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Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York


Advocates for Children of New York, Inc., attorneys for petitioner, Randee J. Waldman, Esq., of counsel


        Petitioner appeals from an impartial hearing officer's decision which denied petitioner's request for private school placement for the 2002-03 school year at Blue Feather Elementary School (Blue Feather), a private school in Brooklyn, which petitioner's daughter attended during the 2001-02 school year pursuant to a "Nickerson" letter. The appeal must be sustained.

        Before reaching the merits of this appeal, I must first address two procedural issues. First, respondent has not answered the petition herein. Nonetheless, 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]) based solely on the record (8 NYCRR 279.3), notwithstanding respondent's failure to answer (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]).

        Second, petitioner claims prejudice based upon the fact that the transcript of the hearing failed to include the testimony on July 11, 2002 of petitioner and her witnesses, including a teacher at the student's private school placement. It appears that the hearing officer did not have the benefit of these transcript pages, as his decision fails to include page citations from this portion of the proceeding, and because these transcript pages were neither initially provided to me with the record nor provided following a subsequent request. Also, one of respondent's witnesses provided her testimony at the hearing over the telephone. A significant portion of that witness' testimony is recorded in the printed transcript as unintelligible (Transcript July 11, 2002, pp. 9-33). I note, however, that the hearing officer was present during the testimony of petitioner and her witnesses, and presumably understood the telephone testimony on July 11, 2002.

        Respondent failed to maintain a verbatim record of the hearing, as it is required to do by Federal and State regulations (34 CFR 300.508 [a][4]; 8 NYCRR 200.5 [c][2]). An accurate and complete record is essential for review of a hearing officer's determination. The failure to maintain an accurate and complete record may constitute a basis for annulling a hearing officer's determination (Application of a Handicapped Child, 21 Ed. Dept. Rep. 617). It is the responsibility of the hearing officer to conduct the hearing in a manner which will allow an accurate record of the hearing to be prepared (Application of a Child with a Handicapping Condition, Appeal No. 92-38). However, I find that the record, as is, does provide an adequate basis for purposes of my review of the issues raised by petitioner (Application of a Child with a Handicapping Condition, Appeal No. 91-33).

        Petitioner's daughter, who was six years old when the hearing began, is autistic. Her classification is not in dispute. The child's autism is highlighted by severe tantrums and other behavioral problems. She has a severe communication disorder that is characterized by diminished receptive and expressive capacity. In addition, she has severe attending difficulties. Although her primary mode of communication is speech, she is echolalic and can be difficult to understand. Upon entering the private school, she was reportedly unintelligible (Exhibit 8). She receives occupational therapy (OT) and physical therapy (PT) at the private school to improve her fine and gross motor skills, sensory integration, frustration tolerance, and balance (Exhibits 7, 9).

        Respondent's Committee on Special Education (CSE) developed a proposed individualized education program (IEP) at its April 9, 2002 meeting. It recommended placement in a public school special class with a 6:1+1 staff ratio and continued speech therapy, OT and PT (Exhibit 11). The IEP indicates that the student requires a very highly structured environment to address her temper tantrums, and that her teachers would be using the applied behavioral analysis (ABA) teaching methodology. The child's mother sought an impartial hearing to continue respondent's funding of her daughter's schooling at Blue Feather.

        A hearing was held in this matter on June 20 and July 11, 2002. In a decision dated August 12, 2002, the impartial hearing officer determined that respondent's proposed program for 2002-03, as described in the IEP, was suitable and appropriate for the child's educational needs. Since the impartial hearing officer found that respondent offered the child an appropriate program for the school year in question, he did not provide an opinion as to the appropriateness of the Blue Feather program, or make a determination as to whether the equities support reimbursement.

        Petitioner asserts that the program offered by respondent is not appropriate, on the grounds that the proposed staffing ratio is insufficient, that the child requires more ABA than is proposed by respondent, and that the child will not be functionally grouped with other students in her class.

        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 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; 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 (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        I agree with petitioner that the program set forth in the 2002-03 IEP was not appropriate. The staffing ratio of the proposed 6:1+1 program is not sufficient for this student. There was ample evidence of her need for a 1:1 aide, to address her acting out behavior, lack of focus, and need to be re-directed. Respondent's psychologist and educational evaluator who interviewed the child (Exhibit 5) indicated that the child "was extremely fidgety and would not stay within any specific place…Even when her mom held her on her lap, [she] struggled and tried to get away. [She] began spitting and she was laughing inappropriately. She got up from the chair and began running around the room. She touched all the items, even the evaluator's bracelets. [She] was coaxed back to the chair with this evaluator sitting very close by…, wriggling her way to the floor, under the table, and ran around again. She was laughing quite loudly and inappropriately. She was very distractible and hyperactive. She required a great deal of redirection and refocusing. [She] took a pencil bit off the tip spit it on the floor. [She] enjoyed jumping up and down and holding hands with the evaluator" (Exhibit 5). No formal testing was even attempted by respondent's educational evaluator due to the student's distractibility. The IEP in dispute does not provide for a 1:1 aide or adequately address her behavioral needs.

        I further find that the amount of ABA instruction, approximately two hours per day in a group, offered by respondent's CSE is inadequate for this child. By contrast, the private school provided her with two hours of 1:1 ABA instruction and three hours of 2:1 ABA instruction per day. In addition, the IEP made no provision for parent counseling and training, as defined in 8 NYCRR §200.1(kk). Such counseling and training are required for all educational programs for students with autism, pursuant to regulations of the Commissioner (8 NYCRR §200.13[d]). Respondent's failure to make provision for such counseling and training, in conjunction with the other inadequacies, rendered the program inadequate.

        Even though the record was incomplete, it contained sufficient information for me to conclude that the Blue Feather program which petitioner chose for her child was appropriate. The existing transcript is replete with detailed descriptions of the private school's 8:1+4 program. Aides who are trained in ABA interact with the child in 20 to 30-minute sessions so that no one aide becomes too exhausted. The record indicates that Blue Feather's method for keeping the child focused enabled her to make some progress.

        Testimony indicated that the child progressed from exhibiting severe tantrums to working well in the classroom (Transcript p. 19). Blue Feather's methods of instruction allow the child to generalize skills (Transcript pp. 19-20). Testimony further indicated that staff have spent a great deal of time working with the child's mother so that she is now able to use the ABA techniques with her daughter on a consistent basis (Transcript pp. 20-21). Despite the hearing officer's finding that the district's recommended program was appropriate, he found that Blue Feather had been doing a most credible job with the student and he did not see it as an inappropriate placement. I therefore find that the parent met her burden of proving that the Blue Feather program was appropriate for her child.

        There is no evidence in the record nor did the hearing officer find that petitioner failed to cooperate with the CSE. I find no other reason to conclude that the equities do not support petitioner's request. For all of the reasons stated above, I am sustaining the appeal.


IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her daughter's tuition at Blue Feather Elementary School during the 2002-03 school year, upon petitioner's submission to respondent of proof of such payment.