01-079

        Petitioner appeals from an impartial hearing officer’s decision finding that respondent had offered to provide an appropriate educational program for petitioner’s daughter during the 2000-01 school year, and denying petitioner’s request for tuition reimbursement for her child’s unilateral placement at the West End Day School (WEDS) for that year. The appeal must be sustained.

        At the time of the hearing, petitioner’s son was 12 years old and was classified as a child with a learning disability. There is no dispute as to his classification. The student had initially been identified as having a disability at the age of three, while residing in New Jersey. He reportedly attended a preschool program for children with disabilities, and was thereafter enrolled by his parents in the Stephen Gaynor School (Gaynor). Gaynor is a private school for children with disabilities located in New York City. It has not been approved by the New York State Education Department to provide instruction to children with disabilities. In 1998, the student’s parents moved to New York City, and petitioner referred her son to respondent’s CSE. The CSE recommended that the student be classified as learning disabled and that he receive resource room services, speech/language therapy and counseling. His parents opted to keep him in Gaynor for the 1998-99 school year (Exhibit 4). For the 1999-2000 school year, the CSE again recommended resource room services, speech/language therapy and counseling for the student (Exhibit 1). However, the student remained in Gaynor.

        A school psychologist who evaluated the student on November 20, 1999 reported that the student had achieved a verbal IQ score of 92, a performance IQ score of 84, and a full scale IQ score of 87. The psychologist described the student as having low average cognitive abilities with mid-average conceptual abilities. The psychologist also noted that the student’s processing speed was well below his verbal comprehension, and that some processing errors on a test of his visual motor integration skills appeared to be related to perceptual irregularities. He indicated that there appeared to be some type of subtle learning problem (Exhibit 5).

        An education evaluation that was conducted on November 6, 1999 revealed significant deficits in the student’s reading and math skills. The student had good decoding skills in general, but had difficulty decoding words of more than three syllables. He had no inferential ability and was unable to use contextual clues to find the missing words while reading. Although the student could perform simple math operations such as addition and subtraction, he often confused the signs and had difficulty borrowing when doing subtraction. He had not yet acquired the skills of division and was unable to work with decimals and fractions. The student was able to perform simple word problems, but his skills were well below average. His skill level in math tested in the range of mid-third to mid-fourth grade. The student’s writing skills showed strengths in the areas of capitalization, punctuation and grammar, but the sentences were not at age/grade expectation (Exhibit 3).

        A speech/language evaluation was performed on October 28, 1999. The evaluator reported that the student had a mild expressive language delay (Exhibit 2), but reportedly recommended that speech/language therapy not be provided to him (Transcript p. 98). The student was observed in his classroom at Gaynor on December 13, 1999 by one of respondent’s school psychologists. The school psychologist reported that petitioner’s son was one of the more focused and well behaved students in the class, and that he was able to work independently on a worksheet assignment (Exhibit 6).

        On May 31, 2000, the CSE held its annual review to plan the student’s program for the 2000-01 school year. Petitioner was told on that day that no parent representative would be present. She was advised by the school social worker who was acting as the district representative member of the CSE that the meeting could be rescheduled, or it could be held without the parent member if she executed a handwritten statement indicating that she was aware of her right to have a parent member participate in the CSE meeting. Petitioner wrote such a statement, and the meeting proceeded. The CSE recommended that the student be placed in respondent’s MIS-I program in a self-contained class with a 15:1 pupil:teacher ratio, and that he receive speech/language services twice per week in a group of three and counseling twice per week in a group of three (Exhibit 12).

        The parent was given the opportunity to meet with the placement officer at that time or to call him later when she got the final notice of recommendation together with her son’s individualized education program (IEP). She chose to do the latter. On or about June 27, 2000, the final notice of recommendation was sent to petitioner, indicating that a placement would be available for her son in respondent’s I.S. 167, which was identified at the hearing as the Robert Wagner School. Petitioner testified that she did not receive a copy of the IEP (Transcript p. 140). She called the school district to view the proposed placement, and was told that the class could not be observed because school was over for the year. In letters dated July 5 and July 24, 2000, petitioner asked the placement officer for a profile of the class that had been recommended for her son. Petitioner received a response dated August 1, 2000 stating that the class profile was not available because classes were not yet finalized. Petitioner was advised that she could schedule a visit to the class after September 7, 2000.

        On August 14, 2000, petitioner notified the Board of Education that she would send her child back to Gaynor and file for an impartial hearing. She was advised that the class profile she had requested would be provided to her attorney during the course of the hearing (Exhibit F). On April 30 and June 21, 2001, an impartial hearing was held on this matter. Petitioner challenged the validity of her son’s proposed IEP on the ground that the composition of the CSE was invalid because there was no parent member. The Board of Education asserted that petitioner had waived her right to have the parent member present.

        In her decision dated August 23, 2001, the impartial hearing officer found that that the parent had knowingly waived the presence of a parent member at the meeting. She further found that petitioner had voluntarily chosen not to discuss placement with the placement officer when she had the opportunity to do so. The impartial hearing officer also found that there was no evidence that the student’s academic and social needs could not have been met in the proposed 15:1 MIS-I class, and concluded that the Board of Education had offered petitioner’s son an appropriate placement. She therefore denied petitioner's request for an award of tuition reimbursement.

        Petitioner challenges the impartial hearing officer’s decision on several grounds. She asserts that the purported waiver of the parent member’s participation in the CSE meeting that she signed is invalid. She contends that her son’s IEP is therefore invalid because it was not prepared by a validly composed CSE. She also challenges the appropriateness of the educational program recommended by the CSE. The Board of Education maintains that petitioner knowingly waived her right to have a parent member present, that its CSE’s program recommendation was appropriate, and that the decision of the impartial hearing officer should be upheld.

        I will address petitioner’s procedural challenge to her son’s IEP first. It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Handicapping Condition, Appeal No. 90-16). Previous decisions of the State Review Officer have made it clear that the presence of the parent member could not be waived (Application of a Child with a Disability, Appeal No. 99-27; Application of a Child with a Disability Appeal No. 97-1). On July 20, 1999, section 4402(b)(1)(a)(viii) of the Education Law was amended to provide that a student’s parents could request that the additional parent member of the CSE not attend the CSE meeting for that student. On January 6, 2000, the Regulations of the Commissioner of Education were amended to provide that the notice given to parents of a prospective CSE meeting must inform them of their right to decline, in writing, the participation of the additional parent member of the CSE in the meeting (8 NYCRR 200.5[c][2][v]).

        The record does not reveal whether petitioner was informed of her right to request that the additional parent member not participate when she was notified that a CSE meeting would be held. It also does not reveal why no parent member was available on May 31, 2000. The school social worker member of the CSE testified at the hearing that she informed petitioner at the start of the CSE meeting that no parent member was available (Transcript pp. 10-11). She also told petitioner that she could reschedule the meeting if she preferred, or if she felt comfortable proceeding without the parent member, she could do so. The social worker testified that she asked petitioner to write a statement to that effect, because the CSE required "something that basically says you’re agreeing to participate without a parent member and that you’ve been advised that you can reschedule or not" (Transcript p. 11). In the presence of the other CSE members (Transcript p. 15), petitioner wrote a statement indicating her understanding of the purpose of the additional parent member and her willingness to proceed in his absence (Exhibit 11). The social worker testified that neither she nor any other CSE member indicated to petitioner that the meeting should continue without the additional parent member (Transcript p. 46).

        Petitioner testified that she did not know about the lack of a parent member until she walked into the CSE meeting room. She was asked if she wished to proceed without the parent member, and was told that if she did not wish to proceed, the meeting would have to be held on another day (Transcript p. 138). She testified that she told the CSE that she would not "make waves" and agreed to proceed. She indicated that she "felt stressed" by the fact the others were sitting there ready to proceed (Transcript p. 138).

        The hearing officer found that petitioner had knowingly waived the presence of the parent member at the meeting. I would be reluctant to substitute my judgment for hers if it were solely a question of witness credibility. However, the question is whether the participation of an additional parent member is a right that a student’s parent may waive, or whether the additional parent member’s participation is mandatory unless the student’s parent affirmatively requests that the additional parent member not participate. I find that it is the latter, based upon the wording of the statute. The language of the statute provides a mechanism to allow the parents of the child to intentionally exclude a parent member. It does not, in my opinion, authorize a CSE to proceed without a properly constituted panel with the consent of the student’s parent. I am of course aware that respondent conducts many CSE meetings each day and that it has little control over the non-employee additional parent members. However, I am concerned by the practice of seeking a parent’s consent to proceed without one of the CSE’s required members, when the alternative is to postpone the CSE to some unspecified future date. I find that the student’s IEP is a nullity because it was prepared by an invalidly composed CSE.

        A board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents’ claim for tuition reimbursement (Florence County Sch. 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; Matter of Handicapped Child, 22 Ed Dept Rep 487 [1983]). In view of respondent’s failure to have a parent member of the CSE present when the student’s IEP was prepared, I find that respondent did not meet its burden of establishing that it had offered to provide an appropriate educational placement to petitioner’s son for the 2000-01 school year (Application of a Child with a Disability, Appeal No. 00-012).

        The student’s parent bears the burden of proof with regard to the appropriateness of the services provided by Gaynor during the 2000-01 school year (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 Bd. of Educ., Appeal No. 93-34). In order to meet that burden, the parent must show that the private school offered an educational program that met her child’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The private school need not be approved by the state educational agency to provide instruction to children with disabilities (Carter, 510 U.S. at 7), nor must it employ certified special education teachers, or have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        Petitioner’s son appears to have language processing deficits that interfere with his ability to learn. Critical thinking and abstract ideas are difficult for him, and he has trouble generalizing information and drawing inferences. As a result, he has trouble comprehending what he reads and performing mathematical word problems at an age appropriate level. Although he appears to have age appropriate writing mechanics skills, he has difficulty expressing himself in writing. Instructions must be repeated and broken down for him, and graphic organizers should be used with him. His teacher at Gaynor described the student as socially immature, and the CSE’s psychologist testified that the student appeared to be somewhat insecure and vulnerable. He noted that the student’s emotional difficulties were manifested in social situations.

        At Gaynor, petitioner’s son was instructed in a class of eight students. His teacher had an assistant for much of the year. Most of his subjects were taught in even smaller classes and he was often assisted by both the teacher and a language therapist (Transcript p. 124). The student received individual remediation by a math specialist once a week, in addition to group instruction in that subject. His head teacher for the 2000-01 school year testified that Gaynor used a multisensory approach, with teacher made materials and manipulatives to assist the student in understanding and applying abstract concepts. The school’s language therapist worked with students in the classroom, as well as on a pull-out basis. The school also provided a psychologist to come into the classroom and work with the teacher and student. The teacher testified that petitioner’s son had improved a great deal in writing, and continued to show progress in reading (Transcript p. 131). His math skills had also improved (Transcript pp. 149-150). The student also made progress socially by learning how to express himself and to assert himself with his peers in a non-physical way. His self-esteem reportedly increased (June 21, 2001 Transcript p. 150). Although Gaynor did not provide the student with an opportunity to interact with regular education students, I note that he would have had little contact with such students in the MIS-I program that respondent had offered to provide. I find that the parent has sustained her burden of proving the appropriateness of the program at Gaynor.

        The third criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. There is no indication in the record that petitioner failed to cooperate with the CSE. At the hearing, respondent made much of the fact that petitioner chose not to meet with a district placement officer immediately after the CSE meeting on May 31, 2000. However, the parent was given the option of speaking with the placement officer at the time of the meeting or when she received a copy of the IEP and the Final Notice of Recommendation. Petitioner testified that she felt it would be better to meet with the placement officer after she had received the documents and could review them. I find no reason to doubt her testimony. The record also shows that as soon as she received the Final Notice of Recommendation, she called to speak with the placement officer. Petitioner also sent several letters to the Board of Education to obtain information on the proposed placement throughout the summer, but no information was provided. Accordingly, I find that equitable considerations support the parent’s claim for tuition reimbursement.

        The Board of Education argues that petitioner is barred from obtaining an award of tuition reimbursement pursuant to the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., because her son has never attended public school and received special education under the authority of a public educational agency. Respondent relies upon the provisions of 20 U.S. C. § 1412(a)(10(C)(ii). I have read the statute, but am not persuaded by respondent’s argument. Absent convincing evidence to the contrary, I decline to find that the statute was meant to preclude an award of tuition reimbursement to the parent of a student who has never received special education from a school district (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).

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 petitioner for her tuition expenses at the Stephen Gaynor School during the 2000-01 school year, upon petitioner’s presentation of proof of those expenditures.