The State Education Department
State Review Officer

No. 95-82

 

 

 

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, Renee R. Nebens, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for reimbursement for his son's tuition in the Stephen Gaynor School in New York City, during the 1993-94 school year. The appeal must be dismissed.

        Petitioner's son is 12 years old. He was initially referred by petitioner to the committee on special education (CSE), in April, 1989, while enrolled in the kindergarten of Bank Street College. Just prior to his referral, the child was educationally evaluated at the Stephen Gaynor School. In a letter to the CSE, dated June 5, 1989, petitioner indicated that he had applied for the child's admission to five private schools, and that the Stephen Gaynor School had accepted the child for enrollment in September, 1989. On June 19, 1989, the CSE recommended that the child be classified as learning disabled. It reportedly also recommended that he be placed in respondent's specialized instructional environment-VII (SIE-VII) program. However, the final notice of recommendation which is in the record before me indicated that the child would attend the Stephen Gaynor School, and that respondent would transport the child. Petitioner signed the final notice of recommendation, indicating his consent to have respondent transport the child. In September, 1989, petitioner enrolled the child, at his expense in the Stephen Gaynor School. The child has remained in that private school.

        The child was re-evaluated by the CSE, in the Fall 1991, when he was eight years old. On January 2, 1992, the CSE recommended that the child be placed in respondent's modified instructional services-I (MIS-I) program.1 It also recommended that the counseling services, which had been previously recommended for the child, be discontinued. The individualized education program (IEP) which the CSE prepared for the child indicated that the boy was of average intelligence, and that his academic skills were at the upper-second to mid-third grade level. The final notice of recommendation, which was sent to petitioner on January 7, 1992, indicated that the CSE had recommended placement in the MIS-I program, with no related services. The Stephen Gaynor School was listed in the portion of the notice which typically indicates the specific placement which respondent is offering to the child. At the hearing in this proceeding, a school psychologist who sits on the CSE testified that the private school may have been listed on the final notice of recommendation because the CSE understood that petitioner wished to have the child remain in the private school, notwithstanding the CSE's recommendation that he be enrolled in the MIS-I program. She further testified that the final notice of recommendation was intended to indicate that respondent would continue to transport the child to the private school. The final notice of recommendation did not explicitly refer to transportation.

        The CSE failed to conduct any annual review for the child or to prepare a new IEP for him, subsequent to its January 2, 1992 meeting (cf. 34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]). The CSE school psychologist testified that the CSE was not aware that it would have to meet at least annually in order for the child to continue to receive transportation, which she assumed was the only special education service sought by petitioner. In any event, she testified that petitioner never requested that an annual review be conducted, or an impartial hearing be held because of the CSE's failure to conduct an annual review.

        On March 30, 1995, an impartial hearing was held at petitioner's request for the purpose of securing reimbursement for tuition costs resulting from his unilateral placement of the child in the Stephen Gaynor School for the 1993-94 and 1994-95 school years. Petitioner reportedly requested the hearing in February, 1995, after having learned about the possibility of obtaining tuition reimbursement. The parties stipulated that there was no dispute as to the appropriateness of the child's classification as learning disabled. Respondent conceded that it had not offered the child a placement for the 1993-94 and 1994-95 school years. The child's teacher in the Stephen Gaynor School testified about the child's educational program in the private school. Petitioner introduced into evidence a profile of his son's class, to demonstrate that he was suitably grouped with children of similar needs. In her decision, which was dated April 12, 1995, the impartial hearing officer ordered respondent to reimburse petitioner for the cost of the child's tuition during the 1994-95 school year. However, the hearing officer denied petitioner's request for tuition reimbursement for the 1993-94 school year, on the ground that petitioner's request was untimely.

        Petitioner appealed from the hearing officer's decision with respect with tuition reimbursement for the 1993-94 school year. Respondent did not cross-appeal from the hearing officer's decision with respect to tuition reimbursement for the 1994-95 school year. On July 14, 1995, petitioner's appeal was sustained in part (Application of a Child with a Disability, Appeal No. 95-30). As noted in that decision, a board of education may be required to pay for education 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]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, _____ U.S. _____, 114 S. Ct. 361 [1993]). Since respondent had conceded that it had not offered the child a placement during the 1993-94 school year, petitioner prevailed with respect to the first Burlington criterion, i.e., whether the educational services offered by the Board of Education were appropriate. Although respondent purported to challenge the appropriateness of the educational services which petitioner obtained for the child in the Stephen Gaynor School (the second Burlington criterion) in its answer, its challenge was rejected because it had not appealed from any portion of the hearing officer's decision. The State Review Officer noted that Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties, unless appealed to the State Review Officer (20 USC 1415 [c]; Section 4404 [1] of the Education Law), and held that he was precluded from hearing the issue of the appropriateness of the private school's educational services.

        Since the first and second Burlington criteria for reimbursement were not before the State Review Officer in petitioner's appeal, the sole issue to be determined was whether the hearing officer had correctly determined that petitioner's claim for tuition reimbursement for the 1993-94 school year was untimely. The hearing officer had found, and the State Review Officer concurred, that there was no explicit statute of limitations which barred petitioner's claim. The State Review Officer held that the timeliness of a parental request for tuition reimbursement should be considered in the context of the third Burlington criterion, i.e., whether equitable considerations support the parent's claim for reimbursement (see also Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-26; Application of a Child with a Disability, Appeal No. 95-31). However, he found that the record which was before him was inadequate to support a determination as to the third Burlington criterion. The State Review Officer annulled the hearing officer's decision, and remanded the matter for a hearing, at which four questions were to be addressed. First, whether the CSE had provided any notice to petitioner of his due process rights, and if so, the nature of that notice? Second, when did petitioner become aware, or should have become aware, of his right to obtain tuition reimbursement for the placement of a child in an unapproved private school? Third, when did the CSE become aware, or should have been aware, of petitioner's dissatisfaction with the CSE's failure to prepare an IEP, or offer a placement for the 1993-94 school year? Fourth, did petitioner cooperate with the CSE during the time in question?

        On remand, a different hearing officer was appointed to conduct a hearing, which was held on September 11, 1995. Respondent introduced written evidence, in the form of petitioner's initial consent to having the child evaluated in May, 1989, and a subsequent consent given in November, 1991, that petitioner had been given an explanation of his due process rights, and had received copies of a booklet explaining his rights, on each occasion. The form which petitioner signed on November 25, 1991, indicated, in material part, that:

" I have received a copy of the booklet, Special Education: A Guide for Parents, and my due process rights have been explained to me."

        Respondent also introduced a copy of the updated social history which was prepared by the school social worker who had interviewed petitioner on November 25, 1991, and had obtained his consent to the child's evaluation. The social worker's report read, in material part, as follows:

" I discussed parent rights and explained due process. I gave the father an English edition of our booklet on parent rights. Father plans to attend our review conference and to participate with us to educationally plan for his son."

        Respondent introduced copies of the final notices of recommendation which had been sent to petitioner on July 10, 1989, and January 7, 1992, respectively, and which petitioner concededly received. In each final notice of recommendation, petitioner was advised that:

" If you do not agree with the recommendation, you have the right to request on Impartial Hearing by writing to the Board of Education, Impartial Hearing Office, Room 118, 110 Livingston Street, Brooklyn, NY 11201. For a full description of your right to appeal, please refer to the booklet, Special Education: A Guide for Parents. If you do not have a booklet, you can get one from us."

        At the hearing, the assistant CSE chairperson testified that the January 7, 1992 final notice of recommendation was the last time respondent had notified petitioner of his due process rights. Petitioner, who is a retired school teacher, testified that he had received the booklet, Special Education: A Guide for Parents, but that he had read only the booklet's table of contents. He also testified that he and his wife:

" ... never knew there was such a thing as an impartial hearing. We didn't know what dispute we could have that require (sic) an impartial hearing." (Transcript, pages 97-98)

        Petitioner further testified that he was unaware of his right to request an impartial hearing for the purpose of seeking tuition reimbursement, until the attorney who now represents him in this proceeding addressed a group of parents at the Stephen Gaynor School, in November or December, 1994. He testified that he retained the attorney shortly after the parents' meeting was conducted. Petitioner testified that he was given the impression by respondent's staff, in 1989 and 1991, that respondent could not provide an educational program for his son which was comparable to that of the Stephen Gaynor School. He also testified that he had been apprised by the CSE that the Stephen Gaynor School was not approved by the State Education Department as a school for children with disabilities, and that if the boy attended that school, he was eligible to receive transportation, but petitioner could not receive tuition reimbursement.

        The hearing officer rendered his decision on November 9, 1995. With regard to the first of the questions posed in the State Review Officer's prior decision in this matter, the hearing officer noted that petitioner admitted having received copies of Special Education: A Guide for Parents. Although a copy of that booklet was not introduced into evidence, the hearing officer noted that the topic of impartial hearings was discussed in the booklet. The hearing officer also noted that respondent had conceded that it had not explicitly informed petitioner of his right to seek tuition reimbursement, either before or after the Carter decision. He credited petitioner's testimony that he had not been apprised of the right to seek tuition reimbursement, until late in the Fall of 1994, in his findings relating to the second question. With respect to the third question, i.e., when did the CSE become aware of petitioner's dissatisfaction with its failure to prepare an IEP, or offer a placement for the 1993-94 school year, the hearing officer found that the CSE could not be faulted for not knowing of petitioner's dissatisfaction until petitioner asked for a hearing in 1995. The hearing officer also found that there was no evidence that petitioner had failed to cooperate with the CSE. The hearing officer ruled that petitioner had an obligation to promptly advise respondent, or its CSE, of his dissatisfaction with the lack of a public placement for his son. He rejected the assertion made by petitioner at the hearing that he would have removed the child from the private school, if the Board of Education had offered "the right placement," and found that the equities did not lie in petitioner's favor.

        Before petitioner's contentions are addressed, I must note that respondent has attempted to revisit the issue of the appropriateness of the Stephen Gaynor School's educational program to met the child's needs, in its answer. It argues that it had no basis for appealing from the hearing officer's finding in the first hearing that the private school's program was appropriate because the hearing officer found that petitioner's tuition claim for the 1993-94 school year was untimely. I find that respondent's contention that it may now reopen the first hearing officer's determination is without merit (Application of a Child with a Disability, Appeal No. 95-86).

        Petitioner argues that the hearing officer improperly stereotyped him as a parent who would never accept a public school placement for his child. He further argues that he has been put in the position of having to establish that he would have accepted a public placement, despite the fact that respondent failed to offer such a placement for the 1993-94 school year. At the hearing, petitioner conceded that he had made a substantial down payment on the boy's tuition at the Stephen Gaynor School before the CSE had made its recommendation for the 1989-1990 school year. Petitioner further testified that he had looked at the resource room programs in two public schools, on his own initiative, before the CSE recommended the SIE-VII program in 1989. However, he did not ask to see either the SIE-VII program, or the subsequently recommended MIS-I program. In his decision, the hearing officer found that petitioner's delay in objecting to the CSE's inaction with regard to making a recommendation for the child's placement in the 1993-94 school year was inconsistent with his professed desire to have respondent provide the child with an appropriate program, at no expense to petitioner. Petitioner concedes that it would have been illogical for him to delay in seeking to obtain reimbursement, if he had known of his procedural due process right to an impartial hearing.

        At the hearing, petitioner denied that the school social worker had discussed parental due process rights with him in November, 1991, but he acknowledged that he had received a copy of Special Education: A Guide for Parents. While a copy of the booklet is not in evidence, petitioner did not refute the CSE assistant chairperson's testimony that the booklet described the hearing process, including when a hearing could be requested. Petitioner's reported failure to avail himself of the opportunity to read the booklet does not afford a basis for finding that respondent failed to give petitioner adequate notice of his due process rights (Application of a Child with a Disability, Appeal No. 95-77). I find that petitioner was apprised of his due process rights, including the right to request a hearing, when he received the booklet in November, 1991, and when he received the final notice of recommendation which referred to the booklet in January, 1992.

        Petitioner's testimony that he did not become aware of his right to seek reimbursement until late in 1994 is unrebutted. At the hearing, he contended that there would have been no purpose in seeking a hearing because he had been told that respondent did not have a program like that of the Stephen Gaynor School, and that the child was only entitled to receive transportation. I disagree with his contention. While a parent may genuinely believe that there is no public placement for the child, he or she should nevertheless pursue the due process procedures which may make other placement options available to the child. There is no basis in the record for concluding that an impartial hearing officer could not have directed the CSE to place the child in an appropriate program for the 1993-94 school year, had petitioner availed himself of his right to request a hearing.

        Implicit in petitioner's contention that there was no purpose in seeking a hearing is the premise that the sole purpose of an impartial hearing is to enable a parent to obtain tuition reimbursement. However, the extensive due process provisions of Federal and State law are intended to provide an inexpensive and expeditious method by which a parent can obtain review by an impartial decision maker of a CSE's action, or failure to act. Prompt resort to the due process procedures must be made, so that school authorities have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir., 1994]). Petitioner's failure to promptly raise the issue of the CSE's inaction deprived respondent of an opportunity to correct its error. I find that equitable considerations do not support petitioner's claim for tuition reimbursement for the 1993-94 school year (Application of a Child with a Disability, Appeal No. 95-77; Application of a Child with a Disability, Appeal No. 95-86).

 

    THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
March 1, 1996  ROBERT G. BENTLEY

                             

1  At the hearing, the school psychologist who was a member of the CSE at the meeting held on January 2, 1992 conceded that there was no evidence that the child's teacher and the parent member of the CSE attended the meeting (cf. Section 4402 [1][b][1] of the Education Law).  However, the validity of the CSE's recommendation is not an issue to be determined in this appeal.