95-037

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 son's tuition at the private school in which petitioner placed him 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. The appeal must be sustained in part.

An impartial hearing was held on March 20, 1995, at petitioner's request, for the purpose of securing reimbursement for tuition costs resulting from his unilateral placement of the child at the Steven Gaynor School for the 1993-94 and 1994-95 school years. Petitioner was represented at the hearing by his attorney. However, neither petitioner nor the child were present. Respondent was represented at the hearing by the Assistant Chairperson of the Committee on Special Education (CSE) of Community School District 3. The only testimony at the hearing was provided by the child's teacher, Barbara Priest, who testified by telephone. Additionally, two written documents were admitted into evidence without objection. Petitioner submitted a school progress report, prepared by the child's teacher, outlining his progress during the 1994-95 school year. Respondent submitted an individualized education program (IEP) report, dated October 1, 1992, which included various evaluations of the child.

The record reveals that on October 1, 1992, the child was classified as learning disabled and a recommendation was made by the CSE that he be placed in a self-contained special education class in respondent's modified instructional services (MIS-I) program, with the related services of speech/language therapy, occupational therapy and physical therapy. Although I note that the CSE did not appear to have the required members present when it made its recommendation, the validity of that recommendation is not at issue in this proceeding. The child has delays in his gross motor, grapho-motor, and visual motor skills. The child's classification is not disputed at this proceeding. The child was placed by the parents at the Steven Gaynor School, and was in attendance at the school during the 1993-94 and 1994-95 school years. Respondent concedes it did not offer a placement for the child for the 1993-94 and 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 to school districts for the cost of the children placed in the school. 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 30, 1995, the impartial hearing officer ordered respondent to reimburse petitioner for tuition costs at the Steven Gaynor School for the 1994-95 school year. However, the impartial hearing officer denied petitioner's 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 petitioner had waited until after the 1993-94 school year had ended to serve his claim for tuition reimbursement. Petitioner thereafter commenced this appeal seeking reversal of that portion of the hearing officer's decision that denied petitioner reimbursement of the tuition costs 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. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hillerv. Brunswick CSD 674 F. Supp.73 [ND NY, 1987], Application of a Child with Disability, Appeal No. 95-32). Prior to November 9, 1993, petitioner was precluded from seeking reimbursement because the Steven Gaynor School 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 in 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]).

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 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. The impartial hearing officer also found that petitioner 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).

The impartial hearing officer's finding that the services received by the child at the Gaynor School were appropriate during the 1993-94 school year was the result of an agreement between the parties at the hearing that a showing that the services received by the child at the Steven Gaynor school during the 1994-95 school year were proper would suffice to demonstrate that the services which he received during the 1993-94 school year were proper as well. At the hearing, the child's teacher testified that the child had made progress academically and socially. She further testified that the child was appropriately grouped and receiving instruction both individually and as part of a class of eight children. A progress report prepared by the child's teacher supported her testimony. As a result of the hearing officer's determination, petitioner has also prevailed on the second Burlington criterion, i.e. that the services obtained by the parent were appropriate.

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 petitioner was required to assert his claim (Application of a Child with a Disability, supra). Accordingly, the issue of the timeliness of a 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 supra; Application of a Child with a Disability, Appeal No. 95-30). In both of those appeals, the State Review Officer found that the hearing record was inadequate to determine if equitable factors supported the parents' claim for tuition reimbursement. I am compelled by the limited record in this proceeding to make a similar finding, and remand the matter for a hearing. As outlined in Application of a Child with a Disability, Appeal No. 95-30, 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 determined whether the CSE provided any notice to the petitioner about his due process rights, and the nature of that notice. Secondly, when should petitioner have become aware of his right to obtain reimbursement for the placement of the child in an unapproved private school? Thirdly, when did the CSE become, or should have become, aware of petitioner's dissatisfaction about the CSE's inaction with respect to preparing an IEP and offering an appropriate placement for the 1993-94 school year? Fourthly, did petitioner cooperate with the CSE during the time in question? A determination of the equitable considerations in this matter requires analysis of facts not in evidence in the record before me. Specifically, in addition to the considerations outlined above, the record before me is unclear as to the actual date when petitioner requested reimbursement for the 1993-94 school year tuition. 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 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 request 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.