01-058

        Petitioner, the Board of Education of the New Paltz Central School District, appeals from an impartial hearing officer’s decision which determined that it had failed to offer a free appropriate public education (FAPE) to respondent’s son for the 1999-2000 and 2000-01 school years, and directed it to reimburse respondent for the expenses of her son’s unilateral placement at the Family Foundation School (Family School) during those years. The appeal must be dismissed.

        At the time of the hearing, the student was 18 years old and in his senior year of high school at the Family School. He attended a nonpublic school from nursery through the third grade, and began attending petitioner’s schools in the fourth grade. He was frequently on the honor roll and consistently scored in the 99th percentile on the Comprehensive Test of Basic Skills (CTBS). He was recommended for accelerated math in the seventh grade, and his eighth grade teachers described him as a student who was "outstanding," "a pleasure to have in class," and a student "with an excellent attitude."

        During the summer of 1997 prior to the student’s entry into the ninth grade, his parents were in the process of a divorce. The student’s mother sought assistance from the school district for her son, who was very angry and upset. The student’s academic performance began to decline in the ninth grade at petitioner’s high school during the 1997-98 school year (Exhibits SD-90, 91). At home, he exhibited anger that became uncontrollable. At school, the school psychologist observed that the student was either sad or angry, and that he rarely smiled or made eye contact with adults. Respondent sought treatment for her son from three different psychologists, but he showed no sign of improvement.

        During the summer of 1998, the mother suspected that her son was using drugs. She contacted petitioner’s district with this information, and was referred to a mental health agency. As a result, the student participated in an out-patient substance abuse program while in the tenth grade during the 1998-99 school year, but the program was unsuccessful. The student’s behavior worsened, and his academic performance declined substantially (Exhibits SD-4, 18, 19, 23, and 92). The student’s mother spoke to the school psychologist about her son’s worsening condition during the summer between the student’s tenth and eleventh grades, and she was referred to the Family School. The Family School, located in Hancock, New York, has not been approved by the State Education Department to provide instruction to children with disabilities.

        After the student’s mother visited the Family School, the school psychologist agreed to recommend that the district place the student there. The student’s mother prepared a letter on September 8, 1999 requesting that her son be evaluated for a suspected emotional disability, but the letter was never submitted because the school psychologist indicated that a Committee on Special Education (CSE) referral was not necessary for district placement at the Family School. In a September 9, 1999 memorandum to the interim superintendent of schools, petitioner’s high school principal stated that both she and the school psychologist agreed that the student needed a residential placement at the Family School (Exhibit SD-1).

        On September 16, 1999, the student began attending the Family School at his parent’s expense. When petitioner decided that it would not pay for the student’s tuition, both the school psychologist and the student’s mother wrote to the superintendent requesting reconsideration of the denial. An exchange of correspondence between the parties continued until March 30, 2000, when the superintendent asked respondent whether she wished to make a referral to the CSE (SD-9). By letter dated April 25, 2000, the student’s mother formally requested that her son be evaluated by the CSE (Exhibit SD-10).

        On July 28, 2000, the CSE classified the student as emotionally disturbed, and it recommended a residential school program with a student teacher ratio of 12:1+1 and individual counseling twice weekly for 30 minutes. The annual goals established by the CSE included improvement in self-awareness, self-concept, social skills, socially acceptable behaviors, decision-making skills, organization, study skills and learning strategies. The individualized education program (IEP) that the CSE prepared for the student indicated that a functional behavioral assessment would be completed, and the committee would identify an appropriate placement (Exhibit P-C).

        No placement was offered to the student prior to the commencement of the 2000-01 school year, and a functional behavioral assessment was never performed. On October 12, 2000, the CSE advised the parent that her son had not been accepted by any of the special education schools that the district had applied to. By letter dated October 26, 2000, the student’s mother requested an impartial hearing (Exhibit SD-34).

        Prior to commencement of the hearing, Kids Peace residential school was identified as a potential placement. On January 18, 2001, petitioner’s CSE met to consider whether it was an appropriate placement for the student. At the meeting, the CSE chairperson and the school psychologist felt that Kids Peace would meet the student's needs, but respondent felt that it would not be appropriate. The special education teacher and parent member abstained from making a decision. No decision was made at the January meeting, and it was decided that the CSE would reconvene to consider the issue. On February 15, 2001, the CSE chairperson sent a copy of that determination to the student’s mother (Exhibit P-B). The CSE did not reconvene. As some point, however, an IEP was prepared that did not reflect the fact that no decision had been made by the CSE, and affirmatively indicated that the CSE had recommended placement in Kids Peace (SD-39). A copy of the new IEP was apparently never sent to the student’s parents.

        The hearing commenced on February 27, 2001, and continued on March 13, 2001. By letter-brief dated March 20, 2001, petitioner sought to have the matter remanded back to its CSE so it could arrange for appropriate evaluations, including an observation in the student's current educational setting, a functional behavioral assessment and a psychiatric evaluation. In an interim decision dated April 2, 2001, the hearing officer found that the issue had been rendered moot because the student was near graduation from high school. When the hearing continued on April 3, 2001, petitioner asked the impartial hearing officer to recuse himself, and asked that the April 2, 2001 interim decision be deemed a final decision that could be appealed. The hearing officer denied both of those applications. The parties agreed to extend the date for the hearing officer’s decision until June 15, 2001.

        The hearing officer rendered his decision on June 7, 2001. He found that respondent’s son should have been referred to the CSE in September 1999, in view of the school psychologist’s and principal’s belief that he belonged in a residential school and respondent’s September 23, 1999 letter to the superintendent requesting tuition reimbursement. He further found that the student was appropriately classified as having an emotional disturbance, and that petitioner had failed to provide him with a FAPE from September 1999 through June 2001. The hearing also found that The Family School had appropriately addressed the student’s needs, and he ordered the Board of Education to reimburse respondent for tuition, room, board, and laptop computer expenses at the Family School. The student who was graduating from the Family School later that month had been accepted for enrollment in September 2001 at several colleges (Exhibit P-S, P-T).

        Respondent has raised two procedural objections to the appeal. She contends that the Board of Education’s petition is untimely, and that the Board of Education did not in fact authorize the bringing of this appeal. A board of education must commence an appeal from a hearing officer’s decision by serving its petition upon the parent within 40 days after receipt of the decision (8 NYCRR 279.2[c]). Petitioner asserts that it received the hearing officer’s decision on June 11, 2001. Since the petition was served upon respondent on July 20, 2001, the 39th day after receipt of the decision, I find that petitioner’s appeal was timely.

        Respondent’s second objection to the petition is premised upon the provisions of 8 NYCRR 275.5, which is made applicable to appeals to the State Review Officer by 8 NYCRR 279.1(a) (Application of the Board of Educ., Appeal No. 00-004). When an appeal is brought by a board of education, its petition may be verified by anyone who is familiar with the facts underlying the appeal, "pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board." Respondent asserts that petitioner has not in fact authorized this appeal. In its reply, petitioner asserts that it authorized this appeal in executive sessions. Subsequently, petitioner offered a certification by its District Clerk that the Board passed a resolution authorizing this appeal at its public meeting on July 2, 2001. Under the circumstances, I find that petitioner has overcome respondent’s second affirmative defense.

        As petitioner correctly notes, its obligation to provide a FAPE is limited to students who met the criteria for identification as students with disabilities under the Individuals with Disabilities Education Act (IDEA) and Article 89 of the New York State Education Law, as well as the respective regulations promulgated pursuant to those statutes. Notwithstanding its own CSE’s determination in July 2000 to classify respondent’s son, the Board of Education argues that the hearing officer lacked jurisdiction to find that a FAPE had been denied, because the CSE failed to conduct a complete evaluation of the student. It asserts that the CSE’s evaluation did not include an observation of the student in his class at the Family School, a functional behavioral assessment, or a psychiatric evaluation (cf. 8 NYCRR 200.4[b][1]). I find that petitioner cannot disavow the recommendation by its own CSE that the student should be classified as emotionally disturbed (Application of a Child with a Disability, Appeal No. 98-28).

        There is one other issue with respect to the student’s status as a student with a disability. The hearing officer awarded tuition reimbursement for the 1999-2000 school year as well as the 2000-01 school year, despite the fact that the CSE did not classify respondent’s son until July 28, 2000. He did so because he found that the student should have been referred to the CSE by petitioner’s staff in September 1999, in light of the high school principal’s September 9, 1999 memo to the interim superintendent of schools recommending that the school district pay for the student’s tuition in a residential placement (Exhibit SD-1). The hearing officer also found that the student should have been referred to the CSE as a result of the correspondence about this matter between respondent and petitioner’s superintendent of schools that began on September 22, 1999 (Exhibit SD-3). Having found that school staff should have referred the student at that time, and that the CSE ultimately did find that the student should be classified, the hearing officer concluded that the student was entitled to a FAPE during the 1999-2000 school year.

        Petitioner argues that it was under no obligation to provide a FAPE to respondent’s son during the 1999-2000 school year because he was not classified during that school year. It contends that to impose liability upon it for that period of time would require a finding that it had violated the "child find" provisions of the IDEA that require it to identify, locate, and evaluate all children with disabilities (20 U.S.C. § 1412[a][3]). To satisfy that requirement, a board of education must have procedures in place to identify, locate and evaluate such children (Application of a Child with a Disability, Appeal No. 93-41).

        In this instance, the issue is not whether the procedures were in place, but whether upon the facts presented, the student should have been referred to the CSE (Application of the Board of Educ., Appeal No. 00-052). While petitioner argues that the student’s problems were essentially drug related and did not merit a referral to the CSE, I must disagree. It is for the CSE to determine the nature of the student’s disability, if any, rather than school staff. A child may be both socially maladjusted and have an independent serious emotional disturbance that would qualify him for services under the IDEA (Application of a Child Suspected of Having a Disability, Appeal No. 99-73).

        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 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 argues that respondent is not entitled to tuition reimbursement because the student never received special education and related services under the authority of a public agency (See 20 U.S.C. § 1412[a][10][C][ii]). This argument has been rejected in other appeals (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 98-41). Absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district.

        In light of petitioner’s failure to even refer the student to the CSE, much less offer to provide any services to him, during the 1999-2000 school year, I find that the hearing officer correctly determined that petitioner denied a FAPE to the student during that school year. With respect to the 2000-01 school year, the hearing officer found that the CSE did not recommend a specific placement until its meeting on January 16, 2001. As noted above, it does not appear that the CSE in fact recommended Kids Peace at that meeting. In any event, I must agree with the hearing officer that petitioner did not make a timely offer of a placement and that it denied a FAPE to the student in the 2000-01 school year.

        A student’s parent bears the burden of proof with regard to the appropriateness of the services selected during the 1999-2001 school years (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 School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29).

        Placement at the Family School was specifically recommended by the high school principal and psychologist. The record contains copies of the student's academic records from the Family School, a handbook on the program, a description of the program, and a letter from the principal (Exhibit P-D, P-N, P-Q, and P-S). The student was provided with cognitive-behavioral and confrontational therapies so he could attain the emotional stability necessary for him to make academic progress. He graduated in June 2001, and was accepted for enrollment is several colleges (Exhibit P-T). The college application essay prepared by the student is a testament to the significant progress that the student had made toward achieving the social/emotional goals that respondent’s CSE had established in its IEP for the student (Exhibit P-P, P-C). I find that parent has met her burden of proof.

        In order to obtain an award of tuition reimbursement, a parent must also show that equitable considerations support her claim for reimbursement (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The record indicates that respondent cooperated with the CSE, and that she was actively involved in attempting to get help for her son. Although she failed to request a fair hearing requesting tuition reimbursement during the 1999-2000 academic year, her delay was due to petitioner’s failure to refer the student to its CSE when it suspected that he had a disability. Therefore, I find that her claim is supported by equitable considerations.

THE APPEAL IS DISMISSED.