03-096

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for the cost of their son's tuition at the Robert Louis Stevenson School (RLS) for the 2002-03 school year. The appeal must be dismissed.

        Initially, I must address a procedural matter. The hearing which resulted in this appeal concluded on June 9, 2003. On August 21, 2003, the hearing officer rendered his decision finding that petitioners had failed to prove the appropriateness of their unilateral placement. Petitioners served their notice of intention to seek review upon respondent on September 19, 2003. The notice with petition however, was served upon respondent 70 days after the date of the decision on October 30, 2003.

        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 within 30 days after receipt of the decision. The petition must then be served at least ten days after the notice of intention is served, but no later than 40 days after receipt of the decision. An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 03-005; 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). Petitioners herein request that I excuse their delay. I find that petitioners have shown good cause set forth in their petition for their delay and I will exercise my discretion and deem this appeal timely (Application of a Child with a Disability, Appeal No. 02-102).

        At the time of the hearing, petitioners' son was 14 years old, and was in the ninth grade at RLS. RLS is a nonpublic school, which has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The student has been classified as other health impaired by respondent's Committee on Special Education (CSE). The student has been diagnosed as having both an attention deficit hyperactivity disorder (ADHD) and a learning disability (Exhibits A, B, C, T-1, 7, 10). He has a history of attentional, organizational and behavioral difficulties (Exhibits C, T-1, 7). The student's classification is not in dispute.

        For the 2002-03 school year, the CSE recommended that the student be enrolled in regular education classes with resource room for one class period five days per week and workshop for one class period, two to three times per week (Exhibits A, 10). Respondent's CSE also recommended that the student receive copies of class notes, (but be required to take some notes), a seat near the teacher and frequent cueing to keep him on task (Exhibits A, 10). The student's individualized education program (IEP) also provides that the student be permitted to practice assigned homework in class and the use of a calculator (Exhibits A, 10). The IEP further provides the following: testing modifications which include a separate location with minimal distractions; double the allowed time; that directions be read and explained to the student; and use of a calculator (Exhibits A, 10).

        Petitioners did not accept the CSE's recommended educational program. By letter dated October 31, 2002, they informed respondent's CSE chairperson that the student would be enrolled in RLS for the 2002-03 school year, and requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement. The hearing commenced on February 11, 2003, and concluded on June 9, 2003. In a decision dated August 21, 2003, the impartial hearing officer found that petitioners failed to demonstrate the appropriateness of their unilateral placement. I agree.

        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 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 [2d 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. 02-092). At the hearing, respondent's attorney conceded that the board of education could not prove the appropriateness of its recommended program (Transcript p. 128). As a result of respondent's concession, testimony was taken relative to the second and third prongs of the Burlington/Carter test.

        In their hearing request, petitioners asserted that the educational program recommended by respondent's CSE was inappropriate because their son required a small therapeutic educational environment in order to benefit from instruction (Exhibit 2). In this appeal, petitioners contend that the hearing officer erred by finding RLS was not an appropriate placement for their son (Petition ¶ 114). Petitioners further contend that the hearing officer failed to correctly apply the Rowley "reasonably calculated to enable [the student] to receive educational benefits" standard (Petition ¶ 115).

        Since respondent conceded that it has not met its burden of proving that it had offered to provide a free appropriate public education (FAPE) to the student during the 2002-03 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by RLS during that school year were appropriate (Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school provided services that met the student's special education needs (Burlington, 471 U.S. 359, 370). An appropriate program is one that is "likely to produce progress, not regression" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 [5th Cir. 1997], cert. denied, 522 U.S. 1047 [1998]). The private school need not employ certified special education teachers or have its own IEP for the student (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

        The record shows that during the 2002-03 school year, the student's special education needs related to processing of visual material, comprehension of linguistic concepts, inferential comprehension and sustaining attention (Exhibits A, C, 7, 10). A neuropsychological evaluation conducted in April 2002 revealed that the student exhibited high average verbal reasoning skills, average nonverbal reasoning skills and weaknesses in silent reading comprehension, mathematics and written language (Exhibits C, 7). The evaluator interviewed respondent's school principal, who described the student as "an intellectually capable boy whose behavioral difficulties interfere with his functioning at school" (Exhibits C, 7). Respondent's school principal further reported that the student was reluctant to complete assignments in class, frequently got "into trouble at school," and seemed relatively impervious to consequences such as detention or in-school suspension (Exhibits C, 7). A supervising psychologist from RLS (RLS psychologist) described the school as a therapeutic program designed to help students overcome their disabilities (Transcript pp. 696-97). The RLS psychologist further testified that the RLS faculty works as a team (Transcript p. 697). Each student is assigned an adviser who is responsible for understanding all of the student's needs (Transcript p. 698). The RLS psychologist also testified that RLS classes are based on skill levels rather than designated by grade (Transcript p. 700). Students are placed in classrooms according to their skill levels and needs (Transcript p. 700). Students advance through an earned credit system and receive a New York State high school diploma upon graduation (Transcript pp. 701, 703, 704-05, 706-08).

        The RLS psychologist testified that petitioners' son found it very difficult to attend, focus and control his impulses (Transcript p. 712). She reported that the student frequently spoke out of turn and was disruptive in class (Transcript p. 712). The RLS psychologist further reported that the student's disruptiveness, impulsivity and poor judgment interfered with his ability to focus on class work and led to behavioral problems in and out of the classroom (Transcript 713-14). She testified that petitioners' son had difficulties throughout the year and also indicated that petitioners had not informed RLS of the degree of behavioral problems exhibited by their son prior to his placement at RLS (Transcript p. 715). The student had been presented by his parents prior to his enrollment at RLS as having "learning difficulties" (Transcript p. 715). The RLS psychologist testified that the student made progress in one area: understanding and accepting help from adults (Transcript p. 716). She also testified that petitioners' son was sent to the office due to disciplinary problems on a daily basis (Transcript pp. 733-35, 973-76). During the second quarter, petitioners' son received no credit for three of his six classes (Transcript p. 798). According to his third-quarter reports, the student was making unsatisfactory academic progress in all of his classes, his behavior was categorized as frequently inattentive and disruptive, and he had accumulated too many absences to earn credit (Exhibits T, W; Transcript pp. 785, 790-94, 801-02). The RLS psychologist further testified that the student's behaviors had not improved during the school year, he made no academic progress and that RLS staff recommended that the student not return for the 2003-04 school year (Transcript pp. 976, 983, 996).

        Based upon the foregoing, I agree with the impartial hearing officer and find that petitioners have failed to prove the appropriateness of their unilateral placement. The record indicates that the student has not made academic progress, nor has his behavior improved while attending RLS (see Walczak, 142 F.3d at 130). I further find petitioners' contention that the hearing officer failed to correctly apply the Rowley "reasonably calculated to enable [the student] to receive educational benefits" standard without merit.

THE APPEAL IS DISMISSED.