The State Education Department
State Review Officer

No. 95-49

 

 

Application of the BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Raymond G. Kuntz, P.C., attorney for petitioner, Wendy Klarfeld Brandenberg, Esq., of counsel

Koob and Magoolaghan, Esqs., attorneys for respondents, Joan Magoolaghan, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Hendrick Hudson Central School District, appeals from the decision of an impartial hearing officer which directed petitioner to reimburse the parents of a child with a disability for the cost of the child's tuition at an unapproved private school during the 1994-95 school year. The appeal must be sustained. Respondents, the child's parents, cross-appeal from the hearing officer's decision to the extent that it denied their claim for tuition reimbursement for the 1992-93 and 1993-94 school years on the grounds that their claim was barred by laches. The cross-appeal must be dismissed.

        Respondents' daughter, who is 12 years old, reportedly suffered fetal distress at the time of her delivery. Her speech and developmental milestones were reportedly achieved in a normal timespan, but her running and catching were described as awkward. The child attended a private preschool for two years in Ardsley, New York. During the 1987-88 school year, she was enrolled for kindergarten in a private school in Hartsdale, New York. In the child's social history, the child's parents indicated that the child had a difficult time in kindergarten, because the teacher was reportedly very strict.

        The child was enrolled for the first grade in petitioner's Furnace Woods Elementary School (FWES) during the 1988-89 school year. At the hearing in this proceeding, the child's father testified that he had alerted the child's teacher that there was a history of dyslexia in the father's family. In January, 1989, the child's first grade teacher reported that the child "essentially couldn't read" at the beginning of first grade, but that her reading ability had "flourished." The teacher indicated that the child could "sound out" i.e., decode a few words, and knew some words by sight. According to the teacher, the child could express her thoughts in complete written sentences, and had a good grasp of mathematical concepts. In June, 1989, the child's first grade teacher reported that the child had made good progress in reading and mathematics. On a standardized test administered in May, 1989, the child achieved scores at the 53rd percentile in reading and the 46th percentile in mathematics.

        During the 1989-90 school year, the child was enrolled in the second grade in the FWES. The child was described in a mid-year report by her teacher as being an enthusiastic member of the class, and as having made fine academic progress. The teacher indicated that the child appeared to have strong listening skills, but did not always follow through with the teacher's verbal directions. She also indicated that the child required a great deal of extra individual attention from adults, but was trying to improve her ability to remain on task for a significant amount of time. At the hearing in this proceeding, the child's father testified that the child had begun to act out at home during the second grade, and that she was counseled by a social worker for a few months during the 1989-90 school year. At the end of the 1989-90 school year, the child's report card indicated that the child had made either "good" or "excellent" progress academically, and that her work and social habits were "satisfactory". The child's standardized test scores were at the 35th percentile in reading and the 90th percentile in mathematics. Respondents discussed the scores with the Principal of FWES, who reportedly advised them that the child's performance on the reading portion of the test was not cause for concern.

        While she was enrolled in the third grade during the 1990-91 school year, the child received positive reports from both of the two teachers she had that year. Her third grade teacher for the first semester reported in January, 1991 that the child's reading was progressing nicely, and that she enjoyed writing with others. The teacher also reported that the child was making good progress in all subject areas, but that she needed constant praise to continue on a task. The child's report card at the end of the year indicated that her progress was "good" or "excellent" in all subjects, and her work and social habits were "satisfactory". The child's teacher during the second semester reported that the child had matured socially and academically. On a standardized test administered in May, 1991, the child's scores were at the 15th percentile in reading and the 63rd percentile in mathematics. The record reveals that the child achieved scores above the statewide reference point on the Pupil Evaluation Program third grade reading and mathematics tests.

        During the Summer of 1991, respondents consulted a psychologist about the child's behavioral difficulties at home. The psychologist recommended that the child be evaluated to determine whether she had a learning disability. In August, 1991, respondents referred the child to petitioner's committee on special education (CSE) for an evaluation. The child was observed in her fourth grade classroom by respondent's school psychologist, who reported that the child had made many misspellings while printing and writing in cursive. She also evidenced difficulty with decoding words. The school psychologist, who also evaluated the child, reported that the child had achieved a verbal IQ score of 100, a performance IQ score of 111, and a full scale IQ score of 105. The school psychologist reported that there was a considerable variation among the child's scores on particular portions of the IQ test. The child exhibited deficits on subtests which required her to mentally solve numerical problems, use her short-term memory of number sequences, and perform coding tasks. The psychologist further reported that the results on those subtests were particularly affected by distractibility. The child's performance on an anxiety scale was significantly above average for girls her age. The school psychologist opined that the child's anxiety might be affecting the child's ability to attend to tasks. The school psychologist recommended that the child be provided with preferential seating in class to minimize distractions, and that she be allowed to use a word processor to assist her in reducing her spelling errors. She also suggested that the child's emotional concerns be further investigated.

        An educational evaluator reported that the child exhibited a three-year delay in her visual motor integration skills. She was described by the evaluator as having relative strength when using visual input and written responses and relative weakness when using auditory input and verbal responses. The child achieved grade equivalent scores of 2.8 in reading decoding, 2.0 in spelling, 4.5 in mathematical computation and 4.9 in mathematical applications. The evaluator recommended that lessons which were taught orally to the child should be reinforced visually.

        Respondents were scheduled to meet with the CSE on September 26, 1991, to discuss the results of the child's evaluation. The child's father testified that he was contacted by the FWES Principal three days before the CSE was to meet. The principal reportedly told the child's father that the preliminary results of the evaluation did not indicate that the child had a disability, and the principal suggested that the CSE meeting could be postponed, if respondents withdrew their referral of the child to the CSE. The respondents withdrew their referral, with the understanding that they would meet with the principal to discuss the results of the evaluation, and would later meet with the principal, petitioner's evaluators, the child's fourth grade teacher, and petitioner's reading specialist. Those meetings were held in October, 1991. The child's father testified that petitioner's staff was not willing to provide the child with either remedial reading services or resource room services.

        The private psychologist with whom respondents had consulted about the child's behavioral problems referred respondent to a specialist in learning disabilities. In February, 1992, the specialist reportedly told respondents that their child had a problem with reading, but it did not appear to be a language-based disability. The specialist recommended that respondents employ a tutor to assist the child in reading, and have the child evaluated by a neuropsychologist. A tutor began to use the Orton-Gillingham method of teaching reading with the child in February, 1992.

        A neuropsychologist evaluated the child in March, 1992. He reported that the child had achieved a verbal IQ score of 124, a performance IQ score of 117, and a full scale IQ score of 123. While noting that the IQ test which he had used had different norms than the test which petitioner's school psychologist had used, he reported that the child had also achieved an IQ score of 122 on another IQ test which he administered. The neuropsychologist reported that the child's language skills were generally well developed, while noting that she exhibited deficits in sequencing and short-term attention skills. Her memory skills were generally above average, but the child exhibited a limited auditory attention span. The neuropsychologist reported that the child's reading and spelling skills, which were barely in the average range, were well below her expected level of performance, given her cognitive ability. Although the child's spelling skills had improved from the level reported by petitioner's educational evaluator in September, 1991, the child nevertheless continued to make phonetic and visually based errors. Her arithmetic skills were described as generally above average. The neuropsychologist indicated that projective testing had revealed that the child was anxious and trying to avoid contact with her feelings. He also reported that she exhibited a lack of confidence and a fear of criticism. The neuropsychologist opined that the child had a developmental learning disability based upon her reading decoding and spelling deficits, but that her learning disability was not primarily language-based. He further opined that the child's disability involved sequential processing and visual accuracy. He noted that the child had a limited attention span, and some limitation in visual discrimination. He recommended that the child be given extended time to complete reading tests and tests involving extensive writing. He urged that the child's spelling and handwriting should not be used to judge the content of her written work, and that she should eventually use word processing to assist her written expression. He did not suggest any major change in the child's educational program, but did suggest that she receive a program of remedial instruction using phonetic clues for improving her reading and spelling skills outside of class and during the summer. He also suggested that a psychiatrist be consulted with regard to the child's anxiety and that the child might benefit from continued psychotherapy.

        By letter to petitioner's Director of Special Education, dated April 2, 1992, respondents indicated that they intended to enroll the child in one of two private schools in September, 1992, and requested that petitioner provide transportation to the child. They also asked to meet with the CSE. The CSE met with respondents on May 12, 1992. The CSE recommended that the child be classified as learning disabled, and that she receive resource room services once per day. At the CSE meeting, respondents orally requested that petitioner pay for the child's tuition at the Windward School during the 1992-93 school year. They were reportedly told by the CSE chairperson that respondent could not pay for the child's tuition because the Windward School had not been approved by the State Education Department as a school for children with disabilities. The child's father testified that he orally asked petitioner to pay for the child's tuition at a board of education meeting in July, 1992, and was again told that petitioner could not do so because the private school was not approved.

        In May, 1992, respondents asked to be reimbursed for the cost of the child's evaluation by the neuropsychologist. The child's father testified that respondents were reimbursed by petitioner in July, 1992.

        The IEP prepared at the May 12, 1992 CSE meeting was not implemented. The child remained in the regular education fourth grade class at FWES. In January, 1992, the child's teacher had reported that the child had developed strong word attack skills, vocabulary and reading comprehension. He also reported that the child's spelling had improved, and that her writing had shown good sequencing, comprehension, and the use of details. The child's report card at the end of fourth grade revealed that she had worked at the fourth grade level in all subjects, and that her academic progress was either "good" or "excellent" in each subject. Her work and social habits were described as "satisfactory". However, the child's teacher had indicated in a report to the CSE, dated May 2, 1992, that the child had difficulty with her reading decoding, vocabulary, and oral expression skills.

        Respondents met with the CSE again on June 30, 1992. The child's father testified that the meeting was held to consider respondents' request that petitioner transport the child to the Windward School which had accepted respondents' application for admission. The other private school to which respondents had applied declined to accept the child because the school could not provide the level of support which the child reportedly required. The CSE recommended that transportation be provided. However, the Director of Special Eduation testified that the CSE also prepared an IEP for the 1992-93 school year (Exhibit 16). The CSE again recommended that the child receive resource room services for one period per day.

        During the 1992-93 school year, the child was enrolled in the fifth grade at the Windward School, which she attended at respondents' expense. The record reveals that her reading skills were at the 30th percentile for her chronological peers in September, 1992, and at the 55th percentile in September, 1993. However, her grade equivalent scores were beginning third grade in 1992 and end of fifth grade in 1993. Her spelling skills had improved by one year during the same period. Her writing skills had also reportedly improved. In preparation for the CSE's annual review, which was scheduled to take place in August, 1993, petitioner's Director of Special Education asked respondents to submit a written request for transportation during the 1993-94 school year and a letter from the Windward School describing how the private school would offer "support to your child".

        On August 23, 1993, the CSE recommended that the child remain classified as learning disabled, and that she receive one period per day of resource room services, during the 1993-94 school year. The individualized education program (IEP) which the CSE prepared for the child erroneously indicated that the child would be in the fifth grade during the 1993-94 school year, when in fact she was in the sixth grade. The IEP was virtually identical to the child's prior IEP. The child remained at the Windward School, at respondents' expense, for the 1993-94 school year. Petitioner again provided transportation to the child. The child's standardized test scores provided by the Windward School indicated that in September, 1994, the child's reading skills remained at the 55th percentile, but were at a beginning seventh grade level. Her spelling skills had improved by two years, to a beginning sixth grade level.

        The child's father wrote a letter to petitioner's superintendent of schools, on August 4, 1993. He described his efforts to have the child's disability acknowledged by petitioner's staff, and expressed concern about his son, who was enrolled in the FWES. The child's father acknowledged that petitioner had taken the position that it could not agree to pay for his daughter's tuition at the Windward School, but asserted that it was nonetheless petitioner's duty to assume financial responsibility for the child's education. At the hearing, the father testified that he had not received a response to his letter.

        In a letter to petitioner's president, dated November 17, 1993, the child's father asked the Board of Education to pay for the child's tuition at the Windward School during the 1992-93 and 1993-94 school years, and to agree to pay for her tuition in subsequent school years. He asserted that respondents had been intentionally misled about the seriousness of the child's disability and the significance of her performance upon standardized tests by the principal of the FWES. He further asserted that respondents had incurred expenses of $3,350 for private counselors and $1,950 for a private tutor. It should be noted that when the child's father made his written request, petitioner had brought charges against the principal of the FWES pursuant to Section 3020-a of the Education Law. Some of the charges against the principal involved meetings which she had held with respondents to discuss their child's performance on the standardized tests which she had taken, and the principal's alleged failure to refer the child to the CSE in either the 1990-91 or 1991-92 school years. The principal was also charged with having failed to advise the child's parents of the availability of "special and/or related educational services and programs". The charges against the principal had not been adjudicated by the time the hearing in this proceeding had concluded, and there is no evidence in the record before me that the charges have been determined.

        The child's father testified that he had written to petitioner's president, after he had read about the November 9, 1993 decision of the United States Supreme Court in Florence County School District v. Carter by Carter, U.S. , 114 S.Ct. 361, in which the Court held that parents could obtain reimbursement for tuition at an unapproved private school, if the private school provided the child with an appropriate education. The Court's decision was a clarification of its 1985 decision in School Committee for the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, in which the Court held that a board of education may be required to reimburse parents for the costs which they incurred in providing education services to their child, if the services offered by the board of education were inadequate or inappropriate, the services obtained by the parents were appropriate, and equitable considerations support the parents' claim for reimbursement. Prior to the Carter decision, it was not possible to obtain reimbursement for tuition at an unapproved school (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3rd Dept., 1978]). The child's father testified that he had not received a response to his letter to petitioner's president.

        By letter to the Director of Special Education, dated March 6, 1994, the child's father requested that petitioner transport the child to the Windward School for the 1994-95 school year. By letter dated July 25, 1994, the Director of Special Education informed respondents that the CSE would conduct its annual review on August 2, 1994. He asked respondents to submit a letter requesting transportation, if they had not already done so, and to have the Windward School submit a letter indicating how its program "will offer support." By letter dated August 1, 1995, the child's father again requested transportation. The Windward School provided a brief statement indicating that it offered a structural setting for the academic remediation of dyslexic students.

        On August 2, 1994, the CSE recommended that the child remain classified as learning disabled, and that she receive resource room services one period per day, while enrolled in petitioner's Blue Mountain Middle School during the 1994-95 school year. The child's IEP erroneously indicated that the child would be enrolled in the sixth grade, rather than the seventh grade, for the 1994-95 school year. Respondents, who did not attend the August 2, 1994 CSE meeting, were notified of the CSE's recommendation in a letter dated September 27, 1994. They chose to enroll the child, at their expense, in the Windward School for the 1994-95 school year.

        In a letter to petitioner's president, dated January 3, 1995, the child's father referred to informal attempts between his attorney and petitioner's attorney to resolve the matter of respondents' request for tuition reimbursement, and requested that an impartial hearing be held. The hearing in this proceeding began on February 10, 1995, and concluded on March 31, 1995. Both parties were afforded the opportunity to submit written argument to the hearing officer by no later than May 8, 1995. The hearing officer, who rendered his decision on June 13, 1995, relied upon the three criteria for tuition reimbursement set forth in the Burlington decision. The hearing officer found that petitioner had not established that it had offered an appropriate program to the child, because the CSE had failed to clearly examine or resolve whether the child's disability was auditorily or visually based, and because there was no proof that the child had been physically examined, a required part of a CSE evaluation (8NYCRR 200.1[v]). The hearing officer found that respondents had provided little evidence about the nature of the education program which the Windward School provided to the child, but concluded from the test data which were in the record that the child had made significant academic progress while attending the Windward School. He found that respondents had prevailed with respect to the second Burlington criterion, i.e., whether the services obtained by the parents were appropriate. With regard to the third Burlington criterion, i.e., whether equitable considerations supported respondents' claim for tuition reimbursement, the hearing officer held that respondent's claims for the 1992-93 and 1993-94 school years were untimely, but their claim for the 1994-95 school year should be granted. He directed petitioner to reimburse respondents for tuition during the 1994-95 school year.

        On the standardized achievement test which she took in September, 1994, as she was entering the seventh grade, respondents' child achieved grade equivalent scores of beginning seventh grade for reading, beginning sixth grade for spelling and beyond eight grade for mathematics. However, neither party has challenged the appropriateness of the child's classification as learning disabled. In the absence of a challenge to the child's classification, I am precluded from reviewing its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73[N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 93-42).

        Petitioner contends that the hearing officer erred in finding that petitioner failed to establish that it had offered the child an appropriate educational program for 1994-95 school year. It challenges his finding that the record did not include evidence of the required physical examination. Exhibit 1 is a form entitled "Pertinent Physical History from School Nurse", which is dated September 12, 1991. The results of the child's vision and hearing tests are reported on the form. In addition, the form indicates that the annual physical examination was performed on September 14, 1991, and that the results of such an examination were normal. The information about the physical examination was apparently added subsequent to the date when the form was initially prepared. In any event, I agree with petitioner that the record does include the results of a physical examination within the three years preceding the CSE's latest recommendation.

        Petitioner also challenges the hearing officer's finding that its CSE lacked adequate evaluative information about the child to permit it to determine whether the child's disability was visually or auditorily based. In September, 1991, petitioner's educational evaluator had opined that the child appeared to function best when presented with information visually. The private neuropsychologist subsequently opined that the child's learning difficulties were the result of weaknesses in her ability to sequentially process information and to perceive visual details. However, the neuropsychologist did not opine that the child learned best auditorially. Consequently, I find that the CSE cannot be faulted for allegedly failing to resolve the question of whether the child's disability was primarily auditory or visual.

        Petitioner acknowledges that its CSE did not have information about the child's current levels of performance, which is required to prepare an appropriate IEP (34 CFR 300.346 [a][1]; 8 NYCRR 200.4[c][2][i]). However, petitioner asserts that the CSE was precluded from obtaining updated information about the child because the child's parents asked that her triennial evaluation be postponed. I found that petitioner's argument is without merit. The child's father and petitioner's Director of Special Education testified that they had discussed the timing for the child's triennial evaluation prior to the August , 1994 CSE meeting at which the child's IEP was prepared, and had agreed to defer the evaluation until after the CSE meeting. However, I find that there is nothing in the record to establish that respondents refused to have the child evaluated prior to the CSE meeting. I further find that the Director of Special Education's request to respondents that the Windward School furnish information about how its program "will offer support" was not specific enough to ensure that the CSE received information about the child's current levels of performance.

        Petitioner also acknowledges that the child's 1994-95 IEP erroneously indicated that the child would be in the sixth rather than the seventh grade. It contends that the matter could have been addressed in "transition" meetings held prior to the start of school, if respondents had chosen to enroll their child in petitioner's middle school. In this proceeding, petitioner was required to show that the program recommended by its CSE was appropriate. It attempted to do so through the testimony of the sixth grade resource room teacher, who discussed her program and her needs of the children in her class, to establish that the child would have been suitably grouped (8 NYCRR 200.6 [g][2]). Since the evidence which petitioner presented concerned a six grade placement, I find that the petitioner has failed to establish that it offered an appropriate program to the child for the 1994-95 school year. Therefore, I find that respondents have prevailed on the first of the three Burlington criteria.

        The Board of Education also challenges the hearing officer's decision to award tuition reimbursement to the parents on the ground that respondents failed to meet their burden of proof concerning the appropriateness of the Windward School's educational program for their child (Application for a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34). To meet their burden, respondents must show that the educational services provided by the Windward School addressed the child's identified special education needs. The record reveals that the child has deficits in her ability to process information sequentially, to discern visual details, to maintain her attention, and to control certain fine muscles. Those deficits have reportedly impaired the child's ability to read, spell, and write.

        The evidence about the Windward School which is in the record of this proceeding consists of the testimony of a psychologist who is a consultant for the Windward School, and various pamphlets or brochures of the school which briefly describe its purposes and objectives, its elementary, middle and high schools, and its writing program. The psychologist, who had reviewed this child's application for admission to the Windward School, did not have personal knowledge of the instruction which was provided to the child or how she was functioning in school. The consultant testified that the Windward School offers a language-based curriculum using the Orton-Gillingham methodology to teach reading. She further testified that the private school has an integrated language arts program consisting of three periods per day of related instruction in reading decoding, spelling, and writing using the Orton-Gillingham technique. Although the consultant opined that the child had made academic progress while enrolled in the Windward School, the consultant's general description of the school's program did not demonstrate that the program addressed this child's special education needs. In essence, the evidence which respondents adduced demonstrated that the Windward School addressed the needs of children with a language-based disability. However, the neuropsychologist opined that the child did not have a language-based disability. I find that respondents have not shown how the private school's program addressed their daughter's special education needs.

        There is another reason why I am compelled to find that respondents did not meet their burden of proof with regard to the appropriateness of the educational services which they obtained for their child. The educational services must be "proper under the Act [Individuals with Disabilities Education Act]" (Burlington, supra, 370.). One of the requirements of the Act is that children with disabilities are removed from the regular educational environment"...only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily..." (20 USC 1412 [5][B]). The requirement that a child be placed in the least restrictive environment applies to unilateral parental placements (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub nom, Lord v. Bd. of Ed. Fairport Central School District et al., 92-CV-6286 [W.D.N.Y., 1994]). The record reveals that a child must have a written diagnosis of a specific learning disability to be admitted to the Windward School (Exhibit YY, page 3). The requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut 882 F. 2d 688 [2d Cir., 1989]). In this instance, the question to be determined is whether the child's special education needs were so severe that her needs could not be met in a regular education program for at least some portion of the school day. I find that there is no basis in the record for concluding that those needs could not have been met in a less restrictive setting than the Windward School. Therefore, I find that respondents are not entitled to receive tuition reimbursement for the 1994-95 school year (Application of a Child with a Disability, Appeal No. 95-24).

        Respondents contend in their cross-appeal that the hearing officer erred in finding that their tuition reimbursement claims for the 1992-93 and 1993-94 school years were untimely. They ask that the hearing officer's decision be annulled, and that the Board of Education be ordered to reimburse them not only for tuition during those two school years, but for the cost of tutoring and counseling services which they incurred during those years. In the cross-appeal, the hearing officer's findings that the Board of Education failed to provide an appropriate program and that the Windward School was appropriate for the child during the 1992-93 and the 1993-94 school years are not challenged, and are not reviewed (Hiller v. Brunswick CSD, supra).

        Respondents dispute the hearing officer's finding that "...the School District had no reason to believe that the parents would legally challenge its CSE decisions until January 1995, when this proceeding was commenced." They note that the child's father had requested tuition reimbursement in his letter to the Superintendent of Schools dated August 4, 1993, and that the father reiterated his request in his November 17, 1993 letter to petitioner's president. In essence respondents equate those two letters requesting reimbursement with notice to petitioner that they were dissatisfied with the CSE's recommendations, and that they wished to challenge those recommendations at an impartial hearing. Respondents also assert that the equitable doctrine of laches is inapplicable to them because they were not advised of their right to seek reimbursement by having an impartial hearing.

        As noted by the hearing officer, there is no express statute of limitations prescribing the time within which parents must assert their claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 95-37). Reimbursement rights are subject to equitable considerations (Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]). The timeliness of a parental request for tuition reimbursement must be considered in determining whether equitable considerations support the parents' claim for reimbursement, i.e., the third Burlington criterion (Application of a Child with a Disability, Appeal No. 95-31; Application of a Child with a Disability, Appeal No. 95-32). The relevant questions to be answered include:

(1) Whether the parents received adequate notice of their due process rights.

(2) When did they become aware or when should they have become aware, of their right to obtain tuition reimbursement at an unapproved private school?

(3) When did the CSE become aware, or when should it have become aware, of the parents' dissatisfaction with the CSE's recommendations?

(4) Did the parents cooperate with CSE during the time period in question? (Application of a Child with a Disability, Appeal No. 95-37).

        Respondents admit that they received a notice of their due process rights, together with the child's first IEP, after the CSE meeting in May, 1992. Petitioner's Director of Special Education testified that the notice was sent to parents at the time of each annual review. Respondents have not alleged that they did not receive their notice with the IEPs for the 1992-93 and 1993-94 school years. However, they contend that the notice was inadequate because it did not explicitly advise them of the right to seek a hearing with regard to any issue not addressed by their child's IEP. The notice reads, in material part, as follows:

" You have the right to obtain a hearing before an impartial hearing if you disagree with the determination of the CSE or the Board of Education by filing written notice with the Board of Education. This action may be taken after receipt of notice of the recommendation of the Committee or action of the Board of Education ... "

        Respondents testified that they sought to have petitioner pay for the child's placement at the Windward School, at their first meeting with the CSE in May 1992. The CSE did not recommend that the child be placed in the Windward School, or that petitioner reimburse respondents' for their expenditures in unilaterally placing the child in the Windward School. I find that the notice which respondents received was adequate to advise them of their right to seek review of any determination by the CSE, including its refusal or failure to recommend the private school placement which they sought during the school years in question.

        Respondents, who acknowledged that they consulted an attorney about their right to obtain reimbursement in either 1992 or 1993, assert that they were misled about their rights by one sentence in the State Education Department's A Parent's Guide to Special Education for Children Ages 5-21, which reads as follows:

"If parents voluntarily enroll their children in a school other than their local public school the local public is not required to pay for that education."

        The sentence in question is accurate in the context in which it appeared (See 34 CFR 330.403). Moreover, I note that the same publication also indicates that: "You may request an impartial hearing to challenge any determination regarding your child's right to a free, appropriate public education." I find that there is no merit to respondents' assertion.

        As noted above, parents in New York State could not obtain reimbursement for tuition at a private school which had not been approved by the State Education Department as a school for children with disabilities, prior to the Carter decision in November, 1993. The child's father testified that he had discussed the Carter decision with petitioner's Director of Special Education shortly after it was rendered, but that he was not advised that he could ask for a hearing with regard to his request for tuition reimbursement. However, the Director of Special Education testified that he described to the child's father how tuition reimbursement had been obtained by the parents in the Carter case after they had gone through the impartial hearing process. He further testified that he had discussed that process with the child's father, and had referred him to the Parent's Guide. Upon the record before me, I find that respondents were aware of their right to seek tuition reimbursement at an unapproved private school pursuant to the Carter decision by the time that the child's father wrote to petitioner's president on November 17, 1993.

        The record reveals that the CSE was aware of respondents' preference for the Windward School, as early as the May, 1992 CSE meeting, and presumably of respondents' continuing preference for the Windward School, because respondents submitted transportation requests for the 1992-93 and the 1993-94 school years. However, there is no evidence that petitioners asked the CSE to change its recommendations for those years. Indeed, they acknowledge that they did not attend the CSE meeting at which the child's IEP for the 1993-94 school year was prepared. Parents have the obligation to place the appropriateness of their child's IEP in issue within a reasonable period of time after they have unilaterally placed the child in a private school. An IEP is placed in issue by requesting that an impartial hearing be held (Bernardsville Board of Education v. J.H. , F 3d , [3d Cir., 1994], 21 IDELR 1097). Although there is no evidence that respondents failed to cooperate with the Board of Education, I find that they unreasonably delayed from November, 1993 to January, 1995, in challenging their child's IEPs for the 1992-93 and 1993-94 school years, and that the hearing officer correctly found that their claim was barred by laches. For the same reason, I find that respondents' request for reimbursement for counseling and tutoring services which they obtained, and the application fees they paid to the two private schools in the Spring of 1992, must be denied as untimely.

 

        THE APPEAL IS SUSTAINED, AND THE CROSS-APPEAL IS DISMISSED.

 

        IT IS ORDERED that the hearing officer's decision, to the extent that it found that respondents were entitled to receive reimbursement for the child's tuition during the 1994-95 school year, is annulled.

 

Dated: Albany, New York __________________________
September 8, 1995 FRANK MUŅOZ