96-015

       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 hearing officer's decision was rendered in a hearing which was held pursuant to my decision in a prior proceeding (Application of a Child with a Disability, Appeal No. 95-48). The appeal must be sustained.

        Respondent initially referred her son to the committee on special education (CSE) of Community School District 2 in late December, 1991. She was notified that the child would be evaluated by the CSE, in January, 1992. However, respondent did not proceed with the proposed evaluation. At the time of the child's referral to the CSE in 1991, he was enrolled at respondent's expense, in the City and Country School, a private school in New York City. The child remained in the private school through the 1992-93 school year.

        In August, 1993, respondent again referred the child to the CSE. She also enrolled the child in the Winston Preparatory School for the 1993-94 school year. On September 28, 1993, respondent signed a consent form to have her son evaluated by the CSE, as required by Federal and State regulation before the CSE could begin its evaluation. Psychological and educational evaluations were performed on that day. The child's physician completed a report of the child's physical condition which was provided to the CSE. The child was reportedly observed in his class, in October, 1993.

        On October 13, 1993, the CSE met with respondent, and purported to prepare the child's individualized education program (IEP). However, as I noted in my prior decision in this matter, the CSE was invalidly constituted because it lacked the required parent member (cf. Section 4402 [1][b][1] of the Education Law). In addition, there is no evidence that the child's teacher, or a teacher or administrator qualified to provide special education attended the CSE meeting (cf. 34 CFR 300.344 [a][1] and [2]). The CSE's recommendation, which is a nullity (Application of a Child with a Disability, Appeal No. 95-8), was that the child be classified as learning disabled. The CSE also recommended that the child be enrolled in petitioner's modified instructional services-I (MIS-I) program, and that he be provided with small group counseling once per week.

        In a "Final Notice of Recommendation" to respondent, which was dated November 1, 1993, the District Placement Officer described the CSE's recommendation, and indicated that petitioner had a place for the child in its MIS-I program in P.S. 97. The notice provided in part, 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 15)

        Respondent signed the final notice of recommendation on November 2, 1993. She also wrote on the form:

"Please note: [the child] will be attending Winston Prep School this year. I am requesting bus transportation."

        In addition, respondent submitted a "PSF-1 Notice" to the CSE chairperson. The PSF-1 form is a board of education form which is reportedly used by parents who are seeking the transportation of their children by the board of education to the private schools selected, by the parents pursuant to Section 4404 (4)(d) of the Education Law. On that form, the parent indicated that she had received the CSE's recommendation, but intended to place the child at her expense, in the private school. At the hearing which was held at my direction, respondent testified that she had an open mind about a public school placement when she met with the school social worker on September 28, 1993, but she had not visited the placement which petitioner offered to her on November 1, 1993, because it had become "irrelevant". She explained that she did not want to remove the child from the school which he had attended since September, 1993. Respondent did not challenge the CSE's recommendation for the 1993-94 school year, during that school year. The CSE failed to make any recommendation for the child's educational program during the 1994-95 school year. Respondent did not immediately challenge the CSE's failure to recommend a program for the 1994-95 school year.

        A hearing was held, at respondent's request, on May 11, 1995. Respondent asked the hearing officer to order petitioner to reimburse her for her expenditures for the child's tuition at the Winston Preparatory School, in which she had unilaterally enrolled her son, for the 1993-94 and 1994-95 school years. A representative of the CSE acknowledged that the CSE had failed to recommend an educational program for the child for the 1994-95 school year. However, the representative argued that respondent's claim for tuition reimbursement for the 1993-94 school year was untimely. The hearing officer took the testimony of an administrator of the Winston Preparatory School. The administrator testified that the private school had addressed the child's special education needs during both the 1993-94 and 1994-95 school years.

        In her decision, which had rendered on June 2, 1995, the hearing officer found that petitioner had failed to meet its burden of proving that it had offered the child an appropriate educational program for either the 1993-94 or the 1994-95 school year. She also found that the Winston Preparatory School had provided appropriate educational services to the child during both school years. The hearing officer ordered petitioner to reimburse respondent for the cost of the child's tuition during the 1994-95 school year. However, she denied respondent's request for tuition reimbursement for the 1993-94 school year on the grounds that she had " ... failed to give due consideration to a public placement," and that respondent had unduly delayed in challenging the CSE's recommendation for that school year.

        Respondent appealed from the hearing officer's decision regarding her claim for tuition reimbursement for the 1993-94 school year. 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 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]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, _____ U.S. _____, 114 S. Ct. 361 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        The hearing officer had found, and the board of education conceded, that the parent had prevailed on 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 board of education asserted in the appeal that respondent had failed to meet her burden of proof with respect to the second Burlington criterion, i.e., whether the services selected by the parent were appropriate for the child. However, I found that the board of education was precluded from raising that issue since it had not appealed or cross-appealed from the hearing officer's decision. Therefore, the hearing officer's finding that respondent had prevailed on the second Burlington criterion was not reviewed. I found that the issue of the timeliness of a parental request for tuition reimbursement should be considered in determining whether equitable considerations support the parent's claim for reimbursement, i.e., the third Burlington criterion. However, the limited record of the hearing precluded me from determining whether equitable considerations supported respondent's claim for tuition reimbursement.

        In my decision, which was rendered on September 14, 1995, I annulled the hearing officer's determination with respect to respondent's claim for tuition reimbursement for the 1993-94 school year, and ordered the board of education to schedule an additional hearing to address certain questions. First, when did respondent request a hearing? Second, what notice of her due process rights was given to respondent? Third, when did respondent become aware, or when should she have become aware, of her right to obtain reimbursement for the placement of her child in an unapproved private school? Fourth, when did the CSE become aware, or when should it have become aware, of respondent's dissatisfaction with the CSE's recommendation for the 1993-94 school year? Fifth, did respondent cooperate with the CSE during the time in question.

        The hearing which is the subject of this appeal was held before a different hearing officer on October 17, 1995. With respect to the first question which I had asked the parties to address, the board of education introduced a copy of a request by respondent's attorney for an impartial hearing, which was dated February 21, 1995. The attorney did not specify in his request the reason for which the hearing had been requested.

        In response to the question what notice of her due process rights was given to respondent, the board of education introduced a copy of a social history prepared by a school social worker who interviewed respondent on September 28, 1993. The social worker reported, in part, that "Due Process Rights were explained to parent and CSE procedures reviewed. A parent's guide was given to her." (Exhibit 6). The board of education also introduced a copy of a form which respondent had reportedly had signed on September 28, 1993, giving her consent to have the child evaluated by the CSE. The text of that short form included the statement: "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 5). As noted above, respondent also received a "Final Notice of Recommendation", which advised her of her right to request a hearing, and referred her to the booklet. Respondent testified that she may have received the booklet, but denied that the booklet's contents were explained to her.

        With regard to the third question which I asked the parties to address, respondent testified that she did not become aware of the possibility of seeking tuition reimbursement through a due process proceeding until her attorney spoke to a parent's group at the private school in February, 1995. Her testimony was unrebutted.

        A CSE representative at the hearing indicated that the CSE did not become aware of respondent's dissatisfaction with the CSE's recommendation for the 1993-94 school year until the first hearing was held on May 11, 1995. The CSE representative acknowledged that the parent had expressed at least a preference for the Winston Preparatory School in November, 1993, when she acknowledged receipt of the CSE's recommendation, and requested transportation of the child to the private school. However, he pointed out that respondent had placed the child in the private school before the CSE had made its recommendation. The parties agreed at the hearing that there was no evidence that respondent had failed to cooperate with the CSE with regard to the child's placement in the 1993-94 school year.

        The hearing officer rendered his decision in this matter on January 19, 1996. He found that respondent had intended to obtain a public school placement for her child because she had referred the child to the CSE before the Supreme Court rendered its decision in the Carter case. He rejected the board of education's argument that respondent had received adequate notice of her due process rights because neither the notices which she received, nor the booklet Special Education: A Guide for Parents, explained that respondent could seek the remedy of tuition reimbursement. The hearing officer found that respondent had not become aware of the possibility of obtaining tuition reimbursement until February, 1995, and that once she became aware of that possibility she had acted promptly to request a hearing. With respect to the issue of when the CSE knew, or should have known, of respondent's dissatisfaction with the CSE's recommendation for the 1993-94 school year, the hearing officer found that the issue was "...moot since the CSE never fulfilled its duty to offer the child a placement in a timely manner." He further found that respondent had cooperated with the CSE. The hearing officer concluded that the equities of the situation favored the parent. He ordered the board of education to reimburse her for the cost of the child's tuition, at the Winston Preparatory School during the 1993-94 school year, upon respondent's submission to the board of education of proof of her tuition payments.

        In its appeal from the hearing officer's decision, the board of education concedes that respondent has prevailed with respect to the first and second criteria for tuition reimbursement, pursuant to the Burlington decision. The sole issue which this appeal presents is whether equitable considerations support respondent's claim for tuition reimbursement during the 1993-94 school year. The board of education challenges the hearing officer's finding that respondent was not adequately notified of her due process rights because the notices she received, and the booklet Special Education: A Guide for Parents, did not explicitly refer to the remedy of tuition reimbursement. The board of education asserts that respondent was informed of her due process rights, but unreasonably delayed her exercise of those rights.

        The hearing officer acknowledged that the remedy of reimbursement for tuition at an unapproved private school in New York was unavailable to parents prior to the Carter decision, which was rendered on November 9, 1993, or one week after respondent had received the CSE's final notice of recommendation. He reasoned that respondent could not have been expected to ask for a hearing prior to the date of the Carter decision, because to do so "...would have been a useless act." The hearing officer found that respondent had little opportunity to learn of the Carter decision after it was rendered because the board of education had not referred to it in the 1994 revision of its booklet about parental rights. In her answer to the petition, the respondent also asserts that she had no reason to request a hearing during the 1993-94 school year, because she was unaware of the Carter decision.

        Although respondent does not recall receiving a copy of Special Education: A Guide for Parents, she acknowledged at the hearing that she had signed the consent to evaluate form which indicated that she had received the booklet. She does not dispute that on November 2, 1993, she received the Final Notice of Recommendation, which expressly informed her of her right to challenge the CSE's recommendation by requesting a hearing. The notice referred her to the booklet for a detailed explanation of her due process rights, and advised her that she could obtain another copy of the booklet, if necessary. Upon the record before me, I find that the board of education satisfied its obligation to inform respondent of her due process rights.

        The issue to be determined is whether the fact that respondent was unaware of the Carter decision until February, 1995 should afford a basis for excusing her delay in asserting her claim until fifteen months after she received the CSE's recommendation, and eight months after the end of the 1993-94 school year. Respondent's contention that there would have been no purpose in requesting a hearing immediately after she received the Final Notice of Recommendation is premised upon the belief that the sole purpose of an impartial hearing is to enable a parent to obtain tuition reimbursement. However, the extensive due process provisions of Federal and State law are intended to provide an inexpensive and expeditious method by which a parent can obtain review by an impartial decision maker of a CSE's action. Prompt resort to the due process procedures must be made, so that school authorities 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, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir., 1994]).

        Respondent's failure to promptly challenge the CSE's recommendation deprived the board of education of an opportunity to correct its CSE's error in not having the requisite members in attendance for its October 13, 1993 meeting. It also prevented a timely determination of the appropriateness of any public or private school program which the CSE might have subsequently recommended, if the matter of the CSE's composition had been promptly challenged. On balance, I find that equitable considerations do not support respondent's claim for tuition reimbursement for the 1993-94 school year (Application of a Child with a Disability, Appeal No. 95-77; Application of a Child with a Disability, Appeal No. 95-86; Application of a Child with a Disability, Appeal No. 95-82; Application of a Child with a Disability, Appeal No. 96-5; and Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-12). In so finding, I in no way condone petitioner's failure to have a validly composed CSE in November, 1993.

THE APPEAL IS SUSTAINED.

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