96-016

         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 daughter's tuition at a private school during the 1993-94 school year. The hearing officer's decision was rendered in a hearing which was held pursuant to the decision of another State Review Officer in a prior proceeding (Application of a Child with a Disability, Appeal No. 95-32). The appeal must be sustained.

        Respondent's daughter was reportedly enrolled in a preschool program for children with disabilities, prior to being referred to petitioner's committee on special education (CSE), on May 10, 1990. On May 25, 1990, respondent's husband signed the requisite form to authorize the CSE to evaluate the child. The consent form indicated, in material part, 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 1)

        Thereafter, the CSE recommended that the child should be classified as a child with a disability. On or about June 19, 1990, respondent reportedly offered the child a special class placement in P.S. 234, for the 1990-91 school year. However, the child's parents decided to retain the child in her preschool program for the 1990-91 school year.

        The child was enrolled by her parents in a regular education kindergarten class in P.S. 41 for the 1991-92 school year. In a letter dated September 13, 1991, the parents informed the CSE chairperson of Community School District No. 2 that their daughter had language and hearing difficulties, and might require special education services. The CSE representative testified at the hearing that the parents' referral was treated as an initial referral of a child for the purpose of notifying the parents of their due process rights. The representative also testified that on or about October 9, 1991, petitioners withdrew their request for the child to be evaluated by the CSE. The case was thereafter closed.

        On May 28, 1992, the child's parents again referred her to the CSE. They received a notice of referral, which indicated that a meeting would be scheduled with a school social worker, and that:

"During your meeting with a social worker, the purpose of the evaluation(s) will be explained, a copy of the booklet, Special Education: A Guide for Parents will be given to you, and your rights under the law will be explained." (Exhibit 7)

        On June 3, 1992, a school social worker met with the parents. The school social worker reported that the child, who was nearing the end of kindergarten, had evidenced difficulties in sequential and language related areas, despite having been provided with speech/language therapy for a number of years. In her report, the social worker indicated that she had explained due process rights to the parents, and had given them a copy of the booklet which describes parental due process rights.

        On August 7, 1992, the CSE recommended that the child be classified as learning disabled, and that she receive speech/language therapy in a small group, twice per week. It should be noted that there is no evidence in the record that the parent member of the CSE attended the meeting at which the CSE made its recommendation (cf. Section 4402 [1][b][1] of the Education Law). In a Final Notice of Recommendation, dated August 11, 1992, the child's parents were offered a placement for her at P.S. 41. The Final Notice of Recommendation also included the following due process information:

"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 10)

        On August 18, 1992, the child's father signed the Final Notice of Recommendation, with the notation that it was "NOT ACCEPTED," and that the child would attend private school. The CSE met again on September 17, 1992, reportedly because the child's parents had requested that petitioner transport her to a private school during the 1992-93 school year. The CSE again recommended that the child be classified as learning disabled. Once again, there is no evidence that the parent member of the CSE attended the CSE meeting. Although the CSE had recommended in August that the child remain in a regular education class, it now recommended that she be placed in a modified instructional services-I (MIS-I) special education class, with a 15:1 child to adult ratio. The CSE continued to recommend that the child receive speech/language therapy twice per week, and it recommended that petitioner transport the child. Although petitioner reportedly sent a Final Notice of Recommendation to the child's parents, it was unable to find a copy to introduce into evidence at the hearing, but it has submitted a copy of the document with its petition. The Final Notice of Recommendation, dated September 17, 1992, contains language identical to that in the August 11, 1992 Final Notice of Recommendation. It did introduce a copy of a Placement Withdrawal Notice which it reportedly sent to the parents, on or about October 19, 1992, informing them that the placement which the Board of Education had offered to them would be withdrawn, if they did not respond by October 26, 1992. The Notice also indicated that:

"For more information about your rights, you may get a copy of the booklet Special Education: A Guide for Parents by contacting the Committee on Special Education at 212-337 8806." (Exhibit 13)

        Although respondent introduced a document which indicated that the parents had been notified that the case was closed, petitioner testified that she did not recall having received the notice of closure. The CSE representative also testified that the CSE had not recommended any program or placement for the child for the 1993-94 and 1994-95 school years. However, it did transport the child to the private school during those school years. Respondent's insurer paid for the child's speech/language therapy in the private school.

        At the hearing which is involved in this appeal, respondent testified that she had contacted two private schools about a placement for her daughter in June, 1992, before the CSE had made its initial recommendation for the child. Although both private schools had been approved by the State Education Department to provide instruction to children with disabilities, neither school had a place for respondent's daughter. She and her husband placed the child in the Stephen Gaynor School, a private school in New York City. 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 which placed children in the school. The child remained in the Stephen Gaynor School, at her parents' expense, during the 1992-93, 1993-94, and 1994-95 school years.

        On March 27, 1995, an impartial hearing was held at the parents' request for the purpose of obtaining reimbursement for the cost of their child's tuition in the Stephen Gaynor School for the 1993-94 and 1994-95 school years. A representative of the Stephen Gaynor School briefly testified about the school. The parties agreed to introduce three documents into evidence, one of which was the child's Individualized Education Program (IEP) which the CSE had prepared in September, 1992, and the other two documents related to the child's educational program at the private school during the 1994-95 school year.

        A board of education may be required to 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 consideration support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). Prior to November 9, 1993, the parents were precluded from obtaining tuition reimbursement if the private 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 [3d Dept., 1978]). On November 9, 1993, the United States Supreme Court held that a parent could obtain reimbursement for tuition at 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]).

        In a decision dated April 19, 1995, the impartial hearing officer found that the board of education did not meet its burden of demonstrating that it had offered the child an appropriate educational program for either the 1993-94 or 1994-95 school years. The hearing officer further found that the child's parents had demonstrated that the services which the child received at the Stephen Gaynor School in both school years were appropriate under the Individuals with Disabilities Education Act (20 USC 1400 et seq.). Therefore, the parents prevailed with respect to the first and second Burlington criteria for tuition reimbursement. The hearing officer also found that equitable consideration supported the parents' claim for tuition reimbursement with regard to the 1994-95 school year. She directed the board of education to reimburse the child's parents for the cost of tuition during the 1994-95 school year. However, the hearing officer denied the parents' claim for tuition reimbursement during the 1993-94 school year on the ground that their claim was untimely.

        The child's parents appealed from the hearing officer's decision. Although the board of education attempted in its answer to the petition to raise the issue of the appropriateness of the educational services provided to the child at the Stephen Gaynor School during the 1993-94 school year, the State Review Officer held that he was precluded from reaching that issue by the board of education's failure to appeal, or cross-appeal, from the hearing officer's decision. Therefore, the sole issue in the appeal was whether the hearing officer correctly determined that the parents' tuition reimbursement claim for the 1993-94 school year was untimely. The State Review Officer held that the issue of the timeliness of a parental request for tuition reimbursement should be considered in determining whether equitable considerations support the parents' claim for tuition reimbursement, i.e., the third Burlington criterion. However, he found that the record of the hearing was inadequate to resolve the matter. The State Review Officer annulled the hearing officer's decision, but remanded the matter back for an additional hearing. He directed the parties to address four questions at the hearing. First, whether the CSE provided any notice to the parents about due process rights and the nature of that notice? Second, when did the parents become aware, or should have become aware, of their right to seek tuition reimbursement? Third, when did the CSE become aware, or should have become aware, of the parents' dissatisfaction with the CSE's failure to offer a placement for the 1993-94 school year? The final question which the parties were asked to address was whether the parents had cooperated with the CSE during the time in question?

        The hearing in this proceeding was held on November 1, 1995. The hearing officer, who had not presided at the prior hearing, took evidence only with regard to the issues which had been raised by the State Review Officer. The board of education presented its case through a CSE representative, who testified about the contacts which the child's parents had with the CSE from 1990, when they first sought to have the child evaluated, until 1995, when they requested that an impartial hearing be held. With respect to the first question posed by the State Review Officer, the CSE representative described the consent to evaluate form which the child's father signed in 1990, and the various notices which were sent to the parents in 1992, in connection with the two CSE meetings.

        Respondent, the child's mother, testified that she did not recall receiving the notice which the board of education reportedly sent to her after the child's case was closed in the Fall of 1992. She did not deny that she and her husband had received a copy of the booklet, Special Education: A Guide for Parents. Indeed, she testified that she believed that she had discovered in the booklet that she could challenge a refusal to provide transportation, by requesting a hearing. Respondent also did not deny that she had received the other notices describing her due process rights which have been referred to in this decision.

        With respect to the second question asked by the State Review Officer, respondent testified that she was unaware of her right to seek reimbursement for private school tuition, until the attorney who represents her in this proceeding spoke to parents at the Stephen Gaynor School in January or February, 1995. She testified that she retained the attorney within one week of his speech to the parents. The attorney requested that a hearing be held shortly thereafter.

        The CSE representative addressed the third question, i.e., when did the CSE know, or should have known, of the parents' dissatisfaction with the CSE's failure to offer the child a placement for the 1993-94 school year? He testified that the CSE had not received a response to its recommendation of September 17, 1992, nor any communication thereafter until their attorney requested a hearing in 1995. He noted that the attorney's hearing request did not specify the purpose the hearing, but acknowledged that he may have discussed the matter with the attorney prior to the hearing which was held on March 27, 1985. The CSE representative also addressed the State Review Officer's fourth question, by testifying that there was no evidence that respondent or her husband had failed to cooperate with the CSE.

        The hearing officer rendered his decision on February 26, 1996. He noted that petitioner was obligated to conduct an annual review for the child and prepare an IEP for her even though she was placed in a private school (34 CFR 300.349). The hearing officer found that petitioner had a duty "to inquire as to why" the parents had placed the child in the private school, and that it had an obligation to inform the parents of the holding in the Carter decision. He also found that petitioner had failed to articulate a basis for its contention that it had been prejudiced by respondent's delay in requesting a hearing.

With regard to the questions raised by the State Review Officer in the prior appeal, the hearing officer found that there was no basis to assume that respondent had knowingly waived her due process rights. He found that there was no direct testimony that she had received the booklet, Special Education: A Parents Guide, and that respondent had received copies of the booklet during either the 1993-94 or 1994-95 school year. The hearing officer noted that respondent's testimony that she was unaware of the remedy of obtaining tuition reimbursement until her attorney informed her of that in early 1995 was uncontroverted, and found that respondent had acted to initiate a hearing within a reasonable time thereafter. With regard to petitioner's contention that its CSE had not known of respondent's dissatisfaction with its failure to conduct an annual review and recommend a placement for the child, until respondent requested a hearing, the hearing officer found that respondent had been denied the opportunity to "formally communicate" her dissatisfaction because there was no recommendation by the CSE. He also found that respondent had cooperated with the CSE at all times. He held that respondent was entitled to be reimbursed for her expenditures for the child's tuition during the 1993-94 school year, upon presentation to the board of education of proof of those expenditures.

Petitioner acknowledges that its CSE failed to perform its duty in conducting an annual review and making a placement recommendation for the 1993-94 school year. However, it challenges the hearing officer's conclusion that having failed to perform its duties, petitioner cannot oppose a parent's claim for tuition reimbursement for a unilateral placement of a child in a private school.

I do not in any way condone the CSE's failure to perform its duties. I am aware that this is not the first instance in which one of petitioner's CSEs has failed to conduct an annual review, or has conducted annual reviews without all of the required CSE members. I have previously asked the Office of Special Education Services of the State Education Department to provide technical assistance to the CSE of Community School District #3 to insure that the members of that CSE understand and adhere to the standards and duties imposed upon a CSE (Application of a Child with a Disability, Appeal No. 96-8). I will also ask the Office of Special Education Services to provide the same assistance to the CSE of Community School District #2. However, the fact that petitioner's CSE failed to perform its duties in this case was the basis for finding that respondent had prevailed with respect to the first Burlingtoncriterion, i.e., whether the board of education had offered an appropriate educational placement for the child. As was indicated in the prior State Review Officer's decision in this matter, the issue to be determined at the second hearing was the timeliness of respondent's request for tuition reimbursement, in light of the third Burlington criterion that the parent's claim for reimbursement be supported by equitable considerations.

Petitioner challenges the hearing officer's finding that respondent was not adequately notified of her due process rights. The board of education asserts that respondent received the booklet, Special Education: A Parents Guide, as revealed by respondent's testimony that she was aware of her right to request a hearing with regard to transportation. Although the hearing officer found that there was no direct testimony that respondent had received the booklet, I find that respondent's testimony clearly supports the finding that she and her husband had received the booklet. The booklet lists a number of reasons for which an impartial hearing may be requested (Application of a Child with a Disability, Appeal No. 95-83). Furthermore, respondent did not deny receiving the various notices from petitioner described in this decision, which referred to the booklet and informed respondent where she could obtain the booklet. Contrary to the hearing officer's finding, I find that there is no obligation for the board of education to provide copies of the booklet in succeeding years to parents who have previously received the booklet (Section 4402 [1][b][7] of the Education Law). Upon the record before me, I find that respondent was adequately apprised of her due process rights.

The hearing officer's finding that respondent was unaware of the remedy of obtaining tuition reimbursement until her attorney spoke to a parents' group in January, 1995, is supported by the record, as is his finding that respondent cooperated at all times with the CSE. Those were the second and fourth questions which the parties were asked to address.

With regard to the third question which the parties were asked to address, I find that the CSE representative's testimony that the CSE was unaware of respondent's dissatisfaction with the CSE inaction until respondent requested a hearing in February, 1995 is unrebutted. In his decision the hearing officer reasoned that in order for a parent to be dissatisfied, there must be something with which to be dissatisfied, and that absent a recommendation by the CSE, respondent lacked the opportunity to formally communicate her dissatisfaction. I do not agree. A CSE's failure to recommend a placement is clearly a basis for a parent to be dissatisfied, and to request a hearing. Section 4404 (1) of the Education Law provides, in part, that:

"If the recommendation of the committee on special education is not acceptable to the parent or person in parental relationship of a child, or if the committee or board of education or trustees fails to make or effectuate such a recommendation within such periods of time as may be required by the regulations of the commissioner, such parents or persons in parental relationship shall notify the board of education of this situation and the board shall appoint an impartial hearing officer to hear the appeal and to make a determination within such period of time as the commissioner by regulation shall determine."

Although respondent did not know about the remedy of tuition reimbursement until January, 1995, I have found that she was aware of her due process rights when the CSE failed to recommend a placement for her child for the 1993-94 school year. The hearing officer noted in his decision that there would have been no point in requesting a hearing prior to the Carter decision in November, 1993. While that is correct with respect to the remedy of tuition reimbursement, that remedy is not the primary purpose of holding an impartial hearing.

The Federal and State statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services. The collaboration begins when a child is referred to, and evaluated by, the CSE. The parents' concerns and desires are generally documented when a social history is obtained. Parents are involved with the CSE in preparing each child's IEP. Disagreements about the services to be provided to a child are to be resolved promptly through an impartial hearing. It is imperative that parental complaints be brought to a CSE's attention, so that the board of education has the opportunity to rectify the CSE's mistakes or omissions, or to agree to the parent's request for other services (Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]).

Respondent's delay until the middle of the 1994-95 school year to challenge the CSE's inaction precluded petitioner from rectifying its CSE's mistake and providing the child with appropriate special education services during the 1993-94 school year, or offering the child an appropriate program for the 1994-95 school year. Respondent has been awarded tuition reimbursement for the 1994-95 school year. On balance, I find that equitable consideration 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; Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-12; and Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-15).

THE APPEAL IS SUSTAINED.

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