95-025

Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which directed petitioner to reimburse respondent for her expenditures for her child's tuition at the Steven Gaynor School, for most of the 1993-94, and all of the 1994-95, school years. The appeal must be sustained.

There is a dearth of information about the child and his educational needs in the record, because of the very limited hearing which was held in this proceeding, on March 17, 1995. Petitioner was represented at the hearing by the assistant chairperson of the committee of special education (CSE) of Community School District 3. Respondent, the child's parent, was not present at the hearing, but was represented by her attorney. The hearing officer summarized an off-the-record discussion between the parties' representatives about the facts in this matter, but did not take any testimony. Respondent's son, who is eight years old, was apparently identified as an emotionally disturbed child, while he was in an unidentified preschool program. He is reportedly hyperactive, impulsive, distractible, and has difficulty controlling his temper. There is no information in the record about his early schooling.

The assistant chairperson of the CSE acknowledged at the hearing that the CSE had failed to meet to prepare the child's individualized education program (IEP) for the 1993-94 school year. Respondent unilaterally placed the child in the Steven Gaynor School for the 1993-94 school year. The Steven Gaynor School is a private school for children with disabilities, and is located in New York City. It has not been approved by the New York State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs. At the time when the child entered the school in September, 1993, respondent was precluded from seeking tuition reimbursement because of the school's unapproved status (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3rd Dept., 1978]). However, on November 9, 1993, the United States Supreme Court held that a parent could obtain reimbursement for tuition at an unapproved private school, if the private school provided the child with an appropriate education (Florence County School District Four et al. v. Carter by Carter, ____ U.S. ____, 114 S. Ct. 361 [1993]).

On April 26, 1994, the CSE prepared the child's IEP for the 1994-95 school year. The CSE recommended that the child be placed in petitioner's modified instructional services - I (MIS-I) program, with individual counseling once per week. However, the child's IEP did not include any annual goals for the related service of counseling. At the hearing in this proceeding, the assistant chairperson of the CSE conceded that the CSE had failed to offer the child a place in any MIS-I class, on a timely basis.

Respondent's attorney introduced into evidence a class profile setting forth the cognitive levels and degrees of social and physical development of the child's classmates at the Steven Gaynor School for the 1994-95 school year, and an undated, but allegedly "current", 35 page progress report about the child during the 1994-95 school year. The child's 1994-95 IEP, class profile, and progress reports were the only documents entered into evidence. After a brief colloquy between the assistant chairperson of the CSE and respondent's attorney about the timeliness of respondent's tuition claim for the 1993-94 school year, the hearing was closed.

In his decision, which was dated April 10, 1995, the hearing officer found that petitioner had failed to offer the child an appropriate placement in either the 1993-94 or 1994-95 school year, and that the Steven Gaynor School was an appropriate placement for the child. He found that the child had progressed at the Steven Gaynor School, and that the school's behavior modification program had decreased the child's aggressive and impulsive behavior. The hearing officer rejected petitioner's argument that the board of education should not be held liable for the child's tuition during the 1993-94 school year because respondent had waited until February 23, 1995 to request that an impartial hearing be held with respect to both the 1993-94 and 1994-95 school years. He found that respondent had not "unduly delayed" in exercising her right to seek tuition reimbursement, and held that respondent was entitled to receive tuition reimbursement for the period from November 15, 1993 (the date of the Carter decision) through the remainder of the 1993-94 school year, and for all of the 1994-95 school year.

The initial question to be decided is whether the record is adequate to support any determination by the hearing officer. Although the parties in an impartial hearing may stipulate that certain facts are not in dispute, so as to avoid the necessity of offering evidence to establish those facts, it is the hearing officer's responsibility to ensure that there is an adequate basis in the record to support his or her decision (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35).

In this instance, there is no evidence in the record about the manner in which the child's emotional disturbance affects his educational performance, other than the brief description of his hyperactivity, impulsivity, distractibility, and difficulty maintaining his temper which was written in his 1994-95 IEP. However, the parties do not dispute the nature of the child's educational disability. Therefore, I am precluded from reaching the issue of the appropriateness of the child's classification as emotionally disturbed (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y. 1987]; Application of a Child with a Disability, Appeal No. 93-42).

With regard to the 1993-94 school year, there was nothing in the record before the hearing officer to establish what the child's educational needs were, or what services were provided by the Steven Gaynor School to address the child's needs. Respondent has belatedly offered, with her answer to the petition in this appeal, a copy of the child's progress report at the Steven Gaynor School during the 1993-94 school year. Although petitioner could have filed a reply, because the progress report is additional documentary evidence (8 NYCRR 279.6), it has not objected to my consideration of the 1993-94 progress report. In any event, it is well settled that documentary evidence not presented at a hearing will only be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing, or if the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 94-5). I will accept the progress report for the 1993-94 school year, because the record would be incomplete without it. Petitioner has objected to my consideration of an affirmation by respondent's attorney, on the ground that it contains factual statements which could have been "submitted into evidence at the hearing." I find that there is no merit to petitioner's objection.

A board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, supra. Petitioner concedes that it did not meet its burden of demonstrating that it had offered the child an appropriate program and placement for either the 1993-94 or the 1994-95 school year. Therefore, respondent has prevailed with respect to the first Burlington criterion, i.e., whether the services offered by the board of education were appropriate for the child.

Respondent bears the burden of proving the appropriateness of the special educational services which she obtained for her son in both school years in question (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. Monroe-Woodbury CSD, Appeal No. 94-39). She must show that the services which the Steven Gaynor School provided during both school years were "proper under the Act [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra, 370), i.e., that the private school offered an instructional program which met the child's special education needs. In order to demonstrate that the private school's services met the child's needs, a child's parent must first show that the child had educational needs which required the provision of special education services. A parent may establish that the child had such needs by presenting evidence of the child's evaluation by either the school district or private evaluators. For this purpose, a parent may rely upon the child's IEP, if that document adequately reports the results of the child's evaluation. A parent may also rely upon the testimony of the child's teacher, or other individuals who have direct knowledge of the child's special education needs. A parent must then show that the private school's program was reasonably calculated to allow the child to receive educational benefits, in view of the child's identified special education needs. This requires at least some showing by the parent of the way in which the private school's program addresses the child's special education needs.

With regard to the 1993-94 school year, there is no evidence in the record of the child's special education needs, even with the addition of the 35 page progress report annexed to respondent's answer. The report described the child's reading, mathematics, and social studies skills, by grade levels, as of December, 1993 and May, 1994. It also described his spelling skills, by grade level, as of December, 1993, and discussed his writing skills. The report describes the child's "conceptual function and memory," as well as his listening skills. With regard to the child's behavior, the report noted that the child was usually well behaved, although he tended to verbalize every thought and forgot to raise his hand. The report mentioned a few of the teaching techniques which were employed with the child, but it did not, as a whole, delineate a program of special education. No evidence was introduced to establish that the child was grouped with children who had similar abilities and needs. Significantly, there was no testimony by the child's teacher or any representative of the Steven Gaynor School to explain how the school addressed the child's needs (cf. Application of a Child with a Disability, Appeal No. 95-8). In the absence of any evaluative data to establish what the child's special education needs were during the 1993-94 school year, I find that there is no basis for the hearing officer's determination that the private school met the child's special education needs. I must also note that the hearing officer's description of the school and its program appear to have been based on the remarks made during the hearing by respondent's attorney. Those remarks, whether accurate or not, were not testimony or evidence. A hearing officer's decision must be based solely upon the record of the proceeding before him (8 NYCRR 200.5 [c][11]).

The evidence in the record with regard to the 1994-95 school year included a class profile of the child's class in the Steven Gaynor School, a progress report at the private school, which provided information similar to that of the 1993-94 progress report, and the child's IEP prepared by the CSE. The IEP provided information about the child's academic skills, which were generally at grade appropriate levels, except for his writing skills. However, the IEP included only a minimal description of the boy's emotional development and needs. As was the case with the 1993-94 school year, there was insufficient information about the child's needs and the program that the Steven Gaynor School provided to address his needs to afford a basis in the record for the hearing officer's determination.

Petitioner also argues that respondent's claim for tuition reimbursement for the 1993-94 school year is untimely, because respondent did not request that an impartial hearing be held until February 23, 1995, which was almost 14 months after the end of the 1993-94 school year. Petitioner acknowledges that neither the Individuals with Disabilities Education Act (20 USC 1400 et seq.) nor Article 89 of the Education Law prescribes a time limit for parental requests for impartial hearings. The relevant Federal and State regulations also impose no time limit. Petitioner has referred to the decision in Matter of L.v. NYS Dept. of Education, 39 NY 2d 434 (1976) which held that the parents of a child with a disability who sought tuition reimbursement from a municipality under the former Section 232 of the Family Court Act were required to file their claim within the school year for which they sought reimbursement. That decision, which was premised in part upon a Regulation of the Commissioner of Education which imposed a time limitation upon municipalities seeking reimbursement for payment of tuition claims (8 NYCRR 200.8), is not directly applicable to this proceeding, because the regulation does not apply to petitioner.

Both parties in this appeal have urged me to find the most similar civil cause of action in State law, and to apply the State statute of limitations for that cause of action to respondent's request for tuition reimbursement. The parties differ significantly as to what would be the most similar cause of action. I find that petitioner's reliance upon the decision in Adler v. Education Department of the State of N.Y., 760 F. 2d 454 (2d Cir., 1985) is misplaced, since that decision concerned the statute of limitations for bringing an action in Federal court to review a decision of the Commissioner of Education on an appeal from an impartial hearing officer's decision. However, I don't find that it is necessary, or appropriate, to decide what would be the most similar cause of action. Instead, I find that the absence of an explicit time limitation and the fact that this proceeding is about the education of a child with a disability, require me to consider the equities of allowing respondent's claim (Bernardsville Board of Education v. J.H. et al., ___ F 2d ___ , [3rd Cir., 1994], 21 IDELR 1097). That approach would be consistent with the third Burlington criterion, i.e. whether equitable considerations support the claim for tuition reimbursement.

I note that there is nothing, as a matter of law, which would preclude me from ordering a board of education to reimburse a parent for the cost of educational services which the parent unilaterally obtained over a period of more than one school year, or for a period of time preceding the date when the parent initiated due process proceedings by asking for an impartial hearing (Northeast Central School District v. Sobol, 79 NY 2d - 598 [1992]). Consequently, the date on which respondent asked for an impartial hearing is not dispositive of the question of whether equitable considerations support her tuition claim for the 1993-94 school year (cf. Application of a Handicapped Child, 24 Ed. Dept. Rep. 454). The record does not reveal the child's involvement, if any, with the CSE prior to the 1993-94 school year, and there is no evidence in the record to establish, if and when, respondent was informed of her right to seek review of the CSE's failure to make a recommendation for the 1993-94 school year. Although petitioner asserts that respondent's claim should be barred because of laches, there is no basis in the record for determining the actual harm, if any, to petitioner as a result of respondent's alleged delay in pursuing her claim.

In view of the manifestly inadequate record in this proceeding, I find that neither party to the proceeding has been accorded the due process to which they are entitled as a matter of Federal and State law. They must have another opportunity to fully present their respective positions with respect to the appropriateness of the private school's educational program for the child, and the equities involved in respondent's claim for tuition during the 1993-94 and 1994-95 school years.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled; and

IT IS FURTHER ORDERED that within ten days after the date of this decision, petitioner shall schedule a hearing to resolve the issues of the appropriateness of the educational program of the Steven Gaynor School for respondent's child during the 1993-94 and 1994-95 school years, and the equities involved in respondent's tuition claim for both of those school years.