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Decision No. 12,955

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Brocton Central School District regarding tuition and transportation reimbursement.

Decision No. 12,955

July 7, 1993

Melinda R. Saran, Esq., State University of New York at Buffalo School of Law, Legal Assistance Program, attorney for petitioners

Brandt, Laughlin, Schaack, Shipple & Clark, P.C., attorneys for respondent, Peter D. Clark, Esq., of counsel

SOBOL, Commissioner.--Petitioners seek reimbursement from the Board of Education of the Brocton Central School District ("respondent") for transportation and tuition expenses they incurred for their son's placement in a public school outside respondent district. The appeal is sustained in part.

In September 1986, petitioners' son attended kindergarten in respondent district. He repeated the first grade in 1988-89 and then advanced over the next two years to second and third grade. In 1989, petitioners' son attended a Chapter I reading program. In October 1990, the student's reading specialist referred him to the school psychologist for testing, indicating that the student required "a more individualized program". The teacher also described the student on the referral form under the heading "suspected handicaps" as one with "strictly literal comprehension. [and... an] [i]nability to discriminate among/between various sounds (auditory perceptual deficit)." The teacher further described the student as "listless [and] lacking in physical stamina." Apparently, at about the same time as the referral, the student's behavior began to deteriorate and the evaluation was never conducted.

As a result of increasingly uncontrollable behavior, the student was suspended from school in December 1990. His parents then obtained a psychiatric and psychological evaluation that indicated in-patient psychiatric hospitalization. Thereafter, petitioners obtained a second psychological evaluation paid for by respondent. On January 14, 1991, petitioners formally withdrew their son from respondent district. They placed him in the Fredonia Central School District in February 1991 at their own expense. For the 1991-92 school year, petitioners enrolled their son in another public school district, the Westfield Academy and Central School District ("Westfield"), again at their own expense. Petitioners also provided for their son's transportation.

In September 1991, a teacher from Westfield suspected that petitioners' son was disabled and referred him to respondent's CSE. Respondent's CSE convened on October 29, 1991, classified the student learning disabled, and recommended resource room services five times per week and weekly counseling. Respondent agreed to place the student in the Westfield School District where he had previously been attending at his parents' expense. Respondent district arranged for his transportation there as well.

On March 24, 1992, petitioners requested $215.28 in reimbursement for the 29 days beginning September 1991 when they provided transportation at their own expense. By letter dated May 5, 1992, respondent denied their request. Two subsequent requests were denied as well. On October 23, 1992 and again on December 22, 1992, petitioners requested an impartial hearing to challenge respondent's denial. No impartial hearing was held and this appeal ensued.

Petitioners assert that based upon the information available to respondent before petitioners removed their son from the district, respondent had a duty to refer him to its committee on special education (CSE) for evaluation, as a student suspected of having a disability. Petitioners seek an order declaring that their rights were violated and seek reimbursement for all of the transportation and tuition expenses they incurred as a result of respondent's failure to notify petitioners of their right to refer their son to the CSE or to initiate a referral itself. In addition, they claim entitlement to reimbursement for conditioning their son's return to school after his suspension on their obtaining a psychological examination. Petitioners also seek a modification of respondent's policy regarding CSE referrals.

Respondent asserts that before petitioners withdrew their son from school, there was no reasonable basis to suspect the student had a disability suggesting referral to its CSE. In any case, respondent claims that it had an obligation to address the student's academic problems before any referral was made. Accordingly, respondent denies any responsibility for the expenses petitioners incurred for their son's unilateral placement. Furthermore, respondent denies petitioners' claim that they were unaware of their right to refer their son directly to the CSE, asserting that petitioners knew the procedures since their two older children had been classified by the CSE as students with disabilities. Respondent also denies that the student's return to school after his suspension was conditioned upon petitioners obtaining a psychological evaluation. Finally, respondent claims that the petition must be dismissed for failure to state a cause of action or alleging facts that support their claim for reimbursement.

I agree with petitioners' assertion that respondent had an obligation to refer their son directly to the CSE in October 1990. School administrators have a duty to refer a child directly to the committee on special education when there is a reasonable basis to suspect that the child may have a disability (8 NYCRR 200.4[a]; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 424; see, 1987-88 EHLR 509:212). Given this student's failure to be promoted from first grade, the reading specialist's assessment that he needed further evaluation as a student with "suspected handicaps," together with the school district's subsequent referral of the student for a psychological evaluation, it is fair to conclude that district personnel were aware of the possibility that the student was disabled. Nonetheless, instead of referring petitioners' son to the CSE, they referred him to a psychologist. Since the reading specialist specifically indicated that the child had a "suspected handicap," the psychological evaluation should have been part of the CSE evaluation, as opposed to a pre-screening device. Furthermore, respondent's defense that petitioners thwarted its efforts to refer their son to the CSE by removing him from school is without merit. The unilateral placement of a resident student by his parents does not relieve a district of its obligation to convene a meeting of its CSE and evaluate a student who may be disabled under Education Law Article 89 and the Individuals with Disabilities Education Act (IDEA; 20 U.S.C. 1400 etseq.; Application of a Child with a Handicapping Condition, supra.

A parent has the right to an impartial hearing to challenge any matter relating to the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education (FAPE) (see, 34 CFR 300.504(a)(1)). Therefore, as in any case involving a school district's alleged failure to provide a FAPE, the procedural safeguards must be afforded to resolve such disputes. Petitioners are challenging respondent's failure to refer their son directly to the CSE, and its failure to notify them of their right to refer their son directly to the CSE. They also seek reimbursement for the tuition and transportation costs they claim they incurred as a result of respondent's failure to refer their son to the CSE. Since these matters allege violations of their son's right to FAPE, petitioners were entitled to an impartial hearing.

Education Law '4402(4)(a) requires a district to provide suitable transportation to and from special classes or programs. On October 29, 1991, respondent's CSE identified this student as learning disabled and placed him at Westfield where he had been attending at his parents' expense for the first 29 days of school. Since respondent would have been required to transport petitioners' son to Westfield, had its CSE evaluated and placed petitioners' son earlier in the school year, I conclude that, as a matter of equity, reimbursement for petitioners' cost of transporting him there from September 1991 is a proper remedy. Petitioners' request for reimbursement for the previous year's transportation and tuition costs due to respondent's failure to refer the child to the CSE or notify them of their rights is a claim for monetary damages. Since the record indicates that petitioners did not place their child in a special education program, neither the U.S. Supreme Court decision in Burlington School Committee, et al. v. Dept of Education 471 US 359, nor its progeny, is applicable. The Commissioner's decision in Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 424, is similarly inapplicable since the reimbursement for transportation in that case was based on whether the parents' placement was "similar" to the one recommended for the child by the CSE as provided for in Education Law '4402(4)(d). Since the record here indicates that petitioners placed their child in another public school, without special education, neither Education Law '4402(4)(d) nor Burlington, et al. v. DOE afford petitioners a basis for granting the relief they are seeking. Moreover, neither the Commissioner, an impartial hearing officer, nor the State Review Officer has the authority to award monetary damages, as opposed to reimbursement under Burlington or Education Law '4402(4)(d). Therefore, in the absence of any settlement, petitioners will have to pursue their claim for damages in a court of competent jurisdiction.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent reimburse petitioners the $215.28 they expended to provide their son with 29 days of transportation to attend Westfield from September 1991 until respondent assumed responsibility.

IT IS FURTHER ORDERED that respondent revise its policy for referrals to the CSE to the extent it provides for a pre-screening or exhaustion of other remedies to address academic problems when there is reason to suspect that a student has a disability.

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