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The State Education Department
State Review Officer

No. 06-099

 

  

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 New York City Department of Education

 

Appearances:

Mayerson & Associates, attorney for petitioner, Gary S. Mayerson, Esq., of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, Esq., of counsel

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which awarded petitioner reimbursement for the educational program and services provided to his son during the 2005-06 school year for which he submitted proof of payment and also ordered reimbursement for the educational program and services to be provided to the student during the summer upon petitioner submitting proof of payment of those expenditures.  On appeal, petitioner seeks additional reimbursement for services provided to his son during the 2005-06 school year and contends that the impartial hearing officer failed to award reimbursement for transportation expenses.  The appeal must be sustained in part.

            At the time of the impartial hearing in May and June 2006, the student was 11 years old (see Parent Ex. B at p. 1).  For the 2005-06 school year, the student attended the Carbone Clinic, received at-home applied behavioral analysis (ABA) services through privately-obtained providers, received occupational therapy at the McCarton Center, and received speech-language therapy through privately-obtained providers (Parent Exs. C; D; E).  The student's classification and eligibility for special education programs and services as a student with autism are not in dispute in this appeal (see Parent Ex. B; 8 NYCRR 200.1[zz][1]).

            In a prior unappealed decision dated November 18, 2005, an impartial hearing officer (Hearing Officer 1) found that respondent failed to offer the student a free appropriate public education (FAPE) for the 2005-06 school year, and he determined that the student's placement at the Carbone Clinic and his "at home program" were appropriate (Parent Ex. J at p. 11).  Hearing Officer 1 ordered respondent to pay for the student's services at the Carbone Clinic and pay the service provider of the student's at-home ABA instruction for the 2005-06 school year (id. at pp. 12-13).  He "denied without prejudice" petitioner's request for funding for the student's occupational therapy and speech-language therapy services because petitioner failed to submit any evidence about those services at the impartial hearing (Hearing 1) (id. at p. 12).

            On or about February 16, 2006, petitioner filed a due process complaint notice requesting an impartial hearing seeking to "supplement" the relief granted in Hearing Officer 1's November 18, 2005 decision with an award of reimbursement for additional costs related to the educational program and services provided to the student during the 2005-06 school year (Parent Ex. A).  Specifically, petitioner requested reimbursement for the related services previously "denied without prejudice," reimbursement for the additional actual cost of the Carbone Clinic that exceeded the estimated amount previously awarded, and reimbursement for the "replacement" provider of the student's at-home ABA services (id. at pp. 2-3).

            The impartial hearing (Hearing 2) occurred over two days of testimony during May and June 2006 (Tr. pp. 1, 141).  Petitioner presented all of the testimonial and documentary evidence at Hearing 2 (Tr. pp. 1-196; Parent Exs. A-Z; AA-EE), which included the submission of invoices and cancelled checks to support his reimbursement claims (Parent Exs. BB-EE).  At Hearing 2, respondent conceded that it failed to offer the student a FAPE and stipulated that petitioner did not engage in any inequitable conduct that would bar or diminish his reimbursement request (Tr. pp. 11-12).  Respondent did not present any witnesses or evidence.  

            By decision dated July 13, 2006, the impartial hearing officer (Hearing Officer 2) held that petitioner "has sustained his burden of proof for all of his claims for reimbursement" (Pet. Ex. A at p. 9).  Hearing Officer 2 directed respondent to reimburse petitioner $22,253.15 for the services provided to the student during the 2005-06 school year, representing the amount for which petitioner provided invoices and cancelled checks at Hearing 2 (id. at p. 11).  In addition, respondent was ordered to reimburse petitioner for "services which have been provided or will be provided to the child over the summer" upon the submission of additional invoices and cancelled checks showing proof of payment (id. at pp. 11-12).  That order set forth the specific service providers, the amount of services and the rates at which petitioner could be reimbursed (id.).

            By letter dated July 24, 2006 to Hearing Officer 2 and copied to respondent, petitioner, through his attorney, requested that Hearing Officer 2 clarify and amend her July 13, 2006 decision to include reimbursement for transportation expenses and additional reimbursement relief through June 2006 (Pet. Ex. D at p. 1).1  The letter indicated that invoices were enclosed to support petitioner's request for additional reimbursement, and petitioner submitted an email that he had written to his attorney setting forth his concerns about the July 13, 2006 decision (Pet. Ex. D).  Hearing Officer 2 issued an amended decision on August 8, 2006 (Pet. Ex. B).  Other than the addition of a footnote clarifying how she calculated the amount of reimbursement for the Carbone Clinic and minor formatting changes, the two decisions are identical (compare Pet. Ex. A, with Pet. Ex. B).  

            Petitioner appeals both of the decisions rendered by Hearing Officer 2, but limits his request for review to issues of additional reimbursement and reimbursement for transportation expenses.  Petitioner alleges that he secured additional educational services during the 2005-06 school year beyond those which were listed on the invoices he submitted at Hearing 2.  He requests an award granting him reimbursement for those additional services, and in support he attaches invoices and cancelled checks to the petition (Pet. Ex. C).  He also alleges that Hearing Officer 2 miscalculated the amount of reimbursement that should have been awarded for services provided by a speech pathologist.  Petitioner contends that Hearing Officer 2 failed to award reimbursement for transportation expenses, despite identifying reimbursement for transportation expenses as an issue, summarizing petitioner's testimony about driving the student to and from the Carbone Clinic after the student's negative school bus experiences, and holding that petitioner sustained his burden for "all of his claims for reimbursement."  As relief, petitioner requests that a State Review Officer order reimbursement for the requested expenses, or in the alternative, remand the matter to Hearing Officer 2 for her to clarify and amend her decision as directed by a State Review Officer.

            Respondent submitted an answer denying petitioner's assertions and contending that petitioner failed to submit documentary evidence at Hearing 2 to support his request for reimbursement for transportation expenses and the expenses he now seeks on appeal.  Respondent contends that Hearing Officer 2 awarded petitioner reimbursement for those expenses petitioner sought at Hearing 2.  Respondent asserts that the appeal presents no legal issue for a State Review Officer to determine and argues that the matter should be remanded to Hearing Officer 2 so that she can consider the additional documentary evidence not submitted at Hearing 2.

            A school district may be required to reimburse parents for their expenditures for private educational services obtained for a child by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  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 Individuals with Disabilities Education Act (IDEA) (Burlington, 471 U.S. at 370-71).  "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 offered the child a FAPE (id.; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148[c]).2

            "The decision of an impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination" (8 NYCRR 200.5[j][5][v]).  In the instant case, petitioner was awarded reimbursement for the expenses for which he sought relief and submitted documentary evidence at Hearing 2 showing his out-of-pocket expenditures.  Hearing Officer 2's decision was further favorable to petitioner insofar as it ordered reimbursement for certain services to be provided to the student during the summer upon petitioner producing proof of payment.  I find that Hearing Officer 2 appropriately awarded relief to petitioner based on the evidence that he submitted at Hearing 2.  She issued a decision that evaluated the evidence presented at Hearing 2 and made factual determinations and conclusions of law.  Her decision explains how she computed the award and shows that she carefully reviewed the invoices and cancelled checks presented by petitioner.  Based on my review of the decision, I find no indication that she acted arbitrarily, or abused her discretion in calculating the reimbursement award.  I also find that petitioner's assertion that Hearing Officer 2 miscalculated the award by not including services rendered in September 2005 through November 2005 by a speech pathologist is belied by the record (see Pet. Ex. A at p. 9; Parent Ex. BB at pp. 75-80).  For these reasons, I decline to modify the award to include reimbursement for additional expenses.

            However, as requested by the parties, I will remand the matter to Hearing Officer 2 for the purpose of holding a new hearing limited to determining whether petitioner is entitled to reimbursement for transportation expenses.  Hearing Officer 2's decision is ambiguous to the extent that she identified reimbursement for transportation expenses as an issue and found that petitioner sustained his burden of proof "for all of his claims for reimbursement," but failed to include the requested transportation expenses in the award, and did so without explanation.

            In lieu of returning to an impartial hearing, I encourage the parties to resume their settlement discussions and resolve this issue themselves.  I have considered petitioner's remaining contentions and find no further need to modify Hearing Officer 2's determination.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that, unless the parties otherwise agree, this matter be remanded within 30 days to the impartial hearing officer below, or to another impartial hearing officer if she is not available, for another impartial hearing to determine whether petitioner is entitled to reimbursement for transportation expenses associated with the student's 2005-06 school year.

Dated:            Albany, New York                        _____________________________
                        May 18, 2007                                PAUL F.  KELLY                                                                                STATE REVIEW OFFICER

1 I remind the parties that generally there is no authority for an impartial hearing officer to reopen a hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties (see Application of the Dep't. of Educ., Appeal No. 06-133; Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-056; Application of the Bd. of Educ., Appeal No. 02-043; Application of the Bd. of Educ., Appeal No. 98-16).

 

2 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations.  However, for convenience, and unless otherwise specified, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.