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Application of a CHILD WITH A DISABILITY, by her parent, 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 New York


Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Carolyn Wolpert, Esq., of counsel


          Petitioner appeals from an impartial hearing officer's decision which ordered respondent to reimburse petitioner for the cost of private tutoring she obtained for her daughter during the 1999-2000 school year, but denied her request to be reimbursed for similar expenditures in prior school years and her request to be compensated for similar expenditures in future years. Respondent does not oppose the hearing officer's decision to award tuition reimbursement for the 1999-2000 school year, which is therefore final (20 USC 1415 [i][1][A]), and not reviewed in this appeal. The appeal must be sustained in part.

        At the time of the hearing, the student was thirteen years old and in the eighth grade. During first and second grades, she received academic assistance through the "At Risk" program, which was designed to provide extra assistance to pupils who did not require special education, but who had exhibited some academic weaknesses (Exhibits 21 and 23A).

        Petitioner originally referred her child to the Committee on Special Education (CSE) in 1995, when she was in the third grade (Exhibit 1A). When she signed the parental consent form to allow her daughter to be evaluated, petitioner acknowledged that she had received the booklet, Special Education: A Guide for Parents, and that her due process rights had been explained to her (Exhibit 1B). The social history completed during the initial evaluation indicated that the parent had been given a "special education manual" for reference (Exhibit 3).

        When evaluated by the CSE, the student achieved a verbal IQ score of 92, a performance IQ score of 86, and a full scale IQ score of 88 (Exhibit 20). On the Woodcock-Johnson Test of Achievement (Woodcock-Johnson), she achieved a grade equivalent score of 2.9 for word recognition, which fell into the 26th percentile. In reading comprehension, the student achieved a grade equivalent score of 4.2, placing her in the 60th percentile. In reading vocabulary, the student achieved a grade equivalent score of 3.3, which was in the 36th percentile. On the mathematics portion of the evaluation, the student achieved grade equivalent scores of 4.7 for calculations, which was in the 90th percentile, and 4.0 for applications, placing her in the 54th percentile. In science, she achieved a grade equivalent score of 2.5, which was in the 25th percentile. The student earned a grade equivalent score of 2.5 for social studies, placing her in the 22nd percentile. On the Brigance Inventory of Basic Skills, the student achieved a first grade equivalent score in spelling. On the BASIS Informal Assessment, the student's written expression was found to be delayed (Exhibit 21).

        On June 14, 1995, the CSE recommended that the student be classified as learning disabled, and that she receive resource room services five periods per week in a class with a student:teacher ratio of 5:1. It further recommended certain testing modifications for her, including extended time limits and special location (Exhibit 19). Petitioner’s daughter has remained classified as learning disabled. The appropriateness of her classification is not challenged, and is therefore not reviewed in this appeal (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]).

        In her triennial evaluation in the Spring of 1998, the student was found to be cognitively functioning in the low average range. She was reported to be anxious about school and embarrassed by her shortcomings (Exhibit 5). She achieved scores below grade expectancy for language, reading, mathematics, spelling and written expression. On the Beery Developmental Test of Visual-Motor Integration, the student achieved a grade equivalent score of 12.0 (Exhibit 16). Her regular education teacher described her as incredibly needy and behaving as though she was entitled to more than other children (Exhibit 26B).

        On June 17, 1998, a School Based Support Team (SBST) recommended that the student continue to receive resource room services for five periods per week in a class with a student-teacher ratio of 8:1. Testing modifications included time waived or extended, special testing location, and having test questions read to her (Exhibit 14). Petitioner signed a "Summary of Educational Planning Conference" which indicated that she agreed with the recommendation made by the SBST, and that she had been advised of her due process rights (Exhibit 17).

        In December 1998, the mother had her child privately evaluated. The results of that evaluation are not in the record. However, petitioner asserts in her petition that she was advised that her daughter was reading at a third or fourth grade level. She further asserts that her daughter has been tutored at the Sylvan Learning Center twice per week since December 1988 at a cost to her of $424 per month.

        Petitioner requested a CSE review of her daughter's program because her daughter was experiencing academic difficulties in the seventh grade (Exhibit 26G). Petitioner was interviewed by an educational evaluator on January 14. She indicated that she wanted a speech/language evaluation and an updated educational evaluation. The educational evaluator indicated that petitioner had been advised of her due process rights (Exhibit 4). On the Woodcock-Johnson Psycho-Educational Battery, the student achieved grade equivalent scores of 6.6 for word identification, 4.4 for passage comprehension, 7.1 for calculations and 8.8 for applied problems. Her encoding (spelling) skills were reported to be at the sixth grade level. The student was in the seventh grade when evaluated. She performed at or near expected levels in receptive language, speech skills, perceptual functioning, and written composition, although these areas were assessed informally. Her expressive language skills were reported to be below expectancy. Her graphomotor (handwriting) skills appeared to be adequate (Exhibit 6).

        A speech/language evaluation was conducted on January 25, 1999. The evaluator reported that the student had weak receptive language skills. She exhibited deficiencies in the ability to listen for details, infer information, draw conclusions and comprehend sentences of increased complexity. Her expressive language weaknesses were characterized by weak, one-word expressive vocabulary. She also showed mild weaknesses in auditory perceptual skills. The student was able to process spoken language and she responded appropriately to conversation. Her narrative skills were meaningful, her speech was intelligible, her hearing was within normal limits, and her semantic skills were strong (Exhibit 7).

        On January 18, 1999, the CSE recommended five periods of resource room services per week, with a student:teacher ratio of 8:1. It added speech/language therapy to the student's program, recommending that she receive it twice per week for forty minutes in a group of five. That related service was not implemented until May 1999 (Transcript p. 25). Testing modifications included time extended to double time, flexible location and questions read aloud (Exhibit 2). Although the resource room teacher testified at the hearing that counseling might have been appropriate because the student experienced anxiety that affected her work (Transcript p. 18), the CSE did not recommend it for the student.

        In February 1999, the mother, through her attorney, served a Notice of Claim for a civil action against respondent and the City of New York in which she alleged that the defendants had failed to properly assess her child for special education services (Exhibit 3 to Petition). The record does not reveal what, if any, action was taken after the Notice of Claim was served on the school district. At the impartial hearing in this proceeding, petitioner testified that her attorney had been subsequently suspended from the bar (Transcript p. 3).

        In January 2000, petitioner instituted this proceeding seeking reimbursement for tutoring expenses incurred during the 1999-2000 school year and previous school years. She also sought payment for tutoring expenses she anticipated incurring in the future. The hearing was held on March 14, 2000. The hearing officer rendered his decision on April 24, 2000. He noted that the board of education had the burden of proving that it was providing an appropriate educational program to petitioner’s daughter during the 1999-2000 school year, and that the student was being privately tutored in addition to attending school. He found that the student had made progress during the school year, but that respondent had not demonstrated that the student’s progress was due to its program, rather than to the tutoring provided by petitioner. The hearing officer held that the parent was entitled to reimbursement for the tutoring expenses she had incurred during the 1999-2000 school year. However, he denied petitioner’s request for prospective relief because the school district had not yet had the opportunity to recommend the student’s educational programs for those years. The hearing officer denied petitioner’s request for reimbursement for prior years based on the equitable doctrine of laches. He found that she had been advised of her due process rights and had not asserted those rights within a reasonable period of time, resulting in prejudice to respondent.

        A board of education may be required to pay for educational services obtained for a student by the student'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 [1985]). Petitioner’s claim for reimbursement of expenditures for her daughter’s tutoring is subject to the three-part test in the Burlington decision (Application of the Board of Education of the Middle Country Central School District, Appeal No. 97-65). Equitable considerations may include the timeliness with which a claim for reimbursement is asserted (Phillips v. Bd. of Ed. Hendrick Hudson CSD, 949 F. Supp. 1108 [S.D. N.Y., 1997]; Application of a Child with a Disability, Appeal No. 96-72).

        Petitioner challenges the hearing officer’s determination that her claim for reimbursement of monthly tutoring expenses from December 1998 until the beginning of the 1999-2000 school year was barred by the equitable doctrine of laches. The hearing officer found that petitioner was aware of her due process rights, but had not asserted them in a timely manner. Petitioner now asserts that she was unaware of her rights at that time, and denies having received the booklet describing those rights which was referred to in Exhibit 1B. At the hearing, the CSE representative briefly alluded to the issue of laches. However, no testimony was taken with regard to the issue. I am of course aware of the fact that petitioner signed two documents indicating that she had been made aware of her due process rights. However, there is no document in evidence which I can examine to determine what information was given to petitioner about her due process rights. In the absence of any document of that nature and of any testimony, I must find that the record is inadequate to support the hearing officer’s determination.

        I must further find that the record is inadequate to decide whether respondent offered an appropriate educational program to petitioner’s daughter during the period from December 1998 to the beginning of the 1999-2000 school year, and, if not, whether the tutoring services petitioner obtained for her child were appropriate under the Individuals with Disabilities Education Act (IDEA). In fact, there is no information whatsoever about the tutoring in the record. I note that petitioner referred to documents from the Sylvan Learning Center at the beginning of the hearing, but the documents were not included in the record after the hearing officer suggested that he would be willing to adjourn the hearing for five days, apparently to address the five-day disclosure rule (8 NYCRR 200.5[c][9]). In any event, it is the hearing officer’s responsibility to ensure that there is an adequate record upon which to premise his or her decision and to permit a meaningful review (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35; Application of a Child with a Disability, Appeal No. 98-66). The hearing officer failed to do so in this instance. Accordingly, I must remand the matter to respondent with the direction that it hold another hearing.

        There is one part of the appeal which can be determined on the present record. Petitioner challenges the hearing officer’s determination that he could not award "prospective reimbursement". I agree with the hearing officer. Under the IDEA and its state counterpart, Article 89 of the Education Law, a CSE must review each child’s educational program at least once each year to determine its adequacy and recommend an educational program for the next school year. The CSE’s recommendations are subject to review in impartial hearings. Neither the hearing officer nor I can know what services the CSE will recommend for petitioner’s daughter in future years. Consequently, we cannot determine the adequacy of those services.


IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that he found that petitioner’s claim for reimbursement for the period from December 1998 to the beginning of the 1999-2000 school year was barred by laches; and

IT IS FURTHER ORDERED that respondent shall schedule a hearing before a new hearing officer to take evidence and make a determination on petitioner’s claim for reimbursement in accordance with the tenor of this decision.

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