’s notice of intention to seek review does not comport with the language prescribed by 8 NYCRR 297.2, and did not notify respondent that an appeal would be taken to the State Review Officer (SRO). Petitioner argues that the wording of her document was sufficient to put respondent on notice that petitioner intended to seek a review by the SRO. The purpose of a notice of intention to seek review is to ensure that the record is provided to the SRO, which respondent did in this case. I find that petitioner’s failure to use the exact language of the regulation is not grounds for dismissal of the appeal (Application of a Child with Disability, Appeal No. 99-3).

        Respondent also challenges the validity of the service of petitioner’s notice of intention to seek review, petition to review, and memorandum of law because they were personally served upon a school principal who had not been authorized by respondent to accept service on its behalf (cf. 8 NYCRR 279.2 [a]). Petitioner’s attorney asserts that when asked, the school principal indicated that she was authorized by the Board of Education to receive service of process. The petition and memorandum of law were subsequently served upon respondent’s superintendent of schools. Appeals from hearing officers’ decisions are generally not dismissed for service irregularities, absent a showing of prejudice to the respondent (Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with Disability, Appeal No. 93-2). I find that respondent was not prejudiced. Therefore, I will not dismiss the appeal because of an alleged improper service.

        Respondent has annexed two documents to its answer that were not presented to the hearing officer. These documents became available to respondent after the hearing had concluded. 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). Although one of the exhibits has information regarding the 2000-01 school year, I will accept both exhibits. However, I will only consider information pertaining to the 1999-2000 school year.

        Petitioner’s son was 12 years old and classified as emotionally disturbed when the hearing began in the fall of 2000. There is no dispute about his classification. Prior to entering respondent’s district at the start of the 1998-99 school year, petitioner’s son attended schools in both Pennsylvania and Rochester, NY (Exhibit SD-6). He reportedly had difficulty interacting with his peers in the lower elementary grades, and was sent to the principal’s office on a daily basis while in the third grade. The principal described the student as bright, but having inadequate social skills for his age. She indicated that he became more aggressive and uncontrollable as the 1996-97 school year progressed (Exhibit P-4). During the middle of the school year, petitioner removed her son from school and home schooled him for the remainder of the year. She continued to home school him for fourth grade during the 1997-98 school year (Transcript pp. 1136-1137).

        Prior to the start of the 1998-99 school year, petitioner relocated to Canaseraga, NY, and enrolled her son in a fifth grade class in respondent’s schools. Shortly after the school year began, petitioner’s son was reportedly picked on by other students because he was a new student in the district. The school principal believed at first that petitioner’s son was not the instigator of his altercations, but she later observed that he appeared to be very defiant, manipulative, and at times an instigator. She opined that with the appropriate behavior modification program and support from his family, and from faculty and staff at the school, he would be successful in school (Exhibit D-9).

        In December 1998, petitioner had her son evaluated by a developmental pediatrician, who diagnosed the student with oppositional defiant disorder (ODD) and indicated a possible diagnosis of attention deficit disorder (ADD), obsessive compulsive disorder, and depression. On December 7, 1998 petitioner referred her son to the Committee on Special Education (CSE). The school psychologist evaluating the student reported that on the Conners’ Teacher Rating Scale and Conners’ Parent Rating Scale the student was described by his teacher and his mother as having significant difficulty with oppositional behavior and hyperactivity, as well as difficulty in the area of interpersonal relations. On the Behavior Disorders Identification Scale, petitioner’s son scored below average in the area of physical symptoms/fears (Exhibits SD-8, P-3). Petitioner’s son received standard scores of 105 (63rd percentile) in reading, 116 (86th percentile) in mathematics, and 121 (92nd percentile) in writing on the Wechsler Individual Achievement Test. He scored within the high-average to superior range on all subtests, with the exception of reading comprehension which fell within the average range. The psychologist recommended that the student be classified as emotionally disturbed, and that he be placed in a highly structured classroom environment with a behavior management program in place (Exhibit SD-21).

        The student was hospitalized in a psychiatric unit in late December 1998, and again in mid-January 1999 because of problems at home (Exhibits SD-10, SD-11). He was discharged from the hospital on or about February 1, 1999. The discharge summary noted that the student’s behavioral acting out was probably the result of complex family dynamics, and that his mother wanted him placed outside of his home. Petitioners instituted a Person in Need of Supervision (PINS) proceeding in the Allegany County Family Court on February 3, 1999, in which they alleged that the student exhibited defiant, violent and chronic runaway behavior and required supervision or treatment (Exhibit P-13).

        On February 10, 1999 respondent’s CSE recommended that the student be classified as emotionally disturbed, and be placed in a 12:1+1 special class for instruction in all subjects but physical education, art and music for which he was to be mainstreamed. He was also to receive affective education (social skills training) in a group once per week, and counseling once per week (Exhibit SD-17).

        On February 11, 1999 the day after the student was classified, petitioner’s son was reportedly insubordinate to a teacher. After being sent to the principal’s office, the student had a violent altercation with his mother. The Allegany County Department of Social Services (ACDS) was called, and petitioner’s son was escorted by police to Black Creek Detention Center (Exhibit P-19). On February 18, 1999, a Family Court judge awarded temporary custody of petitioner’s son to the ACDS and ordered that the student undergo an evaluation at the Hillside Diagnostic Center (Exhibit SD-23). The student entered the Hillside Diagnostic Center on February 26, 1999, and remained there until June 4, 1999. He then entered the educational program that the CSE had previously recommended for him, and remained there until the end of the school year. In April, the Hillside facility had recommended that the student be placed in therapeutic foster care and be educated in a day treatment program (Exhibit SD-24).

        On June 15, 1999, respondent’s CSE met to develop the student’s individualized education program (IEP) for the upcoming 1999-2000 school year. The CSE recommended that the student continue to be classified as emotionally disturbed and that he attend a 12:1+1 self-contained class operated by the Board of Cooperative Educational Services of Steuben and Allegany Counties (BOCES) in Hornell, NY. He was to be mainstreamed for sixth grade math, science, physical education, music, art and library, and was to receive 30 minutes of affective education twice per week (Exhibit SD-25). The CSE noted that petitioner’s son had special management needs because he was physically and verbally aggressive, highly distractible, defied authority, was emotionally dependent upon others, had rage reactions and misinterpreted social cues. Although the CSE concluded that a behavior intervention plan was necessary for the student, the IEP did not include such a plan. The IEP also failed to include goals and objectives relating to the student’s management needs. There was no parent member or regular education teacher present at this meeting (Exhibits SD-25, SD-26).

        The record reveals that the student was academically successful during the sixth grade (Exhibit SD-36). His special education teacher testified that petitioner’s son made the honor roll the first two semesters of the sixth grade and made high honors for the third marking period (Transcript p. 629). According to his special education teacher, a behavior management system was implemented to address the student’s behavior (Exhibit P-22). She described petitioner’s son as being one of the top two or three students in her class with regard to behavior (Transcript p. 647). The student’s regular education science teacher indicated that the student’s behavior was average for the group of students in that class, and that his inappropriate behavior involved making rude comments to other students he did not like (Transcript p. 203, Exhibit SD-43). The student’s affective education teacher indicated that petitioner’s son had developed friendships with other sixth grade students, and that she had worked on anger management and developing friendships with him (Transcript pp. 486, 888, 894).

        In January 2000, petitioner’s son began to complain about the amount of homework he was assigned (Transcript p. 1215). Petitioner testified that her son was spending so much time on homework at night that he was not able to discuss his problems (Transcript p. 1198). She further testified that he became stressed and his behavior at home began to deteriorate. He began to make paranoid statements, and threatened to run away (Transcript pp. 1231, 1236). Petitioner tried to work out individualized homework assignments with her son’s special education teacher to reduce her son’s homework load. She met with respondent’s pupil services director to discuss changing her son’s busing arrangements to allow him to spend more time in school so that he could do his homework in school. The director was able to make special arrangements for transportation in mid-March (Transcript pp. 86-87).

        During her discussions with the director, petitioner expressed concern that her son’s behavior was deteriorating. The student made false allegations of abuse against petitioner, his special education teacher and his science teacher (Transcript p. 1269, Exhibit P-38). In addition, the student was becoming more aggressive in the home, and on March 23, 2000 he got into a fight with a girl in his class on the way home from school (Transcript pp. 1269, 1274, 1279). Upon her pediatrician’s advice, petitioner hospitalized her son at the Genesee Hospital in Rochester on the evening of March 23 (Transcript p. 1279). The student remained at Genesee Hospital until April 3, 2000 (Exhibit SD-37a).

        Petitioner testified that she sent a letter on March 24, 2000 to respondent’s CSE chairperson indicating that her son had been admitted into Genesee Hospital and that she had been advised by the hospital staff to begin looking for a residential treatment facility (Exhibit P-48). The CSE chairperson, however, indicated that he did not receive such a letter until May 31, 2000, after the student was already enrolled by petitioner in the Utah Boy’s Ranch (Exhibit SD-52). Petitioner also testified that she had invited the CSE chairperson to attend an April 3, 2000, a meeting at Genesee Hospital to discuss placement options for her son, but no one from respondent’s district attended (Transcript p. 1466). Respondent’s CSE chairperson asserted that he received the letter inviting him to the meeting after the meeting had taken place (Exhibit SD-47).

        According to petitioner, her son’s treating psychiatrist at Genesee Hospital indicated at the April 3rd meeting that a residential program was the only treatment for him and that therapeutic foster care and a day treatment placement were not appropriate for him (Transcript pp. 1373-1380). Instead, the student needed a more structured and behaviorally oriented program (Transcript p. 1380).

        Petitioner unilaterally enrolled her son in the Utah Boy’s Ranch in Jordan, Utah. The student arrived at the Utah Boy’s Ranch on April 3, 2000 (Exhibit SD-37). His counselor at that facility observed that the student manifested low impulse control, emotional instability, lack of accountability, aggressiveness, manipulation, lies and temper tantrums upon his arrival (Transcript p. 1486). At the Utah Boy’s Ranch, the student attended regular education classes of approximately 12 students. The school had twenty-four hour crisis intervention, individual counseling, and therapeutic group and home group counseling (Transcript p. 1495). At the hearing in December 2000, the student’s counselor testified that the student had a number of problems initially at the Utah Boy’s Ranch. However, he further testified that petitioner’s son had developed positive relationships with peers and demonstrated significant progress in relating to authority figures during his continued attendance at the Utah Boy’s Ranch (Transcript pp. 1501, 1505).

        On June 21, 2000 petitioner requested reimbursement for the cost of her son’s placement at Utah Boy’s Ranch from respondent (Exhibit SD-39). Petitioner first became aware that she could seek tuition reimbursement on or around May 25, 2000, when she received a letter on or about that date notifying her that a CSE meeting was scheduled for June 5. Attached to that letter was a complete set of procedural safeguards, as required by 8 NYCRR 200.5 (f). Prior to this date, petitioner had received incomplete copies of the procedural safeguards lacking the required provisions regarding tuition reimbursement (Exhibits P-49, P-54). In a letter dated July 12, 2000, respondent denied petitioner’s request for tuition reimbursement. On July 27, 2000, petitioner requested an impartial hearing seeking tuition reimbursement for the placement of her son in the Utah’s Boy Ranch for the 1999-2000 school year (Exhibits P-83, SD-1).

        The impartial hearing began in October 2000, and concluded in December of that year. In a decision dated April 15, 2001, the impartial hearing officer found that respondent had offered petitioner’s son an appropriate educational program for the 1999-2000 school year, and she denied petitioner’s request for an award of tuition reimbursement. The hearing officer noted that the student was able to succeed academically and behaviorally in the BOCES 12:1+1 program at Hornell. She concluded that there was no evidence to show that during school hours the student displayed behaviors that required more intensive behavioral management or that a more restrictive placement was necessary in order for him to receive educational benefit.

        Petitioner argues that the hearing officer erred in finding that respondent had offered her son an appropriate educational program during the 1999-2000 school year. She contends that her son’s IEP was procedurally flawed by the CSE’s failure to include a regular education teacher, as the CSE had recommended that the student be mainstreamed for some regular education courses. She also contends that her son did not derive substantial educational benefit from the educational program provided at Hornell pursuant to his 1999-2000 IEP. In addition, petitioner contends that the program of the Utah Boy’s Ranch was appropriate to meet the student’s needs.

        Respondent contends that it offered petitioner’s son an appropriate educational program for the 1999-2000. It asserts that the student’s social and emotional problems are mainly or completely exhibited only with respect to petitioner, and that it had no obligation to address those problems because they did not affect the student’s educational performance. 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 had provided the student with an appropriate educational program for the 1999-2000 school year. A CSE that prepares a student’s IEP must include a parent of a student with a disability other than the student in question, unless the student’s parents ask that the parent member not attend the CSE meeting (New York Education Law § 4402[1][b][1][a][viii]). There is no evidence that petitioner asked that a parent member not attend the June 15, 1999 CSE meeting at which her son’s IEP for the 1999-2000 school year was prepared. I find that the IEP must be annulled (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 99-2; Application of a Child with a Disability, Appeal No. 96-87).

        In addition, the Regulations of the Commissioner of Education require that at least one regular education teacher of the student attend the CSE meeting whenever the student is or may be participating in the regular education environment (8 NYCRR 200.3 [a][1][iii]). There was no regular education teacher at the CSE meeting, notwithstanding the fact that the student was mainstreamed for certain periods of the day (Exhibits SD-25, P-24). This omission affords an additional basis for annulling the IEP (Application of a Child with a Disability, Appeal No. 00-075; Application of the Bd. of Educ., Appeal No. 00-072). I am also concerned about the CSE’s apparent failure to conduct a functional behavioral assessment that would have afforded a basis to prepare a behavior management plan, which should have been part of the student’s IEP. I am aware that the BOCES special education teacher prepared her own behavior management plan (Exhibit P-22).

        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 1999-2000 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).

        Petitioner’s son has been diagnosed with various conditions by different evaluators. In April 2000, a psychiatrist at the Utah Boy’s Ranch diagnosed the student with a conduct disorder and a mood disorder not otherwise specified. The psychiatrist’s diagnoses were included in a master treatment plan, which also included the diagnoses of an oppositional defiant disorder, an attention deficit hyperactivity disorder (ADHD), a parent-child relational problem, nicotine dependence, and [need for] spiritual and moral development (Exhibit P-81). I note that the diagnosis of ADHD is contradicted by the student’s freedom from distractibility index on the IQ test that was administered in an August 2000 psychological evaluation (Exhibit P-90), and that some of the matters in the master treatment plan are clearly not educational in nature.

        The record reveals that the student had difficulty picking up on social cues, made inappropriate comments or otherwise engaged in attention seeking behavior, and was emotionally dependent upon others. These behaviors have interfered with his performance in regular education to the extent that there were disciplinary referrals to the principal. However, there has been no showing that he needs specialized instruction to succeed academically. Indeed, his standard scores on achievement tests administered to him in 1998 were satisfactory. Instead, the record reveals that the student needs a consistently applied behavior management plan and counseling to ensure that he takes responsibility for his actions and that he acts in an appropriate manner towards others.

        The Utah Boy’s Ranch treatment plan indicated in cursory fashion that it would provide a highly structured setting in which petitioner’s son would be held accountable for his actions, and in which appropriate behavior would be modeled for him. It also indicated that he would participate in group, family, and individual therapy or counseling. The student’s counselor testified at the hearing that he provided individual counseling on a weekly basis, and that the student was also involved in peer counseling (Transcript pp. 1495-1496). Although there is a brief reference in the record to what appears to have been a general behavior management plan at the Utah Boy’s Ranch, I note that the plan was not described in the record and there is no indication that it was modified or applied to address the student’s specific behavioral needs. For example, did it specifically address the student’s tendency to blame others rather than take personal responsibility, and did it address his tendency to be overly dependent emotionally upon others? Did the Utah Boy’s Ranch target specific inappropriate behavior of the student, and identify the techniques that would be used to decrease such behavior? Did the facility have a system in place to record the frequency of the behavior, so that there would be an objective basis for measuring his progress?

        The record reveals that while enrolled at the Utah Boy’s Ranch, the student made false reports of abuse by his family and the Utah Boy’s Ranch staff members. He was also caught stealing, attempting to run away, destroying parts of his cottage kitchen and causing $850 worth of damage to school property by pulling a fire alarm. He did receive counseling to address his behavior. However, in response to the student’s expressed fears or concerns, his counselor suggested praying or reading scripture (Exhibit P-81). His counselor was concerned that the student’s moral development was being hampered by some of the student’s habits (Transcript p. 1487).

        Upon review of the record, I find that there is virtually no objective evidence by which to measure the student’s progress at the Utah Boy’s Ranch. Moreover, there is evidence contained in the counselor’s treatment notes indicating that the student continued to manifest dysfunctional behavior at the facility. That behavior precludes the student from being successful in an open, regular education environment. An organized and effective approach to reducing that behavior is what the student required to receive an appropriate education. I am compelled to find that petitioner has not adequately demonstrated how the Utah Boy’s Ranch provided such an approach to address the student’s behavior problems. As a result, petitioner has not met her burden of proof with respect to tuition reimbursement. Since petitioner failed to meet the second criterion of tuition reimbursement, it is not necessary that I address the third criterion. 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 decision is hereby annulled to the extent that it found that the Board of Education had provided a FAPE to petitioner’s son during the 1999-2000 school year.