05-099

              Petitioner, the Board of Education of the Sachem Central School District, appeals from that part of the decision of an impartial hearing officer which ordered it to reimburse respondent for tuition and room and board should a Family Court or a mental health service place the student in a residential setting.  The appeal must be sustained.

            At the time of the hearing in May and early June 2005, the student was 17 years old and a resident at a psychiatric facility (Parent Exs. O, P).  He was in the 11th grade and attended school at the facility (Parent Ex. P).  The student was referred to the facility in December 2004 in connection with a person in need of supervision (PINS) proceeding in the Suffolk County Family Court (id.).

            Petitioner's Committee on Special Education (CSE) met in April 2005 at respondent's request and determined that respondent's son was not eligible for special education services because he was not a student with a disability  (Dist. Ex. 9, Parent Ex. I; Tr. pp. 45-46).  On April 19, 2005, respondent requested an impartial hearing seeking, among other things, that her son be classified as a student with a disability, that petitioner provide a free appropriate public education (FAPE) to her son and develop an individualized education program for him, and that "should the Family court place" her son, petitioner reimburse her for any out-of-pocket expenditures including tuition, room and board (Parent Ex. B).  The impartial hearing was conducted on May 25 and 26, 2005 and on June 10, 2005.

            On June 13, 2005, the student was certified as eligible for residential treatment facility (RTF) care (Answer Ex. C).  He was referred to an RTF and admitted on June 29, 2005 (id.).  The student continues to reside at the RTF, where he turned 18 years old and is in the 12th grade at the public school on the campus of the facility (Answer Exs. A, D).

            The impartial hearing officer rendered his decision on August 12, 2005.  He found that petitioner failed to provide the student with a free appropriate public education (FAPE) by refusing to classify him.  In addition to ordering petitioner to classify the student and to provide the student a FAPE, the impartial hearing officer made note of an upcoming court appearance and ordered that "should the Family Court and/or a mental health service place the student in a residential setting, Sachem Central School District should reimburse [the student] for tuition and room and board."

            Petitioner appeals from that part of the impartial hearing officer's decision which ordered it to reimburse respondent for tuition and room and board should her son in the future be placed in a residential setting by the Family Court or mental health service.  It claims that the impartial hearing officer had no authority to issue such an order.  It further claims that in issuing the order, the impartial hearing officer circumvented the statutory scheme governing financial responsibility for Family Court ordered residential placements. Petitioner requests that I annul the order.

            In her answer, respondent asserts that the appeal is moot.  She claims that her son was not placed at the RTF by the Family Court, and, pursuant to state law, the New York State Office of Mental Health (OMH) is responsible for her son's tuition (see N.Y. Educ. Law §4004[2]).  Further, respondent states that she does not have any out-of-pocket expenses associated with her son's placement at the RTF and that she is not requesting reimbursement for any assignment of benefits she has made to OMH for her son's placement at the RTF (Answer Ex. A).  Respondent argues that because there is no reimbursement issue, a determination of petitioner's claim would have no practical effect on the parties, and the matter is moot.  In addition, respondent claims that a Family Court ordered placement would, by operation of law, be vacated, unless consent is obtained, on her son's 18th birthday.  Petitioner did not file a reply to respondent's answer. 

            As noted above, when respondent requested an impartial hearing, her son was a resident at a psychiatric facility, to which he was referred by the Family Court.  In her request for an impartial hearing, respondent asked the impartial hearing officer to order petitioner to reimburse her for any out-of-pocket expenditures should the Family Court place her son.  At the impartial hearing, however, respondent presented no evidence of any out-of-pocket expenditures in connection with a Family Court placement of her son.  Nor did she present evidence to show that the Family Court ordered her to contribute to her son's support or that a petition for support was pending.  Nevertheless, the impartial hearing officer ordered the requested relief, and, in addition, ordered petitioner to reimburse respondent for tuition and room and board should the student be placed in a residential setting by a "mental health service."  Under the circumstances, I find that the impartial hearing officer's order was premature and should be annulled (see Application of a Child with a Handicapping Condition, 33 Ed Dept Rep 403).  In addition, I find that the impartial hearing officer exceeded his authority in issuing such an order and that his order was not supported by evidence in the record (see Application of the New York City Dept. of Educ., Appeal No. 05-065; Application of a Child with a Disability, Appeal No. 05-044).  In fact, the record shows that the student is now 18 years old, currently residing at an RTF, and that respondent is not responsible for his tuition at the RTF, does not have any out-of-pocket expenses associated with his placement at the RTF and is not requesting reimbursement for any assignment of benefits she has made to OMH for his placement at the RTF (Answer Ex. A).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the impartial hearing officer be annulled insofar as it ordered petitioner to reimburse respondent for tuition and room and board should the Family Court or a mental health service place the student in a residential setting.