97-041

        Petitioners appeal from an interim decision of an impartial hearing officer which granted respondent's motion to limit the scope of the hearing in this proceeding to the 1996-97 school year, thereby denying petitioners' claim for tuition reimbursement for the 1994-95 and 1995-96 school years. The appeal must be sustained.

          Petitioners' daughter, who is eight years old, apparently suffered some prenatal brain damage, and has been diagnosed as having an attention deficit hyperactivity disorder (ADHD). The child apparently exhibits severe acting-out behaviors in class, and does not adjust well to changing situations. She has been classified by respondent's committee on special education (CSE) as other health impaired (see 8 NYCRR 200.1 [mm][10]). Her classification is not disputed in this proceeding.

         Petitioners' daughter was reportedly referred to the CSE by the Poughkeepsie Day School, the private school which the child was attending in the spring of 1994. The school psychologist who evaluated the girl for the CSE reportedly recommended that the child be placed in a class with a child to adult ratio of 8:1+1. The limited record which is before me does not include the child's individualized education programs (IEPs) for the 1994-95 and 1995-96 school years. In any event, the child never attended classes in respondent's schools. Instead, she was enrolled by petitioners in the Randolph School, a private school which is reportedly located in Hughsonville, New York. The girl remained in that school, at petitioners' expense, until at least the date of the hearing in this proceeding.

        On or about August 28, 1996, respondent's CSE recommended that the child receive Resource Room/Consultant Teacher services for 90 minutes per day, and counseling. The girl's IEP indicated that she would receive instruction on a twelve-month basis. As a result, petitioners requested that an impartial hearing be held. In her letter requesting a hearing (H.O. Ex. 3), the child's mother, who was not represented by an attorney at that time, indicated that the hearing was to help determine if respondent "could be responsible for her [child's] tuition currently and reimbursement for previous years attended." An impartial hearing was scheduled and was commenced on April 16, 1997.

        At the outset of the hearing, respondent asked the impartial hearing officer to limit the scope of the hearing to the 1996-97 school year, on the grounds that petitioners had failed to identify what other school years were involved, and that petitioners had delayed too long in raising their claim with respect to those school years. Respondent also asked the hearing officer to deny petitioners' tuition reimbursement request for the 1996-97 school year because Randolph School allegedly did not provide any service which addressed the girl's special education needs.

        Respondent's Director of Special Education Services testified about respondent's practice of providing due process notices to parents, and about the IEP which the CSE had prepared for the 1996-97 school year. She also testified that the Randolph School provided a regular education program, and had not been approved by the State Education Department as a school for children with disabilities. The Director of Special Education Services testified that petitioners had received respondent's description of parental due process rights (Exhibit 2) on a number of occasions. She also testified that on at least one occasion in the past, the child's mother had indicated to her that she was considering requesting an impartial hearing, and that she had encouraged the mother to engage in mediation discussions in lieu of having a hearing.

        At the end of the first day of the hearing, the hearing officer advised the parties' attorneys that he would rule on respondent's motion after reviewing the decisional law which respondent's attorney had provided to him. He invited petitioners' attorney to submit any legal argument he wished to make in opposition to respondent's motion. Petitioners' attorney stated that, if " ... you are going to rely upon the facts adduced at the hearing, I would like to have a chance for my own client to testify on the issue" (Transcript, page 116). The attorneys then had an off-the-record discussion with the hearing officer, who adjourned the hearing. The hearing officer indicated that he would review the legal authorities which respondent's attorney had cited. He also indicated that:

"If I decide that I need [the mother's] testimony on this question, I will call both attorneys and see if we can set something up at an earlier date" (Transcript, page 177).

        The hearing resumed on May 22, 1997. At the beginning of the hearing, the hearing officer distributed copies of his decision, dated May 13, 1997, on respondent's motion to limit the scope of the hearing to the 1996-97 school year. In his decision, the hearing officer indicated that petitioners' attorney had acknowledged that the legal decisions to which respondent referred appeared to support respondent's motion, but that petitioners' attorney had asked him to refrain from deciding the motion until all of the facts were in. The hearing officer declined to do so, and he granted the motion, which barred petitioners' tuition reimbursement claim for the 1994-95 and 1995-96 school years. The hearing officer held that petitioners' tuition claims for those two years were barred by the equitable doctrine of laches. His decision was premised upon his finding that at no time during the 1994-95 and 1995-96 school years had petitioners requested an impartial hearing to challenge the IEPs which had been prepared for the child, or to seek tuition reimbursement. The hearing was adjourned to allow petitioners to appeal from the hearing officer's determination.

        Petitioners argue that they were unfairly deprived of an opportunity to present testimony and documentary evidence to rebut respondent's argument that their tuition reimbursement claim for the two school years was barred by laches. Respondent contends that petitioners have failed to offer, or even describe, any relevant evidence to rebut the testimony of respondent's Director of Special Education Services or the documents which respondent entered into evidence at the hearing.

        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, 510 U.S. 7 [1993]). There is no explicit time limitation for asserting a claim for tuition reimbursement. Given that fact, as well as the fact that this proceeding concerns the education of a child with a disability, the timeliness of petitioners' claim for tuition reimbursement during the two preceding school years must be considered as part of the determination of the third criterion for an award of tuition reimbursement, i.e., whether equitable considerations support their claim for tuition reimbursement (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25; Application of a Child with a Disability, Appeal No. 95-32; Application of a Child with a Disability, Appeal No. 95-37).

        In determining whether it would be equitable to award tuition reimbursement for a prior school year, a hearing officer should ascertain the extent to which the CSE had given the parents notice of their due process rights, the date when the parents became aware of their right to seek an award of tuition reimbursement, the date when the CSE became aware, or should have become aware, of the parents' dissatisfaction with the education program which the CSE had recommended for the child, and whether the parents had cooperated with the CSE during the time in question (Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-11). Plainly, these are factual questions which cannot be determined until both parties have had the opportunity to present evidence regarding those issues (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][9]). I find that petitioners have not had the opportunity to present their evidence. In addition, I find that the record does not support the hearing officer's decision, as is evidenced by respondent's submission of additional documentary evidence with its answer in this appeal, such as the due process notices which were allegedly sent to petitioners for the 1994-95 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision to limit the scope of the hearing to petitioners' claim for tuition reimbursement for the 1996-97 school year is hereby annulled, and

IT IS FURTHER ORDERED that this matter is remanded to the hearing officer for a full hearing with regard to petitioners' claim for tuition reimbursement for the 1994-95, 1995-96, and 1996-97 school years.