05-073
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel
Mayerson & Associates, attorney for respondent, Gary S. Mayerson and Christina D. Thivierge, Esqs., of counsel
Decision
Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's daughter and ordered it to reimburse respondent for her daughter’s applied behavioral analysis (ABA) program, up to 50 hours per week, by a private provider from January 2004 through summer 2004. The appeal must be sustained in part.
At the outset, a procedural matter must be addressed. Respondent asserts that the petition was improperly served. The State Review Officer has sole discretion to reject documents that do not comply with the Regulations of the Commissioner of Education (8 NYCRR 279.8[a]).
Although state regulations require personal service, petitioner improperly served respondent with the petition by overnight mail (8 NYCRR 275.8). There is no indication in the record that respondent consented to such service. Nevertheless, I find that respondent effectively responded to petitioner's allegations in a timely manner upon receipt of the petition and I will not dismiss the petition in this case for improper service (Application of the Bd. of Educ., Appeal No. 04-085; Application of a Child with a Disability, Appeal No. 04-084; Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 93-2). However, I remind petitioner of the practice requirements of Part 279 of the Commissioner’s Regulations and caution that failure to comply with the personal service requirements may result in the dismissal of a petition (Application of the Bd. of Educ., Appeal No. 01-048).
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).2 A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP” (Burlington, at 370-71).
On appeal, petitioner does not dispute the reasonableness of the cost of the required reimbursement and in fact conceded prongs one and three of the Burlington/Carter reimbursement test at the impartial hearing (Tr. pp. 8-9). Petitioner conceded that it did not offer a FAPE (prong one) and that equitable considerations, which include reasonableness of the cost, supported the parent's claim (prong three) (see Carter, 510 U.S. at 15-16; Burlington, 471 U.S. at 369-74). Petitioner also concedes that the private services obtained by the parent were appropriate (prong two). The issue raised on appeal by petitioner is whether the impartial hearing officer erred by ordering petitioner to reimburse respondent for the cost of the ABA services without explicitly stating that proof of payment for the services was required. In his decision, the impartial hearing officer, in finding that tuition reimbursement should be awarded to respondent, phrased the relevant order as follows: "I therefore order the District to reimburse the parent for the services of [the private provider] during the period that ran from January 31, 2004 to the last day of services provided for during the summer of 2004" (IHO Decision at p. 5). Petitioner requests that the impartial hearing officer's decision be set aside, or in the alternative, that the case be remanded for "completion of the evidentiary record."
An order by an impartial hearing officer for a district to pay costs for unapproved services is permissible only as an equitable remedy to allow parents to be retroactively reimbursed once they have obtained and paid for appropriate services (see 20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]; see generally Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370-71 [1985]; A.A. v. Bd. of Educ., 196 F. Supp. 2d 259, 264 [E.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 05-039, at n.7; Application of a Child with a Disability, Appeal No. 05-025, at n.1; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-037).3 To the extent that the impartial hearing officer's decision and order in the present case fails to reflect that proof of payment is to be submitted prior to reimbursement, the order is modified pursuant to my authority under New York Education Law § 4404[2]),4 as detailed below.
Concerning respondent's claim for attorneys' fees, respondent is advised that such relief is beyond the scope of the State Review Officer's authority (Application of a Child with a Disability, Appeal No.03-067; Application of the Bd. of Educ., Appeal No. 03-012; Application of a Child with a Disability, Appeal No. 01-086), and can only be granted by a court of law (20 U.S.C. § 1415[i][3][B]).
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby modified to the extent that it held as follows: "I therefore order the District to reimburse the parent for the services of [the private provider] during the period that ran from January 31, 2004 to the last day of services provided for during the summer of 2004" (IHO Decision at p. 5), and
IT IS FURTHER ORDERED that petitioner shall reimburse respondent for the cost of her daughter’s ABA services provided by a private provider from January 2004 to the last day ABA services were provided to respondent's daughter during the summer of 2004, up to a maximum of 50 hours per week, within 60 days of respondent’s submission of proof of such expenditures to petitioner.
1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).
3 In the present case, the transcript reflects that respondent in fact had proof of payment with her at the impartial hearing but that it was not entered into evidence (Tr. p. 67).
4 Proof of respondent's expenditures for her daughter's private provider ABA services from January 2004 through summer 2004 was annexed to respondent's verified answer (Answer Ex. A). I note that petitioner has neither replied to nor objected to the additional documentary evidence served with respondent’s answer, as permitted by 8 NYCRR 279.6.
Topical Index
1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).
3 In the present case, the transcript reflects that respondent in fact had proof of payment with her at the impartial hearing but that it was not entered into evidence (Tr. p. 67).
4 Proof of respondent's expenditures for her daughter's private provider ABA services from January 2004 through summer 2004 was annexed to respondent's verified answer (Answer Ex. A). I note that petitioner has neither replied to nor objected to the additional documentary evidence served with respondent’s answer, as permitted by 8 NYCRR 279.6.