The State Education Department
State Review Officer

No. 95-86

 

 

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. Nebins, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of the impartial hearing officer which held that equitable factors did not support petitioner's request for an order requiring respondent to reimburse him for the cost of his son's tuition in the private school in which petitioner placed the child for the 1993-94 school year. The hearing officer denied petitioner's request for reimbursement because she found that petitioner had failed to request reimbursement in a timely manner. Respondent cross-appeals from the hearing officer's determination that it failed to offer the child an appropriate placement for the 1993-94 school year. The appeal must be dismissed. The cross-appeal must be dismissed.

        Petitioner's child was initially identified as a preschool child with a disability by respondent's committee on preschool special education, in April, 1992. In February, 1993, the child was referred to the committee on special education (CSE) of the Community School District 3. On May 7, 1993, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed in a modified instructional services-IV (MIS-IV) class with 10:1+1 child to adult ratio. The CSE also recommended that the child receive individual counseling twice per week, and small group counseling once per week. In a notice of the CSE's recommendation which was dated June 1, 1993, petitioner was advised that the child would be placed in P.S. 75, for the 1993-94 school year.

        In September, 1993, the child was placed by his parents in the West End Day School, which is a private school for children with disabilities in New York City. The child remained in the West End Day School for the 1993-94 and 1994-95 school years. The West End Day School 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. However, the fact that a private school is not approved by the State Education Department does not preclude a parent from recovering the cost of tuition at the school (Florence County School District Four et al. v. Carter by Carter, ____U.S.____ , 114 S. Ct. 361 [1993]). A board of education may be required to pay for special 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]).

        At petitioner's request, an impartial hearing was held on April 3, 1995, for the purpose of seeking reimbursement for tuition costs resulting from his unilateral placement of the child at the West End Day School for both 1993-94 and 1994-95 school years. Respondent was represented at the hearing by the assistant CSE chairperson, who conceded on the record that respondent failed to offer an appropriate placement for the child during the 1993-94 school year, and that the CSE's recommendation for the 1994-95 school year was defective because the child's teacher had not participated in making the CSE's recommendation. Petitioner offered some evidence of the appropriateness of the West End Day School's program for his child. In a decision dated May 12, 1995, the impartial hearing officer ordered respondent to reimburse petitioner's tuition costs for the West End Day School for the 1994-95 school year. However, the impartial hearing officer denied petitioner's request for reimbursement of tuition costs for the 1993-94 school year, on the ground the petitioner had not made a timely request for tuition reimbursement. Specifically, the hearing officer found the petitioner had waited until well into the 1994-95 school year to seek tuition reimbursement.

        Petitioner appealed from the hearing officer's decision denying his request for tuition reimbursement for the 1993-94 school year. In its answer, respondent conceded that it had not met its burden of demonstrating that it had offered the child an appropriate placement for the 1993-94 school year, nor did it challenge the hearing officer's finding that petitioner had met his burden of demonstrating that the private school had provided appropriate special education services for his son. The sole issue to be determined in that appeal was whether the hearing officer had correctly determined that petitioner's tuition reimbursement claim for the 1993-94 school year was untimely.

        By decision dated August 29, 1995, I remanded this matter for a further hearing solely on the issue of the third Burlington criterion, that is, whether equitable considerations supported petitioner's claim for tuition reimbursement for the 1993-94 school year (Application of a Child with a Disability, Appeal No. 95-39). In my decision, I found that there was no express statute of limitations prescribing the time within which petitioner was obliged to have asserted his claim for tuition reimbursement, and that the timeliness of petitioner's claim for tuition reimbursement must be considered in determining whether equitable considerations supported his claim (Application of a Child with a Disability, Appeal No. 95-37; Application of a Child with a Disability, Appeal No. 95-32). I noted that the case was another in a series of appeals in which the record was totally inadequate to determine whether equitable considerations supported the parent's claim for tuition reimbursement. In remanding the matter for a further hearing, I expressly asked the parties to adduce evidence with respect to four questions: First, to what extent did the CSE notify petitioner of his due process rights? Second, when did petitioner become aware, or should have become aware, of his right to obtain reimbursement? Third, when did the CSE become aware, or when should it have become aware, of petitioner's dissatisfaction with the CSE's alleged failure to offer a placement? Fourth, did petitioner cooperate with the CSE during the time in question?

        At the hearing on the remanded matter, which was held on October 2, 1995, respondent contended that it had discovered evidence which indicated that a placement for the 1993-94 school year had actually been offered to child's parents. Respondent asked for an opportunity to defend the appropriateness of the placement which it had offered. Over the objection of petitioner, the hearing officer adjourned the hearing to provide respondent an opportunity to present evidence of the appropriateness of its placement by bringing in a witness who had personal knowledge about the placement. On October 23, 1995, the hearing officer issued an interim order directing the parties to appear on November 2, 1995.

        When the impartial hearing was reconvened on November 2, 1995, the hearing officer indicated that she would determine only two issues: whether the placement which respondent had offered was appropriate, and if not, whether petitioner was entitled to be reimbursed for his expenditures for the child's tuition for the 1993-94 school year. With respect to the appropriateness of the placement which respondent had offered, the hearing officer received documentary evidence, including the child's proposed individualized education program for the 1993-94 school year, and a notice of the CSE's recommendation. The notice indicated that respondent had offered the child a specific placement in P.S. 75. The hearing officer also heard testimony by the teacher of the MIS-IV class which had been offered to the child. The teacher described her instructional program, and discussed a profile of the skills and needs of the children in the class.

        With regard to the remaining issue, respondent offered written evidence that the child's parents were notified on February 25, 1993, that a school social worker would meet with them to explain their due process rights, and to give them a copy of the booklet Special Education: A Guide for Parents, prior to asking the parents to consent to having the CSE evaluate the child. The booklet is the statutorily required handbook for parents which explains their rights (see Section 4403 [8] of the Education Law). The parties stipulated that the hearing officer could take judicial notice of the booklet's contents. The booklet was not entered into evidence. The record indicates that a social worker met with petitioner's wife, on March 9, 1993. In his report, the social worker indicated that he had explained the parental due process rights to petitioner's wife, and that he had given her the booklet. On March 9, 1993, petitioner's wife signed the consent form, which indicated that she had been informed of her due process rights, and had received the booklet. Petitioner testified that he and his wife had received a booklet at every CSE review, but that he had "probably" not read the booklet in 1993.

        Petitioner applied to the West End Day School for the child's admission, and had given a $20 application fee to the school on March 14, 1993. After the child had been evaluated by the CSE in the Spring of 1993, petitioner met with the CSE on May 7, 1993. Petitioner was orally advised at the May 7, 1993 CSE meeting that the CSE would recommend a MIS-IV class for his son. On May 11, 1993, petitioner submitted a $625 deposit to the West End Day School. At the hearing, petitioner testified that his wife had visited the proposed MIS-IV class site, and that he and she had decided that the MIS-IV program was inappropriate for their son. On June 2, 1993, petitioner made a $2,900 tuition payment to the private school. Respondent did not mail its final notice of the CSE's recommendation until June 1, 1993.

        The final notice of recommendation included the following statement:

"If you do not agree with the 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, NY 11201. For a full description of the 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."

The final notice also included a handwritten notation, which read as follows:

"Please sign that you are refusing the public school placement but want the service - If your child is going to West End Day School, please do the above."

        At the hearing, the assistant CSE chairperson testified that this notation was probably written by respondent's placement officer, so that the child could obtain transportation services under Section 4402 (4)(d) of the Education Law. Petitioner was asked why he had not requested an impartial hearing in June, 1993, after receiving the final notice of recommendation. He testified that it was very clear to him that the only option which respondent could offer was the MIS-IV program, which he believed to be unsuitable for his son. He also testified that he did not become aware of his right to seek tuition reimbursement under the Carter decision until shortly before he retained an attorney in January, or February, 1995.

        Petitioner returned the final recommendation notice, dated June 11, 1993, with a notation, "I refuse public school placement but want the services of transportation and counseling, [the child] will attend private school."

        In her decision dated November 21, 1995, the impartial hearing officer found that the MIS-IV placement which respondent had offered the child for the 1993-94 school year was inappropriate because his skills and needs were not similar to those of the other children in the MIS-IV class (see 8 NYCRR 200.6 [a][3]). She further found that equitable considerations did not support petitioner's claim for tuition reimbursement. She noted that petitioner had been made generally aware of his due process rights, and found that respondent was not obligated to notify petitioner of the Carter decision. She also found that the boy's parents had evidenced an intent to place him in a private school, regardless of any public placement. The hearing officer also reasoned that respondent had no reason to contemplate putting money into a reserve fund in its 1995-96 operating budget to pay for 1993-94 expenses, such as petitioner's reimbursement claim, and that it would be inequitable to reimburse petitioner.

        Before reaching the merits of petitioner's appeal, I will briefly address respondent's cross-appeal. In my prior decision in this matter, I found that respondent had failed to meet its burden of proof with respect to the appropriateness of its placement offer. I find that there was no basis in law for the hearing officer to purportedly reopen that portion of my decision (34 CFR 300.510 [d]). Therefore, respondent's cross-appeal must be dismissed.

        There are two evidentiary matters to be addressed. Petitioner has annexed to his petition copies of a schedule of his payments for the child's tuition at the West End Day School, and his canceled checks indicating that he paid the tuition. These documents were requested by the hearing officer. Petitioner's attorney affirms that the documents were delivered to respondent's Impartial Hearing Office. In her decision, the hearing officer asserted that she had not received them, and drew a negative inference that they were withheld because they might contradict petitioner's testimony that he had not enrolled the child in the private school until after the CSE had conducted its review on May 7, 1993. In its answer, respondent has not disputed the attorney's affirmation that the documents were timely submitted. I will accept the documents. With the agreement of the parties, the hearing officer had agreed to accept a post-hearing affidavit from a representative of respondent concerning the harm respondent had allegedly suffered as a result of petitioner's delay in asserting his claim for tuition reimbursement. Respondent asserts that the affidavit was submitted to the hearing officer. However, it did not provide a copy of the affidavit with the record which it submitted in this appeal.

        With regard to the four questions which I asked the parties to address at the hearing, the record reveals that petitioner was initially notified of his due process rights when the child was referred to the CSE in February, 1993. Petitioner acknowledges that he received a copy of the booklet Special Education: A Guide for Parents. Petitioner was again notified of his due process rights, and referred to the booklet, when he received the final notice of the CSE's recommendation, on or about June 1, 1993. Petitioner's testimony that he did not become aware of his rights to seek tuition reimbursement until January or February, 1995 is unrebutted. The third question which the parties were to address was when did the CSE become aware of petitioner's dissatisfaction with its recommendation? The notation which was added to the final notice of recommendation indicates at least some awareness of petitioner's intention to enroll the child in the West End Day School. By his notation of June 11, 1993 on the final notice of recommendation, petitioner indicated that he would not accept the CSE's recommendation. However, he did not ask for another recommendation, nor did he ask for an impartial hearing to review the CSE's recommendation. With regard to the fourth question, respondent's legal representative at the hearing asserted in her closing statement that there was no showing that petitioner had not actively cooperated with the CSE.

        Petitioner contends that he did not immediately seek an impartial hearing because he believed that the only recommendation which the CSE would make was for its MIS-IV program which, in his opinion, was inappropriate for his son. He also contends that at the time when the CSE made its recommendation it was not possible for a parent to obtain tuition reimbursement for 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 law in New York changed when the Supreme Court rendered its decision in Florence County School District Four et al. v. Carter by Carter, supra, on November 9, 1993.

        Implicit in petitioner's contentions is the premise that the sole purpose of an impartial hearing is to enable a parent to obtain tuition reimbursement for a unilateral private school placement. Although tuition reimbursement is one remedy which a hearing officer may order, it is not the only remedy. 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 of a CSE's recommendation by an impartial decision maker, who may order the CSE to correct its errors, and to place a child in a program other than that which the CSE has recommended. There is no basis in the record which is before me 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, if petitioner had promptly sought review of the CSE's recommendation. In this instance, petitioner did not request an impartial hearing until March, 1995, approximately nine months after the end of the 1993-94 school year. His inaction deprived respondent of an opportunity to correct the CSE's mistake. I find that equitable considerations do not support petitioner's claim for tuition reimbursement (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., F. 3d [3d Cir., 1994]; Application of a Child with a Disability, Appeal No. 95-77).

        I have considered petitioner's other contentions, and find them to be without merit.

 

        THE APPEAL IS DISMISSED.

 

        THE CROSS-APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
February 20, 1996 ROBERT G. BENTLEY