96-089

      Petitioners appeal from the decision of an impartial hearing officer which denied their claim for tuition reimbursement for the private school in which they had unilaterally enrolled their son for the period from January through June, 1994.¹ Although the hearing officer found that the individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for the boy was inadequate, he denied petitioners' tuition claim on the ground that they had failed to demonstrate that the private school in which they had enrolled their son had addressed the boy's special education needs, and that it was not the least restrictive environment for him. The hearing officer also found that equitable considerations did not support petitioners' claim for tuition reimbursement because of their alleged failure to cooperate with respondent's CSE. The appeal must be dismissed.

        Petitioners' son, who is seventeen years old, has been classified as learning disabled. His classification is not disputed. The boy's speech was reportedly delayed when he was a young child. While attending private school for the early elementary school grades, he was reportedly disorganized and distractible. The boy received psychotherapy to help cope with family difficulties, until June, 1987. In September, 1987, he entered the third grade in the Levittown Public Schools, where he began to receive daily remedial reading and remedial mathematics instruction. The boy and his family moved to Manhasset in March, 1988.

        In June, 1988, the child was evaluated at petitioner's request, by a neurologist at the North Shore University Hospital. The neurologist diagnosed the child as having a minimal cerebral dysfunction, and an attention deficit disorder (ADD). She suggested that the boy's physician consider the use of the drug Ritalin to moderate the effects of the child's ADD. A neuropsychological evaluation was conducted at the same facility in July, 1988. The child's evaluators reported that he had achieved a verbal IQ score of 112, a performance IQ score of 100, and a full scale IQ score of 106. Although he evidenced above average skill with the conceptual aspects of language, the boy manifested difficulty with certain formulation and retrieval skills. His ability to discriminate auditorally against background noise was reported to be poor, and his auditory linguistic memory skills were quite variable. The boy's visual sequential memory for symbols was well below average. His fine motor skills were reported to be in the deficit range. On the Woodcock Reading Mastery Tests, the child achieved percentile scores of 75 for word identification, 86 for word attack, and 50 for passage comprehension. His percentile scores on the Gray Oral Reading Test - Revised were 37 for comprehension and 25 for passage. The evaluators reported that the boy tended to read slowly, and omitted words, phrases, and word endings. The boy's performance in mathematics and spelling was reported to be satisfactory.

        In August, 1988, petitioner referred her son to respondent's CSE, which recommended that the boy be classified as learning disabled. The record does not reveal the nature or extent of the special education services which respondent provided to the boy during the remainder of his elementary school years. A speech/language pathologist who had provided the child with speech/language therapy for two years reported in February, 1990 that the child had not had a great deal of success in school, and that the child hadn't accepted the fact that he had a disability. She opined that the boy's primary difficulty with respect to comprehending language, i.e., his receptive language skill, was his impulsivity. The speech/language pathologist reported that the child's expressive language skill was hampered by deficits in his ability to retrieve words and to formulate sentences. An educational evaluator reported in March, 1990 that the boy's auditory perceptual skills were more than two years below age expectations, but his reading, spelling, and mathematics skills were at or above grade level.

        A school psychologist who had evaluated the boy in February, 1990 reported that the child's overall cognitive functioning was at the 62nd percentile on the Woodcock-Johnson Psycho-Educational Battery, but that he had manifested weaknesses on tasks which required visual to auditory integration, and that his vocabulary and verbal retrieval skills were at the third grade level (two years below his actual grade). Although the boy's conceptual skills were strong, he nevertheless manifested what the school psychologist described as an erratic learning profile, which she attributed to the boy's integration, semantic and graphomotor difficulties, as well as his impulsivity, erratic attention, and emotional problems.

        During the 1991-92 school year, the child was enrolled in the seventh grade. Early in that school year, the child's neurologist reported that the child had shown no clear improvement in controlling the effects of his ADD, despite having been administered Ritalin. The CSE chairperson testified at the hearing that petitioners' son had been enrolled in special education classes for instruction in all of his academic subjects, and that he had been relatively successful that year. There is no documentary evidence of the boy's achievement during the 1991-92 school year. His special education teacher reported that the boy appeared to be a visual learner, and that he had poor organizational skills.

        For the eighth grade during the 1992-93 school year, the boy was initially enrolled in regular education mathematics and science courses, and in special education classes for English and social studies. His IEP indicated that he was to have the assistance of an aide in each of his two mainstreamed subjects. Although he allegedly received resource room services, the boy's IEP (Exhibit CD) did not specify the amount of those services. He was also to be individually counseled by a school psychologist once per week. In November, 1992, the boy's IEP was amended to provide that he would no longer be enrolled in a regular education science class, and would be assigned to a special education class for that subject. The IEP was also amended to delete the requirement that his counseling be provided by a school psychologist. On his final report card for the eighth grade, petitioners' son received the grade of "C" for social studies, "D+" for English and science, and "D" for mathematics. A number of his teachers commented on the report card that the boy was not working up to his ability.

        For the 1993-94 school year the child's special education teacher reportedly recommended that the boy continue to receive special education instruction for academic subjects. However, petitioner asked the CSE to recommend that the boy be mainstreamed for all ninth grade instruction, with supplemental instruction to be provided in a resource room. On March 30, 1993, the CSE prepared the child's IEP for the 1993-94 school year. The CSE recommended that the boy be mainstreamed, and that he receive two periods per day of resource room services, plus one period per week of individual counseling. Notwithstanding its recommendation that the boy be mainstreamed, the CSE indicated in his IEP that he required a highly structured setting and strong supervision in order to function in an educational setting.

        In a progress report for the period ending on October 6, 1993, the child's teachers indicated that he was not working up to his ability, and was not completing all his assignments. His science and resource room teachers reported that the boy was exhibiting inappropriate behavior in their respective classes. On October 12, 1993, the CSE reconvened at the request of the boy's mother. The minutes of that CSE meeting indicate that the child had been receiving consultant teacher services (see 8 NYCRR 200.1 [1]) to assist him in his social studies course, in addition to the resource room services which the CSE had previously recommended for him. Despite that additional assistance, the boy was reported by his social studies teacher to have difficulty focusing on tasks in class. The meeting minutes further indicate that the boy's special education teachers had reported that the support which they were providing to the boy was not working, and that his educational program was not appropriate for him. Despite that additional assistance, the boy was reported by his social studies teacher to have difficulty focusing on tasks in class. The CSE recommended that an application be made to the Nassau County BOCES for the boy's admission into the BOCES Alternate Learning Program (ALP). After observing the ALP, the child's mother informed the CSE that she did not believe it would be an appropriate program for her son.

        The CSE also recommended that the boy's triennial evaluation, which was scheduled to be performed in January, 1994, be expedited, and that it reconvene after the evaluation was completed. In November, 1993, a school psychologist who had evaluated the boy reported that he had achieved a verbal IQ score of 99, a performance IQ score of 90, and a full scale IQ score of 94. She noted that the boy's knowledge of words and his acquired fund of information were at the low end of the average range, and that they reflected his inconsistent acquisition of facts learned in school and his environment. The school psychologist further reported that the boy's inability to control his verbalization of inappropriate thoughts and ideas reflected his immaturity, impulsivity, and poor social judgement. She noted that the boy's weak fine motor coordination and relatively slow processing speed depressed his performance of timed visual motor tasks. The child demonstrated an exceptional ability to concentrate and reason logically to solve mathematical problems. Projective testing revealed that the boy was anxious and depressed, and that he often perceived himself as incapable of coping with the demands and expectations of his daily existence. She described the boy as being socially isolated because of his anxiety about his interpersonal relationship. The school psychologist opined that the apparent decrease in the child's IQ scores from those which he had achieved in previous evaluations appeared to reflect his learning disabilities and the effects of his anxiety depression, and emotional preoccupations. She recommended that he be educated in a small, structured, supportive environment, with both individual and group counseling and social skills training.

        A private educational evaluator who had evaluated the child in October, 1993 reported that the boy had achieved grade equivalent scores of 10.7 for letter-word identification, 11.0 for passage comprehension, 14.5 for mathematical calculation, 10.8 for applied (mathematical) problems, 6.0 in dictation (spelling, punctuation, and capitalization) 6.6 for writing samples, 6.0 for science, 6.2 for social studies, and 4.2 for humanities (art, music, and literature). The evaluator reported that notwithstanding the boy's above average scores for word recognition and passage comprehension on the Woodcock-Johnson Psycho-Educational Battery-Revised, the child was only able to read longer passages of content area text without frustration at about the sixth grade level. She noted that his knowledge in the content areas was well below that expected of a student who was in the ninth grade, as were his overall writing skills. The evaluator recommended that the petitioners' son be educated in a structured setting with a small group of students who had average or above average cognitive skills. She also recommended that he be instructed in higher order reading comprehension skills and organizational skills, and that he be given assistance with his written expression. In particular, she suggested that he have the use of a word processor, and that testing modifications be employed to accommodate his deficient writing skills. The evaluator further recommended that the boy receive individual counseling to develop his self-esteem and social skills.

        Shortly before the CSE reconvened on November 16, 1993, the child's teachers advised the CSE that he had received first quarter grades of "D" in English, "F" in social studies, "F" in mathematics, "D" in science, and "B" in theater. His academic performance was reportedly hurt by his failure to complete homework assignments. On November 16, 1993, the CSE recommended that all school districts which were within a reasonable distance should be contacted to ascertain whether any of them had an appropriate program for the boy. It also determined that no school of the State Education Department's list of approved private schools for day placements was appropriate. At the request of the boy's mother, the CSE recommended that the boy should be removed from his regular education classes and returned to respondent's departmentalized special education program, pending the identification of an appropriate out-of-district placement for him. Although the CSE's recommendations were implemented, I note that the boy's IEP dated November 16, 1993 (Exhibit 12) did not reflect the CSE's recommendation that he be returned to regular education classes.

        After the November 16, 1993 CSE meeting, respondent's Director of Special Education spoke to her counterparts in other school districts. She identified four possible placements in the East Williston, Garden City, Mineola and Cold Spring Harbor school districts, and she sought the parents' permission to release information about the boy to the special education personnel of those districts. The East Williston district subsequently indicated that it did not have an appropriate program for the boy, and the child's mother reportedly objected to his placement in either the Mineola or Garden City programs. The record reveals that on November 15, 1993, one day before the CSE met with them, petitioners applied for the admission of their son to the LaSalle Military Academy, a private high school located in Oakdale, New York. The LaSalle Military Academy has not been approved by the State Education Department as a school for children with disabilities. The parents' application indicates that they sought to have the boy admitted as a "5-Day Boarder," i.e., for a residential placement during the week.

        At the request of the child's mother, the CSE reconvened on December 23, 1993. Respondent's Director of Special Education reviewed what actions had been taken since the last CSE meeting. She also advised the CSE that the child's mother objected to the Cold Spring Harbor special education program for her son because it was sixteen miles away, and her son reportedly had "travel trauma" because of an auto accident early in his life in which the child lost one of his kidneys. The child's mother advised that CSE that petitioners intended to unilaterally enroll their son in the LaSalle Military Academy, as of January 17, 1994. The mother asked the CSE to consider the private school as a possible placement option for the boy. The CSE declined to do so because it wished to pursue the boy's possible placement in the Cold Spring Harbor program, and it wished to thereafter apply to the State Education Department for assistance in placing the boy in an approved private residential school. On or about January 7, 1994, the CSE chairperson prepared a letter to a representative of the State Education Department in order to seek the Department's approval for funding purposes of the boy's placement in an unidentified residential school.² However, the letter was reportedly not sent to the Department representative until March, 1994, after petitioners consented to the disclosure of information about the boy to the Department.

        In a letter which was dated January 3, 1994, petitioners' attorney requested that an impartial hearing be conducted to review the CSE's refusal to consider or provide for the boy's placement in the LaSalle Military Academy. On January 13, 1994, respondent appointed Mr. C. Leonard Davis to conduct the hearing. On January 14, 1994, the child entered the LaSalle Military Academy as a residential student, at petitioners' expense. The hearing did not begin until April 14, 1994. It continued for twenty-four days over the course of the next twenty-seven months, resulting in a transcript of almost 3200 pages.

        On December 6, 1994, which was the fifteenth day of the hearing, Mr. Davis adjourned the hearing for the purpose of having respondent's CSE recommend a placement for the boy for the 1994-95 school year. He did so after having an ex parte discussion with the boy's mother and her attorney, over the objection of respondent's attorney. On or about December 26, 1994, Mr. Davis resigned as the hearing officer. Respondent appointed another hearing officer, who recused himself at the request of petitioners' attorney, on January 25, 1995. The hearing resumed before a third hearing officer on March 6, 1995. It concluded on July 17, 1996.

        The hearing officer rendered his decision on November 12, 1996. He identified the issues to be determined as whether the IEP which the CSE had prepared for the 1993-94 school year was appropriate; and if it was not appropriate, whether the boy's placement in the LaSalle Military Academy was educationally appropriate for him; and whether equitable considerations supported petitioners' request for an award of tuition reimbursement. He found that the boy's IEP for the 1993-94 school year was inadequate because it did not reflect the boy's current needs, or describe his current levels of performance, with regard to his academic achievement, social development, physical development, and management needs, as is required by 8 NYCRR 200.4 (c)(2)(I). He further found that the IEP failed to indicate how the boy's disability impaired his performance (see 34 CFR Part 300, Appendix C, Question 36). In addition, the hearing officer found that the boy's IEP annual goals and short-term instructional objectives did not adequately focus upon reducing the problems created by the boy's disability and their effect upon his educational performance.

        With regard to the second issue, i.e., whether the LaSalle Military Academy met the boy's special education needs, the hearing officer found that petitioners had failed to meet their burden of proof. He noted that not only had petitioners failed to demonstrate what special education services had been provided by the private school, but that the record revealed that the boy's academic performance had not improved and his social interaction difficulties had continued. He also noted that an appropriate day placement for the boy had not been ruled out, and he found that a residential placement in the LaSalle Military Academy was not the least restrictive environment for the boy (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-79)The hearing officer also found that equitable considerations did not support petitioners' claim for tuition reimbursement because they had allegedly failed to cooperate with the CSE in pursuing the possibility of placing the boy in a neighboring school district, and they were reportedly tardy in complying with respondent's request for their consent to release information about the boy to the State Education Department as part of the residential school placement process.

        I note that the board of education has not appealed or cross-appealed from the hearing officer's determination with respect to the adequacy of the boy's IEP for the 1993-94 school year. Consequently, I do not review his determination regarding the boy's IEP. Petitioners challenge the hearing officer's decision, both procedurally and substantively. I will address their procedural challenge first. Petitioners argue that the first hearing officer prejudiced their case by not allowing them to introduce evidence regarding the child's educational performance before September, 1993 or after January, 1994, i.e., they had unilaterally placed him in the LaSalle Military Academy. They refer to a ruling which Mr. Davis made during the hearing on May 17, 1994, when petitioners' attorney was attempting to raise the issue of the boy's educational program in 1991 during his cross-examination of respondent's CSE chairperson. Mr. Davis initially indicated that since no due process proceeding had been instituted prior to the 1993-94 school year, he would restrict the cross-examination of the witness to that school year (Transcript, page 158). He went on to explain that:

"I'm not denying your right to introduce evidence at a later date, but that material has not been introduced at this point and this is cross-examination ... you will have the opportunity to do so at a later time" (Transcript, pages 161-162).

        During the third day of the cross-examination of the CSE chairperson, when respondent's attorney objected to the use of a teacher's report from 1988 which was not in evidence, the hearing officer ruled that:

" I think that we can consider information within the past three years starting at the last fall CSE meeting and go back three years. That gives us enough of a time frame I think to bring in evidence that's prior to that date. This is really taking up so much time that I think that we can offer enough of an opportunity to present the case within those three years" (Transcript, page 702).

        I note that the CSE chairperson subsequently testified about the boy's educational program in the seventh and eighth grades. Petitioners entered into evidence the boy's educational and psychological evaluations from the fifth grade, and cross-examined respondent's school psychologist about the changes, if any, in the boy's academic, social and emotional status subsequent to his evaluation in the fifth grade. There is nothing in the record to indicate that petitioners were denied the opportunity to introduce any relevant document from within the three-year time period established by the hearing officer. With regard to the period subsequent to the boy's removal from respondent's schools, the record reveals that petitioners introduced into evidence copies of the boy's report cards at the LaSalle Military Academy for the 1993-94 school year, and a portion of the 1994-95 school year. Petitioners have not disclosed what, if any, evidence they were precluded from introducing. I find that their argument that the hearing officer prejudiced the presentation of their case by limiting the evidence which they could introduce is without merit.

        Petitioners assert that respondent improperly induced the first hearing officer, Mr. Davis, to remove himself from this proceeding. However, they do not offer any evidence to support their assertion. I note that Mr. Davis' written resignation as the hearing officer is not in the record, nor is there any other evidence to indicate why he resigned. As noted above, petitioners' attorney asked the hearing officer to have an ex parte discussion with him and the boy's mother " ... in relation to something that has occurred [with regard to] the child" (Transcript, page 2014). The attorney represented to the hearing officer that the ex parte discussion would expedite the hearing. Over the objection of respondent's attorney, the hearing officer met privately with the child's mother and her attorney for approximately 40 minutes at the hearing which was held on December 6, 1994. Upon the resumption of the hearing, the hearing officer indicated that the ex parte discussion was about the difficulties which the child was reportedly having in the LaSalle Military Academy during the 1994-95 school year. He then adjourned the hearing, with the recommendation that the CSE promptly met to consider a change in the boy's educational placement. Respondent's attorney briefly indicated to the hearing officer that:

" It took you one minute to tell us what it is you discussed. I think there was quite a bit more discussed and I really question the partiality (sic) of the hearing officer at this point" (Transcript, page 2047).

        Respondent's attorney did not, however, ask the hearing officer on the record to recuse himself. Upon the record before me, I find that there is no basis to support petitioners' claim of improper inducement. With regard to the ex parte discussion, I must note that it was inappropriate for the hearing officer to grant the request by petitioners' attorney. Administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (Grant v. Senkowski, 146 AD 2d 948 [3d Dept., 1989]; De Camp v. Good Samaritan Hospital, 66 AD 2d 766 [2d Dept., 1978]). Hearing officers should refrain from communicating with any party or party's representative about any issue of fact or law, except upon notice and opportunity for all parties to participate (State Administrative Procedure Act Section 307 [2]; Application of a Child with a Disability, Appeal No. 93-49).

        Petitioners assert that their son was in desperate need of an alternative structured educational placement in a small group residential setting with intensive instruction in the areas of his educational deficits by the fall of 1993, and that respondent was unable to address the boy's needs on a timely basis. They note that their son was placed on an interim basis in respondent's self-contained special education classes, while the CSE attempted to obtain an appropriate residential placement for him. In view of the CSE's inability to obtain a residential placement, they contend that they were justified in unilaterally placing their son in the LaSalle Military Academy. Petitioners challenge the hearing officer's determination that they failed to demonstrate that the LaSalle Military Academy met their son's special education needs during the period from January, 1994 through June, 1994.

        In order to meet their burden of proof, petitioners must show that the services which they obtained for their son at the LaSalle Military Academy were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, at 370, [1985]), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). Although the LaSalle Military Academy is not approved by the State Education Department to provide instruction to children with disabilities, that fact is not dispositive of petitioners' claim for tuition reimbursement Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, or have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        The record reveals that petitioners' son was a boy of at least average intelligence who had not academically achieved at a rate which was commensurate with his cognitive ability. Despite having an average ability to process verbal information, as well as an average ability to interpret and organize visual information, he evidenced relatively weak vocabulary skills, and an uneven acquisition of facts from his schooling. His academic performance appears to have been hampered by his ADD, as well as at least a minor deficit in his fine motor skills, in addition to significant emotional concerns, i.e., anxiety and low self-esteem. Academically, the boy's greatest deficits were in the areas of writing and spelling. He has had a long history of difficulty adhering to the demands of a regular education program such as completing assignments, and interacting with peers with minimal adult supervision. At the hearing in this proceeding, the private educational evaluator who had evaluated the boy in November, 1993 testified that petitioners' son required individualized instruction in all academic skill and content areas, as well as assistance in developing his organizational skills, and learning how to self-monitor his distractibility. The evaluator also testified that the boy needed assistance in developing age appropriate social skills, and improving his self-esteem. She opined that petitioners' son needed a therapeutic environment, which she defined as including specific guidance, "...often with behavior modification techniques, graphs, charts so the child has a visual representation that his skills are improving" (Transcript, page 2632).

        The hearing officer found, and I concur, that petitioners failed to demonstrate how the LaSalle Military Academy met their son's special education needs. Mr. Frank Brancato, the Director of Education Programs for the LaSalle Center, which includes the LaSalle Military Academy and the LaSalle Preparatory School, testified that students from both schools were grouped together heterogeneously in classes which averaged fifteen pupils. He further testified that petitioners' son was enrolled in LaSalle's regular high school course of studies, including English, history, sequential mathematics, science, computers, and physical education, as well as a junior ROTC program. The boy was counseled, when necessary, by a social worker at the LaSalle Military Academy. Mr. Brancato testified that the boy received no special education services at the private school, except counseling. The child received the tutorial assistance which was available to all LaSalle students, and reportedly attended twice daily supervised study halls. The boy achieved a 77.43 academic average during the spring semester of the 1993-94 school year at the LaSalle Military Academy. However, he did not work at the level of his ability, according to Mr. Brancato, who testified that 70 was the minimum passing grade.

        Dr. Sheila Hollander, the individual who had performed the child's educational evaluation in 1993, testified that there was essentially no difference between the grades which petitioners' son had achieved at the LaSalle Military Academy and those which he had achieved in respondent's schools. Although she had no personal knowledge of the educational program which had been provided to the boy at the LaSalle Military Academy, Dr. Hollander nevertheless opined that the private school had provided the boy with an appropriate educational program. However, neither she nor Mr. Brancato was able to demonstrate that individualized instruction had been provided to petitioners' son.

        I have also considered the testimony given by the boy's mother about the educational program which was provided by the LaSalle Military Academy, and about her son's social/emotional growth while attending the private school. She testified that the private school had provided her son with computer training which allowed him to address, or at least compensate for the deficit caused by his poor fine motor skills. I note that she also testified that she and her husband had purchased a computer for the boy while he was attending respondent's schools. Although the boy's mother testified that she believed that her son had made progress socially and emotionally at the LaSalle Military Academy, I note that Mr. Brancato testified that the boy was socially isolated, and that his social problems worsened during the period from January 1994 to June, 1994 (Transcript, page 2538).

        In view of my finding that petitioners have not met their burden of proof with regard to the appropriateness of the services which they obtained for their son at the LaSalle Military Academy, it is not necessary for me to reach the third criterion for an award of tuition reimbursement, i.e., whether equitable considerations supported their claim. In any event, I must note that petitioners have at best only marginally addressed the hearing officer's finding that they failed to cooperate with respondent's CSE with regard to obtaining possible day placements in other school districts. This is especially significant because it is by no means clear from the record which is before me that the child required a residential placement in order to benefit from his educational program.

        I have considered petitioners' other contentions which I find to be without merit.

THE APPEAL IS DISMISSED.