95-032

Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for an order requiring respondent to reimburse them for the cost of their daughter's tuition at the private school in which petitioners placed her for the 1993-94 school year. The hearing officer denied petitioners' request for reimbursement, solely on the basis of petitioners' failure to request reimbursement in a timely manner. The appeal must be sustained in part.

On March 27, 1985, an impartial hearing was held at petitioners' request for the purpose of securing reimbursement for tuition costs resulting from their unilateral placement of the child at the Steven Gaynor School for the 1993-94 and 1994-95 school years. Petitioners were represented at the hearing by their attorney. However, neither petitioners nor the child were present. Respondent was represented at the hearing by the chairperson designee of the Committee on Special Education (CSE) Community School District 2. The only testimony at the hearing was provided by the Assistant Director of the Steven Gaynor School, Judith Schneider, who testified by telephone. Additionally, petitioners and respondent stipulated into evidence three written documents. The first document was an individualized education program (IEP) report, dated September 17, 1992, to which were annexed various evaluations of the child. The second exhibit was a progress report prepared by the child's teacher, outlining her progress during the 1994-95 school year. The final evidentiary document was a class profile which surveyed the general development and social skills of the child and her classmates during the 1994-95 placement.

The child attended kindergarten at respondent's P.S. 41 during the 1991-92 school year. Testimony at the hearing demonstrated that on September 17, 1992, the child was classified as learning disabled and a recommendation was made by the CSE that she be placed in a self-contained special education class in respondent's Modified Instructional Services (MIS I) program, with speech/language services twice per week. The record reveals that the child had delays in her expressive and receptive language, poor short-term memory, and deficits in her visual motor integration skills.

The child is now ten years old. Her classification is not disputed in this proceeding. The child was placed by her parents at the Steven Gaynor School for the 1992-93 school year. The child continued to attend the Steven Gaynor School during the 1993-94 and 1994-95 school years. Respondent concedes that it did not offer a placement for the child for either the 1993-94 or 1994-95 school years.

The Steven Gaynor School, located in New York City, is a private school for children with disabilities. It has not been approved by the New York State Education Department as a school for educating children with disabilities, for the purpose of State reimbursement of the school district's replacement cost. However, it is conceded that tuition costs at the Steven Gaynor School are within the range of costs charged by private schools which have been approved for that purpose.

In a decision dated April 19, 1995, the impartial hearing officer ordered respondent to reimburse petitioners for tuition costs for the 1994-95 school year. However, the impartial hearing officer denied petitioners' request for reimbursement of tuition costs for the 1993-94 school year, on the ground that petitioner had not made a timely request for tuition reimbursement. The hearing officer found that petitioners had waited until February, 1995 to assert their claim for tuition reimbursement. Petitioners thereafter commenced this appeal seeking a reversal of that portion of the hearing officer's decision which denied petitioners reimbursement of the tuition cost for the 1993-94 school year.

A board of education may be required to reimburse parents for the cost of the child's educational services attained by the 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 for reimbursement (School Committee of the Town of Burlington, v. Dept. of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 95-30). Prior to November 9, 1993, petitioners were precluded from seeking reimbursement because the private school selected by the parents had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bayshore USFD, 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, _____ US ____, 114 S. Court 361).

The impartial hearing officer found that respondent did not meet its burden of demonstrating that it had offered the child an appropriate program or placement for the 1993-94 school year. As a result, petitioners prevailed with respect to the first Burlington criterion, i.e., whether the services offered by the Board of Education were appropriate for the child. The impartial hearing officer also found that petitioners had prevailed with respect to the second Burlington criterion, i.e., whether the services received by the child at the private school were proper under the Individuals with Disabilities Education Act (20 USC 1400 et seq.).

In its answer to the petition, respondent has attempted to challenge the impartial hearing officer's determination with respect to the appropriateness of the child's placement during the 1993-94 school year. Specifically, respondent points to the lack of evidence regarding the child's development, as well as the appropriateness of the child's program at the Steven Gaynor School during the 1993-94 school year. As a result respondent claims that the record does not support the finding that the educational services received by the child during the 1993-94 school year were appropriate. Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties, and must be appealed to the state review officer (20 USC 1415 [c]; Section 4404 [1] of the Education Law). While I do not necessarily agree that the record is sufficient to support the hearing officer's findings with respect to the adequacy of educational services provided to the child during the 1993-94 school year, I am precluded from reaching that issue by respondent's failure to appeal or cross appeal from the hearing officer's decision (Hiller v. Brunswick CSD, supra; Application of a Child with a Disability, Appeal No. 95-30). Accordingly, this appeal must be limited solely to the hearing officer's decision concerning the third criterion under the Burlington decision, i.e., whether equitable considerations support petitioners' claim for tuition reimbursement for the 1993-94 school year.

The impartial hearing officer found that the child was placed at the Steven Gaynor School prior to September, 1993, and speculated that: "it is most likely that they (petitioners) were required to sign a contract for the entire 1993-94 school year and to remit at least partial payment as a deposit." Noting that the Carter decision had been rendered in November, 1993, the hearing officer found that the petitioners did not seek tuition reimbursement at any time during the 1993-94 school year, nor did they seek tuition reimbursement immediately following the school year. Instead, petitioners waited until February, 1995 to request an impartial hearing to seek reimbursement for both the 1993-94 and 1994-95 school years. The hearing officer found that the petitioners' delay of approximately eight months beyond the end of the school year was untimely, and constituted grounds for the denial of the request for reimbursement.

While acknowledging that there was no explicit statute of limitations with regard to petitioners' claim, the hearing officer found that Section 3813 of Education Law offered some guidance. However, I find that the hearing officer's reliance on Section 3813 of the Education Law is misplaced. That section, which imposes a one-year statute of limitations, is specifically directed towards actions or special proceedings, i.e. litigation in a court of law. The instant matter is neither an action nor special proceeding as those terms are used in the statute. As such, I decline to borrow the one-year statute of limitation imposed by Section 3813 of the Education Law (Application of a Child with a Disability, Appeal No. 95-30).

The impartial hearing officer also relied upon the decision in matter of L v. NYS Dept. of Ed., 39 NY 2d 434 (1976), which held that parents are required to submit tuition claims under the former section 232 of the Family Court Act within the school year for which reimbursement is sought. However, it has been previously held that the decision in the Matter of L was inapposite because it was premised, in part, upon a regulation which did not apply to Board of Education (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).

The hearing officer also relied upon the decisions of the Commissioner of Education in Matter of a Handicapped Child, 24 Ed. Dept. Rep. 454, Application of a Child with a Handicapping Condition, 28 id. 211. In the first decision, the Commissioner held that a parent's claim for tuition reimbursement which was made approximately three months after the end of the school year was barred by the equitable doctrine of laches. However, the decision does not indicate the factors which were considered by the Commissioner reaching his conclusion. I must also note that, unlike the present appeal, the law did not change during the school year, with regard to eligibility for tuition reimbursement (the Carter decision). The second Commissioner's decision was premised upon the decision in Adler by Adler v. Education Department of New York, 760 F.2d 454 (2d Cir. 1985), which involved whether the four-month statute of limitations to challenge a state level review decision in State Court applied to a similar challenge in Federal Court. That issue was not dispositive of the question presented in this appeal, and I find the Commissioner's decision and the Adler decision to be inapposite. Additionally, I must note that one court has held that New York's three year statute of limitation for civil rights actions was applicable to a parent's claim for procedural violation of the Federal Individuals with Disabilities Education Act (Mason v. Schenectady City School District, 879 F. Supp. 215 [N.D.N.Y., 1993]). Nonetheless, it has been previously held that it is not necessary to ascertain what is the most analogous cause of action for purposes of filing an appropriate statue of limitations in cases of this nature (Application of a Child with a Disability, Appeal No. 95-30; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-26), and I decline to do so in this appeal.

The issue of the timing of a parental request for tuition reimbursement must be considered as part of the Burlington criterion, i.e., what equitable considerations support the parents' claim for reimbursement (Application of a Child with a Disability, supra; Application of the Board of Education of the City School District of the City of New York, supra). In those appeals it was found that the hearing record was inadequate to determine if equitable factors supported the parental claim for tuition reimbursement. I'm compelled by the limited record in this appeal to make a similar finding, and remand the matter for a hearing. As outlined in Application of a Child with a Disability, supra, a number of questions must be addressed by an impartial hearing officer in consideration of the Burlington criterion. First, it must be determined whether the CSE provided any notice to petitioner about the due process rights, and the nature of that notice. Secondly, when should petitioners have become aware of their right to obtain reimbursement for the placement of the child in an approved private school? Thirdly, when did the CSE become, or should have become aware, of petitioners' dissatisfaction with the CSE's inaction with respect to preparing an IEP and offering appropriate placement for the 1993-94 school year? Fourthly, had petitioner cooperated with the CSE during the time in question? A determination about the equitable consideration in this matter requires an analysis of facts not in evidence in the record before me. I believe that both parties should have an opportunity to establish a basis in the record for their respective positions concerning equities of awarding tuition reimbursements to petitioner for the 1993-94 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED:

IT IS ORDERED that that portion of the hearing officer's decision which denied petitioners' 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 petitioners' claim for tuition reimbursement for the 1993-94 school year.