99-077

       Petitioner, the Board of Education of the City School District of the City of New York, appeals from an impartial hearing officer's decision which ordered petitioner to reimburse respondents for the cost of their daughter's tuition at the Mary McDowell Center for Learning (McDowell) for the 1998-99 school year, notwithstanding the fact that the hearing was held to adjudicate a tuition claim for the prior school year. Petitioner also appeals from the hearing officer's determination that he would retain jurisdiction over any disagreement about the child’s educational placement for the 1999-00 school year. The appeal must be sustained in part.

        Initially, I note that the Board of Education objects to an affirmation by the parents' attorney, which is attached to the parents' answer. In his affirmation, respondents' attorney asserts that the parties agreed that the hearing officer's decision with respect to the 1997-98 school year would also apply to the 1998-99 school year, and that a separate hearing for that school year would not be held. Petitioner asserts in its reply that the attorney's affirmation was not in the record before the hearing officer, and it argues that the attorney's reliance upon a conversation with a school district staff member is unwarranted. The immediate question is whether I should accept the attorney's affirmation. This proceeding was commenced to determine the appropriateness of the placement offered by the Board of Education for the 1997-98 school year. The hearing officer’s decision also addressed the parties’ claim for the 1998-99 school year, and purported to retain jurisdiction for the 1999-2000 school year. Petitioner challenges the hearing officer’s authority to rule upon matters related to those two school years. I find that the attorney’s affirmation is relevant to petitioner’s challenge. Therefore, I will accept the affirmation, as well as the opposing affirmation and additional documentary evidence annexed to petitioner’s reply.

        Respondent's daughter is eleven years old, and resides in Community School District 15, which is in Brooklyn. She was initially referred to the Committee on Special Education of Community School District 15 (CSE) at the end of the first grade in P.S. 146 K. In June, 1996, the CSE recommended that the child be classified as learning disabled. She has remained classified as learning disabled. Her classification is not in dispute in this appeal.

        Respondents' daughter was initially referred to the CSE because of concerns about her reading ability. A school district educational evaluator tested the child in May, 1996. She reported that the child was a phonetic reader who could decode sounds within words, but did not decode the whole word. On the Kaufman Test of Educational Achievement, the girl’s reading decoding and reading comprehension skills were assessed to be in the upper kindergarten to upper first grade level. Her math and spelling skills were reported to be at the first grade level Exhibit SD-3). In June, 1996, the CSE recommended that respondents’ daughter remain in regular education classes while receiving resource room services. Respondents accepted that recommendation.

        The girl was in the second grade at P.S. 146 during the 1996-97 school year. In January, 1997, her mother requested a re-evaluation (Exhibit SD-8). She reported in an update of the child’s social history that the girl was struggling in school, and that her self-esteem was at risk (Exhibit SD-9). The mother also had the child re-evaluated at Fordham. The Fordham evaluator opined that the child appeared to have made little or no progress in reading during the previous six months. She noted that the child also had difficulty with encoding, i.e., spelling, and opined that she should receive specialized instruction using the Orton-Gillingham methodology (Exhibit SD-7). A school district educational evaluator who tested the child in February, 1997 reported that the girl continued to have significant delays in reading decoding and encoding, i.e. spelling (Exhibit SD-11). The child’s teacher described her as tense, anxious, and frustrated (Exhibit SD-12).

        On February 14, 1997, the CSE recommended that respondents' daughter be placed in a self-contained modified instructional services – I (MIS-I) class with a 15:1 child to adult ratio for instruction in all subjects (Exhibit SD-13). The individualized education program (IEP) which the CSE prepared for the child included annual goals for improving her word attack and reading comprehension skills, as well as her math skills, while completing parallel curriculum art, science and social studies courses.

        A written summary of the meeting indicates that the CSE discussed the child’s possible placement in an MIS-I class for gifted and talented youngsters which was located in Community School District 3 in Manhattan (Exhibit SD-14). A CSE representative testified at the hearing that Community School District 15 did not have a program for children with disabilities who were gifted and talented when the CSE made its recommendation, and that the program in Community School District 3 was unique (Transcript, pages 13-14).

        After the meeting, a CSE member suggested to respondents that they visit an MIS-I class at P.S. 230, which is in Community School District 15, while the CSE member continued to work on a placement for the child in Community School District 3. The child’s mother visited the class at P.S. 230, but concluded that her child would not be appropriately placed in the class because her child was functioning at a much higher level than the children in that class (Transcript, page 105). She began to explore the option of a private school placement for her daughter. Respondents also visited P.S.163 in Community School District 3 because the MIS-I class for gifted children which had been discussed at the CSE meeting is located in that school. Respondents’ visit occurred on April 14, 1997. Two days later, respondents were offered a placement for their child in the MIS-I program for gifted children at P.S. 163 (Exhibit 16). On April 20, 1997, respondents enrolled their child in McDowell for the 1997-98 school year (Exhibit 18). The child attended that school during the 1997-98 and 1998-99 school years.

        The child’s parents reportedly requested an impartial hearing in September, 1997. The hearing was adjourned twice by agreement. It began on March 9, 1998. After the Board of Education had presented its case and the child’s mother had testified, it was agreed that the parties would provide certain additional documentary evidence to the hearing officer. The hearing officer announced his intention to determine whether the Board of Education had met its burden of proving that it had offered to provide an appropriate educational program to the child during the 1997-98 school year, after receiving the additional information (Transcript, page 130). If he found that petitioner had not met its burden of proof, then the hearing would reconvene to allow the parents to go forward with their case to demonstrate the appropriateness of their child’s placement at McDowell. The parties assented to this course of action. In an interim order dated June 17, 1998, the hearing officer found that the child was appropriately classified as learning disabled. He further found that the MIS-I program at P.S. 163 for gifted children would have been appropriate for the child, except for the fact that it was located at that site. He concluded that it was simply too distant from the child’s home to be an appropriate placement for a nine year old child. The hearing officer found that there would be roughly one hour of travel time between the child’s home in Brooklyn and P.S. 163 in Manhattan, and he noted that there was no school bus route to directly transport the child between home and the recommended class. He directed the parties to appear before him again for the purpose of determining the remainder of the parents’ claim for tuition reimbursement.

        The hearing resumed on July 29, 1998. A representative of McDowell described the child’s program at the private school, and the record was closed. However, the hearing officer did not render his decision until August 3, 1999. In that decision, he held that the requirement that children with disabilities be educated in the least restrictive environment, which is found in the Individuals with Disabilities with Education Act (IDEA), did not apply to a unilateral parental placement, even when the parents were seeking an award of tuition reimbursement under the IDEA (cf. Application of a Child with a Disability, Appeal No. 99-46). The hearing officer found that, in any event, McDowell was less restrictive than the placement offered by the Board of Education, and it was not so restrictive as to outweigh the lack of alternative appropriate placements in less restrictive settings. Having determined that McDowell was an appropriate placement for the 1997-98 school year, the hearing officer further found that the parents’ claim for an award of tuition reimbursement for that school year was supported by equitable considerations. Accordingly, he found that they were entitled to such an award (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]).

        Acknowledging that his decision was being rendered over a year after the hearing had ended, the hearing officer further found that his determination to award respondents tuition at McDowell for the 1997-98 school year could be applied to the 1998-99 school year as well. He reached that conclusion by finding that a hearing officer could award prospective relief, and that no appropriate alternative placement had been identified for the child. He also found that a prospective placement ordered by an impartial hearing officer could become a child’s pendency placement. The hearing officer also directed the Board of Education to offer a placement to the child for the 1999-2000 school year on or before August 15, 1999, or pay for the child’s tuition at McDowell for that school year. He indicated that he would retain jurisdiction over any challenge respondents might make to a placement offered by petitioner for the 1999-2000 school year.

        The Board of Education asserts that it does not contest the hearing officer’s award of tuition for the 1997-98 school year (Paragraph 98 of the petition). Nevertheless, it asks me to rule upon the hearing officer’s finding that the least restrictive environment requirement of the IDEA (see former 20 USC 1412 [5][B], and current 20 USC 1412 [a][5]) does not apply to unilateral parental placements. However, I find that petitioner is in essence seeking an advisory opinion, since it does not contest the hearing officer’s award of tuition for the 1997-98 school year. The State Review Officer determines actual controversies, and does not render advisory opinions (Application of a Child with a Handicapping Condition, Appeal No. 91-22; Application of a Child with a Disability, Appeal No. 96-37). Therefore, I must decline petitioner's request, and I do not review the hearing officer's decision with respect to the 1997-98 school year.

        The Board of Education also asks that I find that the hearing officer abused his discretion by not rendering a timely decision. Petitioner is well aware of the time limit for its hearing officers to render their decisions. Its remedy is to appeal to the Commissioner of Education pursuant to Section 310 of the Education Law, when a decision has not been rendered within the prescribed time frame.

        Petitioner’s primary disagreement with the hearing officer’s decision is his determination that petitioner should pay the child’s tuition at McDowell for the 1998-99 school year. I first note that at the hearing on July 29, 1998, the hearing officer and respondents’ attorney indicated that only the 1997-98 school year was at issue (Transcript, pages 195 and 212, respectively). Respondents’ attorney asserts in his affirmation that a separate request had been filed for a hearing concerning the child’s placement for the 1998-99 school year, but that as a result of discussions with CSE representatives during that school year, it was agreed that a separate hearing would not be held for the 1998-99 school year. Instead, the parties had agreed to be bound by whatever the hearing officer decided for the 1997-98 school year. Petitioner acknowledges that a CSE educational evaluator discussed the matter with respondents’ attorney, and that the CSE representative agreed to recommend to petitioner’s Office of Legal Services that the parties reach a settlement for the 1998-99 school year if the parents prevailed at the hearing concerning the 1997-98 school year. However, it argues that the CSE representative did not and could not make a binding representation that the matter would be settled. It further argues that the attorney was well aware of that fact. In an affidavit accompanying petitioner’s reply, the CSE representative asserts that he did not make a binding representation. While settlements should certainly be encouraged under the IDEA, I am constrained to find there was no settlement. Consequently, petitioner may challenge the hearing officer’s decision.

        The Board of Education contends that the hearing officer’s determination to award tuition reimbursement to respondents for the 1997-98 school year did not make the child’s unilateral placement at McDowell the child’s pendency placement for future school years, nor did it otherwise afford a legal basis for the hearing officer to extend his jurisdiction to the 1998-99 school year. Respondents argue that I would be compelled to find that McDowell is their child’s pendency placement because the Board of Education has not challenged the hearing officer’s decision with regard to the 1997-98 school year.

        I have carefully considered the hearing officer’s lengthy exposition of his powers as an impartial hearing officer under the IDEA and various judicial decisions. However, the fact remains that he was appointed to decide the issue of the parents’ claim for tuition reimbursement for the 1997-98 school year. Absent an agreement by the parties conferring jurisdiction upon him to do so, I find that the hearing officer lacked authority to determine respondents’ claim for tuition reimbursement for the 1998-99 school year (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 City School District of the City of Binghamton, Appeal No. 96-32; Application of a Child with a Disability, Appeal No. 96-45). I must also note that there was no factual information about the placement recommended by petitioner for that school year in the record before the hearing officer. Therefore, he could not have determined whether that placement was appropriate or inappropriate for the child for purposes of a tuition award under the Burlington and Carter decisions.

        The hearing officer appears to have premised his order requiring the Board of Education to pay for the child’s tuition at McDowell for the 1998-99 school year upon a finding that his decision to award tuition reimbursement for the 1997-98 school year changed the child’ pendency placement to that private school. He indicated that he was aware that the State Review Officer has held on many occasions that an award of tuition reimbursement does not change a child’s pendency placement (Application of a Child with a Disability, Appeal No. 96-83; Application of a Child with a Disability, Application of a Child with a Disability, Appeal No. 96-92; Applications of the Board of Education of the Albion Central School and a Child with a Disability, Appeal Nos. 97-42 and 43; Application of the Board of Education of the Northeastern CSD, Application of the Board of Education of the Wappingers CSD , Appeal No. 97-82). In any event, the new Federal regulations which took effect on May 11, 1999 provide, in material part, that:

"If the decision of a hearing officer in a due process hearing conducted by the SEA or State Review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section" (34 CFR 300.514 [c]).

        In its explanation for the new regulation, the U.S. Department of Education indicated that:

"Paragraph (c) is based on long-standing judicial interpretation of the Act's pendency provision that when a State hearing officer's or State review official's decision is in agreement with parents that a change in placement is appropriate, that decision constitutes an agreement by the State agency and the parents for purposes of determining the child's current placement during subsequent appeals. See e.g., Burlington School Community v. Dept. of Educ., 471 U.S. 359, 371 (1985); Susquenita School Districtv. Raelee S., 96 F. 3d 78, 84 (3^rd Cir. 1996); Clovis Unified v. Office of Administrative Hearings, 903 F. 2d 635, 641 (9^th Cir. 1990). Paragraph (c) of this section incorporates this interpretation. However, this provision does not limit either party's right to seek appropriate judicial review under §300.512, it only shifts responsibility for maintaining the parent's proposed placement to the public agency while an appeal is pending in those instances in which the State hearing officer or State review official determines that the parent's proposed change of placement is appropriate" (Federal Register, Vol. 64, No. 48, Friday, March 12, 1999, page 12615).

        New York State has a two-tier due process system consisting of hearings conducted by locally appointed hearing officers and reviews conducted by a State Review Officer. A decision by the State Review Officer upholding a parental placement may change a child's pendency placement (Application of a Child with a Disability, Appeal No. 99-100). An impartial hearing officer's decision does not change the child's pendency placement. I find that the hearing officer's decision to award tuition reimbursement to respondents for the 1997-98 school year did not make McDowell the child's pendency placement for any subsequent school year. Therefore, the hearing officer's decision with respect to the payment of tuition for the 1998-99 school year must be annulled.

        The Board of Education also challenges the hearing officer's directive that it offer a placement for the 1999-2000 school year by August 15, 1999, or reimburse respondents for their tuition expenditures for that school year, and his assumption of jurisdiction to determine respondents' entitlement to tuition reimbursement if petitioner offered a placement on or before August 15. The directive to offer a placement or reimburse respondents appears to be based on the hearing officer's interpretation of the pendency provision of the IDEA, an interpretation which I have found to be erroneous. I will therefore annul the directive. A determination of respondents claim, if any, for tuition reimbursement for the 1999-2000 school year should be made by a hearing officer selected in accordance with the prescribed selection procedures. I must also annul that portion of the hearing officer's decision (Application of the Board of Education of the City School District of the City of New York, supra).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled with respect to payment of tuition for the 1998-99 and 1999-2000 school years, and his assumption of jurisdiction for either school year.