95-077

         Petitioner appeals from the decision of an impartial hearing officer which held that petitioner was not entitled to be reimbursed by respondent for her expenditures for her child's tuition at the Stephen Gaynor School¹ for most of the 1993-94, and all of the 1994-95, school years. The appeal must be sustained in part.

        Petitioner's son, who is 12 years old, has been classified by respondent's committee on special education (CSE) as emotionally disturbed. The boy's classification is not disputed in this proceeding. The child reportedly attended a special education preschool program, prior to being referred by petitioner to the CSE for classification and placement for the 1991-92 school year. He was evaluated by the CSE, early in 1991. In June, 1991, petitioner was notified that the CSE had recommended that the child be classified as emotionally disturbed, and that he be enrolled in a modified instructional services-IV (MIS-IV) special education class, with speech/language therapy and counseling, in respondent's P.S. 9.

        The notice of the CSE's recommendation which petitioner received indicated that she should sign and return the notice, if she agreed with the CSE's recommendation. The notice also indicated that petitioner could arrange to discuss the matter further with the CSE, and that:

" If you do not agree with the recommendation, you have the right to request an Impartial Hearing by writing to the Board of Education, Impartial Hearing Office, Room 118, 110 Livingston Street, Brooklyn, NY 11201. For a full description of your right to appeal, please refer to the booklet, Special Education: A Guide for Parents. If you do not have a booklet, you can get one from us." (Exhibit 5)

        In a social history of the child, which was dated January 18, 1991, one of respondent's school social workers indicated that he had explained "due process and parent rights" to petitioner, and that he had given petitioner a copy of the booklet which was referred to in the notice of the CSE's recommendation. On June 19, 1991, petitioner signed the notice of recommendation, with the annotation: "Refused." In a separate letter, also dated June 17, 1991, petitioner informed respondent's placement officer that:

" ... at this time, I feel that a private school such as Stephen Gaynor would be best for him [her child] as he will receive a lot of personal attention which he needs and the school appears to have a caring `nurturing' environment.

Please be advised however that this applies to this school year only and if further assistance is needed, I will be in contact with you.

I am willing to spend money for his tuition this year - he will not need speech/language as he will get this at school. However, this is contingent upon his getting therapy by a well-seasoned therapist for as long as it is needed ... " (Exhibit 6)

        Petitioner unilaterally enrolled the child, at her expense, in the Stephen Gaynor School for the 1991-92 school year. The child remained in that school, at petitioner's expense, through the 1994-95 school year. Respondent reportedly transported the child to the private school. Respondent also provided counseling services to the child, except during the 1993-94 school year.

        The Stephen Gaynor School is a private school for children with disabilities. It has not been approved by the New York State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs. In addition, a school district is precluded from placing a child in an unapproved private school (Section 4402 [2] of the Education Law). However, the fact that a private school is not approved by the State Education Department does not preclude a parent from recovering the cost of tuition at the school (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]). A board of education may be required to pay for education services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]).

        In February, 1992, petitioner asked the CSE to recommend that the frequency of the child's counseling be increased from once per week to twice per week. A notice was reportedly sent to petitioner to indicate that the CSE would review the child's individualized education program (IEP), and advised her of her right to meet with the CSE. The notice also advised her of her right to request an impartial hearing, and indicated that the booklet, Special Education: A Guide for Parents included a full description of her rights. The notice indicated where petitioner could obtain the booklet.

        In April, 1992, the CSE again recommended that the child be placed in a MIS-IV class, with the related services of speech/language therapy and counseling. In a notice dated May 5, 1992, petitioner was informed of the CSE's recommendation. The notice also indicated that petitioner could request an impartial hearing, if she did not agree with the recommendation, and referred to the booklet in which her rights were described. Petitioner did not accept the CSE's recommendation, but did not challenge the recommendation, by requesting that an impartial hearing be held. The child continued to attend the private school, and respondent reportedly provided transportation and paid for counseling.

        The CSE failed to make a recommendation for the child's educational program and placement during the 1993-94 school year. At the hearing in this proceeding, petitioner testified that respondent continued to provide transportation for the child to attend the Stephen Gaynor School, but respondent reportedly did not provide or pay for the boy's counseling during the 1993-94 school year. Petitioner further testified that she was unaware of her right to request a hearing to challenge respondent's failure to provide counseling to the child, or the CSE's failure to recommend a program and placement for him. When asked by the hearing officer why she had not contacted respondent after the CSE failed to make a recommendation for the 1993-94 school year, petitioner testified that she did not believe that respondent would have had an appropriate program for her son.

        At the hearing in this proceeding, respondent's representative acknowledged that the CSE, despite having failed to make any recommendation for the 1993-94 school year, was aware of the child. Indeed, the record reveals that the CSE's triennial evaluation of the child was performed in January, 1994. In March, 1994, one of respondent's educational evaluators formally observed the child in his class at the Stephen Gaynor School. In April, 1994, the child's private school teacher provided the CSE with information about the child's then current levels of performance.

        On April 26, 1994, the CSE recommended that the child be enrolled in respondent's modified instructional services-I (MIS-I) program, with individual counseling once per week, for the 1994-95 school year. However, respondent did not advise petitioner that it had a specific placement for the child in a MIS-I class in P. 144, until July 11, 1994. Respondent has conceded that its placement offer for the 1994-95 school year was untimely. Petitioner, who had reserved a place for her child at the Stephen Gaynor School for the 1994-95 school in March, 1994, re-enrolled the child in that school for the 1994-95 school year. She returned her copy of the notice of recommendation to respondent, with the notation that she did not agree with the placement offer. She requested that the recommended related service (counseling) be provided to the child at the Stephen Gaynor School. Petitioner did not immediately challenge respondent's untimely placement offer.

        On February 8, 1995, petitioner's attorney spoke to a parent's group of the Stephen Gaynor School about various matters, including their right, under certain circumstances, to be reimbursed for their expenditures for tuition. Petitioner testified at the hearing that she was unaware of the possibility of obtaining tuition reimbursement, prior to February 8, 1995. Petitioner retained the attorney. On February 23, 1995, the attorney requested that an impartial hearing be held. A hearing was held on March 17, 1995. No testimony was taken, and very little written evidence was introduced at the hearing. In essence, petitioner's attorney, the CSE's representative, and the hearing officer engaged in a brief colloquy about the issues.

        In his decision, which was dated April 10, 1995, the hearing officer found that the Board of Education had failed to offer an appropriate placement for the child in either the 1993-94 or 1994-95 school year, and that the Stephen Gaynor School had been appropriate for the child during both school years. The hearing officer rejected the Board of Education's contention that petitioner's claim for tuition during the 1993-94 school year was untimely. He held that the Board of Education was responsible for reimbursing petitioner for most of her tuition expenditures for the 1993-94 school year and all of the 1994-95 school year.

        The Board of Education appealed from the hearing officer's decision. In Application of a Child with a Disability, Appeal No. 95-25, I held that the record was inadequate to identify the child's special education needs, or to demonstrate that the Stephen Gaynor School had provided an appropriate program to address the child's educational needs. With regard to the Board of Education's argument that the parent's claim for the 1993-94 school year tuition was untimely, I noted that neither Federal nor State law prescribed time limits within which parental requests for impartial hearings must be made. However, I found that the timeliness of petitioner's tuition claim should be considered under the third Burlington criterion, i.e., whether equitable considerations supported petitioner's claim for reimbursement (see also Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]). On the record which was before me in that appeal, I could not determine the extent to which the child had been involved with the CSE prior to the 1993-94 school year, or whether petitioner had been informed of her right to request a hearing to review the CSE's failure to make a recommendation for that school year. I also noted that while the Board of Education had invoked the equitable doctrine of laches as a bar to petitioner's reimbursement claim, there was no proof in the record of actual harm to the Board of Education as a result of the delay by petitioner in asserting her claim. The hearing officer's decision was annulled, and the matter was remanded for another hearing to afford the parties an opportunity to present evidence with regard to the appropriateness of the private school's educational program during the 1993-94 and 1994-95 school years, and the equities involved in the parent's claim for tuition reimbursement for both school years.

        The hearing which is the subject of this appeal was held on September 18, 1995. Respondent presented documentary evidence of the CSE's prior attempts to inform petitioner of her due process rights. However, the CSE representative who testified at the hearing had no personal knowledge of the circumstances in which those attempts had been made. Petitioner testified that she did not remember having been advised of her due process rights, and had not received a copy of the booklet Special Education: A Guide for Parents. She admitted that on January 18, 1991 she had signed a consent for evaluation form which included the statement:

" I have received a copy of the booklet, Special Education: A guide (sic) for Parents, and my due process rights have been explained to me." (Exhibit 2)

        Petitioner testified that she had "probably not" read the consent form before she signed the form. She further testified that she had not become aware of her right to request an impartial hearing for the purpose of obtaining tuition reimbursement until her attorney's appearance before the private school's parents association on February 8, 1995.

        Respondent's representative was asked by the hearing officer to address the issue of whether it had been prejudiced by petitioner's delay in asserting her claim for tuition reimbursement for the 1993-94 school year. One witness for respondent testified that respondent's budget did not include reserve sums for "retroactive funding", and that respondent was unaware that its CSE's were not recommending placements on a timely basis. However, the witness conceded that respondent had been aware of this child's educational needs, during both the 1993-94 and 1994-95 school years. Respondent's representative at the hearing asserted that it was impossible to have people testify from personal knowledge about why the CSE failed to make a recommendation for the 1993-94 school year, but offered no other explanation of any prejudice to respondent which was attributable to petitioner's delay.

        Respondent's school psychologist who had evaluated the child in January, 1994, testified that the child was moderately distractible and highly hyperactive, and that his classification as emotionally disturbed was based upon his hyperactivity and acting out behavior, which interfered with his ability to learn. She conceded that the boy could have derived educational benefit in a private school. Ms. Annmarie Edwards, the child's teacher in the Stephen Gaynor School during the 1992-93 school year, and the supervisor of the child's teachers during each of the two subsequent school years, testified about the child's special education needs, and the program which the Stephen Gaynor School provided. Ms. Edwards testified that the child needed constant focusing and redirection, as well as small group instruction. He had been instructed in the private school in instructional groups of one to five children, by a teacher and a part-time aide. She further testified that a behavior modification program had been used with the child. Ms. Edwards also testified that the child had made significant progress towards achieving goals of working more independently, being less verbally abusive, and being more tolerant of others. The boy also reportedly made satisfactory academic progress in the private school. The record reveals that the child was enrolled in a public school program for gifted students, for the 1995-96 school year.

        In her decision, which was rendered on October 12, 1995, and amended on October 17, 1995, the hearing officer noted that respondent had conceded that it had failed to offer a timely placement to the child for the 1993-94 and 1994-95 school years, and that respondent had not explicitly contested the appropriateness of the child's placement in the Stephen Gaynor School during those school years. She found that the child had received substantial educational benefits from his placement in the private school during both school years, and she held that petitioner had met her burden of proof with regard to the second Burlington criterion, i.e. the appropriateness of the services obtained by the parent.

        The remaining issue to be determined by the hearing officer was whether equitable considerations supported petitioner's claim for tuition reimbursement (the third Burlington criterion). The hearing officer held that equitable considerations did not support petitioner's claim. She reached that conclusion, after finding that petitioner's testimony about having never been advised of her due process rights was not credible. The hearing officer found that petitioner had not challenged respondent's failure to offer a timely placement to the child for the 1993-94 and 1994-95 school years, until February, 1995, because petitioner preferred to have her son enrolled in the Stephen Gaynor School. The hearing officer asserted that the remedy of tuition reimbursement was not available to a parent who had placed her child in a private school for reasons other than a school district's failure to offer a free appropriate public education to the child, and that tuition reimbursement would be a mere "windfall" to petitioner. She denied petitioner's request for tuition reimbursement for both school years.

        Initially, I note that respondent has not appealed from the hearing officer's determination that petitioner had met her burden of proof with regard to the appropriateness of the services provided to the child by the Stephen Gaynor School during the 1993-94 and 1994-95 school years. Therefore, I will not review the hearing officer's determination with regard to the second Burlington criterion (Application of a Child with a Disability, Appeal No. 95-24). There is no dispute that respondent failed to meet its burden of proof with regard to the first Burlington criterion, i.e., that the services which it had offered the child were appropriate. Having prevailed with respect to the first two Burlington criteria for tuition reimbursement, petitioner must demonstrate that equitable considerations support her claim for reimbursement, which is the third, and last, Burlington criterion.

        While a parent's failure to cooperate with a school district may relieve the latter of its obligation to reimburse the parent for tuition expenditures (Andress v. Cleveland Independent School District, F 3d [5th Cir., 1995], 22 IDELR 1134), that does not appear to be an issue in this proceeding. The assistant chairperson of the CSE testified that he was not aware of any instance in which petitioner had been less than forthright or cooperative with the CSE. The central question in this proceeding is whether petitioner unreasonably delayed in challenging respondent's inadequate or untimely offers of a placement, and requesting tuition reimbursement. Her February 23, 1995 request for a hearing was made approximately eight months after the 1993-94 school year had ended and seven months after she was notified by respondent of a placement for the child during the 1994-95 school year.

        In Matter of Northeast Central School District v. Sobol, supra, at 609, the Court of Appeals indicated that:

"In a given situation, it may be necessary to order reimbursement retroactive to a date prior to commencement of the review process in order to fully protect the child's right to a free appropriate public education. This is especially true where the child's parents are not made aware of their ability to request an impartial hearing until months, or even years, after the child's placement has been changed ... ... The statutes contemplate a joint effort to resolve a child's placement satisfactorily. If commencement of the review process represents the first time the school board learns of any problems with the IEP it had designed for the child or represents the first opportunity to revise it, then a reviewing board could reasonably exercise its discretion to order reimbursement retroactive only to the commencement of the review process, based upon its assessment of the 'equitable considerations ... relevant in fashioning relief' [citation omitted]."

        Petitioner argues that the hearing officer's decision should be annulled because it was allegedly based upon the hearing officer's "preconceived notion of laches". Although petitioner alludes to other decisions by the hearing officer, those decisions are not part of the record in this proceeding, and have no bearing on the outcome of this appeal. Petitioner also argues that the hearing officer's decision should be annulled because of "assumptions made against her by the hearing officer," and asserts that the hearing officer was guilty of "blatant prejudice" against her. Petitioner's assertions of bias or prejudice have been carefully considered. Upon review of the entire record, I find that there is no basis in fact for petitioner's assertions. Although the hearing officer reached an unfavorable conclusion about petitioner's credibility with regard to petitioner's testimony about her awareness of her due process rights, that conclusion does not afford a basis for concluding that the hearing officer was biased against petitioner.

        In essence, the hearing officer found petitioner's position that until February, 1995, she was not apprised of her right to request an impartial hearing to be untenable, in light of the form which petitioner had signed in January, 1991, which indicated that a school social worker had explained parental due process rights to her and had given her a copy of Special Education: A Guide for Parents. In addition, the hearing officer noted that petitioner had received notices of recommendation in June, 1991 and May, 1992, which informed petitioner of the right to request an impartial hearing, if she disagreed with the CSE's recommendation. Although petitioner obviously did not receive a notice of recommendation for the 1993-94 school year because the CSE failed to make a recommendation for that school year, it does not follow that she was unaware of her right to request a hearing at the beginning of the 1993-94 school year. The prior notices of recommendation which she received, as well as the booklet Special Education; A Guide For Parents which she received, informed petitioner of her right to request a hearing. According to the unrebutted testimony of the assistant CSE chairperson, the booklet has indicated to parents since 1988 that they may request a hearing from a Board of Education's failure to review a child's program at least annually, as happened in this case in 1993. I find that petitioner had notice of her right to ask for an impartial hearing with regard to the child's placement during the 1993-94 and 1994-95 school years (Gregory M. v. State Board of Education of the State of Connecticut, [U.S. D.C. D. Conn., 1995], 23 IDELR 1).

        Petitioner argues that she had no reason to ask for a hearing prior to the start of either the 1993-94 or 1994-95 school years, because her child was then receiving the only services to which petitioner believed the boy was entitled. Her argument is premised upon the fact that when she initially placed the child in the Stephen Gaynor School in 1991, a parent could not obtain tuition reimbursement under Burlington because the Stephen Gaynor School was not approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2d 563[2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3d Dept., 1978]). The law in New York changed on November 9, 1993, when the United States Supreme Court rendered its decision in Florence County School District Four et al. v. Carter by Carter, supra.

        If petitioner had been aware of the Carter decision, but had procrastinated for more than one year in requesting a hearing, her claim for tuition reimbursement would be untimely (Application of the Board of Education of the Hendrick Hudson Central School District, Appeal No. 95- 49). However, petitioner's testimony that she was unaware of her right to seek the remedy of tuition reimbursement under the Carter decision until just prior to her request for an impartial hearing has not been challenged; nor is it rebutted by any evidence in the record before me. Nevertheless, the purpose of having due process procedures in both Federal and State law is to provide children and their parents with a mechanism for ensuring that the children receive the free appropriate public education to which they are entitled. Prompt resort to those procedures is imperative in order for school authorities to have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education, (Matter of Northeast Central School District v. Sobol, supra; Bernardsville Board of Education v. J.H., F. 3d [3d Cir., 1994]). In this instance, petitioner's testimony clearly reveals that she preferred to have the child remain in the private school, and doubted that respondent could have provided an appropriate placement for the child, even if it had been alerted to its CSE's failure to make a recommendation. Whether respondent could have provided a placement is entirely speculative at this point. Petitioner's failure to raise the matter of the CSE's inaction at the proper time deprived respondent of an opportunity to correct the CSE's mistake. Having found that petitioner was generally aware of her right to request an impartial hearing prior to the 1993-94 school year, and that she did not exercise that right until well after the school year had concluded, I further find that her claim for tuition reimbursement during such school year is not supported by equitable considerations. Therefore, I sustain the hearing officer's determination with regard to the 1993-94 school year.

        With regard to the 1994-95 school year, petitioner acted belatedly, but still within that school year. Unlike the 1993-94 school year, the CSE did make a recommendation, but respondent has acknowledged that it did not make a timely offer of placement to the child. Petitioner put the CSE on notice of her dissatisfaction with its recommendation in her notation on the notice of recommendation (Exhibit 19) that she did "not agree with your offer." Respondent has not suggested that this situation would have been ameliorated, if petitioner had more promptly requested a hearing; nor has it demonstrated that it has been prejudiced by petitioner's delay in requesting a hearing with regard to respondent's offer for the 1994-95 school year. Although petitioner had apparently put down a deposit with the Stephen Gaynor School in March, 1994, before the CSE had acted, to guarantee a place for the child in the school during the 1994-95 school year, that fact would not preclude her from obtaining reimbursement (Application of the Board of Education of the City School District, Appeal No. 95-69). The hearing officer's reliance upon the decision in Salley v. St. Tammany Parish School Board, (U.S. D.C. E.D. La., 1994), 21 IDELR 12, was misplaced because the child in Salley was not eligible to receive special education services during the period when the Board of Education had committed procedural errors. Accordingly, I will annul the hearing officer's determination with regard to petitioner's claim for tuition reimbursement for the 1994-95 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 1994-95 school year is annulled;

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition at the Stephen Gaynor School during the 1994-95 school year, upon petitioner's presentation to respondent of proof of such expenditures.