The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-091  

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his 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:

Skyer, Castro, Foley & Gersten, attorney for petitioners, Jesse Cole Foley, Esq., of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, John Hewson, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer, which denied their request to be reimbursed for their son's tuition costs at the Mary McDowell Center for Learning (MMCL) for the 2005-06 school year.  The appeal must be sustained in part.

            In the instant case, the impartial hearing officer did not render a decision on the merits of petitioners' tuition reimbursement claim.  Relying on a decision from the federal district court of the Southern District of New York, the impartial hearing officer held that she was precluded from awarding tuition reimbursement to petitioners, because the student had never received special education services from a public agency (IHO Decision, pp. 4-5, citing Bd. of Educ. v. Tom F., 2005 WL 22866 [S.D.N.Y. 2005], vacated and remanded, 2006 WL 2335239 [Aug. 9, 2006]).  As a result, she did not address the merits of petitioners' claim (IHO Decision, p. 5).  As set forth below, I find that the impartial hearing officer erred by declining to decide this case on the merits.

            At the commencement of the impartial hearing, the student was 11 years old and enrolled in the sixth grade at MMCL (see Tr. pp. 49, 51).  MMCL is a private school that has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The student's eligibility for special education services as a student with a learning disability is not in dispute in this proceeding (8 NYCRR 200.1[zz][6]). 

            By due process complaint notice dated August 15, 2005, petitioners requested an impartial hearing seeking tuition reimbursement for MMCL for the 2005-06 school year (Parent Ex. A).  Petitioners contended that the individualized education program (IEP) developed as a result of the May 6, 2005 Committee on Special Education (CSE) meeting was procedurally and substantively deficient and therefore, constituted a denial of a free appropriate public education (FAPE) (id.).

            On August 31, 2005, petitioners amended their due process complaint notice (Parent Ex. B).  In their amended due process complaint notice, petitioners noted that they were in receipt of respondent's Final Notice of Recommendation, which informed them of the specific school that the CSE recommended for the student (id.).  Petitioners continued to maintain that the proposed program was not appropriate to meet their son's special education needs (id.).  The record reflects that the impartial hearing did not immediately take place in anticipation of possible settlement of this matter (Parent Ex. C).  After the parties failed to finalize a settlement agreement, petitioners reinstated their original due process complaint notice on March 1, 2006 (id.).

            The impartial hearing commenced on April 28, 2006 and concluded on June 5, 2006 after two days of testimony.  The impartial hearing officer rendered her decision on July 7, 2006, in which she denied petitioners' request for tuition reimbursement for the 2005-06 school year, having concluded that an award of tuition reimbursement was not permissible because the student had never received special education or related services through a public agency (IHO Decision, pp. 4-5).  In reaching her decision, the impartial hearing officer relied on Bd. of Educ. v. Tom F., 2005 WL 22866 [S.D.N.Y. 2005], which held that a student who had not previously received special education or related services through a public agency was barred from receiving an award of tuition reimbursement. The impartial hearing officer concluded that she was bound by the district court's holding in Tom F. and determined, without reaching the merits of their claim, that petitioners were precluded from an award of tuition reimbursement in this matter.

            On appeal, petitioners assert that the impartial hearing officer erred by dismissing the case based upon the fact that the student had never received special education services from a public agency.  Petitioners request that the impartial hearing officer's decision be reversed.  They seek a finding that respondent failed to offer the student a FAPE for the 2005-06 school year.  Specifically, they argue that: 1) respondent's CSE was improperly composed; 2) the proposed program inappropriately grouped the student with other students; 3) the May 2005 IEP failed to appropriately identify the student's present levels of performance; and 4) the May 2005 IEP failed to recommend appropriate goals for the student.  Petitioners also contend that MMCL was an appropriate placement for their son, and that equitable considerations support their claim for tuition reimbursement for the 2005-06 school year.

            Although respondent did not file an answer to petitioners' allegations, by letter dated September 22, 2006, respondent submitted a request on behalf of both parties, for an order that the instant matter be remanded to the impartial hearing officer for a decision on the merits.  I have considered this joint application for a remand of the instant case to an impartial hearing officer for a determination of the merits of petitioners' tuition reimbursement claim pertaining to the 2005-06 school year.

            Both parties assert that the impartial hearing officer improperly declined to decide the instant matter on the merits in light of her determination that the due process complaint notice should be dismissed because the student had never received special education services from a public agency.  I concur with the parties that the impartial hearing officer erred in dismissing the case on this basis.  As noted above, the impartial hearing officer relied upon Bd. of Educ. v. Tom F., 2005 WL 22866 [S.D.N.Y. 2005] as the basis for her decision to dismiss the case.  Subsequent to the impartial hearing officer's decision, on August 9, 2006, the Second Circuit Court of Appeals vacated and remanded Tom F. in light of the Court's decision on July 27, 2006 in Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006).  Frank G. held that the Individuals with Disabilities Education Act (IDEA) does not preclude an award of tuition reimbursement where special education and related services have not been previously provided to a student by a public school or public agency (Frank G., 459 F.3d at 376; see also Carmel Cent. Sch. Dist. v. V.P., 2006 WL 2335140, at *1 [2d Cir. Aug. 9, 2006];  Application of a Child with a Disability, Appeal No. 06-077; Application of a Child with a Disability, Appeal No. 06-041; Application of a Child with a Disability, Appeal No. 06-032; Application of a Child with a Disability, Appeal No. 06-021).1 

            I have reviewed the record in the instant case and, as set forth above, I agree with the parties that the impartial hearing officer erred by dismissing the case solely based upon the fact that the student had never received special education services from a public agency.  Accordingly, I will grant the parties' joint application to annul the impartial hearing officer's July 7, 2006 decision and I will remand the instant matter for a determination on the merits (see Application of a Child with a Disability, Appeal No. 05-064).

            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 whether petitioners are entitled to tuition reimbursement for the Mary McDowell Center for Learning for the 2005-06 school year; 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

 

__________________________

 

October 3, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 I note that, prior to Frank G., State Review Officers consistently declined to construe section 1412 of the IDEA as limiting the authority of an impartial hearing officer or state review officer under section 1415 of the IDEA to grant an award of tuition reimbursement to the parents of a child who had not previously received special education or related services under the authority of a public agency (see Application of a Child with a Disability, Appeal No. 06-032; Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-125; Application of the Dep't. of Educ., Appeal No. 05-074; Application of the Bd. of Educ., Appeal No. 05-015; Application of a Child with a Disability, Appeal No. 02-052; Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 99-35; Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-41; Application of a Child with a Disability, Appeal No. 98-25).