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 New York City Department of Education
Legal Services for Children, Inc., attorney for petitioner, Michael D. Hampden, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, John P. Hewson, Esq., of counsel
Petitioner appeals from that part of the decision of an impartial hearing officer which granted her request that tutoring services for her son be provided by respondent but denied her request that the tutor be paid the hourly rate requested by petitioner. The appeal must be dismissed.
Petitioner's son was 12 years old at the time of the March 2, 2005 impartial hearing (Tr. p. 41), attending sixth grade in respondent's public school (Tr. pp. 7, 42), and placed by respondent's Committee on Special Education (CSE) in a special class as a student with a learning disability (Dist. Ex. 1 at p. 1). The student's eligibility for special education services as a student with a learning disability (see 8 NYCRR 200.1[zz]) is not in dispute. Moreover, the finding of the impartial hearing officer that respondent denied petitioner’s son a free appropriate public education (FAPE) is not in dispute on appeal (Answer ¶ 34) and need not be addressed as that finding is well supported by the record.
The issue raised on appeal by petitioner is whether the impartial hearing officer erred by not fixing the rate of payment for a private tutor’s services for petitioner’s son at $125 per hour. Neither party appeals any other part of the impartial hearing officer’s decision, thus, I do not address the appropriateness of the relief ordered other than the issue of the hourly rate received by the tutor. As discussed below, I find that the issue is not properly before me and that the petition must be dismissed
On January 20, 2004, a CSE recommended that the student attend a special class with a 12:1 student to teacher ratio in a community school (Dist. Ex. 1 at p. 1). The CSE further recommended that the student receive daily special education teacher support services in a 5:1 group setting (Dist. Ex. 1 at p. 13). In addition, the CSE recommended 30 minutes of group speech-language therapy twice per week in a separate location (Dist. Ex. 1 at p. 15). Petitioner did not accept the CSE's recommended educational program and on February 4, 2005 requested an impartial hearing (Parent Ex. K).
In her February 4, 2005 letter, petitioner informed respondent that her son was receiving private tutoring from a Pace University reading remediation specialist twice a week at the parent's expense and stated she requested an impartial hearing for the purpose of obtaining: 1) extended school year (ESY) services for her son; 2) placement for her son in a nonpublic school specializing in remediation of severely learning disabled students; 3) an hour of daily tutoring services at district expense, by a Pace University reading remediation specialist at a rate of $125 per hour, until such time her son’s placement in the nonpublic school takes place; and 4) further relief as requested and appropriate (Parent Ex. K).
The impartial hearing took place on March 2, 2005. The impartial hearing officer rendered a decision on March 22, 2005 and found that the student had been receiving special education services for nearly five years without any signs of progress in his speech-language performance, the student seemed to be regressing in both decoding and reading comprehension over the years, respondent failed to make any serious effort to alter the child's individualized education program (IEP) considering the student's regression, and that respondent failed to adequately evaluate the student. The impartial hearing officer concluded that respondent failed to provide the student a FAPE (IHO Decision, pp. 6-8). The impartial hearing officer further found that it was "entirely appropriate" for petitioner to hire a private tutor and to request that private tutoring be increased from two hours per week to daily one-hour individual sessions (IHO Decision, p. 7). The impartial hearing officer ordered respondent to: 1) make arrangements immediately for a comprehensive evaluation of the student taking into account alleged central auditory and ocular problems; 2) expeditiously convene a CSE meeting to issue a new IEP taking into account the evaluation and in no event shall the new IEP be issued later than June 1, 2005; 3) in the event that a new IEP is not issued by June 1, 2005 that the parent may refer her son to the child based support team (CBST) for eventual placement of the child in a private school that specializes in teaching children with learning disabilities; and 4) to pay for tutoring services for petitioner's son for "five days/five hours per week for the remainder of the 2004-05 school year and through summer 2005 until such time as a new IEP and a full time placement and program for the child are in place" and such payment shall be up to but no more that $80 per hour (IHO Decision, pp. 8-9).
The record reveals that petitioner’s son received two one-hour private tutoring sessions per week paid for by petitioner for approximately one year prior to the impartial hearing (Tr. pp. 76-77). Petitioner’s son has continued to receive the private tutoring services since the impartial hearing officer’s March 22, 2005 decision although they have been provided for by respondent for five hours per week at no cost to petitioner (Pet. ¶ 30; Answer ¶ 30). Petitioner does not seek reimbursement for out-of-pocket costs incurred prior to the impartial hearing related to providing her son educational services (Pet. ¶ 1). On appeal is petitioner’s claim that the tutor be paid $125 per hour, rather than $80 per hour as ordered by the impartial hearing officer. A review of the hearing record and pleadings reveals that the tutor has continually provided services to petitioner’s son at a rate less than $125 per hour (Tr. p. 87; Answer ¶ 30). The hearing record is devoid of evidence that suggests petitioner’s son will not continue to receive the tutoring services if payment is less than $125 per hour.
Based upon my review of the record, I find that petitioner has asserted a claim on appeal more on behalf of the tutor than her son, that she is not asserting a claim on appeal based on alleged violations of rights provided under the IDEA,1 and that she is not aggrieved by the impartial hearing officer’s decision below.2
"[T]he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]). A party aggrieved by an impartial hearing officer's decision may appeal to a State Review Officer (see 34 C.F.R. § 300.510[b]; see 8 NYCRR 200.5[j]; Mackey v. Bd. of Educ., 386 F. 3d 158, 160 [2d Cir. 2004]; Application of the Bd. of Educ., Appeal No. 04-016; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, Appeal No. 99-029). In the instant case, the impartial hearing officer awarded petitioner relief pertaining to the evaluation, educational placement, and provision of a FAPE from which she did not appeal. She did appeal the portion of the impartial hearing officer’s decision that, based on the facts in the record, did not affect evaluation, placement, or delivery of appropriate services. The record reveals that the tutoring services sought by petitioner not only continued but also increased in frequency as a result of the impartial hearing officer’s decision. Thus, in the instant case, I find that petitioner is not aggrieved by the impartial hearing officer's determination (Application of the Bd. of Educ., Appeal No. 05-023; Application of the Bd. of Educ., Appeal No. 04-016).3
THE APPEAL IS DISMISSED.
1 A parent may initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child (8 NYCRR 200.5[i]).
2 Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (i) of 8 NYCRR 200.5 may appeal to a State review officer of the State Education Department (8 NYCRR 200.5[j]).
3 On appeal petitioner asserts that the impartial hearing officer’s determination in fixing the hourly rate of payment was not supported by the record. Given that I have determined that petitioner is not aggrieved by the decision below, I do not reach the issue of whether the portion of the decision regarding the hourly rate of payment was adequately supported by the record. However, I caution that an impartial hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of the Bd. of Educ., Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 02-003; Application of the Bd. of Educ., Appeal No. 01-87).