No. 95-43

 

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, Masako C. Shiono, Esq., Geoffrey Lieber, 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 her for the cost of her 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 June 24, 1992, the child, who was then almost eight years old, was classified as learning disabled and speech impaired by the committee on special education (CSE) of the Community District No. 2. The child has reportedly been diagnosed as having an attention deficit hyperactivity disorder. The individualized education program (IEP) which the CSE prepared revealed that, when tested in October, 1991, the child had achieved a verbal IQ score which was in the average range and a performance IQ score in the upper end of the retarded range. The child reportedly had deficits in memory analytical, and organizational skills, and his fine motor skills were described as poor. At the time the IEP was prepared, the child was completing the second grade. His academic skills were generally delayed by almost one school year. On his IEP, the child was described as having difficulty with the pragmatics of functional communication, including listening, reasoning, and maintaining conversational relevancy. The child's classification has not changed, and that classification is not in dispute. Consequently, I do not reach the issue of the appropriateness of the child's classification (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]).

The CSE recommended that the child, who had previously received resource room services from respondent, be placed in a special education class in respondent's modified instructional services-I program (MIS-I) in respondent's P.S. 116, with the related services of group and individual speech/language therapy, and individual occupational therapy, as well as resource room services. However, the child was unilaterally enrolled by his parent in the Stephen Gaynor School, which he attended during the 1992-93, 1993-94, and 1994-95 school years. Respondent provided transportation to the Steven Gaynor School, while the private school reportedly provided the child with related services.

The Stephen Gaynor 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.

The record does not reveal what, if any, recommendation the CSE made for the child's educational program during the 1993-94 school year. At the hearing in this proceeding, petitioner's attorney asserted that the CSE had not made any recommendation, after its 1992 recommendation. The CSE's representative conceded that the CSE failed to make any recommendation for the child's program during either the 1993-94 or 1994-95 school year, and asserted that petitioner was untimely in asserting any claim with respect to the 1993-94 school year.

An impartial hearing was held on May 4, 1995, at petitioner's request, for the purpose of obtaining reimbursement for tuition costs resulting from her unilateral placement of the child at the Stephen Gaynor School for both the 1993-94 and 1994-95 school years. Petitioner was represented at the hearing by her attorney. However, petitioner did not attend the hearing. Respondent was represented at the hearing by the chairperson designee of the CSE of Community School District No. 2.

The only testimony at the hearing was provided by the Assistant Director of the Stephen Gaynor School, who testified by telephone. She testified that the child had language problems which affected his reading comprehension. He also had short-term memory problems which affected his ability to stay focused on single tasks. She opined that the boy required the speech/language therapy which he received both individually and in small groups. The child was in a class of nine students who reportedly had similar cognitive and reading abilities, during the 1994-95 school year. He received reading instruction in a group of six students and math instruction individually. The Assistant Director testified that the child had made considerable progress during the 1994-95 school year.

Four written documents were admitted into evidence. Respondent submitted a Notice of Recommendation dated August 5, 1992, and an IEP dated June 24, 1992. Petitioner submitted a Stephen Gaynor School progress report for the 1994-95 school year, and a class profile for the same year.

In her decision dated May 19, 1995, the impartial hearing officer ordered respondent to reimburse petitioner's tuition costs for the Stephen Gaynor 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 been aware in August, 1992, of her right to have a CSE's action reviewed by an impartial hearing officer, but she had waited until the 1994-95 school year to seek tuition reimbursement for the 1993-94 school year. 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, supra; Application of a Child with a Disability, Appeal No. 95-37). Prior to November 9, 1993, petitioner was precluded from seeking reimbursement for the child at the Stephen Gaynor School, because that 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. 2d 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 finding that the services received by the child at the Stephen Gaynor School were appropriate during the 1993-94 school year was premised upon the testimony of the assistant director of the Stephen Gaynor School as well as a progress report and class profile. The evidence of the appropriateness of the private school's program which is in the record relates primarily to the 1994-95 school year. Nevertheless, the Assistant Director did testify that the child had made progress in both reading and mathematics at the Stephen Gaynor School during the 1993-94 school year. In its answer to the petition in the appeal, respondent accepts, i.e., does not challenge, the hearing officer's finding that the program of the Steven Gaynor School was appropriate for the child during the 1993-94 school year (the second Burlington criterion).

In her 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 her claim for tuition reimbursement. Respondent concedes that there is no explicit statute of limitations (see also 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 her claim for reimbursement until March, 1995, which was nine months after the 1993-94 school year had ended. Respondent contends that petitioner's delay in asserting her claim resulted in prejudice to the board of education. However, it offered no evidence to support that contention at the hearing. It also makes the extraordinary assertion that the child was not prejudiced by the CSE's failure to recommend an educational program for the 1993-94 school year.

As both parties appear to agree, the issue of the timeliness of a parental request for tuition reimbursement must be considered in determining whether equitable considerations support the parent's claim for reimbursement, i.e. the third Burlington criterion (Application of a Child with a Disability, Appeal No. 95-37; Application of a Child with a Disability, Appeal No. 95-32). A determination of this nature requires a careful consideration of the relevant facts.

This proceeding is another in a series of appeals in which the hearing record is totally inadequate to determine whether equitable factors supported the parent's 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; Application of a Child with a Disability, Appeal No. 95-39). 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 her due process rights must be ascertained. Petitioner acknowledges being advised of her due process rights when she received notice of the CSE's recommendation for the 1992-93 school year, but asserts that she did not receive either a recommendation or a notice of her rights with regard to the 1993-94 school year. Second, when did the petitioner become aware, or when ought she have become aware, of her right to obtain reimbursement for the placement of her child in an unapproved private school? Petitioner asserts in her petition that she did not become aware of her right to seek tuition reimbursement until "this past Winter", and that she thereafter retained counsel and requested that an impartial hearing be held. 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). The record does not reveal when petitioner, in fact, requested the hearing which was held in this proceeding. 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]). Respondent claims that in the absence of any notification of parental dissatisfaction, its CSE was unaware of the need for "continued review". 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 considerations support petitioner's claim for tuition reimbursement for the 1993-94 school year.

 

 

 

Dated: Albany, New York

September , 1995 ROBERT G. BENTLEY