04-019

           Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at Gesher Yehuda (Gesher) for the 2001-02 school year.  The hearing officer determined that respondent offered to provide the student with a free appropriate public education (FAPE) during that school year.  The appeal must be dismissed.

            At the time of the hearing, January 14, 2002, petitioners' son was about to turn 11 years old, was classified by respondent's Committee on Special Education (CSE) as learning disabled, and was attending a combined fifth and sixth grade class at Gesher (Transcript pp. 95-96) where he was unilaterally placed by his parents.  Gesher is a private school that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities.  There is no dispute about the student's classification.

            Petitioners' son attended pre-kindergarten through first grade at the Magen David School, which is a private school (Exhibit 3).  He was first referred to respondent's CSE in 1998, at which time the committee recommended placement in a Modified Instruction Services IV (MIS-IV) class and related services.  The parents did not accept the class and whether or to what extent the related services were received is unclear from the record (Transcript p. 18).  In 1999, respondent's CSE recommended an MIS-I class with a student to staff ratio of 15:1, but petitioners chose not to accept this placement and enrolled the student in Gesher for the 1999-2000 school year (Transcript p. 18).  In May 2001, respondent's CSE recommended that the student complete the 2000-01 school year in an MIS-I class, which had a student to staff ratio of 15:1, and then move to a special class with a student to staff ratio of 12:1+1 for the 2001-02 school year (Exhibit 13).  The CSE recommended that the student receive individual counseling, individual occupational therapy, and individual speech-language therapy, each for 30-minute sessions two times per week (Exhibits 13, 14, 15). 

            By letter dated June 21, 2001, respondent confirmed the CSE recommendation for the 2001-02 school year, specifying the actual class recommended for the student (Exhibit 15).  Upon receipt of such letter, the student's mother stated that she could not agree or disagree with the recommendation until she was able to visit the class in September 2001 (Exhibit 15).  The mother visited respondent's recommended class on September 10, 2001 (Transcript pp. 77-78), at which time the school's assistant principal showed her both the recommended 12:1+1 class and a 12:1 class that was, in his opinion, better suited for the student (Transcript pp. 45-48).  Specifically, the assistant principal opined that the 12:1 class would be preferable because the student's mother stated that her son was in fifth grade and the 12:1+1 class did not contain any fifth graders (Transcript pp. 48, 78). 

            By letter dated September 14, 2001, almost three months after notice of the placement recommendation was provided to petitioners, petitioners rejected the CSE's placement recommendation and requested an impartial hearing to obtain tuition reimbursement for their son's attendance at Gesher for the 2001-02 school year (Exhibit A).  The hearing was held on January 14, 2002.  In a decision dated February 27, 2002 and amended March 1, 2002, the impartial hearing officer found that the assistant principal's opinion that the 12:1+1 program was not appropriate for the student neither equitably estopped respondent from asserting that its recommended placement was appropriate nor waived respondent's right to do so.  The hearing officer found that the placement recommended by the CSE was appropriate, and he denied petitioners' request for tuition reimbursement.  Petitioners request that the hearing officer's decision be annulled and that they be awarded tuition reimbursement for the 2001-02 school year at Gesher. 

            A 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. 1988]; Application of a Child with a Disability, Appeal No. 02-029).  To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the individualized education program (IEP) developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-07 [1982]).  The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  A board of education may be required to pay for educational services obtained for a student with a disability by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington Sch. Comm. v. Dep't. of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

            Petitioners have not challenged the IHO's determination that respondent was not barred by equitable estoppel or waiver from asserting that the recommended placement for the student was appropriate.  Accordingly, I will not consider that issue. 

            Petitioners contend that the recommended placement was inappropriate because the student's classroom was not situated sufficiently near a bathroom to meet the student's toileting needs (Petition ¶¶ 3, 9).  They assert that the student needs to urinate frequently because of medical problems and that the location of the bathroom on the second floor, while his classroom was on the third floor, would make it difficult for him to get to the bathroom in time, causing the student to have accidents and be embarrassed (Transcript pp. 73-76).  The February 27, 2001 physical report considered by the CSE indicated that petitioners' son was a "dysfunctional voider" based upon his history of "frequent urination" (Exhibit 11).  In another section of the report, the student's genito-urinary system is indicated to be normal (Exhibit 11).  Based upon the information before the CSE for consideration at its meeting, the CSE addressed the student's needs in the recommended IEP by indicating that the student should be allowed to use the bathroom frequently.  In addition, "frequent urination" was specified in the IEP as an "other alert" within the section of the IEP entitled "Special Medical/Physical Alerts."  This section also makes reference to the Health and Physical Development page of the document, which specifies the student's need for frequent urination and recommends that student be permitted to use the bathroom frequently (Exhibit 13).  At the hearing testimony was given by the child's current teacher at Gesher that the student frequently asked to use the bathroom and that his requests indicated urgency (Transcript p. 63).  The bathroom used by the student at Gesher was down a hall past one other classroom. The teacher opined that it would "probably be a problem" for the student to use a bathroom that required walking down a flight of stairs (Transcript p. 63).  However, she did not indicate that the student had ever had a toileting accident in her classroom (Transcript pp. 63-64) and she further indicated that the student can maintain himself without going to the bathroom for up to 45 minutes and is able to go on a field trip and bus ride without incident (Transcript 67).  I find that the CSE appropriately incorporated the information that it had concerning the student's need to urinate frequently and that the IEP's alert that the student be permitted to use the bathroom frequently was adequate to meet the student's needs given testimony that he can maintain himself for up to 45 minutes.

            Petitioners further contend that the student would not have been appropriately grouped with children of similar needs and abilities.  Students with disabilities must be suitably grouped for instructional purposes with children having similar needs and abilities in the following areas:  educational achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6[a][3]).  Typically, a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile listing the needs of the children in those areas or by providing testimony about the needs of the other children (Application of a Child with a Disability, Appeal No. 97-67).  Petitioners' son has severe language impairments, attention difficulties, and emotional delays.  He processes language very slowly and needs directions repeated and rephrased often (Transcript 28).  A February 2001 teacher's report indicated that the student was reading at a 2.9 grade level and was performing at a 4.5 grade level in math (Exhibit 5).  At the hearing the student's teacher testified that he was performing at a 3.2 grade level in reading and a 5.5 grade level in math (Transcript p. 59).  Respondent's class profile contained a grade equivalent range of 1.6 to 4.5 in reading and a grade equivalent range of 2.6 to 5.6 in math (Exhibit 16).  Accordingly, I find that the CSE recommended that petitioners' son be grouped with students having similar academic abilities.  I also find, in reviewing respondent's undated class profile for the 2001-02 school year, that the student was appropriately grouped with other students with similar needs and abilities in the areas of social development, physical development, and management needs (Exhibit 16; 8 NYCRR 200.6[a][3]). 

            On appeal, petitioners contend that their son would not have been appropriately grouped with other students in a suitable age range.  8 NYCRR 200.6[g][5] requires that the chronological age range within special classes not exceed 36 months.  This issue is beyond the scope of my review because it was not raised below (Application of the Bd. of Educ., Appeal No. 02-024) and the record is not sufficiently developed to enable me to make a determination.

            I agree with the hearing officer and find respondent has met its burden of showing that it offered to provide a FAPE to the student during the 2001-02 school year.  Having so found, I need not determine whether petitioners have met the other criteria for an award of tuition reimbursement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

THE APPEAL IS DISMISSED.