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Application of a CHILD WITH A DISABILITY, by his 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


Sanford Stevens, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Theresa Crotty, Esq., of counsel


       Petitioner appeals from an impartial hearing officer’s denial of her requests to be reimbursed for the cost of Applied Behavioral Analysis (ABA) therapy provided to her son at home during the 2000-01 school year, for attorneys’ fees for the hearing process, and for an order compelling respondent to pay her attorney by a specified date a sum of money for the tuition reimbursement he had awarded to her. The appeal must be dismissed.

        Initially, I note that the Board of Education asks me to excuse its delay in serving its answer to the petition. It sought and was granted permission to serve the answer by no later than November 26, 2001. Approximately one week after that date, respondent’s attorney attempted to serve the answer by mail. However, the document was not properly addressed, and was ultimately returned to her. Service by mail was completed on December 28, 2001. Petitioner opposes respondent’s request, and asks that I reject respondent’s answer. In view of respondent’s brief delay in initially attempting to serve its answer and the absence of any harm to petitioner, I will exercise my discretion and excuse respondent’s delay.

        The child who is the subject of this appeal was diagnosed as autistic at approximately the age of two years. He was placed in the Gillen Brewer School at the age of three, and remained there until the age of seven, at which point the child had reached the maximum age and grade capabilities of the school. During an annual review on June 2, 2000, respondent’s Committee on Special Education (CSE) determined that the child required a non-public day school placement (Transcript p. 5). Just prior to the start of the classes in September 2000, the school district had not placed the child in a private placement, and in fact, had still not been able to do so by the November 1, 2000 impartial hearing (Transcript p. 5). Petitioner unilaterally enrolled her son in the West End Day School (WEDS) for the 2000-01 school year.

        An impartial hearing was held for the purpose of obtaining an award of tuition reimbursement for the 2000-01 school year at WEDS. The Board of Education did not present a case. In his opening statement, petitioner’s attorney indicated that petitioner was seeking reimbursement for the child’s tuition at WEDS, and did not refer to the ABA therapy provided to the child at home. During the hearing, petitioner presented evidence about the ABA therapy that her son was receiving at home in addition to his instruction at WEDS. The child’s grandparents paid for the therapy. The hearing officer asked petitioner’s attorney whether petitioner was seeking reimbursement for the ABA therapy, in addition to reimbursement for tuition at WEDS. Petitioner’s attorney replied that he would like to do so, "if you are willing to accept that" (Transcript p. 40). The Board of Education objected to the attorney’s request.

        In her decision dated June 8, 2001, the hearing officer noted that a board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]). She found that petitioner had satisfied all three criteria for an award of tuition reimbursement, and directed the Board of Education to pay for the child’s tuition at WEDS during the 2000-01 school year. However, the hearing officer determined that petitioner’s claim for reimbursement for the cost of the ABA therapy her son received at home should be denied because the Board of Education had no notice that a claim for such reimbursement would be made.

        By letter dated June 14, 2001, petitioner’s attorney asked the hearing officer for a "clarification" of her decision. Specifically, the attorney asked the hearing officer to direct respondent to pay the tuition reimbursement she had ordered directly to petitioner’s attorney, and to pay such sum by a date certain. The attorney also asked the hearing officer to award attorneys’ fees. In a second letter dated June 24, 2001, petitioner’s attorney asked the hearing officer to address the issue of whether she should be reimbursed for tuition during July-August 2001. I note that neither of the attorney’s letters is in the record that was provided to me, and that respondent asserts that the June 24, 2001 letter was not before the hearing officer.

        On August 27, 2001, the hearing officer denied petitioner’s requests, noting that she lacked jurisdiction to award attorneys’ fees, and that the requests with respect to the method and timing of payment were inappropriate. The hearing officer did not refer to petitioner’s alleged request for a determination as to tuition for the months of July and August 2001.

        I will first consider petitioner’s contention that the hearing officer should have ordered respondent to pay for her son’s tuition at WEDS during the summer of 2001. I note that in his opening statement, petitioner’s attorney sought an award for tuition in the amount of $22,500 (Transcript p. 4). He did not refer to tuition for the summer months. Petitioner now asserts that tuition at WEDS is "$22,500 for the year plus $1,400 for the summer school" (Petition, Paragraph 4). Having reviewed the hearing transcript and the documentary evidence introduced at the hearing, I find that the issue was not raised at the hearing, and that the hearing officer would have had no basis for ruling upon petitioner’s post-hearing request. Therefore, I find that petitioner’s contention is without merit.

        Petitioner argues that she should be reimbursed for the ABA services that her son received at home during the 2000-01 school year. A written request for an impartial hearing must include a description of the nature of the problem and a proposed resolution of the problem (8 NYCRR 200.5[i][1][i][d] and [e]). Petitioner’s request for an impartial hearing is not part of the record. As indicated above, petitioner’s attorney did not refer to the issue of reimbursement for ABA services at home in his opening statement (Transcript pp. 4, 28-29). When the hearing officer raised the issue during the course of the hearing by asking petitioner’s attorney whether petitioner sought reimbursement for the cost of the ABA therapy at home, respondent’s representative objected. The hearing officer noted the objection, but allowed petitioner to present her case with respect to this issue. However, she ultimately concluded in her decision that petitioner was barred from obtaining reimbursement because she had not notified respondent that she would seek reimbursement for such therapy.

        In essence, the hearing officer found that equitable considerations did not support petitioner’s claim for reimbursement for her son’s ABA therapy at home because of her failure to notify respondent that she would seek reimbursement. Petitioner does not allege in this appeal that she did in fact notify the Board of Education that she would seek reimbursement for the cost of her son’s ABA therapy at home. Upon the record that is before me, I concur with the hearing officer’s determination. I must also note in order to be reimbursed for such therapy, petitioner had the burden of showing that her son could not reasonably have been expected to make meaningful progress toward achieving his individualized education program (IEP) annual goals without the ABA therapy provided to him at home (Application of a Child with a Disability, Appeal No. 98-56). I find that petitioner has not met her burden of proof.

        Petitioner seeks an order awarding her $5500 for attorney’s services at the hearing and $1000 for the attorney’s services in connection with this appeal. She reasons that since the hearing officer ordered respondent to reimburse her for the cost of her son’s tuition at WEDS, she is entitled to an award of attorneys’ fees. The Individuals with Disabilities Education Act (IDEA) provides in pertinent part that:

"In any action brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party." (20 U.S.C. § 1415 (i)((3)(B).

        The statute clearly indicates that a court may award attorney’s fees to a prevailing party. However, it is not necessary for me to determine whether petitioner is a prevailing party because it is well established that neither an impartial hearing officer nor the State Review Officer may award attorneys’ fees (Application of a Child with a Disability, Appeal No. 01-011; Application of the Board of Educ., Appeal No. 96-9; Application of a Child with a Disability, Appeal No. 94-18).

        Petitioner asks me to order respondent to immediately pay her the tuition reimbursement ordered by the hearing officer. Respondent asserts that payment is forthcoming. While I trust that petitioner has since been paid by respondent, I must note that petitioner’s complaint in this appeal is in essence an attempt to enforce the hearing officer’s original decision. I find that the issue is not properly before me. Petitioner’s remedy is to seek judicial enforcement of the hearing officer’s award of tuition reimbursement.