Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Mount Vernon
Neal Howard Rosenberg, Esq., attorney for petitioners
Aiello & Cannick, Esqs., attorneys for respondent, Devereaux L. Cannick, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their child’s tuition at the Churchill School (Churchill), in New York City, for the 1998-99 school year. The appeal must be sustained in part, and remanded for a further hearing.
At the time of the hearing, petitioners’ child was ten years old. She has been diagnosed as having Tuberous Sclerosis. The child has been classified by respondent's committee on special education (CSE) as other health impaired. Her classification is not in dispute in this proceeding. Petitioners had unilaterally placed their child in Churchill, which is a state-approved private school serving disabled children, for the 1998-99 school year. The child had never attended public school, nor had her parents sought tuition reimbursement prior to the 1998-99 school year.
For the 1998-99 school year, the CSE recommended that the child be placed in a public school special education class with a student-teacher ratio of 15:1+1. It also recommended that she receive individual occupational therapy twice per week for 45 minutes, consulting occupational therapy once per week for thirty minutes, speech/language therapy twice per week for thirty minutes in a group of five students, and consulting speech/language therapy once per month for thirty minutes (Exhibit 3-J). For the 1999-2000 school year, the CSE also recommended that the child be placed in a special class with a student-teacher ratio of 15:1+1, and that she receive occupational therapy and speech/language therapy with the same frequency and same maximum grouping as in 1998-99. In addition, the CSE recommended that the child receive adaptive physical education twice per week for thirty minutes in a maximum group of five students, and counseling once per week for thirty minutes also in a maximum group of five students (Exhibit 4-J).
Petitioners did not accept the CSE's recommendation for the 1998-99 school year. They placed their child in Churchill. They apparently requested an impartial hearing in the spring of 1999. In June, 1999, the CSE prepared the child's IEP for the 1999-2000 school year. The hearing convened on November 8, 1999. The parties agreed to submit IEPs for both school years to the hearing officer for him to decide certain alleged issues of law, in lieu of an evidentiary hearing. The first issue was whether the child’s IEP for the 1998-99 school year should be deemed to be inappropriate because there was no parent member on the CSE which developed the IEP. The second issue was whether the girl's IEP should be deemed to be invalid because the CSE failed to conduct a classroom observation of the child at her private school prior to preparing the IEP. The third issue was whether tuition reimbursement should automatically be awarded to petitioners if their child's IEP was found to be inappropriate simply because they had placed their child in a state-approved private school. The fourth issue was whether the private school would become the child’s pendency placement upon an award of tuition reimbursement.
The hearing officer held that the failure of the CSE to include a parent member was a mere procedural error which did not invalidate the IEP. On the second issue, the hearing officer found that the Regulations of the Commissioner of Education required classroom observations of classified students only once every three years. With regard to petitioners' assertion that no classroom observation had ever been conducted, the hearing officer found that he did not have enough evidence to determine whether a classroom observation had ever been conducted. The hearing officer retained jurisdiction over this issue. The hearing officer held that the parents were not entitled to tuition reimbursement even if a classroom observation had never been conducted, because their child had never attended public school. He found that the child’s pendency placement was not in the Churchill School because she had not been placed at Churchill by mutual agreement. He granted leave to petitioners to request a hearing with respect to the child's IEP for the 1999-2000 school year, and asserted that he would retain jurisdiction over that matter (cf. 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).
Petitioners assert that the issues which were before the hearing officer were "threshold" issues, which if found to be in their favor would have obviated the need for an evidentiary hearing, and which if found in respondent's favor would nevertheless have allowed them to go forward with an evidentiary hearing. They also challenge the hearing officer's determinations concerning the absence of the parent member of the CSE, the lack of an observation, and their inability to obtain an award of tuition reimbursement because their child has never attended respondent's schools. Respondent contends that the hearing officer correctly concluded that the child's IEP for the 1998-99 school year was not fatally flawed because its CSE did not include the statutorily required parent member. The Board of Education agrees with petitioners that there is no basis in the present record for a determination as to the substantive appropriateness of the child's IEP for either the 1998-99 or 1999-2000 school year.
In his decision, the hearing officer acknowledged that the New York State Education Law requires that a school district CSE include a parent member (Section 4402  [b] ), and that the Commissioner of Education and the State Review Officer have consistently held that an IEP which was prepared by a CSE which lacked the required parent member was invalid (Matter of a Handicapped Child, 19 Ed. Dept. Rep. 460; Matter of a Handicapped Child, 24 id. 185; Application of a Child with a Handicapping Condition, 28 id. 222; Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1; Application of a Child with a Disability, Appeal No. 99-2). Nevertheless, he concluded that there was a conflict between those decisions and current Federal law. He reasoned that since the Individuals with Disabilities Education Act, (20 USC 1400 et seq., hereinafter IDEA) did not require a parent member of the CSE, respondent's omission did not violate the IDEA. In reaching that conclusion, the hearing officer indicated that he was relying upon the decision in Walczak v. Florida UFSD, 142 F. 3d 119 (2d Cir., 1998) for the proposition that the two inquiries which we must make were "whether the state has complied with the procedural requirements of IDEA" and "whether the IEP was 'reasonably calculated to enable the child to receive educational benefits'."
In Walczak, the Court indicated that the two relevant issues to a Federal court's review of a challenged IEP were those which the hearing officer in this proceeding identified. I must note that in Walczak, the parents did not challenge the procedure by which their child's IEP had been prepared, while in this proceeding the parents do challenge the IEP on procedural grounds. Moreover, the Court in Walczak specifically noted that New York State had assigned the responsibility of developing appropriate IEPs to school district CSEs to meet its obligation under the IDEA, and "to implement its own policies regarding the education of disabled children." The IDEA prior to its amendment in 1997, and after that amendment, provided that all educational programs for children with disabilities must meet the educational standards of the respective State educational agencies (former 20 USC 1412 ; now 20 USC 1412 [a]  [A] [II]), thereby incorporating State standards into the Federal statute. By regulation prior to the 1997 amendment, and by statute since that amendment, the IDEA has specified that certain individuals must be included on an IEP team (former 34 CFR 300.344; present 20 USC 1414 [d]  [B]). Although an IEP team in New York State, i.e., a CSE, must include each of the individuals prescribed by Federal statute or regulation, it does not follow that either the statute or regulation prohibits the State of New York from requiring a CSE to also have a parent member, or that the absence of that member is any less important than that of a member specified in Federal statute or regulation.
The IDEA ensures that "all children with disabilities have available to them a free appropriate public education" (former 20 USC 1401 [c]; present 20 USC § 1400[d][A]). A free appropriate public education is defined as special education and related services that meet the standards of the State educational agency (former 20 USC 1401 [a] ; present 20 USC § 1401[B]). When a state provides for educational benefits exceeding the minimum federal standards, the state standards are enforceable through the IDEA (See, Blackmon v. Springfield, __ F.3d __ [8th Cir. 1999], 31 IDELR 132; Doe v. Bd. of Educ. Of Tullahoma City Schools and Embry, 9 F.3d 455 [6th Cir. 1993]; Burke County Board of Education v. Denton, 895 F. 2d 973 [4th Cir., 1990]). Therefore, even if a school district complies with the minimum requirements of Federal law, it may still violate the IDEA if it fails to satisfy more extensive state protections which are also in place (Thomas v. Cincinnati Bd. of Educ., 918 F. 2d 618 [6th Cir., 1990]; see also David D. v. Dartmouth Sch. Comm., 775 F. 2d 411 [1st Cir., 1985], cert. den. 475 U.S. 1140 ; Geisv. Board of Educ. of Parsippany-Troy Hills, 774 F. 2d 575 [3d Cir., 1985]). I find that the hearing officer erred in declaring that the child's IEP for the 1998-99 school year was valid notwithstanding the fact that the CSE which prepared it lacked the required parent member.
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 ). 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). In view of respondent's failure to have a parent member of the CSE present when the child's IEP was prepared, I find that respondent did not meet its burden of establishing that it had offered to provide an appropriate educational placement to petitioners' daughter for the 1998-99 school year. While that finding is dispositive of the validity of the child's IEP for the 1998-99 school year, I will note for the record that the Regulations of the Commissioner of Education require an observation of the child only during the child's initial evaluation (see 8 NYCRR 200.4 [c] ).
The hearing officer held that petitioners were precluded from obtaining an award of tuition reimbursement because their child had not previously received special education and related services under the authority of a public agency. He relied upon the provisions of 20 USC 1412 (a) (10) (c) (ii) which were added by the 1997 amendments to the IDEA. The statute reads 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 public 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."
The hearing officer noted that the State Review Officer has declined to construe the 1997 IDEA amendment as limiting the authority of a hearing officer, review officer, or court under 20 USC 1415 to grant an award of tuition reimbursement to the parents of a child who has not previously attended a public school, absent convincing evidence to the contrary of Congressional intent to do so (Application of a Child with a Disability, Appeal No. 98-25; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-69). I continue to adhere to that position.
When a school district fails to prove that its CSE recommended an appropriate program, the burden of proof shifts to the parents to prove that the program they unilaterally placed their child in is appropriate. In this instance, there is no record upon which that determination could be made because of the abbreviated hearing which was held in this proceeding. This matter must therefore be remanded for an evidentiary hearing at which evidence concerning the child's special education needs, her past and present educational performance, and the nature of the services which were provided to her in the private school must be adduced to afford a basis for concluding whether those services were appropriate within the meaning of the IDEA. I note that petitioners now attempt to argue the merits of their daughter's proposed IEP for the 1999-2000 school year. That is also a matter to be addressed at the new hearing.
Petitioners also seek an order determining that Churchill is their daughter's pendency placement for the 1999-2000 school year, on the grounds that I have found that their daughter's IEP for the 1998-99 school year is invalid, and that Churchill is a state-approved school. I find that there is no merit to their request. The decisions to which they refer in their petition relate to the unique provisions of the Court's order in Jose P. et al. v. Ambach et al. (79-C-270 U.S. D.C. E.D. N.Y., 1982) involving New York City, or to a prior agreement between the parties. They are inapposite to the facts of this proceeding.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and,
IT IS FURTHER ORDERED that within 30 days from the date of this decision, respondent shall appoint a new hearing officer to conduct a hearing to address the remaining issues in this proceeding.