The State Education Department
State Review Officer

No. 02-073

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Nancy Jane Botta, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer that denied her claim for tuition reimbursement by respondent for the 2000-01 school year on the grounds that the Board of Education had offered to provide the student with a free appropriate public education (FAPE) during that school year. She also appeals from the hearing officer's denial of her claim for tuition reimbursement for the 2001-02 school year upon a finding that petitioner's claim was not supported by equitable considerations. The appeal must be sustained in part.

        When the hearing in this proceeding was held in May 2002, petitioner's 16-year-old son had been classified as mentally retarded by respondent's Committee on Special Education (CSE), and was attending the Seton Foundation for Learning's Bishop Patrick V. Ahern High School (Bishop Ahern), a private school in which he had been placed by petitioners. Petitioner's son reportedly received early intervention and pre-school education at the William D. O'Conner School in Brooklyn (Transcript p. 11). When the student was old enough to attend kindergarten, petitioner chose to enroll him in the elementary school of the Seton Foundation for Learning (Seton), at her expense, where he reportedly received special education but also had the opportunity to interact with non-disabled peers. He remained in Seton's elementary school through the 1998-99 school year (Transcript p. 11).

        The CSE conducted a series of evaluations in the spring of 1999 in order to plan for the student’s transition to high school. In an updated social history, petitioner expressed satisfaction with her son's educational program in Seton's elementary school, but noted that he still had difficulties in the area of speech/language, as well as motor problems (Exhibit 13). A psychological evaluation in May 1999 yielded scores of 54 for verbal reasoning, 76 for abstract reasoning, 60 for quantitative reasoning, 43 for short term memory, and a composite score of 53 on the Stanford-Binet Intelligence Test in May 1999, placing the student in the moderate range of mental retardation (Exhibit 14). He achieved a composite standard score of 55 on the Vineland Adaptive Behavior Scales. Achievement testing performed in May 1999 revealed that the student, who was 14 years old, was functioning academically at the kindergarten/first grade level. The evaluator noted that the student had difficulty expressing himself, but he appeared to understand basic directions. The student's visual motor integration skills were reported to be at the level of a five-year-old (Exhibit 4). There is no dispute about the student's classification as mentally retarded.

        Respondent's CSE reportedly recommended that the student be placed in a self-contained class for the ninth grade during the 1999-2000 school year. His parents disagreed with the CSE's recommendation, and requested an impartial hearing. The due process proceeding was apparently settled, and petitioners were reimbursed for the cost of their son's tuition at Bishop Ahern during the 1999-2000 school year (Paragraph 5 of the Petition).

        At its annual review on June 9, 2000, the CSE recommended that the student be placed in a 12:1+1 self-contained class, with the related services of individual and group speech/language and individual occupational therapy during the 2000-01 school year. A transition plan was included that envisioned, as a long-term goal, integration into the community and living independently with minimal support (Exhibit ii). In an undated letter that was apparently sent to respondent in August 2000, the parent informed the school district that the student would be continuing his education at Bishop Ahern (Exhibit 12). The letter did not express objection to the proposed program or request tuition reimbursement, but merely requested that the student be allowed to continue receiving related services and transportation to Bishop Ahern.

        On April 30, 2001, the CSE met to conduct its annual review and recommend a placement for the student during the 2001-02 school year. The CSE recommended that the student be placed in a special education class with a 12:1+1 child to adult ratio in a specialized school on a 12-month basis. The individualized education program (IEP) prepared by the CSE indicated that petitioner's son would receive 30 minutes of individual speech/language therapy three times per week, 30 minutes of speech/language therapy in a group of no more than three once per week, and 30 minutes of individual occupational therapy once per week, as well as adaptive physical education and special transportation. In the portion of the IEP intended to indicate why a student could not participate with regular education peers for school activities such as lunch, field trips and assemblies, the CSE indicated that petitioner's son could participate in such activities (Exhibit 1). In a final notice of recommendation dated May 23, 2001, respondent offered a placement for the student at P72r, also known as the Hungerford School, on Staten Island where the student lives (Exhibit 5).

        In a letter dated June 15, 2001, petitioner informed the CSE that she accepted the CSE's classification of her son, but he would remain at Bishop Ahern. Petitioner did not specifically object to the placement that respondent had offered to provide. She requested that he continue to receive related services and transportation (Exhibit 6). On March 20, 2002, petitioner requested that an impartial hearing be held, reportedly for the purpose of obtaining an award of tuition reimbursement for the 2001-02 school year. By letter dated May 15, 2002, petitioner asked that her hearing request be deemed to include tuition reimbursement for the 2000-01 and 2001-02 school years.

        The hearing in this matter was held on May 24, 2002. At the hearing, petitioner indicated that she had not accepted the CSE's recommended placement at the Hungerford School because her son would not have an opportunity to interact with non-disabled peers. She asserted that the proposed placement was inconsistent with the requirement that respondent place each student with a disability in the least restrictive environment (LRE). Respondent's representatives asserted that arrangements could be made for the student to attend inclusion classes in other high schools on Staten Island for all or part of the school day, but they also opined that the recommended placement in the Hungerford School was appropriate for petitioner's son.

        In her decision initially dated June 26, 2002 and subsequently corrected on July 5, 2002 and August 21, 2002, the hearing officer determined that the student's IEP for the 2000-01 school year was procedurally and substantively correct, and she denied petitioner's claim for tuition reimbursement for the 2000-01 school year. The hearing officer further found that the student's IEP for the 2001-02 school year was procedurally flawed because the required parent member had not been included on the CSE that prepared the document on April 30, 2001. She determined that respondent had failed to demonstrate that it had offered to provide a FAPE to petitioner's son for the 2001-02 school year. However, she declined to award tuition reimbursement to petitioner for that school year because she found that petitioner's claim was not supported by equitable considerations as a result of petitioner's failure to visit any recommended site since 1999 and her failure to express her concern about mainstreaming opportunities to respondent's staff.

        Petitioner challenges the hearing officer's impartiality because she had allegedly decided the matter before the hearing was concluded. In particular, she refers to a remark made by the hearing officer near the end of the hearing:

My inclination is that we will not need these people to return again because from what I have heard very briefly, and I couch this tentatively, I am not sure the parent has met the equitable requirements that exist under Carter and Burlington for the 2000-01 school year. (Transcript p. 75)

        I have carefully reviewed the transcript, and I find that there is no evidence of actual bias by the hearing officer. From the context in which the remark was made, it is apparent that the hearing officer was concerned about the timeliness of petitioner's request for a hearing for the 2000-01 school year (See Application of the Bd. of Educ., Appeal No. 97-95; Application of a Child with a Disability, Appeal No. 95-32). While her choice of words was unfortunate and subject to misconstruction by petitioner, I note that the hearing officer did not deny petitioner's request for tuition reimbursement for the 2000-01 school year on the ground that her request for a hearing was untimely.

        A board of education may be required to pay for the 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 parent's 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. Bd. 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 child's IEP within a reasonable period of time after unilaterally placing the child in a private school (Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]; Application of a Child with a Disability, Appeal No. 96-76).

        In addition to asserting that the educational program that it had offered to provide during the 2000-01 school year was appropriate for the student, respondent argues that petitioner's claim for tuition reimbursement for that school year should be dismissed upon equitable grounds. The Board of Education contends that petitioner failed to request an impartial hearing in a timely manner. As noted above, petitioner was clearly aware of her right to seek an award of tuition reimbursement in an impartial hearing because she had done so for the 1999-2000 school year. Petitioner asserts that she first requested an impartial hearing for the 2000-01 school year on March 20, 2002, and was thereafter asked to submit a clarification, which she did in a letter dated May 15, 2002 (Exhibit i). When asked at the hearing to explain why she had not promptly requested a hearing to challenge the CSE's recommendations for the 2000-01 school year, petitioner testified that her son had various medical problems that occupied her attention at the time (Transcript pp. 67-68). While I sympathize with petitioner, I find that not asking for reimbursement for the 2000-01 school year until the spring of 2002 was an unreasonable delay. I find that petitioner's claim for tuition reimbursement is barred by laches. Accordingly, I do not reach the question of the appropriateness of respondent's educational program for the 2000-01 school year.

        With respect to the 2001-02 school year, I must first note that the Board of Education has not cross-appealed in its answer from the hearing officer's finding that it had not met its burden of proving that it had offered to provide an appropriate educational program to petitioner's son. Respondent does attempt to argue that petitioner was not harmed by its failure to have a parent member at the CSE meeting when the student's IEP was prepared because the IEP had been prepared by her son's private school teacher and was acceptable to her (Transcript p. 52). However, respondent's argument cannot be considered in the absence of a cross-appeal because that portion of the hearing officer's decision is final and binding upon the parties (34 C.F.R.§ 300.510 [a]; 8 NYCRR 200.5 [c] [11]; Hiller v. Bd of Educ., 674 F. Supp. 73(N.D.N.Y. 1987). The hearing officer also found that Bishop Ahern's program was appropriate for petitioner's son. Her determination with respect to the appropriateness of the private school's educational program in meeting this student's special education needs has not been challenged in a cross-appeal, and it is also final and not reviewed in this appeal.

        I now turn to the issue of whether the petitioner's claim for tuition reimbursement is barred by equitable consideration. The impartial hearing officer found that the parents "have abnegated their duty to collaborate and cooperate with the Board of Education." (Impartial Hearing Officer's decision p. 9). I disagree with her analysis. I find there is nothing in the record to indicate that the parents failed to cooperate with the CSE. Petitioner has at all times attended every meeting and evaluation conference for her son. There is no evidence in the record that the petitioner's failure to re-visit the Hungerford School in 2001 in any way interfered with the Board of Education's ability to perform its duty of offering to provide a FAPE to petitioner's son for the 2001-02 school year. I find that the petitioner's request for tuition reimbursement for the 2001-02 school year is supported by equitable consideration, and that she has therefore prevailed on all three criteria for an award of tuition reimbursement for the 2001-02 school year.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent it denied petitioner's claim for tuition reimbursement for the 2001-02 school year on equitable grounds; and

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son's tuition at the Bishop Ahern High School during the 2001-02 school year, upon petitioner's submission of proof of payment of such expenditures.

 

 

 

 

Dated:

Albany, New York

__________________________

June 10, 2003

ROBERT G. BENTLEY