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Decision No. 13,094

Reopening of an Application of a CHILD WITH A HANDICAPPING CONDITION, by her parents, from action of the Board of Education of the Wallkill Central School District, regarding an impartial hearing.

Decision No. 13,094

(January 11, 1994)

Mid-Hudson Legal Services, Inc. attorneys for petitioners, RosaLee Charpentier, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Lawrence Thomas, Esq., of counsel

SOBOL, Commissioner.--At issue in this case is whether petitioners were entitled to an impartial hearing to challenge the recommendation of respondent's committee on special education ("CSE"), despite the fact that it followed their daughter's adjudication as a Person in Need of Supervision ("PINS") by the Family Court and placement in the Devereux School ("Devereux") by the Department of Social Services ("DSS"). For the reasons set forth herein, I find that they are.

In the prior proceeding, Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 306, I dismissed the petition based on the fact that an impartial hearing cannot be used to relieve DSS of its statutory obligation to pay for a court ordered placement. To the extent petitioners sought reimbursement for expenses they incurred as a result of the DSS placement, I dismissed the petition as premature, finding neither evidence of a pending petition for support nor a court order directing them to reimburse the county for any portion of the cost of their daughter's education.

In denying petitioners the right to an impartial hearing to impose upon the school district the cost of a DSS placement, I stressed that despite the child's placement by DSS, petitioners were, nonetheless, entitled to a hearing under the Individuals with Disabilities Education Act (IDEA) to challenge respondent's last recommendation prior to securing their daughter's placement through the Family Court. Thus, assuming that the Family Court would rescind or terminate its placement order, petitioners should not have been precluded from having their daughter placed by respondent in the educational program directed by a hearing officer. Nor should my prior decision be read to preclude petitioners from seeking reimbursement for any portion of the cost of DSS' placement in the event they are actually ordered by the Family Court to pay (see, Burlington v. Department of Education, 471 U.S. 359), if they can establish at a hearing that respondent's last recommended placement in January 1992 was inappropriate, and that the DSS placement at Devereux was appropriate.

Pursuant to 8 NYCRR 276.8(c), the Commissioner may, on his own motion, reopen a prior decision where, in his judgment, the interests of justice will be served. Respondent contends that this matter should not be reopened because it is moot, and because a reopening at this time would be arbitrary and prejudicial.

Based on my review of the correspondence between the parties subsequent to my last decision, however, it is clear that both parties have misconstrued its meaning. Relying on my decision, petitioners renewed their request for an impartial hearing to challenge the CSE's recommendation, while they indicated that they had no intent to circumvent the statutory scheme pursuant to Education Law '4004(2)(a) that required DSS (and not the local school district) to absorb the cost of tuition for children placed in its care. Relying on the Commissioner's decision as well, respondent refused to schedule the hearing, offering instead to review the child's IEP to recommend a new placement. Thus, despite petitioners' representation that it had no intent to use the impartial hearing process to force respondent to pay for the DSS placement, respondent continued to deny petitioners' request for a hearing.

Given this confusion, I find it necessary to clarify that, notwithstanding my decision to dismiss the petition or the fact that petitioners' daughter has been adjudicated a PINS and placed in the custody of DSS, petitioners remain entitled to an impartial hearing to determine whether respondent's last placement recommendation was appropriate, and if not, whether Devereux was appropriate. Consistent with my original decision, however, I must reiterate that an impartial hearing is not a proper forum to impose upon a local school district the cost of educating a child placed by the Family Court.

Although the recommendation petitioners seek to challenge is now almost two years old, petitioners cannot be penalized for the delay. Since my earlier decision should not have been read to deny them the right to an impartial hearing to challenge, even now, the last IEP recommended by respondent's CSE prior to the child's placement by DSS, I find it appropriate under the circumstances to reopen my decision and sustain the petition.

ACCORDINGLY, IT IS ORDERED that my prior decision in Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 306, is reopened and the petition is sustained to the extent indicated.

IT IS ORDERED that respondent schedule an impartial hearing within 10 days of its receipt of this decision to enable petitioners to challenge the appropriateness of its last recommended placement prior to the child's placement by DSS at Devereux.