The State Education Department
State Review Officer

No. 98-43

 

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 Niskayuna Central School District

Appearances:
Margie Best, Esq., attorney for petitioner

Higgins, Roberts, Beyerl and Coan, P.C., attorney for respondent, Michael E. Basile,
Esq., of counsel

 

DECISION

        Petitioner appeals from part of an impartial hearing officer's decision which held that he was not entitled to receive reimbursement for certain transportation costs which he had incurred while visiting his son, who was attending a residential school in Poland Springs, Maine, and for the cost of a course offered by the University of Maine which his son took while enrolled in the residential school. Respondent cross-appeals from the hearing officer's decision to the extent that it required respondent to reimburse petitioner for certain transportation expenditures, including those which he incurred for the boy's stepmother and three siblings to visit the boy at his residential school. The appeal must be sustained in part. The cross-appeal must be sustained in part.

        At the outset, I note that petitioner contends that respondent's cross-appeal should be dismissed because it is allegedly untimely. Petitioner asserts that the last day on which either party could have appealed was August 1, 1998, and that respondent did not challenge the hearing officer's decision until it prepared its answer to petitioner's petition after that date. I find that petitioner's contention is without merit. Section 279.4 (b) of the Regulations of the Commissioner of Education explicitly authorizes a respondent in an appeal to the State Review Officer to cross-appeal from the hearing officer's decision in respondent's answer to the petition. Respondent has done so in a timely manner.

        Respondent contends that the appeal should be dismissed because the petition has not been verified by petitioner, as required by 8 NYCRR 275.5 and 279.1. The petition was verified by petitioner's attorney who offered no explanation why she, rather than her client, had verified the petition. After respondent had raised the issue in its answer, petitioner's attorney submitted an amended petition. The amended petition was also verified by petitioner's attorney, without explanation for that verification. Although petitioner's attorney has offered no explanation for her failure to comply with the rules of practice, I find that it would be inequitable to dismiss the petition because of that mistake.

        Respondent further contends that the petition should be dismissed because petitioner's notice of intention to seek review was served nine days before the petition was served. 8 NYCRR 279.2 (b) provides that a notice of intention to seek review should be served not less than ten days before the petition is served. However, there is no evidence that respondent has been harmed by this error and I decline to dismiss the petition on that basis.

        Petitioner's son, who is 18 years old, reportedly had a turbulent early childhood prior to the separation of his parents in 1983 (Exhibit G). The boy initially lived with his mother, but came to live with petitioner and his present wife in 1992. He had reportedly received counseling for more than four years because of aggressive and assaultive behavior and depression with significant social withdrawal, prior to being admitted to a unit of the Four Winds Hospital in Saratoga, New York in November, 1994. At the time of his admission to that facility, the boy had reportedly exhibited a knife to another youngster on a school bus, and indulged in inappropriate sexual behavior towards his brother and step-sister at home. The boy was discharged from the Four Winds Hospital in January, 1995 with the diagnoses of recurrent severe depression without psychosis, intermittent explosive disorder, and antisocial personality traits.

        On January 18, 1995, petitioner enrolled his son in the Elan School, which is a residential school for emotionally disturbed children located in Poland Springs, Maine. By letter dated February 3, 1995, petitioner's attorney asked for an impartial hearing because of respondent's alleged failure to evaluate the boy and provide him with a free appropriate public education. The attorney's request for a hearing was reportedly rejected by respondent. Petitioner instituted a lawsuit against respondent and its Superintendent of Schools in the U.S. District Court for the Northern District of New York. The lawsuit was apparently withdrawn as a result of a settlement agreement between the parties. The terms of the settlement are not part of the record before me. However, the boy apparently remained at the Elan School. He was scheduled to graduate from high school at the Elan School about two weeks after the hearing in this proceeding was held.

        Respondent's committee on special education (CSE) first met to review the boy's needs on December 17, 1996. Three representatives of the Elan School and one representative of the State Education Department participated by telephone in the CSE meeting. The CSE recommended that the boy be classified as emotionally disturbed and continue in the Elan School for the 1996-97 school year. I note that the individualized education program (IEP) which the CSE prepared at its meeting indicated that the boy's program had begun on September 4, 1996 and would continue for the traditional 180 school days, i.e., a ten-month program. However, the IEP (School District Exhibit 1) also indicated that the State Education Department would grant a one-year emergency interim placement through the summer of 1997, and the CSE meeting minutes indicated that the placement would be for an extended school year, i.e., for the summer of 1997 (School District Exhibit 2).

        Boards of education in New York have no authority to contract for the placement of a child with a disability in a private school which has not been approved by the State Education Department to instruct children with disabilities (Section 4402 [2][b][2] of the Education Law). The emergency interim placement procedure is used to place children in out-of-state private schools which have not been approved by the New York State Education Department but which have been approved by the State educational agencies of the states in which such schools are located, when no suitable placement is available in the private schools which the New York State Education Department has approved. The minutes of the CSE meeting indicated that the Elan School is not approved by the New York State Education Department, but it is approved by the Maine educational agency. The CSE minutes also indicated that the State Education Department representative would provide information to the CSE and the Elan School about additional provisions to be added to the boy's IEP. However, the record does not reveal what, if any, information was provided to the CSE and the private school.

        The boy's IEP indicated that the " … CSE agreed with the recommendation by Mr. Smiley [the State Education Department representative] that a total of eight visits by parents to Elan would be financially covered during the period 8/26/96 to 8/31/97." The CSE minutes indicated that " … five round trips home or for [petitioner] to visit Elan…" were included. One of the boy's IEP annual goals was that he would improve relationships with his family " … as measured by the short-term objectives …" The three objectives for this annual goal were that petitioner's son would participate in groups with peers to discuss family issues at least twice per week; would maintain weekly contact with his family through phone calls or letters; and would earn family visits as appropriate. The CSE minutes indicated that one of the Elan staff members who was working with the boy believed that it would be preferable for the boy's parents to visit him at Elan, rather than for the boy to travel home.

        The CSE's next annual review occurred on December 16, 1997. Petitioner attended the meeting. His son, his attorney, and some Elan staff members participated by telephone in the meeting. The CSE recommended that the boy remain classified as emotionally disturbed, and continue to attend the Elan School during the 1997-98 school year. The boy's IEP indicated that he was to attend the Elan School on a 12-month basis retroactive to September 3, 1997 and that he was expected to graduate from that school in June, 1998 (School District Exhibit 3). Much of the IEP appears to have been drafted at the Elan School, but adopted by respondent's CSE (see School District Exhibit 5). The IEP made the following provision for transportation: "Home and site visits to be supported by parents and sending school with another student if needed." The IEP also indicated that, despite a great deal of progress since he arrived at the Elan School, the boy had not yet internalized his coping skills to the extent necessary to function without some external controls. One of its annual goals for the 1997-98 school year was that he would "improve relationships with the family unit as measured by short-term objectives." The goal's supporting objectives were that he would participate in group sessions with peers twice per week to discuss family issues; would maintain weekly contact with his family either by telephone calls or letters when appropriate, and would " … participate in individual sessions with staff to discuss family issues as appropriate." The only references to transportation in the CSE meeting minutes for December 16, 1997 were: "Transportation site/home visits by parents and school", and "Five trips supported by school district" (School District Exhibit 4).

        In a letter dated January 21, 1998, petitioner's attorney asked respondent's attorney to have respondent pay petitioner the sum of $7,315.32 (School District Exhibit 6). She indicated that the requested sum included food and lodging charges during the months of June and July, 1996, airfare, food, lodging and car rental in December, 1996, food and lodging for two trips in July, 1997, and food and lodging in December, 1997. I note that the receipts which were attached to the attorney’s letter indicated that there was one trip in July, 1997 and another in October, 1997. The attorney also indicated that a charge of $325.50 for the boy's transition course, which had been provided to him by the University of Maine, was included in the requested sum.

        Respondent's attorney replied to petitioner's attorney in a letter dated January 28, 1998 (Parent Exhibit 8). He stated that the request for payment was untimely, and that the petitioner should have requested payment prior to incurring the expenses. He also opined that family therapy was not a related service under the Individual with Disabilities Education Act (IDEA), and that if family therapy and travel thereto were related services, they were likely to be part of the residential component of the boy's education at the Elan School, for which Schenectady County would be financially responsible.

        In a letter to respondent's Director of Individualized Pupil Services, dated February 5, 1998, petitioner informed the Director that the boy's stepmother and three of his siblings would accompany petitioner on a visit to the Elan School later in the month, at a total cost of $1595 for airfare and $91 per day for the rental of two vehicles (School District Exhibit 8). The Director replied to petitioner by letter dated February 18, 1998 (Parent Exhibit 8). He indicated that respondent would not pay for the travel expenditures of more than one person, or for expenses which were far in excess of State guidelines for reasonable costs. He referred to the provisions of 8 NYCRR 200.12, which indicate that school district expenditures for the transportation of children with disabilities to and from private residential schools will be "aidable", i.e., eligible for State reimbursement, under certain conditions. The regulation limits State reimbursement to a single trip at the beginning and end of the school year, and no more than four additional trips to and from school for pupils placed on a 12-month basis, except when additional trips are required for periods when residential care is not being provided. The regulation also provides that expenditures for the cost of travel, lodging, and meals which are incurred by a volunteer escort are aidable, if the escort is required by the child's IEP and the escort is engaged pursuant to a contract between the escort and the school district, subject to a test of reasonable cost by the Commissioner of Education.

        In a letter dated March 25, 1998 to respondent's Superintendent of Schools, petitioner's attorney requested that an impartial hearing be conducted because of respondent's refusal to pay the expenses related to the implementation of the boy's IEP (School District Exhibit 8). The attorney asserted that the family visits to the Elan School were "required therapeutic visits," and that respondent had refused to pay for certain off-campus activities which were required by the private school. An impartial hearing officer was appointed on or about April 3, 1998. However, the hearing was not immediately scheduled because the parties were discussing a settlement. Those discussions were unsuccessful, and a hearing was scheduled for and held on June 5, 1998.

        At the hearing, petitioner testified that the visits which he and his family members made to the Elan School were necessary because his son and the rest of his family were not ready for the boy to visit home. He further testified that he and his son received an "agenda", i.e., a list of issues to talk about during the visits, which took place off-site in places like Portland, Maine, Hampton Beach, New Hampshire, and Boston, Massachusetts. Those visits reportedly could not take place in the immediate vicinity of the private school. Petitioner’s son was accompanied by a peer from the Elan School during these visit, because the school reportedly required that arrangement. Petitioner also testified that the family visits were part of the Elan School's program, which was described in the school's brochure. I must note that the brochure, which respondent's staff admitted receiving, was not introduced into evidence at the hearing. Petitioner introduced into evidence a letter dated May 5, 1998 from the Clinical Director of the Elan School to respondent's Director of Individual Pupil Services, in which the Clinical Director asserted that:

" … the trips and off-campus activities involving [the child] and his family are an integral part of his program, including the transition phase, per his IEP. These are not just "drop in" visits, but are carefully planned as an important related service necessary to his individualized program" (Parent Exhibit 15).

        In her decision which was dated June 30, 1998, the hearing officer identified three issues to be determined. The first issue was whether petitioner should be reimbursed for the travel expenses which he incurred while visiting his son at Elan in June, July, and December, 1996, and July and December, 1997. The hearing officer defined the term "travel expenses" as transportation costs, apparently excluding the food and lodging expenditures for which petitioner sought reimbursement. She denied petitioner's claim for travel expenses during June, 1996, and July, 1996 on the ground that those expenses were incurred prior to the September 4, 1996 effective date of the boy's IEP for the 1996-97 school year. With regard to petitioner's visit to the Elan School in December, 1996, the hearing officer found that petitioner should be reimbursed in the amounts of $350. for airfare and $250. for car rental, as well as for any other identifiable cost for the transportation of the student. Petitioner visited the Elan School once in July, 1997, and once in December, 1997. He drove to the school each time. The hearing officer found that petitioner should be reimbursed at respondent's mileage rate for each of the trips, and should also be reimbursed for any identifiable transportation costs for the student on those trips.

        The second issue which the hearing officer determined was whether petitioner should be reimbursed for the travel expenses which he and his family members incurred while visiting the boy at the Elan School in February, 1998. The hearing officer reasoned that it was a "logical assumption" that respondent had agreed to the components of the Elan program, and to further assume that a residential school like Elan would have a parental/family involvement component in its program. She directed respondent to reimburse petitioner for the cost of the airfare for himself, the child's stepmother, and his three siblings, plus the cost of the two rental cars.

        The third and final issue which the hearing officer determined was whether petitioner should be reimbursed in the amount of $325.50 for the cost of the "transition course" provided to his son by the University of Maine. She noted that the words "college course" appeared on the documentation which petitioner submitted to respondent to support his claim for this expenditure. She found that the course had not been sufficiently identified as being part of the program of the Elan School, and denied petitioner's claim for reimbursement.

        Petitioner does not specifically address the hearing officer's decision in his petition (CF. 8 NY CRR 279.4[a]). He indicates that he is now requesting additional reimbursement, and asks for a hearing to present additional evidence. Petitioner testified at the hearing that he had incurred other expenditures since the hearing in this proceeding was requested. However, he acknowledged that he had not submitted a request for reimbursement to respondent. If petitioner did submit a request which has been rejected, the appropriate remedy is to ask for another impartial hearing.

        I have reviewed the hearing officer's decision, and I find that I must concur with her determination with respect to petitioner's travel expenditures during June and July, 1996. Although respondent apparently paid for the boy's tuition during those months, its obligations were defined by the settlement agreement, the terms of which have not been disclosed in the record which is before me.

        The boy attended the Elan School during the 1996-97 and 1997-98 school years pursuant to IEPs prepared by respondent’s CSE. When a child with a disability has been placed by a CSE in a residential facility, the school district in which the child resides becomes responsible for providing transportation to the child, or for reimbursing the child's parents for their reasonable expenditures in transporting the child to and from school. The frequency of the trips to and from school may be reasonably limited in accordance with the criteria set forth for State reimbursement in 8 NYCRR 200.12 (Application of a Child with a Disability, Appeal No. 95-66). When overnight lodging is required because of the distance between the child's home and the residential school, the school district may also be required to pay for the parents' reasonable food and lodging expenses (EHLR 257:448). However, the reimbursement which petitioner seeks is not for his transportation expenditures in bringing the boy to or from the Elan School. Indeed the boy's first home visit reportedly did not take place until May, 1998.

        The Office of Special Education Program (OSEP) of the United State Education Department has opined that the reimbursement of a child's parents for other transportation expenditures not involving transporting the child to and from school must be determined on a case-by-case basis (EHLR 213:164). The OSEP opinion indicated that a parent's trips to and from school which could be considered to be contributing to the achievement of his or her child's IEP annual goals would be included within the Federal definition of the term "related services", i.e., would be part of the free appropriate public education which school districts must provide. In this instance, the boy's IEPs for both the 1996-97 and 1997-98 school year included annual goals which indicated that he would improve his relationship with his family. Both IEPs indicated that the goal would be achieved through the boy's participation in peer group and staff counseling at the Elan School, and by weekly telephone calls or letters to his family. Although one of the short-term objectives for the goal in the 1996-97 IEP was that the boy would " … earn family visits as appropriate," the 1997-98 IEP made no mention of family visits. The 1996-97 IEP explicitly indicated that the CSE had agreed that " … a total of eight visits by parents to Elan would be financially covered during the period 8/26/96-8/31/97." The boy's IEP for the 1997-98 school year did not indicate that there were to be any special transportation arrangements, but did indicate that transportation would be provided per district policy. However, the minutes of the CSE meeting at which the 1997-98 IEP was prepared indicated that the CSE had approved "Transportation site/home visits by parents and school" and "Five trips supported by school district".

        Upon the record which is before me, I find that petitioner was entitled to be reimbursed for his reasonable expenditures of airfare, a hotel room in Portland, Maine, a rental car, and food for his trip in December, 1996. The next trip for which petitioner sought reimbursement occurred on July 25 and 26, 1997. He requested reimbursement for the cost of two rooms at a Boston hotel, meals, and admission fees at the New England Aquarium. Petitioner apparently drove his own vehicle. I find that he is entitled to receive reimbursement for his mileage to the school, his meals and those of his son, and the equivalent of what a single room in the Portland area would have cost, because petitioner failed to explain why a second room and a visit to the Boston area were necessary to support the boy’s IEP goal of improving his relationship with his family. I must also note that museum admission fees, in-hotel movie fees and hotel honor bar charges are not reimbursable.

        In its cross-appeal, respondent contends that petitioner is not entitled to any reimbursement for these expenditures because petitioner did not assert his claim for reimbursement in a timely manner. Respondent relies upon the decision in Phillips v. Bd. of Ed. of the Hendrick Hudson School District, 949 F. Supp. 1108 (S.D. N.Y., 1997), which involved a claim for tuition reimbursement. In those kinds of cases, it is imperative that parents notify the CSE of their dissatisfaction with the child’s IEP so that the CSE may rectify its mistake, if any (Bernardsville Bd. of Ed. v. J.H., 42 F. 3rd 149 [3rd Cir., 1994]; Matter of Northeast CSD v. Sobol, 79 N.Y 2nd 598 [1992]; Application of a Child with a Disability, Appeal No. 97-25). In this instance, petitioner is seeking reimbursement pursuant to his son’s IEP. Respondent has not shown that it has been prejudiced by petitioner’s alleged delay in asserting his claim. Therefore, this portion of respondent’s cross-appeal must be dismissed.

        Respondent also cross-appeals from the hearing officer’s decision ordering that respondent reimburse petitioner for his expenditures for the period February 20-22, 1998. Petitioner’s expenditures included airfare for himself, his wife, and three of the boy’s siblings; rooms in separate hotels in Portland, meals, and the rental of two vehicles in Portland. The hearing officer ordered respondent to pay for the airfare of the whole family and the vehicle rental fees, apparently in the belief that family counseling or participation in the visits to the boy at school were part of the Elan School’s program which respondent’s CSE had accepted. As noted above, the school’s brochure describing its program was not offered into evidence, and no one from the Elan School testified. Although petitioner testified that his son’s siblings were an essential part of the process to prepare the boy for life after the Elan School, I must note that he conceded at the hearing that the Elan personnel had not at any time worked directly with the boy’s siblings (Transcript, pages 246-247). I have considered the letter by the Elan School’s Clinical Director, which I find to be highly conclusory and not very informative. Absent evidence that the assistance by the boy’s siblings was provided for in the boy’s IEP, or even discussed at the CSE meeting, I must disagree with the hearing officer’s conclusion. However, I find that petitioner is entitled to recover the cost of airfare for himself and his wife, one hotel room, food, and one vehicle rental for the period in question.

        Petitioner has not expressly challenged the hearing officer’s conclusion with respect to his request for reimbursement for the cost of the boy’s tuition for the course offered by the University of Maine. Although respondent was responsible for the cost of the boy’s educational program during 1997-98, I am not persuaded by the meager evidence in the record before me that the course in question was a necessary part of the boy’s educational program, especially since it was not included in the boy’s IEP description of the transition services he would receive during the 1997-98 school year.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it limited petitioner’s reimbursement to transportation costs only, and to the extent that it ordered respondent to reimburse petitioner for the cost of the travel of his son’s siblings in February, 1998, and,

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner, less any payments which it has already made, in accordance with the terms of this decision upon his submission of acceptable documentation for his expenditures.

 

 

Dated: Albany, New York __________________________
May 7, 1999 FRANK MUŅOZ