97-088

       Petitioner appeals from the decision of an impartial hearing officer which found that equitable considerations did not support petitioner's request for an order requiring respondent to reimburse petitioner for the cost of his daughter's tuition at the Manhattan Day School for the 1996-97 school year because petitioner delayed in commencing this proceeding. The appeal must be dismissed.

        Petitioner's daughter, who was born November 25, 1986, has been classified as learning disabled. Her classification is not in dispute. The child commenced her education at Bias Yaacov, where she reportedly had learning difficulties as early as kindergarten. At the hearing in this proceeding, petitioner testified that his daughter did not want to go to school. The child remained in that school for first grade. Petitioner decided to transfer her to Yeshiva of Flatbush for the second grade. At the suggestion of administrators in the private school, petitioner had the child privately evaluated to ascertain whether she had a learning disability. One evaluator reportedly recommended that the child receive speech/language therapy, while a second evaluator reportedly recommended that the child be placed in a special education class. Petitioner contacted respondent's committee on special education (CSE) about the results of the child's private evaluations. Petitioner testified that the CSE determined in May, 1994 that the child could function normally and did not require special education services.

        At the end of the 1993-94 school year, the Yeshiva of Flatbush informed petitioner that the child would not be allowed to return to that school as a result of academic difficulties. Petitioner re-enrolled the child at Bias Yacaav for third grade during the 1994-95 school year. While the child's academic and emotional difficulties caused further concerns to petitioner, he did not return to the CSE. Petitioner instead sought to review other educational programs, and ultimately enrolled the child at his expense for the fourth grade in the Manhattan Day School. In September, 1995, the Director of Special Education at the Manhattan Day School told petitioner that the child needed some speech and language services, and recommended that petitioner contact respondent's CSE. Petitioner referred the child to the CSE in September, 1995, and again in October, 1995. The CSE representative at the hearing testified that the child's referral was received on October 30, 1995. The child was evaluated by respondent's CSE in November, 1995. However, the CSE failed to observe the child in her current educational setting (cf. 8 NYCRR 200.4 [b][4][viii]). On January 4, 1996, the CSE met with petitioner to review the results of the child's evaluation. The CSE recommended that the child be classified as learning disabled because of delays in her reading, spelling and mathematics skills, as well as her visual motor integration skills. Although the CSE did not initially recommend that the child receive speech/language therapy because its evaluator found that she did not have any significant delays in her speech/language skills, the CSE reportedly agreed in February, 1996 to recommend that she receive such therapy. The CSE further recommended that the child be placed in a self-contained modified instructional services-I (MIS-I) class for instruction in all subjects. In a Final Notice of Recommendation dated February 20, 1996, the CSE notified the petitioner of its recommendations, and informed him of the child's proposed placement in P. 164 in Brooklyn.

        At the hearing in this proceeding, petitioner testified that he believed that it would have been inappropriate to change his daughter's educational placement at that point in the school year. Petitioner noted that it was the third change in four years for the child, and testified that it was too late in the year to change the child's placement. In March, 1996, petitioner's wife returned the final notice of recommendation to the CSE, with the notation that "I don't wish to place my daughter in the above school at present, but would like bussing (sic) to Manhattan Day School and all related special services" (Exhibit 1). In September, 1996, petitioner unilaterally enrolled the child in the Manhattan Day School for the 1996-97 school year. When asked by his attorney at the hearing if he had informed the CSE that he was interested in a placement for September, 1996, petitioner testified that he did not remember. He acknowledged that he had not looked at the placement in P. 164 which the CSE had recommended, but he indicated that he would have looked at an "appropriate placement" for her, if respondent had offered one in the fall of 1996. The CSE representative conceded that the CSE had not conducted an annual review for the child during the 1996-97 school year.

        On June 3, 1997, approximately 15 months after he had been offered the placement at P. 164, petitioner requested a hearing to obtain tuition reimbursement for the 1996-97 school year. On August 5, 1997, an impartial hearing was held to determine whether petitioner was entitled to reimbursement. A board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parent to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parent's claim for tuition reimbursement. (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993].

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 96-1). To meet it's burden, the board must show that the recommended program is reasonably calculated to receive an educational benefit, and is the least restrictive environment for the child (Board of Education of Hendrick Hudson Central School District v. Rowley, 41 U.S. 176 [1982]; 34 CFR §300.550; 8 NYCRR §200.6 [a]1). The hearing officer found that the school district had not met its burden of establishing the appropriateness of the CSE's recommended program because of its failure to observe the child as part of its evaluation of her (see Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-26). Therefore, the hearing officer found that petitioner had prevailed with respect to the first of the three Burlington criteria for an award of tuition reimbursement.

        Petitioner has the burden of proof concerning the appropriateness of the Manhattan Day School's educational program for his daughter (Application of a Child with a Disability, Appeal No. 94-29, Application of a Child with a Disability, Appeal No. 95-57). He must show that the educational services provided by the Manhattan Day School addressed the child's special education needs and that her placement in that school was consistent with the requirement that she be educated in the least restrictive environment (20 U.S.C. 1412 [5][b]; Application of a Child with a Disability, No. 95-79). The hearing officer determined that petitioner had met his burden with respect to the appropriateness of the child's placement at the Manhattan Day School. Therefore, petitioner prevailed with respect to the second Burlington criterion for tuition reimbursement. Respondent has not cross-appealed from the hearing officer's findings about the inappropriateness of the educational placement recommended by the CSE and the appropriateness of the special education services provided by the Manhattan Day School. Consequently, I do not review either finding (Application of a Child with a Disability, Appeal No. 95-40; Application of a Child with a Disability, Appeal No. 97-3).

        With respect to the third Burlington criterion, whether equitable considerations support the parent's claim for tuition reimbursement, the hearing officer posed five questions: When did petitioner request the hearing? What notice did he receive of his due process rights? When did he become aware, or should have become aware, of his right to seek an award of tuition reimbursement? When did the CSE become aware, or should have become aware, of petitioner's dissatisfaction with the CSE's recommendation? Did petitioner cooperate with the CSE? (see Application of a Child with a Disability, Appeal No. 95-28; Application of a Child with a Disability, Appeal No. 95-30). The hearing officer found that petitioner had requested the hearing on June 3, 1997, as indicated by Exhibit 2. She further found that petitioner received information about the right to request an impartial hearing when he received respondent's Final Notice of Recommendation which was dated February 20, 1996 (Exhibit 1). That document indicated that:

"If you do not agree with the recommendation, you have the right to request an Impartial Hearing by writing to the Board of Education, Impartial Hearing Office, Room 118, 110 Livingston Street, Brooklyn, NY 11201. For a full description of your right to appeal, please refer to the booklet, Special Education: A Guide for Parents. If you do not have a booklet, you can get one from us."

        The hearing officer noted that petitioner had testified that he was unaware of his right to seek an award of tuition reimbursement until May, 1997. With respect to the fourth question, i.e., when did, or should have, the CSE become aware of petitioner's dissatisfaction with its recommendation, the hearing officer found that neither petitioner nor his wife had directly communicated their dissatisfaction with the CSE's recommendation to the CSE. She noted that petitioner had still not expressed any complaint about the recommended program at the hearing. Finally, the hearing officer found that petitioner appeared to have cooperated with the CSE, but that his failure to enroll his child in the recommended placement or to seek an alternative placement from the CSE evidenced a lack of interest in working cooperatively with the CSE.

        Petitioner challenges the hearing officer's determination that equitable considerations do not support his claim for tuition reimbursement. He asserts that he kept all scheduled appointments with respondent's CSE, and supplied it with all the relevant information about his daughter. Petitioner further asserts that he remained in frequent contact with the CSE throughout the spring of 1996 to obtain the related services which the CSE had recommended for the child, for which he did not obtain respondent's authorization to secure private speech/language therapy until February, 1997 (Transcript, page 29). However, those numerous telephone contacts with the CSE were about respondent's failure to provide the speech/language therapy which the CSE had recommended, rather then to express dissatisfaction with the educational program and placement which the CSE had recommended for the child.

        Petitioner also argues that respondent should not be allowed to rely upon equitable considerations to defeat his claim for tuition reimbursement because of the procedural and substantive errors committed by the CSE. He asserts that the CSE was invalidly composed because it did not include the child's teacher (cf. 34 CFR 300.344 [a] [2]). I note that Federal regulation authorizes respondent to designate a teacher to be the teacher member of the CSE when the child is not in school. Petitioner further asserts that the CSE's recommendation was untimely because it was not made within 40 school days after the child had been referred to the CSE or 30 school days after receipt of parental consent for an evaluation, as required by 8 NYCRR 200.4 (c). The untimeliness of the CSE's recommendation goes to respondent's obligation to offer an appropriate placement on a timely basis, i.e., the first Burlington criterion. Similarly, I find that the CSE's failure to conduct an annual review of the child during the 1996-97 school year does not afford a basis for concluding that equitable considerations support petitioner's claim for tuition reimbursement, especially since the individualized education program (IEP) which the CSE prepared for the child would have governed her education for a one-year period. With regard to respondent's alleged delay in providing related services to the child, I find that the appropriate remedy would be an order compelling respondent to make up the lost services. However, the limited record which is before me is inadequate to support an order granting that relief.

        The central issue in this proceeding involves the delay in commencing this proceeding for over one year, and until the 1996-97 school year had nearly ended. The Final Notice of Recommendation which petitioner received on or shortly after February 20, 1996 clearly informed him of his right to seek review of the CSE's recommendation. Although petitioner testified that he did not become aware of his right to seek award of tuition reimbursement until May, 1997, I must point out that the recovery of tuition paid to a private school is simply one permissible remedy in proceedings of this nature. The central purpose of these proceedings is to ensure that each child with a disability is receiving a free appropriate public education. The extensive due process provisions of federal and state law are intended to provide an inexpensive and expeditious method by which a parent can obtain review by an impartial decision maker of a CSE's action, or failure to act. Prompt resort to the due process procedures must be made, so that school authorities have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H. 42 F.3d 149 [3d Cir.,1994]). I find that petitioner's failure to promptly challenge the CSE's recommendation deprived respondent of an opportunity to correct its CSE's error. Therefore, I concur with the hearing officer's determination that equitable considerations do not support petitioner's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 95-82; Application of a Child with a Disability, Appeal No. 97-89).

THE APPEAL IS DISMISSED.