06-032

             Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at Windward School (Windward) for the 2005-06 school year.  The appeal must be sustained.

               In the present case, an impartial hearing was never held on the merits of petitioners' tuition reimbursement claim.  After a pre-hearing conference and a subsequent motion to dismiss by respondent, the impartial hearing officer dismissed petitioners' claim for tuition reimbursement by decision dated February 25, 2006.  As set forth herein, I find that the impartial hearing officer erred in granting respondent's motion to dismiss petitioners' tuition reimbursement claim.

               Petitioners' son was eight years old and in the third grade at Windward at the time of the January 31, 2006 impartial hearing date (see Tr. p. 2).  Windward has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.1[d], 200.7]). Respondent asserts that petitioners' son has never received special education and related services under the authority of a public agency.  Petitioners do not contend otherwise (see Tr. pp. 4-5, 42). By letter dated November 30, 2004, petitioners advised respondent's director of special education that they were considering placement for "next year," that their son might qualify for special education services and that they wanted him evaluated for reading, writing, and speech-language (see Resp't Mem. of Law to Impartial Hearing Officer [IHO] Ex. 2).  By letter dated January 28, 2005, petitioners withdrew that request (see Resp't Mem. of Law to IHO Ex. 3). By letter dated April 1, 2005, the child's mother advised respondent's Committee on Special Education (CSE) that she believed that the child was in need of special education services and requested a CSE evaluation (Resp't Mem. of Law to IHO Ex. 5).  On April 25, 2005, petitioners signed a consent to evaluate form (see Resp't Mem. of Law to IHO Ex. 4).  Respondent's CSE met on July 14, 2005 (Resp't Mem. of Law to IHO Ex. 6 at pp. 1, 4).  The CSE recommended an inclusion program for the child (see Parent Aff. dated Jan. 26, 2006; CSE Chairperson Aff. in Supp. of Mot. ¶¶ 5, 6, 8; Resp't Mem. of Law to IHO Ex. 6 at pp. 1, 4). 

               According to the child's individualized education program (IEP) for the 2005-06 school year, the child has "a significant delay in language skills, reading comprehension, math calculation, which adversely affects educational performance" (see Resp't Mem. of Law to IHO Ex. 6 at p. 2).  The CSE did not recommend a specific school for the child and this is not disputed (Resp't Mem. of Law to IHO Ex. 6 at pp. 1, 4; Pet'r Pre-Hr'g Br. at pp. 3, 8, 9; see also Tr. pp. 14, 22-23, 27, 28-29, 31).  The child's eligibility for special education programs and services as a student with a learning disability (see 8 NYCRR 200.1[zz][6]) is not in dispute in this appeal.

               By letter dated August 18, 2005, petitioners' attorney requested an impartial hearing asserting that the July 14, 2005 IEP was procedurally and substantively flawed (Resp't Mem. to IHO Ex. 9). The impartial hearing request stated, inter alia, that the CSE failed "to conduct a duly constituted CSE review," that it had failed "to include the current school of the child," that it had failed "to conduct the on-cite (sic) observation mandated by the [Individuals with Disabilities Education Act (IDEA)] regulations," that it failed "to follow the recommendations of the independent evaluators," and that it failed to offer petitioners' son any placement for the 2005-06 school year.  The request noted that their son required a "full time, small, language based, special education setting with individualized learning environment in order to benefit from instruction."  The request also stated that because they were "unable to receive an appropriate program/placement from [respondent] the parents unilaterally enrolled their son in the Windward School" and that he would begin attending that school in September 2005.

              The impartial hearing officer was appointed on August 26, 2005  (IHO Decision, p. 2).  A first hearing date was scheduled for November 18, 2005, but was adjourned upon consent of the parties (id.).  The matter was rescheduled to January 10, 2006 (id.).  At that time a prehearing telephone conference was held and counsel for respondent "brought" a motion to dismiss on the basis that tuition reimbursement was precluded by 20 U.S.C. § 1412(a)(10)(C)(ii) (see IHO Decision, p. 2).

              Respondent's motion was heard on January 31, 2006.  Prior to the return date, both parties submitted affidavits and moving papers to the impartial hearing officer. The impartial hearing officer did not take any sworn testimony and no exhibits were introduced into evidence.

            The impartial hearing officer rendered a decision on February 25, 2006.  She dismissed petitioners' request for an impartial hearing based on her interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii).  The impartial hearing officer concluded that "based on the facts, the parents never received services from a public agency and never contemplated doing so" and that "tuition reimbursement is not available to the parent as a matter of law" (IHO Decision, p. 7).

              This appeal ensued. Petitioners argue on appeal, inter alia, that they "were deprived of their right to a fair, impartial due process hearing," that "the IHO erred in not proceeding with the full impartial hearing," and that the impartial hearing officer erred regarding the interpretation to be given 20 U.S.C. § 1412(a)(10)(C)(ii).  Petitioners also assert that the impartial hearing officer reached a decision on a matter concerning disputed facts without hearing sworn testimony and erred in her conclusion regarding petitioners' lack of consideration of a public school placement.  They also argue that respondent failed in its child find obligations.

              Respondent asserts that petitioners' son has never received special education and related services under the authority of a public agency.  Based on the statutory language set forth in 20 U.S.C. § 1412(a)(10)(C)(ii) respondent contends that there is no statutory authority for petitioners' son to receive tuition reimbursement arising from the parents' unilateral placement because the child has never accepted or received special education services from any public agency and because the parents had no intention of ever enrolling their child in its public schools.

             Petitioners assert that the impartial hearing officer erred by concluding that 20 U.S.C. § 1412(a)(10)(C)(ii) precluded tuition reimbursement.  I concur with petitioners' assertion. The impartial hearing officer, relying in part 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 petitioners' 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 as follows:

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 [FAPE]¹available 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 IDEA² 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 a public agency, absent convincing evidence to the contrary of Congressional intent to do so (see Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-125; Application of the Dep't. of Educ., Appeal No. 05-074; 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). As noted above, the two Southern District of New York cases relied on by respondent and/or the impartial hearing officer to the contrary are currently on appeal (see Carmel Cent. Sch. Dist. v V.P., No. 05-4170 CV [2d Cir. August 3, 2005]; Bd. of Educ. v. Tom F., No. 05-0566 CV [2d Cir. Feb. 3, 2005]) and are 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).  Given the absence of 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]).

               In view of my decision, it is not necessary that I consider petitioners' remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, 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 August 18, 2005.