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 Fairport Central School District
Susan N. Burgess, Esq., attorney for petitioner
Bouvier, O'Connor, LLP, attorneys for respondent, Arthur H. Ackerhalt, Esq., and Jay C. Pletcher, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied his request for reimbursement for his daughter's tuition at an out-of-state private residential facility for the 2000-01 school year. The hearing officer's decision was based solely on her determination that equitable considerations did not support petitioner's claim. The appeal must be sustained in part.
At the time of the hearing, the student was 18 years old and had graduated in June 2002 from the Monroe County Board of Cooperative Educational Services' (BOCES) Phoenix School (Phoenix) with a local high school diploma (Transcript pp. 61-63).
Petitioner and his daughter moved to respondent's school district in November 1999 (Transcript pp. 63-64; Parent Exhibit 4 p. 13). Prior to enrollment in respondent's school, petitioner met with the school guidance counselor and informed her that his daughter had a history of problems (Parent Exhibit 19; Transcript pp. 683-685; see also, District Exhibits 47, 54). The student was enrolled in respondent's ninth grade regular education classes for the 1999-2000 school year (Parent Exhibit 4 p. 14).
During the 1999-2000 school year, petitioner's daughter's grades in her core subjects were mostly in the 70s and 80s, deteriorating the last two months of the year when her instructors noted inconsistent performance and poor attendance (Parent Exhibits 3, 53, pp. 3, 5-7; see Transcript p. 703). For two weeks at the end of March 2000, she was admitted to a private hospital from which she was discharged with several diagnoses (Parent Exhibit 1, District Exhibit 38). During this time, petitioner met with his daughter's guidance counselor, and he asserts that he verbally requested a referral for special education services and a residential placement (Transcript pp. 188-194, 348-349; Parent Exhibit 3). The guidance counselor sent a written memo to the Committee on Special Education (CSE) chair on March 31, 2000 stating that she had discussed with the student's parents the possibility of residential placements for their daughter (Parent Exhibit 3 p. 2). In late May the guidance counselor again discussed possible residential placements with the parents, at which time she phoned the CSE chair, who advised her that the student did not qualify for residential placement (Parent Exhibit 3 p. 1). However, respondent's CSE chair later testified that these discussions were solely about treatment for drug and alcohol abuse and not about a referral for special education services (Transcript pp. 188-194). The hospital sent a letter to respondent before petitioner's daughter was discharged recommending that she receive resource room services and continue her private counseling (District Exhibit 44). Upon her return to respondent's school, respondent offered petitioner's daughter resource room services, which she declined (Transcript p. 192; Parent Exhibit 3). On April 27, 2000, a teacher's report noted that possible emotional disturbance coding had been recommended for petitioner's daughter, but also that the student's school behavior was within appropriate range (Parent Exhibit 3 p. 7). A June 7, 2000 memo from the guidance counselor to all of the student's teachers informed them that petitioner's daughter would be taking all of her finals, but would not be attending classes for the remainder of the school year, and that outstanding classwork may receive grades of zero unless the student made an attempt to complete the work (Parent Exhibit 3 p. 5). The student finished the school year with a final average of 71 with three notices of failure (Parent Exhibit 53 pp. 3, 5-7).
In August 2000, petitioner's daughter was again admitted for eight days to a hospital for treatment (Parent Exhibit 4 p. 8). On August 29, 2000, petitioner informed respondent that his daughter had threatened harm to herself and her sister, that her doctors recommended residential treatment, and that he would be placing his daughter in Morning Star Adolescent Treatment Unit (Morning Star) for the 2000-01 school year and seeking tuition reimbursement (Transcript pp. 248, 196-197; Parent Exhibits 4, 31 p. 2, Parent Exhibit 16). Morning Star is a private out-of-state residential facility that has not been approved by the Commissioner of Education as a private school with which school districts may contract to educate children with disabilities (Parent Exhibits 15, 10 p. 7). Morning Star provides residential treatment for substance abuse and also provides on-site educational schooling (Parent Exhibits 21, 12, 17, 69; see Parent Exhibit 16 pp. 13-15). It is accredited by its state's local educational agency and recognized as an entity of the public school system (Parent Exhibits 21, 31 p. 14; 69). Before petitioner could enroll his daughter at Morning Star, petitioner informed respondent on September 7, 2000 that his daughter had run away and he did not know when she would return (Parent Exhibit 2).
By letter dated October 16, 2000, petitioner and his wife notified respondent that they had located their daughter and unilaterally placed her at Morning Star, and they requested tuition reimbursement (Parent Exhibit 4). They enclosed copies of a psychological evaluation of their daughter, and several recommendations that she be placed in a structured school situation (Parent Exhibit 4). They also included a list of her doctors over the last few years, as well as an educational and social history (Parent Exhibit 4). On October 31, 2000, petitioner wrote to respondent requesting that his daughter be referred to respondent's CSE for classification and special services (Parent Exhibit 5). At that time, the district first provided petitioner with a copy of his due process rights (Transcript pp. 195-196; Parent Exhibit 16 p. 4). Petitioner indicated he did not want to interrupt his daughter's program at Morning Star to bring his daughter back to New York to allow the CSE to do evaluations (Transcript pp. 199, 500-501; Parent Exhibit 31).
On December 14 and 21, 2000 the CSE met and developed a "draft" individualized education program (IEP) for petitioner's daughter which recommended classifying her as emotionally disabled and placing her in a 12-month residential program for the 2000-01 school year (District Exhibits 5, 23). The CSE began investigating 14 possible state-approved facilities (see Parent Exhibits 37, 10 p. 4), only one of which, Kidspeace School (Kidspeace), ultimately accepted petitioner's daughter (Parent Exhibits 10; District Exhibits 7, 8). On February 15, 2001, the CSE developed a final IEP for the student for the remainder of the 2000-01 school year classifying her as emotionally disturbed and recommending a 12-month residential placement at an unnamed approved in-state private school for September through June, with Kidspeace as her placement for July and August (District Exhibits 24, 10, 11). No one from Kidspeace attended the meeting (Transcript p. 232).
Petitioner rejected Kidspeace for various reasons, including its admission of male sexual offenders and its lack of an alcohol and drug addiction program (Parent Exhibits 11, 13, 17). In addition, petitioner's daughter's therapists had informed petitioner that moving his daughter from her current program would be highly detrimental to her (Parent Exhibit 12). Petitioner expressed his desire to have his daughter finish her program at Morning Star and to have respondent pay for it (see Parent Exhibits 7, 14, 16, 17; Transcript pp. 251, 429-432). Respondent provided reimbursement for two hours per day of tutorial services at Morning Star (Transcript pp. 58-59, 310, 383-384; Parent Exhibit 10). On March 8, 2001, the New York State Office of Children and Family Services directed Kidspeace to immediately close intake of new clients (Parent Exhibit 58).
By letter dated April 15, 2001, petitioner again requested that respondent reimburse him for his daughter's tuition at Morning Star or he would pursue "legal action" in June or July 2001 (Parent Exhibit 17; see also, Parent Exhibit 16). Respondent continued to search for alternative placements for petitioner's daughter (Transcript pp. 56, 127, 232; Parent Exhibits 20, 25, 38), resulting in acceptances by a Texas facility and a Pennsylvania facility in early June 2001 (District Exhibits 14, 15). These placements were also rejected by petitioner, since by then the school year was almost over and he expected his daughter to return home and be reevaluated for the following school year (Transcript pp. 290-291; Parent Exhibits 27, 22 p. 2, Parent Exhibits 20, 31 p. 4; see Transcript pp. 278-279, 320, 452). In a subsequent letter to respondent's superintendent dated May 3, 2001, petitioner repeated his request for tuition reimbursement for the 2000-01 school year and referred to his letter of April 15 and his intention to initiate an impartial hearing in June or July 2001 (Parent Exhibit 22 p. 2; see also, Parent Exhibits 22, 27). He also reiterated his intent to pursue an impartial hearing via letter to respondent's CSE chair dated July 2, 2001 (Parent Exhibit 27). On July 27, 2001, the attorney petitioner had sought to represent him declined to do so (Parent Exhibit 30). On September 19, 2001, petitioner wrote to the United States Department of Education requesting an independent review of his complaint against respondent (Parent Exhibit 31). In late November or early December 2001, petitioner was informed that the U.S. Department of Education no longer performed such reviews (Parent Exhibit 41 p. 5).
On October 4, 2001, the student completed her program at Morning Star and returned to the district (Transcript p. 291; Parent Exhibit W-32). On October 18, 2001 the CSE met and developed an IEP for petitioner's daughter for the 2001-02 school year, which continued to classify her as emotionally disturbed and recommended placement at Phoenix for the 11th grade in a ten-month program with consultant teacher services (District Exhibit 25). Petitioner's daughter enrolled in the program recommended by the CSE and stayed there for the remainder of the 2001-02 school year (Parent Exhibit 53 pp. 16-18). The CSE reviewed the student's progress at Phoenix in November 2001 and March 2002, and recommended continuation of the IEP (District Exhibits 18, 19, 20, 21, 26; see also, District Exhibits 29, 30, 31). Although the student was only in the 11th grade (District Exhibits 29, 30), she continued to progress, and was in fact able to graduate from high school in June 2002, one year early (Transcript pp. 63, 283).
The day after her graduation, on June 23, 2002, based on advice received in a telephone conversation with an attorney (Parent Exhibit 35), petitioner wrote to the district and requested an impartial hearing seeking tuition reimbursement for the 2000-01 school year for his daughter's attendance at Morning Star (Parent Exhibit 39). Respondent initially refused to grant petitioner a hearing, claiming that since his daughter had graduated, the district was no longer obligated to her for the provision or lack of provision of past special educational services (Parent Exhibit 39). After petitioner lodged a formal complaint against respondent with the State Education Department regarding the denial of his hearing request (Parent Exhibit 39), respondent agreed to conduct a hearing (Parent Exhibit 39).
Prior to the start of the hearing, respondent moved to dismiss petitioner's claim as barred by laches (see IHO Exhibit 1; Transcript pp. 10-11). After two days of testimony, the hearing officer issued an order denying respondent's motion to dismiss, and decided, over petitioner's objection (Transcript pp. 39-41), to bifurcate the hearing to first determine whether petitioner met the equities prong of the Burlington/Carter tuition reimbursement test (see Florence County Sch. Dist Four v. Carter, 510 U.S. 7 ; Sch. Comm. of Burlington v. Dep't. of Educ., 471 U.S. 359 ), and if so, to then hold a hearing on first two prongs of the test concerning the merits of the tuition reimbursement claim (Petition Exhibit B). After another two days of testimony limited solely to the equities of the reimbursement claim, the hearing officer closed the hearing, and on October 17, 2002, she rendered her decision finding that petitioner's claim failed on the equities prong of the Burlington/Carter test because of petitioner's delay in requesting a hearing (Petition Exhibit A). Based on that finding alone, she denied petitioner's claim for tuition reimbursement.
Petitioner contends that the hearing officer erred in denying tuition reimbursement based solely on the third prong of the Burlington/Carter test, without first determining whether the school district provided a free appropriate public education (FAPE) to his daughter, and whether the private placement selected by petitioner provided an appropriate program. Petitioner also argues that respondent failed to meet its "child find" obligations and that the impartial hearing officer was biased. Respondent does not cross appeal from the hearing officer's order that denied respondent's motion to dismiss based on the equitable doctrine of laches; therefore, that order is final and binding (Application of a Child with a Disability, Appeal No. 01-108; see Hiller v. Bd. of Educ., 674 F. Supp. 73 [N.D.N.Y. 1987]).
Respondent contends that the petition is untimely. State regulations require that a notice of intention to seek review must be served within 30 days of receipt of a hearing officer's decision (8 NYCRR 279.2[b]), a petition must be served within 40 days of the receipt of a hearing officer's decision (id.), and respondent's answer must be served within 10 days of service of the petition (8 NYCRR 279.5). An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 00-050; Application of a Child with a Disability, Appeal No. 97-18).
In the instant case, the hearing officer's decision was rendered on October 17, 2002. Petitioner was unrepresented by counsel at the hearing but obtained an attorney in late October or early November (Petition Exhibit C). Petitioner served a timely notice of intention to seek review on November 14, 2002 (Petition Exhibit D, p.2). By letter dated November 7, 2002, petitioner's new counsel requested a 60-day extension of time in which to serve the petition (until January 15, 2003), due to the fact that the transcript was not yet available, petitioner's job had relocated him out of state, and the record was extensive (Petition Exhibit C). Respondent's counsel consented to a 30-day extension, provided that respondent be allowed an extension of 30 days from service of the petition to serve his answer (Petition Exhibit E). Petitioner's counsel received the transcript on November 22, 2002 (Petition ¶ 34). The petition was served on January 17, 2003. Respondent's answer was served on February 13, 2003, 27 days after service of the petition. Because petitioner was unrepresented at the hearing, together with the fact that the record was extensive, consisting of over 700 pages of transcript and in excess of 90 exhibits, and the fact that receipt of the transcript was delayed, I will exercise my discretion and accept the petition (see Application of a Child with a Disability, Appeal No. 97-18).
Under the Individuals with Disabilities Education Act (IDEA), each child with a disability is ensured the availability of a FAPE (20 U.S.C. § 1400[d][A]; 34 C.F.R. § 300.121[a]). A FAPE consists of special education and related services provided in accordance with an IEP (20 U.S.C. § 1401; 34 C.F.R. § 300.13). A board of education may be required to pay for educational services obtained for a student by his or her parent, if three criteria are met: 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, 471 U.S. at 370, 374; see 20 U.S.C. § 1412[a][C][ii],[iii],[iv]; 34 C.F.R. § 300.403[c],[d],[e]). Under equitable considerations "[f]actors that should be taken into account include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters"(Burlington v. Dep't. of Educ.,736 F.2d 733, 801-02 (1st Cir. 1984) aff'd 471 U.S. 359 (1985). This three-pronged test is commonly referred to as the Burlington/Carter test. The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. 7; 34 C.F.R. § 300.403[c]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).
Petitioner contends that the hearing officer erred in bifurcating the hearing to limit the evidence to just the equitable relief prong of the Burlington/Carter test and denying tuition reimbursement on that basis alone. Petitioner is correct. As noted, under the Burlington/Carter test parents can qualify for tuition reimbursement if (1) the district fails to offer or provide a FAPE, and (2) the private educational services obtained by the parents were appropriate to their child's needs (Carter, 510 U.S. at 12-13; Burlington, 471 U.S. at 370). "Once this two prong test is satisfied, 'equitable considerations are relevant in fashioning [the appropriate] relief'" (Wolfe v. Taconic-Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 533-34 [N.D.N.Y. 2001], quoting Burlington, 471 U.S. at 374; Carter, 510 U.S. at 16). Thus, the equitable prong of the Burlington/Carter test relates only to the fashioning of relief, i.e., the reduction or limitation of the tuition award (see 20 U.S.C. § 1412[a][C][iii]), once it has been determined that the parents qualify for it under the first two prongs (see Gadsby v. Grasmick, 109 F3d 940, 955 [4th Cir. 1997] [appropriate level of relief is considered "once it is determined that reimbursement costs should be awarded"]; see generally, M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67-68 [2d Cir. 2000]). It is axiomatic that one must first find a harm before one can fashion a remedy. In the Burlington/Carter analysis, a court or administrative agency must first determine if the relief is warranted before it can determine how the relief should be fashioned to fit the circumstances of the case (see Wolfe, 167 F.Supp.2d 530, 533-534). Because, in the instant case, the hearing officer failed to initially establish whether petitioner's daughter was denied a FAPE, it was inappropriate to proceed with the remedies prong of the test first. Even courts that have held that a prolonged delay by the parent in requesting a hearing can ultimately result in a denial of an award of tuition reimbursement have been careful to note that "[w]e, of course, recognize that the school district has the duty in the first instance to provide an appropriate IEP, and moreover, to demonstrate by a preponderance at a due process hearing that the IEP it offered was indeed appropriate" (Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]; see also, Application of a Child with a Disability, Appeal No. 96-72).1
The fallacy in the hearing officer's approach in bypassing the first two prongs and going directly to the question of equities is that it neglects to take into account the situation where the parents' actions may be questionable under the equities prong, but where a district's denial of FAPE to a student rises to such a level that a parent is not to suffer the consequences for the district's violation (see, Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3d Cir. 1999] [conduct of the parents should not be interpreted to undercut the purpose of the Act]; Rose v. Chester Co. Intermediate Unit, 1996 WL 238699, at 11 [E.D. Pa. 1996], aff'd 114 F.3d 1173 [3d Cir. 1997] [a gross violation of IDEA's procedural requirements in providing a FAPE weighs heavily in the equities consideration]; see, e.g., Weast v. Schaffer, 240 F. Supp.2d 396, 406-408 [D. Md. 2002]; Wolfe, 167 F. Supp.2d at 534-535; Justin G. v. Bd. of Educ., 148 F. Supp.2d 576, 586 [D. Md. 2001]; Eugene B. v. Great Neck Union Free Sch. Dist., 635 F. Supp. 753, 759 [E.D.N.Y. 1986]). Notably, in the instant case, the hearing officer stated in her decision that the "most important" reason she denied reimbursement was "that [petitioner] never intended to place [his daughter] in a CSE-recommended and SED-approved facility, but instead, always intended to (a) continue [his daughter] in her placement at [the private facility] and (b) seek reimbursement for that unilateral placement" (IHO decision, p. 2). However, a parent's preference for a private school placement is not dispositive of a claim for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 01-068; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 00-025; see Wolfe, 167 F. Supp.2d 530, 534-35; see also, Weast, 242 F. Supp.2d 396, 407-408). One of the necessary predicates to an award of tuition reimbursement is a denial of FAPE (see 20 U.S.C. § 1412[a][C][ii]). Because the hearing officer failed to first establish whether or not a denial of FAPE had occurred, there is no way of knowing in the instant case if any actions by petitioner were outweighed by actions taken by respondent which may have resulted in a denial of a FAPE. Therefore, I find that the hearing officer erred in bifurcating the hearing to admit only evidence of the equities prong of the Burlington/Carter test, without even considering whether or not a FAPE was offered.
This finding is also consistent with the purpose of the IDEA. As the Supreme Court noted in Burlington, "[t]he Act was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives" (Burlington, 471 U.S. at 372). Courts have recognized that "[t]he conduct of the parents should not be permitted to defeat the purpose of the Act, and the remedial power of the court should not be interpreted to further such an end" (Warren G., 190 F.3d at, 86; Lilbask v. Sergi, 117 F. Supp. 2d 182, 199 [D. Conn. 2000]). In addition, some courts have found that arguments of delay by parents cannot justify clear-cut violations of the IDEA (see, Justin G., 148 F. Supp.2d at 585-586; Eugene B., 635 F. Supp. 753; see, e.g., Application of the Bd. of Educ. of the New Paltz Cent. Sch. Dist., Appeal No. 01-058 [parents' delay in requesting a hearing did not preclude reimbursement where district failed to locate and classify child in accordance with child find provisions]). In short, "in considering the equities the Court must not lose sight of the [IDEA]'s goal of providing a free appropriate education to all handicapped children" (Eugene B., 635 F. Supp. at 759).
I note for future clarification the distinction between a defense of laches and a defense based on the equitable considerations prong of the Burlington/Carter test. Laches is an affirmative defense, which means it may be decided prior to reaching the merits of a case (see Conopco Inc. v. Campbell Soup Co, 95 F.3d 187, 192 [2d Cir. 1996]; see, e.g., Murphy v. Timberlane Regional Sch. Dist., 228 F.3d 1186, 1189-92 [1st Cir. 1994], cert. denied, 513 U.S. 987  [laches used as an affirmative defense in the context of an IDEA case]; Phillips v. Bd. of Educ., 949 F. Supp. 1108 [S.D.N.Y. 1997] [same]; Application of a Child with a Disability, Appeal No. 01-087 [same]). It is subject to and must meet two specific conditions: (1) a party fails to assert a right in a timely manner, and (2) the lapse of time causes prejudice to the adverse party (see Conopco, 95 F.3d at 192; Phillips, 949 F. Supp. at 1112). The threshold is high because the result, a denial of a hearing on the merits, is a severe remedy (see generally, Waddell v. Small Tube Products, Inc., 799 F.2d 69, 79 [3d Cir. 1986]; McDonnell v. Estelle, 666 F.2d 246, 254-255 [5th Cir. 1982]). The equitable considerations prong of the Burlington/Carter test, on the other hand, is not an affirmative defense; it is the third prong of a three-part test which only becomes relevant in fashioning the relief flowing from a harm identified after an examination of the merits of a claim for tuition reimbursement (see Carter, 510 U.S. at 15-16; Burlington, 471 U.S. at 374; Wolfe, 167 F. Supp.2d 530, 533-534; see, e.g., Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 01-108; Application of a Child with a Disability, Appeal No. 99-97).
Because in the instant case, the hearing officer erred in bifurcating and limiting the due process hearing to include only evidence on the equitable relief prong of the Burlington/Carter test first, and on that basis alone denied tuition reimbursement, without ever addressing or resolving whether or not the student was provided a FAPE and whether or not the program selected by the parents was appropriate, I must annul the hearing officer's decision and remand the case for a full consideration of the merits of petitioner's claim under Burlington/Carter and its progeny.
This decision raises inevitable questions about the allowance of bifurcation of other prongs of the Burlington/Carter test at the hearing stage, which I now find it necessary to revisit. I note that, although the propriety of such bifurcation has not been directly addressed by federal courts, there are some federal cases in other jurisdictions where, in the underlying hearing, hearing officers have bifurcated tuition reimbursement claims to limit the evidence to just prong one, and after determining that a FAPE was provided, have ended the hearing and denied tuition reimbursement on that basis alone (see, e.g., King v. Bd. of Educ., 999 F. Supp. 750 [D. Md. 1998] [hearing bifurcated to prong one only, but parents originally agreed to bifurcation and district court found that any defect was "cured" by district court later allowing in evidence of prong two]; see also, Johnson v. Olathe Dist. Schs., ___ F. Supp.2d ___. 2003 WL 213413960 [D. Kan. 2003] [district court found that parents failed to object to alleged bifurcation at hearing]). Although in the past State Review Officers have found that it is within the hearing officer's discretion to bifurcate a tuition reimbursement claim to first consider evidence of only prong one and to close the hearing if he or she concludes that a FAPE was offered (see Application of a Child with a Disability, Appeal No. 02-029; Application of a Child with a Disability, Appeal No. 98-40), that avenue has led to problems wherein on administrative review, it is determined that a FAPE was not in fact offered or provided and there is no record from which to proceed to determine whether or not the other two prongs of the test were met (id.). In such situations, the case inevitably must be remanded for a new hearing, delaying the process of obtaining an ultimate judgment on the issue of what the child's placement is and whether or not an award of tuition reimbursement is proper. The practical result is that a final resolution of the claim is unduly prolonged, while parents are forced to continue to extend themselves financially or return their child to a placement that they believe is inappropriate, and the district continues to develop IEPs without the benefit of an administrative decision on the appropriateness of the recommended placement. Meanwhile memories fade, witnesses become unavailable, evidence is lost, and another school year often elapses.
It is well settled that it is a hearing officer's responsibility to ensure that there is an adequate record upon which to permit meaningful review (Application of a Child with a Disability, Appeal No. 00-039 [tuition reimbursement case remanded in order to take more evidence on prongs one, two and three]; Application of a Child with a Disability, Appeal No. 00-021 [tuition reimbursement case remanded to allow pro se parent to present evidence on prong two]; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 97-92 [tuition reimbursement case remanded to allow both sides to present adequate evidence on all three prongs of Burlington]; see also, Application of a Child with a Disability, Appeal No. 01-024 [relief cannot be awarded "until it has been determined in a due process proceeding that the educational program recommended by the CSE was inappropriate and the services that (the parents) seek are appropriate for the student"]). I find that, in order to permit meaningful review in a tuition reimbursement claim, in the absence of any stipulation by the parties conceding an issue, when tuition reimbursement is sought under Burlington/Carter, it is preferable for a hearing officer to admit relevant evidence on all three prongs of the Burlington/Carter test at the hearing stage (seeApplication of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 97-92; Application of a Child with a Disability, Appeal No. 96-72).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it denied the petitioner tuition reimbursement in a bifurcated hearing based solely on the equities prong of the Burlington/Carter test; and
IT IS FURTHER ORDERED that within thirty days of receipt of this decision, unless the parties otherwise agree, respondent shall schedule a new hearing before a new hearing officer to take evidence of the appropriateness of respondent's recommended placement and the appropriateness of the services obtained by petitioner, as well as any equitable considerations as required under a full Burlington/Carter analysis, and to make a determination on petitioner's claim for reimbursement in accordance with the tenor of this decision.
1 I note that respondent lists a string of decisions by the State Review Officer in which tuition reimbursement was denied where a parent failed the equitable considerations prong of the Burlington/Carter test; however, in all of these cases a full hearing was conducted below which first determined whether or not the district provided a FAPE to the student and whether or not the placement chosen by the parent was an appropriate program (see Respondent's Memo of Law, p. 5-6, citing Application of a Child with a Disability, Appeal No. 97-89; Application of a Child with a Disability, Appeal No. 96-72; Application of a Child with a Disability, Appeal No. 96-15; Application of a Child with a Disability, Appeal No. 96-5; Application of a Child with a Disability, Appeal No. 95-86; Application of a Child with a Disability, Appeal No. 95-82). Respondent cites to one State Review Officer decision that dismissed a tuition reimbursement claim due to untimeliness where a full Burlington/Carter analysis was not done at the hearing stage, but respondent admits that decision was based on a party asserting and succeeding on the affirmative defense of laches (Application of a Child with a Disability, 01-087)- the identical issue that respondent in the instant case raised below, lost, and failed to appeal.