02-102

         Petitioner appeals from an impartial hearing officer's decision that denied her request to be reimbursed for the cost of her daughter's tuition at the Prospect Park Yeshiva (Prospect Park) for the 2001-02 school year. The appeal must be sustained in part.

        Petitioner's daughter was eight years old at the time of the hearing, classified by respondent's Committee on Special Education (CSE) as emotionally disturbed (ED) (Exhibit 16), and attending first grade at Prospect Park, where she was unilaterally placed by her parent for the 2001-02 school year. Prospect Park is a private school that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities.

        Petitioner's daughter was referred to the CSE in March 1997, at which time she was classified as a preschool child with a disability (Transcript p. 9). The Committee on Preschool Special Education (CPSE) recommended that the child receive two hours of special education itinerant teacher (SEIT) services, occupational therapy, and speech-language services (Transcript p. 9). After aging out of preschool and a CSE review in May 1999, the CSE classified the child as speech impaired and recommended that she attend a specialized instructional environment VII (SIE VII) program where she would receive speech therapy, occupational therapy, and counseling (Transcript p. 10). Petitioner rejected the recommendation and unilaterally placed her daughter in the Yeshiva Academy (Transcript p. 10). At an annual CSE review conducted in June 2000, the CSE again recommended the SIE VII program (Transcript p. 11). Petitioner again rejected the CSE's recommendation and unilaterally placed her child at Prospect Park (Transcript p. 11).

        At the child's June 2001 annual review, the CSE recommended the child attend a special class in a specialized school with a student to staff ratio of 8:1+1, continue to receive the same level of speech and counseling services, and have her occupational therapy services increased to two hours per week for the 2001-02 school year (Transcript p. 11). In August 2001, the petitioner requested that respondent's CSE re-evaluate petitioner's child, and new social, psychological, educational, psychiatric, and speech-language evaluations where completed in November 2001 (Transcript p. 12; Exhibits 1-5). The CSE held another meeting on December 20, 2001, at which time it classified the student as ED and recommended that the child attend a special class in a special in a specialized school with a student to staff ratio 8:1+1. The committee also recommended two 30-minute sessions of group speech-language therapy per week, two 30-minute sessions of individual speech-language therapy per week, 30 minutes of group counseling therapy per week, 30 minutes of individual counseling per week, and two 60-minute individual occupational therapy sessions per week (Exhibit 16).

        By letter dated January 23, 2002, petitioner rejected the recommendation and initiated a due process hearing, requesting tuition reimbursement for the 2001-02 school year at Prospect Park (Exhibit A). The hearing was conducted on June 11, 2002. In a decision dated August 22, 2002, the hearing officer found that respondent offered an appropriate educational program to the child and denied tuition reimbursement.

        Petitioner contends that the hearing officer erred in finding that respondent has met its burden of demonstrating that the recommended program was appropriate for her daughter. Among other allegations, petitioner contends that the child's goals and objectives were incomplete on the individualized education program (IEP). Petitioner seeks reimbursement for the cost of her daughter's tuition at the private school during the 2001-02 school year.

        I will address the procedural issues first. On October 29, 2002 petitioner served a notice of intention to seek review on respondent; the petition, which was verified on October 31, 2001, was apparently served on respondent November 7, 2002. Petitioner did not allege good cause in her petition for her delay of waiting over two months from the date of the hearing officer's decision to serve the petition on respondent.

        Section 279.2(b) of the Regulations of the Commissioner of Education provides that the notice of intention to seek review from an impartial hearing officer's decision must be served on the board of education, district clerk, or chief school officer within 30 days after receipt of the decision. The petition must be served at least 10 days after the notice of intention is served, but no later than 40 days after receipt of the decision.

         Article 89 of the Education Law and its federal counterpart, the Individuals with Disabilities Education Act (IDEA), provide a due process mechanism to promptly resolve the disputes that arise between parents and school districts, so that children will receive appropriate special education services. An untimely petition may be excused for good cause shown, and the reasons for the delay are to be set forth in the petition (8 NYCRR 275.16, 279.1[a]).

        In the instant case, although the record does not reveal when petitioner received the decision, petitioner served respondent with a notice of intention to seek review 68 days from the date of the decision. The petition in this appeal was not served upon respondent until 77 days after the date of the decision. In this case, I have no way of knowing when petitioner received the hearing officer's decision. If I were to assume the notice of intent to seek review was timely served, I would conclude that the petition was also timely served. However, to the extent that service of the notice of intention to seek review and the petition may have been untimely, I will exercise my discretion and excuse the delay.

        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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]). The parent's failure to select a program 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]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2nd Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-018).

        To meet its burden of showing that it has offered to a provide a free appropriate public education (FAPE) to a student, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206-07 [1982]).

        An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-019). An IEP must contain, at a minimum, a statement of the student's present levels of performance, measurable annual goals and objectives related to the student's needs, and a statement of the special education and related services to be provided (34 C.F.R. §§ 300.347[a][1], [2], [3]).

        A CSE must adequately evaluate a child to identify the nature and extent of the child’s disability, so that it can ascertain how the disability affects the child’s involvement and progress in the regular education curriculum and prepare a program that will address the child’s educational needs (Application of a Child with a Disability, Appeal No. 01-028). I note that the social history update, psychological, educational, psychiatric, and speech-language evaluations were made solely on perceptions of the child being observed on September 13, 2001 (Exhibits 1-5). Respondent's school psychologist testified that on the day of evaluations the child was not able to be fully tested for the psychological evaluation because the evaluation is quite structured (Transcript p. 22) and the child's behavior escalated to a tantrum making it difficult to do evaluations (Exhibit 2). The child was asked to return for further evaluations, but she was not re-evaluated (Transcript pp. 22-23). The CSE should have re-evaluated the child more thoroughly. I find that the CSE has not adequately evaluated the child to ascertain the nature and full extent of her disability.

        I further find that the IEP contains annual goals and short-term objectives that are not measurable (34 C.F.R. § 300.347[a][2]). For example, the child has an annual goal of expanding her vocabulary skills (Exhibit 16). However, her short-term objective of demonstrating comprehension with labeling pictures is not measurable (Exhibit 16). I also find that the child's behavior intervention plan is too generic. For example, the IEP does not contain information in the strategies section on how to elicit positive behavior in the classroom. Rather, it simply states that techniques should be used to elicit positive behavior in class (Exhibit 16). I find that the child's IEP does not address the child's needs in accordance with the Regulations of the Department of Education (See 34 C.F.R. §§ 300.347[a][1], [2], [3]).

        Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the child during the 2001-02 school year, I must now consider whether petitioner has met her burden of proving that the services provided to the child by Prospect Park during that school year were appropriate (Application of a Child with a Disability, Appeal No. 02-027; Application of the Bd. of Educ., Appeal No. 02-024). In order to meet that burden, petitioner must show that Prospect Park offered an educational program that met her daughter's educational needs (Burlington, 471 U.S. at 370; Application of the Bd. of Educ., Appeal No. 02-036). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of the Bd. of Educ., Appeal No. 02-036; Application of a Child with a Disability, Appeal No. 02-027).

        Prospect Park's director testified that the child is learning to identify the time, learning math skills by identifying pennies and nickels, learning language skills with blending consonant-vowel-consonant words, learning to identify all the letters in the alphabet, and learning writing skills by writing letters and numbers (Transcript p. 78). Petitioner's daughter's primary need is to develop language skills (Transcript pp. 70, 82). Prospect Park's director indicated that there is a relationship between the child's primary language/communication needs, her frustration as a result of these needs, and her subsequent behavioral outbursts (Transcript pp. 80-83).

        Prospect Park did not offer an appropriate program that met the child's needs in developing language skills. The educational evaluation revealed that petitioner's daughter exhibited delays in development in her reading, writing, and copying skills (Exhibit 3). The private school program director testified that it would not be best to introduce a second language with a second alphabet to a child with language difficulties (Transcript p. 87). In addition, respondent's speech-language therapist testified that given petitioner's daughter's degree of language delay it would be confusing to introduce a second language (Transcript p. 45). In this case, the time frame used for the second language instruction could be better utilized to address this child's unique needs. The record is also replete with comments concluding that it would be better to engage the child during the early portion of the day with language instruction. Since this is a child that has language delays, and it would be better not to introduce a second language to this child based upon these language delays, I find that Prospect Park has not offered an educational program that met petitioner's daughter's educational needs. Upon the record that is before me, I find that petitioner has failed to meet her burden of proof about the appropriateness of the services that she obtained for her daughter at Prospect Park during the 2001-02 school year. Since she has not prevailed with respect to the second of the three criteria necessary for an award of tuition reimbursement, I find that petitioner is not entitled to such relief.

        I have considered petitioner's other claims and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that it found that respondent had demonstrated the appropriateness of its recommended program.

IT IS FURTHER ORDERED that within 30 days from the date of this decision, the CSE shall re-evaluate petitioner's daughter and prepare a new IEP for the 2003-04 for the child in accordance with the tenor of this decision, unless respondent has already done so.