95-026

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 the majority of the 1993-94, and all of the 1994-95, school years. The appeal must be sustained.

At the outset, I note that respondent's attorney has submitted an affirmation dated June 8, 1995, to which petitioner objects, on the ground that the affirmation was not served upon it in a timely fashion, and because it makes factual statements to which petitioner would not have an opportunity to reply. I have not accepted the affirmation, or petitioner's response, because the affirmation is untimely (8 NYCRR 279.5).

On March 17, 1995 an impartial hearing was held at respondent's request for the purpose of securing reimbursement for tuition costs resulting from her unilateral placement of the child at the Steven Gaynor School for the 1993-94 and the 1994-95 school years. Petitioner was represented at the hearing by the assistant chairperson of the committee on 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. Except for her attorney, who briefly testified on her behalf, no witnesses testified in support of respondent's request for tuition reimbursement. Respondent offered into evidence only two written exhibits, which included an undated memorandum of law and a copy of the decision of an impartial hearing officer in Texas, concerning the timeliness of a parent's claim for tuition reimbursement. The assistant chairperson of the CSE of Community District 3 was petitioner's sole witness. Petitioner offered an undated progress report, prepared by the Steven Gaynor School, which reportedly covered the period from September 1994 through December 19, 1994. It also offered a copy of a form signed by respondent on June 1, 1993, in which she acknowledged receipt of the CSE's recommendation of an educational program for the child, and indicated her intention to enroll her child at her expense in the Steven Gaynor School for the 1993-94 school year.

The assistant chairperson of the CSE acknowledged at the hearing that the CSE had, on December 12, 1992, prepared what appears to be an initial individualized education program (IEP) for the child, who was classified as speech impaired/learning disabled. The record does not indicate the child's placement at the time her IEP was prepared. The CSE recommended that the child be enrolled in respondent's modified instructional services-III (MIS-III) program. The assistant chairperson conceded that petitioner had not offered an appropriate and timely placement to the child for the 1994-95 school year, and that it could not prove that a placement had been offered for the 1993-94 school year. He further acknowledged that the CSE was aware that the child had attended the Steven Gaynor School during both school years.

The Steven Gaynor School is a private school for children with disabilities 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 purpose of State reimbursement to school districts for tuition costs. Petitioner has provided the child with transportation and speech and language therapy at the Steven Gaynor School.

On or about March 1, 1995, respondent requested that an impartial hearing be held. The hearing was held on March 17, 1995. In a decision dated April 13, 1995, the impartial hearing officer ordered petitioner to reimburse respondent for tuition costs associated with the 1993-94 school year, from November, 1993, and for the entire 1994-95 school year. Petitioner thereafter commenced this appeal seeking a reversal of the order of the hearing officer in its entirety.

A board of education may be required to reimburse a parent for the cost of a child's educational services obtained by the 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [ND NY, 1987]; Application of a Child with a Disability, Appeal No. 93-42). Prior to November 9, 1993, respondent was precluded from seeking reimbursement because the private school selected by the parent had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir. 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3rd Dept. 1978]). 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 4 et al. v. Carter by Carter, U.S. , 114 S. Ct. 361).

Petitioner concedes that it did not meet its burden of demonstrating that it had offered the child an appropriate program or placement for either the 1993-94 or the 1994-95 school years. 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.

With respect to the second Burlington criterion, proving the appropriateness of the special education services, respondent bears the burden (Application of a Child with a Disability, Appeal No. 95-25, Application of a Child with a Disability, Appeal No. 94-29). Respondent must show that the child had special education needs, and 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, at 370, i.e., that the private school offered an instructional program which met the child's special education needs. Respondent relies in part upon the child's IEP which was prepared in December, 1992. That document, which reported the results of the child's evaluations, indicated that the child had been found to be impulsive and distractible, and to have deficits in language comprehension and organization which impaired her articulation ability. Her receptive language skills, while slightly better than her expressive language skills, were nevertheless below normal. The child's speech/language deficits were thought to impair her ability to form interpersonal relationships. When tested in August, 1992, the child exhibited a delay of approximately two years in reading. I find that the IEP's description of the child is adequate to determine that she had special education needs, as of September, 1993, because the CSE assistant chairperson testified that the IEP would have still been in effect at the start of the 1993-94 school year. However, respondent must also 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.

The record is minimal with respect to both the 1993-94 and 1994-1995 school years. At the impartial hearing, respondent relied upon the undated student progress report prepared by the Steven Gaynor School which demonstrated that the child had made progress during the 1994-95 school year in many, if not all, of the educational needs outlined in the December, 1992 IEP. Specifically, the child had progressed in spelling, writing, perceptual functioning and memory. In this appeal, I have also considered a progress report for the 1993-94 school year which was not submitted to the hearing officer, but which is annexed as an exhibit to respondent's answer. Although it was available at the time of the hearing, I have accepted the 1993-94 progress report because the record would be incomplete in its absence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 94-5). The 1993-94 progress report indicates that the child made progress in several areas during that school year.

Nonetheless, the documentation supplied by respondent is generally lacking in describing the specific teaching techniques employed by the private school with the child, and does not, as a whole, delineate a program of special education. No evidence was supplied which would establish that the child was grouped with children with similar abilities and needs. Importantly, there was no testimony by the child's teacher or any representative of the Steven Gaynor School to explain how the school specifically addressed the child's needs (cf. Application of a Child with a Disability, Appeal No. 95-8).

I note that the record indicates that the parties' representatives discussed some of the issues presented in this proceeding in an off-the-record discussion. However, a hearing officer's decision must be based solely upon the record of the proceeding (8 NYCRR 200.5 [c][11]). Although it is clear that the child has made progress during the time period of her placement at the Steven Gaynor School, the absence of evidence about the nature of the private school's educational program requires that I find that there is no basis in the record for the hearing officer's determination that the private school provided an educational program designed to meet the child's special education needs (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).

Additionally, petitioner has argued 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 well after the school year had ended. Both parties admit that neither Federal nor State statute or regulation explicitly imposes a time limitation on tuition reimbursement claims. However, they ask that I look to State law to find an analogous cause of action and apply the statute of limitations for that cause of action. I decline to do so. There is nothing, as a matter of law, which would preclude me from ordering the board of education to reimburse the parent for the cost of education 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]). I have recently held that the date on which a parent asked for an impartial hearing was not dispositive of the question of whether equitable considerations support a tuition claim for a prior school year (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).

Finally, petitioner asserts that respondent's claim should be barred because of the equitable doctrine of laches. I note that at the hearing in this proceeding, the representatives of the parties briefly discussed whether the form which respondent signed in June, 1993 was a waiver of the right to seek tuition reimbursement for the 1993-94 school year. However, the record affords no basis for making any such determination. Further, there is no basis in the record for determining actual harm, if any, to petitioner as a result of respondent's delay in pursuing her claim. Upon the record before me, I find there is no basis for determining whether equitable considerations support respondent's claim for reimbursement, or mandate a dismissal of respondent's claim.

As the record supplied for my consideration is substantially lacking in key elements, 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, as well as the equities involved in respondent's claim for tuition reimbursement for the 1993-94 and 1994-95 school years (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that within 10 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 these school years.