Decision No. 12,838

(November 24, 1992)

SOBOL, Commissioner.--Petitioners, parents of a child with a handicapping condition, appeal from respondent's denial of their request for an impartial hearing seeking reimbursement for the cost of residential placement provided by the Ulster County Department of Social Services pursuant to an order of the Family Court. The appeal is dismissed.

Petitioners' daughter, who is now thirteen years old, was classified emotionally disturbed by the committee on special education (CSE) for the Wallkill Central School District (respondent). According to petitioners, the child was diagnosed with Prader-Willi Syndrome. Placed by respondent's CSE in a self-contained classroom in the middle school, the student passed all academic subjects for the 1990-91 school year.

The following year, she began having difficulties both at home and in school, and attendance became a major problem. Unknown to the district, sometime in November 1991, petitioners filed a petition under Article 7 of the Family Court Act asking the court to declare their daughter a Person in Need of Supervision (PINS). In late December 1991, petitioners sought to meet with respondent's CSE to request a residential placement for their daughter. At that meeting, held on January 8, 1992, the CSE concluded that the student's educational placement was appropriate and that, to the extent she was experiencing academic difficulties, the problem was due primarily to her poor attendance. After learning that petitioners had filed a PINS petition, the CSE agreed to support petitioners' efforts to obtain relief from the court to improve their daughter's school attendance.

Apparently, the Family Court adjudicated petitioners' daughter a PINS on March 5, 1992, based on its findings that she was disobedient, physically violent and verbally abusive to her mother, had missed school, threatened suicide, and run away from home. The court ordered petitioners' child removed from the home and placed in the custody of the Department of Social Services (DSS) with directions that the agency place the child at the Devereux School.

On March 31, 1992, the student withdrew from respondent's school. On April 22, 1992, petitioners' attorney advised respondent, in writing, that:

To date, respondent has refused to schedule a hearing, asserting that it is not responsible for the cost of a placement made by the Department of Social Services. In response to petitioners' request for a hearing, respondent's attorney informed them, in writing, that they could not seek reimbursement for the child's placement not only because they were no longer the child's legal guardian, but also DSS had legal custody of the child and full financial responsibility for her placement. Respondent's attorney also advised petitioners that, to the extent they disagreed with the court's custody determination or their daughter's placement, the matter would have to be addressed in Family Court.

On June 18, 1992, petitioners' attorney received a letter from Frank Michael Spada, attorney for the Ulster County Department of Social Services, advising her that DSS

According to petitioners, DSS is asking them to reimburse the agency for their daughter's placement at the cost of $129/day, for a total of $47,085 per year.

This case turns on the nature of the student's placement. The Education Law and Family Court Act establish two separate and distinct procedures for placing children in residential programs. Under Article 89 of the Education Law, where a school district's committee on special education determines that "... there are no appropriate nonresidential schools available consistent with the needs of a child" the child may be placed by a board of education in an approved residential program (Educ. Law '4402(2)(b)(2)). For educational placements provided by a local board of education pursuant to a recommendation by its CSE, the board is financially responsible for the student's tuition costs while the Department of Social Services is responsible for maintenance costs (Educ. Law '4405(1)(a)). Pursuant to Article 7 of the Family Court Act, the Family Court may adjudicate a child less than sixteen years of age "who is a truant, incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority..." a person in need of supervision (Family Court Act '712).

Among the dispositional alternatives available, the court may place a child adjudicated a PINS with the Commissioner of Social Services and direct the Commissioner to place the child with an authorized agency. This may include placement in a child care institution (Family Court Act '756), in which case the cost of the child's educational program must be borne by the local department of social services financially responsible for such child. (Emphasis added, Educ. Law '4004(2)(a)). In addition, the statute provides that "[t]he school district in which the child resided at the time a social services district... assumed responsibility for the support and maintenance of the child, ... shall reimburse the state towards the state's expenditure on behalf of such child for each child determined to be handicapped by the committee on special education of the school district of residence..." in the amount of its basic contribution.

Petitioners correctly argue that under the Individuals with Disabilities Education Act, 20 USC 1400 et seq (IDEA), a child with a handicapping condition who is placed by a public agency other than a local school district does not relinquish the right to a free appropriate education (FAPE)(34 CFR '300.401). In addition, federal regulations clarify that the IDEA "...may not be construed to limit the responsibility of agencies other than educational agencies for providing or paying some or all of the costs of a free appropriate public education to handicapped children in the state (34 CFR 300.600(c)). As noted above, in New York, to ensure that the right to FAPE is secured for children placed by the Commissioner of Social Services in child care institutions, Article 81 of the Education Law provides a comprehensive funding scheme that covers the cost of education while in placement (Education Law '4004). Although DSS is authorized to petition the parents of children placed in its custody for the support of their children (Family Court Act '234), to charge the parents for the cost of the child's education is not only contrary to State law, it violates IDEA's mandate as well. Accordingly, if DSS made the placement in a child care institution primarily for educational reasons, as opposed to reasons related to her status as a PINS, it has no basis to pursue support from petitioners. If, on the other hand, the court's placement of the child was based primarily on its finding of incorrigibility, ungovernability, etc., the parents may be required, under the Family Court Act, to contribute toward the maintenance costs, but not the educational costs of their daughter's placement.

On the facts of this case, it appears that the court placed petitioners' daughter at Devereux for non-educational reasons. In the first instance, the court lacks jurisdiction to make educational placements, which remains exclusively with the local school district (Education Law Article 89). In fact, the Legislature places strict limitations on the court's jurisdiction to order a school district to provide specific special services or programs to cases "... where it appears to the court or judge that adequate administrative procedures are not available" (See Family Court Act '255). While the Family Court Act provides additional safeguards in cases where a school district fails to meet its statutory obligations under '255 of the Family Court Act, notably the court never invoked '255 in this case, but instead adjudicated and placed petitioners' daughter as a PINS under Article 7 of the Family Court Act.

In addition, petitioners never sought respondent's CSE review of their child's placement until a month after they filed the PINS petition. Moreover, when respondent's CSE concluded that their daughter could continue to receive FAPE in a day school program, petitioners did not request an impartial hearing to challenge its recommendation. Instead, they actively pursued their petition before the Family Court to have their child adjudicated and placed as a PINS. It was then almost four months after the CSE's recommendation, and more than a month after their daughter's placement as a PINS, that petitioners first requested that respondent hold a hearing, not to challenge directly the CSE's recommendation, but to obtain reimbursement for a DSS placement.

As indicated earlier, DSS' responsibility for the educational costs of a child placed in a child care institution by DSS is unequivocal (Education Law '4004). To the extent petitioners seek reimbursement for their own costs, they present no evidence that they actually incurred them. In any case, if they are improperly charged by DSS for any portion of the cost of their daughter's education, the proper forum for raising their objections lies with the court. Even then, there is no basis under State law to make local school districts responsible, directly or indirectly, for the cost of a social service placement. Accordingly, petitioners have no grounds to invoke due process under the Education Law to relieve DSS of its statutory duty to pay for court ordered placements. Since New York law provides for a local social services department, and not the local school district, to pay for such placements, respondent was under no obligation to hold a hearing where the request was made solely to obtain reimbursement for the cost of a DSS placement. In addition, petitioners' request for reimbursement is premature because there is no evidence that petitioners, as opposed to DSS, have actually assumed any portion of the cost for their daughter's education while in her court ordered placement.

In Burlington v. Mass. Dept of Education, supra, the United States Supreme Court held that the unilateral placement of a child by the parent does not constitute a waiver of the availability of reimbursement. Petitioners' reliance on the Burlington case is misplaced because placement by the Family Court is not the same as a unilateral placement by the parent. However, even though respondent is not required to hold a hearing in response to petitioners' request for reimbursement to pay for a court ordered placement, respondent may not deprive petitioners of the right to enlist the CSE, even now, to obtain a FAPE for their daughter from the local school district. Certainly, petitioners, in pursuing a placement through the courts, have not relinquished their right to secure from respondent an appropriate educational placement for their daughter, request an impartial hearing to challenge the CSE's recommendation, if necessary, or seek rescission of the court's order that prompted their daughter's placement as a PINS in a child care institution.

Although petitioners also have the unequivocal right to challenge the CSE's recommendation at an impartial hearing, they do not have the right to request an impartial hearing to secure reimbursement for the cost of a court ordered placement, in circumvention of the statutory scheme. Instead of pursuing what they assert to be an appropriate educational placement through the process prescribed under the IDEA and Article 89 of the Education Law, petitioners used the courts to secure an educational placement for their daughter and then, working with DSS, requested an impartial hearing to have the local school district pay for it. Such a maneuver not only subverts the entire CSE process, it undermines the integrity of the courts.

THE APPEAL IS DISMISSED.

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