The State Education Department
State Review Officer

No. 95-47

 

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, Bruce Rosenbaum, Esq., and Robert S. Nobel, 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.

        At the outset, I must address a procedural issue concerning this application for review. In his decision dated April 30, 1995, the impartial hearing officer held that petitioner had failed to seek tuition reimbursement for the 1993-94 school year in a timely manner, but held that an additional hearing was needed with regard to the issue of tuition reimbursement for the 1994-95 school year. Because the April 30, 1995 decision denying tuition reimbursement for the 1993-94 school year was a final decision with regard to that issue, petitioner should have appealed from that decision within 30 days (8 NYCRR 279.2 [b]). Instead, petitioner waited until after the hearing officer rendered his decision on June 2, 1995, on her claim for 1994-95 tuition reimbursement, before bringing this appeal. Since respondent has not raised the affirmative defense of timeliness in its answer, I will consider the merits of petitioner's appeal.

        The record reveals that on November 12, 1991, the child was classified as multiply disabled by the committee on special education (CSE) of the Community District No. 3. The child had cerebral palsy, and reportedly required the use of both a wheelchair and a walker. He also reportedly had a language disability. The child's classification is not in dispute in this proceeding. The CSE recommended that the child be placed in a special education class in respondent's modified instructional services-I (MIS-I) program, with the related services of counseling, occupational therapy, and physical therapy. However, the CSE reportedly did not have the required members present to make its recommendation. The child was reportedly enrolled in the MIS-I program at I.S. 70 for the remainder of the 1991-92 school year. At the hearing held on March 17, 1995, petitioner's attorney asserted that the child was never offered another public placement subsequent to the November, 1991 CSE meeting. However, at the May 11, 1995 hearing in this proceeding, petitioner testified that the child had been offered a placement in March, 1995 at a public school which was inaccessible for the physically impaired.

        The child entered the Winston Preparatory School in September, 1992. He remained there at petitioner's expense, during the 1992-93, 1993-94 and 1994-95 school years. Winston Preparatory 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.

        In this proceeding, petitioner sought reimbursement for tuition costs resulting from her unilateral placement of the child at the Winston Preparatory School for both the 1993-94 and 1994-95 school years. Petitioner, who attended the hearing, was represented at the hearing by her attorney. Respondent was represented at the hearing by the chairperson designee of the CSE of Community School District No. 3. The parties' representatives briefly stated their respective positions. Only two exhibits were introduced into evidence. Respondent submitted an individualized education program (IEP) dated November 2, 1991. Petitioner submitted a report card for the 1994-95 school year. Respondent's representative acknowledged that respondent had not offered the child an appropriate placement for the 1993-94 school year, but asserted that it was petitioner's responsibility to establish that the Winston School had offered appropriate services to the child. The representative argued that, in any event, petitioner's tuition claim for the 1993-94 school year was untimely.

        In a decision dated April 30, 1995, 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 after the 1993-94 school had ended before seeking tuition reimbursement. Despite the paucity of evidence before him, the hearing officer found that the child had benefitted from the program at the Winston School. However, he also found that the record lacked adequate information about the child's related services, which precluded him from determining whether the child's placement at the Winston School during the 1994-95 school year was appropriate. The hearing officer directed that there be an additional hearing to address the issue of the child's related services during the 1994-95 school year.

        The additional hearing was held on May 11, 1995. At the hearing, petitioner's attorney asked the hearing officer whether he would take evidence regarding the appropriateness of the Winston School during the 1993-94 school year, notwithstanding his April 30, 1992 decision that petitioner's claim was untimely. The hearing officer indicated that he would accept such evidence. Ms. Roberta S. Michaels, Head of School at the Winston Preparatory School, testified about the child's educational needs and progress. Ms. Michaels testified that the child had special education needs in the areas of reading, writing, and math, as well as physical needs which required that all of his classes be located on the first floor. The child received instruction in small groups, ranging from 10 children in history to five children in mathematics. Ms. Michaels testified that the child was appropriately grouped and was making progress. However, her testimony was primarily about the 1994-95 school year. Petitioner briefly testified that the child's related services were ultimately paid for by respondent.

        In his second decision in this proceeding, which was dated June 2, 1995, the hearing officer found that the child had been receiving appropriate related services, and he held that the child's program at the Winston School during the 1994-95 school year was appropriate. He ordered respondent to pay for the cost of the child's tuition at the Winston School during the 1994-95 school year. In his decision, the hearing officer indicated that the sole issue before him was petitioner's tuition claim for the 1994-95 school year, despite having advised petitioner's attorney that he would accept evidence about the 1993-94 school year. He made no finding with regard to the appropriateness of the private school's services during the 1993-94 school year.

        A board of education may be required to reimburse parents for the cost of a child's educational services obtained by the 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 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 Winston 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.

        With regard to the second Burlington criteria, petitioner asserts that the hearing officer found that the Winston School was appropriate during the 1993-94 school year, while respondent argues that petitioner failed to meet her burden of proving the appropriateness of the educational services she obtained for her child at either of the two hearings in this proceeding. The record reveals that the hearing officer found that petitioner's claim was untimely, and did not reach this issue of the appropriateness of the private school's services during the 1993-94 school year. In view of the way the hearings were conducted in this proceeding, I find that fairness requires that petitioner be afforded an opportunity to adduce evidence concerning the appropriateness of the Winston School during the 1993-94 school year, at an additional hearing which will be held pursuant to this decision.

        In his decision of April 30, 1995, 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. I agree with his finding (see 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 after the 1993-94 school year had ended. I must note that the record does not reveal when petitioner requested a hearing.

        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. This speaks to 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 the equitable considerations in this matter requires an analysis of facts not in evidence in the record before me. 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.

        This proceeding is another in a series of appeals in which the hearing record is 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. Some of the questions are as follows:

        When did petitioner request a hearing? What notice of her due process rights was given to petitioner? Did petitioner cooperate with the CSE during the time in question? When did the petitioner become aware, or when should she have become aware, of her right to obtain reimbursement for the placement of her child in an unapproved private school? When did the CSE become aware, or when should 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])?

 

 

        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 issues of whether the Winston School offered appropriate services to the child during the 1993-94 school year, and whether equitable considerations support petitioner's claim for tuition reimbursement for the 1993-94 school year.

 

 

Dated: Albany, New York __________________________
September 13, 1995 DANIEL W. SZETELA