The State Education Department
State Review Officer

No. 05-065

 

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel 

The Children's Advisory Group, Inc., attorney for respondent, George Zelma, Esq., of counsel

DECISION

            Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for her son’s tuition costs at York Preparatory School (York) for the 2004-05 school year.  The appeal is sustained in part.

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).1  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]).  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 (id.).  In fashioning discretionary equitable relief, an impartial hearing officer “must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required” (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 [1993]; see also 20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]; see generally Burlington, 471 U.S. at 370-71; A.A. v. Bd. of Educ., 196 F. Supp. 2d 259, 264 [E.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 05-039, at n.7; Application of a Child with a Disability, Appeal No. 05-025, at n.1; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-037).

It is the duty of each hearing officer to ensure that there is an adequate record upon which to premise his or her decision, and to permit a meaningful review of the issues (Application of a Child with a Disability, Appeal No. 05-005; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 97-62).

On appeal petitioner does not dispute the reasonableness of the cost of the required reimbursement.  The issue raised on appeal by petitioner is whether the impartial hearing officer erred by ordering that petitioner reimburse respondent for the cost of the enrollment at York without proof of payment of tuition.  In her decision, the impartial hearing officer, in finding that tuition reimbursement should be awarded to respondent, phrased the relevant order as follows:  "ORDERED, the Department of Education is to reimburse the parent for the tuition paid for the 2004-2005 school year" (IHO Decision, at p. 5).  Petitioner requests that the impartial hearing officer's decision be set aside, or in the alternative, that the case be remanded for "completion of the evidentiary record".

An order by an impartial hearing officer for a district to pay tuition costs at an unapproved placement is permissible only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services (see 20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]; see generally Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370-71 [1985]; A.A. v. Bd. of Educ., 196 F. Supp. 2d 259, 264 [E.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 05-039, at n.7; Application of a Child with a Disability, Appeal No. 05-025, at n.1; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-037).  To the extent that the impartial hearing officer's decision and order in the present case fails to reflect that proof of payment is to be submitted prior to tuition reimbursement, the determination is modified pursuant to my authority under New York Education Law § 4404[2]),2 as detailed below.

I have considered petitioner's remaining contentions and find them to be without merit.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS FURTHER ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it held as follows:  "ORDERED, the Department of Education is to reimburse the parent for the tuition paid for the 2004-2005 school year" (IHO Decision, at p. 5).

            IT IS FURTHER ORDERED that, petitioner shall reimburse respondent for the cost of her child's tuition at York for the 2004-05 school year within sixty days of submission of proof of such expenditures by respondent to petitioner.

Dated:

Albany, New York

 

__________________________

 

August 12, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

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 date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

Proof of payment of specific enrollment costs for respondent's son at York for the 2004-05 school year was submitted to the impartial hearing officer and the district two days after the hearing concluded, and was also annexed to respondent's  answer on appeal (Attachments to Respondent's Verified Answer).  I note that petitioner has neither replied to nor objected to the additional documentary evidence served with the answer, as permitted by 8 NYCRR 279.6.