The State Education Department
State Review Officer

No. 95-58

 

Application of the BOARD OF EDUCATION OF THE EASTCHESTER UNION FREE 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:
Keane and Beane, P.C., attorneys for petitioner, Ronald A. Longo, Esq., of counsel
Hon. Marilyn J. Slaatten, County Attorney, attorney for respondent Westchester County Department of Health, Ida Lee H. Elliot, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Eastchester Union Free School District, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse the parents of a preschool child with a disability for a portion of the costs which the parents had incurred in providing special education services to the child from January 16, 1995 through June 2, 1995. The Westchester County Department of Health (DOH), which was also ordered by the hearing officer to reimburse the parents for a portion of their expenditures, is a respondent in this appeal. It asks that the hearing officer's decision be upheld. The child's parents, who are also respondents in this appeal, argue that an appeal to the State Review Officer is not the proper forum to resolve a funding disagreement between petitioner and the DOH, and they ask that the hearing officer's decision be upheld. The appeal must be sustained in part.

        Respondent's son was born on February 26, 1992. The child's acquisition of language and his relatedness reportedly began to decline when he was 18 months old. In November, 1994, the child was diagnosed by two physicians as having autism. A psychiatrist, who saw the child on January 13, 1995, reported that the child met most of the criteria for being diagnosed as having an autistic disorder. The child was evaluated at the Stepping Stones and Union Child Day Care agency on January 10, 1995. The evaluator reported that the child's daily living and social skills were well below age expectation, and that the child had achieved limited progress in speech and communication development, despite having received speech/language therapy since May, 1994. The evaluator noted that the child had then been involved in a 40 hours per week home behavioral intervention program for approximately 4 weeks. The child's parents had initiated the home behavioral intervention program on or about December 12, 1994, after reportedly having been advised by a representative of petitioner that a comparable program could not be obtained through the CPSE.

        The evaluator recommended that child continue in the home behavioral intervention program. For the purpose of providing guidance to petitioner's committee on preschool education (CPSE) in accordance with Section 4410(g) of the Education Law, the evaluator recommended that the child receive 2 hours per week of services by an itinerant special education teacher, 36.5 hours per week of services by a teaching assistant, and 2 sessions of 45 minutes each per week of individual speech/language therapy.

        On January 17, 1995, petitioner's CPSE recommended that the child be identified as a preschool student with a disability (8 NYCRR 200.1[ee]), and that the child be provided with a program similar to the program which had been recommended by the Stepping Stones evaluator. The preschool individualized education program (IEP) which the CPSE prepared indicated that the projected service date was February 28, 1995, but did not identify a specific placement for the child. It must be noted that the CPSE meeting minutes reveal that the child's teacher did not attend the meeting. Federal regulation (34 CFR 300.344 [a] [2]) and State statute (Section 4402 [1] [b] [1] of the Education Law) require that the child's teacher attend the meeting at which the child's IEP is prepared. The child's parents were notified of the CPSE's recommendation in a letter to the child's mother, dated January 20, 1995, from the CPSE chairperson.

        The child's parents continued to pay for the child's home behavioral intervention program, while they had discussions with CPSE representatives about obtaining the CPSE recommended services. On April 12, 1995, the CPSE reviewed the child's program, but did not recommend any changes in his educational program. However, the child was not provided services through the CPSE. In its petition, petitioner asserts that " ... as the result of difficulties between the County of Westchester and the School District with regard to a search for an appropriate service provider, a placement was not effectuated." The DOH admits that a placement was not effectuated. However, its attorney asserts in an affidavit filed with the DOH's answer that the DOH had an approved service provider for the child, but could not subcontract with the service provider until petitioner designated the DOH as the provider of special education itinerant teacher services.

        The child's parents requested that an impartial hearing be held for the purpose of obtaining reimbursement for their expenditures for the child's educational program. The hearing in this proceeding was held on June 7, 1995. At the hearing, petitioner and the DOH did not contest the child's eligibility for services as a preschool child with a disability, or the appropriateness of the services his parents obtained for him. The child's parents requested that they be reimbursed for their expenditures from January 17, 1995, the date that the child's IEP had been prepared by the CPSE.

        Petitioner's attorney argued that there was not entitlement to reimbursement within the first 30 days after the CPSE had made its recommendation, because Section 4410(5)(e) of the Education Law provided that recommended services must be provided no later than 30 days after the CPSE's recommendation. The attorney also reserved the right to object to the amount of parents' expenditures, which had not been reviewed by petitioner at the time of the hearing. The DOH's attorney asserted that a program comparable to that which the parents obtained and paid for could have been provided by the DOH, but that it could not have provided the program until petitioner approved the recommendation by its CPSE. The DOH attorney asserted that petitioner approved the CPSE recommendation on February 27, 1995. She urged the hearing officer to award reimbursement from that date. The DOH attorney also reserved the right to object to the amount of the parents' expenditures. It was agreed that the parents would provide documentation of their expenditures to the hearing officer and the two attorneys. The parties also agreed that the hearing would be reconvened on September 21, 1995, on a related matter.

        In a letter to the hearing officer, dated June 9, 1995, the parents provided a weekly accounting of their expenditures for the child's program for the period from January 16, 1995 through June 2, 1995. The total amount of their expenditures was $16,592.96, of which $2,929.96 was reportedly for equipment, materials and supplies. The latter amount was not itemized. The "payroll" portion of their expenditures was $13,663.00. That sum included $1,330.00 for 40 hours of services by a special education teacher, $12,033.00 for 800 hours of service by a teaching assistant, and $300.00 for 30 hours of services by a speech therapist.

        By letter to the hearing officer, dated June 14, 1995, petitioner's attorney asked the sum of $4,975.00 in payroll expenditures be disallowed, because there was reportedly no obligation to pay for the child's program until 30 days after the date of the CPSE's recommendation, and because school was not in session in petitioner's district for 2 weeks and 3 days during the period of time for which the parents sought reimbursement. Petitioner's attorney also asked that the parents' request for reimbursement for equipment, materials and supplies should be denied, because the contractor or provider was responsible for those items, and because the parents had not itemized their expenditures for them. He asserted that the parents' recovery should be limited to the sum of $8,688.00.

        The DOH's attorney also wrote to the hearing officer on June 14, 1995, disputing reimbursement for any expenditures prior to February 27, 1995, (the date petitioner approved the CPSE's recommendation). The DOH attorney urged the hearing officer to allow the parents to recover the sum of $2,436.00 for 28 hours of special education teacher services and expenses, at an hourly rate of $87.00 for services and expenses together, $7,665.00 for 511 hours of teaching assistant services, at an hourly rate of $15.00, and $210.00 for 21 hours of speech therapy, at an hourly rate of $10.00. The attorney requested that the parents' total recovery be limited to $10,311.00.

        The hearing officer rendered his decision on July 21, 1995, the hearing officer directed petitioner to reimburse the parents in the amount of $6,281.96, and that the DOH should reimburse the parents in the amount of $10,311.00. In essence, the hearing officer used the DOH hourly rate figures, and accepted the DOH's assertion that it could not have implemented a program until petitioner had approved the CPSE's recommendation. Petitioner was required to pay for the balance of the parents' claim, on the theory that it should be responsible for the cost of the program which its CPSE had recommended and which petitioner had failed to provide.

        Petitioner asserts that the hearing officer erred as a matter of law by imposing financial responsibility for the cost of services provided to the child prior to 30 days after the CPSE made its recommendation, and prior to the child's third birthday on February 26, 1995. Petitioner asserts that the hearing officer's decision was contrary to the provisions of Section 4410 of the Education Law.

        Federal law requires that each State provide a free appropriate public education to all children with disabilities between the ages of 3 and 21 (20 USC 1412 [2] [B]). In New York, special education is provided to preschool children ages 3 to 4 pursuant to the provisions of Section 4410 of the Education Law, and Part 200 of the Regulations of the Commissioner of Education (8 NYCRR 200). 8 NYCRR 200.1 (ee) (2) provides, in material part, that:

" ... in the calendar year in which such preschool student becomes three years of age, a student shall be first eligible for preschool programs and services on January 2nd of such calendar year, if the student's birthday falls before July 1st ... "

        The child in this proceeding became 3 years old on February 26, 1995. Therefore, I find that petitioner's assertion that the hearing officer erred by ordering reimbursement for providing services before the child's third birthday is without merit.

        Section 4410 (4) (a) of the Education Law provides that upon referral of a preschool child to its CPSE, a board of education shall provide for the child's evaluation. When the child's evaluation has been completed, the CPSE must determine whether the child meets the statutory and regulatory criteria for identification as a preschool child with a disability. If the child is found to meet those criteria, the CPSE must also select the appropriate program and/or services. The CPSE must provide copies of its written recommendation to the child's parents, the municipality in which the child resides, and the board of education (Section 4410 [5] [b] [ii] of the Education Law). The board of education must consider the CPSE's recommendation, and then arrange for the provision of the recommended program and/or services from among programs or services approved by the Commissioner of Education (Section 4410 [5] [c] of the Education Law). The board of education must also give written notice of the special services or programs which it arranged for to the municipality in which the child resides. The municipality must contract with the provider of the approved program and/or services selected by the board of education, "...in a timely manner but in no event later than forty days from receipt of the written notice of the determination of the board." (Section 4410 [5] [f] of the Education Law).

        Section 4410 (5) (e) of the Education Law provides that:

"A preschool child shall receive the services of a program arranged for by the board commencing with the starting date for such program, unless such services are recommended by the Committee [CPSE] less than thirty days prior to, or after, the starting date for such program, in which case, such services shall be provided no later than thirty days from the recommendation of committee; provided, however, that in no case shall a child receive services prior to the date that such child is first eligible for services pursuant to paragraph f of subdivision one of this section."

        Petitioner argues that the parents may not receive reimbursement for their expenditures for the child's special education services for the 30 days after the CPSE made its recommendation, because no services were required to be provided within 30 days after the CPSE's recommendation, pursuant to Section 4410 (5) (e) of the Education Law. I find that petitioner's reliance upon the provisions of Section 4410 (5) (e) is misplaced. Although Section 4410 prescribes the procedure to be followed by a board of education in providing educational services to a preschool child with a disability, petitioner did not, in fact, provide any services to the child during the part of the 1994-95 school year when the child was eligible to receive services. Moreover, the CPSE was not validly constituted to prepare the child's IEP because it did not include the child's teacher. The issue before me is what is an appropriate remedy for petitioner's failure to ensure that the child received services for the rest of the 1994-95 school year.

        A board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). In this instance, petitioner provided no services, and has conceded that the services obtained by the parents were appropriate. There is nothing in the record to indicate that the parents did not cooperate with the CPSE. This child was identified as a preschool child with a disability, and an IEP was prepared for him, on January 17, 1995. Upon the record before me, I find the parents are entitled to reimbursement for their expenditures from January 17, 1995. Although the hearing officer ordered that the parents be reimbursed for their expenditures from January 16, 1995, I find that there is no basis for awarding reimbursement prior to the date when the child was determined to be eligible to receive services as a preschool child with a disability.

        Petitioner also challenges the hearing officer's determination to apportion part of the cost of reimbursement against it. It argues that the municipality (Westchester County) is liable for all of the cost of the child's special education services, pursuant to Section 4410 (11) of the Education Law. That statute reads, in material part, as follows:

"Financial responsibility for approved costs. a. The approved costs for a preschool child who receives services pursuant to this section shall be a charge upon the municipality wherein such child resides... b. (i)...Commencing with the reimbursement of municipalities for services provided pursuant to this section on or after July first, nineteen hundred ninety-four, the state shall reimburse sixty-nine and one-half percent of the approved costs paid by a municipality for the purposes of this section ... "

        In an affidavit attached to the DOH's answer, the DOH's attorney asserts that the hearing officer exacted a financial penalty against petitioner for its "dilatory behavior", by ordering it to reimburse the parents for a portion of their expenditures. She argues that the DOH cannot be "compelled to pay the penalty imposed upon [petitioner] for its noncompliance with the law," but that it is willing to submit to the State Education Department whatever STAC-1 (reimbursement) form which petitioner sends to the DOH.

        I find that neither petitioner's position nor that of the DOH is supported by the provisions of Section 4410 (11) of the Education Law because that statute does not per se apply to a parent's claim for reimbursement for services which the parent obtained from an unapproved service provider, as happened here. I further find that a due process proceeding instituted by a child's parents to obtain reimbursement for their expenditures to obtain an educational program for the child is not a forum in which the respective rights and obligations of the board of education and the DOH could, or should, be determined. Even if the hearing officer were authorized to adjudicate the rights and duties of petitioner and the DOH, I find that the record here is inadequate to support an adjudication. Nevertheless, petitioner has failed to show how it is aggrieved by the hearing officer's decision which apportioned some of the responsibility to reimburse the parents upon the DOH for what would otherwise be petitioner's sole responsibility under the decisions of the United States Supreme Court in School Committee Town of Burlington v. Department of Education, Massachusetts, supra; Florence County School District v. Carter by Carter, ____ U.S. ____, 114 S. Ct. 361 (1993).

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the decision of the hearing officer is annulled only to the extent that it directed that the child's parents be reimbursed for services which were provided on January 16, 1995.

 

 

 

 

Dated: Albany, New York __________________________
September 28, 1995 FRANK MUŅOZ