99-045

       Petitioner appeals from an impartial hearing officer's decision denying his request for an award of tuition reimbursement upon a finding that the Individuals with Disabilities Education Act (IDEA), as amended in June, 1997, requires that a child must have previously received special education and related services from a school district before such an award may be made. Respondent cross-appeals from the hearing officer's finding that respondent had failed to offer petitioner's son a free appropriate public education (FAPE) because the special class placement which respondent's committee on special education (CSE) had recommended for the child was inconsistent with the requirement that each child with a disability be educated in the least restrictive environment, and because respondent had failed to initiate an impartial hearing to overcome petitioner's lack of consent to the special class placement for his son. Respondent also cross-appeals from the hearing officer's findings that the private school in which petitioner had unilaterally enrolled his son had provided appropriate special education services to the child during the 1998-99 school year, and that petitioner did not have to provide prior notice to the school district of his intention to place the child in the private school. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioner has raised a procedural objection to respondent's cross-appeal. He asserts that I should dismiss the cross-appeal because it was not included in respondent's answer, but was initiated in a separate "notice of cross-petition and petition" which were served by mail upon petitioner's counsel together with respondent's answer to the petition on July 2, 1999. Petitioner relies upon the provisions of 8 NYCRR 279.4 (b), which reads in material part as follows:

"Cross-appeals. A respondent who wishes to seek review of a hearing officer's decision may cross-appeal from all or a portion of the decision by setting forth the cross-appeal in respondent's answer. A cross-appeal shall be deemed timely if it is included in an answer which is served within the time permitted by section 279.5 of the [this] Part."

        Either party in an impartial hearing may appeal from a hearing officer's decision (34 CFR 300.509 [a]; 8 NYCRR 279.1[a]). A party may appeal by serving and filing a petition in accordance with the provision of 8 NYCRR 279.4 (a) or by cross-appealing in its answer pursuant to 8 NYCRR 279.4 (b). I must agree with petitioner that respondent has not complied with the provisions of 8 NYCRR 279.4 (b). Although respondent could have independently appealed from the hearing officer's decision, it was required to do so within 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2 [c]). While the record does not reveal when the Board of Education received the hearing officer's decision, I note that respondent's petition was served 52 days after the date of the decision. Absent an explanation for its delay, I will not accept respondent's petition. Consequently, the cross-appeal is dismissed.

        Petitioner argues that the hearing officer erred in concluding that the amended IDEA precluded an award of tuition reimbursement because his son had not previously been identified as a child with a disability under IDEA, or received special education or related services from the school district. He contends that the 1997 IDEA amendments clarified, rather than changed the legal standards governing an award of tuition reimbursement. Prior to the 1997 IDEA amendments, the United States Supreme Court had held that pursuant to the provisions of 20 USC 1415, a board of education could be compelled to pay for educational services obtained for a child by his or her parents, if the services offered by the board of educational were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations supported the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). In 1993, the Supreme Court held that the remedy of an award of tuition reimbursement was available even if the private school in which a child had been unilaterally enrolled had not been approved by the relevant State educational agency, as is true in this proceeding (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1997]).

        Effective June 4, 1997, the IDEA as amended in material part to read as follows:

"(ii) Reimbursement for private school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of a private agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment" (20 USC 1412 [a][10][c][ii]).

        Petitioner's son entered a regular education kindergarten in respondent's Denton Avenue School in September, 1997. In January, 1998, the child's kindergarten teacher referred the boy to respondent's child study team (Exhibit 1). The kindergarten teacher noted that the child had been receiving remedial speech services, and reported that his speech was slow and labored, with strange inflections. She referred the child because he was often unfocused and inward directed. The child reportedly "stayed with" a topic after the class had moved, and related only marginally to his peers. A special education teacher assessed the boy's educational skills in February, 1998. She reported that the child had demonstrated adequate linguistic, cognitive, attention and motor skills on the Detroit Test of Learning Aptitude – Primary, but that his language and pre-reading skills were below age expectancy (Exhibit 8). In March, 1998, the boy's teacher referred him to respondent's CSE because of his idiosyncratic speech pattern and difficulty beginning and ending tasks without constant direction and refocusing (Exhibit 2). The teacher noted in her referral that the child went to "speech and resource room services in the classroom". The child had reportedly begun receiving resource room services as an "at risk" student in January, 1998 (Transcript, pages 206-207).

        Petitioner's wife consented to having her son evaluated by the CSE. A school psychologist who evaluated the child in April, 1998 reported that petitioner's son had achieved verbal and performance scores of 87 and 85, respectively, on the Wechsler Preschool and Primary Scale of Intelligence – Revised, placing him in the low average range of intellectual functioning (Exhibit 10). She also reported that the boy's attention was more inner than outer directed, and that a lack of awareness of social expectations was hindering his emotional development. The school psychologist indicated that the boy's intellectual skills were compromised by his limited language and visual motor skills. She recommended that the boy be taught academic skills in a small structured setting.

        At a meeting held on June 2, 1998, respondent's CSE recommended that petitioner's son be classified as learning disabled, and that he be enrolled in a self-contained special education class with 12:1+1 child to adult ratio in the Denton Avenue School for the first grade during the 1998-99 school year. The individualized education program (IEP) which the CSE prepared for the child indicated that he would be mainstreamed, i.e., attend regular education classes, for special subjects such as art, music, and physical education and that he would receive 30 minutes of speech/language therapy in a small group twice per week (Exhibit 12). It also indicated that the CSE had considered placing the child in a regular education first grade class "with inclusion", and with "related services", but it concluded that neither of those options would have provided sufficient support to the child to enable him to be successful. The IEP further indicated, as did the CSE minutes (Exhibit 11), that the child's parents agreed with the CSE's recommendations. Respondent reviewed and approved the CSE's recommendations on June 18, 1998.

        In a letter dated August 15, 1998 to respondent's Director Pupil Services, the child's mother requested that her son be placed in a regular education first grade class and receive the services of an aide (Exhibit 15). In view of the fact that the parents had not formally consented to their son's initial placement in a special education class, the child began the 1998-99 school year in a regular education first grade class at the Denton Avenue School.

        On September 11, 1998, the CSE met with the boy's parents to discus their preference for a regular class placement with an aide. The CSE was reportedly not persuaded that it should change its previous recommendation for a special class placement, but according to its minutes, the CSE requested that the child be evaluated by a psychiatrist (Exhibit 18). I note that the hearing officer found that the CSE did not in fact determine the appropriateness of the child's educational program or placement, and he declared the IEP which was prepared at that meeting to be void.

        Later in September, 1998, the child's parents withdrew him from the Denton Avenue School, and unilaterally enrolled him in the Crestwood Country Day School in Melville, New York. The Crestwood Country Day School is a private school for children in preschool through the eighth grade. At the hearing in this proceeding, the child's first grade teacher at that school testified that the school served both gifted and special education children. It has not, however, been approved by the State Education Department to provide instruction to children with disabilities.

        In a letter dated October 5, 1998 to respondent's president, petitioner requested that an impartial hearing be held. Petitioner described the nature of his disagreement with the school district as arising from the latter's resistance to his efforts to obtain a FAPE for his son. The impartial hearing officer held a pre-hearing conference with the parties on December 2, 1998. They agreed to postpone the hearing until early February, 1999, so that the CSE could consider the results of an independent evaluation of the child which was to be performed in December.

        A neuropsychological evaluation of the child was completed at the North Shore University Hospital in December, 1998. The psychologist who performed that evaluation opined that the boy could be diagnosed as having an attention deficit hyperactivity disorder, but that he would be more appropriately diagnosed as having a pervasive developmental disorder not otherwise specified (PDD-NOS), in view of his significant problems with social interactions, poor language and communication skills, and rigid and perseverative behavior. She also opined that he might have a language-based learning disability, and should be evaluated by an occupational therapist with regard to his sensory-motor integrative difficulties and fine motor weaknesses (Exhibit B).

        The CSE met with petitioner on January 20, 1999. The IEP from the meeting indicates that it was held to consider petitioner's request for additional services to be provided to his son at the Crestwood Country Day School (Exhibit D). Respondent was providing speech/language to the child at that time. The comment section of the IEP indicates that the CSE agreed to recommend that the child receive 60 minutes of 1:1 resource room services five times per week.

        The hearing in this proceeding was held on March 1, 1999, March 2, 1999 and March 12, 1999. As framed by the hearing officer, the issues which were to be determined were whether the child had been denied a FAPE, and whether his parents were entitled to reimbursement for their expenditures for the child's tuition at the Crestwood Country Day School.

        In his decision which was rendered on May 11, 1999, the hearing officer held that the CSE could not place the child in so restrictive a setting as a self-contained special education class without having first afforded him an opportunity to receive special education services in a regular educational setting, because Federal and State regulations require that each child with a disability be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). He therefore found that respondent had not met its burden of proving the appropriateness of its CSE's recommendation that the child receive all of his academic instruction in a self-contained class during the 1998-99 school year. The hearing officer also found that respondent's notice of its CSE's June 2, 1998 recommendation for a special class placement did not include a request for parental consent to that placement, as required by 8 NYCRR 200.5 (a)(4)(ii)(d). In addition, he found that respondent had not complied with the provisions of 8 NYCRR 200.5 (b)(3), which provide that a board of education must initiate an impartial hearing to determine whether a child's recommended initial placement in a special education program is appropriate, if the child's parents do not consent to such a placement within 30 days after notice of recommendation for that placement. The hearing officer determined that respondent was required to have initiated an impartial hearing by no later than August 1, 1998. He concluded that respondent's failure to initiate a hearing as of the beginning of the 1998-99 school year constituted a clear violation of the child's right to a FAPE.

        The impartial hearing officer reviewed the provisions of 20 USC 1412 (a)(10)(c)(ii) which are set forth above, and concluded that Congress had effectively supplanted the three-prong test for an award of tuition reimbursement established by the United State Supreme Court with a single-prong test. He noted that the United States Department of Education had promulgated new regulations implementing the amended IDEA which included at least the second prong of the tripartite test which the Court had established in its Burlington and Carter decisions. While expressing his belief that the regulation in question (34 CFR 300.403) was ultra vires, the hearing officer nevertheless determined that the parents' unilateral placement of the child in the Crestwood Country Day School was an appropriate placement. He also found that equitable considerations favored the parents' claim for an award of tuition reimbursement.

        The hearing officer noted that the amended IDEA also provided that an award for tuition reimbursement could be reduced or denied if a child's parents failed to notify an IEP team (CSE) at the team's most recent meeting that they were rejecting their child's proposed placement and intended to unilaterally place the child in a private school, or if they failed to give written notice of such information to the school district at least ten business days prior to their removal of the child from the public school (20 USC 1412 [a][10][c][iii]). However, he found that petitioner had not been informed by respondent of his obligation to provide such notice prior to placing his son in the private school, thereby relieving petitioner of his duty to notify the CSE and respondent of his intention to place the child in the private school.

        The sole portion of the hearing officer's decision which I review in this appeal, since petitioner had otherwise prevailed, is the hearing officer's finding that petitioner was not entitled to an award of tuition reimbursement because his son had not previously received special education and related services from the school district before petitioner unilaterally placed him in the Crestwood Country Day School. The hearing officer found that the boy had not received special education or related services "under the authority of a public agency" for purposes of 20 USC 1412 [a][10][c][ii] because the CSE had not recommended that the child be classified until June, 1998, and the child's parents had not consented to the CSE's recommendations. He rejected petitioner's argument that since the boy had in fact received special education and related services during the 1997-98 school year, albeit as an unclassified student, petitioner was not precluded by the statute from obtaining tuition reimbursement.

        As noted above, petitioner contends that the hearing officer misconstrued the provision of 20 USC 1412 [a][10][c][ii]. He asserts that the express purpose of the 1997 IDEA amendments was to preserve the right of children with disabilities to a FAPE, and that Congress intended to codify existing case law, rather than drastically change it. In any event, petitioner argues that his son was "in the public system" at the time when he unilaterally withdrew the boy and placed him in a private school. Since the boy was "in the system", petitioner argued that he comes within the terms of the amended IDEA, and is not precluded from obtaining tuition reimbursement. Petitioner further argues that even if his child was technically receiving special education and related services prior to his removal from the public school, it would be contrary to fundamental IDEA policy to deny reimbursement.

        Respondent asserts that the boy had received speech/language and resource room services as a "non-special educational student" prior to his withdrawal from respondent's school. It argues that the statute, by its literal terms, precludes an award of tuition reimbursement. It acknowledges that in another appeal on March 24, 1999, I declined to find that the amended IDEA was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district (Application of a Child with a Disability, Appeal No. 98-25). I did so in that appeal because I found that the statutory language in question affirmatively provided that tuition reimbursement could be awarded under certain circumstances, but it did not follow that the remedy of tuition reimbursement was unavailable in other circumstances. I noted that the Supreme Court in its Burlington decision had found the authority to award tuition reimbursement in 20 USC 1415, which was not changed by the 1997 amendments to the IDEA.

        I have considered respondent's argument that I am not free to depart from the unambiguous terms of the Federal statute. However, I find that those terms are far from unambiguous, given the way those words were expressed, the prior decisional law, a lack of evidence that Congress intended to change that decisional law, and its failure to amend 20 USC 1415. Therefore, I cannot concur with the hearing officer's determination that the amended IDEA precluded an award of tuition reimbursement to a parent who had otherwise met the criteria for such an award pursuant to the Burlington and Carter decisions.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's determination that petitioner was not entitled to obtain an award of tuition reimbursement solely because petitioner's son had not received special education and related services prior to his unilateral parental placement in a private school is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for his expenditures for his son's tuition at the Crestwood Country Day School during the 1998-99 school year, upon petitioner's presentation to respondent of proof of those expenditures.