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May 29, 1986

MANUEL R. and MARIA ROSA R. as parents of CARLOS R., a handicapped child, Plaintiffs,
GORDON M. AMBACH, Commissioner of Education for the State of New York, and THE BOARD OF EDUCATION of the City of New York, Defendants.

The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge

Plaintiffs, parents of a handicapped child, Carlos, brought this action against defendant Ambach, the New York State Commissioner of Education (the Commissioner) and the New York City Board of Education (the Board) to vacate the Commissioner's decision determining that the proposed placement of Carlos for the year 1983-1984 in a public school was appropriate and denying reimbursement of tuition for that year paid to a private school.

The case is submitted on the record before the Commissioner and under the pertinent provisions of the Education of all Handicapped Children Act (the Act), 20 U.S.C. §§ 1401, 1415 (1982).

 Many of the critical facts are undisputed. Carlos, born in 1970, attended public schools through the fourth grade 1979-1980 school year. Before that year his parents had requested the local Committee on the Handicapped (the Committee) to evaluate him. The evaluation showed him to be learning disabled. Thus during the 1979-1980 year he attended the "mainstream" public school and received resource room assistance and language therapy.

 For the 1980-1981 year the Committee recommended the same type of placement. His parents challenged this and unilaterally enrolled Carlos in the Chuchill School, a private school for the learning disabled. On October 29, 1980 a hearing officer upheld the Committee's recommendation and found the public school placement appropriate for Carlos's needs. The Commissioner dismissed the appeal as untimely.

 The Committee made the same kind of recommendation for the 1981-1982 year. The parents again challenged the recommendation, asked for an impartial hearing, and continued Carlos's enrollment in the Churchill School. The hearing officer on August 14, 1981 decided that the recommendation was inappropriate and awarded tuition reimbursement for the first half of the 1981-1982 year. The hearing officer further held that Carlos might continue at the Churchill School at public expense for the balance of the school year unless the Committee furnished by October 1, 1981 a new recommendation based on a proper re-evaluation and classification. Thereafter the parents and the Board stipulated that the Board would pay the Churchill School tuition for the 1981-1982 school year and that the Committee would re-evaluate Carlos and, no later than May 1, 1982, make a recommendation for an appropriate placement for the year 1982-1983.

 Pursuant to the stipulatio the Committee then conducted a re-evaluation and recommended on April 29, 1982 a mainstream program in public school with resource room assistance and counseling. The parents challenged the recommendation, sought an impartial hearing, and continued Carlos at the Churchill School. The hearing officer approved the recommendation and denied tuition reimbursement.

 The parents appealed to the Commissioner. In a decision dated December 5, 1983 he denied tuition reimbursement for 1982-1983 on the ground that, absent special circumstances, the parents were not entitled to recover tuition during the pendency of the review of the recommended placement. The Commissioner also said that although he denied reimbursement, "I do find that the placement recommended by the COH [Committee] for the 1982-83 school year would have been appropriate only if augmented by a regular program of language therapy." In this court plaintiffs do no attack the denial of reimbursement for that year.

 In the meantime in August 1983, some four months prior to this decision of the Commissioner, the Committee recommended for the 1983-1984 year a public school placement similar to that made the previous year. The parents did not request an impartial hearing to contest this recommendation until October 5, 1983, after the school year had begun. They continued to enroll Carlos in the Churchill School.

 In December 1983, after the Commissioner handed down his decision dated December 5, 1983, the Committee amended its 1983-1984 recommendation to include speech and language therapy.

 The impartial hearing on the recommendation for the 1983-1984 year was held on five dates between March 14, 1984 and June 18, 1984. Briefs were submitted in August 1984.

 The impartial hearing officer recited in her decision that it was the Committee's "latest recommendation which is the subject of this hearing and decision," namely, the recommendation as amended in December 1983 to include speech and language therapy. The impartial hearing officer found the Committee's recommendations "inappropriate" to meet the child's needs and required reimbursement of the Churchill School tuition for 1983-1984, but did not address the question of whether the recommendation was "untimely."

 The Board appealed to the Commissioner, who sustained the appeal. The Commissioner said that the Board had adequately demonstrated the appropriateness of the proposed placement and that the record showed no significant reason why he should reach a result different from that reached in his previous decision, namely, that Carlos's needs could be met in a resource room. The Commissioner noted that there was no indication that Carlos had regressed with the passage of time or that the previous testing was no longer sufficient to enable the Committee to recommend an appropriate placement.

 The hearing officer deemed the critical issue to be the degree of Carlos's impairment. The Committee took the position that he had "a mild learning disability relative to his superior non-verbal intellectual potential" and therefore recommended a mainstream classroom with resource room remediation and on-site counseling, and additional support in the form of speech and language therapy. The parents and their witnesses viewed Carlos as "severly learning disabled" with "severe language deficits." The evidence showed uncontroverted indications that he had a ...

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