02-027

        Petitioner appeals from an impartial hearing officer’s decision finding that respondent had failed to offer an appropriate educational program to her son during the 2001-02 school year, but denying petitioner’s request for an award of tuition reimbursement at the Cooke Center for Learning and Development at St. Stephen of Hungary (Cooke) for that year. The appeal must be sustained in part.

        There are two preliminary procedural issues to be addressed. The first issue is that the Board of Education has not answered the petition. 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, and a decision will be rendered thereon (8 NYCRR 279.3). However, I am required 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]), notwithstanding respondent’s failure to answer (Arlington Central Sch. Dist. v. State Review Officer, 293 A.D. 2d 671 [2d Dept 2002]). Therefore, the facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        The second procedural issue involves the submission of new exhibits. Petitioner has annexed five exhibits to the petition that were not part of the record before the impartial hearing officer. 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). Exhibits T, U, V and W attached to the petition are progress reports of the student that were all completed after the date of the hearing, which will be accepted because they were not available at the time of the hearing. Exhibit X is an affidavit from the student’s classroom teacher at Cooke which discusses the student’s inclusionary experiences in regular education classes for the 2001-02 school year. I will accept this affidavit because I find that the record in this matter would be incomplete without it.

        Petitioner’s son was eight years old at the time of hearing in the fall of 2001. A school psychologist who evaluated the child in 1996 reported that she could not administer standardized tests to him because of his unrelatedness and unresponsiveness. The psychologist reported that the child appeared to have a very unusual profile of cognitive strengths and weaknesses, maladaptive behaviors, and difficulties in auditory processing, and noted that there was an autistic element in much of his behavior (Exhibit S). He was classified as a preschool child with a disability at age four and a half by respondent’s Committee on Preschool Special Education, and began receiving special education services at the Young Adult Institute.

        The child thereafter passed into the jurisdiction of respondent’s Committee on Special Education (CSE). During the 1998-99 school year, petitioner’s son attended a kindergarten plus program at P.S. 198, a classroom of approximately 22 children, six of whom were classified as children with disabilities, with a teaching staff of regular and special education teachers and a paraprofessional. He reportedly made academic progress in his kindergarten placement, but had deficits in his social language (Exhibit M). The CSE recommended that he be placed in a regular education first grade classroom at P.S. 6 with support services of speech therapy, counseling, occupational therapy and consulting teacher services (Transcript at p. 128). The student attended P.S. 6 for the 1999-2000 school year. Petitioner reported that her son did not do well in this setting and exhibited regressive behaviors such as bed-wetting, stomachaches and anxiety.

        In a December 1999 audiological evaluation at the Beth Israel Medical Center’s Hearing and Learning Center, the child was found to have normal hearing, but was diagnosed as having an auditory processing disorder. The evaluator recommended that the child be placed in a quiet classroom, be seated close to the teacher, and use an FM listening device (Board Exhibit 10). In January 2000, petitioner met with a school based support team to discuss her concern about her son’s anxiety. The student’s individualized education program (IEP) was amended, removing consultant teacher services and adding an individual aide (Exhibit A).

        Petitioner had her son privately evaluated by a psychologist in February 2000. The psychologist reported that the child had a verbal IQ score of 93, a performance IQ score of 103, and a full scale IQ score of 97 on the Wechsler Intelligence Scales for Children-III. She noted that the child had difficulty understanding abstract concepts, and had weaknesses in expressive language, writing skills and attention, which made learning a challenge for him. She recommended that he be placed in a small class with a 10:1+1 child to adult ratio, and that he receive speech/language therapy, occupational therapy, and individual and group counseling (Exhibit 7). In April 2000, a school psychologist reported that the child had many strengths, but appeared to lack the executive function with which to integrate and build upon his experience. She explained that he learned differently, and needed very specific, structured, graded, repetitive learning exercises, extensive scaffolding and continuous verbal commentary (Exhibit 6).

        For the 2000-01 school year, the CSE recommended placement in a Modified Instructional Services-IV (MIS-IV) program at P.S. 6. Petitioner did not agree with this placement and unilaterally placed the child at the Cooke Center for the 2000-01 school year. At Cooke, the child received speech/language therapy, occupational therapy, and counseling. During the course of a hearing requested by petitioner, the Board of Education conceded that it had not offered an appropriate program to the student for the 2000-01 school year. The hearing officer found that the services provided by Cooke were appropriate for the student, and she ordered the Board of Education to reimburse petitioner for the cost of the student’s education by Cooke during the 2000-01 school year. The Board of Education did not appeal from the hearing officer’s determination.

        In October 2000, a psychiatrist gave his diagnostic impression of petitioner’s son as having a PDD, while noting that the child was not as withdrawn as many children with that condition (Exhibit H). A CSE educator evaluated the child in February 2001. The educator noted that the child’s expressive and receptive vocabularies appeared to be adequate for daily communication, but that he appeared to have difficulty processing information and relating ideas. She reported that the student’s reading skills were at a low fourth grade level, while his math skills were at a high first grade level. His writing skills were assessed to be at about the third grade level (Exhibit 5). In April 2001, the child’s teacher at Cooke reported that he was reading up to fourth grade level storybooks fluently, and was 90 percent proficient at spelling fourth grade level words. She also reported that his primary areas of need in language arts were in listening and reading comprehension. The teacher noted that the child had difficulty sustaining focus. The teacher indicated that the child could add and subtract up to three-digit numbers with and without regrouping, and multiply two-digit numbers with regrouping, but on occasion demonstrated an incomplete understanding of numbers and numeration. She also indicated that he appeared to have low confidence in his ability, became easily frustrated, and had difficulty coping with anxiety (Exhibit 11).

        The CSE conducted its annual review of the child on May 3, 2001. For the 2001-02 school year, it recommended that the child be classified speech impaired, and that he be placed in a collaborative team teaching class with a 12:1 student to teacher ratio. It also recommended that he receive counseling twice a week in a group of no more than five students for 30 minutes, individual occupational therapy 30 minutes per week, and speech/language therapy three times a week, once in the classroom and twice in a separate location (Exhibit 1). In a Final Notice of Recommendation dated May 16, 2001, petitioner was offered a placement for her son at P.S. 158.

        Petitioner did not accept the proposed placement, and enrolled her son in Cooke for the 2001-02 school year. The student was placed in a special education class, and he received speech/language therapy, occupational therapy, and counseling. In mid-October 2001, he was mainstreamed for lunch and recess on a daily basis, as well as gym and theater group once weekly. At the end of October, the student began receiving mathematics instruction in a regular education third grade class. As of January 2002, the student began attending regular education classes for phonics, English and comprehension [Petitioners’ Exhibit X].

        On July 25, 2001, petitioner requested an impartial hearing to challenge the placement recommended by the CSE. Due to the World Trade Center disaster, the hearing was postponed until October 18, 2001. At the conclusion of the hearing on that day, the hearing officer allowed the record to remain open to allow the CSE to submit additional documentary evidence. In an interim order dated November 21, 2001, the hearing officer allowed the CSE to submit additional documentary evidence within two weeks of the date of the order and allowed petitioner to submit a written response within two weeks after receipt of the CSE’s submission. Neither party responded, and on February 2002, the hearing officer rendered her final decision.

        The hearing officer found that the Board of Education had not met its burden of proving that it had offered to provide an appropriate educational program to the child for the 2001-02 school year because the CSE that prepared the student’s IEP did not include a regular education teacher who was or might be responsible for implementing the IEP, in accordance with the provisions of 34 C.F.R. § 300.344 (a)(2) and 8 NYCRR 200.3 (a)(1)(ii). However, she also found that petitioner had not met her burden of proving the appropriateness of the services provided to her son by Cooke. The hearing officer found that the record did not establish that the child should receive primary instruction in a special education class, and that he did not require a 12-month program to achieve his IEP goals. Having determined that the placement at Cooke was too restrictive, the hearing officer denied petitioner’s request for tuition reimbursement.

        Petitioner contends that the hearing officer erred in finding the Cooke was too restrictive a placement for her son during the 2001-02 school year. She also alleges bias on the part of the hearing officer, because she allegedly assisted the CSE representative in presenting the CSE’s case following a remark by the representative expressing doubt as to the hearing officer’s impartiality. I will first consider petitioner’s claim of bias. During the hearing, the CSE’s representative appeared to challenge the impartiality of the hearing officer. The representative asserted that in his opinion, the district could not get a fair hearing, based upon the representative’s previous experience with the hearing officer (Transcript pp. 11-12). However, neither he nor petitioner’s attorney asked the hearing officer to recuse herself. The hearing officer had previously disclosed at the outset of the hearing that her spouse was employed by the Board of Education, but not by the Community School District responsible for this child’s education (Transcript pp. 3-4).

        Petitioner alleges that once the hearing officer’s impartiality was challenged, she became inappropriately involved with assisting the CSE to put on its case. She specifically objects to the fact that the hearing officer asked the CSE’s designee to call the school and obtain the testimony of a teacher, and later left the record open to allow the school district to present information regarding its recommendation and issued an interim order to that affect. Since neither party submitted any additional material, it is unclear how petitioner was prejudiced by the latter action.

        An impartial hearing officer must avoid giving even the appearance of impropriety (Application of a Child with a Disability, Appeal No. 98-55). However, a hearing officer’s request for more relevant information should not be construed as evidence of partiality. It is a hearing officer’s responsibility to obtain an adequate record to support his or her decision (Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-039). Upon a review of the record, I have not found a basis for concluding that the hearing officer was biased against petitioner, or gave even an appearance of impropriety. Consequently, I find that there is no merit to petitioner’s claim of bias.

        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 Sch. 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]). Since the impartial hearing officer found that the program offered to the student by the school district was not appropriate and the Board of Education has not appealed from that determination, I find that petitioner has satisfied the first criterion for an award of tuition reimbursement.

        The burden of proof shifts to petitioner with regard to the appropriateness of the services provided to her son by Cooke during the 2001-02 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 Board of Educ., Appeal No. 93-34). In order to meet that burden, she must show that the private school offered an educational program which met the student’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 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 was enrolled in a 12:2+2 special education class at Cooke during the 2001-02 school year. As noted above, he was exposed to increased mainstreaming opportunities as the school year progressed (Exhibit X). The child received the related services of counseling, occupational therapy, and speech/language therapy, which were generally provided on a pull-out basis. His teacher at Cooke since September 2000 testified that the child had made progress in all areas, noting that the child’s reading decoding skills had improved significantly (Transcript p. 95).

        At the hearing, the Board of Education did not dispute that the child had made progress at Cooke. Instead, the CSE’s representative asserted that the child’s academic skills were at or above grade level, and that he could function in a large classroom with appropriate support (Transcript p. 15). The hearing officer concluded that the child’s educational needs could be met in a less restrictive setting than at Cooke. While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the placement selected by the parents may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3rd 96 [2d Cir. 2000]).

        Although this child appears to have made significant academic gains at Cooke, it does not necessarily follow that he no longer needs specialized instruction. Respondent’s school psychologist indicated in April 2000 that the child learned in an unusual way and needed a certain kind of specialized instruction (Exhibit 6). The child’s teacher at Cooke testified that the child had difficulty maintaining his focus and was very susceptible to background noise (Transcript p. 91). He also testified that the child continued to be anxious in academic and social matters. The teacher explained that the child had become more aware of his anxiety and he described the techniques used to teach new skills to the child to lessen his anxiety (Transcript pp. 95, 100). He opined that the child’s academic progress would be hindered in a large classroom because the child requires several prompts to remain focused during any given activity (Transcript pp. 112-113). A Cooke administrator acknowledged that the child’s placement at Cooke was in a relatively restricted setting, but asserted that the child still needed that setting before ultimately moving to a less restrictive setting (Transcript p. 88). Upon the record that is before me, I find that petitioner has met her burden of proof with respect to the appropriateness of Cooke’s program for her son during the ten months of the 2001-02 school year.

        In order to be awarded tuition reimbursement, a parent must also show that his or her claim is supported by equitable considerations. There is nothing in the record to suggest that petitioner failed to cooperate with the respondent’s CSE, nor is there any other reason to find that her claim is not supported by equitable considerations. Accordingly, I find that petitioner is entitled to be reimbursed for the cost of her son’s attendance at Cooke from September 2001 through June 2002.

        At the hearing and in this appeal, petitioner maintained that her son required a 12-month placement at Cooke during the 2001-02 school year. The hearing officer found that the child did not require a 12-month placement. A child’s IEP must indicate whether he is eligible for a special service or program on a 12-month basis (8 NYCRR 200.4[d][2][xi]). Eligibility for 12-month services or programs is to be determined by a CSE in accordance with the criteria set forth in 8 NYCRR 200.6(j)(1), which reads in material part as follows:

(j) Twelve-month special service and/or program (1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their needs to prevent substantial regression, if they are:

(v)     Students … who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.

        The term "substantial regression" is defined by the Regulations of the Commissioner of Education to mean:

a student’s inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year (8 NYCRR 200.1 [aaa]).

        At the impartial hearing, a Cooke school psychologist testified that the student could lose ground academically if he were not in a structured setting (Transcript pp. 78, 86). A review of this testimony indicates that it is speculative as to the possibility of regression, and was not based on the specific loss of IEP goals and objectives. The student’s teacher who ran the summer program testified that the student benefited from the 12-month program (Transcript p. 113). He also testified that the student had lost some skill in performing the regrouping operation in math over the summer (Transcript p. 96). Upon review of the record, I find that it does not afford a basis for concluding that the student would substantially regress without a 12-month program.

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 denied petitioner’s claim for tuition reimbursement at Cooke on a 10-month basis during the 2001-02 school year; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son’s tuition on a ten-month basis at Cooke during the 2001-02 school year, upon petitioner’s submission of proof of such payment of such tuition.