The State Education Department
State Review Officer

No. 95-83

 

 

 

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 his request for an order requiring respondent to reimburse him for the cost of tuition which he paid for his son's attendance at the Stephen Gaynor School during the 1993-94 school year. The appeal must be dismissed.

        Petitioner's child, who is 10 years old, has been classified by respondent's committee on special education (CSE) as learning disabled. When he was evaluated at the age of 7 1/2 years, in January, 1993, the child evidenced a significant delay in his visual motor integration skills, and a slight delay in his oral vocabulary skills. His word attack, reading comprehension, and mathematical calculations skills were reported to be age appropriate, while there was a slight delay in his mathematical application skills. He evidenced signs of depression, in projective testing. The child's classification as learning disabled is not in dispute in this proceeding.

        The child was placed in the Stephen Gaynor School by his parents in 1990. The Stephen Gaynor School is a private school which reportedly serves children with disabilities, but it has not been approved by the State Education Department as a school for children with disabilities. The child reportedly remained in the private school, at petitioner's expense, at all times relevant to this proceeding. In February, 1993, the CSE reportedly recommended that petitioner's son be enrolled in respondent's modified instructional services-I (MIS-I), and that he receive speech/language therapy and counseling, as related services. However, respondent acknowledged that the CSE was invalidly constituted because it did not include the required parent member, or one of the child's teachers (cf. Section 4402 [1][b][1] of the Education Law). Respondent did not offer the child a specific placement for the 1993-94 school year. However, it reportedly issued authorizations to the child's parents to obtain counseling and speech/language therapy for the child, at respondent's expense.

        On February 27, 1995, petitioner asked for an impartial hearing for the purpose of obtaining tuition reimbursement for the 1993-94 and 1994-95 school years. A hearing was held on March 20, 1995. Respondent's representative at that hearing conceded that respondent had not made a timely offer of a public placement to the child for either school year. The representative testified that respondent should have given petitioner a "Nickerson" letter, i.e., a letter informing petitioner that respondent would pay for the child's tuition at a private school which has been approved as a school for children with disabilities by the State Education Department (see Jose P. et al. v. Ambach et al., [79 C 270, U.S. D.C. E.D. N.Y., 1982]). However, respondent's representative testified that the petitioner had not received a "Nickerson" letter for the 1993-94 school year. Respondent's representative also acknowledged that the child's placement in the Stephen Gaynor School during the 1993-94 school year was educationally appropriate for the child.

        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]). Prior to the Supreme Court's decision on November 9, 1993 in the Carter case, parents in New York could not obtain reimbursement for tuition at an unapproved private school (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3d Dept., 1978]). The hearing officer was unable to ascertain when petitioner became aware of his right to seek tuition reimbursement pursuant to the Carter decision, because petitioner did not attend the hearing.

        In a decision which was rendered on April 10, 1995, the hearing officer ordered the Board of Education to pay for the child's tuition at the Stephen Gaynor School during the 1994-95 school year. However, she held that petitioner's claim for tuition during the 1993-94 school year, while otherwise valid, was nonetheless barred because petitioner had not requested reimbursement in a timely manner. Petitioner appealed from the hearing officer's decision with respect to his claim for tuition during the 1993-94 school year. Respondent did not appeal from the hearing officer's decision awarding petitioner reimbursement for the 1994-95 school year. In the appeal, respondent conceded that it had not offered the child a specific placement for the 1993-94 school year, and it did not challenge the hearing officer's finding that the Stephen Gaynor School had provided appropriate special education services to the child during that school year. The only issue which was before me in that appeal was whether the hearing officer had erred in finding that petitioner's claim for tuition for the 1993-94 school year was untimely.

        Both parties acknowledged, and I found, that there was no explicit statute of limitation for asserting a tuition reimbursement claim under the Federal Individuals with Disabilities Education Act (20 USC 1400 et seq.) and its State counterpart, Article 89 of the Education Law. I noted that the New York State Court of Appeals had held that parents could obtain tuition reimbursement retroactively to the date of a child's placement in a private school, rather than to the date when the child's parents asked for an impartial hearing (Matter of Northeast Central School District v. Sobol, 79 N.Y. 2d 598 [1992]), and that reimbursement rights were affected by equitable considerations. I held that the issue of the timeliness of parental request for tuition reimbursement must be considered as part of the third criterion articulated by the Supreme Court in its Burlington decision, i.e., whether equitable considerations support the parent's claim for reimbursement. However, I found that the record which was before me was inadequate to afford a basis for determining whether petitioner's claim for tuition reimbursement was supported by equitable considerations. The matter was remanded for a hearing, at which I asked the parties to address at least four questions. First, what, if any, notice did the CSE provide to petitioner about his due process rights? Second, when did petitioner become aware, or should have become aware, of his right to seek tuition reimbursement for the placement of a child in an unapproved private school? Third, when did the CSE become aware, of should have become aware of petitioner's dissatisfaction with the CSE's inaction in preparing the child's individualized education program (IEP) for the 1993-94 school year? Fourth, did petitioner cooperate with the CSE during the time in question? I also asked petitioner to produce at the hearing evidence of the amount of tuition which he paid to the private school for the 1993-94 school year.

        In accordance with my decision, an impartial hearing was held on September 27, 1995. A school psychologist who had been a member of the CSE which had purported to recommend a program for the child in February, 1993 testified that she had no specific recollection about the February, 1993 CSE recommendation, or petitioner's reaction to the recommendation. She was nevertheless permitted to testify that respondent's general practice in 1993 was not to offer a specific placement to children whose parents had expressed their intention to keep their children in private schools. Respondent did not offer a specific placement to petitioner's child. The school psychologist testified that there was no document in the child's CSE file to indicate that petitioner had expressed his dissatisfaction with any action, or inaction, by the CSE. However, the record includes a copy of a final notice of recommendation by the CSE for the 1992-93 school year, in which respondent's offer of a modified instructional services-IV (MIS-IV) placement in P. 113 was rejected by the child's mother, who requested that the child be provided with the related services of speech/language therapy and counseling (Exhibit 9). In a social history update based on an interview with the mother on January 1, 1993, a school social worker reported that the mother was pleased with the child's progress in the Stephen Gaynor School and planned to continue to send him to the private school. However, the mother sought assistance from respondent in providing related services (Exhibit 10). As noted above, the child's parents could not have obtained tuition reimbursement at that time, because of the decisional law in New York.

        With respect to the first question which I had asked the parties to address, respondent produced a copy of the form which petitioner had signed on March 10, 1990, to authorize the CSE to evaluate his son. The consent form (Exhibit 1) read, in material part, as follows:

" 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 child's initial social history which was compiled on March 10, 1990 by the school social worker who obtained petitioner's consent to evaluate the child. The social worker's hand written report (Exhibit 2) indicated that:

" Father [petitioner] was provided a guide to special education and his due process rights were reviewed."

        A final notice of recommendation (Exhibit 5) which was sent to petitioner on May 15, 1990 indicated, in material part, that:

" If you do not agree with the [CSE's] recommendation, you have the right to request an Impartial Hearing by writing to the Board of Education, Impartial Hearing Office, Room 118, 110 Livingston Street, Brooklyn, N.Y. 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."

        In the spring of 1992, the child's mother asked the CSE to alter the amount of related services which were being provided to the child. In a social history which was completed on June 11, 1992 (Exhibit 8) a school social worker indicated that parental due process rights had been discussed, and that the child's mother understood those rights. A notice of final recommendation, dated August 3, 1992, (Exhibit 9) was sent to the child's parents. The notice advised them of their right to ask for an impartial hearing, and referred them to the booklet Special Education: A Guide for Parents. The CSE had again recommended a special class placement for the child in respondent's MIS-IV program in P. 113. The child's mother declined the placement offer, but requested that related services be provided to the child.

        A triennial evaluation of the child was conducted in January, 1993. On January 11, 1993, the child's mother was interviewed by a school social worker who indicated in her report (Exhibit 10) that due process rights had been discussed, and that "Parents rights booklet [was] given to parent." She also indicated that the mother was ... " very pleased with Stephen Gaynor and plans to continue sending [the child] there." The school psychologist who attended the CSE review meeting on February 24, 1993 indicated in her notes of the meeting (Exhibit 11) that the child would remain in the private school. The final notice of recommendation (Exhibit 12) which was sent to the child's parents on March 2, 1993 indicated that the parents could request an impartial hearing, and referred them to the booklet Special Education: A Guide for Parents.

        Respondent also introduced into evidence copies of the relevant pages from the 1988 edition of Special Education: A Guide for Parents. The booklet described the due process proceedings, and indicated that parents could request an impartial hearing at any time to protect their child's interests. Among the reasons for requesting an impartial hearing, the booklet indicated that requests could be made for:

"Disagreement with the recommendation of the CSE or BOE.

Failure by the CSE to evaluate and recommend within 30 days of consent.

Failure to implement the CSE recommendation within 30 school days.

Failure to review, at least annually, the child's program, or failure to re-evaluate the child every three years.

Disagreement with the special education provided." (Exhibit 12)

        At the hearing, petitioner testified that he had read the consent for evaluation form which he signed in March, 1990, but he did not recall whether he had received a copy of Special Education: A Guide for Parents. He testified that his wife had been primarily involved in dealing with the CSE, until she passed away in October, 1993. He further testified that he had not discussed due process procedures with his wife. He conceded that he and his wife had maintained a file of information about the child's education, but he did not recall whether there were copies of Special Education: A Guide for Parents in the file.

        Petitioner testified that he did not become aware that he could seek tuition reimbursement, until February, 1995, when he attended a parents' meeting at the Stephen Gaynor School. After petitioner's attorney in this proceeding reportedly discussed the Carter decision at the parents' meeting, petitioner engaged the attorney to represent him. On February 25, 1995, the attorney requested a hearing. Petitioner acknowledged that neither he nor his wife had made the CSE aware of their dissatisfaction with the CSE's failure to offer the child a placement for the 1993-94 school year. Petitioner testified that he had made a $3,000 deposit with the Stephen Gaynor School in February, 1993, to assure a placement for the child in the private school during the 1993-94 school year. Petitioner was questioned by his attorney and by respondent's legal representative about his willingness to consider a placement other than the Stephen Gaynor School for the child during the 1993-94 school year. Petitioner testified that he would have considered another placement, but would not have accepted a public school placement because he believed that the child's educational needs were greater than a public school program could address. He also acknowledged that he had not accepted an offer of a public school special education placement for the 1995-96 school year. He testified that he and his wife had cooperated with the CSE.

        The hearing officer rendered her decision in this proceeding, on October 30, 1995. She found that the Board of Education had provided the child's parents with adequate notice of their due process rights, notwithstanding petitioner's apparent failure to read the booklet Special Education: A Guide for Parents. She further found that petitioner had not become aware of his right to seek tuition reimbursement until February, 1995. With regard to the third issue which I asked the parties to address, the hearing officer found that the CSE did not become aware of petitioner's dissatisfaction with respondent's failure to offer the child a placement for the 1993-94 school year, until petitioner requested that an impartial hearing be held in February, 1995. She further found that there was no evidence that the child's parents had failed to cooperate with the CSE. The hearing officer found that respondent's "procedural deficiency" in not offering the child a placement for the 1993-94 school year did not affect his parents' substantive rights because the parents were not interested in changing the boy's placement. She also found that the Board of Education would be monetarily prejudiced if it was required to reimburse petitioner for his expenditures for tuition during the 1993-94 school year. The hearing officer held that the Board of Education was not liable for tuition reimbursement.

        Petitioner contends that the hearing officer's decision should be reversed because it failed to give weight to respondent's errors and omissions. He argues that the hearing officer should have considered that the CSE on February 24, 1993 did not include each of the required members; that respondent failed to offer any placement for the 1993-94 school year; and that respondent failed to offer a "Nickerson" letter which would have allowed petitioner to place the child in an approved private school. The errors and omissions to which petitioner refers were primarily relevant for the purpose of determining whether respondent had met its burden of showing that it had offered the child an appropriate educational program and placement for the 1993-94 school year. That question was resolved at the first hearing in this matter, when the hearing officer found that respondent had not met its burden of proof with regard to the first Burlington criteria.

        Petitioner asserts that the record demonstrates that he was not very familiar with the due process procedure, and that he was not specifically apprised of his due process rights with regard to the 1993-94 school year. He relies upon the fact that he did not become aware of his right to seek reimbursement for tuition at an unapproved private school until February, 1995. Petitioner challenges the premise implicit in the hearing officer's finding that he was not harmed by respondent's failure to offer a placement, i.e., that petitioner would not have agreed to any public school placement offered by respondent.

        With regard to the first issue which I identified in my previous decision, I agree with the hearing officer's finding that the child's parents were given adequate notice of their due process rights. The documentary evidence in the record indicates that parental due process rights were explained to petitioner, or his late wife, on more than one occasion. While petitioner did not recall receiving a copy of Special Education: A Guide for Parents, he did not deny that either he or his wife had received a copy of the booklet. The documentary evidence indicates that the child's parents were given copies of the booklet. The fact that petitioner may not have 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; Application of a Child with a Disability, Appeal No. 95-82).

        Petitioner's testimony that he was unaware of the specific remedy of tuition reimbursement until shortly before he requested a hearing in February, 1995 is unrebutted, as is the assistant CSE chairperson's testimony that the CSE was unaware of petitioner's dissatisfaction until petitioner requested a hearing. The hearing officer's finding that petitioner cooperated with the CSE is supported by the record. Although petitioner was not aware of the remedy of tuition reimbursement until well after the 1993-94 school year had ended, it does not follow that his lateness in requesting a hearing should be excused. The primary purpose of the due process procedures is to provide children and their parents with a mechanism to ensure that children receive a free appropriate public education. In order to accomplish this purpose, it is imperative that the parents promptly notify the CSE of their dissatisfaction with the CSE's recommendation, or its failure to make a recommendation. Prompt notice is necessary to afford the CSE an opportunity to rectify its mistake, if any (Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3rd Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]).

        At the hearing, petitioner expressed his opinion that there was no public school placement which was comparable to the Stephen Gaynor School. I have no basis in the record for determining whether petitioner's opinion is correct. However, petitioner's delay in challenging respondent's failure to offer a placement before a hearing officer until well after the fact precluded any meaningful effort to find an appropriate placement in either a public or a private school, at respondent's expense. Accordingly, I find that petitioner's claim for tuition reimbursement for the 1993-94 school year is not supported by equitable considerations (Bernardsville Board of Education v. J.H., supra; Application of a Child with a Disability, Appeal No. 95-86; Application of a Child with a Disability, Appeal No. 95-77; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-79; Application of a Child with a Disability, Appeal No. 95-82).

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
March 7, 1996 ROBERT G. BENTLEY