The State Education Department
State Review Officer

No. 96-5

 

 

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, Robert Nobel, Esq. of Counsel

 

DECISION

Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse her for the cost of her son's tuition at the Winston Preparatory School, in which petitioner had unilaterally enrolled her son for the 1993-94 school year. In a prior proceeding, an impartial hearing officer had found that the respondent had failed to offer an appropriate educational placement to the child for the 1993-94 school year. The impartial hearing officer in this proceeding found that the Winston Preparatory School had provided the child with an appropriate program during the 1993-94 school year. However, the impartial hearing officer denied petitioner's request for tuition reimbursement on the ground that equitable considerations did not support her request. Respondent cross-appeals from the portion of the hearing officer's decision which found that the private school had provided an appropriate educational program. The appeal must be dismissed. The cross-appeal must also be dismissed.

Petitioner's son who is eighteen years old, was initially classified as orthopedically impaired, in 1983. In 1988, the child was classified as multiply disabled by the Committee on Special Education (CSE) of Community School District #3. He has remained classified as multiply disabled. The boy reportedly has gross and fine motor deficits, as a result of Cerebral Palsy. During the period of time in question, he reportedly required the use of a wheel chair and a walker. The boy also has a language disability. His classification as multiply disabled is not in dispute in this proceeding.

The child was reportedly placed by respondent in a "HC-20" special education class for orthopedically impaired children, in the Fall of 1983. Some time thereafter, the child was enrolled in respondent's Modified Instructional Services-I (MIS I) program in which special education was provided in a class of no more than 15 children. The child also reportedly received physical therapy, occupational therapy, counseling, and the services of a health aide. He reportedly remained in the MIS I program through the 1991-92 school year, during which he attended respondent's I.S. 70. In a letter to the CSE, dated July 22, 1992, petitioner indicated that she and her husband had "...decided to take responsibility for [the child's] academic education and [were] placing him in...Winston Preparatory School." (Exhibit 8). Petitioner also indicated that the private school would not provide physical therapy, occupational therapy, psychological counseling, or transportation with a specially equipped bus, as the CSE had reportedly recommended in the child's individualized education program (IEP). She asked the CSE to complete the paperwork so that respondent could provide those related services and transportation to the child, notwithstanding his enrollment in the private school.

The child began attending the Winston Preparatory School in the Summer of 1992. He remained in the private school, as his parents' expense during the 1992-93 school year. The Winston Preparatory School, which is located in New York City, is a private school for children with disabilities. However, it has not been approved by the New York State Education Department as a school for children with disabilities for the purpose of State reimbursement to school districts for the cost of educating the children who are placed in the school.

On March 24, 1993, petitioner participated in a purported annual review of the child by the CSE. Respondent has conceded that its CSE did not include either the required parent member, or the child's teacher (cf. Section 4402 [1][b][1] of the Education Law). The invalidedly composed CSE recommended that the child remain classified as multiply disabled and that he be placed in respondent's MIS I program, and receive the related services of physical therapy, and counseling. The CSE recommended that occupational therapy and the services of a health aide no longer be provided. On April 19, 1993, petitioner acknowledged her receipt of a copy of the CSE's recommendation, which did not include a specific placement for the child during the 1993-94 school year. Petitioner did not challenge the CSE's recommendation, by requesting that an impartial hearing be held.

On or about June 15, 1993, the child was admitted to the Blythedale Children's Hospital, in Valhalla, New York, where he reportedly had surgery performed on his thigh and ankle to improve his ability to walk. The grounds of the hospital constitute the Mt. Pleasant-Blythedale Union Free School District. By letter dated June 15, 1993, the chairperson of the CSE of that school district asked respondent's CSE to provide information about the child, so that the Mt. Pleasant-Blythedale CSE could prepare an IEP for the child. On or about August 9, 1993, the Mt. Pleasant Blythedale CSE prepared an IEP which provided that the child be educated in a 6:1+1 special education class at the Mt. Pleasant-Blythedale UFSD. A copy of the IEP was sent to respondent's CSE on September 22, 1993, with a letter which indicated that:

"We hope that the enclosed IEP will provide the information to your Committee on Special Education which will assist them in planning appropriate placement when a discharge date from Blythedale has been set. As soon as a date has been set, our Placement Assistant will notify you."

At the hearing in this proceeding, petitioner testified that the child returned home from Blythesdale before the beginning of school in September, 1993. The assistant chairperson of the CSE testified that respondent had not received any further communication about the child from the Mt. Pleasant-Blythedale UFSD. However, the assistant chairperson conceded that respondent had transported the child to the Winston Preparatory School during the 1993-94 school year. Respondent also reportedly paid for the services of a physical therapist for the child at his home. The child reportedly received group counseling in the Winston Preparatory School, the cost of which was included in the child's tuition.

The child remained in the Winston Preparatory School, at his parents' expense, during the 1994-95 school year. Respondent reportedly did not offer a placement to the child until March, 1995. In a letter to respondent's Impartial Hearing Office, dated February 21, 1995, petitioner's attorney requested that an impartial hearing be held. A hearing was held on March 17, 1995. At the hearing petitioner requested that she be reimbursed for the cost of her child's tuition in the Winston Preparatory School for 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 were 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, petitioner was precluded from seeking reimbursement because the Winston Preparatory School had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2d, 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3d 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]).

At the hearing which was held on March 17, 1995, the parties' representatives briefly stated their respective positions with regard to petitioner's request for tuition reimbursement. Only two exhibits were introduced into evidence. Respondent's representative conceded that respondent had not offered the child an appropriate placement for either the 1993-94 or 1994-95 school year. Therefore, petitioner prevailed with respect to the first Burlington criterion. The hearing officer rendered his decision on April 30, 1995. He found that petitioner's claim with respect to the 1993-94 school year tuition was untimely. The hearing officer also found that the record which was before did not include sufficient information about the related services which the child received during the 1994-95 school year for the hearing officer to determine whether the educational services which petitioner had obtained for the child in the private school were appropriate. He ordered the hearing to be resumed.

The hearing reconvened on May 11, 1995. Notwithstanding his decision on April 30, 1995 that petitioner's tuition claim for the 1993-94 school year was untimely, the hearing officer agreed to allow petition to present evidence about the appropriateness of the Winston Preparatory School during the 1993-94 school year.

In his second decision which was rendered on June 2, 1995, the hearing officer found that the child's program at the Winston Preparatory School was appropriate for him during the 1994-95 school year. Therefore, petitioner prevailed with respect to the second Burlington criterion. The hearing officer did not address petitioner's claim for tuition during the 1993-94 school year, or the third Burlington criterion, i.e., whether equitable considerations supported petitioner's tuition claim for the 1994-95 school year. However, he did order respondent to reimburse petitioner for her tuition expenditures for the 1994-95 school year.

Petitioner appealed to the State Review Officer from the hearing officer's decision denying her claim for tuition during the 1993-94 school year. Respondent did not appeal from the hearing officer's decision requiring it to pay for the child's tuition during the 1994-95 school year. In Application of a Child with a Disability, Appeal No. 95-47, petitioner's appeal was sustained in part. The State Review Officer found that fairness required that petitioner be afforded another opportunity to adduce evidence with respect to the appropriateness of the Winston Preparatory School's services during the 1993-94 school year. With respect to the hearing officer's finding that petitioner's tuition reimbursement claim for the 1993-94 school year was untimely, the State Review Officer held that the timeliness of petitioner's claim should be considered in determining whether equitable considerations supported her claim, which is the third Burlington criterion. However, the State Review Officer found that the record was inadequate to resolve that issue. He remanded the matter to respondent for another hearing with respect to the appropriateness of the private school's educational program during the 1993-94 school year, and the equities involved in petitioner's claim for tuition reimbursement for that school year. The parties were asked to address the questions of what notice of her due process rights was given to petitioner? When did petitioner become aware, or should have become aware, of her right to seek tuition reimbursement? When did the CSE become aware, or should have become aware, of petitioner's dissatisfaction with the CSE's recommendation? Did petitioner cooperate with the CSE?

The hearing in the present proceeding was held on October 20, 1995. Ms. Roberta Michaels, the Head of Winston Preparatory School, testified about the child's special education needs, and the program which the private school had provided to him during the 1993-94 school year. She testified that the child had not received physical education in the private school because he was not permitted by New York City fire regulation to be in the private school's basement gymnasium. Ms. Michaels also testified that the private school did not provide foreign language instruction to any student, and that the private school had received a waiver from the State Education Department (see 8 NYCRR 100.2 [n]).

The CSE assistant chairperson testified about the information and notices concerning parental due process rights which respondent had given to petitioner. Petitioner testified that she had received a copy of the booklet Special Education: A Guide for Parents, when the child entered respondent's special education program in 1983, but she did not recall whether she still had a copy of the booklet. Petitioner also testified that she had removed her child from respondent's schools in 1992 because she " ... didn't have any faith in the education in the public school ... " (Transcript, page 101). With regard to the notice of the CSE's recommendation of respondent's MIS-I program which she received in April, 1993, and which did not include a specific placement offer, petitioner testified that she was not aware that respondent had any special education program other than the MIS-I program, and that she " ... was afraid of the public schools" (Transcript, page 103).

The hearing officer rendered her decision on November 27, 1995. She found that the child had severe delays in reading decoding and comprehension, mathematics, and a deficit in his fund of general information, as well as great difficulties in expressive language and abstraction. The hearing officer found that the Winston Preparatory School had provided the child with the individualized education he required during the 1993-94 school year. Although the record indicated that the child did not receive adaptive physical education, or instruction in a foreign language, the hearing officer found that the child had nevertheless received appropriate special educational services in the Winston Preparatory School. She held that petitioner had met her burden of proof with respect to the appropriateness of the educational services which petitioner had obtained for the child in the private school. The hearing officer credited petitioner's testimony that she did not become aware of her right to seek tuition reimbursement from respondent until shortly before her attorney requested a hearing in February, 1995. However, she found that respondent had met its obligation to inform petitioner of her due process rights, including the right to challenge the CSE's recommendation by requesting an impartial hearing. The hearing officer further found that petitioner's failure to initiate a hearing within a reasonable time following petitioner's unilateral decision to place the child in the Winston Preparatory School deprived the CSE of the opportunity to review and revise the child's IEP, and to identify an appropriate placement for the child during the 1993-94 school year. She held that equitable considerations did not support petitioner's claim for tuition reimbursement (the third Burlington criterion), and denied her reimbursement claim.

I will address respondent's cross-appeal first, because a determination of the cross-appeal in respondent's favor, i.e. that petitioner had not met her burden of proof with respect to the second Burlington criterion, would render moot petitioner's appeal with respect to the third Burlington criterion.

Respondent asserts that the record demonstrates that the child's placement in the Winston Preparatory School during the 1993-94 school year was inappropriate because the private school was not barrier free, which prevented the child from fully participating in all school activities. Respondent also asserts that the private school's educational program was inappropriate because the child reportedly made only one year's progress during the 1993-94 school year. It further asserts that the Winston Preparatory School was not the least restrictive environment for the child.

Ms. Michaels of the Winston Preparatory School testified that the child had been instructed in English, mathematics, history, and science, in groups of no more than ten children, during the 1993-94 school year. In lieu of a foreign language, the child received five extra periods per week of instruction in language arts in a group of four children. He also received 1:1 speech/language therapy to address his deficits in expressive and receptive language. The private school provided the child with tape recordings of his literature assignments, and a computer to compensate for his deficits in graphomotor skills. Ms. Michaels testified that the child had achieved approximately one year's growth in his reading comprehension skills, in approximately eighteen months, and that his reading decoding skills had also improved. When tested in mathematics in May of 1993, the boy's score was at the third percentile. One year later, he achieved a score at the eleventh percentile. Ms. Michaels also testified that the child had improved his writing ability while attending the private school during the 1993-94 school year. While respondent contests the child's rate of progress during the 1993-94 school year, I find that the record is devoid of any factual evidence or expert opinion testimony to support respondent's position.

With regard to the private school's physical accessibility, Ms. Michaels testified that all of the child's classes were held on the first floor of the school. Although the laboratory for his biology class was on the second floor of the building, his biology teacher worked individually with the child on laboratory exercises in his first floor classroom. Ms. Michaels also testified that the school had altered its operations to provide that the child's peers would eat lunch with him on the first floor, and that school assemblies were also held on the first floor. Although the child did not participate in a school physical education program, he did participate in a physical education program for physically disabled children at Hunter College, on Saturdays. Upon the record before me, I find that there is no basis for concluding that the private school's program was inappropriate because of its alleged physical inaccessibility.

The requirement that children with disabilities be placed in the least restrictive environment applies to unilateral parental placements (P. J. v State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub nom, Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [W.D.N.Y., 1994]). That requirement must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). Although I note that the child's IEP from 1991 indicated that he would be mainstreamed for English, I must also note that the limited information which is in the record suggests that the extent of the child's learning disability and the disparity between his level of achievement and that of his regular education peers would provide an ample basis for finding that the child required a full-time special education program during the 1993-94 school year. Therefore, I find that petitioner's placement of the child in the private school which served only children with disabilities was consistent with the least restrictive environment requirement.

In her appeal, petitioner argues that the hearing officer ignored respondent's negligence in failing to have a validly composed CSE for the March 24, 1993 annual review, and failing to recommend a specific placement for the child during the 1993-94 school year. She alleges that there was no proof at the hearing that respondent had made any attempt to clearly advise petitioner of her due process rights in general, and of her right to seek tuition reimbursement. She also alleges that she cooperated with the CSE at all times, and asks that the hearing officer's decision be annulled.

Although I do not in any way condone respondent's failure to have all of the CSE's required members present for the child's annual review, or its failure to offer a specific placement, there is no logical connection between the number or nature of respondent's errors or omissions and the length of petitioner's delay in asserting her claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 95-83). Respondent's errors or omissions, while significant for the purpose of determining whether respondent met its obligation to offer the child a free appropriate public education, are not dispositive in determining whether equitable considerations support petitioner's claim.

At the hearing, petitioner acknowledged that she had received a copy of the booklet Special Education: A Guide for Parents, in which parental due process rights, including the circumstances under which a hearing can be requested were discussed (Application of a Child with a Disability, Appeal No. 95-83). Whether petitioner retained her copy of the booklet is immaterial. The notice of the CSE recommendation which petitioner signed on April 19, 1993 read, in material part, as follows:

" 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, 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" (Exhibit 14).

Respondent also submitted written evidence in the form of a social history update conducted on November 7, 1994, still some three months before petitioner requested a hearing, that one of respondent's school social workers discussed parental due process rights with petitioner. I find that the hearing officer correctly determined that respondent had met its obligation to notify petitioner of her due process rights.

Petitioner alleges, and respondent concedes, that respondent didn't notify her of her right to seek tuition reimbursement through the impartial hearing process after the Supreme Court rendered its Carter decision in November, 1993. Her testimony that she did not become aware of the possibility of tuition reimbursement, until shortly before her attorney's request for a hearing on February 21, 1995 is unrebutted, as is the assistant chairperson's testimony that the CSE was unaware of petitioner's dissatisfaction with the CSE's recommendation until the attorney requested a hearing. The issue is whether petitioner's unawareness of this specific remedy should afford a basis for excusing her delay in asking for a hearing until approximately 21 months after she received the notice of recommendation, and 9 months after the end of the 1993-94 school year.

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; Application of a Child with a Disability, Appeal No. 95-82).

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
March 15, 1996 ROBERT G. BENTLEY