97-092

       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 the cost of his son’s tuition at a private school for the 1995-96 and 1996-97 school years. The appeal must be sustained.

        Preliminarily, I will address the procedural issues raised in this appeal. Respondent contends that the appeal should be dismissed as untimely in that it was served after the time frame set forth in the Regulations of the Commissioner. State regulation requires that a petition for review of an impartial hearing officer’s decision be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). The hearing officer’s decision in this proceeding was dated October 24, 1997. Although there is no indication in the petition as to when petitioner received a copy of the decision, Exhibit C to the petition is an affidavit of service which indicates that a copy of the petition was affixed to respondent’s door at respondent’s home address and mailed to that same address on November 24, 1997. This was reportedly done after three attempts to personally serve the petition upon respondent. The affidavit of service also indicates that the process server confirmed that the address was correct by speaking with respondent. On December 12, 1997, petitioner’s attorney received a letter from the Appeals Coordinator at the Office of Counsel at the State Education Department informing her that service of the petition was defective in that prior permission is required for alternate service, but that a new petition complying with the Regulations of the Commissioner could be served upon respondent and filed with the Office of Counsel. The board of education’s attorney attached an affidavit to the petition, indicating that she served a notice of petition and amended verified petition upon the agent for respondent’s attorneys on December 12, 1997.

        In his answer, respondent indicates that he received the decision on October 27, 1997. There is no assertion in the answer with respect to when petitioner received the decision. Though respondent does not indicate when he was served with the petition, I note that on December 12, 1997 his attorney orally asked the Office of State Review for an extension of time to file an answer. Respondent’s attorney was advised that no petition had been received by the Office of State Review, and therefore, the time to file an answer had not begun to run. However, respondent’s answer indicates that respondent’s attorney agreed to accept service of the petition on December 12, 1997 which was more than 40 days after the decision was received by petitioner. Respondent admits that he was not unduly prejudiced by the delay (See answer #19). Nevertheless, respondent asserts that he did not waive his right to raise the affirmative defense of untimeliness. He argues that petitioner’s failure to comply with the regulations regarding service, combined with its failure to demonstrate that there was a reasonable excuse for the delay, are factors that should be considered in determining whether equitable considerations support respondent’s claim for reimbursement.

        Petitioner first attempted service was within the required time frame. Respondent was on notice that petitioner intended to seek review of the hearing officer’s decision as of November 24, 1997, when service was first attempted. Proper service was effectuated only a short time after the required 40 days and immediately after petitioner was advised of the defective service. As noted above, respondent does not allege that he has been prejudiced by petitioner's delay. In view of these circumstances, I will exercise my discretion and excuse the delay (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35).

        The second procedural issue is raised by petitioner, which alleges that pursuant to the amendments to the Individuals With Disabilities Education Act (IDEA), effective on or about June 4, 1997, respondent has no standing to request tuition reimbursement for either the 1995-96 or 1996-97 school years. Petitioner relies upon what is now (20 USC 1412 [a][10][C][ii]), which provides that a court or a hearing officer may award tuition reimbursement to the parents of a child with a disability who has previously received special education and related services under the authority of a public agency, when the child is enrolled by the parents in a private school and the court or hearing officer determines that the public agency has not offered a free appropriate pubic education to the child. The child in this proceeding, reportedly, has never attended public school or received services from petitioner.

        I find that petitioner's argument is without merit because respondent had initiated this proceeding in 1996, prior to the effective date of the amendment to IDEA. The record shows that respondent first requested a hearing in July, 1996, at which he sought reimbursement for the 1995-96 school year. The initial hearing scheduled for August 6, 1996, was postponed to the beginning of September. Both parties sought a postponement of the September hearing. Neither party appeared on the September hearing date, whereupon the hearing officer dismissed the case without prejudice. Respondent renewed his request for a hearing in June, 1997. The hearing began on June 27, 1997 during which respondent requested tuition reimbursement for both the 1995-96 and 1996-97 school years. I find that respondent has standing to seek an award for tuition reimbursement for the cost of his son’s tuition for the 1995-96 and 1996-97 school years. In doing so, I do not reach the question of whether the statutory amendment has in any way limited the authority of a hearing officer to grant relief pursuant to the Supreme Court's decisions in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

        Respondent first became aware of his son’s learning disability when his son was in the fifth grade of a private school. He then enrolled his son in St. Cecilia’s, a special education school, which the child attended from fifth to eighth grade. For the ninth grade, the child was enrolled by respondent in the R.E.A.C.H. program of the Theodore Ryken Education Center (Ryken Education Center), a private college preparatory program for students with learning disabilities. The boy reportedly attended self-contained special education classes for instruction in English, mathematics and science, and he was mainstreamed for other subjects. A scribe assisted him with note taking. For the tenth grade during the 1995-96 school year, respondent's son attended self-contained classes for science and mathematics at the Ryken Education Center. He continued to have the assistance of a scribe in his mainstreamed classes. Although the Director of the R.E.A.C.H. program testified that the boy had great success during the 1995-96 school year, the boy's counselor testified that the private school became aware that the boy had difficulty with reading comprehension, language and written expression during that school year. For the 1996-97 school year, respondent's son was mainstreamed in all of his subjects at the Ryken Education Center. However, he received two twenty-five minute periods of resource room services per day. He also received "language therapy", which was not speech/language therapy, twice per week, and individual as well as group counseling once per week. The counseling was provided to address the boy's feelings of frustration and embarrassment about his disability.

        As noted above, respondent initially sought reimbursement for his son's tuition at the Ryken Education Center during the 1995-96 school year by requesting a hearing in July, 1996. That proceeding was dismissed without prejudice in September, 1996, after neither party was prepared to proceed at that time. Respondent did not renew his request for a hearing until June, 1997. Since the board of education was not prepared to proceed when the hearing began on June 27, 1997, respondent, the Director of the R.E.A.C.H. program, and the boy's counselor each briefly testified. Respondent also introduced four documents, one of which was a profile of the twelve students in the boy's resource room class. The hearing was then adjourned by mutual consent until July 9, 1997. On that date, the board of education's representative did not appear. The hearing officer was aware that the board's representative had tried to contact her through petitioner's Impartial Hearing Office to request an adjournment because the board's witnesses were reportedly unavailable. However, the hearing officer was unable to speak to the board's representative, and she was reluctant to grant an adjournment because of the requirement that she render her decision within 45 days after petitioner's receipt of respondent's hearing request (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). Therefore, the hearing officer closed the hearing.

        In her decision which was rendered on October 24, 1997, the hearing officer 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, supra). The hearing officer found that the board of education had failed to sustain its burden of showing that its recommended placement was appropriate. She found that respondent met his burden of demonstrating that the child was placed in a program which met his social, physical, academic and management needs with other students that had similar profiles. She noted that the child made progress in the R.E.A.C.H. program, and that he had a good prognosis for further academic achievement. Additionally, the hearing officer found that the equities favored the respondent in that the board of education was aware of the child’s educational needs, and that it was on notice of the parents’ dissatisfaction with the recommendations for both years in question. Accordingly, she ordered the board of education to reimburse respondent for the cost of his son’s tuition at the Ryken Education Center for the 1995-96 and 1996-97 school years.

        Petitioner contends that it was unable to present its case because of the hearing officer's "premature closing of the impartial hearing record on July 9, 1997". Petitioner has submitted an affidavit by its representative, who asserts that he was unavailable to attend the hearing on July 9, 1997 because he was committed to attend two other hearings that day. He further asserts that the board's witnesses were unavailable on that day. Petitioner further contends that the record before the hearing officer was inadequate to support her decision awarding tuition reimbursement to respondent for the 1995-96 and 1996-97 school years. Respondent asserts that the hearing officer acted properly in closing the record on July 9, 1997, and he argues that the record was adequate to support the hearing officer's determination.

        A hearing officer may grant an adjournment at the request of either party. In doing so however, the hearing officer must take care to ensure that an adjournment will not preclude him or her from rendering a decision within the 45-day period prescribed by regulation, unless at least one party consents to an extension of the 45-day period as is permitted by 34 CFR 300.512 (c). While I recognize that petitioner has a significant number of hearings which are proceeding simultaneously, and that it may be difficult to secure the attendance of its staff at hearings which are held during the summer, I agree with respondent that petitioner cannot dictate when hearings will be held by simply not appearing on the dates for which hearings are scheduled. Nevertheless, I find that on the facts of this case that the hearing officer erred in closing the record on July 9, 1997.

        I do so because of the dearth of information about the child, and his special education needs in the record. There is no evaluative data about the boy. Although one of respondent's witnesses alluded to an amendment of the boy's individual education program (IEP) for the 1996-97 school year to include language therapy, there is no IEP for the boy in the record for any school year. Absent an IEP, it is impossible to ascertain what the boy's special education needs were, or what would have been appropriate annual goals and short-term instructional objectives for him. I recognize that IEPs are typically entered into evidence by boards of education as part of their attempt to demonstrate that they have met their burden of proving that they have offered children a free appropriate public education. Petitioner's failure to introduce an IEP for either the 1995-96 or 1996-97 school years precluded it from meeting its burden of proof, and it precluded a meaningful review by the hearing officer or the State Review Officer (Application of a Child with a Disability, Appeal No. 94-13).

        The failure of either party to introduce an IEP for the 1995-96 and 1996-97 school years, coupled with the dearth of evaluative data about the child, is also significant in determining whether respondent met his burden of proof with regard to the appropriateness of the services which he obtained for his son at the Ryken Education Center (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370, i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29).

        Although the record shows that the child has attended a special education school or received special education services since the fifth grade, there is no indication in the record how those programs met the child's needs. The record shows that before being admitted to the Ryken Education Center, the child scored in the fifth percentile on a standardized test. However, there is no information in the record explaining that score. Indeed, the only specific indication in the record of the child's learning disability was in the testimony by the boy's counselor, who alluded to the boy's difficulty with reading comprehension, language and written expression while in the tenth grade. I have reviewed the brief testimony of respondent, the Director of the R.E.A.C.H. program, and the boy's guidance counselor, and I am constrained to find that it was inadequate to establish the nature and extent of the boy's special education needs, or how those needs were specifically addressed by the R.E.A.C.H. program. What little evidence which was introduced, e.g., Exhibits A-D, dealt only with the 1996-97 school year, and did not address the prior school year.

        With respect to the third criterion for tuition reimbursement, i.e. whether equitable considerations support respondent’s claim for reimbursement, I am also obliged to find that the record is inadequate. Although respondent testified that there had been some involvement with petitioner's committee on special education (CSE) when the boy was in the seventh grade, he could not explain what, if any, action the CSE had taken then, or at any subsequent time. Therefore, it is unclear whether respondent has cooperated with petitioner's CSE. From what little information which is in the record, it appears that respondent waited until the end of the school year to indicate his dissatisfaction with petitioner's action or failure to act, with regard to his son. However, respondent should have the opportunity to demonstrate that equitable considerations do support his claim. Respondent, who was not assisted by an attorney or experienced advocate at the hearing, should also have the opportunity to demonstrate exactly how the private school met his son's special education needs. In view of the fact that neither party has had an appropriate opportunity to present its case, I find that there should be a new hearing, at which both sides will have the opportunity to present their respective cases on all three Burlington issues.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the proceeding is hereby remanded to the board of education for referral to its Impartial Hearing Office to immediately assign another hearing officer to conduct a new hearing.