96-012

       Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondent for her expenditures for her son's tuition at a private school for the 1993-94 school year. The appeal must be sustained.

        Respondent's son, who is eleven years old, has been classified as learning disabled and speech-impaired, since 1992. The boy's classification is not disputed in this proceeding. The child entered petitioner's schools in the 1989-90 school year. He was enrolled in petitioner's modified instructional services-IV (MIS-IV) program in P.S. 6 for three years. For the 1992-93 school year, the committee on special education (CSE) of Community School District No. 2 recommended that the child be enrolled in petitioner's modified instructional services-I (MIS-I) program in P.S. 116, with resource room services, and the related services of speech/language therapy and occupational therapy. However, respondent unilaterally enrolled her son in the Stephen Gaynor School, where he remained, at respondent's expense, for the 1992-93, 1993-94, and 1994-95 school years. The Stephen Gaynor School, which is located in New York City, 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 instruction of children placed in that school. Petitioner reportedly provided transportation to the child, while the private school reportedly provided related services to him.

        At an impartial hearing held on May 4, 1995, respondent sought to obtain tuition reimbursement by petitioner for the 1993-94, and 1994-95 school years. A representative of petitioner's CSE conceded, at the hearing, that the CSE had not made any recommendation for the child's educational program for either the 1993-94 or the 1994-95 school year. The hearing officer ordered the Board of Education to reimburse respondent for the cost of the child's tuition at the Stephen Gaynor School during the 1994-95 school year. However, the hearing officer denied respondent's request for tuition reimbursement for the 1993-94 school year, on the ground that she had not made a timely request for reimbursement.

        Respondent appealed from the hearing officer's decision. In that appeal, I noted that a board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). Prior to November 9, 1993, a parent was precluded from seeking reimbursement for the cost of tuition in an unapproved private school (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3d Dept., 1978]). On November 9, 1993, the Supreme Court held that a parent could obtain reimbursement for tuition at an unapproved private school, such as the Stephen Gaynor School, if the private school provided the child with appropriate educational services (Florence County School District Four et al. v. Carter by Carter, ___ U.S.___ , 114 S. Ct. 361 [1993]).

        In the prior appeal of this matter, the Board of Education conceded that it had not met its burden of proof with respect to demonstrating that it had offered the child an appropriate program or placement for the 1993-94 school year. The hearing officer found that respondent had demonstrated that the educational services which the Stephen Gaynor School provided to the child during the 1993-94 school year were appropriate. Therefore, the parent prevailed with respect to the first and second Burlington criteria for tuition reimbursement. With regard to the issue of the timeliness of respondent's claim for tuition reimbursement, both parties acknowledged that there was no explicit statute of limitations which barred her claim (see also Application of a Child with a Disability, Appeal No 95-37). Instead, the parties appeared to agree that the issue of the timeliness of a parental request for tuition reimbursement should be considered in determining whether equitable considerations support the claim for reimbursement, i.e., the third Burlingtoncriterion (see also Application of a Child with a Disability, supra; Application of a Child with a Disability, Appeal No 95-32). However, I found that the record which was in front of me was totally inadequate to afford a basis for determining if equitable considerations supported the parent's claim for tuition reimbursement.

        On September 7, 1995, the parent's appeal was sustained to the extent of annulling the hearing officer's decision with respect to the claim for tuition reimbursement for the 1993-94 school year, and the matter was remanded for a new hearing, at which the parties would address certain questions (Application of a Child with a Disability, Appeal No. 95-43). I asked the parties to provide evidence to demonstrate the extent to which the CSE had given the parent notice of her due process rights, and to show when she became aware, or should have become aware, of her right to seek tuition reimbursement for her child. I noted that the record before me did not reveal when the parent had requested a hearing. The parties were also asked to provide evidence to demonstrate when the CSE became aware, or should have become aware, of the parent's dissatisfaction about the CSE's failure to offer the child an appropriate placement for the 1993-94 school year. I also asked the parties to address the question of whether the parent had cooperated with the CSE during the time in question.

        The hearing in this proceeding was held on November 27, 1995. At the hearing, the parties stipulated that the parent had requested the prior hearing in a letter to petitioner's Impartial Hearing Office, which was dated March 8, 1995. Petitioner introduced documents from the child's CSE file into evidence, in order to show the manner and extent to which respondent had received notice of her due process rights. Among the documents which petitioner introduced was a copy of a form signed by respondent in March, 1989, when she consented to having the CSE conduct its initial evaluation of the child. The form which respondent signed included the statement that:

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

        Petitioner also introduced into evidence copies of the 1988 and 1992 editions of A Parent's Guide to Special Education; Your Child's Educational Rights in New York State, a State Education Department publication, which was reportedly distributed by petitioner to parents, and was the publication referred to in the consent to evaluation form as "Special Education: A Guide for Parents". The booklet described the due process proceedings, and indicated that parents could request an impartial hearing at anytime to protect their child's interests. Among the reasons for requesting an impartial hearing, the booklet indicated that requests could be made when there is:

"Disagreement with the recommendation of the CSE or BOE.

Failure by the CSE to evaluate and recommend within 30 days of consent.

Failure to implement the CSE recommendation within 30 school days.

Failure to review, at least annually, the child's program, or failure to re-evaluate the child every three years.

Disagreement with the special education provided." (Exhibit 17, page 36)

        Petitioner also introduced copies of "Final Notice of Recommendation" forms which were sent to respondent in November 1989, May, 1991, and twice in January 1992, after the CSE had made its recommendations about the child's program. Respondent signed each of the forms, except one of the two sent to her in January, 1992. Each form included the statement 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, N. Y. 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." (Exhibits 3, 6, 8 and 9).

        Petitioner introduced into evidence a copy of a report prepared by one of its social workers, who reportedly interviewed respondent on October 29, 1991, to update the child's social history. The social worker indicated in her report that she had discussed due process rights with respondent. The updated social history was obtained as part of the child's triennial evaluation. Following that evaluation, the CSE recommended that the child remain in the MIS-IV child for the rest of the 1991-92 school year.

        In a letter to the CSE chairperson, which was dated March 30, 1992, respondent requested that the Board of Education transport her child to and from the Stephen Gaynor School, pursuant to Section 4402 (4) of the Education Law. Although, the child was apparently still enrolled in petitioner's MIS-IV program, respondent had enrolled her child in the private school for the 1992-93 school year. Respondent met with an educational evaluator on June 18, 1992, to update the child's social history as the child "aged out" of the MIS-IV program. The educational evaluator's report indicated that respondent was "seriously considering" enrolling her child in the Stephen Gaynor School, and that parental due process rights had been discussed.

        On July 31, 1992, the CSE recommended that the child be enrolled in a MIS-I program, with resource room and related services, for the 1992-93 school year. It should be noted that the record reveals that neither the child's teacher nor the required parent member of the CSE attended the July 31, 1992 CSE meeting (cf. Section 4402 [1][b][1][b][i] of the Education Law). A final Notice of Recommendation, dated August 5, 1992, was reportedly sent to respondent. That form also included the same statement about due process rights as had appeared on the Final Notice of Recommendation forms which had been previously sent to her.

        In response to the Final Notice of Recommendation, respondent wrote a letter to the Board of Education's placement officer, on August 11, 1992. Respondent stated that:

" I have decided that the 15:1 ratio of the MIS-I class cannot possibly address my son, [child's name], educational needs. I have enrolled him at the Stephen Gaynor School for the 1992-93 school year, at my expense. I understand that I am entitled to bussing service through the Board of Education. Please forward any forms or documents I need in order to secure the bussing service by the start of the school year." (Exhibit 13)

        On August 11, 1992, respondent asked the CSE chairperson to provide her with copies of the child's individualized education program and related reports. A representative of the CSE testified that there was no further correspondence between respondent and the CSE, notwithstanding the fact that the CSE failed to make any recommendation about the child's program for the 1993-94 school year, until the request for a hearing which respondent's attorney made on March 8, 1995. He testified that the CSE did not become aware of the nature of respondent's dissatisfaction with the CSE until shortly before the hearing in the prior proceeding was conducted. The CSE representative conceded that the parent appeared to have cooperated with the CSE, during the time in question.

        At the hearing, respondent testified that she did not recall signing the consent for evaluation form, or receiving a copy of the parental rights booklet, in March, 1989. She conceded that she might have received the booklet, but testified that she did not have a copy of the booklet. Respondent also could not recall having discussed her due process rights when she consented to having her child evaluated in 1989, or when she was interviewed to update the child's social history in October, 1991 and again in June, 1992. She testified that someone from the Stephen Gaynor School advised her of her right to obtain transportation of the child by petitioner pursuant to Section 4402 (4) of the Education Law. She testified that she did not become aware of her right to seek tuition reimbursement from the Board of Education, until her attorney in this proceeding spoke at a meeting at the Stephen Gaynor School. The attorney indicated that he spoke to parents at the private school on Valentine's Day [February 14, 1995]. Respondent retained the attorney's services approximately three or four weeks thereafter.

        Respondent testified that she was dissatisfied with the child's performance in the MIS-IV program, and had sought to have petitioner identify the child's proposed placement for the 1992-93 school year well before the end of the 1991-92 school year. When petitioner failed to do so, respondent made arrangements for child to be enrolled in the Stephen Gaynor School. She testified that she thought she had advised the CSE that she was not interested in a public school placement for the 1992-93 school year, before the CSE made its recommendation for that school year.

        Respondent further testified she had enrolled the child in the Stephen Gaynor School for the 1993-94 school year, in February or March, 1993, and that she had given the school at deposit of approximately $3800 to secure a place for the child. She was asked at the hearing whether she would have considered moving the child to another school, if petitioner had offered the child a placement for the 1993-94 school year. Respondent testified that:

"If I felt it was suitable for him I just felt that I had such a bad experience at PS 6 with him with his progress I almost found it impossible. Being his parent I think it would have been a terrible choice to move him." (Transcript, page 74)

        The hearing officer rendered her decision on January 23, 1996. She found that the CSE had failed to provide the parent with adequate notice of her due process rights for the 1993-94 school year. With regard to the notice of due process rights which respondent had previously been given up through and including the 1991-92 school year, the hearing officer held that the parent "should not be expected to rely on dated information". The hearing officer found that the CSE did not become aware of respondent's dissatisfaction with the CSE's failure to recommend a placement for the 1993-94 school year until her attorney requested a hearing in his March 8, 1995 letter. She also found that the parent had cooperated with the CSE (the last of the questions which I asked the parties to address). At petitioner's request, the hearing officer also addressed the issue of whether the Board of Education had been prejudiced by the parent's delay in invoking the due process procedures. The hearing officer found that petitioner was not unduly prejudiced by the parent's delay. She held that the CSE's repeated failure to follow its own procedures resulted in a lack of information to the parent about her due process rights, and she found that the equities favored an award of tuition reimbursement for the 1993-94 school year.

        The Board of Education challenges the hearing officer's finding that its CSE failed to provide respondent with adequate notice of her due process rights for the 1993-94 school year. The hearing officer noted that respondent was not specifically notified of her due process rights, either just prior to, or during the, 1993-94 school year because the CSE failed to conduct the mandatory annual review of the child (cf. 34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]). She indicated that if the annual review had been conducted, the parent would have been notified of her rights, either at the annual review, or when she received the Final Notice of Recommendation. While I agree with the hearing officer's determination that a validly composed CSE should have conducted an annual review, and recommended a program and placement for the 1993-94 school year, I find that the fact that the CSE failed to do so is not dispositive of the issue of the adequacy of the notification of due process rights which respondent received.

        Although respondent did not recall receiving a copy of the booklet explaining her rights, in 1989, she admittedly signed the consent for evaluation form which indicated that she had been given a copy of the booklet. The Final Notice of Recommendation which respondent received in November, 1989, May, 1991, and January, 1992 (two notices) explicitly advised respondent of her right to request a hearing, referred her to the booklet, and indicated where additional copies of the booklet could be obtained. While respondent did not sign an identical notice which was reportedly sent to her in August, 1992, she has not denied receiving the notice. Respondent also did not recall discussing her due process rights with school employees in March, 1989, October, 1991, or June, 1992, despite the written evidence in her child's records that she was advised of her rights at those times. I find that respondent was advised of her right to request a hearing on more than one occasion, including the August 5, 1992 Final Notice of Recommendation. Under the circumstances, I find that respondent was on notice of her right to seek a hearing if she was dissatisfied with the action, or inaction, of the CSE, despite the fact that she did not receive any notification of her rights with respect to the 1993-94 school year (Application of a Child with a Disability, Appeal No. 95-82).

        Respondent testified, and I find, that she was not aware of the right to seek tuition reimbursement until February, 1995. I also note that even if respondent had sought to obtain tuition reimbursement prior to the Carter decision on November 9, 1993, she could not have obtained that relief. Nevertheless, I am not persuaded that respondent's delay in requesting a hearing until well after the 1993-94 school year had ended should be excused. The primary purpose of the due process procedures is to provide children and their parents with a mechanism to ensure that children receive a free appropriate public education. In order to accomplish this purpose, it is imperative that the parents promptly notify the CSE of their dissatisfaction with the CSE's recommendation, or its failure to make a recommendation. Prompt notice is necessary to afford the CSE an opportunity to rectify its mistake, if any (Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3rd Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992], Application of a Child with a Disability, Appeal No 95-83; Application of a Child with a Disability, Appeal No 95-86). While I in no way condone the failure of petitioner's CSE to perform its duties as required by Federal and State law, I must note that the boards of education in Bernardsville and Northeast had also failed to meet each of their obligations. I find that the rationale of those decisions is equally applicable in this matter. By her delay, respondent precluded petitioner from rectifying its CSE's mistakes. Therefore, I find that respondent's tuition reimbursement claim for the 1993-94 school year is not supported by equitable considerations.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled.