99-004

      Petitioner, the Board of Education of the Ticonderoga Central School District, appeals from the determination by an impartial hearing officer that petitioner was required by the terms of another hearing officer's decision to pay for the tuition of respondents' son at the Gow School for the 1997-98 and 1998-99 school years. In reaching that conclusion, the hearing officer dismissed respondents' two requests for an impartial hearing with respect to their son's educational program and placement for those school years. Respondents cross-appeal from the hearing officer's decision because he did not explicitly order the Board of Education to pay for their son's tuition during the 1997-98 and 1998-99 school years, and suggested there were other ways to enforce the prior hearing officer's decision. The appeal must be dismissed. The cross-appeal must also be dismissed.

        Respondents' son is 20 years old. He was classified as learning disabled by petitioner's committee on special education (CSE) while in the first grade during the 1987-88 school year. The boy remained in petitioner's school through the ninth grade during the 1995-96 school year. Respondents unilaterally enrolled their son in the Gow School for the 1996-97 school year. In December, 1996, respondents requested that an impartial hearing be held to review the appropriateness of the educational program which petitioner had offered to provide to the boy during the 1996-97 school year. They sought to obtain an award of tuition reimbursement.

        The hearing was held before James P. Walsh, Esq. It began in December, 1996, and it ended on February 24, 1997. On May 28, 1997, Mr. Walsh rendered his decision, a copy of which is annexed to the petition in this appeal as Exhibit 2. On pages 4 and 5 of his decision, Mr. Walsh identified the "basic issue" to be determined as " … whether [respondents], having removed the student from the public education placement previously utilized and having unilaterally enrolled the student at the Gow School, South Wales, New York, for the 1996-97 school year, are entitled to obtain reimbursement of tuition and other costs encountered by the Parents because of such unilateral placement". He found that the individualized education program (IEP) which the Ticonderoga CSE had prepared for the student's education during the 1996-97 school year did not provide the boy with an educational program which was reasonably calculated to allow him to realize educational benefits, and that the IEP was in any event invalid because the mandatory parent member of the CSE had not attended the meeting at which the IEP was prepared. The hearing officer also reviewed the boy's educational experience in petitioner's schools, and concluded that petitioner had failed to successfully address the boy's severe language disability.

        Mr. Walsh further found that the educational program which the Gow School provided to respondents' son during the 1996-97 school year met the boy's special education needs, although there was no evaluative data to demonstrate that he had made progress in that placement. He concluded that the boy's unilateral placement in the Gow School was appropriate, notwithstanding the fact that it was a residential placement and therefore more restrictive than the boy's prior placement. Mr. Walsh also found that equitable considerations supported respondents' claim for an award of tuition reimbursement.

        Relying upon the tripartite test for an award of tuition reimbursement established by the United States Supreme Court in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]), Mr. Walsh determined that respondents were entitled to an award of tuition reimbursement. He ordered the Ticonderoga Central School District to pay respondents the sum of $24,544.00 for their son's tuition at the Gow School during the 1996-97 school year, and the sum of $380.00 for their travel expenditures in connection with the boy's placement at the Gow School.

        Beneath his signature, Mr. Walsh added an "Epilogue," which is the subject of the dispute in the present proceeding. He indicated his belief that the boy's educational deficits could not be remediated by one year of attendance at the Gow School, and that the boy would be appropriately placed at the Gow School for the remainder of his high school career. Mr. Walsh went on to state that:

"I have not provided, in the above Decision, that the Ticonderoga Central School District reimburse [respondents] for tuition at the Gow School for the 1997/98 and 1998/99 school years, in addition to the 1996/97 school year, because I do not believe that I have the jurisdiction to do so. My concern is, however, that without such Order, both the District and the Parents will face the necessity of, in each subsequent school year, proceeding through the Due Process Hearing in order to obtain an Impartial Hearing Officer's determination that tuition reimbursement is appropriate. I would like, if possible, to spare both the District and the Parents that additional cost and additional angst.

To the extent that I have jurisdiction, therefore, it is my determination that, having failed to provide [the child] with an appropriate educational program sufficient to enable him to read, write and spell at greater than a third grade level during his ten years of attendance at the Ticonderoga Central School District facilities, and upon my determination that the only reasonable hope of addressing [the child's] severe language learning deficit within an appropriate period of time is his continued attendance at the Gow School for the remainder of his high school years, the Ticonderoga Central School District should be responsible for the payment of tuition and related costs incur [sic] in connection with the attendance of [the child] at the Gow School for such years" (Pages 54-55 of Exhibit 2 to the petition).

        Mr. Walsh then ordered that the boy attend the Gow School for the 1997-98 and 1998-99 school years, and he directed petitioner to reimburse respondents for the cost of the boy's tuition for each of those school years and for the cost of five round trips to the school during each school year.

        Petitioner, which was reportedly represented by another law firm at the time of Mr. Walsh's decision, did not appeal from the decision. Petitioner's CSE prepared IEPs for respondents' son for the 1997-98 and 1998-99 school years. Those IEPs are not part of the limited record before me. By letter dated May 16, 1998, respondents requested that an impartial hearing be held with regard to their son's educational program for the 1997-98 school year, and to obtain an award of tuition reimbursement (Exhibit 3 to the petition). Respondents' attorney indicated that he believed the matter had been covered by Mr. Walsh's decision, but he had requested the hearing to protect his clients' rights pending further discussion with the State Education Department about placing the boy in the Gow School, which has not been approved by the Department to provide instruction to children with disabilities. Respondents' attorney reiterated his request for a hearing in a letter dated September 11, 1998 (Exhibit 4 to the petition).

        Petitioner appointed Martin J. Kehoe, III, Esq., to serve as the hearing officer with regard to respondents' request to receive tuition reimbursement for the 1997-98 school year. Respondents also objected to their son's IEP for the 1998-99 school year, and requested a hearing to review that IEP and obtain an award of tuition reimbursement. By agreement of the parties, the two hearings were consolidated.

        Prior to the start of the hearing, Mr. Kehoe conducted a pre-hearing conference call with the parties' attorneys on October 5, 1998. One of the issues which was discussed was whether Mr. Walsh's decision was binding upon the school district with regard to the 1997-98 and 1998-99 school years. The parents' attorney contended that the school district was bound by the "epilogue" portion of Mr. Walsh's decision because it had not appealed from the hearing officer's decision (Exhibit 5 to the petition). The school district's attorney asserted that Mr. Walsh recognized that he lacked jurisdiction to make any determination with respect to the boy's placement for the 1997-98 and 1998-99 school years. He argued that Mr. Walsh's "epilogue" was of no legal significance, and therefore was not something to be appealed to the State Review Officer (Exhibit 6 to the petition).

        In a brief letter decision dated December 3, 1998, Mr. Kehoe indicated that he had adopted respondents' position i.e., that:

"…payment for the child's education for the school years 1997-1999 should be paid by the District. I have read Hearing Officer James Walsh's decision dated May 28, 1997 and I find that he ordered just such relief. My reasoning for dismissing the petition [the parents' claim for tuition reimbursement for the 1997-98 and 1998-99 school years] is that the District never appealed the mentioned Order of Impartial Hearing Officer James Walsh. Accordingly, it remains in full force and effect… The parents may seek enforcement of the prior order by an means available." (Exhibit 1 to the petition)

        At the request of respondents' attorney for a clarification, Mr. Kehoe wrote to both attorneys on December 21, 1998 that it was unnecessary to reach the merits of the parents' assertions, and that he lacked authority to issue an order compelling the Board of Education to comply with Mr. Walsh's order (Exhibit 9 to the petition).

        The Board of Education contends that Mr. Kehoe erred because Mr. Walsh clearly stated in his decision that his determination and order applied only to the parents' tuition reimbursement claim for the 1996-97 school year. It points out that Mr. Walsh explicitly notified both parties of their right to appeal from his decision on page 53 of his decision, immediately prior to his signature, and made no reference to appealing from his subsequent "epilogue" in the remaining three pages of his decision which constituted the "epilogue". Petitioner asserts that Mr. Walsh was undoubtedly aware that as a hearing officer he could not simply assume jurisdiction to determine disputes which might arise with respect to the student's educational program and placement during the 1997-98 and 1998-99 school years (see Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-11; Application of the Board of Education of the Enlarged City School District of the City of Saratoga Springs, Appeal No. 96-9, Application of a Child with a Disability, Appeal No. 96-19). It contends that the parties should proceed to a hearing to determine whether respondents are entitled to obtain an award of tuition reimbursement for the 1997-98 and 1998-99 school years.

        Respondents acknowledge that Mr. Walsh doubted that he had jurisdiction to make tuition reimbursement awards for the 1997-98 and 1998-99 school years, but they assert that he in fact did order the Board of Education to pay for their son's education at the Gow School during those school years. The parents argue that the issue in this appeal is not whether Mr. Walsh should have made a decision, with respect to the two school years, but whether the Board of Education is barred from challenging the "epilogue" portion of Mr. Walsh's decision because petitioner failed to appeal from any part of his decision. They rely upon the "finality" provisions of Federal and State statute (20 USC 1415[i] [l] [A]; Section 4404 [l] of the New York State Education Law). Those statutes provide that a decision made in a hearing is final, except that any party may appeal from the decision to the State Review Officer. In this instance, no appeal was taken from Mr. Walsh's decision. Therefore, respondents contend that Mr. Kehoe correctly determined that the Board of Education was bound by the terms of Mr. Walsh's decision.

        I agree with respondents that if Mr. Walsh in fact ordered the Board of Education to pay for their son's education at the Gow School during the 1997-98 and 1998-99 school years, petitioner would be bound by the terms of his unappealed decision. This would be true even if I disagreed with his factual or legal conclusions (Antkowiak v. Ambach, 838 F.2d 635 [2d. Cir., 1988]; Application of a Child with a Disability, Appeal No. 95-24). However, I must first determine whether in fact Mr. Walsh's "epilogue" was part of his decision for purposes of the finality provisions of Federal and State law.

        As petitioner points out, the epilogue is a separate portion of the hearing officer's decision. Nevertheless, it is still part of his decision. The epilogue includes a specific "Determination and Order" that the boy attend the Gow School, and that the Board of Education reimburse his parents for their tuition expenditures at the Gow School during the 1997-98 and 1998-99 school years, as well as their appropriate transportation expenditures during those school years. Although Mr. Walsh expressed doubt about his jurisdiction to grant the relief of tuition reimbursement for the 1997-98 and 1998-99 school years, he did in fact order that relief "to the extent that I have jurisdiction." His jurisdiction could have been challenged in a timely appeal from his decision. Since petitioner did not appeal from his decision, neither a hearing officer such as Mr. Kehoe nor I may reach the question of Mr. Walsh's jurisdiction. Therefore, his decision and order must stand as it was written. I recognize that both parties diligently attempted to resolve this matter by other means. However, my ability to intervene is limited by the finality provisions of Federal and State law. Accordingly, I must dismiss petitioner's appeal.

        Respondents assert that they were entitled to obtain an order from Mr. Kehoe directing petitioner to reimburse them for the cost of their son's tuition during the 1997-98 and 1998-99 school years, based upon Mr. Walsh's decision. Pursuant to the former 34 CFR 300.504 (now 34 CFR 300.507), respondents were entitled to obtain an impartial hearing with respect to petitioner's proposed change of or refusal to change their son's educational placement. They requested hearings with respect to both the 1997-98 and 1998-99 school years, as was their right. Tuition reimbursement is one form of relief which a hearing officer may grant in accordance with the Burlington criteria. However, respondents sought to enforce Mr. Walsh's decision awarding them tuition reimbursement. Under the circumstances, I find that Mr. Kehoe correctly determined that he did not have jurisdiction. Respondents' remedy is to seek enforcement of Mr. Walsh's decision in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, or in Federal Court (see Blazejewski v. Board of Ed. of the Allegany Central School District, 560 F. Supp. 701 [W.D. N.Y., 1983]; A.T. and I.T. on behalf of Z.T. v. New York State Education Department et al., 1998 WL 765371 [U.S. D.C. E.D. N.Y., 1998]).

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.