06-021

          Petitioner appeals from two decisions of an impartial hearing officer which denied her request to be reimbursed for her daughter's tuition costs at York Preparatory School (York) for the 2005-06 school year, and also held that York was not the student's pendency placement.  The appeal must be sustained.

            In the present case, an impartial hearing was never held on the merits of petitioner's tuition reimbursement claim.  After a pre-hearing conference and a subsequent motion to dismiss by respondent, the impartial hearing officer dismissed petitioner's claim for tuition reimbursement for the student's tuition at York for the 2005-06 school year by decision dated January 24, 2006. After petitioner's claim was dismissed, petitioner requested a hearing and a determination from the impartial hearing officer regarding the student's pendency placement.  The impartial hearing officer did not conduct a hearing on this issue, but did request submissions from the parties and then issued a decision on January 31, 2006, holding that York was not the student's pendency placement.  Petitioner appeals both decisions.  As set forth herein, I find that the impartial hearing officer erred in granting respondent's motion to dismiss petitioner's tuition reimbursement claim, and also that the impartial hearing officer's decision on pendency must be annulled because he lacked authority to retain jurisdiction of the case after issuing his prior decision dismissing the case.

            Regarding the student's educational background, the student has undisputedly always attended non-public schools.  Reportedly, the student was first classified as a student with a disability in 2003, after having been referred to respondent by petitioner in 1998 and 2002 and found ineligible for classification (Ex. B to Petition at p. 1).  The student attended York pursuant to petitioner's unilateral placement beginning in the 2002-03 school year (first year of high school) and continuing through present (2005-06 – last year of high school) (Ex. B to Petition, at pp. 1-2).  Since 2002, petitioner has requested a due process hearing or otherwise disputed respondent's recommendations for her daughter each school year, resulting in stipulations by which respondent agreed to reimburse petitioner for York tuition for the 2002-03, 2003-04 and 2004-05 school years (id.).

           A Committee on Special Education (CSE) meeting on May 2, 2005 resulted in an individualized education program (IEP) for petitioner's daughter for the 2005-06 school year, the subject of the present appeal (id.).  Petitioner disagreed with the CSE's recommendation of an inclusion class within respondent's public schools (IHO Ex. 1, annexed as exhibit to Petition; Ex. 6 to Answer, at pp. 1, 5).  Petitioner requested an impartial hearing on September 23, 2005 (IHO Ex. 1, annexed as unlabeled exhibit to Petition).

            At the time of the pre-hearing conference in December 2005, the student was 16 years old and attending twelfth grade at York, where she had been unilaterally placed by petitioner as detailed above.  York is a non-public school and has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (8 NYCRR 200.7).  The student's eligibility for special education as a student with a learning disability (LD) is not in dispute (Ex. 6 to Answer, at p. 1; see 8 NYCRR 200.1[zz][6]).

            On December 16, 2005, the impartial hearing officer conducted a pre-hearing conference in this matter (Tr. pp. 1-30).  At the conference, respondent indicated its intent to move to dismiss petitioner's claim, prior to an impartial hearing, based upon the fact that the student had always attended non-public school (Tr. p. 8).  The impartial hearing officer requested submissions on this issue and both parties submitted briefs (IHO Decision 1/10/06, p. 1, annexed to IHO Decision 1/24/06).

           On January 10, 2006, the impartial hearing officer issued an interim decision, requesting that prior settlement agreements between the parties be submitted within 10 days (id.).  Respondent sent this additional information to the impartial hearing officer (IHO Decision 1/24/06, p. 1).

           On January 24, 2006, the impartial hearing officer granted respondent's motion to dismiss, which also noted that the January 10, 2006 decision "shall be deemed attached hereto and made part hereof as if fully set forth herein" (id.).  The impartial hearing officer based his decision to grant respondent's motion to dismiss on an interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) and concluded that, since the student "has never attended a public school and never received related services of any kind," petitioner was therefore precluded from seeking tuition reimbursement (IHO Decision 1/10/06, annexed to IHO Decision 1/24/06).   The decision also noted that "[t]his matter shall be deemed concluded until and unless reversed by a party or parties of competent jurisdiction; in which instance, the parties shall parties shall appear before the undersigned for determination" (IHO Decision 1/24/06, p. 1).

         On appeal, petitioner disputes both the January 24, 2006 impartial hearing officer decision regarding the motion to dismiss and the January 31, 2006 decision regarding pendency.  Petitioner requests that the impartial hearing officer's decisions be annulled.  Petitioner also requests that an order be issued holding that petitioner is not barred from seeking tuition reimbursement and that York is the student's pendency placement for the 2005-06 school year, or in the alternative, that the matter be sent for a new impartial hearing before a new impartial hearing officer.  Respondent asserts that the impartial hearing officer's decisions should be upheld and petitioner's appeal dismissed.

        First, regarding the January 24, 2006 decision, petitioner asserts that the impartial hearing officer erred by concluding that tuition reimbursement was precluded because the student had never attended public school.  I concur.  The impartial hearing officer, relying on two decisions from the United States District Court for the Southern District of New York (Carmel Central Sch. Dist. v. V.P., 373 F. Supp. 2d 402 [S.D.N.Y. 2005]; Bd. of Educ. v. Tom F., 2005 WL 22866 [S.D.N.Y. 2005]), held that 20 U.S.C.§ 1412(a)(10)(C)(ii) requires that tuition reimbursement be denied for any student, such as respondents' son, who has not previously received special education and related services under the authority of a public school agency.  This, however, is not a new argument.  The statutory provision in question provides that

Reimbursement for private school placement.  If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court of hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(20 U.S.C. § 1412[a][10][C][ii]).

         The official commentary to the federal regulations implementing this provision of the IDEA states that

[H]earing officers and courts retain their authority, recognized in Burlington and Florence County School District Four v. Carter, 510 U.S. 7 (1993) (Carter), to award "appropriate" relief if a public agency has failed to provide FAPE, including reimbursement and compensatory services, under section 615(i)(2)(B)(iii) in instances in which the child has not yet received special education and related services.  This authority is independent of their authority under section 612(a)(10)(C)(ii) to award reimbursement for private placements of children who previously were receiving special education and related services from a public agency.

(Placement of children by parent if FAPE is at issue, 34 C.F.R. § 300.403, 64 Fed. Reg. 12601 at 12602 [Mar. 12, 1999]; see also Letter to Luger, 33 IDELR 126 [OSEP 1999] ["We do not view § 612(a)(10)(C) as foreclosing categorically an award of reimbursement in a case in which a child has not yet been enrolled in special education and related services under the authority of the public agency.  Reimbursement is an equitable remedy that courts and hearing officers may order in appropriate circumstances."]).

         State Review Officers have consistently declined to construe section 1412 of the IDEA as limiting the authority of an impartial hearing officer or review officer under section 1415 of the IDEA to grant an award of tuition reimbursement to the parents of a child who has not previously received special education or related services under the authority of the public school district in which the child resides (Application of a Child with a Disability, Appeal No. 05-125; Application of the Dept. of Educ., Appeal No. 05-074; Application of the Bd. of Educ., Appeal No. 05-027; Application of the Bd. of Educ., Appeal No. 05-015; Application of a Child with a Disability, Appeal No. 02-052; Application of a Child with a Disability, Appeal No. 00-012; Application of  a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 99-35;  Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-41; Application of a Child with a Disability, Appeal No. 98-25).  I note that the New York district court cases that the impartial hearing officer relies on are both currently on appeal (see Carmel Cent. Sch. Dist. v. V.P., No. 05-4170-CV [2d Cir. Aug. 3, 2005]; Bd. of Educ. v. Tom F., No. 05-0566-CV [2d Cir. Feb. 3, 2005]), and not settled law at the time of this decision; therefore, I must respectfully decline to follow them, pending their final resolution (see generally Application of a Child with a Disability, Appeal No. 01-052; Application of a Child with a Disability, Appeal No. 01-049; Application of a Child with a Disability, Appeal No. 01-044). Absent a final decision from a controlling court to the contrary, I continue to adhere to the State Review Officers' well-settled position and decline to construe section 1412(a)(10)(C)(ii) of the IDEA as limiting the authority of an impartial hearing officer or review officer under section 1415 of the IDEA to grant an award of tuition reimbursement to the parent of a child who has not previously received special education or related services under the authority of the public school district in which the child resides.  I note that the Eleventh Circuit Court of Appeals recently concluded that "sole reliance on the fact that [the student] never attended public school is legally insufficient to deny reimbursement under § 1412(a)(10)(C)(ii)" (M.M. v. School Bd. of Miami County, Fla., 437 F.3d 1085, 1098 [11th Cir. 2006]).  Based upon the foregoing analysis, I find that the impartial hearing officer erred in granting respondent's motion to dismiss.

         Next, after the impartial hearing officer granted respondent's motion to dismiss, petitioner then made a request to the same impartial hearing officer for a hearing on pendency (Ex. C to Petition).  The impartial hearing officer did not convene a hearing for the pendency issue, but did request submissions from the parties and issued a decision dated January 31, 2006, from which petitioner appeals, that denied petitioner's request for York to be determined as the student's pendency placement.

         The impartial hearing officer's decision on pendency must be annulled because he lacked authority to retain jurisdiction of the case after issuing his prior decision dismissing the case.  Impartial hearing officers must be appointed by the board of education in accordance with a specific rotational selection process (N.Y. Educ. Law §4404[1]; 8 NYCRR 200.2[e], 200.5[j]).  An impartial hearing officer's jurisdiction is limited by statutory and regulatory law and there is no express or implied authority for an impartial hearing officer to reopen a hearing once the record has been closed or the case has been otherwise dismissed (20 U.S.C. §1415[f]; 34 C.F.R. 300.511; 8 NYCRR 200.5[j]).  There is no authority for an impartial hearing officer to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the impartial hearing officer's decision, or with respect to any future dispute between the parties (Application of the Bd. of Educ., Appeal No. 05-007; Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 03-105).  This is especially true where one party objects, as respondent did here (Ex. 4 annexed to Answer ("Since this matter has been adjudicated on the merits, and the matter disposed of, the District respectfully submits that no further orders or decisions from your honor regarding this matter are appropriate."); see e.g., Application of a Child with a Disability, Appeal No. 03-105; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 01-057; Application of the Bd. of Educ., Appeal No. 99-77; Application of a Child with a Disability, Appeal No. 96-45).  Accordingly, the impartial hearing officer's January 31, 2006 decision regarding pendency must be annulled.¹   I therefore do not reach the merits of the impartial hearing officer's decision regarding pendency, and it is unnecessary for me to consider the parties' arguments in that regard.

THE APPEAL IS SUSTAINED. 

IT IS ORDERED that the impartial hearing officer's decisions dated January 24, 2006 and January 31, 2006 are hereby annulled;

IT IS FURTHER ORDERED that respondent shall schedule a hearing before a new hearing officer to take evidence and make a determination with regard to the matters set forth in petitioner's hearing request dated December 16, 2005.