95-036

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 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 a timely manner. This appeal must be sustained in part.

The record reveals that on May 3, 1993, the child was classified as learning disabled by the committee on special education (CSE) of Community School District No. 3. Her classification is not in dispute. The CSE also recommended that the child be placed in a special education class in respondent's modified instructional services - IV program with the related services of speech and language therapy, occupational therapy, and counseling. 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 the parents in 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 the children placed in the school.

An impartial hearing was held on March 23, 1995, at petitioner's request, 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 of the CSE of Community School District 3. The only testimony at the hearing was provided by the educational coordinator at the West End Day School. Additionally, two written documents were admitted into evidence. Respondent submitted an individualized education program (IEP) for the child, dated May 3, 1993. Respondent also submitted a notice of recommendation, dated June 9, 1993, which indicated that transportation and related services would be provided to the child at the West End School. One of the child's parents reportedly signed the notice of recommendation on June 11, 1993.

In the decision dated May 4, 1995, the impartial hearing officer ordered respondent to reimburse petitioner's tuition costs 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 costs for the 1993-94 school year, on the ground that the petitioner had not made a timely request for tuition reimbursement. Specifically, the hearing officer found that the petitioner had waited until March 6, 1995 to seek tuition reimbursement. The 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 attained 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 parents' claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 US 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 95-37). 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. 2d, 563 [2nd 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, US 114 S. Ct. 361 [1993]).

The impartial hearing officer found, and respondent concedes, 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, 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.). I note that 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, was premised upon the testimony of the educational coordinator for the West End Day School. At the hearing, the educational coordinator, who testified by telephone, asserted that the child made progress, both academically and socially, while in the West End School. She also testified that the child was appropriately grouped in a class of eight children, but she received instruction in both math and reading in groups of four. The testimony of the education coordinator was predominately about the 1994-95 school year. However, she testified that the format of instruction, class size, and functional grouping have been the same during the 1993-94 and 1994-95 school years. The child has also remained with the same head teacher. I note that although respondent contends that petitioner failed to demonstrate the appropriateness of the services received by the child during the 1993-94 school year, respondent has neither appealed nor cross-appealed 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. 95-30).

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, respondent asserts that petitioner's claim is barred by the equitable doctrine of laches. It further asserts that petitioner's delay in asserting his claim resulted in prejudice to the board of education. However, it offered no evidence to support that assertion at the hearing. Accordingly, the issue of the timeliness of the parental request for tuition reimbursement must be considered in determining whether equitable considerations support the parents' claim for reimbursement (Application of a Child with a Disability, 95-37; Application of a Child with a Disability, Appeal No. 95-32). In both of those appeals, the State Review Officer found that the hearing record was inadequate to determine whether equitable factors supported the parents' claim for tuition reimbursement. I am compelled by the similarly limited record in this proceeding to make the same finding, and remand this matter for a 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 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. Although the notice of recommendation which child's parent signed included a brief reference to the right to an impartial hearing, that notice was given prior to the time which petitioner actually had a right to seek reimbursement for tuition at an unapproved private school. 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 about 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., ____ F3d ____ [3rd 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 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 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 10 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.