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The State Education Department
State Review Officer

 

No. 95-56

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the educational program provided to a child with a disability

Appearances:

Lawrence E. Becker, Esq., attorney for petitioner, Phoebe Redmond, Esq., of counsel
Neal H. Rosenberg, Esq., attorney for respondent

DECISION

            Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of the impartial hearing officer which ordered petitioner to reimburse respondent for the cost of her daughter's tuition at the private school in which respondent placed the child for the 1993-94 and 1994-95 school years.  This appeal must be sustained in part.

            The record reveals that on April 29, 1992, the child was initially classified as speech impaired/emotionally disturbed by the committee on special education (CSE) of the Community District No. 3.  She has remained classified as speech impaired/emotionally disturbed.  Although the child's head teacher at her private school opined that the child was not emotionally disturbed in her testimony at the hearing in this proceeding, neither party has challenged the appropriateness of the child's dual classification as speech impaired and emotionally disturbed.  The CSE recommended that the child be enrolled in a 6:1+1 class in a private school, and receive the related services of speech/language therapy, occupational therapy and counseling.  However, there was no parent member of the CSE at the meeting when the CSE made its recommendation (cf. Section 4402 [1][b][i] of the Education Law).  In any event, petitioner did not offer the child an appropriate placement for the 1992-93 school year.

            The child was unilaterally enrolled by respondent in the Stephen Gaynor School in September, 1992.  She remained there at respondent's expense during the 1993-94 and 1994-95 school years.  Petitioner concedes that it did not make a timely offer of an appropriate placement for the child during either school year.  It did transport the child to the Stephen Gaynor School, which is a private school for children with disabilities in New York City.  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.

            On May 23, 1995, respondent's attorney initiated this proceeding by requesting that an impartial hearing be held.  At the hearing, respondent sought 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.  The hearing was held on June 13, 1995.  Respondent, who did not attend the hearing, was represented at the hearing by her attorney.  Petitioner was represented at the hearing by the assistant chairperson of the CSE of Community School District No. 3.  The parties' representatives briefly stated their respective positions.  Three exhibits were introduced into evidence.  Respondent submitted an individualized education program (IEP) dated April 19, 1992, and the child's progress reports from the Stephen Gaynor School for the 1993-94 and 1994-95 school years. 

            Ms. Carrie Zuckerman, the child's head teacher at the Stephen Gaynor School, testified about the child's educational needs and progress.  She stated that she had been the child's teacher for the past three years.  Ms. Zuckerman testified that the child was language impaired and had an attention deficit disorder and a language impairment.  She also testified that the child had difficulty following directions of two or more steps, and that her receptive and expressive language skills were impaired.  The teacher reported that the child had been very aggressive and angry when she started attending the Stephen Gaynor School, but that her behavior had improved with the use of a behavior modification program.  Ms. Zuckerman also testified that the child had become content in school, and that her frustration threshold had increased.  In addition, she testified that the child's impulsivity and distractibility had diminished.

            At the Stephen Gaynor School, the child received multi-sensory instruction in small groups, ranging from one to eight children.  Ms. Zuckerman testified that the child was appropriately grouped with other students, and was making progress while attending the Stephen Gaynor School.  Although the child mastered some consonant sounds during the 1993-94 school year, she reportedly had difficulty improving her phonetic skills.  Therefore, the private school began to develop the child's sight vocabulary in the 1994-95 school year.  It reported that she had been far more successful in beginning to read, using that approach.  During the 1993-94 school year, the child's listening skills improved, and during the 1994-95 school year, she could read some simple sentences which included her sight words.  Her spelling and mathematics skills also improved during the two school years in question.  However, her advancement in mathematics was described as slow in the child's progress reports.  By the end of the 1994-95 school year, the child's ability to recall and sequence information had reportedly improved, as had her communication skills.

            In his decision dated July 17, 1995, the hearing officer found that petitioner had failed to meet its obligation to offer an appropriate placement to the child during the 1993-94 and the 1994-95 school years.  He further found that the child's program at the Stephen Gaynor School during the 1993-94 and 1994-95 school years was appropriate.  The hearing officer rejected petitioner's assertion that respondent's claim for tuition reimbursement for the 1993-94 school year was untimely, and found that equitable factors supported respondent's tuition claim for the 1993-94 and 1994-95 school years.  He ordered respondent to pay for the cost of the child's tuition at the Stephen Gaynor School during the 1993-94 and 1994-95 school years.  

            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, respondent was precluded from seeking reimbursement because the Stephen Gaynor School has 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 petitioner concedes, that petitioner did not meet its burden of demonstrating that it had offered the child an appropriate program or placement for either the 1993-94 or 1994-95 school years.  As a result, respondent prevailed with respect to the first Burlington criterion, i.e., whether the services offered by the board of education in the 1993-94 and 1994-95 school years were appropriate for the child. 

            In this appeal, petitioner challenges the hearing officer's finding that the Stephen Gaynor School provided an appropriate educational program during the 1993-94 and 1994-95 school years.  It contends that respondent failed to adduce sufficient evidence about the child's progress in the private school to afford a basis for the hearing officer to make a finding about the appropriateness of the services provided by the Stephen Gaynor School.  Petitioner alleges that the record does not reveal whether Ms. Zuckerman is certified in either elementary education or special education.  However, there is no requirement that private school teachers be certified teachers (Application of a Child with a Disability, Appeal No. 94-20).  Petitioner asserts that respondent should have offered evidence to "justify" the omission of occupational therapy and counseling from the services to the child at the Stephen Gaynor School.  Those services had been recommended by the CSE in April, 1992, but were not provided by petitioner in any of the ensuing school years.  Even if I were to assume that the child continued to require those services during the 1993-94 and 1994-95 school years, there is no rational basis for me to find that the services which respondent did obtain for her child at the Stephen Gaynor School were inappropriate because they did not include occupational therapy and counseling.  In any event, I note that the child's fine motor skills, including her handwriting improved, and that her ability to interact with others and to tolerate frustration had improved.  The omitted services had been intended to address those areas of need.

            Petitioner argues that respondent failed to demonstrate that the child's placement in the Stephen Gaynor School was the least restrictive environment for the child.  The requirement that a child be placed in the least restrictive environment applies to a unilateral parental placement (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Disability, Appeal No. 95-41).  In this instance, petitioner's CSE found that petitioner did not have an appropriate program for her in the public schools, and recommended that she be placed in a private school for children with disabilities.  Although the record reveals that the child has made  progress academically and socially, it still affords a basis for concluding that the child required the specialized services provided by the Stephen Gaynor School during the 1993-94 and 1994-95 school years.  I find that petitioner's argument about the least restrictive environment for the child is without merit.  Upon the record before me, I find that the hearing officer's determination with respect to the appropriateness of the Stephen Gaynor School for the child during the 1993-94 and 1994-95 school years must be sustained.  Therefore, respondent has prevailed with respect to the second Burlington criterion.

            Petitioner challenges the hearing officer's finding that the private school's tuition of approximately $18,500 per year was reasonable.  It asserts that respondent failed to submit any evidence of the amount of money which she paid for the child's tuition, and that respondent failed to demonstrate that the Stephen Gaynor School's tuition rate was reasonable, or comparable to that charged by other private schools.  Although I agree with petitioner that respondent must ultimately provide proof of the payments which she made to the Stephen Gaynor School in order to obtain reimbursement, it does not follow that her claim for reimbursement should be dismissed because she failed to provide such evidence at the hearing.  With regard to the reasonableness of the private school's tuition rate, I note that petitioner's representative at the hearing did not challenge the assertions by respondent's attorney as to the amount of the Stephen Gaynor School's tuition, or its comparability to the rates charged by other schools.  Petitioner has not submitted any evidence to the contrary in this appeal.  Therefore, I find that petitioner's challenge to the hearing officer's finding is without merit.

            In assessing the final Burlington criterion, i.e., whether equitable considerations support respondent's claim for tuition reimbursement, the hearing officer was asked to consider whether respondent's request for tuition reimbursement was untimely.  With regard to respondent's claim for the 1994-95 school year, which was asserted during that school year, petitioner does not appear to suggest that the claim was untimely, nor does it suggest that respondent failed to cooperate with the CSE.  The child was entitled to receive services, which petitioner did not provide.  Therefore, I find that there is no basis for disturbing the hearing officer's conclusion that petitioner should reimburse respondent for her expenditure for the child's tuition during the 1994-95 school year.

            Respondent's claim for tuition reimbursement during the 1993-94 school year squarely raises the issue of whether equitable considerations support an award of tuition reimbursement.  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).  Although there is no explicit statute of limitations for asserting a claim of tuition reimbursement, a claim may nevertheless be barred by the equitable doctrine of laches.  Laches is a defense which may be asserted against a claimant, when the claimant was aware of his or her right to assert the claim, but did not assert the claim within a reasonable period of time, to the detriment of the party against whom the claim is asserted.

            Although the hearing officer extensively discussed the equitable issues in his decision, I find that the record which was before the hearing officer was inadequate to support a conclusion with respect to the third Burlington criterion, i.e., whether equitable considerations support an award of tuition reimbursement for the 1993-94 school year.  This proceeding is another in a series of appeals in which the hearing record is lamentably 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, what notice of her due process rights was given to respondent?  Second, when did the respondent 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?  Petitioner should have the opportunity to examine respondent under oath at a hearing with respect to her knowledge of the right to reimbursement (Application of a Child with a Disability, Appeal No. 95-40).  Third, when did the CSE become aware, or when should it have become aware, of respondent'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 respondent cooperate with the CSE during the 1003-94 school year?

            THE APPEAL IS SUSTAINED to the extent indicated;

            IT IS ORDERED that the portion of the hearing officer's decision which granted respondent'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, petitioner shall schedule a hearing to resolve the issue of whether equitable considerations support respondent's claim for tuition reimbursement for the 1993-94 school year in accordance with the tenor of this decision.

Dated: Albany, New York                                                    ______________________________
            October 23, 1995                                                       ROBERT G. BENTLEY