03-066

    Petitioners appeal from an impartial hearing officer's decision that denied their request for reimbursement of their child's tuition at The Hyde School (Hyde) for the 2002-03 school year. Respondent cross-appeals from the impartial hearing officer's determination that its Committee on Special Education (CSE) was required to conduct an annual review even though petitioners allegedly intended to withdraw their son from the CSE review process. The appeal must be dismissed. The cross-appeal must be dismissed.

        The student was 16 years old at the time of the hearing. He is classified other health impaired (OHI), and he attends Hyde (Exhibits D-1, A-2). Hyde is a private, residential school that the State Education Department has not approved as a school with which school districts may contract to serve students with disabilities.

        Petitioners' son was first identified as needing special education services in second grade when he exhibited difficulties with reading, writing and organization (Transcript pp. 112-14). During second grade, the student entered the Steven Gaynor School (Gaynor), a private school for students with special needs (Transcript p. 113). He remained at Gaynor through sixth grade. In seventh grade, the student entered York Preparatory School (York), a school for mainstream students (Transcript p. 114). During seventh grade, the student began to experience behavioral difficulties in addition to his problems with reading, writing, and organization (Transcript p. 114). In October 2001, the CSE contacted petitioners to request their consent for an observation of their child and any evaluations deemed necessary (Exhibit E-1). The student's mother granted her consent (Exhibit 4). Although the mother granted consent, the father later testified that he and his wife believed that testing would be too stressful for their son (Transcript p. 119). The student did not arrive for an evaluation scheduled on January 9, 2002 (Transcript pp. 22, 23). The mother cancelled another evaluation that was scheduled for March 5, 2002 (Transcript p. 25). A representative of the district asked the mother to send a letter requesting that the district "close the case" (Transcript p. 26). Petitioners never sent such a letter, and the CSE did not create an individualized education program (IEP) for the student for the 2002-03 school year. In November 2002, the student was asked to leave York because of academic difficulties (Transcript p. 116). Petitioners then placed their son at Hyde (Transcript p. 121). On February 3, 2003, petitioners requested an impartial hearing seeking reimbursement of their son's tuition at Hyde for the 2002-03 school year (Exhibit A-1).

        The hearing was held on March 10 and April 10, 2003. The hearing officer granted the parties' request for time to submit briefs. Upon agreement of petitioners, the hearing officer granted the district two extensions of time for submission of a memorandum. The hearing officer issued his decision on June 5, 2003. He determined that the district had not met its burden of offering an appropriate program to petitioners' son. The hearing officer found that, when it became apparent petitioners were not going to consent to the reevaluation of their son, the CSE should have conducted its annual review, examined all current data, and determined if additional assessments were necessary. The hearing officer determined that, if the CSE then concluded that additional assessments were needed, the district should have requested an impartial hearing. According to the hearing officer, if petitioners did not comply with a hearing officer's order for the further evaluation, petitioners would then have no claim for reimbursement. The hearing officer found that the district did not meet its burden of proving that it offered an appropriate program because the CSE failed to convene to attempt to develop an appropriate IEP. Finally, the hearing officer found that Hyde was not an appropriate placement because it was an overly restrictive placement, and he denied petitioners' request for tuition reimbursement.

        On July 3, 2003, petitioners served a Notice of Intention to Seek Review. Petitioners' attorney then contacted the Office of State Review (OSR) on July 8, 2003 and again on July 13, 2003 to request an extension of time to serve the petition. In correspondence with the OSR, petitioners' attorney indicated that petitioners received the hearing officer's decision on June 10, 2003. In a letter dated July 14, 2003 from the OSR, petitioners were informed that a State Review Officer has the discretion to excuse untimely appeals for good cause. The letter from the OSR indicated that the petition should include the reason for failure to commence a timely appeal.

        On August 13, 2003, petitioners filed their appeal asserting that Hyde offered an appropriate program in the least restrictive setting to meet the student's needs. Petitioners did not include a reason for their failure to commence a timely appeal. On October 10, 2003, respondent submitted an answer and a cross-appeal, asserting that the hearing officer erred in finding that the CSE was obligated to conduct an annual review. Petitioners replied to the cross-appeal on October 20, 2003. In the cross-appeal, respondent asserts that the hearing officer erred in finding that the CSE was obligated to conduct an annual review, that a formally constituted CSE was obligated to consider the necessity for new evaluations, that the CSE was obligated to seek consent for new evaluations, and that the CSE was obligated to obtain consent to evaluate. On October 22, 2003, respondent submitted an amended answer and cross-appeal, explaining that an incorrect version of the cross-appeal had been originally submitted.

        Petitioners object to respondent's October 22, 2003 submission of an amended answer and cross-appeal. Petitioners argue that respondent already received one extension of time in which to answer, and petitioners already submitted a reply in response. Having considered the matter, I will not accept respondent's amended answer and cross-appeal because it would be prejudicial to petitioners given that petitioners previously submitted a reply.

        The hearing officer's decision was dated June 5, 2003 and received by petitioners on June 10, 2003. Petitioners served the petition on respondent on August 13, 2003. 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 disputes that arise between parents and school districts, so that children will receive appropriate special education services in a timely manner. Section 279.2(b) of the Regulations of the Commissioner of Education requires that the petition in an appeal from an impartial hearing officer's decision must be served on the board of education, district clerk, or chief school officer within 40 days after receipt of the decision (Application of a Child with a Disability, Appeal No. 02-106). An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ of the Wappingers Cent. Sch. Dist., Appeal No. 91-35), and the reasons for the delay are to be set forth in the petition (8 NYCRR 275.6, 279.1[a]). Petitioners offer no explanation in their petition for their delay in commencing their appeal. Therefore, I have no basis upon which to excuse their delay, and I find that the appeal is untimely and must be dismissed (Application of a Child with a Disability, Appeal No. 03-005; Application of a Child with a Disability, Appeal No. 02-096; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 00-050; Application of a Child with a Disability, Appeal No. 99-039).

        Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits because I find that the record supports the hearing officer's determination. The hearing officer concluded that the district did not offer petitioners' son an appropriate education. He further concluded that petitioners were not entitled to reimbursement of their child's tuition because they placed their child in an unnecessarily restrictive placement. I agree. The purpose behind the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see, Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; 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 Educ. Dept. Rep. 487 [1983]). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show that (1) it complied with the procedural requirements set forth in the IDEA, and (2) the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term objectives or benchmarks related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        A CSE is required to review the IEP of each student with a disability at least once every year (8 NYCRR 200.4[f]). A CSE is also required to arrange for an appropriate reevaluation of each student with a disability if conditions warrant, but at least every three years (8 NYCRR 200.4[b][4]). In determining what additional data are needed, the CSE, and other qualified professionals as appropriate, must review existing evaluation data (8 NYCRR 200.4[b][5][i]). On the basis of that review, and input from the parents, the group must determine what additional evaluation data, if any, are needed (8 NYCRR 200.4[b][5][ii]). The group may conduct its review without a meeting (8 NYCRR 200.4[b][5][i]). In the instant case, the most recent evaluations were less than three years old (Exhibit D), and the parents had not been asked for their input as to the need for additional data. Nevertheless, a representative of the district contacted petitioners to obtain their consent for a reevaluation (Transcript p. 21). As a general rule, prior to conducting a reevaluation, parental consent is not required before reviewing existing data (8 NYCRR 200.5[b][1][i]). When a CSE conducts a reevaluation beyond reviewing existing data, it must obtain written consent from a parent prior to conducting additional assessments as part of the reevaluation, unless it has taken reasonable steps to obtain consent and the parents failed to respond (8 NYCRR 200.5[b][1][i]). If the parents of a student with a disability refuse to consent to a reevaluation, the school district may continue to pursue the additional assessments or evaluations through the impartial hearing process (8 NYCRR 200.5[b][2]). Here, the district did obtain written consent for additional assessments; however, petitioners refused to bring their child to the scheduled assessment appointments (Transcript pp. 22-25, 119). The district did not pursue an impartial hearing, nor did the CSE conduct an annual review. As noted previously, the most recent evaluations were less than three years old. Although the district clearly preferred new evaluations, the CSE should have convened to develop an IEP if the existing evaluations were found to be sufficient to determine the student's current needs. In the alternative, the district should have requested a hearing to obtain permission to conduct updated assessments. Given that the district did not create a new IEP for the 2002-03 school year or seek permission for additional assessments through the impartial hearing process, I find that the district did not meet its burden of offering the student a FAPE.

        The student's parents bear the burden of proof with regard to the appropriateness of the educational program for which they seek reimbursement during the 2002-03 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private placement offered an educational program that met their child's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; 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. 02-027; Application of a Child with a Disability, Appeal No. 94-20). Further, while parents are not held as strictly to the LRE standard as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). The requirement of instruction in the LRE must, however, be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).

        The evidence shows that the student engaged in drug use outside of school and had family problems (Transcript pp. 89-90, 122). The father testified that, because of these problems, he and his wife felt that their son should attend school outside of New York City (Transcript p. 12). A psychiatrist who evaluated the student testified that New York City was "the wrong place for this child" because his performance in school was being affected by his inappropriate activity after school (Transcript pp. 189-190). A review of the psychiatric testimony indicates that the psychiatrist recommended a residential placement primarily because of the student's behavior that took place outside of school. The psychiatrist did not indicate why a residential placement was necessary for the student to benefit from special education. In fact, the student did not receive any special education services at Hyde during the fall term (Transcript pp. 76, 89).

        If placement in a public or private residential program is necessary to provide special education and related services to a student with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child (34 C.F.R. § 300.302). A residential placement is not appropriate if it is merely supportive of a disabled student's education (See, Clovis Unified Sch. Dist. v. California Office of Admin. Hearings, 903 F.2d 635 [9th Cir. 1990]). Here, the record does not indicate that the student needed a residential placement in order to receive educational benefit. Moreover, at the time of the hearing, the student was not receiving any special education services at Hyde. A residential placement is one of the most restrictive placements for a student, and is appropriate under the law only when it is required in order for a student to benefit from his or her educational program (Mrs. B. v. Milford Bd. of Educ., 103 F. 3d 1114, 1122 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 95-33). I find that Hyde was unnecessarily restrictive and petitioners did not meet their burden of proving that it was an appropriate placement. I need not address equitable considerations.

        Because I find that petitioners did not timely file their appeal, it is dismissed. Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits because petitioners did not meet their burden of proving the appropriateness of the private placement.

        Respondent's cross-appeal is without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.