The State Education Department
State Review Officer

No. 96-14

 

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Hon. Paul E. Crotty, Corporation Counsel, attorney for petitioner, Lawrence E. Becker,
Esq.,Phoebe Redmond, Esq., and Alexandra Michalos, Esq. of counsel

Miller, Cassidy, Larroca and Lewin, L.L.P., attorneys for respondents, Nathan Lewin, Esq., and Mathew S. Nosanchuk, Esq. of counsel

 

DECISION

        Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which found that petitioner had failed to offer a child an appropriate educational placement for the 1995-96 school year on a timely basis, and which ordered petitioner to reimburse the child's parents for their expenditures for the child's tuition in a private, sectarian school which has not been approved by the State Education Department as a school for children with disabilities. Respondents, who are the child's parents, cross-appeal from the hearing officer's decision, to the extent that it excluded certain sums from the amount of tuition expenditures to be reimbursed for the 1995-96 school year. They also ask that they be awarded tuition reimbursement for the 1993-94 and 1994-95 school years, or in the alternative, that the matter be remanded to the hearing officer to deal with their claim for those school years. The appeal must be dismissed. The cross-appeal must be sustained in part.

        Respondents' daughter is thirteen years old. In 1985, when the child was three years old, her physician indicated that the child had a number of developmental disabilities, for which there was no definitive diagnosis. The child was enrolled by her parents in a preschool program of the Hebrew Institute for the Deaf and Exceptional Children, which she attended from September, 1985 through June, 1987. In the Spring of 1987, she was referred to respondent's committee on special education (CSE) because she was aging out of the private preschool program.

        A school psychologist, who evaluated the child in March, 1987, reported that the child appeared to be functioning in the moderate to severely retarded range. She noted that the child could not speak in two-word sentences, but made polysyllabic murmurs that approximated short phrases. The school psychologist reported that the child appeared to be interested in the world around her, notwithstanding her limited communication skills, and her limited attention span. She also reported that the child's expressive and receptive language skills and her academic readiness skills were approximately two years delayed, as were her fine motor skills. The child's gross motor skills were reported to be age appropriate.

        In May, 1987, the CSE of Community School District 4 recommended that the child be classified as mentally retarded. She continues to have that classification. When re-evaluated in April, 1995, the child was found to be functioning in the moderate range of mental retardation. She exhibited relative strength in verbal reasoning, in which she was able to identify thirteen of fourteen pictures presented to her. However, she was unable to provide a verbal definition of words. On the abstract/visual reasoning portion of the Stanford-Binet Intelligence Scale, the child's ability to discern spatial relationships and her visual-motor coordination were reported to be in the moderately retarded range. She was unable to perform the tasks required to assess her quantitative reasoning skills. The evaluator reported that the child's verbal responses tended to be one or two words in length, and that she repeated the questions asked of her during a portion of the evaluation. Having reviewed the reports of prior evaluations, the evaluator noted that the child had shown progress in her ability to attend, focus, and perform tasks. At the hearing in this proceeding, the school psychologist testified that the child's speech was unintelligible at times, and that she was distractible, but easily redirected.

        In an update of a social history which was obtained in September, 1994, the child's father provided information for an assessment of the child's adaptive behavior on the Vineland Adaptive Behavior Scale. The child achieved standard scores of 37 for communication, 24 for daily living skills, 45 for socialization, and 78 for motor skills. Her composite adaptive behavior standard score of 32 was consistent with the assessments of her cognitive skills in 1987 and 1995 (see definition of mentally retarded in 8 NYCRR 200.1 [mm] [7]). I note that respondent's lay advocate at the hearing indicated that respondents were not challenging the child's classification as mentally retarded. However, respondents later submitted into evidence a report dated September 25, 1995 by an individual who described herself as an educational programming specialist, and who described the child as multiply disabled. The record does not reveal whether this individual was asserting that the child met the criteria for classification as a multiply disabled child (see 8 NYCRR 200.1 [mm] [8]). Respondents refer to the educational specialist's report in their answer to the petition and memorandum of law, but they do not specifically challenge the hearing officer's finding that there was no dispute about the girl's classification. Under the circumstances, I am precluded from reaching the issue of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The most recent educational evaluation which is in the record before me was performed in August, 1994. The evaluator reported that the child, who was then almost twelve years old, was unable to write her name, or to reproduce any letter or number. The child was able to state her age, the days of the week, and the four seasons. She could count from one to twenty, and identify simple geometric shapes, but could not tell time. The child was able to identify coins, but could not compute monetary amounts. Although she could identify and say the letters of the alphabet, she was unable to make the sound association with letters. The evaluator reported that the child's performance had improved since her previous evaluation in 1991, when she was unable to identify letters. The evaluator opined that the child was functioning at the academic readiness level.

        In a speech/language evaluation which was performed in September, 1994, the child was reported to be verbally spontaneous. Although the child used three-word utterances, the evaluator reported that the girl's utterances were typically statements of her likes, and not related to the questions asked of her. She was also echolalic, i.e., repetitive, on occasion. The girl's speech was reported to be generally intelligible. She displayed significant delays in her receptive and expressive language skills. The evaluator reported that the child could not reliably answer yes/no questions, or "who", "what", or "where" questions.

        When it classified the child as mentally retarded in 1987, the CSE recommended that she be enrolled in petitioner's modified instructional services-V (MIS-V) program, and that she be placed in a bilingual (Yiddish/English) program. It further recommended that the girl receive individual speech/language therapy, four times per week. The child was in the recommended programs during the 1987-88 and 1988-89 school years. Thereafter, respondents withdrew the child from public school because they believed that the MIS-V program was inappropriate for her. During the 1989-90 school year, the child was educated at home by a private teacher whom her parents had employed.

        Subsequently, the child's parents placed her in the Sinai Academy, which is an elementary school operated by Sinai, The Learning Disabilities Program of Metropolitan New Jersey, Inc. (hereafter "Sinai"). The Director of Sinai testified at the hearing in this proceeding that Sinai had approximately 40 students. It was housed within the Joseph Kushner Hebrew Academy, which had approximately 350 regular education children, and is located in Caldwell, New Jersey. Although all of the children who were attending Sinai at the time of the hearing reportedly had educational disabilities, Sinai was not approved as a school for children with disabilities by the State educational agencies of either New York or New Jersey.

        The child has attended Sinai, at her parents' expense, since the 1989-90 school year. Petitioner has transported the child to her private school, and has provided her with the related services of speech/language therapy, occupational therapy, and physical therapy, since the 1989-90 school year. During this period, the CSE reportedly conducted annual reviews, and continued to recommend that the child be enrolled in petitioner's MIS-V program for instruction, with related services. During the 1994-95 school year, the child reportedly received 30 minutes of individual speech/language therapy, four times per week. The girl reportedly received 30 minutes of individual occupational therapy, twice per week, and 30 minutes of individual physical therapy, twice per week. At the hearing in this proceeding, the parties agreed that respondents had maintained contact, and cooperated with the CSE. No representative of the CSE observed the child in Sinai, until the Fall of 1995.

        Petitioner's CSE met on May 8, 1995 to conduct its annual review and prepare the child's individualized education program (IEP) for the 1995-96 school year. The record reveals, and petitioner concedes, that the mandatory parent and teacher members of the CSE (see Section 4402 [1][b][1] of the Education Law) were not present for the CSE meeting. At the hearing, the child's father, who attended the CSE meeting, testified that the child's speech/language therapist reported that the child had made progress, and recommended that the amount of her speech/language therapy be reduced. He further testified that the therapist's recommendation was unacceptable, and that he and his wife declined to continue with the meeting. Thereafter, the parents submitted to the CSE a report by a private speech/language therapist, who recommended that the child receive five hours per week of individual speech/language therapy. The child's father also testified that a CSE representative telephoned him in July, 1995, and indicated that the CSE had agreed to increase the amount of the child's speech/language therapy. He further testified that the CSE representative told him that their conversation would be indicated in the child's IEP as having been the father's telephonic participation in a CSE meeting to complete the IEP.

        The record before me includes an IEP for the child. The IEP indicated that it was based upon a CSE meeting on May 8, 1995, and a reconvened meeting on July 19, 1995. With respect to the latter meeting, the IEP indicated that the child's father had participated by telephone. However, the child's teacher did not participate in the July 19, 1995 meeting. For the 1995-96 school year, the CSE again recommended that the child be enrolled in petitioner's MIS-V program. Although the IEP indicated that the child-to-adult ratio of the MIS-V class would be 10:1+1, I note that a subsequent IEP, and the testimony of a site supervisor, revealed that the correct ratio was 12:1+1. The IEP indicated that the child would not be mainstreamed for any instruction. The CSE also recommended that the child receive 60 minutes of individual speech/language therapy, four times per week, 60 minutes of occupational therapy, twice per week, and 30 minutes of individual physical therapy, twice per week. There is no dispute as to the appropriateness of these related services for the child. The IEP included annual goals for the child's related services, as well as goals in reading, mathematics, social studies, science, art, music, and health.

        Respondents requested that an impartial hearing be held to review the CSE's recommendation. The hearing began on September 8, 1995. The hearing officer noted that the child's teacher had not attended the July 19, 1995 CSE meeting. It was agreed between the parties that the hearing would be adjourned until October 30, 1995, to allow the parties to comply with the five-day disclosure of evidence rule (see 8 NYCRR 200.5 [c][9]), with regard to the alleged efforts by the CSE to have the child's teacher participate in the CSE meeting. It was further agreed that the parents would submit a report of an updated physical examination, and that the CSE could reconvene to address any defect in its procedure.

        On September 28, 1995, the CSE reconvened. The record reveals that respondents, and each of the required CSE members, except the child's teacher, were present. The child's teacher participated by speaker phone. The CSE adhered to its prior recommendation. A notice of the CSE's recommendation, dated September 28, 1995, offered respondents a specific MIS-V class placement in I.S. 14, which is located in Brooklyn.

        The hearing in this proceeding resumed on October 30, 1995. The CSE representative at the hearing asserted that the CSE had attempted to have the child's teacher participate in either, or both, the May 8 and July 19 CSE meetings, and that the CSE had recommended an appropriate educational placement for the child. Respondents, through their lay advocate, challenged the appropriateness of the proposed MIS-V class, as well as the timeliness of petitioner's offer of that placement. They requested that petitioner be ordered to reimburse them for their expenditures for the child's tuition during the 1995-96 school year. At the end of the hearing on October 30, 1995, the parties agreed that the hearing would continue on another day, if the CSE could produce a witness to describe what attempts had been made to have the child's teacher participate in the May 8 and July 19 CSE meetings. The hearing reconvened on November 15, 1995. The assistant chairperson of the CSE testified that private schools were usually notified of scheduled CSE reviews of their students, but that there was no evidence in this child's file that Sinai, or the child's teacher, had been invited to attend the May and July CSE meetings. She also testified that she had called Sinai in August, 1995, and was informed by a Sinai employee that the school was closed and no staff was available.

        On January 19, 1996, the hearing officer rendered his decision. He noted that 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]). 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]). The hearing officer also noted that the board of education was contending that it could not reimburse respondents for the child's tuition because the child was attending a sectarian school.

        With respect to petitioner's argument that it was precluded by the Establishment Clause of the First Amendment to the United States Constitution from reimbursing respondents for the cost of the child's tuition in Sinai, the hearing officer held that such reimbursement would satisfy the three-part standard which the United States Supreme Court articulated in its landmark decision in Lemon v. Kurtzman, 403 U.S. 602 (1971), i.e., that the government action must have a secular purpose, that it must not have the primary effect of advancing religion, and that it must not create excessive entanglement between church and state. He found that the provision of a free appropriate public education to children with disabilities pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.) was a secular purpose. He further found that the reimbursement of parents for the cost of their children's education, which should have been borne by the board of education in the first instance, did not have the primary effect of advancing religion, nor did it involve an entanglement of church and state.

        The board of education bears the burden of demonstrating the appropriateness of the program which its CSE has recommended (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No 92-7; Application of a Child with a Disability, Appeal No. 93-9). The hearing officer found that the board of education had not met its burden of proof because the required teacher member of the CSE was not present at the May 8, 1995, or July 19, 1995 CSE meetings. Although the CSE was properly constituted at its September 28, 1995 meeting, the hearing officer held that the board of education's placement offer was untimely, and that the parents had prevailed with respect to the first Burlington criterion for tuition reimbursement.

        The child's parents bear the burden of proof with regard to the appropriateness of the services which the parents obtained for the child at Sinai during the 1995-96 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parents must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20). The hearing officer noted that the range of ages, reading skills and mathematical skills in the child's class in Sinai exceeded three years, which in certain instances is precluded by State regulation (see 8 NYCRR 200.6 [2][5] and [7]), but found that respondents had demonstrated that the child was being instructed in appropriate groups within her class. He also found that Sinai's instructional program was meeting the child's special education needs, by developing her life skills and her functional academic skills. He held that respondents had met their burden of proof with respect to the second Burlington criterion, i.e., whether the services which they had obtained for the child were appropriate.

        With regard to the third Burlington criterion, i.e., whether equitable considerations supported respondents' claim, the hearing officer noted that respondents were contractually obligated to pay Sinai $16,935, of which only $13,900 was designated as the charge for tuition. The remainder of $3,035 included a charge of $1,000 to the Joseph Kushner Hebrew Academy, $2,000 for registration, and $35 to the parents' council of the Joseph Kushner Hebrew Academy. He also noted that the contractual amount for the tuition of residents of New Jersey was $12,200. In the absence of a satisfactory explanation for the discrepancy between the amount charged for New Jersey residents, and that charged to respondents, the hearing officer held that petitioner's obligation to reimburse them should be limited to the lower amount, i.e. $12,200. He found that the sum of $12,200 was reasonable, and that equitable considerations supported respondents' claim. The hearing officer ordered that petitioner reimburse respondents in the amount of $12,200, but provided that the amount could be increased to $13,900 if it could be established that the additional amount was directly related to " ... some component of [the child's] individual educational needs."

        Although the board of education refers to the failure of its CSE to have each of its required members present for its first two attempts to conduct the child's annual review as a "technical violation", it acknowledges that the State Review Officer has ruled on numerous occasions that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 90-22; Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-11; Application of a Child with a Disability, Appeal No. 95-14). It should be noted that there is no evidence in the record that the child's teacher in Sinai declined to participate in any CSE meeting.

        With regard to the hearing officer's finding that the board of education's offer of an educational placement on September 28, 1995 was untimely, the board of education asserts that the hearing officer erred by relying upon the stipulation in Jose P. et al. v. Ambach et al., (79 C 270, U.S. D.C., E.D. N.Y., 1982). That stipulation provided, in material part, that on or after August 15th of each year, all students who reside in New York City, and who have been referred to the CSE on or before the preceding May 15 and have not received a program recommendation and site offer for the following September, shall be eligible to enroll, at the board of education's expense, in an approved private school for the ensuing school year. Petitioner asserts that the Jose P. stipulation does not apply because it offered the child a placement in July, 1995, and because Sinai has not been approved by the New York State Education Department. I find that neither argument is persuasive with respect to the timeliness of the board of education's placement offer. Its alleged placement offer in July was a nullity because it was based upon an invalid CSE recommendation. The fact that Sinai is not an approved school would preclude payment of tuition under Jose P. However, the Jose P. stipulation reflects a consensus among the parties to that proceeding that parents should know where their children will be going to school by no later than August 15. In this instance, the first valid placement offer by the board of education occurred nearly one month after classes had begun for the 1995-96 school year. The hearing officer found, and I concur, that the board's offer was untimely.

        With regard to the appropriateness of the services provided to the child by Sinai, petitioner argues that its own MIS-V program was appropriate and was less restrictive than Sinai. Consequently, it argues that Sinai must have been inappropriate. I find that petitioner's argument is untenable. Even if I were to find that the MIS-V program was appropriate, which is an issue I do not reach, it does not follow that Sinai's program was inappropriate. Petitioner also relies upon two written reports by one of its school psychologists and one of its social workers of their respective observations of the child in Sinai, on September 19, 1995. The school psychologist reported that the girl's class was composed of children classified as learning disabled, except for respondent's daughter and one other child. She observed the child being individually instructed in English, while the remainder of the class was instructed in Hebrew. Later that day, she again observed the child being individually instructed. The social worker also reported that he had observed the child receiving individual instruction, and noted that the child was highly distractible as she worked with her teacher on pragmatic shopping related skills. Petitioner claims that Sinai did not provide the child with an opportunity to be educated with children who were functioning at her level, and that she had no meaningful interaction with her classmates.

        Petitioner's social worker testified at the hearing with regard to his perception about the child's isolation within her Sinai classroom. Sinai's Director and the child's teacher in Sinai acknowledged that the child received much of her instruction individually, or in groups of two or three, but they denied that she was in any way isolated from the children in her class. The Director testified that the child was taught in groups of one to three children because of her distractibility. She also testified that respondents' daughter used appropriate language to interact socially with others, and participated in various activities, including games. She further testified that after the social worker's observation, another child with abilities and needs similar to those of respondents' child had enrolled in the child's class. The child's teacher testified that the child participated in all group lessons involving social skills. She noted that the child's demeanor had improved, when she was removed from a class of lower functioning children and placed with the children who were her classmates during the 1995-96 school year. The child's teacher also described the instructional program which the child received during the 1995-96 school year. She testified that emphasis was placed on developing the child's language skills, specifically getting her to speak in full sentences, and increasing her sight vocabulary. The child's language skills have been facilitated with the use of "cue cards" which the child memorizes, and by keyboarding which allows the child to communicate more effectively in writing. I find that Sinai's instructional program addressed the child's special education needs, as identified in her IEP, and about which there is little dispute. Therefore, I find that respondents have prevailed with respect to the second Burlington criterion.

        The board of education argues that equitable considerations weigh against respondents, and that it " ... should not be retroactively punished for its failure to comply with all procedural safeguards when [the parents] had no intention of accepting the public school placement site offer despite its appropriateness." The board's argument, and its reliance upon the decision Salley v. St. Tammany Parish School Board, 21 IDELR 12, (U.S. D.C. E.D. L.A., 1994) have been rejected in prior appeals (Application of a Child with a Disability, Appeal No. 95-46; Application of a Child with a Disability, Appeal No. 95-48). Similarly, the decision in Gregory M. v. State Board of Education, 891 F. Supp. 695 (U.S. D.C. D. Conn., 1995) is inapposite because the child in that case was not eligible for classification at the time he was unilaterally placed in a private school. As noted above, there is no evidence that the child's parents failed to cooperate with the CSE, or that they delayed in raising their objections to the CSE's recommendation. The reasonableness of the cost of the services which parents have obtained for their child must be considered under the third Burlington criterion (Florence County School District Four v. Carter by Carter, supra; Application of a Child with a Disability, Appeal No. 96-8). While I will address the additional sums claimed by respondents in their cross-appeal, I find that the sum of $12,200 which the hearing officer ordered that petitioner pay respondents for the child's tuition was reasonable. Accordingly, I find that equitable considerations support respondents' claim.

        The remaining issue to be determined in the board of education's appeal is whether the Establishment Clause of the First Amendment to the United States Constitution prevents the board of education from reimbursing respondents for the cost of the child's tuition in Sinai. I must note that the record which is before me is extremely limited with respect to the allegedly sectarian nature of Sinai's instructional program, notwithstanding the State Review Officer's remand of an earlier appeal by petitioner in a "church-state" case because the record in that appeal was inadequate (Application of the Board of Education of the City School District of the City of New York, Appeal No 94-35). The record includes a copy of the certificate of incorporation of Sinai's parent corporation, the Learning Disability Program of Metropolitan New Jersey, Inc., which indicates that the corporation's purpose is "To provide both Jewish and Secular education for learning disabled Jewish children and conduct both elementary and high schools for learning disabled Jewish children" (Exhibit 115-B-5). The Director of Sinai testified at the hearing that Sinai was operated under religious auspices, and that all of its students were Jewish. However, she also testified that Sinai would accept other children, but only Jewish children had applied for admission. She conceded that religious training and instruction were provided, but only to those children for whom it was appropriate. The child's teacher testified that the child received no religious training, because it would not have been appropriate for her. In any event I note that in their answer to the petition, respondents have admitted the board of education's allegation that Sinai is a sectarian school.

        With regard to the tripartite test which the Supreme Court articulated in Lemon v. Kurtzman, supra, the board of education does not contend that the Individuals with Disabilities Education Act (IDEA), upon which respondents base their claim for tuition reimbursement, lacks a secular purpose. In Zobrest v. Catalina Foothills School District, ___ U.S. ___, 113 S. Ct. 2462, at 2469 (1993), the Supreme Court found that IDEA "...creates a neutral government program dispensing aid not to schools but individual handicapped children."

        Petitioner argues that its use of Federal and State funds to reimburse respondents for the child's tuition in Sinai violates the second part of the Lemon v. Kurtzman test, i.e., that the funds so expended have the principal effect of advancing religion. It contends that since Sinai is a sectarian school which provides religious instruction to its pupils, the tuition charged by Sinai must include the cost of providing religious instruction. It further contends that the fact that the public funds would be paid to the child's parents, rather than to Sinai, does not alter the underlying purpose for which the funds are to be used, i.e. payment of tuition at a sectarian school for, at least in part, religious instruction.

        Respondents argue that the remedy of tuition reimbursement for petitioner's failure to fulfill its obligation under IDEA to offer the child an appropriate educational placement on a timely basis would not violate the Establishment Clause. They rely upon the Zobrest decision, which held that the Establishment Clause did not preclude a school district from providing the services of an interpreter of the deaf to a deaf student who had been enrolled by his parents in a sectarian school. In Zobrest, the Supreme Court noted that it had previously held that government programs which neutrally provide benefits to a broad class of citizens irrespective of their religion are not readily subject to an Establishment Clause challenge simply because sectarian institutions may also receive an attenuated financial benefit (Mueller v. Allen, 463 U.S. 388 [1983]; Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 [1986]).

        Mueller v. Allen involved a state income tax deduction for parents of all children for certain educational expenditures, including tuition at private schools, many of which were sectarian. Witters v. Washington Dept. of Services for the Blind involved a publicly funded vocational rehabilitation program which provided special education and/or training in the professions, business, and trades for visually impaired individuals, one of whom wished to use program funds to obtain a degree in theology. In both cases, the argument was made that the governmental program, no matter how religiously neutral on its face, would nevertheless have the primary effect of advancing religion. In Mueller, the Court noted that the only aid which went to sectarian schools was the result of the decisions of individual parents to enroll their children in those schools, and that there was no "imprimatur of state approval" (see Widmar v. Vincent, 454 U.S. 263 [1981]) given to those schools as a result the parents' decisions to place their children in them. The Court found that the primary effect of the state income tax deduction was not to advance religion, and that it did not excessively entangle the state in religion. In Witters, the Court also found that any aid which ultimately flowed to religious institutions did so as a result of the independent and private choices of the aid recipients, and that the aid in no way created a financial incentive for students to undertake sectarian education.

        Applying these principles to the facts of this case, I find that the reimbursement of respondents for their expenditures for the child's tuition at Sinai is not precluded by the Establishment Clause of the First Amendment. IDEA clearly has the secular purpose of ensuring that all children with disabilities are offered a free appropriate public education. In its Burlington and Carter decisions, the Supreme Court provided the remedy of tuition reimbursement to the parents of children who were entitled to receive a free appropriate pubic education but did not receive that education. The remedy is available to all parents who otherwise meet the criteria set forth in those decisions, regardless of whether the expenses which they incur arise from placement of their children in other public schools or in private schools. Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children appropriate educational placements. I note that petitioner has not refuted the testimony of the child's teacher that the child does not receive religious instruction in Sinai.

        There is no danger of excessive entanglement of church and state in the payment of tuition reimbursement to parents. Therefore, the decision in Wamble v. Bell, 598 F. Supp. 1356 (U.S. D.C. W.D. Mo., 1984) upon which petitioner relies is inapposite. The facts in Wamble v. Bell are similar to those in Aguilar v. Felton, 473 U.S. 405 (1985), which is also inapposite because it did not involve tuition reimbursement under IDEA. For all of the foregoing reasons, I find that petitioner's appeal must be dismissed.

        I will now consider respondent's cross-appeal. At the outset, I note that petitioner objects to respondents' inclusion of new documentary evidence with their cross-appeal. Petitioner argues that, with limited exceptions, the State Review Officer has not, and should not, consider evidence which was not part of the record before the hearing officer. The two exceptions are where the evidence was unavailable at the time of the hearing, and where the newly offered evidence is necessary to complete the record (Application of a Child with a Disability, Appeal No 95-41). I have examined the four documents in question (Exhibits A-D to the cross-appeal). Exhibit A is a letter by respondents referring their child to the CSE in 1989. I will accept the letter in order to make the file complete. Exhibit B is a letter dated February 15, 1996 from the Director of Sinai to the child's father about the manner in which the school computes its tuition. Since that issue was raised by the hearing officer in his decision, in which he implied that additional documentation could be submitted, I will accept Exhibit B as part of the record in this proceeding. Exhibits C and D relate to the tuition charged by Sinai for the 1993-94 and 1994-95 school years. Since respondents did not seek tuition reimbursement for either of those years at the hearing, I find that they are not properly part of the record in this proceeding, and I will not accept them.

        Respondents assert that the hearing officer found that they were entitled to seek reimbursement for prior years' tuition at Sinai. I note that the hearing officer merely observed that the fact that respondents did not seek tuition reimbursement for the years prior to the 1995-96 school year was of relevance to him in determining the reasonableness of their request for reimbursement for 1995-96. They further assert that they are entitled to obtain tuition reimbursement because the CSE recommended the same MIS-V program for both the 1993-94 and 1994-95 school years. Although they contend that the MIS-V program would have been inappropriate for their daughter in both of those years, there is no evidence in the record with respect to the MIS-V classes for those years because no claim for tuition reimbursement for those years was asserted at the hearing. There is virtually no evidence in the record with respect to the child's program in Sinai during either of those years. The timeliness of a parental request for tuition reimbursement is a matter to be considered in determining whether equitable considerations support the claim for reimbursement (Application of a Child with a Disability, Appeal No. 95-31). There are a number of questions to be answered with regard to that issue which are not answered in the record which is before me. Under the circumstances presented, I must deny respondent's request for reimbursement for those years because it is beyond the scope of this proceeding. For the same reason, I will not remand the matter, as respondents have requested.

        Respondents also cross-appeal from the hearing officer's order limiting their reimbursement for the child's tuition during the 1995-96 school year to $12,200. They seek an additional $4,700 in reimbursement. Of that sum, $1,700 is for a surcharge which Sinai reportedly imposes upon the parents of out-of-state children. Respondents have offered a letter from the Director of Sinai (Exhibit B to the cross-appeal), in which the Director asserted that parents who reside in New Jersey are more likely to be actively involved in Sinai's fundraising activities, and are charged $1,700 less than the parents of out-of-state students. I find that the surcharge which is based upon a generalization about the extent of parental participation in fundraising activities bears no relationship to the services actually provided to respondents' child, and was properly excluded by the hearing officer in his order requiring petitioner to reimburse respondents.

        The Sinai Director did not address a $1,000 "assessment" payable to the Joseph Kushner Hebrew Academy, for which respondents also seek reimbursement. However, respondents assert that the assessment is used to defray the operating and maintenance costs of the building in which Sinai is located. Although some indirect care costs are recoverable in the tuition charged by approved private schools (8 NYCRR 200.9), I am constrained to find that respondents have failed to offer any proof of the appropriateness of including an assessment of this amount in the child's tuition.

        The third and final additional sum which respondents seek is $2,000 for a "registration" fee which they paid to Sinai. On September 5, 1995, respondents signed a contract with Sinai, pursuant to which they agreed to pay a tuition charge of $13,900 (which included the out-of-state surcharge of $1,700), the $1,000 charge discussed above, and a registration fee of $2,000. They contend that the registration fee, notwithstanding its name, is in fact part of Sinai's tuition charge. In support of their contention, they offer a letter from Sinai's Director (Exhibit B to the cross-appeal). The Director wrote that: "In order to obtain a serious commitment from parents we ask for $2,000 of the tuition money - which we call registration - to be paid before the student begins classes." In view of the sum involved, which would be excessive if it were truly for registration, as well as the relatively low amount which Sinai charged for tuition, I find that the Director's explanation is credible. Therefore, I will modify the hearing officer's order to the extent of increasing the amount for which respondents are to be reimbursed to include the $2,000 registration fee.

 

 

        THE APPEAL IS DISMISSED.

 

        THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that petitioner shall reimburse respondents in the amount of $14,200, upon proof by respondents of payment of that sum to Sinai for their child's education during the 1995-96 school year.

 

 

Dated: Albany, New York __________________________
July 3 , 1996 ROBERT G. BENTLEY