The State Education Department
State Review Officer

No. 05-064

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

 

Appearances:
Mayerson & Associates, attorney for petitioners, Gary S. Mayerson, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer, which petitioners allege failed to address whether petitioners’ daughter is entitled to extended school year services (ESY) and whether petitioners are entitled to reimbursement for related services obtained for their daughter during the 2004-05 school year and summer 2005.  The appeal must be sustained in part. 

On the date of the impartial hearing, February 3, 2005, the child was eight years old and classified as a child with mental retardation (Tr. p. 8; Parent Exs. 8, 9).  The child’s eligibility for special education programs and classification are not in dispute in this appeal (see 8 NYCRR 200.1[zz][7]).  The impartial hearing officer rendered his decision on June 2, 2005 (IHO Decision, p. 10).

In their impartial hearing request, petitioners sought reimbursement for their expenditures for private special educational services obtained for their daughter during the 2004-05 school year and summer 2005, based upon respondent’s alleged failure to develop a procedurally and substantively appropriate individualized education program (IEP) for their daughter (Parent Ex. 1).   Specifically, petitioners sought reimbursement for applied behavioral analysis (ABA) services and related services provided to their daughter, as well as increased ABA services, increased related services, and ESY services for their daughter (id.).  At the time of the hearing, their daughter received physical therapy, occupational therapy and speech-language therapy (id.).  At the hearing, respondent conceded that it failed to provide the child with a free appropriate public education (FAPE) for 2004-05 and stated that it would not be “defending its IEP or placement” (Tr. pp. 7-9). 

Petitioners presented both testimonial and documentary evidence to support their claims at the hearing.  Respondent failed to present any witnesses or evidence.  By decision dated June 2, 2005, the impartial hearing officer determined that based upon the evidence presented by petitioners, respondent failed to provide petitioners’ daughter with a FAPE for 2004-05, and further, that petitioners were entitled to reimbursement for the ABA services obtained for their daughter (IHO Decision, pp. 7, 8, 10).   In addition, based upon testimony provided at the hearing the impartial hearing officer determined that increased ABA services and increased related services for the child were appropriate (IHO Decision, pp. 9, 10).  Lastly, the impartial hearing officer remanded the issue of the amount and type of parent training to be provided to respondent’s Committee on Special Education (CSE) for a determination (id. at p. 10).        

Petitioners’ appeal is limited to two issues:  1) their daughter’s eligibility for ESY services (see 34 C.F.R. § 300.309; see also 8 NYCRR 200.6[j][1] and 200.1[aaa]), and 2) whether reimbursement for related services obtained for the child during the 2004-05 school year and summer 2005 is warranted.  As relief, petitioners request, alternatively, that a State Review Officer determine these issues, or that these issues be remanded to the impartial hearing officer for further decision-making.

While respondent did not file an answer to petitioners’ allegations in this appeal, respondent did serve upon petitioners and file with the Office of State Review an Affirmation of No Opposition to Petitioners’ Request for a Remand, noting that it did “not oppose petitioners’ appeal to the extent that it seeks a remand to the [impartial hearing officer] for the limited purpose of deciding those two issues.” 

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).2  A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim (Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (see Burlington, at 370).  “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [individualized education program]” (id. at 370-71).

After a thorough review of the record, I agree that the impartial hearing officer’s decision failed to address and determine whether petitioners’ daughter is entitled to ESY services and whether petitioners are entitled to reimbursement for related services obtained for their daughter during the 2004-05 school year and during the summer 2005.  Therefore, I remand the two issues for further decision-making, as requested by the parties, via a new hearing because there is insufficient evidence in the record before me to make final determinations on these two issues.  Furthermore, inasmuch as neither party has appealed any other issue determined by the impartial hearing officer as set forth in his June 2, 2005 decision, such determinations are not currently before me and are final and not subject to review (34 C.F.R. §300.510[a]; 8 NYCRR 200.5[i][4][v]; Application of a Child with a Disability, Appeal No. 05-059; Application of a Child with a Disability, Appeal No. 04-015; Application of a Child with a Disability, Appeal No. 02-073; Application of a Child with a Disability, Appeal No. 01-053).

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that, within 30 days of the date of this decision, unless the parties agree otherwise, respondent shall schedule a new impartial hearing before the impartial hearing officer, who issued the decision that is the subject of this appeal, for a determination of the child’s eligibility for ESY services and for a determination of whether petitioners are entitled to reimbursement for related services obtained for their daughter during the 2004-05 school year and summer 2005; and

IT IS FURTHER ORDERED that, if the impartial hearing officer who issued the decision below in the instant case is not available to preside at the hearing ordered herein, respondent shall appoint a new impartial hearing officer to hear the matter.

 

Dated:

Albany, New York

 

__________________________

 

September 28, 2005

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective dates of the 2004 amendments to the IDEA, therefore, the provision of the IDEIA do not apply. 

2  The term “free appropriate public education” means special education and related services that--

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meets the stands of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8) (see 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d]).