01-030

        Petitioner appeals from a decision of an impartial hearing officer that denied his request for tuition reimbursement for his son’s placement at the Cobblestone School (Cobblestone), a private school that is not approved by the New York State Education Department to provide special education, during the 2000-01 school year. The appeal must be sustained in part.

        Before reaching the merits of petitioner’s case, I must address a procedural issue. Petitioner has submitted three documents for my consideration that were not made part of the hearing record. One is an affidavit sworn to by petitioner on April 12, 2001. Another is an affidavit sworn to by the special education coordinator at Cobblestone on April 8, 2001. The third is a comprehensive psychological report on the student prepared by respondent’s school psychologist on May 10, 2001. Each of these documents was prepared after the hearing officer issued his decision in this matter. It is well established that documentary evidence not presented at a hearing may be considered on an appeal from a hearing officer’s decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 00-007; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). The affidavits contain no evidence that was not available during the hearing and will not be considered. I will exercise my discretion to accept the comprehensive psychological report to make the record complete, bearing in mind its relevance to the year in issue.

        Petitioner’s son was 11 years old and in the equivalent of sixth grade at Cobblestone at the time of the hearing. The student’s prior educational history was set forth in an earlier appeal (Application of the Board of Educ., Appeal No. 00-052) and will not be repeated at length here. The student attended respondent’s schools through second grade and attended Cobblestone for the following three years. Petitioner referred his son to respondent’s Committee on Special Education (CSE) in 1998. Various evaluators noted the student’s processing weaknesses, his low tolerance for frustration, and his moodiness and distractibility. The student was classified by the CSE as emotionally disturbed. Respondent provided 28 hours of direct consultant teacher services and two hours of indirect consultant teacher services each week at Cobblestone pursuant to the student’s individualized education programs (IEPs) during the 1998-99 and 1999-2000 school years.

        On November 18, 1999, petitioner wrote to respondent’s assistant superintendent for student services to request that his son’s IEP be revised to permit him to use calculators, spell checkers and computers for all class work (District Exhibit A-1). A CSE meeting was scheduled for January 14, 2000 (District Exhibit A-6). However, the meeting was cancelled at petitioner’s request because these issues had been addressed to his satisfaction (District Exhibit A-8).

        The student was evaluated by his private psychologist on January 20, 2000 (District Exhibit B-8). The psychologist reported that the student’s scores on tests for general cognitive abilities, non-verbal reasoning and comprehension-knowledge declined slightly from the scores he had achieved during a prior evaluation in 1996. He concluded that the student was reading and writing at a late second grade level, and that he had not improved his basic reading and writing skills substantially in the prior two years. However, the student’s math skills were at the expected grade level. The psychologist noted that the student’s processing speed was "quite low" and below the first percentile. He reported that there was no evidence of a significant attention deficit, but concluded that the student did have a learning disability in reading and writing. He opined that the student’s emotional and behavioral problems stemmed from his nearly three-year deficit in overall skills. The psychologist recommended that the student’s academic demands be reduced, and that he be given extensive support services, as well as remediation in reading and writing, and ongoing counseling.

        The CSE’s annual review was scheduled to take place on May 30, 2000 (District Exhibit A-9). By letter dated May 11, 2000, petitioner acknowledged that the private psychologist had opined that the student did not appear to have an attention deficit disorder (ADD), but suggested that the CSE needed to do more testing to ascertain whether the student manifested symptoms of an attention deficit hyperactivity disorder (ADHD) prior to the next CSE meeting (District Exhibit A-10). On May 25, 2000, petitioner advised the assistant superintendent that Cobblestone staff had reported that his son was experiencing "a potential situational ADHD problem", and asked to postpone the upcoming CSE meeting "until we are able to make a determination one way or the other" (District Exhibit A-12). According to the student’s consultant teacher, the student’s behavior had deteriorated to the point that Cobblestone would not allow him to return the following year unless he showed significant improvement (Transcript Volume 2, pp. 163-64). By letter dated May 30, 2000, the assistant superintendent agreed that respondent would do a further evaluation and would attempt to complete it before the end of the school year (District Exhibit A-13). He also noted that he had received petitioner’s request for tuition reimbursement for the 2000-01 school year at Cobblestone, and that the CSE had not yet made a placement recommendation for that school year.

        In an educational testing report prepared for the CSE on May 14, 2000, the student’s special education teacher at Cobblestone indicated that petitioner’s son had received grade equivalent (and standard) scores of 3.6 (85) for reading decoding, 3.5 (82) for reading comprehension, 2.4 (74) for spelling, 7.4 (111) for mathematics applications, and 5.5 (96) for mathematics computation. On the Test of Written Language (TOWL 3), the student achieved scores in the 2nd percentile for contextual convention, the 25th percentile for contextual language, the 63rd percentile for story construction and the 27th percentile for spontaneous writing. She opined that the student was reading independently at the fourth grade level in word accuracy and at the fourth to fifth grade level in comprehension. The teacher concluded that the student’s most significant weakness was in written expression, particularly in spelling, punctuation, capitalization and paragraphing skills. She noted that he also showed a weakness in performing multiple-step math calculations (District Exhibit B-2).

        The student’s classroom teacher also prepared a report for the CSE, dated May 18, 2000, in which she noted that the student’s motivation and effort were poor at the beginning of the year, but had improved in the last few months. She described the student as being easily frustrated and distracted, highly active, and having difficulty with organization. She reported that he needed a great deal of one-on-one support, and that she also used small group instruction and behavior plans with him. The teacher also reported that the student was very impulsive, and needed to be supervised at all times for his safety as well as the safety of others (District Exhibit B-2).

        The Cobblestone staff prepared a year-end update for the student on May 20, 2000 (District Exhibit B-4). The first section of the update indicated whether the student had met the objectives related to his annual goals for fifth grade. The student failed to meet any of the four objectives listed under "organization and study skills." He met nine out of ten objectives related to "Social/emotional goals." These included expressing anger in words rather than inappropriate actions and demonstrating appropriate responses to social cues in role-play, in class and on the playground. The student failed to meet six of seven objectives related to sounding out words and identifying unfamiliar words in text. He met none of the objectives with regard to developing his written language skills. Finally, the student met one out of six math skills objectives.

        The year-end update also included a narrative description of the student’s educational needs. The student’s continuing need for instructional support, small group or individual instruction and repetition of new material was noted. The report also stated that the student had trouble transitioning to middle school, that "the increased level of academics, the increased expectation for working independently, and the increase in the amount of class work and homework" were difficult for him, and that he would need continued support in those areas. The report stated that the student had shown no growth in written language skills in the past year because he was reluctant to complete any written language tasks. He relied on his parents to scribe his homework and was unable to complete any written class work independently.

        The CSE met on June 22, 2000. According to the minutes of that meeting, the student’s impulsive and disruptive behavior had been reduced significantly after he began taking Paxil. Petitioner was asked whether he still wished to have his son evaluated for ADHD, and he advised the CSE that such evaluation could be "put on hold for now". The CSE decided not to change the student’s classification. The student’s private psychologist did not attend the meeting, but petitioner advised the CSE that the psychologist continued to recommend that the student attend Cobblestone. The psychologist repeated this opinion in a letter to the CSE dated June 22, 2000 (Parent Exhibit 10). The meeting minutes do not list a recommended placement, but they note that petitioner could not understand why the committee was discussing providing services at respondent’s Bay Trail Middle School (Bay Trail) because the student "would be returning to Cobblestone" (District Exhibit B-6). Petitioner was advised that offering services at Bay Trail, which was the home school for all Penfield sixth graders, was part of the process.

        The CSE prepared a draft IEP recommending ten hours a week of direct consultant teacher services in math, language arts, social studies and science (District Exhibit B-5). It also recommended five hours a week of indirect consultant teacher services for language arts. A counseling assessment was also recommended. The CSE also recommended that the student use masks or markers to keep his place while reading, and that he use a spell checker with his work. On the IEP, the CSE noted that the student had begun taking Paxil in April and Ritalin in June 2000, and that he needed small group/individual instruction for all new skills concepts. In the "Recommendations: Program/Services" portion of the draft IEP, the CSE indicated: "Enrollment in nonpublic school (Cobblestone) by parent initiation." The minutes of the CSE meeting indicate that the phrase "by parent initiation" was discussed, and that it was agreed that it would be deleted from the final IEP.

        By letter dated July 5, 2000, petitioner was notified that the CSE was recommending to the Board of Education that his son receive direct and indirect consultant teacher services during the 2000-01 school year, based upon a number of documents including the draft IEP (District Exhibit A-15). The letter did not explicitly identify the school in which the recommended services would be provided, but did indicate that the "recommended program/placement is appropriate at this time because it provides the special education needed within the home school and least restrictive environment." In a second letter to petitioner dated July 5, 2000, the assistant superintendent stated that "the District developed an IEP for [the student] as if he was to enroll at Bay Trail Middle School. I know that last year we had a significant amount of misunderstanding about that issue. At the CSE meeting, you indicated your desire to re-enroll [your son] at Cobblestone School. You have the right to do so, even though it is not the program recommended by the CSE" (District Exhibit A-16).

        In a letter to the assistant superintendent dated August 8, 2000, petitioner stated that "we do not agree with the placement as specified by the school district…. We will be requiring the school district to reimburse us for tuition at Cobblestone…and that all services be provided at the Cobblestone School" (District Exhibit A-18). Respondent subsequently made arrangements for the consultant teacher services to be provided at Cobblestone at district expense (District Exhibits A-20, A-22). In his August 8, 2000 letter, petitioner also asked respondent to include additional goals and objectives in his son’s IEP. He later wrote to respondent indicating that the IEP was satisfactory as long as the remaining goals and objectives were added and the services were provided at Cobblestone (District Exhibit A-19). Respondent reportedly sent petitioner a copy of the final IEP on August 25, 2000 (District Exhibit A-20). I note that a copy of that IEP is not included in the record.

        On September 6, 2000, petitioner requested an impartial hearing, asserting that the hearing officer in the prior proceeding had required the district to reimburse him for his son’s tuition at Cobblestone for the past three years, and that "the school district has failed to answer our request for tuition reimbursement for the 2000-01 school year…. As a result, I’d like to request another impartial hearing to settle this matter…." (District Exhibit A-23).

        Respondent’s attorney replied to the request in a letter to petitioner dated September 27, 2000 (Parents Exhibit 3). He informed petitioner that his request for a second impartial hearing was denied because the district had appealed the original hearing officer’s determination to the State Review Officer and the hearing officer’s decision in the prior proceeding could not be enforced by a new hearing officer pending the appeal from that decision. With respect to petitioner’s request for tuition reimbursement for the 2000-01 school year, respondent’s attorney advised petitioner that "you may request a hearing on that issue alone" and directed him to fill out another request for due process proceedings if he wished to request a hearing regarding the 2000-01 school year.

        Petitioner made a second request for an impartial hearing in a letter to respondent dated October 12, 2000. Respondent selected an impartial hearing officer on October 13, 2000 (District Exhibit A-27). In a pre-hearing conference call on October 19, 2000, the parties agreed to postpone the hearing until January 12, 2001 because the district’s appeal to the State Review Officer from the prior hearing officer’s decision was still pending. The parties met on January 2, 2001 to discuss the evidence that would be presented at the hearing. Petitioner sought to have the entire record of the prior impartial hearing involving the 1997-98, 1998-99, and 1999-2000 school years entered into evidence in this proceeding. The hearing officer concluded that he would not admit the entire record of the prior proceeding because the issue before him was petitioner’s tuition claim for the 2000-01 school year, but that the parties could seek to admit individual documents from prior school years if relevant (Hearing Officer Exhibit 1).

        The hearing was conducted on January 17 and 25, 2001 and February 1, 2001. The impartial hearing officer issued a decision on March 9, 2001. He found that respondent had improperly rejected petitioner’s initial request for an impartial hearing and erroneously required him to submit a second request. However, he concluded that this error alone was not a sufficient basis for awarding petitioner tuition reimbursement. He also found that correspondence between the parties established that petitioner was aware that Bay Trail was the recommended placement before he received the final IEP. The hearing officer determined that petitioner had withdrawn his request for additional testing of his son, and found that petitioner’s claim that such testing should have been conducted before the CSE made its recommendations was without merit.

        The hearing officer also found that the only dispute about the student’s IEP related to the recommendation that he attend Bay Trail, and that petitioner did not otherwise challenge the level of services to be provided. He concluded that the student’s IEP and proposed placement at Bay Trail were reasonably calculated to enable the student to receive educational benefits and therefore were appropriate under the Individuals with Disabilities Education Act (IDEA). The hearing officer reached that conclusion because he found that the record showed that the student had made sufficient progress with respect to his social/emotional difficulties to attend and learn at Bay Trail. He reasoned that the student would be able to cope with the larger class sizes and greater number of teachers he would work with at Bay Trail because of the way the school was organized, and the availability of counseling and other services to facilitate the student’s adjustment to the school. Having determined that the Board of Education had met its burden of proving that it had offered to provide an appropriate education to petitioner’s son during the 2000-01 school year, the hearing officer denied petitioner’s request for an award of tuition reimbursement.

        Petitioner alleges that respondent made a number of procedural errors in preparing his son’s IEP, and that Bay Trail was not an appropriate placement. He contends that the hearing officer erred when he declined to enter the record and exhibits from the prior hearing into evidence at the hearing in this proceeding. Petitioner also argues that the hearing officer ignored testimony from the student’s private psychologist, failed to understand the student’s emotional difficulties, and misconstrued testimony about the organization of the sixth grade at Bay Trail. He concludes that unless his son is placed in an environment like Cobblestone, where his anxiety is held in check, all efforts to help him learn will fail.

        I agree with the hearing officer’s conclusion that respondent improperly rejected petitioner’s September 6, 2000 request for a hearing. The request clearly referred to petitioner’s demand for tuition reimbursement for the 2000-01 school year. Petitioner had advised respondent on several prior occasions that he would seek reimbursement for that year. Respondent’s counsel’s determination that petitioner could not have a hearing unless he made an additional request is inconsistent with section 1415(b)(6) of the IDEA, which requires that parents be afforded an opportunity to present complaints regarding the identification, evaluation or placement of a child, as well as section 1415(f)(1), which provides that parents involved in a complaint shall have an opportunity for an impartial due process hearing. I also note that governing regulations provide that a school district may not delay or deny a parent’s right to a due process hearing for failure to provide a proper hearing request (34 CFR § 300.507(c)[4]). As the hearing officer also noted, respondent selected the hearing officer the day after petitioner made the second request and the parties then agreed to delay the hearing until January 2001. Accordingly, I agree with the hearing officer’s conclusion that respondent’s procedural error does not require me to hold that respondent failed to offer petitioner’s son an appropriate education. I admonish respondent to comply with governing regulations in the future.

        Petitioner also asserts that the hearing officer improperly declined to admit the record of the prior impartial hearing between the parties into evidence in this hearing. A hearing officer has the power and duty to restrict the record to evidence that is relevant to the issues that must be decided, and may exclude irrelevant or unduly repetitious evidence and testimony (Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child with a Disability, Appeal No. 96-51). I find that the hearing officer did not abuse his power when he declined to admit the entire record from the prior hearing. The record of the prior proceeding was voluminous and addressed issues regarding school years that were not under review in the present hearing. There is nothing in the present appeal that indicates that the hearing officer excluded any relevant evidence, or denied petitioner the opportunity to present his case.

        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 School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The parent’s failure to select a program that has been approved by the state is not itself a bar to reimbursement of the parent (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        A 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. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately identifies the child’s needs, establishes annual goals and short-term objectives that are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. The IEP must identify the location of such services (8 NYCRR 200.4[d][2][xi]).

        The draft IEP that the CSE prepared for the 2000-01 school year indicated that the student would attend Cobblestone "by parent initiation". A board of education cannot contract with a private school for the education of a child with a disability if that school has not been approved by the State Education Department to provide instruction to students with disabilities (Education Law § 4402(2)(b)[2]; Antkowiak by Antkowiak v. Ambach, 838 F.2d 635 [2d Cir. 1988]). Since Cobblestone has not been so approved, respondent’s CSE could not recommend the school as a placement for petitioner’s son. Therefore I find that petitioner’s lengthy argument about the CSE’s failure to consider Cobblestone as a placement for the 2000-01 school year is irrelevant.

        The same issue was raised in the prior appeal because respondent’s CSE had indicated on the student’s IEP for the 1998-99 school year that he would attend Cobblestone. In finding the Board of Education had failed to meet its burden of proving that it had offered to provide an appropriate educational program, I indicated that the CSE had failed to recommend a specific placement for the student. Respondent asserts that in telephone conversations and correspondence subsequent to the CSE’s June 22, 2000 meeting, it was made clear to petitioner that the CSE’s recommended placement was in Bay Trail. While I agree that there is evidence in the record to support respondent’s assertion, I must find that respondent has not overcome the defect in student’s IEP. The CSE was required to make a written recommendation for placement, in the form of an IEP (8 NYCRR 200.4[c][2]), which as noted above must indicate the location for the IEP services. Although the draft IEP that is in the record was reportedly replaced by a final IEP, the latter IEP is not in evidence. In the absence of a final, written IEP, neither a hearing officer nor a State Review Officer can find that a board of education offered an appropriate educational placement to a child (Application of a Child with a Disability, Appeal No. 95-71; Application of a Child with a Disability, Appeal No. 94-13). Accordingly, I must conclude that respondent has failed to meet its burden of showing that it had offered to provide an appropriate placement.

        Petitioner bears the burden of proof with regard to the appropriateness of the program provided at Cobblestone school during the 2000-01 school year (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, petitioner must show that the private school offered an educational program that met the student’s special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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. 94-20).

        At the hearing, the student’s private psychologist testified that he recommended that the student continue at Cobblestone for the 2000-01 school year (Transcript Volume 2, pp. 50-51). He noted that although the student had improved emotionally and academically, he remained highly vulnerable to stress and would continue to need a great deal of individual support. He also stated that the student could not tolerate excess stimulation, and needed a stable, structured environment where he would be subject to minimal change (Transcript Volume 2, pp. 44-45). He also noted that the improvement in the student’s behavior that was observed during a trial of medication during the last week of his school year might not continue (Transcript Volume 2, p. 43).

        During the 2000-01 school year, the student’s IEP provided that he would receive approximately ten hours of direct and five hours of indirect consultant teacher services each week at respondent’s expense. His classroom teacher did not testify at the hearing. In a report dated May 18, 2000, she noted that during the prior year she had provided the student with a great deal of one-on-one support, and had used small group instruction and behavior plans to help the student be successful in class (District Exhibit B-2). Although the student met very few of his IEP objectives for the 1999-2000 year, his consultant teacher stated that the student made progress toward meeting many of the objectives (Transcript Volume 2, pp. 171-74). She reported that the student continued to make progress in sixth grade, but did not present teacher’s reports, class grades or standardized test scores to document his performance (Transcript Volume 2, pp. 158, 171-74). She acknowledged that the student did not receive counseling or other social/emotional support services at Cobblestone, but that she periodically consulted his private psychologist (Transcript Volume 2, p. 193).

        In a comprehensive psychological evaluation dated May 10, 2001, respondent’s psychologist reported that the student had made academic and behavioral progress, but that he "continues to be at high risk for dramatic and substantial behavioral deterioration if the proper emotional supports are not provided." The student’s consultant teacher reported that the Cobblestone environment was supportive and afforded her flexibility in working with the student. However, the record does not show that the private school provided special education services apart from the consultant teacher, which respondent has agreed to pay for, to meet this student’s educational needs during the 2000-01 school year. Therefore I cannot find that Cobblestone offered an appropriate educational program (Application of the Board of Educ., Appeal No. 00-052). In light of this determination, I need not consider whether the parent’s claim is supported by equitable considerations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled, but only to the extent that he found that the Board of Education had met its burden of proving that it had offered to provide an appropriate program to petitioner’s son for the 2000-01 school year.