04-092

            Petitioner appeals from the decision of an impartial hearing officer which determined that she failed to demonstrate that her son's unilateral placement at the Smith School for the 2004-05 school year was appropriate.  The appeal must be sustained in part.

             At the outset, a procedural matter must be addressed.  Petitioner requests that I consider a report of evaluations of the student conducted, on October 18, 2004, after the close of the impartial hearing (Pet. Ex. AA).  Respondent objects to the submission of this additional evidence (Ans. ¶¶ 42-45, 73, 116).  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020).   While the document was not available at the time of the hearing, it is of little probative value pertaining to the issues on appeal because it has not been subjected to examination at the hearing below (8 NYCRR 200.5 [i][3][xii]).  It is not necessary for my review and, therefore, I will not accept it (Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-031).

            At the time of the hearing, on August 25, 2004, petitioner's son was 16 years old, and had completed the summer school session at the Smith School.  The Smith School 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 having an emotional disturbance (ED) by respondent's Committee on Special Education (CSE) (Dist. Ex. 1).  The student has been diagnosed as having both an Attention Deficit Hyperactivity Disorder (ADHD) and Tourette syndrome (Dist. Exs. 2, 5).  He has a history of hyperactivity, developmental delays, social/emotional and behavioral problems (Parent Ex. J).  The student's classification is not in dispute.

            For the 2004-05 school year, a May 24, 2004 CSE recommended that the student be enrolled in a 12-month, 12:1+1 special class in a specialized school with the related services of individual and group counseling each once per week and group speech-language therapy twice per week (Dist. Ex. 1).  The CSE also recommended special transportation and transition services (id.).  The student's individualized education program (IEP) listed his long-term adult outcomes as:  integrate into the community with minimum support, attend vocational/school program, live independently and be competitively employed (id.).  At the annual review held by the CSE on May 24, 2004, both the student's teacher at the Smith School and his mother reported that the student's performance varied greatly from day to day (Dist. Ex. 2).  His teacher stated that the student struggled due to poor organizational skills and tended to constantly lose or forget things (id.).  She also reported that he required constant support and prompting in order to be prepared for school.  She further indicated that the student's reading and math skills ranged from the fourth grade level to the eighth grade level with his reading skills being stronger than his math skills.  His written expression was reported to be poor and his visual spatial difficulties seemed to be further compromising math and written expression.  The student was described as a guarded youngster who has difficulty with anger management due to his tendency to ruminate on his thoughts combined with Tourette syndrome, which further exacerbates his interpersonal difficulties (id.).

            Despite convening a May 24, 2004 CSE meeting, respondent never offered a placement for petitioner's son for the 2004-05 school year, and the parent did not see a copy of the 2004-05 IEP until shortly before the impartial hearing (Tr. pp. 15-23).    Following numerous unsuccessful attempts to contact respondent's placement officer to ascertain her son's placement for the 2004-05 school year (Tr. p. 97), the parent requested an impartial hearing on July 7, 2004 (Parent Ex. A). By letter dated July 8, 2004, she also informed respondent's CSE Chairperson that the student would again be enrolled at the Smith School for the summer of 2004 and the 2004-05 school year (Parent Ex. K).¹

            The hearing commenced and concluded on August 25, 2004.  During the hearing, the impartial hearing officer concluded that there was no disagreement between the parties that respondent did not offer a placement to petitioner's son and respondent, therefore, could not prove the appropriateness of its recommendation  (Tr. pp. 23, 34, 133).   In his decision dated September 10, 2004, the impartial hearing officer found that respondent did not meet its burden of demonstrating that it offered an appropriate program and that petitioner failed to demonstrate the appropriateness of the unilateral placement (IHO Decision, at p. 9).

            In her hearing request, petitioner asserted that respondent failed to offer an appropriate placement for the 2004-05 school year and that respondent's CSE had failed to meet to discuss the student's placement (Parent Ex. A).  In this appeal, petitioner contends that the impartial hearing officer erred by finding that placement at the Smith School was not appropriate for her son (Pet. ¶¶ 76-80, 81-87).²

            Since neither party appeals from those parts of the impartial hearing officer's decision which 1) found the board of education could not meet its burden of proving that it had offered to provide a free appropriate public education (FAPE) to the student during the 2004-05 school year (see Ans. ¶¶ 95, 111), and 2) awarded tuition reimbursement for the 2004 summer school program, I do not review them (20 U.S.C. § 1415[i][1][A]; N.Y. Educ. Law § 4404[1]; 34 C.F.R. § 300.510; 8 NYCRR 200.5[i][4][ii]).

            The Individuals with Disabilities Education Act (IDEA) "requires that states offer parents of a disabled student a wide array of procedural safeguards designed to help ensure the education of their child" (Polera v. Bd. of Educ., 288 F.3d 478, 482 [2d Cir. 2002]).  One such procedural safeguard is the right to an impartial due process hearing by the state educational agency or by the local educational agency (20 U.S.C. § 1415[f][1]; see also Polera, 288 F.3d at 482; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 68 [2d Cir. 2000]).  In New York, either "[a] parent or a school district may initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a [FAPE] to the child" (8 NYCRR 200.5[i][1]).  At the impartial hearing, the parties "shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing" (8 NYCRR 200.5[i][3][xii]; see also J.D. v. Pawlet, 224 F.3d at 68).

             Although state regulations permit an impartial hearing officer to receive any oral, documentary or tangible evidence while requiring the exclusion of irrelevant, immaterial, unreliable or unduly repetitious evidence (8 NYCRR 200.5[i][3][xii][c]), it is the impartial hearing officer's responsibility to obtain an adequate record to support his or her decision (Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-039).

            The IDEA also ensures that each child with a disability is provided a FAPE (20 U.S.C. § 1400[d][1][A]; 34 C.F.R. § 300.121[a]).  A FAPE consists of special education and related services provided in accordance with an IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13).  A board of education may be required to pay for educational services obtained for a student by his or her parent, if three criteria are met: 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, 370-374 [1985]; see 20 U.S.C. § 1412[a][10][C][ii],[iii],[iv]; 34 C.F.R. § 300.403[c],[d],[e]). Under equitable considerations "[f]actors that should be taken into account include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Burlington, 736 F.2d 733, 801-02 (1st Cir. 1984) aff'd 471 U.S. 359 (1985). This three-pronged test is commonly referred to as the Burlington/Carter test (seeFlorence County Sch. Dist. v. Carter, 510 U.S. 7 [1993]).  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 (Carter, 510 U.S. at 13-14; 34 C.F.R. § 300.403[c]). 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. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).  The parent bears the burden of proving that the services provided to the student by the private school were appropriate (see 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 this burden, the parent must show that the private school provided services that met the student's special education needs (Burlington, 471 U.S. at 370).  An appropriate program is one that is "likely to produce progress, not regression" (Walczak, 142 F.3d at 130 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 (Carter, 510 U.S. at 13; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

             In the instant case the impartial hearing officer erred by not allowing the student’s teacher to testify more fully about the student’s present levels of performance and about whether, despite failing grades, the instructional program at the Smith School was appropriate to meet the student’s special education instructional needs (Tr. pp. 67-69, 73-74).

             The student's teacher at the Smith School testified that she taught petitioner's son in three of his five classes (Tr. p. 41).³  She testified that "[the student] is attentive in class, seems excited to learn, and interested in the material.  He's usually fairly motivated to do work.  The breakdown for [the student] occurs usually with homework.  He is not very consistent in doing it" (Tr. p. 55).  His teacher stated that he is capable of doing assigned coursework (Tr. pp. 57, 71-72, 82). She further testified that the Smith School provided a small class size and one-on-one attention to address his off-task behavior (Tr. p. 61).  The student's teacher also indicated that the student's social/emotional needs were addressed by both individual and group counseling, each provided once per week for 30 minutes (Tr. 63-65). She testified that she observed improvement in the student's management and social/emotional needs (Tr. pp. 66-67).  The record indicates that the student needs constant support in the classroom to be prepared and to remain on task (Dist. Ex. 2) and has a history of social/emotional and behavioral problems (Parent Ex. J).

              The parent's burden at the hearing was to demonstrate that the private educational services she obtained were appropriate to meet her son's needs (Burlington, 471 U.S. at 370). The record reveals that she was not permitted to do so.  A parent is not held to the same standard as the school district when determining the appropriateness of the private school services (Bd. of Educ. v. Schutz, 290 F.3d 476, 484 [2d Cir. 2002] quoting Carter 510 U.S. at 13-14).    The student's teacher was not permitted to testify about whether or not the student's needs in the areas of reading and math had been appropriately addressed during the school year.  The record reveals that the student had failed four of his classes due to his failure to turn in homework (Dist. Ex. 4; Tr. pp. 54-59, 72).  The student's teacher testified that she believed the student's failure to turn in homework may have been attributable to disorganization, lack of focus, or lack of motivation (Tr. pp. 56-57).  The impartial hearing officer found "I can only conclude from the recitation of facts that [the student] in the majority of cases did not do his homework because he did not understand the work or was not capable of doing the work" (IHO Decision, p. 11).  Yet before reaching his conclusion, the impartial hearing officer did not permit petitioner the opportunity to demonstrate that the instruction that was given at the Smith School was appropriate to meet the student’s special education needs given his abilities.

               I find that the impartial hearing officer improperly excluded relevant and material evidence in this matter in violation of state regulation (8 NYCRR 200.5[i][3][xii][c]) and the record, therefore, does not support his determination. This matter must be remanded for a new hearing.

                I note that when a FAPE and unilateral parental placements are at issue, an order by an impartial hearing officer or a State Review Officer for a district to pay tuition costs at an unapproved placement is permissible only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services (20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]; see generally Burlington, 471 U.S. 359; A.A. v. Bd. of Educ., 196 F. Supp.2d 259; Application of the Bd. of Educ., Appeal No. 04-037).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer’s decision is hereby annulled to the extent that it found that petitioner failed to demonstrate that the Smith School was an appropriate program for the 2004-05 school year; and

IT IS FURTHER ORDERED that this matter is hereby remanded for an impartial hearing on the appropriateness of the Smith School program for petitioner’s son for the 2004-05 school year and on whether equitable considerations support a claim for tuition reimbursement; and

IT IS FURTHER ORDERED that, within thirty days from the date of this decision, respondent shall appoint a new impartial hearing officer, consistent with the rotation selection process prescribed in the Regulations of the Commissioner of Education, to conduct a hearing in accordance with this decision.