The State Education Department
State Review Officer

No. 01-087

 

 

 

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 Hyde Park Central School District

Appearances:
Mark I. Reisman P.C., attorney for petitioner, Mark I. Reisman, Esq., of counsel

Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

 

DECISION

        Petitioner appeals from an impartial hearing officerís decision finding that petitionerís tuition reimbursement claim for the 1996-97, 1997-98, 1998-99, and 1999-2000 school was untimely because petitioner did not request an impartial hearing until November 15, 2000. The appeal must be dismissed.

        Petitioner is the childís adoptive mother. The childís biological mother was reportedly addicted to crack-cocaine, and the child was reportedly born addicted (Exhibit E). He has been diagnosed as having reactive airway disease and an attention deficit hyperactivity disorder (ADHD). While in nursery school, the child reportedly exhibited behavioral problems. According to petitioner, respondentís staff did not recognize the extent of her sonís difficulties during a screening for kindergarten, and offered a half-day kindergarten for the child during the 1996-97 school year. However, petitioner and her husband chose to enroll the child in the Randoph School, a private school, for kindergarten. The child was enrolled by his parents in the Bishop Dunn Memorial School (Bishop Dunn) in Newburgh, N.Y. for the first grade during the 1997-98 school year. He remained at that school for the second and third grades.

        The child was referred by his parents to respondentís Committee on Special Education (CSE) in October 1999, when he was in the third grade (Exhibit C). For reasons that the record does not reveal, the child was apparently not evaluated for the CSE until the spring of 2000. On April 27, 2000, the CSE recommended that the child be classified as learning disabled, and that he be provided with five hours of direct consultant teacher services per week and skilled nursing services on an as needed basis. It also reportedly recommended that an occupational therapy screening/evaluation and a functional behavior analysis be performed to further assess his needs (Exhibit F).

        The CSE reconvened on July 18, 2000 to recommend the childís educational program for the 2000-01 school year. At that meeting, the CSE recommended that the child have the services of a full time individual classroom aide, in addition to the services that it had previously recommended. The CSEís recommendation was reviewed by respondent, which sent it back to the CSE for further consideration pursuant to 8 NYCRR 200.4(e)(2) (IHO Exhibit 5). The CSE met once again on October 5, 2000, at which time it indicated that the educational program it had recommended should be provided only if the child were enrolled in respondentís Ralph R. Smith Elementary School (Exhibit K). The minutes of the meeting indicate that respondentís director of pupil personnel advised the CSE that the Board of Education had no obligation under the Individuals with Disabilities Education Act (IDEA) to provide special education services to a child who had been unilaterally enrolled by his parents in a private school (Exhibit H).

        On November 9, 2000, petitioner requested an impartial hearing (Exhibit M). She did not identify any specific disagreement with the CSE, or indicate what relief she sought. The hearing convened by consent on December 13, 2000 (Transcript p. 5). Believing that the only issue was whether the recommended services should be provided to petitionerís son at his private school, respondentís attorney moved to dismiss the proceeding because petitioner had no legal right to insist upon the delivery of services at the school (34 C.F.R. ß 300.354[a][1]; Russman v. Board of Educ., 150 F.3d 219 [2d Cir. 1998]). Petitioner, who was not represented by an attorney, was offered the opportunity for an adjournment to obtain legal assistance in responding to the attorneyís motion (Transcript pp. 22-24). Instead, she chose to proceed with the hearing.

        Petitioner asserted that she had been compelled to place her son at Bishop Dunn because the services that respondent had offered to provide were, in her opinion, inappropriate. She sought an order by the hearing officer compelling the Board of Education to pay for her sonís tuition at the Randolph School during the 1996-97 school year and at Bishop Dunn for the 1997-98, 1998-99, 1999-2000, and 2000-01 school years, and to provide an individual aide for her son at the private school and transport him to the school. Respondentís attorney argued that petitionerís tuition reimbursement claim for the preceding school years was time-barred, and that petitioner should meet with the CSE to discuss her dissatisfaction with her sonís current individualized education program (IEP). The hearing officer agreed with respondentís attorney that petitioner should meet with the CSE to resolve any differences about the childís IEP for the 2000-01 school year, and adjourned the hearing until January 25, 2001 (Transcript pp. 87-88).

        On January 16, 2001, respondentís CSE revised the childís IEP for the 2000-01 school year to provide that he should be classified as other health impaired and receive the services of a consultant teacher and an individual aide, as well as skilled nursing services at respondentís Ralph Smith Elementary School (IHO Exhibit 6).

        When the hearing resumed on January 25, 2001, the parties agreed upon certain facts. They agreed that petitioner had been aware of her right to request an impartial hearing to review the districtís actions and the remedy of tuition reimbursement during the 1996-97 school year, when this child was in kindergarten (Transcript pp. 128, 130). It was also agreed that petitioner had not requested a hearing at any time prior to November 9, 2000. The hearing officer orally ruled that respondent could not as a matter of law be directed to provide IEP services to the child at the private school (Transcript p. 139). She further ruled that petitionerís claims for tuition reimbursement for the 1996-97 through 1999-2000 school years were time-barred (Transcript p. 148). It was agreed to adjourn the hearing with respect to the studentís IEP for the 2000-01 school year because petitioner was consulting an attorney about representing her (Transcript p. 157).

        Petitioner retained an attorney, who on April 25, 2001 asked the hearing officer to reconsider her oral ruling that petitionerís tuition reimbursement claims for the school years prior to the 2000-01 school year were time-barred (Exhibit 2 to Petition). On May 28, 2001, the hearing officer reiterated her previous ruling in a letter to the parties, noting that petitioner had been aware of her due process rights during the 1996-97 school year but had not requested a hearing until the 2000-01 school year. She indicated that petitioner could challenge her sonís IEP for the 2000-01 school year at a hearing to be held in July 2001.

        In response to a July 2, 2001 request by petitionerís attorney that she render a formal decision, the hearing officer issued such a decision on August 5, 2001. She found that petitioner was guilty of laches by not asserting her claims for the prior school years until November 9, 2000, and denied petitionerís claim for reimbursement.

        Petitioner contends that the hearing officer erred in denying her claim for tuition reimbursement for the 1996-97, 1997-98, 1998-99, and 1999-2000 school year without taking any testimony or allowing her to introduce documentary evidence. Respondent points out that all but 2 of the 16 documents petitioner submitted as exhibits at the hearing on December 13, 2000 were admitted into evidence. The two excluded documents were newspaper articles about the district. One of the exhibits included samples of the academic work of another student. I find that the hearing officer did not abuse her discretion by excluding those exhibits. Petitioner is correct that no testimony was taken at the hearing on either December 13, 2000 or January 25, 2001. It is a hearing officerís responsibility to ensure that there is an adequate record upon which to premise his or her decision, and to permit meaningful review (Application of the Board of Educ., Appeal No. 95-76; Application of the Board of Educ., Appeal No. 95-25; Application of the Board of Educ., Appeal No. 94-35). The question to be decided is whether the record that was before the hearing officer and is now before me is adequate to make the determination that is required.

        Petitioner seeks an award of tuition reimbursement for the 1996-97 through 1999-2000 school years. A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parentís claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). Equitable considerations may include the timeliness with which a claim for reimbursement is asserted (Phillips v. Board of Educ., 949 F. Supp. 1108 [S.D. N.Y., 1997]; Application of a Child with a Disability, Appeal No. 96-72).

        A parent must request an impartial hearing challenging the appropriateness of his or her childís IEP within a reasonable period of time after unilaterally placing the child in a private school (Bernardsville Board of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]; Application of a Child with a Disability, Appeal No. 96-76). In this instance, the child did not have an IEP prior to April 27, 2000. However, that fact is not dispositive of the matter. The due process system is available not only to those who have been identified as children with disabilities, but also those who are suspected by their parents or school staff of having disabilities. The due process system embodied in the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) and Article 89 of the New York State Education Law exists to ensure that disputes between a parent and a school district about a childís education may be promptly resolved and the child provided with a free appropriate education (Bernardsville, 42 F. 3d at 158; Northeast Central Sch. Dist. v. Sobol, 79 N.Y.2d 598 [1992]). Although no testimony was taken at the hearing in this proceeding, petitioner acknowledged at the hearing that she was aware of her due process rights when her son was in kindergarten during the 1996-97 school year because she was involved with respondent in a due process proceeding at that time involving her daughter. She does not assert in this appeal that she was unaware of her rights, nor does she offer any explanation for her delay in requesting a hearing.

        The purpose of a due process hearing is to resolve disputed issues of fact. In this instance, the critical fact is when petitioner became aware of her right to challenge the appropriateness of the services respondent had offered to provide to her son. There is no dispute that she was aware of her rights during the 1996-97 school year, when her son was in kindergarten at the Randolph School. An evidentiary hearing to establish when petitioner became aware of her rights would be a waste of administrative resources and is not required (J.D. v. Pawlet Sch. Dist., 224 F.3d 60 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 97-62). I find that the hearing officer had an adequate basis for making her determination. I further find that she correctly determined that petitioner had unreasonably delayed in putting the school district on notice of her dissatisfaction with its educational program for her son by not asking for an impartial hearing until November 2000.

        I have considered petitionerís other contentions, which I find to be without merit.

 

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

__________________________

August 15, 2002

FRANK MUÑOZ