The State Education Department
State Review Officer
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 of the East Islip Union Free School District
Ingerman Smith, L.L.P. attorneys for respondent, Christopher Venator, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision that denied certain of petitionerís requests for reimbursement for certain expenses he and his wife incurred pursuant to a stipulation of settlement between the parties on October 7, 1999, and their expenses in pursuing their remedies after the Board of Education allegedly violated the stipulation. The hearing officer found that respondent had honored its commitments under the stipulation, and that the parentsí claims for additional reimbursement were not covered by the stipulation. The appeal must be dismissed.
Petitionerís son is 16 years old. At the time of the impartial hearing the student was placed in a homebound instructional program. He had previously attended eighth grade at the East Islip Junior High School. The student began to have academic difficulties while in the seventh grade during the 1997-98 school year. Despite various interventions, he continued to fail in the eighth grade, and he manifested symptoms of a separation anxiety while in school. A physician who began seeing the student in early March 1999, subsequently diagnosed the student as having an obsessive compulsive disorder with poor insight, an attention deficit hyperactivity disorder, and a separation anxiety disorder (Exhibit SD-28).
In late March 1999, the parents referred their son to respondentís Committee on Special Education (CSE). He was evaluated by the CSE. The CSE initially met on June 2, 1999 to review the results of the studentís evaluations, but concluded that it needed additional information before making its recommendations (Exhibit SD-20). When it reconvened on June 9, 1999, the CSE recommended that the student be classified as emotionally disturbed, and placed in a special education class of the Eastern Suffolk BOCES for the ninth grade during the 1999-2000 school year (Exhibit SD-25). The parents did not agree with the CSEís recommendations (Exhibit SD-34).
The CSE met again on July 28, 1999, when it confirmed its prior recommendations for classification and placement (Exhibit SD-37). By letter dated July 29, 1997, the parentsí then attorney requested an impartial hearing to challenge the appropriateness of the CSEís recommendations. In a subsequent letter to respondentís attorney, the parentsí attorney indicated that the parents wished to have their son classified as other health impaired rather than emotionally disturbed, and that they challenged the manner in which their sonís individualized education program (IEP) had been developed as well as its content. They also sought to be reimbursed by respondent for the cost of certain evaluations they had obtained, reportedly at respondentís request (Exhibit SD-41).
The impartial hearing commenced on October 7, 1999. During a luncheon break on that day, the parties through their respective attorneys reached an agreement to settle the matter. Respondentís attorney read the terms of the settlement into the record (Transcript pp.67-72). The parties agreed to adjourn the hearing, with the hearing officer to retain jurisdiction over the matter. The parents were to ask their sonís current treating doctors to provide the CSE with evaluations, recommendations for treatment and associated timelines, and these evaluations were to be at school district expense. Within ten days after receipt of the doctorsí evaluations, the CSE would incorporate these recommendations into the studentís IEP, and the doctors would be invited to attend the CSE meeting at respondentís expense. It was further agreed that the CSE would reconvene after a set period of time to evaluate the studentís progress under the IEP, and that the hearing would resume if either party disagreed with the implementation of the agreement.
There were two other parts of the stipulation that are relevant to this appeal. The Board of Education agreed to reimburse the parents for:
"the cost associated with retaining certain mental health professionals, namely Dr. Wrightman, Dr. Penzel, Dr. Minorty [Minardi], and Dr. Araujo, in conjunction with these professionalsí evaluations and treatment of the child and his parents. The parents shall be required to submit through their attorney documentation to support the expenses referred to above. The parents agree that they will accept reimbursement for the amounts charged minus the available insurance coverage. It is estimated that the total reimbursement before insurance coverage is approximately $2,400."
Respondent also agreed to reimburse the parents for:
"reasonable attorney fees incurred in retaining the law firm of Leon and Deffet as attorneys to this case. It is anticipated that such amount shall not exceed $4,500. Counsel for the parents shall provide documentation to support this claim. These amounts shall be paid within 30 days of the submission of appropriate supporting documentation."
The agreement was also reduced to writing by the hearing officer on November 30, 1999, with the notation that "this matter is closed" (Exhibit P-4). The student remained on homebound instruction during the 1999-2000 school year. In December 1999, the studentís treating psychologist reported that homebound instruction should continue in order for the student to complete his ninth grade courses. The CSE met with the treating psychologist, Dr. Araujo on January 12, 2000. CSE meetings scheduled for March 22 and April 5, 2000 were cancelled at the request of the parents.
At its annual review on May 17, 2000, the CSE recommended that the studentís classification be changed to other health impaired, and that he receive 40 minutes of resource room services five times per week while enrolled in regular education classes at the East Islip Senior High School during the 2000-01 school year (Exhibit SD-48). The CSE reconvened on June 26, 2000 to recommend that the student receive up to 12 hours of consultant teacher service in summer school so that he could be enrolled in tenth grade classes in the fall (Exhibit SD-51). The student did not attend summer school.
At a CSE meeting on July 26, 2000, Dr. Araujo was asked to provide the CSE with a written "transition plan" for the studentís re-entry into school in September (Transcript p.161). The student was to have a truncated school day to meet his emotional needs. There would have been a staff orientation on September 5, 2000, and a CSE meeting on October 11, 2000 to follow the studentís progress upon his return to school (Exhibit SD-52). The parents reportedly did not disagree with the proposed educational program (Transcript p. 280).
In an August 29, 2000 treatment summary, Dr. Araujo diagnosed the student as having a severe bipolar disorder. He described the student as having obsessions about harm coming to himself and his family members, and stated that the studentís compulsions prevented him from leaving his home. Dr. Araujo recommended continued treatment and a continuation of homebound instruction beginning September 7, 2000 (Exhibit SD-53). The student did not return to school in September.
On September 20, 2000, the CSE recommended that the studentís classification be changed to emotionally disturbed, but it adhered to its prior recommendation of a resource room program in the East Islip Senior High School. The CSE noted on the studentís IEP that it had not as yet received the requested treatment plan from Dr. Araujo, and that it wanted to obtain a report of the private psychiatric evaluation of the student that had reportedly been performed in July 2000. The CSE also indicated on the IEP that the student was in need of ten hours of tutoring per week at the public library, and that both parties wished to reopen the hearing (Exhibit SD-55). The studentís tutoring reportedly began on September 29, 2000.
The impartial hearing resumed on November 2 and continued on November 3, 2000. The parents were not represented by counsel. The studentís mother indicated that the parents wanted the hearing to resume because the Board of Education had violated the terms of the partiesí agreement by not providing education to her son at the beginning of the 2000-01 school year, and not paying for the cost of certain doctorsí attendance at a CSE meeting. She also challenged the appropriateness of the educational services that were being provided to her son, and asserted that her son needed to remain on homebound instruction. During the course of the hearing, the parents also objected to their sonís classification as emotionally disturbed. Respondentís attorney asserted that the student had been at home long enough, and urged the hearing officer to uphold the CSEís recommendations.
At the hearing, the parents contended that respondent had violated the stipulation of settlement by not paying for medical expenditures they had incurred on behalf of their son both before and after October 7, 1999. Respondentís representatives agreed that certain expenditures incurred before October 7, 1999 that had not been covered by the parentsí insurance should be paid by respondent pursuant to the stipulation of settlement (Transcript pp. 341-351). However, respondentís Director of Special Education testified that the Board of Education had not agreed in the stipulation of settlement to pay for ongoing medical treatment after October 7, 1999. Instead, it had agreed to pay only for treatment provided prior to that date, and for the doctorsí attendance at CSE meetings after that date (Transcript pp. 341-342). She testified that respondent had in fact paid for such attendance at CSE meetings. Respondent also denied financial responsibility for the cost of a course the studentís mother and father had taken to assist them in understanding their sonís disability, as not being covered by the stipulation of settlement (Transcript pp. 352-355).
In his decision dated January 3, 2001, the impartial hearing officer found that the appropriate classification for the student was other health impaired, based upon the diagnoses furnished by the studentís two treating therapists. He also found that the IEP developed by the CSE on June 9, 1999 was deficient because it was not based upon a comprehensive psychological and/or psychiatric evaluation to determine the studentís emotional needs, and lacked appropriate goals and objectives. The hearing officer further found that the studentís IEP for the 2000-01 school year was deficient because the CSE had not conducted a comprehensive evaluation to fully identify the studentís special education needs. He agreed with the parents that respondent should have begun providing homebound instruction on September 7, 2000, and ordered respondent to make up the tutorial sessions that the student had missed and to provide the student with ten hours of homebound instruction per week. Petitioner does not challenge these findings by the hearing officer, which I do not review.
With respect to the parentsí claim that the Board of Education had violated the October 7, 1999 stipulation of agreement by not reimbursing them for certain expenditures, the hearing officer noted that respondent had agreed at the hearing to pay for certain expenditures, and found that the Board of Education should pay for Dr. Araujoís attendance at the June 26, 2000 CSE meeting. However, he also found that parental expenditures for treatment rendered after October 7, 1999 were not covered by the partiesí stipulation of settlement, nor were the parentsí expenditures for the course they had taken.
Petitioner asserts that the hearing officer erred in finding that the Board of Education was not obligated to pay for a ten-week course that he and his wife took to better understand the nature of their sonís disability. He contends that respondent agreed in paragraph six of the stipulation of settlement to reimburse the studentís parents for certain mental health expenditures, including treatment of the student and his parents. He asserts that the course began prior to October 7, 1999, and was therefore covered by the stipulation. Petitioner seeks payment of the sum of $400 for that purpose. He also seeks reimbursement for legal expenses and an expert witness fee that were incurred for the continued impartial hearing dates of November 2 and 3, 2000. The expenses include legal fees of $250 and witness fees of $1,225. Petitioner asserts he is entitled to this money because the school district violated the October 7, 1999 agreement and forced a continuation of the hearing.
Respondent maintains that it has paid all the monies to which petitioner is entitled under the October 7, 1999 agreement, and it argues that there is no authority for either an impartial hearing officer or the State Review Officer to award reimbursement of attorney's fees and related costs (Application of the Board of Education of the Enlarged City School District of the City of Saratoga Springs, Appeal No. 96-9; Application of a Child With A Disability, Appeal No. 94-18).
I have reviewed the record and find that the stipulation entered into by the parties was entered into in good faith and should be enforced. In doing so, I note that the parents were represented by competent counsel when the stipulation was agreed to on October 7, 1999. Although paragraph six of the stipulation refers to the cost associated with retaining certain mental health professionals in conjunction with the "Ötreatment of the child and his parents", it does not explicitly provide for paying for a course of instruction. The impartial hearing officer indicated in his decision that he had checked his notes taken at the hearing on October 7, 1999 and did not find any agreement between the parties about paying for the training course for the parents. I must note that there is no written description of the course in the record to assist me in determining who provided it and how it related to the treatment of the student or his parents. Since there is no other evidence of the alleged agreement to pay for the course taken by the parents, and since the stipulation does not literally refer to training for the parents, I am compelled to concur with the hearing officerís determination.
Petitioner also seeks reimbursement in the amount of $250 for fees that he paid to consult an attorney in this matter, although the attorney did not in fact represent the parents at the hearing when it resumed on November 2 and 3, 2000. I must note that the attorney with whom petitioner consulted did not take the case, and was not of the law firm mentioned in the October 7, 1999 stipulation of settlement. I find petitioner is not entitled to reimbursement for his consultation pursuant to the stipulation of settlement. The Individuals with Disabilities Education Act provides that a court may award reasonable attorney's fees to the parents or guardian of a child with a disability who prevails in their claim brought pursuant to that statute (20 USC 1415[i][B]). Although attorney's fees may be awarded for success at the administrative level, the statute does not authorize an administrative officer to award attorney's fees. A parent's entitlement, if any, to costs must be determined by a court of competent jurisdiction (Applications of a Child with a Disability and the Board of Education of the Morrisville-Eaton Central School District, Appeal Nos. 96-21 and 96-23). Furthermore, there is some question about whether a pro se litigant is entitled to attorney's fees. (Rappaport v. Vance, 812 F.Supp. 609 [D.Md., 1993]).
THE APPEAL IS DISMISSED.
Albany, New York
February 5, 2002