95-034

Petitioner appeals from the decision of the impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his nine year old daughter's tuition at the private school in which petitioner placed her for the 1993-94 school year. The hearing officer denied petitioner's request for reimbursement solely on the basis of petitioner's alleged failure to request reimbursement in timely a manner. This appeal must be sustained in part.

The record reveals that on February 22, 1993, the child was diagnosed by a psychiatrist as having an overanxious disorder of childhood. On June 30, 1993, the child was classified as emotionally disturbed by the committee on special education (CSE) of Community School District #3. Her classification is not in dispute. The CSE also recommended that the child be placed in a special education class in respondent's specialized instructional environment - VII B (SIE-VII B) program on a twelve-month basis, with individual counseling twice per week. However, respondent failed to offer the child a specific placement for either the 1993-94 or 1994-95 school year. The child was placed by her parent at the West End Day School, which she attended during the 1993-94 and 1994-95 school years. The West End Day School, which is 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 purposes of State reimbursement to school districts for the cost of evaluating the children placed in the school.

Petitioner reportedly did not request an impartial hearing to review the CSE's recommendations for the 1993-94 and 1994-95 school years, until February, 1995. An impartial hearing was held on March 23, 1995, for the purpose of seeking reimbursement for tuition costs resulting from his unilateral placement of the child at the West End Day School for the 1993-94 and 1994-95 school years. Petitioner was represented at the hearing by his attorney. However, petitioner did not attend the hearing. Respondent was represented at the hearing by the assistant chairperson for the CSE of Community School District 3. The only testimony at the hearing was provided by the educational coordinator of the West End Day School. Additionally, three written documents were admitted into evidence. Jointly submitted were an individualized education program (IEP) for the child dated June 30, 1993, a psychiatric evaluation performed by the West End Day School, dated February 22, 1993, and an educational evaluation also prepared by the West End Day School, dated March 15, 1993.

In a decision dated April 20, 1995, the impartial hearing officer ordered respondent to reimburse petitioner's tuition cost at the West End Day School for the 1994-95 school year. However, the impartial hearing officer denied the petitioner's request for reimbursement for tuition for the 1993-94 school year on the ground that petitioner had not made a timely request for tuition reimbursement. Specifically, the hearing officer found that petitioner had waited until February 1995 to seek reimbursement. Petitioner thereafter commenced this appeal seeking reversal of that portion of the hearing officer's decision that denied petitioner reimbursement of tuition costs for the 1993-94 school year.

A board of education may be required to reimburse parents for the costs of a child's educational services incurred by the parents if the services offered by the board of education are inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parent's claim for reimbursement (School Committee for the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hillerv. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y. 1987]; Application of a Child with a Disability, Appeal No. 95-37). Prior to November 9, 1993, petitioner was precluded from seeking reimbursement because the West End Day School had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2nd 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2nd 1058 [3rd Dept. 1978]). On November 9, 1993, the U. S. Supreme Court held that a parent can obtain reimbursement for tuition in an unapproved private school, if the private school provided the child with an appropriate education (Florence County School District v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

The impartial hearing officer found, and respondent concedes, that respondent has not met its burden of demonstrating that it offered the child an appropriate placement for the 1993-94 school year. As a result, petitioner prevailed with respect to the first Burlington criterion, i.e., whether the services offered by the board of education in the 1993-94 school year were appropriate for the child.

The impartial hearing officer also found that the petitioner 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 Act (20 USC 1400 et seq). The impartial hearing officer's findings that the services received by the child at the West End Day School were appropriate during the 1993-94 school year, were premised upon the testimony of the educational coordinator for the West End Day School. At the hearing, the educational coordinator testified that the child has emotional needs which require a great deal of structure. She also testified that the child was appropriately grouped in a class of seven children, where she received reading instruction in a group of five children and math instruction in a group of four. Although the testimony of the education coordinator was largely about the 1994-95 school year, she testified that the child's educational program and functional grouping had been the same during the 1993-94 and 1994-95 school years. The child had also remained with the same head teacher. The educational coordinator testified that the child had made progress in math, reading, and social functioning. Although respondent contends that petitioner failed to demonstrate the appropriateness of the services received by the child during the 1993-94 school year, I note that respondent has neither appealed nor cross-appealed from the hearing officer's decision. As a result, I am precluded from disturbing the hearing officer's finding with respect to the second Burlington criterion (Hiller v. Brunswick CSD, supra; Application of a Child with a Disability, Appeal No. 95-37).

With respect to the final Burlington criterion, the hearing officer correctly found that there was no express statute of limitations prescribing the time within which the petitioner was required to assert his claim (Application of a Child with a Disability, Appeal No. 95-37). However, the hearing officer found that petitioner's claim was barred by the equitable doctrine of laches, because petitioner's delay in asserting this claim had reportedly resulted in prejudice to the board of education. However, respondent offered no evidence at the hearing to support its assertion of prejudice by petitioner's delay.

Petitioner asserts that the hearing officer erred in considering whether petitioner's claim was barred by laches because respondent's representative never raised the issue at the hearing. I disagree with petitioner's assertion. The issue of timeliness of the parental request for tuition reimbursement must be considered in determining whether equitable considerations support the parent's claim for reimbursement (Application of a Child with a Disability, Appeal No. 95-37; Application of a Child with a Disability, Appeal No. 95-34). As was the case in both of those appeals, the hearing record in this matter is also inadequate to determine whether equitable factors supported the parent's claim for tuition reimbursement. Therefore, I am compelled by the similarly limited record in this proceeding to remand this matter for further hearing. As outlined in Application of a Child with a Disability, Appeal No. 95-37, there are a number of questions which, at a minimum must be addressed by an impartial hearing officer to provide an adequate basis for reaching a decision with regard to the third Burlington criterion.

First, it must be fully determined whether the CSE provided notice to the petitioner about his due process rights, and the nature of that notice. Second, when did the petitioner become aware, or when ought he have become aware, of his right to obtain reimbursement for the placement of his child in an unapproved private school? He asserts in his petition that he did not become aware of his right to seek tuition reimbursement until January, 1995. However, respondent should have the opportunity to examine petitioner under oath at a hearing (Application of a Child with a Disability, Appeal No. 95-40). Third, when did the CSE become aware, or when ought it have become aware, of petitioner's dissatisfaction with the CSE's inaction with respect to offering an appropriate placement for the 1993-94 school year (Bernardsville Board of Education v. J. H. et al., F. 3d , [3d Cir., 1994]). Fourth, did petitioner cooperate with the CSE during the time in question? A determination of the equitable considerations in this matter requires an analysis of facts not in evidence in the record before me. As a result, I believe that both parties should have an opportunity to establish a basis in the record for their respective positions concerning the equities of awarding tuition reimbursement to petitioner 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 claim for tuition reimbursement for the 1993-94 school year is annulled;

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.