97-079

        Petitioner, the Board of Education of the Pawling Central School District, appeals from that portion of the decision of an impartial hearing officer which found that its equity defense of laches was without merit and which ordered it to reimburse respondents for the cost of their son’s tuition at the Kildonan School (Kildonan) for the 1995-96 and 1996-97 school years. The appeal must be dismissed.

        Respondents’ son attended kindergarten at petitioner’s elementary school during the 1991-92 school year. In October, 1992, when the child was in the first grade, he was referred to the school’s Child Study Team by his teacher and his mother because he was unable to identify several letters, sounds and numbers. The child’s mother consented to an evaluation of her son, and he was referred to petitioner’s committee on special education (CSE) which met in January, 1993. The CSE recommended an interim classification of learning disabled, and that the child receive resource room services one hour per day, one thirty minute counseling session per week and remedial reading four times per week. The boy’s classification is not in dispute. A progress report for the third quarter of the child’s first grade year indicated that he needed improvement in remembering basic vocabulary, using word analysis, and reading orally. The child’s teacher commented that the resource room support had helped the child academically and emotionally, and that such support should continue to be part of the child’s educational plan.

        The CSE met in the summer of 1993 to develop the child’s individualized education plan (IEP) for the 1993-94 school year. It was agreed that the child would repeat first grade that year. The CSE recommended that the child remain classified as learning disabled, and that he receive resource room services one period per day and four group sessions of remedial reading per week. The CSE also recommended that the child receive individual counseling once per week. In an April, 1994 report, the school’s reading specialist described the child’s progress as slow and inconsistent.

        The child’s 1994-95 IEP was developed in April, 1994. The CSE recommended that the child continue to be classified as learning disabled, and that the child be placed in an "inclusion model", described as a regular education classroom with an aide who also assisted another student. The CSE also recommended resource room services for one period per day for written language and reading, as well as individual and small group counseling twice per week, and four sessions of remedial reading in the classroom. In October of the child’s second grade year, two incidents occurred during which the child demonstrated behavior described as unprovoked and unmanageable. Representatives of the school met with the child’s parents and expressed concern about managing the child in the school setting. A program that included crisis intervention/management was recommended. The child, however, completed the second grade at petitioner’s elementary school. His year end progress report indicated that he received "Satisfactory" or "Improvement Shown" in most subjects. The child’s teacher commented that the child had shown wonderful growth over the school year.

        The CSE met in April, 1995 to develop the child’s 1995-96 IEP. The CSE recommended that the child remain classified as learning disabled. It recommended an inclusion model with a full time assistant and 90 minutes per week reading support. The related services of counseling and remedial reading also were recommended.

        The child’s mother was dissatisfied with her son’s IEP for the 1995-96 school year and began to explore alternatives. She had her son tested at Kildonan, a private school in Amenia, New York that serves students in grades two through twelve with specific reading and writing disabilities. Kildonan is not approved by the State Education Department as a school for children with disabilities. At the beginning of August, 1995, the child’s mother attempted to contact the district’s Director of Special Education, but was advised by the school principal that the Director had resigned and had not yet been replaced. She informed the principal that her son was dyslexic and that she had learned of the Orton-Gillingham (OG) method of teaching students with dyslexia. The OG program is a structured, sequential, multisensory approach to teach children language arts. The child’s mother advised the principal that she wanted her son in an OG program provided either at the elementary school or at Kildonan. She also told the principal that she planned to reject her son’s 1995-96 IEP. The principal indicated that he would pass the information along to the new Director of Special Education once one was appointed.

        No CSE meeting was ever scheduled to address the issues raised by the child’s mother. In September, 1995, respondents placed their son at Kildonan for the 1995-96 school year. By letter dated September 7, 1995, respondents advised the district Superintendent of Schools that their son was enrolled at Kildonan and would need transportation. In January, 1996, respondents were advised that a new Director of Special Education had been appointed and that they would be contacted by him. The Director of Special Education did not contact respondents, and in February, 1996, respondents hired an attorney. Respondents’ attorney contacted the school and was advised that the school did not have a placement for the child, but that it was interested in resolving the matter.

        In April, 1996, the CSE held a meeting at Kildonan for the child’s annual review. The minutes taken at the meeting indicate that the child’s parents expressed dissatisfaction with the program in which the child had been placed while at petitioner’s elementary school (Exhibit VV). Concerns also were raised regarding the child’s triennial review and his reaction toward the assessment process. It was agreed that no recommendation would be made, and that the CSE would wait for the parents’ decision on how and when to proceed with the child’s evaluation.

        In May, 1996, respondents’ attorney submitted a request for reimbursement for the child’s tuition at Kildonan for the 1995-96 and 1996-97 school years to the Director of Special Education. In May, 1996, the CSE contacted respondents to advise them that their son was due for his triennial evaluation. The CSE advised respondents that it would wait until June 15, 1996 for their permission to proceed with the evaluation. A CSE meeting was held on September 6, 1996, during which the parties agreed to continue to negotiations regarding the child's placement. Negotiations included the issue of reimbursement for the 1995-96 and 1996-97 school years. The CSE did not recommend an educational placement for the child for the 1996-97 school year. In February, 1997 respondents received a formal settlement offer. They rejected the offer and retained a new attorney. On April 2, 1997, respondents requested an impartial hearing seeking tuition reimbursement for the 1995-96 and 1996-97 school years.

        The hearing was held on various days in May, June and July, 1997. The issues presented at the hearing were whether the child’s placement at Kildonan was appropriate and whether respondents should be denied reimbursement based upon petitioner’s equity defense of laches. The district conceded that it did not have an appropriate placement for the child for the 1995-96 and 1996-97 school years. The hearing officer rendered his decision on September 4, 1997. He found that respondents’ placement of their son at Kildonan for the 1995-96 and 1996-97 school years was appropriate. He further found that petitioner’s defense of laches was without merit because there was no evidence to support petitioner’s contention that it was prejudiced or disadvantaged by the timing of respondents’ request for a hearing. Accordingly, the hearing officer ordered petitioner to reimburse respondents for tuition paid for the placement of their son at Kildonan for the 1995-96 and 1996-97 school years.

        Petitioner’s appeal is limited to a challenge of the hearing officer’s decision finding the equitable defense of laches without merit. Specifically, petitioner argues that the hearing officer erred in denying the defense of laches for the 1995-96 and 1996-97 school years; that the hearing officer erred in determining that respondents’ actions between September, 1995 and April, 1996 constituted good cause to excuse their alleged failure to timely exercise their right to demand an impartial hearing; that the hearing officer erred in determining that respondents’ attempt to raise their concerns about their son’s program with petitioner’s personnel excused their alleged failure to timely demand a hearing; that the hearing officer erred in determining that the CSE’s meeting minutes of September, 1996 excused respondents’ alleged failure to timely demand an impartial hearing; that the hearing officer erred in determining that there was no unreasonable delay by respondents; that the hearing officer erred in determining that the respondents’ May 30, 1996 letter requesting tuition reimbursement was a timely exercise of their right to request a hearing; and that the hearing officer erred in determining that respondents’ use of informal avenues of resolution of their dispute was appropriate.

        The issue that must be decided here is whether equitable considerations support the parents’ claim for reimbursement. 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]).

        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). Petitioner has conceded that it could not meet its burden of proof that it provided an appropriate placement for the child for the 1995-96 and 1996-97 school years. It also has conceded that respondents had established that the services it selected for their son were appropriate (See Memorandum of Law on behalf of the Board of Education of the Pawling Central School District, page 1). Thus, the first two criteria for an award of tuition reimbursement have been met.

        With respect to the third criterion for tuition reimbursement, petitioner claims that respondents did not assert their hearing right in a timely fashion, and therefore, their claims for tuition reimbursement should be barred by the equitable doctrine of laches. Laches is an equitable defense which may be asserted when a party, by omission or neglect, fails to assert a right in a timely fashion and that lapse of time causes prejudice to the adverse party (Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187 [2d Cir. 1996]). Consistent with the equitable nature of laches, courts typically decline to apply the doctrine when the party against whom it would be applied can show good cause as to why it should not be applied (Id. at 191). Petitioner asserts that respondents were initially advised of their due process rights in 1992 and repeatedly advised since that time. It asserts that respondents' hearing request was not made until April, 1997, and argues that it was prejudiced by respondents’ failure to request a hearing in a timely manner because it was denied the opportunity to make changes to the IEP which might have obviated the need for a private placement. It further argues that respondent has not shown good cause why the doctrine of laches should not be invoked.

        The hearing officer found that petitioner’s equity defense of laches was without merit. I agree. The record shows that during the summer of 1995, because there was no Director of Special Education, respondents advised the principal of the elementary school that they were interested in a different placement for their son. The principal indicated that the information would be passed along to the Director of Special Education once one was hired. The record also shows that respondents submitted a request to the Superintendent of Schools for their son’s transportation to Kildonan in September, 1995. Additionally, the record shows that respondents hired an attorney in February, 1996, who entered into settlement negotiations with petitioner’s attorney. Ultimately, in a May, 30, 1996 letter to the Director of Special Education, respondents, through their attorney, requested tuition reimbursement for the 1995-96 school year. This request for tuition reimbursement was within the school year for which reimbursement was being sought (Application of a Child With a Disability, Appeal No. 95-77; Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-17; Application of a Child With a Disability, Appeal No. 96-85). Petitioner argues that an expression of dissatisfaction is not sufficient to put the board of education on notice that a parent will challenge the recommended program in the future and seek reimbursement for a unilateral placement in a private school. (See Bernardsville Board of Education v. J.H., 42 F.3^rd 149 [3^rd Cir. 1994]). It claims that the parents must timely file a request for an impartial hearing and that such a request was not filed until April, 1997. I find that respondents’ discussions with the school principal during the summer of 1995, their request for transportation to Kildonan in September, 1995, their hiring of an attorney in February, 1996, who engaged in settlement negotiations with petitioner, and their May, 1996 request for tuition reimbursement, all of which occurred during the 1995-96 school year, constituted sufficient notice to petitioner that respondents were exercising their due process rights. I further find that the timing of respondents’ request for a hearing did not deprive petitioner of the opportunity to make changes to the recommended program. Petitioner could have done so at any time after the spring of 1995 when it was first advised of respondents’ dissatisfaction with the recommended program. I must also note that petitioner conceded at the hearing that it did not have an appropriate placement for the boy for the 1995-96 and 1996-97 school years (May 7, 1997 Transcript, page 5).

        Respondents’ May 30, 1996 letter also requested reimbursement for the 1996-97 school year. The record shows that settlement negotiations continued through the summer of 1996 and included negotiations for the upcoming 1996-97 school year. The minutes of the September 6, 1996 meeting show that negotiations were ongoing. The record also shows that in February, 1997 respondents received a settlement offer which they rejected. Respondents’ formal request for a hearing, which was filed in April, 1997, was made during the school year for which reimbursement was being sought. Moreover, petitioner was on notice during the entire 1996-97 school year and as early as the spring of 1995 that respondents were dissatisfied with petitioner’s recommended program. Having found that respondents’ requests for reimbursement were timely, I find that the equitable considerations support respondents' claim, and accordingly find that they have satisfied the three criteria for an award of tuition reimbursement for the 1995-96 and 1996-97 school years.

THE APPEAL IS DISMISSED.