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 Penfield Central School District
Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision granting, in part, petitioner's request for reimbursement for the cost of a private tutor for his son. Petitioner seeks reimbursement for the cost of additional hours of tutoring. Respondent, Board of Education of the Penfield Central School District, cross-appeals from the hearing officerís decision, and takes the position that petitioner is not entitled to reimbursement for certain days, and that the hourly rate of reimbursement is excessive. The appeal must be dismissed. The cross-appeal must be sustained.
Initially, I note that respondentís answer and cross-appeal were received on May 6, 2003, and therefore appear to have been served more than ten days after the petition was served, in violation of the provisions of 8 NYCRR ß279.5. Respondentís attorney, in a letter to the Office of State Review dated April 22, 2003, asked for an extension of time to serve his Answer, indicating he would be out of his office from April 24 through April 29, 2003. He also alleges that his requests for permission of the petitioner for an extension had gone unanswered.
I may accept a late answer where there is a reasonable explanation for the delay, and where the petitioner would not be prejudiced by the acceptance of the answer (Application of a Child with a Disability, Appeal No. 00-006). Under the circumstances presented, I will excuse respondentís brief delay and accept the answer and cross-appeal.
During the first part of the 2001-2002 academic year, the child, a thirteen year old classified as emotionally disturbed, attended a private school. The child left the private school on February 25, 2002, and notified respondent of this fact on March 4, 2002. At issue is the private tutoring, by a tutor not certified in special education hired by petitioner, provided to the child after he left the private school. This tutoring occurred from the date the child left school through the end of the academic term, June 24, 2002.
Petitioner filed a due process hearing request dated September 24, 2002 seeking reimbursement for these tutoring expenses. This hearing was held over five days on October 31, November 25, December 16, December 18, 2002 and January 22, 2003. In a decision dated March 11, 2003, the impartial hearing officer identified twelve days during which petitioner was entitled to reimbursement for tutoring services for two hours per day at a rate of $45.00 per hour. The hearing officer ordered respondent to reimburse petitioner the resulting amount of $1080.00.
During the school year in question, respondent had offered the child placement at its Bay Trail Middle School, which the hearing officer found to be an appropriate placement. In lieu of this placement, petitioner enrolled the child in the Cobblestone School, a private school placement not approved by respondent. This placement is not directly at issue in this matter, however. The child voluntarily left his private school placement on February 25, 2002, and informed respondent of this fact on March 4, 2002. Thereafter, on March 12, 2002, respondentís committee on special education (CSE) met and authorized home tutoring, to commence on March 13, 2002. However, for reasons set forth in the impartial hearing officerís report, respondent was unable to furnish a tutor until March 27, 2002. The hearing officer determined that respondent had not met its obligation to provide the child services during the ten school days between March 13, 2002 and March 26, 2002, and therefore ordered reimbursement for these ten days.
Respondentís tutor appeared at the childís house on March 27, 2002, but was dismissed by the childís parents. The hearing officer explicitly rejected petitionerís assertions that respondentís tutor was not acceptable. He therefore did not allow reimbursement for the period March 27, 2002 to April 10, 2002 when this tutor was made available to the child, but not used.
From April 11, 2002 to May 3, 2002, the child was in attendance at respondentís Board of Cooperative Educational Services (BOCES) program at the Pittsford Middle School. The child left the Pittsford Middle School placement on May 3, 2002, and a CSE meeting was held on May 24, 2002, and the childís individualized education program (IEP) was revised to permit home instruction by a tutor, when justified by a medical excuse and in consultation with the school physician. According to the hearing officerís decision, these conditions were met on June 4, 2002, but respondent failed to provide a tutor until June 7, 2002, at which time the tutor was again refused by the childís parents. The hearing officer therefore accepted petitionerís claim for reimbursement for June 5 and 6, 2002, and rejected this claim from June 7, 2002 until June 24, 2002, the end of the school year, when the tutor was available but not utilized.
Petitioner asserts that an IEP issued by respondent on January 16, 2002 was only a draft IEP, and that therefore for any time prior to March 12, 2002, respondent did not have an appropriate program in place. I agree. Part of a school districtís obligation in complying with the requirements of the Individuals with Disabilities Education Act (IDEA) (20 USC ß 1400 et seq.) is the preparation and provision of an IEP for each child with a disability in its jurisdiction (see generally 20 U.S.C. ß1414). In examining the IEP dated January 16, 2002 (District Ex. No. 1) I note that it is clearly identified as a "draft" at the top, and that the Annual Goals Progress Reports contain a starting IEP date of January 16, 2002, but no ending date.
Secondly, petitioner asserts that extraordinary circumstances exist which justify the use of his own, tutor not certified in special education during periods when respondentís tutor was available. Petitionerís request for reimbursement for the cost of private tutoring which they obtained for their child is subject to the three criteria set forth in Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 (1985). Pursuant to that decision, 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 parent's claim.
Turning first to the services provided by respondent, since I have determined that the IEP dated January 16, 2002 is a draft IEP, any tutoring services offered by respondent prior to the date of the next IEP, March 12, 2002, cannot be considered appropriate, since they were not provided pursuant to a valid IEP. However, as noted by the impartial hearing officer, respondent failed to provide any tutoring service until March 27, 2002. Therefore, I find that respondent failed to provide an appropriate educational program to the student from the period March 4, 2002 through March 26, 2002. Prior to March 4, 2002, respondent was not aware that the child had left his private school placement, and is under no obligation to provide services.
From the period March 27, 2002 through April 10, 2002, I find that respondent offered the child an appropriate educational program. Respondentís tutor was a certified special education teacher with many years of experience. She made a good faith effort to establish rapport with the child and her testimony indicates that she had a good insight into the childís need for structure and discipline. She tried to take the private tutorís lead during the first session. This individual prepared in advance, becoming familiar with the childís behaviors, learning style and academic profile. I found no merit in petitionerís assertions that this tutor was not appropriate for his child.
From the period April 11, 2002 through May 24, 2002, the child was either in attendance in or had a place available in respondentís BOCES program, and I therefore find that that respondent offered the child an appropriate educational program during this period.
A valid IEP dated May 24, 2002 authorized home tutoring through BOCES when it is determined by the childís physician in consultation with the school district physician that the student is too anxious or stressed to attend class. This occurred on June 4, 2002, and respondent was unable to provide a tutor until June 7, 2002. I agree with the hearing officer and find that respondent failed to offer the child an appropriate educational program on June 5 and 6, 2002, but thereafter, until June 24, 2002, did so, through the offer of a tutor which petitioner rejected.
Thus, I find that there were times during the relevant period, namely March 4 through March 26, 2002 and June 5 and 6, 2002, when respondent failed to offer the child an appropriate program, by failing to provide a tutor.
However, in order to be entitled to reimbursement, petitioner must demonstrate that he selected an appropriate alternative program. While a private school need not employ certified special education teachers (Application of a Child with a Disability, Appeal No. 94-20), I find that given the classification of the child in this case as emotionally disturbed, any tutoring he receives, if it is to be considered appropriate, must be given by a teacher who is certified in special education. The private tutor hired by petitioner was not certified in special education, and her educational background is in elementary education. For this reason, petitioner is not entitled to any reimbursement for the services that that the private tutor provided. It is paramount that a student who is classified as emotionally disturbed have structure and be aware of the educatorís expectations. These factors are part of the basis for his feeling safe. The openness of the private tutorís approach, as reflected in her testimony, left the child in control of the educational environment, which was not appropriate.
The third and final criterion for tuition reimbursement is whether equitable considerations support the parentís claim for reimbursement. I find that petitionerís dismissal of the tutors offered by respondent, without giving these individuals a fair opportunity to work with the child, and the delay in providing respondent notice of the childís departure from the Cobblestone School in February 2002 are sufficient for me to determine that equitable considerations do not support petitionerís claim, and for this reason as well, his claim for reimbursement is denied.
In its cross-appeal, respondent asserts that it continually and consistently offered to provide special education services home tutoring services to the child, and that petitioner rejected these services. For this reason, respondent argues that the impartial hearing officer erred in ordering reimbursement for the March 13-March 27, 2002 period. In addition, respondent claims that it was given too little time to be expected to provide tutoring for the June 5-6, 2002 period, and requests that reimbursement for this period be overturned. Respondent also asserts that the $45.00 per hour rate is excessive, and that if any reimbursement be made, it be made at a rate of $26.00 per hour.
Since I have denied petitionerís claim for reimbursement on the grounds set forth above, the specific issues asserted by respondent in its cross-appeal are moot and will not be considered by me. However, to the extent the cross-appeal asserts that petitioner shall be denied reimbursement, the cross-appeal is sustained.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officerís decision is hereby annulled.
Albany, New York
October 31, 2003
JOSEPH P. FREY