95-040

       Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request that she be reimbursed for the cost of her child's tuition at a private school during the 1993-94 school year on the ground that petitioner failed to act with due diligence in challenging the recommendation by respondent's committee on special education (CSE) for the child's placement for such school year. The appeal must be sustained in part.

        Petitioner's child who is 14 years old, has been classified as learning disabled. There is very little information in the record about the nature of the child's disability, or her educational history. In an evaluation conducted by the private school prior to the child's entrance into the school in September, 1993, the child reportedly achieved verbal, performance, and full scale IQ scores which were in the average range. She reportedly had deficits in her expressive and receptive language skills, her reading and listening comprehension skills, and her ability to maintain attention. The child's classification as learning disabled has not been challenged in this proceeding, and is therefore, beyond review (Hiller v. Bd. of Ed. of Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]).

        The child was reportedly enrolled by petitioner in the Winston Preparatory School for the 1993-94 school year, and she remained at the school for the 1994-95 school year. The tuition at the private school, which is reportedly about $18,500 per year, has allegedly been paid by petitioner. However, petitioner has not submitted proof of her payment of tuition. At the hearing in this proceeding, a representative of the private school, who testified by telephone, described the Winston Preparatory School as a school for children with learning disabilities and attention deficits. The Winston Preparatory School has not been approved by the State Education Department as a school for children with disabilities, for the purpose of reimbursing school districts for the tuition of children placed there. When petitioner placed the child in the Winston Preparatory School in September, 1993, she could not have obtained tuition reimbursement because of the school's unapproved status (see Tucker v. Bay Shore UFSD, 873 F. 2nd 563 [2d Cir., 1989]). However, the ruling in Tucker was, in effect, overruled on November 9, 1993, when the United States Supreme Court held that a parent could obtain reimbursement for tuition at an unapproved 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 record does not reveal whether respondent had offered an educational program and placement to petitioner's child for the 1993-94 school year, before petitioner enrolled the child in the Winston Preparatory School. At the hearing in this proceeding, a representative of the CSE testified that on December 1, 1993, the CSE recommended that the child be classified as learning disabled and be placed in respondent's modified instruction services-I (MIS-I) program. It also recommended that the child receive individual speech/language therapy twice per week, individual counseling once per week, and individual occupational therapy once per week. Petitioner was not present at the hearing, but was represented by her attorney, who asserted that neither petitioner nor the child's teacher at the Winston Preparatory School had been invited to attend the CSE meeting. The CSE representative acknowledged that respondent's record did not disclose whether petitioner and the teacher were invited to the CSE meeting, or attended the meeting.

        Petitioner was notified of the CSE's recommendation by a letter which was dated December 1, 1993. The written notice indicated that a placement existed for the child in J.H.S. 131. The CSE representative testified at the hearing that J.H.S. 131 is in Community School District 8, where petitioner resides. The written notice which petitioner received included a provision for petitioner to indicate her agreement with the CSE's recommendation by signing her name after the statement: "I consent to the provision of services as recommended". On December 1, 1993, petitioner signed the written notice. However the words "Refusing placement but requesting services and tran [transportation] @ Winston Prep." were added to the notice. The CSE representative asserted that it was respondent's policy not to provide transportation to a child with a disability who was placed in a private school by the child's parent, unless the parent explicitly refused an offer of a public school placement.¹  The CSE representative acknowledged that petitioner had probably signed the notice, with the indication that she had refused the placement at J.H.S. 131, as a means of obtaining transportation for her child to attend the Winston Preparatory. Nevertheless, the representative argued that petitioner's claim for tuition reimbursement should be denied on equitable grounds because she had refused respondent's offer of a placement for the 1993-94 school year. With regard to the 1994-95 school year, the CSE representative conceded that respondent had failed to offer the child an appropriate placement.

        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 he board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations supported the parents' claim. The board of education bears the burden of proof with respect to the appropriateness of the services which it offered, and the parents bear the burden of proving the appropriateness of the services which they obtained for their child (Application of a Child with a Disability, Appeal No. 94-29; Application of Bd. of Ed. Monroe-Woodbury CSD, Appeal No. 94-39).

        In her decision, which was dated May 18, 1995, the hearing officer found that petitioner was entitled to receive tuition reimbursement for the child's attendance at the Winston Preparatory School during the 1994-95 school year, because the CSE had failed to conduct an annual review and make a placement recommendation, and because petitioner had acted with "due diligence" in challenging the CSE's inaction. With regard to the 1993-94 school year, the hearing officer found that respondent had failed to prove that the CSE had invited petitioner to attend its meeting on December 1, 1993, or that it had obtained a physical examination of the child. She further found that the CSE did not include an individual who was qualified to teach or supervise the teaching of special education, as required by Federal and State regulations (34 CFR 300.344 [a][1]; 8 NYCRR 200.3 [c][3][ii]). The hearing officer also found that the instructional program of the Winston Preparatory School was appropriate for the child. However, she denied petitioner's request for tuition reimbursement on the ground that petitioner had unreasonably delayed in asserting her claim. The hearing officer found that the notice of recommendation which petitioner received on December 1, 1993 informed petitioner of her right to seek review of the CSE's recommendation. Although there is no evidence in the record of the date when petitioner requested the hearing which was held in this proceeding, the hearing officer found that petitioner had not requested the hearing until 15 months after she had received the notice of recommendation, and that petitioner had not offered any explanation for her delay in requesting a hearing.

        Neither party has challenged the hearing officer's decision that respondent should reimburse petitioner for her expenditures for the child's tuition during the 1994-95 school year. Petitioner asserts that the sole issue raised in her appeal is whether the hearing officer erred by finding that petitioner's claim for tuition reimbursement for the 1993-94 school year was untimely. Respondent asserts the appropriateness of the Winston Preparatory School's educational program for petitioner's child during the 1993-94 school year was not established by petitioner at the hearing, and urges that petitioner's claim be denied for that reason, as well as for untimeliness. I find that respondent's assertion is without merit. Although I do not necessarily agree with petitioner's assertion that the record demonstrates that the Winston Preparatory School offered her child an appropriate program during the 1993-94 school year (the second Burlington criterion), I do not reach that issue because I am precluded from doing so by respondent's failure to appeal or cross-appeal from the hearing officer's decision that the private school offered an appropriate program (Application of a Child with a Disability, Appeal No. 95-30; Application of a Child with a Disability, Appeal No. 95-32).

        Both parties admit that the Federal and State education statutes under which petitioner claims tuition reimbursement do not have an explicit statute of limitations. Although respondent has alluded to the one-year statute of limitations upon monetary claims against a school district which is imposed by Section 3813 of the Education Law, I have previously declined respondent's invitation to "borrow" that statute of limitations (Application of a Child with a Disability, Appeal No. 95-30). On a number of occasions, I and the other two State Review Officers have held that the timeliness of a parent's claim for tuition reimbursement is a factor to be considered in determining whether equitable considerations support the claim for tuition (Application of the Bd. of Ed. of the City School District of the City of New York, Appeal No. 95-25; Application of the Bd. of Ed. of the City School District of the City of New York, Appeal No. 95-26; Application of a Child with a Disability, Appeal No. 95-28; Application of a Child with a Disability, Appeal No. 95-30; Application of a Child with a Disability, Appeal No. 95-3; Application of a Child with a Disability, Appeal No. 95-32). In this instance, respondent argues that petitioner's claim should be barred by the equitable doctrine of laches because she was notified of the right to challenge the CSE's recommendation for the 1993-94 school year and she failed to assert her right in a timely fashion, to respondent's detriment.

        I find that the issue of laches cannot be determined on the profoundly inadequate record which the parties have presented to me. In addition to providing virtually no information about the child or her educational experiences, they have failed to present evidence which is relevant to determining the timeliness of petitioner's request for reimbursement. Notwithstanding the hearing officer's finding that petitioner waited 15 months after receiving the notice of the CSE's recommendation before she requested a hearing, there is no evidence in the record before me to determine the date on which petitioner asked for a hearing or when she became aware of her rights to seek reimbursement. Although the petitioner asserts that she was unaware of her right to obtain tuition reimbursement at an unapproved school until shortly before she requested a hearing, that fact has not been established in the record. It should have been established at the hearing through testimony and cross-examination. At the hearing, petitioner's attorney and the CSE representative speculated about petitioner's motives in allegedly refusing the placement recommended by the CSE on December, 1993. Respondent bears the burden of proving that petitioner knowingly waived her right to challenge the CSE's recommendation, but the record before me affords no basis for making a finding about petitioner's alleged waiver. Respondent assets that it has been prejudiced by petitioner's delay, but offered no proof of that at the hearing. In the absence of an adequate record, including sufficient information about the charges petitioner incurred for the child's tuition, I am constrained to remand this matter for a hearing (Application of a Child with a Disability, Appeal No. 95-30).

        At the hearing, evidence must be adduced to determine when petitioner became aware, or should have become aware, of her right to obtain tuition reimbursement, and when the CSE became aware, or should have been aware, of petitioner's dissatisfaction with the CSE's recommendation for the 1993-94 school year. Finally, the hearing officer must ascertain whether petitioner has cooperated with respondent during the time in question.

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.