95-031

Petitioner appeals from the decision of an impartial hearing officer which denied his request for an order requiring respondent to reimburse him for the cost of the tuition which he paid for his son's attendance at the Steven Gaynor School during the 1993-94 school year. The appeal must be sustained in part.

Petitioner's child, who is ten years old, is now classified as learning disabled. However, in May, 1990, respondent's Committee on Special Education (CSE) recommended that petitioner's son be classified as speech impaired/emotionally disturbed. The CSE also recommended that the child be placed in a special education class, with individual and group speech/language therapy, in respondent's P.S. 3. Petitioner did not accept the CSE's recommendation, and reportedly informed the CSE that the child would be placed in a private school. He reportedly asked respondent to provide transportation for the child. The record does not reveal what, if any, educational services the child received during the 1990-91, 1991-92, or 1992-93 school years.

In February, 1993, respondent's CSE reviewed the results of the child's triennial evaluation, which had been performed in January, 1993. The child's cognitive skills were found to be in the average range, but his visual motor integration skills were significantly delayed. Projective testing reveals that the child was depressed, which was attributed to his reaction to his mother's illness. The evaluator reported the child did not exhibit any articulation difficulties, and had achieved standard scores within the average range in tests of his language, reading, writing, and mathematical skills. The CSE recommended that the child's classification be changed to learning disabled. There is no dispute about the boy's classification as learning disabled.

The CSE also recommended that the child be placed in respondent's modified instructional services - I (MIS-I) program, in a class with a child to adult ratio of 15:1, and that the child receive individual and group speech/language therapy, and individual and group counseling. Respondent has acknowledged that the CSE which met on February 24, 1993, was not validly constituted, because it did not include the required parent member or one of the child's teachers (cf. Section 4402 [1][b][1] of the Education Law). Consequently, the individualized education program (IEP) which the CSE prepared for the child was a nullity (Application of a Child With a Disability, Appeal No. 94-5; Application of a Child with a Disability, Appeal No. 95-8). Respondent has also admitted that it did not offer the child a specific placement for the 1993-94 school year, and that it did not do so for the 1994-95 school year.

On February 27, 1995, petitioner asked for an impartial hearing for the purpose of obtaining tuition reimbursement for both the 1993-94 and 1994-95 school years. A hearing was held on March 20, 1995. Petitioner did not appear, but was represented by his attorney at the hearing. Respondent was represented by the assistant chairperson of the CSE of Community School District No. 3. The assistant chairperson testified that respondent had failed to make a timely placement offer to the child for either the 1993-94 or 1994-95 school years. He also testified that, in the absence of a timely offer, respondent should have given petitioner a "Nickerson" letter, i.e., a letter informing petitioner that respondent would pay for the child's tuition at a private school which has been approved as a school for children with disabilities by the State Education Department (See Jose P. et al. v. Ambach et al, [79 C 270, U.S.D.C. E.D.N.Y., 1982]). The assistant chairperson acknowledged that petitioner had not received a "Nickerson" letter for the 1993-94 school year. The assistant chairperson of the CSE also acknowledged that the child's placement at the Steven Gaynor School during the 1993-94 school year was educationally appropriate for the child.

The child's teacher at the Steven Gaynor School for the 1993-94 and 1994-95 school years testified by telephone at the hearing in this proceeding. She testified that the child had delays in his receptive and expressive language, and had difficulty reading, especially comprehending what he read. The child's teacher further testified that the child functioned best in a structured setting, in which directions and questions were repeated for him and in which he was given individual attention. At the private school, the child was instructed by the teacher, who was assisted by an aide, in a group of nine children. The teacher opined that the child could not function in a regular education classroom because of difficulty with his language and ability to transition from one activity to another. The teacher's testimony, which was not challenged at the hearing, was consistent with a written progress report about the child during the first semester of the 1994-95 school year which was entered into evidence.

During a discussion about the timeliness of petitioner's tuition claim for the 1993-94 school year, the hearing officer attempted to ascertain when petitioner became aware of his right to obtain reimbursement for tuition at an unapproved, private school. It was acknowledged that petitioner could not have obtained tuition reimbursement for attendance at an unapproved private school when the 1993-94 school year began, under the prevailing decisional law at that time (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]). Nevertheless, the hearing officer's question could not be answered because petitioner was not present at the hearing. After listening to brief legal arguments by both sides about the timeliness of petitioner's tuition claim for the 1993-94 school year, the hearing officer closed the hearing.

The hearing officer rendered her decision in this proceeding on April 10, 1995. She ordered respondent to pay for the child's tuition at the Steven Gaynor School during the 1994-95 school year. However, she held that the petitioner's claim for tuition during the 1993-94 school year, while otherwise valid, was nonetheless barred because he had not requested reimbursement in a timely manner. The hearing officer noted that petitioner had waited until approximately 8 months after the 1993-94 school year had ended before seeking reimbursement by requesting that an impartial hearing be held. While acknowledging that there was no explicit statutory provision precluding petitioner's claim, the hearing officer noted that the Commissioner of Education has held on two occasions that tuition claims made after the end of the school years for which reimbursement was sought were untimely (Application of a Handicapped Child, 24 Ed. Dept. Rep. 454; Application of a Child with a Handicapping Condition, 28 id. 211), and held that it would be inequitable to award petitioner tuition reimbursement for the 1993-94 school year.

In this appeal, neither party challenges the hearing officer's decision with regard to respondent's obligation to pay for the child's tuition during the 1994-95 school year. There is no dispute that respondent failed to offer the child an appropriate placement during the 1993-94 school year, or that the Steven Gaynor School provided the child with an appropriate special education program during that school year. The sole issue which is before me in this appeal is whether the hearing officer erred by finding that petitioner's claim for tuition during the 1993-94 school year was untimely.

Both parties acknowledge that there is no explicit statute of limitations for asserting a tuition reimbursement claim under the Federal Individuals with Disabilities Education Act (20 USC 1400 et seq) and its State counterpart, Article 89 of the Education Law. Although both parties have referred to the decision in Matter of L. v. NYS Dept. of Education, 39 NY 2d 434 (1976), which held that parents were required to assert tuition claims under the former Section 232 of the Family Court Act within the school year for which reimbursement was sought, I have previously held that the decision in Matter of L. was inapposite because it was premised in part upon a regulation which did not apply to a board of education (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25). Similarly, I find that the decision in Adler v. Education Department of the State of New York, 760 F. 2d 454 (2d Cir., 1985), to which the parties have referred, is also inapplicable. In Adler, the issue was whether the four-month statute of limitations in New York for a proceeding to challenge a State-level review decision in State court applied to that type of proceeding if it were instituted in a Federal court. In holding that the State statute of limitations should also apply to an action commenced in Federal court, the court in Adler did not address the question of whether a tuition reimbursement claim must be brought before the end of the school year for which such reimbursement is sought. One court has held that New York's three-year statue of limitations for civil rights actions was applicable to a parent's claim of procedural violations of the Federal Individual with Disabilities Education Act (Mason v. Schenectady City School District, 879 F. Supp. 215 [N.D.N.Y. 1993]). However, I have previously held that it is not necessary to ascertain what is the most analogous cause of action for the purpose of borrowing an appropriate statute of limitations in cases of this nature (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-26.

Both parties have also referred in their pleadings to the decision of the United States Court of Appeals for the Third Circuit in Bernardsville Board of Education v. J.H., F. 3d (1994). In that case, a child was removed from his local public school and placed by his parents in a private school in September, 1987. The child remained in the private school until May, 1990. The child's parents initially sought an impartial hearing in September, 1989, and reiterated their request two months later. The parties in Bernardsville thereafter negotiated about various matters, but a hearing was ultimately held in February, 1991. The Court in Bernardsville held that the parents, notwithstanding their good faith in placing the child in a private school after the school district produced a procedurally and substantively flawed IEP for the child, were precluded from obtaining tuition reimbursement for the 1987-88 and 1988-89 school years. It reasoned that as a matter of procedural law, of which the child's parents were fully apprised, the right of review includes a corresponding parental duty to unequivocally place in issue the appropriateness of the child's IEP. The Court found that the child's parents had not done so, until they requested a hearing in September, 1989.

The New York State Court of Appeals has held that under the Federal and State statutes relating to the education of children with disabilities, parents may obtain retroactive tuition reimbursement in appropriate cases, and that such relief could be awarded retroactively to the date of a child's placement in a private school, rather than to the date when the child's parents requested that an impartial hearing be held (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]). The Court of Appeals noted that reimbursement rights are affected by equitable considerations. It indicated that reimbursement could reasonably be limited to the date when a parent requested that an impartial hearing be held, if that was when the board of education initially learned of the parents' dissatisfaction with the child's IEP. However, the court found that the Board of Education of the Northeast Central School District was in fact on notice of parental dissatisfaction with the IEP, before the parents requested a hearing.

In School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), the United States Supreme Court held that a board of education may be required to pay for educational services obtained for a child by a 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. I have previously held that the issue of the timeliness of a parental request for tuition reimbursement must be considered as part of the third Burlington criterion, i.e., whether equitable considerations support the parents' claim for reimbursement (Application of the Board of Education of the City School District of the City of New York, supra; Application of the Board of Education of the City School District of the City of New York, supra. In both of those appeals, I found that the hearing record was woefully inadequate to determine the equitable factors supporting the parental claim for tuition reimbursement. I must also do so in this appeal.

There are a number of unresolved questions which must be addressed when this matter is remanded for a hearing. At a minimum, the hearing must address the following questions. First, what, if any, notice did the CSE provide to petitioner about his due process rights. The second question is when did petitioner become aware, or should have become aware, of his right to obtain tuition reimbursement for placement of a child in an unapproved private school. The third question is when did the CSE become aware,or should have been aware, of petitioner's dissatisfaction with the CSE's inaction with respect to preparing an IEP for the 1993-94 school year. The fourth question to be considered is whether petitioner cooperated with the CSE during the time in question. Although I do not agree with respondent's blanket assertion that it would be unfair to it to allow parents to obtain tuition reimbursement after the end of the school year, respondent should have an opportunity to demonstrate why the equities do not favor an award of tuition reimbursement. I do agree with respondent's assertion that petitioner should produce proof of the amount of tuition which he paid for the 1993-94 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer's decision which denied petitioner's request for tuition reimbursement for the 1993-94 school year is annulled; and

IT IS FURTHER ORDERED that within ten days after the date of this decision respondent shall schedule a hearing to resolve the issue of whether equitable considerations support petitioner's claim for tuition reimbursement for the 1993-94 school year.