92-008

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that the classification of the handicapping condition of petitioner's child not be changed from multiply handicapped to traumatically brain injured. Petitioner also appeals from the hearing officer's denial of petitioner's claim for reimbursement for transportation expenditures by petitioner to transport the child to and from physical therapy sessions in 1987 and 1988, because petitioner failed to comply with the provisions of Section 3813 of the Education Law. Petitioner also challenges the refusal of the hearing officer to grant his request for the issuance of subpoenas to compel witnesses to testify at the impartial hearing. The appeal must be sustained in part.

Petitioner's child incurred anoxic brain damage secondary to strangulation as the result of an attempted suicide in September, 1984. The nature of the child's handicapping condition and his prior educational placement history were reported in my decision in Appeal No. 91-6, and will not be repeated in this decision except as they are directly relevant to the narrow issues presented in this appeal.

In my decision in Appeal No. 91-6, dated March 8, 1991, I sustained portions of petitioner's appeal with regard to the appropriateness of the child's individualized education program and of the program offered by the CSE to the child for the 1990-91 school year, and directed the CSE to recommend to respondent that the child be placed in a residential school. However, I did not sustain petitioner's appeal from the decision of a hearing officer upholding the CSE's refusal to change the classification of the child's handicapping condition from multiply handicapped to traumatically brain damaged. On October 30, 1990, the Federal statute, (20 USC 1401 [a][1][A]), which defines the term "children with disabilities," was amended to include the term "traumatic brain injury". However, I found that the elements of traumatic brain injury were not included in the Federal statute or regulation, nor did State statute or regulation provide guidance. I held that after the elements of the handicapping condition of traumatic brain injury were established in Federal or State regulation, it would be appropriate for the CSE to reconsider petitioner's request for a change in the classification of the child's handicapping condition.

On April 30, 1991, the CSE met with petitioner to amend the child's individualized education program (IEP), in preparation for the child's scheduled enrollment in a residential school in May, 1991. At that meeting, the CSE also reviewed petitioner's request that the CSE change the child's classification to traumatically brain injured. The CSE declined to recommend that the child's classification be changed. At petitioner's request, the CSE met again on October 17, 1991 to consider petitioner's renewed request for a change in the child's classification, as well as other changes in the child's IEP. The CSE again declined to recommend that the child's classification be changed.

By letter dated October 21, 1991, petitioner requested that an impartial hearing be held. Petitioner stated that he had more than one concern, but the only issue which he identified was the classification of the child. A hearing was scheduled to be held on November 14, 1991. On November 12, 1991, the impartial hearing officer met with petitioner and a representative of respondent's Division of Special Education to discuss petitioner's request that the hearing officer issue subpoenas. Prior to taking testimony from petitioner and respondent's representative about the subpoenas, the hearing officer stated that petitioner had revealed his intention to raise at the hearing his claim for reimbursement for transportation which he had provided to the child from February, 1987 through August, 1988.

Petitioner requested that subpoenas be issued to respondent's Bureau of Pupil Transportation and the former director of respondent's Office of Related and Contractual Services (ORCS) to produce copies of all records pertaining to the child's transportation during 1987 and 1988, and authorization and reimbursement vouchers for the child's transportation to and from physical therapy sessions during those years. Petitioner also asked the hearing officer to issue a subpoena to respondent's executive director of special education to require the production of all papers and plans which respondent had submitted to the State Education Department concerning assurances given under the Federal Individuals with Disabilities Education Act with regard to the classification of traumatic brain injury. Petitioner initially asked that the record of the prior hearing for his child be subpoenaed from respondent's Impartial Hearing Office, but withdrew that request upon the assurance that the record would be voluntarily produced.

Respondent objected to the issuance of the subpoenas for the testimony and/or records of its employees, upon the ground that the hearing officer lacked jurisdiction to rule upon the issue of the child's classification or petitioner's reimbursement request. The hearing officer did not rule upon respondent's objections. Instead, the hearing officer asked respondent's representative to have appropriate staff present at the November 14, 1991 hearing to address both of the issues which petitioner raised. Respondent's representative agreed to comply with the hearing officer's request. The hearing officer also accepted into evidence a notice to petitioner from respondent's ORCS and a claim form which petitioner had submitted to the ORCS in order to be reimbursed for transportation he had provided to his child to and from physical therapy treatments at the Kingsbrook Jewish Medical Center during February, 1987. The hearing officer directed respondent's representative to reveal at the hearing whether such claim had been paid. The record reveals that petitioner agreed that the respondent's compliance with the hearing officer's direction would resolve his request.

Prior to the November 14, 1991 hearing, the hearing officer signed a subpoena which petitioner served upon a supervisor of the State Education Department's Office of Special Education Services, directing the production of all papers and plans submitted in October, 1991 by the Board of Education to the State Education Department for approval under Part B of the Federal Individuals with Disabilities Education Act. At the November 14 hearing, the supervisor of respondent's Impartial Hearing Office advised the hearing officer that an attorney for the Department's Office of Special Education Services informed the supervisor that the Office of Special Education Services would not comply with the subpoena because of defects in its issuance and service. In his decision, the hearing officer declined petitioner's request that the hearing officer seek enforcement of the subpoena, on the ground that there was merit to the legal objections raised by the office, and that there would be no point in seeking compliance because he found that petitioner had no legal right to the relief he was seeking.

At the November 14, 1991 hearing, the hearing officer heard the legal arguments offered by petitioner and respondent's representative concerning the classification of the child's handicapping condition. On the issue of the reimbursement of petitioner for transporting his child from February, 1987 through August, 1988, petitioner testified that he had transported the child to and from school on a daily basis, and to and from the Kingsbrook Jewish Medical Center, where the child received physical therapy three times each week. Petitioner further testified that he was compelled to transport the child in his own automobile, because the private bus contractor selected by respondent to provide transportation did not have a vehicle which could accommodate the child's wheelchair. Respondent's representative at the hearing corroborated petitioner's testimony. Petitioner also testified that he had filed a single claim form for the month of February, 1987, and had never filed a claim for any other month in which he transported the child. He further testified that he had telephoned respondent's ORCS on one occasion about the claim form which he had submitted to the ORCS, but did not raise the issue again until 1990. Respondent's representative asserted that the reimbursement claim was untimely.

By a decision dated December 3, 1991 and amended on December 4, 1991, the hearing officer found that the child could not yet be classified traumatic brain injured, because that condition remained undefined in Federal or State regulation. Petitioner asserted at the hearing that there was a definition in Federal regulation, but the hearing officer noted that although a notice of proposed rulemaking involving such a definition was given in the Federal Register on August 19, 1991, that regulation had not been promulgated. The hearing officer also noted that petitioner had conceded that his child was enrolled in a program designed to serve children with traumatic brain injury, notwithstanding the absence of a regulatory definition of that condition. The hearing officer suggested that the CSE add the words "traumatic brain injury disability category pending" to the description of the child's handicapping condition on his IEP, which the CSE did on December 17, 1991.

The hearing officer also ruled that petitioner's claim for reimbursement could not be considered, because petitioner had not filed a written notice of claim with respondent within 90 days after his claim accrued as required by section 3813 of the Education Law. The hearing officer denied petitioner's request that the hearing officer issue a subpoena to compel the testimony of the supervisor of social workers in Community School District 22. At the November 14, 1991 hearing, the hearing officer had denied petitioner's subpoena request, but did afford petitioner the opportunity to submit a written statement by the supervisor to the hearing officer after the hearing. The hearing officer found that, while the supervisor's statement corroborated petitioner's testimony that he had submitted a claim for transportation provided in February, 1987, it did not afford a basis for altering the hearing officer's conclusion of law that petitioner could not prevail on his request for reimbursement.

Respondent asserts that the appeal is untimely and petitioner asserts that I should disregard respondent's answer because it was not timely served. Respondent asserts that the hearing officer rendered his decision on December 4, 1991, and that petitioner did not serve his petition upon respondent until January 24, 1992. State regulation provides that a petition to seek review of a hearing officer's decision must be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). The record shows that petitioner requested an extension of time in which to serve the petition until January 27, 1992 because of petitioner's serious illness, but there is no proof of when petitioner received the hearing officer's decision. In any event, given the fact that petitioner timely requested an extension, the circumstances surrounding the extension request, the filing of the appeal within the requested extension and the failure of proof by respondent relating to petitioner's receipt of the hearing officer's decision, I will not find that petitioner's appeal was untimely. Moreover, in this appeal respondent requested an extension until February 18, 1992 in which to serve its answer. The answer was served on February 20, 1992. In view of the minimal, nonprejudicial delay, I will accept respondent's answer.

Petitioner asserts that the hearing officer erred in not finding that the child should be classified as traumatically brain injured. I concur with the hearing officer that there is no regulatory standard for that handicapping condition. The notice of proposed Federal rulemaking is not a Federal regulation. The record reveals that the State Education Department has assured the United States Department of Education that a State statute or regulation to include children with traumatic brain injury within the State's definition of children with handicapping conditions will be adopted by July 1, 1992.

Petitioner also asserts that respondent was obligated to provide suitable transportation as part of respondent's obligation to provide a free appropriate public education. Petitioner further asserts that respondent was aware that petitioner transported the child during the period in question, and that it would be inequitable for respondent to be relieved of its obligation to provide, or pay for, suitable transportation.

Petitioner's assertion raises two issues. First, whether a claim for transportation reimbursement may be the subject of a proceeding pursuant to the Federal and State statutory and regulatory provisions affording parents the right to an impartial hearing, and secondly, whether the provisions of Section 3813 of the Education Law bar his claim. Respondent relies upon the decision of the Commissioner of Education in Matter of Bd. of Ed. New York City, 21 Ed. Dept. Rep. 86, for the proposition that a claim for monetary reimbursement, unrelated to any timely claim for review of an evaluation or placement recommendation is not an issue upon which a parent is entitled to an impartial hearing. However, the U.S. Supreme Court subsequently rendered its decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 and the Commissioner has more recently held that a parent may seek reimbursement for transportation provided by the parent, upon a showing that the service offered by the school district was inadequate, the service obtained by the parent was appropriate and that equitable considerations support the parent's claim (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 326). Accordingly,I find that petitioner may assert his claim for reimbursement in this proceeding (Hurry v. Jones, 734 F. 2d 879).

Section 3813 (1) of the New York State Education Law requires that a written notice of claim be presented to the governing body of a school district within three months after the accrual of the claim. Compliance with the notice of a claim provisions of section 3813 of the Education Law is a condition precedent to bringing a claim against a school district in a New York court or administrative proceeding to enforce a private right, rather than to vindicate a public interest (Bd. of Ed. U.F.S.D. No. 2 East Williston v. N.Y.S. Div. of Human Rights, 44 NY 2d 902). Section 3813 (2-b) of the Education Law imposes a one year statute of limitations upon claims asserted against school districts. Neither the Federal statute (20 USC 1415) nor the Federal regulation (34 CFR 300.506) which affords the parent of a disabled child with the right to an impartial hearing imposes any time limitation, or condition precedent, upon a parent's right to request a hearing concerning the provision of a free appropriate public education to a child. Respondent offers no authority for its assertion that compliance with the notice of claim provisions of section 3813 is a condition precedent to asserting a claim under the Federal statute and regulations pertaining to the education of children with disabilities, cf. Robideau v. South Colonie C.S.D., 127 Misc. 2d 979, or that such claims are subject to the one year period of limitation. I find that petitioner is not precluded by the provisions of section 3813 of the Education Law from pursuing his claim.

Even if I were to accept respondent's assertion that section 3813 of the Education Law bars petitioner's reimbursement claims, I would nevertheless annul the hearing officer's decision because he erred and denied petitioner, who was not represented by an attorney, due process of law when he did not allow petitioner to prove his assertion that respondent was aware that he transported his child and that he had been assured by respondent's employee that his claim would be paid. If proven by petitioner, these assertions could afford a basis for concluding that petitioner has, in fact, satisfied the purpose of section 3813 of the Education Law by giving respondent prompt notice of his undertaking to provide transportation and of respondent's corresponding obligation to reimburse petitioner. Petitioner's failure to literally comply with the provisions of section 3813 could have been excused (Bd. of Ed. Walkill C.S.D. v. Ambach, 69 AD 2d 949).

The hearing officer has a unique obligation to an unrepresented party when he proposes an alternative to the party's request for his assistance in issuing subpoenas. Petitioner agreed, at the November 12, 1991 hearing, to forego his request that the hearing officer issue certain subpoenas, upon the assurance that a member of respondent's staff would testify about the claim which petitioner did submit and the transportation provided to the child. Petitioner, who was not represented by an attorney, was unfairly deprived of an opportunity to establish his case when respondent did not produce any witness who had personal knowledge of these matters to testify at the November 14, 1991 hearing. Instead, respondent's representative testified about conversations which the representative had with other members of respondent's staff. Accordingly, I find that the respondent did not meet the assurance that appropriate staff would be present at the November 14, 1991 hearing and that petitioner should not be bound by his acquiescence to the hearing officer's alternative to the issuance of the requested subpoenas for the testimony of the former director of the ORCS.

I also find that the hearing officer abused his discretion in not granting petitioner's request for the issuance of the subpoenas to the former ORCS director and to respondent's Bureau of Pupil Transportation for any relevant records. The testimony and records sought by petitioner were directly relevant to the issue he wished to present at the hearing. Therefore, I will direct respondent to reconvene the hearing and to afford petitioner subpoenas for witnesses and to obtain records relevant to the issue of his claim for reimbursement. At the hearing, petitioner will have the burden of proving his entitlement to the amount which he asserts respondent owes.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer with regard to petitioner's claim for reimbursement for transportation be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 calendar days after the date of this decision respondent shall reconvene the impartial hearing for the purpose of determining petitioner's claim for reimbursement.