The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
RosaLee Charpentier, Esq., attorney for petitioner
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Amy K. Adelman, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that petitioner's claim for tuition reimbursement for her child's enrollment in a private school during the 1993-94 school year was barred by the equitable doctrine of laches, and which denied petitioner's request that various changes be made in her child's individualized education program (IEP) with regard to the specialized services to be provided to the child. Petitioner also appeals from the hearing officer's denial of her request for reimbursement for the cost of various out-of-school services and a private evaluation which petitioner had obtained for the child. The appeal must be sustained in part.
Petitioner's daughter is seventeen years old, and is classified for educational purposes as emotionally disturbed. When she was initially evaluated by a school psychologist in May, 1993, the child was reported to be functioning at the high end of the superior range of intelligence, with little difference between her verbal and performance IQ scores. However, she was described by the school psychologist as struggling with inner age-appropriate conflicts and external pressures which made her feel immobilized and unwilling to attend school. The school psychologist opined that the child was mildly depressed as the result of her inner anger and frustration. Approximately three months later, another school psychologist evaluated the child, and reported that the child appeared to be emotionally withdrawn and to have much anxiety about the relationships with the significant authority figures in her life. He reported that the child did not appear to have any sense of aspiration for herself, which the psychologist opined might be indicative of the girl's desire to remain as a young, ineffective and dependent child. The child's classification of emotionally disturbed has not been challenged in this proceeding, and is therefore beyond review (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]).
There is little information in the record about the child's elementary school education. She was reportedly identified as talented, but nevertheless had some difficulty while in the schools of the Pelham Union Free School District in Westchester County. In the Fall of 1990, she entered the eighth grade in respondent's Wagner Junior High School. Petitioner asserts that her child's grades and attendance were excellent at the beginning of the school year, but deteriorated later in the year. During the 1991-92 school year, the child was enrolled in the ninth grade of the East Islip High School, on Long Island, where she reportedly was provided with counseling. In July, 1992, petitioner had the child privately evaluated by a psychologist, because petitioner was concerned about the child's performance in school. The psychologist reported that the child appeared to be uncomfortable while doing unstructured tasks, and had sought clarification from the psychologist. Nevertheless, the child achieved grade equivalent scores of 12.9 in reading and 12.9 in mathematics, having just completed the ninth grade.
In the 1991-92 school year, the child returned to the Pelham schools, where she reportedly failed each of her tenth grade courses during the second quarter of the school year. Shortly thereafter, the child, who had been living with her father, returned to live with petitioner in respondent's school district. The child was enrolled in respondent's "City as School", which is an alternative high school in which the students can participate in a work-related internship program. The child reportedly manifested chronic absenteeism and lateness for her classes and internship assignments.
In late March, 1993, petitioner asked respondent to evaluate her daughter to ascertain whether the child should receive special education. Although petitioner is apparently a resident of a Community School District No. 4, the child was evaluated by the CSE staff of Community School District No. 3, where the City as School is located. The school psychologist who evaluated the child concluded that the City as School was an inappropriate placement for the child, but did not recommend another placement for her. The CSE's educational evaluator reported that the child was functioning above the 12.9 grade level in reading, mathematics, and spelling, and had exhibited good oral and written language skills. The evaluator opined that the child did not have a learning disability. On May 28, 1993, the CSE recommended that the child not be classified as a child with a disability, and suggested that the child receive private counseling.
On June 10, 1993, petitioner asked for an impartial hearing because she had not received written notification of the CSE's recommendation. A hearing was scheduled, but was postponed at the request of petitioner's husband, for the purpose of having another CSE meeting. The CSE met with petitioner on July 9, 1993, when it considered a new report by the private psychologist who had evaluated the child in 1992. The private psychologist described the child as unable to organize herself to complete assignments and to keep up with the demands of school. She opined that the child required a great deal of support, structure, and individual supervision on a daily basis in order to meet the demands of high school. The private psychologist recommended that the child receive school-based counseling. The CSE noted that the child had failed a number of high school subjects, at least in part, because of her poor attendance, and that her emotional problems had interfered with her ability to use her superior intelligence effectively in school.
On July 9, 1993, the CSE recommended that the child be classified as emotionally disturbed. It further recommended that the child be enrolled in respondent's Home Instruction School Phobic Program, pending her enrollment in the Life Skills Program of respondent's Cardozo High School. The record reveals that the Life Skills Program is intended to provide instruction to children who are school phobic, or have severe anxiety about separating from home and attending school. The CSE further recommended that the child receive individual and small group counseling to improve her ability to function in academic classes.
At the request of her father, the child was re-evaluated by a school psychologist on August 9, 1993. The school psychologist opined that the child appeared to resent the demands of school, or any demands that she solve situations for herself, and experienced frustration in terms of anger at herself which led to a low self-image and a sense of inadequacy. The school psychologist recommended that the child receive individual and group counseling, and that private family counseling be considered. When the CSE reconvened on August 20, 1993, it recommended that the child also receive individual psychological services to assist her in ascertaining why she had difficulty attending school.
In early September, 1993, petitioner informed the CSE that the child would be enrolled, at petitioner's expense, in the Robert Louis Stevenson School (Stevenson School) in New York City. Petitioner acknowledged that the Stevenson School provided regular education, rather than special education. The principal of the Stevenson School testified at the hearing in this proceeding that the school was a college preparatory secondary school for bright underachievers. Petitioner requested that respondent provide the child with psychological services at the Stevenson School. However, petitioner did not request that the hearing which she had requested in June, 1993 be rescheduled, after she had received the CSE's recommendation of July 9, 1993 that the child be enrolled in the Life Skills Program.
At the hearing in this proceeding, petitioner's attorney asserted that petitioner had no additional contact with respondent about the child's education during the 1993-94 school year, except to correspond about reimbursement of her expenditures for the child's psychotherapy. The child's educational report from the Stevenson School for the 1993-94 school year reveals that her frequent absences or tardiness negatively affected her educational performance throughout the school year. Indeed, the child did not earn academic credit for any of the six courses in which she was enrolled in the fourth quarter of the 1993-94 school year, because of her excessive absences.
In a letter dated July 8, 1994, petitioner asked the CSE to recommend for the 1994-95 school year that the child be placed in some program other then the Life Skills Program which the CSE had recommended for the 1993-94 school year. She indicated in her request that the child had been taking anti-depressant medication since January, 1994, and requested that respondent assume financial responsibility for having the child's psychiatrist monitor the effect of the medication upon the child's education. Notwithstanding the fact that the child failed to earn credit in any of her courses during the fourth quarter of the 1993-94 school year, petitioner asserted that the child's attendance and tardiness had dramatically improved.
In a letter to the CSE chairperson, dated July 26, 1994, the principal of the Stevenson School reported that the child had responded positively to twice per week on-site psychotherapy, and that the child and her teacher-advisor had developed a system of daily telephone contact to improve her school attendance. He further reported that the teacher-advisor provided daily supervision of the child in school, and was also available for crisis intervention. The principal noted that while the child had begun a positive process of change at the Stevenson School, that change had not yet enabled her to earn passing grades in her courses. The Stevenson School psychologist also reported to the CSE that the child was rarely in a state of emotional equilibrium, and alluded to a diagnosis by the child's psychiatrist of an obsessive compulsive disorder. Petitioner provided the CSE with a copy of a brief statement, dated August 16, 1994, by the psychiatrist, who reported that the child evidenced symptoms of a severe obsessive compulsive personality, rather than school phobia. He recommended that the child be educated in small classes, with close supervision and individual counseling. He opined that the child could not be successfully transported by school bus, but offered no basis for that opinion. The psychiatrist also recommended that the child receive a twelve-month instructional program.
A school psychologist, who re-evaluated the child on August 9, 1994, reported that the child achieved verbal, performance and full scale IQ scores in the high average range, although her performance on individual subtests ranged from average to very superior. Projective testing revealed that the child exhibited self-doubt and uncertainty in new social settings, as well as some signs of feelings of guilt and anxiety. Interpersonal relationships were reported to be a source of conflict and pain for the girl, who was described as exhibiting an exaggerated concern for her own security and stability.
In an educational evaluation which was completed on August 19, 1994, the child achieved standard scores of 106 in reading, 110 in mathematics, 132 in language, and 124 in writing, all of which were in the average or above average ranges. The child was described as being cooperative and motivated during the evaluation.
Petitioner informed the CSE chairperson, by letter dated September 7, 1994, that the child would remain in the Stevenson School since the CSE had not recommended an alternative placement. She also requested that an impartial hearing be held to determine whether she should be reimbursed for her tuition expenditures. In a subsequent letter, dated September 12, 1994, petitioner withdrew her request for a hearing. The CSE purportedly met on September 26, 1994, when it recommended that the child be placed in respondent's specialized instructional environment - VII B program. Respondent acknowledges that petitioner did not receive advance notice of the meeting, and that the CSE was not validly constituted because the child's teacher did not attend the meeting. Petitioner reportedly did not learn of the September CSE meeting until early November, 1994, when she asked the CSE chairperson to reconvene the CSE. On or about November 8, 1994, petitioner also asked that an impartial hearing be scheduled. However, the hearing did not take place immediately because the parties were allegedly engaged in settlement discussions. The settlement negotiations were ultimately unsuccessful, and in February, 1995, petitioner's attorney asked to have the previously requested hearing rescheduled.
In the interim, petitioner met with the CSE on November 22, 1994. The CSE recommended that the child be placed on a 12-month basis in a private school, with classes having a student to adult ratio of 12:1:1. It also recommended that the child receive individual psychological services twice per week. Although not explicitly identified as such, the recommended services appear to have been intended to provide the child with counseling. The IEP included four annual goals for counseling. The CSE did not identify a specific placement for the child. In a letter to petitioner dated December 7, 1994, the CSE chairperson indicated that petitioner could place her daughter, at respondent's expense, in any private school which had been approved by the State Education Department (SED Jose P. et al. v. Ambach et al., [79 C 270, U.S.D.C. E.D.N.Y., 1982]).
The hearing in this proceeding was held on March 15, 1995. The assistant chairperson of the CSE of Community School District No. 3, who appeared on respondent's behalf, acknowledged that respondent had failed to make a timely and appropriate placement offer for the 1994-95 school year. With regard to the 1993-94 school year, the assistant chairperson asserted that petitioner's claim for tuition was time-barred. He also asserted that respondent had paid for the child's "psychological services", i.e., psychotherapy, while she attended the Stevenson School. Petitioner conceded that respondent had reimbursed her for a portion of her expenditures for the child's psychotherapy, but asked the hearing officer to direct respondent to reimburse her for all of her expenditures for psychotherapy. Petitioner testified very briefly at the hearing about her child's behavior since she has attended the Stevenson School. The principal of the Stevenson School testified that the child was instructed in small classes of no more than 13 children, and that she received a significant amount of individualized attention from her teachers and her individual teacher-advisor. He also testified that the child had earned approximately two years of high school credit, but acknowledged that she had not passed some of her courses because of her poor attendance. At the end of the hearing, petitioner's attorney indicated that, in addition to reimbursement for tuition and her out-of-pocket expenditures for the child's psychotherapy, she sought an order directing respondent to pay for a psychiatrist's evaluation of the child every three months. She also asked the hearing officer to make a finding that the Stevenson School was the child's current educational placement.
The hearing officer rendered his decision in this proceeding on April 24, 1995. He found that respondent had failed to make a timely and appropriate offer of placement for both the 1993-94 and 1994-95 school years. He further found that the Stevenson School offered an appropriate program for the child during both of those school years, and that its tuition rate of $19,000 per year, exclusive of the cost of counseling, was reasonable. The hearing officer ordered respondent to pay for the child's tuition for the 1994-95 school year. However, he found that petitioner's claim for reimbursement for the 1993-94 school year was untimely. The hearing officer noted that there was no express statute of limitations governing claims asserted under the Individuals With Disabilities Education Act (20 USC 1400), and considered whether the one-year statute of limitations of Section 3813 of the Education Law or the six-year statute of limitations for contractual actions under Section 213 of the Civil Practice Law and Rules should be borrowed and applied to petitioner's claim for reimbursement. He concluded that neither statue of limitations should be applied, and that the equitable doctrine of laches did apply. The hearing officer alluded to the decisions by the Commissioner of Education in Application of a Handicapped Child, 24 Ed. Dept. Rep. 454, and Application of a Child with a Handicapping Condition, 28 id. 211, as well as a recent Federal Court decision, Bernardsville Board of Education v. J.H. et al., F. 3d (3rd Cir, 1994), in holding that parents are limited to tuition reimbursement for the school year in which they initiate due process proceedings by asking for a hearing.
The hearing officer also denied petitioner's request for a series of changes to the child's IEP with regard to the services which were to be provided to the child. He found that such changes were not necessary because of his finding that the child's placement in the private school was appropriate. The hearing officer also denied petitioner's request for an order directing respondent to pay for future psychiatric evaluations of the child, and denied her request for reimbursement of a psychiatric evaluation which had already been obtained. He also denied petitioner's request for an order directing respondent to make specialized transportation arrangements for the child.
There is one procedural issue which needs to be addressed. Petitioner has submitted a reply to respondent's answer. Section 279.6 of the Regulations of the Commissioner of Education provides that a reply is permitted only when the respondent has raised procedural defenses, or submitted additional documentary evidence with its answer. A reply cannot be used to generally respond to each of the allegations made in the answer, as petitioner has attempted to do in her reply. Accordingly, her reply will be considered only for the limited purpose of responding to a classroom observation report which respondent has annexed to its answer.
Although petitioner asserts that the hearing in this proceeding was not held until approximately twenty months after her initial request for a hearing in June, 1993, and her subsequent request for a hearing in November, 1994, she has not specifically challenged the hearing officer's decision as being untimely (see 34 CFR 300.512[a]; 8 NYCRR 200.5[c]). In any event, I find that there is no merit to petitioner's assertion that the hearing which was held in this proceeding was initiated by her request for hearing in June, 1993. I note that petitioner has not disputed the accuracy of a statement by the Chief Administrator of respondent's Impartial Hearing Office that petitioner had asked to have the hearing which she requested in June, 1993 deferred, and had not sought another hearing until September 7, 1994. Five days thereafter, petitioner withdrew her hearing request (Exhibit M). Petitioner next sought to have a hearing in a letter dated November 8, 1994, for the limited purpose of obtaining "funding for the period from the start of the [1994-95] school year until the time that an appropriate program is identified" (Exhibit P). After that request for a hearing, petitioner met with the CSE on November 22, 1994. Although the parties disagree about the efficacy of the negotiations which they had after petitioner's November, 1994 request for a hearing, I find that there is no basis in the record for concluding that respondent intentionally violated petitioner's right to receive a prompt hearing.
Petitioner contends that the hearing officer failed to address some of the issues which she raised, and erred by declining to grant her the relief which she sought. She asserts that in a memorandum of law which was submitted at the hearing officer's request after the hearing had concluded, she requested that seven modifications be made in her child's IEP. She asked that the IEP provide that the child be instructed in a small, departmentalized classroom setting of no more than 12 students, and that her program be a "challenging, age-appropriate regular academic program for youngsters in the Superior range of academic ability". She also asked that the IEP's description of the child's management needs be modified to require that the child receive individual, daily monitoring of her attendance, lateness, and academic performance, and to provide for access to counseling or psychological stress intervention services on an as needed basis. In addition, petitioner asked that provision be made for outreach services to monitor the child's ability to get to school in a timely fashion, and to provide more flexible arrangements for transportation services. The last IEP modification which petitioner requested was a provision for regular psychiatric monitoring and periodic reevaluation of the effects of the medication which the child was taking upon her educational needs. The hearing officer found that the requested IEP changes were moot and unnecessary, in view of this finding that the child's program at the Stevenson School was appropriate.
I find that the hearing officer's decision with respect to petitioner's requested changes in her child's IEP must be sustained for two reasons. First, I agree with the hearing officer that there was no purpose to be served in revising the child's 1993-94 or 1994-95 IEPs. There is no legal requirement that the unapproved private school which the child attends follow an IEP. Both school years are now over. By virtue of the hearing officer's decision, the child's placement at the Stevenson School has become her "pendency placement" (see Section 4404  of the Education Law). To the extent that such modifications were sought to support petitioner's claim for reimbursement for services which she obtained, or which the private school provided for a fee in addition to its tuition charge, I find that petitioner's concern has been addressed in her separate claims for out-of-pocket costs for independent evaluations and psychotherapy given to the child. The second reason why the hearing officer's decision must be sustained is that the record in this proceeding is inadequate to support a decision about the requested IEP modifications. Although some of the modifications were mentioned in petitioner's letter to the CSE, dated July 8, 1994, they were not raised as issues to be determined by the hearing officer until petitioner submitted her post-hearing memorandum of law. Consequently, evidence was not adduced to support or challenge the child's IEPs. A hearing officer's decision must be based solely upon the record before the hearing officer (8 NYCRR 200.5 [c]). In this instance, there was a totally inadequate basis in the record for determining whether the child currently requires the services implicit in the IEP modifications sought by petitioner. It is the responsibility of the CSE to consider the child's current needs when it prepares her IEP for the 1995-96 school year.
The hearing officer did address petitioner's request for an IEP modification to provide for regular psychiatric monitoring and periodic reevaluation with respect to the effect of the child's medication upon her educational needs. He held that the record was devoid of evidence indicating what medication the child required, or why she needed periodic reevaluation. He also denied petitioner's request for reimbursement for one or more private psychiatric evaluations on the ground that the Board of Education must be afforded an opportunity to conduct its own evaluation before a parent may resort to a private evaluation.
With respect to petitioner's claim for reimbursement for prior psychiatric evaluations, I find that the hearing officer erred by holding that a parent cannot obtain an independent evaluation without first affording the board of education an opportunity to conduct its own evaluation. There is no requirement that a parent must first notify a board of education of his or her intent to seek an independent evaluation (Application of a Child with a Handicapping Condition, Appeal No. 92-21). Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFRR 300.503; 8 NYCRR 200.5 [a][vi][a]). Respondent must either pay for the child's independent psychiatric evaluation, or initiate a hearing to demonstrate the appropriateness of its own evaluation. It should be noted that a board of education may be held financially responsible for medical services only for diagnostic and evaluation purposes, and may not be required to pay for other medical services (20 USC 1401).
Petitioner argues that the hearing officer also ignored her request for an order directing respondent to modify its procedure with regard to identifying potentially appropriate non-public schools for its children with disabilities. In her closing remarks to the hearing officer, petitioner's attorney indicated that petitioner sought a directive that the CSE would not refer her child to any private school until the CSE had conducted "a full review as to the appropriateness of that school". (Transcript, p. 67) The CSE's representative at the hearing volunteered to visit any private school with the parent, before sending the child to the school for an interview. There is no evidence in the record that petitioner's child has been sent by the CSE to any private school for an interview. I find that petitioner's assertion about the hearing officer's failure to address the request is without merit, because there is no factual predicate for the relief requested by petitioner.
Petitioner further argues that the hearing officer erred in holding that petitioner's tuition reimbursement claim for the 1993-94 school year was barred by laches. Petitioner asserts that the hearing officer failed to adequately examine the facts to support a determination on the laches issue. Indeed, she suggests that the hearing officer used a generic approach to the issue, and possibly confused the facts in this case with those of other tuition reimbursement cases which he has recently decided. She alludes to the fact that the hearing officer discussed the applicability of various statutes of limitation to a parent's claim for tuition reimbursement, despite the fact that neither party to the hearing raised any statute of limitation argument, according to petitioner. Although I agree that there is no evidence that petitioner raised the six-year statute of limitations for contract claims, as the hearing officer erroneously indicated on page 5 of his decision, it does not follow that the hearing officer erred by attempting to ascertain whether there was any statutorily prescribed time limitation upon a tuition reimbursement claim. In this instance, the hearing officer found that there was no statutory limitation. I agree with the hearing officer (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).
The issue to be decided is whether petitioner unreasonably delayed in asserting her claim for tuition reimbursement, so that it would be inequitable to require respondent to reimburse petitioner. Petitioner argues that the hearing officer misapplied the equitable doctrine of laches to the facts of this case. Laches is an equitable defense which applies when a claimant unreasonably delays before asserting his or her claim, and the other party is prejudiced by the claimant's delay (Travelers Insurance Co. v. Cuomo, 14 F. 3d 708 [2d Cir., 1994], rev. on other grounds, 63 USLW 4372 ). Its relevance to this proceeding arises from the decision of the United States Supreme Court in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The Court held that a board of education may be required to pay for educational services obtained for a child by the child's 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. In this instance, petitioner has prevailed on the first and second of the three Burlington criteria. The timeliness of a parental claim for tuition reimbursement must be considered under the third Burlington criterion, i.e., do equitable considerations support the parents' claim (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25; Application of a Child with a Disability, Appeal No. 95-31).
Petitioner argues that the laches issue must be resolved after a careful analysis of the facts. I agree, but the initial question is whether the record which was before the hearing officer, and is now before me, is adequate to make the determination which is required. In order to determine whether petitioner unreasonably delayed in asserting her claim for tuition reimbursement for the 1993-94 school year, it is essential to establish when petitioner, in fact, requested a hearing to challenge the CSE's recommendation for the child's placement during the 1993-94 school year. As was noted in Bernardsville Board of Education v. J.H. et al., supra, filing a prompt complaint about a child's IEP affords a school district the opportunity to modify the IEP. The court in that case also indicated that mere notice of parental "dissatisfaction" with an IEP does not put the district on reasonable notice that the parents will challenge an IEP and seek reimbursement for a unilateral placement in a private school.
The record in this proceeding does not reveal when petitioner initially sought to obtain tuition reimbursement for the 1993-94 school year. Although petitioner implies in paragraph 29 of the petition that she initially sought such reimbursement in her letter dated September 7, 1994 (Exhibit L), I must note that the letter referred to the CSE's alleged failure to recommend a placement for the 1994-95 school year, and indicated that the "City" should be responsible for the child's 1994-95 tuition at the Stevenson School. On September 12, 1994, petitioner withdrew her request for a hearing (Exhibit M). By letter dated November 8, 1994, petitioner again asked for a hearing, but specified that the hearing was to be on the narrow question of funding from September, 1994 until the CSE made its recommendation for the 1994-95 school year (Exhibit P). I am not aware of any other documentary evidence in the record which would establish when petitioner sought to have a hearing with regard to the CSE's recommendation for the 1993-94 school year. Petitioner did not address the issue in her brief testimony at the hearing.
In addition to establishing when petitioner actually sought a hearing to obtain tuition reimbursement for the 1993-94 school year, it would also be necessary to know when petitioner knew of her right to obtain tuition reimbursement. As petitioner points out, she would not have been able to obtain tuition reimbursement for her child when she placed the girl in the Stevenson School in September, 1993, because that school had not been approved by the State Education Department as a school for children with disabilities (see Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]). However, the ruling in Tucker was, in effect, overruled on November 9, 1993, when the United State Supreme Court held that a parent could obtain reimbursement for tuition at an unapproved school, if the private school provided the child with an appropriate education (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 ).
In her application for review of the impartial hearing officer's determination, petitioner asserts that she did not become aware of her right to obtain tuition reimbursement at an unapproved school until she requested a hearing on September 7, 1994. No such assertion was made by the petitioner in her testimony at the March 15, 1995 hearing. In its answer to the petition, respondent disputes petitioner's assertion, but has not offered any convincing evidence to support its position. Inasmuch as this exchange of opinions regarding petitioner's awareness occurred after the March 15, 1995 hearing, the issue could not have been addressed by the hearing officer. The parties also dispute whether respondent provided petitioner with adequate notice of her due process rights. Once again, the record is inadequate to resolve the issue.
Although there is nothing in the record to suggest that petitioner did not act in good faith at all times, I find there are contradictory representations about petitioner's involvement with the CSE during the 1993-94 school year which should be resolved. At the hearing, the attorney asserted that petitioner had no contact with the CSE during the 1993-94 school year, except to correspond about reimbursement for her expenditures for psychotherapy. In her petition in this appeal, petitioner assert that she and the child's father " ... did not cease to press the CSE to revise its decision." (Paragraph 18)
I must also note that there is no evidence in the record of the specific amounts charged by the Stevenson School for tuition and counseling, for which a separate fee may be charged, the amounts the petitioner has paid the school, or the amounts which she paid for the child's twice weekly psychotherapy at the Stevenson School. Petitioner has the obligation to clearly identify and document the specific expenditures for which she seeks reimbursement, in order for the hearing officer to determine the reasonableness of the cost of the child's private school education (Florence County District Four et al v. Carter by Carter, supra). Under the circumstances, I am constrained to remand this proceeding back to respondent to arrange for another hearing at which adequate evidence may be adduced to answer the question whether equitable considerations support petitioner's claim for tuition reimbursement during the 1993-94 school year, including whether petitioner knew or ought to have known of her right to seek reimbursement, and to afford the petitioner the opportunity to submit sufficient evidence of her expenditures for the other services for which she seeks reimbursement.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the portion of the hearing officer's decision which denied petitioner's request for tuition reimbursement for the 1993-94 school year is annulled; and
IT IS FURTHER ORDERED that within ten days after the date of this decision respondent shall schedule a hearing to resolve the issue of whether equitable considerations support petitioner's claim for reimbursement for tuition and other educationally related expenditures for the 1993-94 school year.
|Dated:||Albany, New York||__________________________|
|July 14, 1995||DANIEL W. SZETELA|