01-076

       Petitioners appeal from an impartial hearing officer’s decision finding that respondent’s Committee on Special Education (CSE) had failed to sustain its classification of their son as other health impaired/mentally retarded, as well as its placement recommendation for the 2000-01 school year. They object to the fact that the hearing officer directed the CSE to obtain new psychological and educational evaluations before making its placement recommendation for the 2001-02 school year. They seek an order that classifies their son as other health impaired, and requires respondent to pay for their son’s education in a private school of their choosing for the next four years. The appeal must be dismissed.

        Initially, I note that the Board of Education has not answered the petition, although its counsel asked for and received two extensions of time to submit an answer, the last extension to be no later than June 20, 2001. I will deem the allegations in the petition to be true unless they are inconsistent with the evidence in the record that I independently review (34 CFR 300.510[b][2]; Matter of Arlington CSD v. State Review Officer of New York State, ____AD2d____[2d Dept. 2002]).

        Petitioners’ son is 12 years old, and is bilingual in Urdu and English. At the time of the impartial hearing in the spring of 2001, the child was placed in a homebound instructional program. He had been enrolled in a center-based preschool program prior to being referred to the CSE in July 1993. In June 1994, the CSE reportedly classified him as other health impaired/ mentally retarded. His parents reportedly consented to his placement in a Specialized Instructional Environment-VI (SIE-VI) class in September 1994 (Transcript p. 11). The student remained in this program through June 2000.

        In the spring of 2000, the parents were informed that their son would articulate to an SIE-VI program in a new school, P.S. 177. After visiting the program, the student’s mother objected to the placement. Petitioners asked the CSE to reevaluate their child. During the summer, the parents obtained a private tutor for their son. On August 17, 2000, the CSE met to discuss the parents’ request for a different educational program for their son. They asserted that the he had made almost no progress despite being in the SIE-VI program for many years. The tutor whom the parents had hired advised the CSE that significant changes had been made in the student’s behavior and academic performance. The CSE decided to defer making a recommendation until the previously requested evaluations had been performed (Exhibit B). Two days before the CSE meeting, a "Nickerson" letter (see Jose P. v. Ambach et al., 79 C 270, U.S. D.C. E.D. N.Y., 1982) was issued to petitioners, explaining that respondent did not have a special education program available and authorizing them to place their son in an approved private school at respondent’s expense (Exhibit 16). The parents never received the letter, which was not mentioned by the CSE at the August 17th meeting (Transcript p. 235).

        The student’s psychological and educational evaluations were conducted on August 25, 2000. The educational evaluator reported that there were gains in the student’s academic skills since his last evaluation. She noted that he spoke in simple meaningful sentences. She assessed his reading and writing skills to be at the primer level, while his math skills were at the pre-primer level. The evaluator reported that the student’s general knowledge and comprehension was at the six to seven year old level (Exhibit 4).

        The psychologist who performed the bilingual psychological evaluation noted that when last evaluated in February 2000, petitioners’ son had been found to be functioning in the moderately deficient range and lacking in control over his impulsivity. Using portions of the Wechsler Intelligence Scale –III to estimate the student’s progress in cognitive growth, the school psychologist reported that the student appeared to be functioning in the borderline to mildly deficient range, with significant problems in thought processing and perceptual motor skills. It was noted that the student had been taking Ritalin since April 2000. While indicating the student would continue to need an aide and intensive assistance with speech and language, the school psychologist opined that the student would benefit from a change in educational programs (Exhibit 3).

        On September 14, 2000, the CSE recommended that the student be placed in a Modified Instructional Environment-V (MIS-V) class at P.S. 201. The mother observed the class on September 27th and 28th. She objected to the placement because she believed that the students in the class were too low functioning. The parents requested a more academically oriented program for their son, specifically, respondent’s Modified Instructional Services-I (MIS-I) program. They also asked that respondent provide instruction to their son at home in the interim (Exhibit 2).

        The CSE reconvened on October 16, 2000. It recommended that the student remain classified as other health impaired/mentally retarded, but that his program be changed to the MIS-I program. The mother visited the MIS-I program at P.S. 109. Petitioners informed the CSE that they did not believe that particular placement was appropriate for their son because of the wide range of abilities of the students. They reportedly asked to see other MIS-I classes, but were denied permission to do so. The homebound instruction that petitioners had requested in early October began on November 8, 2000.

        At petitioners’ request an impartial hearing was held on December 13, 2000, January 25, April 4, and May 3, 2001. The student’s SIE-VI teacher during the 1999-2000 school year also provided home instruction to him in the fall of 2000. She testified that the student had made dramatic progress since leaving the SIE-VI program (Transcript p. 59). She expressed the belief that there wasn’t an appropriate public school program for the student because he responds best to individualized instruction, which is allegedly unavailable in the public schools (Transcript pp. 73-77). The student’s father claimed that his son had learned to read a book or newspaper since leaving the SIE-VI program. The parents sought a Nickerson letter from the hearing officer, i.e., authorization to place their son in an approved private school at respondent’s expense.

        In his decision dated June 6, 2000, the impartial hearing officer credited the testimony by the student’s former SIE-VI teacher that that the MIS-I program might not be appropriate for the student because he required very small group instruction. He found that the Board of Education had failed to meet its burden of showing the appropriateness of the MIS-I program. He further found that although the results of the August psychological and educational evaluations were consistent with the classification as other health impaired/mentally retarded, the student’s more recent academic progress was inconsistent with that classification. He remanded the matter back to the CSE to conduct a new educational evaluation and a new psychological evaluation, and directed it to reconsider the issues of classification and programs for the 2001-02 school year. Recognizing that the 2000-01 school year was about to end shortly after he rendered his decision, he nevertheless granted petitioners the Nickerson relief they sought, but only for the remainder of that school year.

        Petitioners object to the hearing officer’s order to the CSE to re-evaluate their son and recommend an appropriate classification and program for the 2001-02 school year. They ask me to consider a letter written by their child’s psychiatrist on July 3, 2001, after the hearing officer had rendered his decision. The psychiatrist opined that additional psychological testing would yield little useful data because such testing is not standardized for persons "in this population". I note that the psychiatrist appears to rely upon the findings of the August 25, 2000 psychological evaluation to describe the student. The psychologist who performed that evaluation had acknowledged the standardization problem to which the psychiatrist referred, but nevertheless provided useful information about the student’s cognitive functioning.

        The psychiatrist also opined that petitioners’ son would be appropriately classified as other health impaired. Petitioners appear to contend that respondent’s CSE should simply rely upon the opinion expressed by their psychiatrist. It is well settled that a board of education may conduct its own evaluations rather than simply accept private evaluations (Vander malle v. Ambach, 673 F.2d 49 [2d Cir. 1982]; Rettig v. Kent City Sch. Dist., 720 F.2d 466 [6th Cir. 1983]; DuBois v. Connecticut State Bd. of Ed., 727 F.2d 48 [2d Cir. 1984]). Nevertheless, a CSE must be careful to avoid overly repetitive testing (Healey on behalf of Healey v. Ambach, 103 A.D.2d 565 [3d Dept. 1984]).

        In this instance, the hearing officer has ordered that the student be re-evaluated, as he had the authority to do (34 C.F.R. § 300.502[d]; 8 NYCRR 200.5[I][3][vi]). At the hearing, petitioners introduced evidence suggesting that their son’s functional level and actual achievement were significantly better that had been reported by the CSE’s evaluators in their August 2000 evaluations. The hearing officer determined that the CSE should have the benefit of new evaluations before deciding upon the child’s future classification. I agree with the hearing officer, and find that new evaluations would be especially appropriate for the CSE to have in determining what the child’s educational program should be.

        Petitioners argue that there is no purpose to be served in sending the matter back to the CSE because there is ample evidence that the Board of Education lacks an appropriate program for their son. I find that there is no basis in the relatively limited record before me for making such a sweeping statement about the Board of Education’s programs. Respondent’s CSE is required to recommend an appropriate educational program for each child with a disability within a spectrum of approved public and private programs. Until this child’s current needs are revealed by the evaluations ordered by the hearing officer, there is no purpose in speculating about what may or may not be available for this child.

        I have considered petitioners’ contention that they should receive a multi-year Nickerson authorization to place their child in an approved private school. I find no basis in the law for the issuance of a "Nickerson" letter for a four-year period. Federal and State regulations require that a child’s program be reviewed by the CSE at least annually, so that the child’s program can be adjusted to meet his or her needs (34 C.F.R. § 300.343 [c][1]; 8 NYCRR 200.4[f]).

        Petitioners also seek authorization to place their son at respondent’s expense in an unapproved private school for more than one year. However, neither the State Review Officer nor the Courts can order a prospective placement in an unapproved school. (Antkowiak v. Ambach, 838 F. 2d 635, [2d Cir. 1988]). While petitioners may place their son in an unapproved private school, they cannot obtain public funding for that placement without invoking the due process procedure to demonstrate their entitlement to be reimbursed for their expenditures for such placement in accordance with the decisions in Burlington School Comm. v. Dep’t of Educ., 471 U.S. 359 (1985), and Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993).

THE APPEAL IS DISMISSED.