03-079

    Petitioner appeals from an impartial hearing officer’s decision denying tuition reimbursement for the spring 1999 term, and the school years 1999-2000, 2000-2001, 2001-2002 and 2002-2003, and the impartial hearing officer’s decision that tuition reimbursement for the 2003-2004 school year was not properly before him for a decision. The appeal must be dismissed.

        The petition, dated August 8, 2002, addresses certain aspects of the impartial hearing officer’s decision and requests tuition reimbursement in the amount of $54,000, which I assume is the amount disbursed from spring 1999 forward. The district filed an answer dated September 8, 2003, received by the State Review Office on September 10, 2003. While the Regulations of the Commissioner at 8 NYCRR §279.5 require that an answer be filed within ten days of the service of the petition, it is noted that the petition itself incorrectly references a twenty day response time. Under these circumstances, I will excuse a brief delay and accept the answer and memorandum of law submitted by the respondent.

        As to the issue of tuition reimbursement, the impartial hearing officer ruled that petitioner’s request for reimbursement for the spring 1999 and 1999-2000 terms has not been made in a timely manner. The impartial hearing officer opined that requests for reimbursement should be made within one year after the completion of the school year at issue, unless there are special circumstances that prohibited the parent from requesting an impartial hearing within that time frame. Under this reasoning, barring such special circumstances, a request for the spring 1999 term should have been made by June 2000, and for the 1999-2000 school year by June 2001.

        Parents have an obligation to request an impartial hearing challenging the appropriateness of their child's IEP within a reasonable period of time after they have unilaterally placed the child in a private school (Phillips v. Bd. of Educ., 949 F. Supp 1108 [S.D. N.Y. 1997]; Bernardsville Bd. of Educ. v. J.H., 42 F. 3d 149 [3d Cir. 1994]; Application of a Child with a Disability, Appeal No. 96-72, Application of a Child with a Disability, Appeal No. 01-019).

        As to the spring 1999 term and the 1999-2000 school year, I agree with the analysis of the impartial hearing officer, that the hearing should have been requested within a year after the term ended, barring special circumstances, and with his determination that the petitioner has shown no such special circumstances here. Since her request for an impartial hearing was made by letter dated June 13, 2003, it is untimely for Spring 1999 and 1999-2000.

        As to the 2000-2001 school year, tuition reimbursement was requested and denied following an impartial hearing. This determination was upheld by the State Review Officer in Application of a Child with a Disability, Appeal No. 01-032, issued on March 14, 2002. In turn a petition to challenge the State Review Officer’s decision was denied on August 21, 2002, Arum v. Syosset Central School District, Index No. 011275/2002, Supreme Court, County of Nassau. I consider this determination final and binding as to the 2000-2001 school year.

        As to the 2001-2002 school year, the impartial hearing officer turned to the doctrine of laches and reasoned that since petitioner learned of the final resolution of Appeal No. 01-032 in August 2002, her request for reimbursement for this year by letter dated June 13, 2003 was not timely. However, I am troubled by the inconsistency found in the impartial hearing officer’s treatment of the timing of the request for prior years, where he explicitly applies a time limit of one year following the completion of a school year, and his laches analysis as to the 2001-2002 year. I have determined to give petitioner the benefit of the one year, for the sake of fairness and consistency. The one-year time limit applied to the 2001-2002 school year would make petitioner’s June 13, 2003 letter timely, and I am treating it as such.

        Thus, as to tuition reimbursement, the 2001-2002 and 2002-2003 school years are properly before me. 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 School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its Committee on Special Education (CSE) (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        I find that for the 2002-2003 school year, respondent has met its burden of demonstrating the appropriateness of the program recommended by its CSE. The CSE met on December 17, 2002, and issued an individualized education program (IEP) on that date. The child’s parents did not attend the meeting, but meeting notes reflect that they were aware of it (District Exhibit 9, page 2). I note that current evaluations were not available, but the record reflects that respondent requested by letter dated November 1, 2002 petitioner’s cooperation in having these evaluations done (District Exhibit 16). In addition, I do not believe that additional evaluations were likely to add significant new information to this IEP. The child’s progress was being closely monitored, and there were no significant reported changes in behavior, social/emotional growth or learning.

        The December 17, 2002 IEP recommends placement in respondent’s regular education program, supported by special services provided by the district. The IEP identifies needs in the following areas: attention, learning rate, organization, work completion, extracting meaning and drawing conclusions. The goals and objectives identified in the IEP are related to these needs, and provide significant detail in setting out these goals. The child’s behavioral needs are also adequately addressed in the program proposed in the IEP, with the program calling for use of a 1:1 aide and a consultant teacher for five hours per week. The IEP also sets forth strategies and testing modifications which are well matched to the child’s difficulties with organizational skills.

        Since respondent has met its burden in demonstrating the appropriateness of the program it offered in 2002-2003, petitioner is not entitled to tuition reimbursement for that year, and the second two prongs of the analysis in Burlington, supra, need not be addressed.

        As to the 2001-2002 school year, I also find that respondent has met its burden of demonstrating the appropriateness of the program recommended by its CSE. This program is set forth in an IEP dated November 19, 2001, based upon a CSE meeting of the same date. I note that the parents of the child were invited to the CSE meeting but did not attend.

        The nature of the child’s difficulties, and the program offered by respondent did not change significantly from 2001-2002 to 2002-2003, and therefore much of what I observed in the IEP for the 2002-2003 academic year applies here as well. The evaluations were performed in October and May 2001, so there is no issue as to whether they are contemporaneous with the CSE meeting. The November 19, 2001 IEP recommends placement in respondent’s regular education program, supported by special services provided by the district. For the 2001-2002 school year, a 1:1 aide is recommended for five days per week, six hours per day, a consultant teacher is recommended for two days per week, two hours per day, and speech and language therapy for two days per week, thirty minutes per day. I find that these services adequately address the child’s behavioral needs.

        The November 19, 2002 IEP also accurately identifies the child’s needs in the areas of speech and language, and dealing with frustration and anxiety, and appropriately identifies goals and objectives to measure progress in these areas.

        Since respondent has met its burden in demonstrating the appropriateness of the program it offered in 2001-2002, petitioner is not entitled to tuition reimbursement for that year, and the second two prongs of the analysis in Burlington, supra, need not be addressed.

        The final issue to be determined by me is the impartial hearing officer’s decision that tuition reimbursement for the 2003-2004 school year was not properly before him for a decision. At the time of his decision, the determination of the CSE for that year was not on the record before him. I therefore agree that he had no authority to rule on this issue, and properly decided that it was not before him.

THE APPEAL IS DISMISSED.