The State Education Department
State Review Officer

No. 95-39

 

Application of a CHILD WITH A DISABILITY, by his 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

Appearances:
Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Norma Kerlin, Esq., and Renee R. Nebins, Esq., of counsel

 

DECISION

Petitioner appeals from the decision of the impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his son's tuition at the private school in which petitioner placed the child for the 1993-94 school year. The hearing officer denied petitioner's request for reimbursement solely on the basis of petitioner's alleged failure to request reimbursement in a timely manner. This appeal must be sustained in part.

The record reveals that on May 7, 1993, the child was classified as emotionally disturbed by the committee on special education (CSE) of the Community District No. 3. The child has remained classified as emotionally disturbed. His classification is not in dispute. The CSE recommended that the child be placed in a special education class in respondent's modified instructional services-IV program (MIS-IV) . However, respondent concedes that it failed to offer an appropriate placement for the child for the 1993-94 school year. It further concedes that it did not provide petitioner with a notice of the CSE's recommendation (cf 8 NYCRR 200.5 [a][4]). On June 7, 1994, the CSE recommended that the child be placed in a MIS-IV class and that he receive individual and group counseling. At the hearing, the CSE representative conceded that the CSE had not included the required teacher member (cf. 34 CFR 300.344 [a][2]).

In September, 1993, the child was placed by his parents in the West End Day School, which he attended during the 1993-94 and 1994-95 school years. The West End Day School, which is located in New York City, is a private school for children with disabilities. However, it has not been approved by the New York State Education Department as a school for educating children with disabilities, for the purpose of State reimbursement to school districts for the cost of the children placed in the school.

An impartial hearing was held on April 3, 1995, at petitioner's request, for the purpose of seeking reimbursement for tuition costs resulting from his unilateral placement of the child at the West End Day School for both the 1993-94 and 1994-95 school years. Petitioner was represented at the hearing by his attorney. However, petitioner did not attend the hearing. Respondent was represented at the hearing by the assistant chairperson of the CSE of Community School District No. 3. The only testimony at the hearing was provided by the educational coordinator of the West End Day School. She testified that the child was bright, but easily upset. She opined that the boy required a structured setting, while noting that he could be quite verbally oppositional. The coordinator testified that the child's behavior in school had improved. She reported that the child's mathematic skills were at the appropriate grade level, but that he was six or seven months behind in reading. Additionally, three written documents were admitted into evidence. Jointly submitted were a Notice of Recommendation dated June 22, 1994, an IEP dated June 7, 1994, and a West End Day School progress report dated April 3, 1995. One of the child's parents reportedly signed the Notice of Recommendation.

In a decision dated May 12, 1995, the impartial hearing officer ordered respondent to reimburse petitioner's tuition costs for the West End Day School for the 1994-95 school year. However, the impartial hearing officer denied the petitioner's request for reimbursement of tuition costs for the 1993-94 school year, on the ground that petitioner had not made a timely request for tuition reimbursement. Specifically, the hearing officer found that petitioner had waited until the 1994-95 school year to seek tuition reimbursement. In this appeal, petitioner seeks reversal of that portion of the hearing officer's decision which denied petitioner reimbursement of tuition costs for the 1993-94 school year.

A board of education may be required to reimburse parents for the cost of a child's educational services attained by the parents, if the services offered by the board of education are inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 95-37). Prior to November 9, 1993, petitioner was precluded from seeking reimbursement because the West End Day School had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2d, 563 [2nd Cir., 1989]; Lombardi v. Nyquist, 63 AD. 2nd 1058 [3rd Dept., 1978]). On November 9, 1993, the U.S. Supreme Court held that a parent could obtain reimbursement for tuition at an unapproved private school, if the private school provided the child with an appropriate education (Florence County School District v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

The impartial hearing officer found, and respondent concedes, that respondent did not meet its burden of demonstrating that it had offered the child an appropriate program or placement for the 1993-94 school year. As a result, petitioner prevailed with respect to the first Burlington criterion, i.e., whether the services offered by the board of education in the 1993-94 school year were appropriate for the child.

The impartial hearing officer also found that petitioner prevailed with respect to the second Burlington criterion, i.e., whether the services received by the child at the private school were proper under the Individual with Disabilities Education Act (20 USC 1400 et seq). I note that the impartial hearing officer's findings that the services received by the child at the West End Day School were appropriate during the 1993-94 school year were premised upon the testimony of the education coordinator of the West End Day School as well as a progress report. At the hearing, the education coordinator asserted that the child had made progress, both academically and socially, while in the West End Day School. The educational coordinator's testimony related predominately to the 1994-95 school year. She testified that the child was instructed in a class of nine children with two teachers, and that a social worker also worked with the child in his class to control the boy's acting out behavior. In its answer to the petition in the appeal, respondent accepts, i.e., does not challenge, the hearing officer's finding on the second Burlington criterion.

In his decision, the hearing officer found that there was no express statute of limitations prescribing the time within which the petitioner was required to have asserted his claim for tuition reimbursement. I agree with his finding (Application of a Child with a Disability, Appeal No. 95-37). However, the hearing officer found, and respondent argues in this appeal, that petitioner's claim is barred by the equitable doctrine of laches, because petitioner did not attempt to assert his claim for reimbursement until February, 1995, which was eight months after the 1993-94 school year had ended. Respondent contends that petitioner's delay in asserting his claim resulted in prejudice to the board of education. However, it offered no evidence to support that contention at the hearing. Accordingly, the issue of the timeliness of the parental request for tuition reimbursement must be considered in determining whether equitable considerations support the parents' claim for reimbursement (Application of a Child with a Disability, Appeal No. 95-37; Application of a Child with a Disability, Appeal No. 95-32).

This proceeding is another in a series of appeals in which the hearing record is totally inadequate to determine whether equitable factors supported the parents' claim for tuition reimbursement (Application of the Bd. of Ed. City School District of the City of New York, Appeal No. 95-25; Application of the Bd. of Ed. City School District of the City of New York, Appeal No. 95-26; Application of a Child with a Disability, Appeal No. 95-31; Application of a Child with a Disability, Appeal No. 95-34; Application of a Child with a Disability, Appeal No. 95-37). I am compelled by the similarly limited record in this proceeding to make the same finding in this matter, and to remand this matter for a further hearing. As outlined in Application of a Child with a Disability, Appeal No. 95-37, there are a number of questions which at a minimum, must be addressed by an impartial hearing officer to provide an adequate basis for reaching a decision with regard to the third Burlington criterion.

First, the extent to which the CSE provided notice to the petitioner about his due process rights must be ascertained. Although the notice of the CSE's recommendation which the parent signed included a brief reference to an impartial hearing, it is unclear whether petitioner was aware that he actually had a right to seek tuition reimbursement at an unapproved private school. Second, when did the petitioner become aware, or when ought he have become aware, of his right to obtain reimbursement for the placement of his child in an unapproved private school? Petitioner asserts in his petition that he did not become aware of his right to seek tuition reimbursement until January, 1995. However, respondent should have the opportunity to examine petitioner under oath at a hearing (Application of a Child with a Disability, Appeal No. 95-40). Third, when did the CSE become aware, or when ought it have become aware, of petitioner's dissatisfaction about the CSE's inaction with respect to offering an appropriate placement for the 1993-94 school year (Bernardsville Bd. of Ed. v. JH et al., F. 3rd [3rd Cir., 1994]). Fourth, did petitioner cooperate with the CSE during the time in question? A determination of the equitable considerations in this matter requires an analysis of facts not in evidence in the record before me. As a result, I believe that both parties should have an opportunity to establish a basis in the record for their respective positions concerning equities of awarding tuition reimbursement to the petitioner for the 1993-94 school year.

THE APPEAL IS SUSTAINED to the extent indicated;

IT IS ORDERED that the portion of the hearing officer's decision which denied petitioner's claim for tuition reimbursement for the 1993-94 school year is annulled;

IT IS FURTHER ORDERED that within 10 days after the date of this decision, respondent shall schedule a hearing to resolve the issue of whether equitable consideration support petitioners' claim for tuition reimbursement for the 1993-94 school year.

 

Dated: Albany, New York __________________________
August 29, 1995 ROBERT G. BENTLEY