The State Education Department
State Review Officer

No. 01-012

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE WILLIAMSVILLE CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Harris Beach, LLP, attorneys for petitioner, Alfred L. Streppa, Esq., of counsel

Bouvier, OíConnor, LLP, attorneys for respondents, Arthur H. Ackerhalt, Esq., and Jay C. Pletcher, Esq. of counsel

DECISION

        Petitioner, the Board of Education of the Williamsville Central School District, appeals from an impartial hearing officerís decision which ordered it to reimburse respondents for the cost of their sonís tuition at the Oakley School, a private college preparatory boarding school located in Utah, for the 2000-01 school year. Respondents cross-appeal from the hearing officerís denial of their request for reimbursement of travel and lodging expenses. The appeal must be dismissed. The cross-appeal must be sustained.

        Preliminarily, I will address a procedural issue raised in the appeal. Respondents claim that petitionerís reply to their answer exceeds the permissible scope of a reply, and ask me to disallow it to the extent that it does so. The Regulations of the Commissioner of Education limit the scope of a reply to "any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer" (8 NYCRR ß279.6). I will accept the reply, but will not consider any additional arguments not related to procedural defenses or to claims that were not raised before the hearing officer

        Respondentsí son was nearly 17 years old and in the 11th grade at the Oakley School when the hearing began on November 6, 2000. Oakley has not been approved by the New York State Education Department to provide education to children with disabilities. The student was classified as learning disabled while in second grade, but declassified at the end of sixth grade. Near the end of ninth grade, he was reclassified as emotionally disturbed. His current classification as emotionally disturbed is not in dispute.

        When the student was in first grade in private school, an independent psychological evaluation indicated that he had negative attitudes toward school work, a dislike for writing, and weaknesses in the early reading process (Exhibit SD-133). After extensive testing, the evaluator concluded that the student was highly impulsive, had poor concentration, and could be designated as having a learning disability. A neuropsychological evaluation in that same year revealed that the student had a language-based learning disability and an Attention Deficit Hyperactivity Disorder (ADHD) (Exhibit SD-132). The neuropsychologist further reported the student had phases of obstinate behavior, bossiness with peers, and an undue concern about death.

        As the student was preparing to enter second grade in petitionerís schools, his parents requested that he be classified as learning disabled (Exhibits SD-127, 131). On October 11, 1991, the Committee on Special Education (CSE) recommended that respondentsí son be classified as learning disabled, and provided with resource room services (Exhibits SD-114, 120). On the studentís individualized education program (IEP), the CSE noted that he was being privately counseled by a social worker, and was taking Ritalin for his ADHD. In January 1992, the CSE amended the studentís IEP by adding the related service of occupational therapy (OT) (Exhibit SD-106). The student received consultant teacher services and OT while in third grade (Exhibit SD-103). On his IEP, the CSE noted that the child was distractible, had trouble interacting appropriately with peers, and experienced mood swings that affected his performance and behavior.

        In fourth and fifth grade, the student received resource room services and consultant teacher services (Exhibits SD-100, 96). OT was phased out, as he had made good progress (Exhibit SD-96). The studentís IEP for fifth grade indicated that he needed guidance for appropriate interactions with peers and adults, and that he required a behavioral management program. It also indicated that he was taking medication to treat ADHD and childhood depression (Exhibit SD-96).

        A school psychologist who performed the studentís triennial evaluation in January 1995 reported that the student was still receiving private counseling, but that his behavioral problems had escalated at home (Exhibit SD-94; Transcript pp. 636-37). The student frequently threw tantrums at home and was reported to have power struggles with some of his teachers. His cognitive functioning was in the high average range, with a verbal IQ score of 121 and a performance IQ score of 94 on the Weschler Intelligence Scale for Children-III. His middle school teachers described him as a bright young man with great potential. The psychologist noted that the student "had strong needs to be seen as a non-disabled individual," and had asked to be removed from the resource room.

        Accordingly, the studentís IEP for sixth grade provided that he would receive consultant teacher services, but no resource room (Exhibit SD-93). His report card for sixth grade indicated that he performed quite well in all academic subjects, scoring 87 percent in language arts and 87 percent in reading (Exhibit SD-85). All but one of his teachers reported that the student exhibited positive behavior in class. At this time, the student voluntarily reduced his use of the special education support services. Based on his academic progress and his voluntary reduction in support services, the CSE declassified the student on May 3, 1996 (Exhibit SD-86). He was offered declassification support services, including test modifications and visits to the resource room, if needed while in the seventh grade during the 1996-97 school year. His report card in seventh grade, during which he received no special education services, indicated that he did quite well in content area subjects, and that teachers praised him for good effort and behavior (Exhibit SD-84).

        In the fall of 1997, respondents decided to send their son to a private school, the Park School of Buffalo, for eighth grade (Exhibit SD-82; Transcript p. 645). At the hearing, the studentís father testified that his son had a very difficult time at the private school (Transcript p. 646). The student was extremely angry and moody at home, got into fights at school, and was disruptive in class (Transcript p. 647, 650). In June 1998, the studentís private clinicians suggested that respondents consider a residential treatment facility for the student (Transcript pp. 653-54). Instead, respondents had their son evaluated by psychologist in California, who opined that the student had a bipolar disorder. Their sonís new psychiatrist concurred with that opinion (Transcript pp. 656-58).

        Respondents initially requested that petitioner provide special education services to their son in the ninth grade during the 1998-99 school year (Exhibit SD-81), but they subsequently withdrew their request (Exhibit SD-156). The CSE and the parents agreed that the student would be closely monitored by the guidance counselor and school social worker upon his return to public school (Transcript pp. 661-62). The student had great difficulty in school and at home, exhibiting defiant and combative behavior, during the fall of 1998 (Transcript pp. 667-69). The studentís father testified that his son exhibited manic behavior at home, followed by depressive behavior such as emotional outbursts and locking himself in dark rooms (Transcript pp. 664-65).

        In early October 1998, the student experienced an episode described as similar to a breakdown, in which he reportedly cried for hours. Shortly thereafter, he "willfully stopped eating" (Transcript pp. 665-66). By January, he had lost twenty pounds, and was failing several subjects (Exhibit SD-163; Transcript p. 668-69). On January 29, 1999, the student was hospitalized at the BryLin Psychiatric Hospital (Exhibits SD-27, 77). Acting upon the advice by two of the hospitalís psychiatric social workers, the parents agreed to seek a long-term residential placement for their son (Transcript p. 677). They voluntarily placed him in foster care through the Erie County Department of Social Services, so the latter could effectuate placement under the auspices of the Family Court (Transcript p. 681). Respondentsí son was placed by Social Services in the Wyndham Lawn Residential Treatment Facility (Wyndham) on February 23, 1999 (Exhibit SD-157).

        When petitionerís CSE chairperson learned that the student had been placed at Wyndham, she sought advice from the State Education Department (SED) about the CSEís role in the process. She was informed that the CSEís responsibility pursuant to ß 4005 (1) of the Education Law was to recommend appropriate educational services for the student. On April 30, 1999, petitionerís CSE recommended that the student be classified as emotionally disturbed, and prepared an IEP indicating that resource room services and counseling would be provided, in the event he was discharged from Wyndham (Exhibits SD-73, 154; Transcript pp. 359-61).

        At Wyndhamís Campus School, the student received grades in the 80ís, but had trouble relating to his peers. A treatment summary from Wyndham indicates that the most pervasive feature of his personality was his capacity to create conflict (Exhibit P-8). The principal of the Campus School testified that the student behaved in an arrogant and condescending manner (Transcript p.197). Wyndamís CSE amended the studentís IEP on September 14, 1999, to provide that he would attend the Lockport High School for the 1999-2000 school year, while continuing to reside at Wyndham (Exhibit SD-72; Transcript p. 203).

        Respondentsí son began attending the Lockport High School in the fall of 1999. Although Wyndham had recommended the student spend one hour a day in Lockportís transition room, similar to a resource room, the student did not avail himself of that service (Exhibit SD-34). The student did well academically during his first five weeks at Lockport, with positive teacher comments on his report card (Exhibit SD-69). After the first marking period, the studentís performance declined gradually, so that by the third quarter, his academic average was only 76 (Transcript p. 204). Wyndhamís Campus School principal testified that the student repeatedly asked to be taken out of the Lockport High School (Transcript p. 211).

        The principal and the studentís father believed that the student was letting his grades slip in order to get back into the Campus School, because he did not want to do the work required in public school (Transcript pp. 205, 709). By March 2000, teachers at the Lockport High School reported that the student alternated between acting out and falling asleep in class (Exhibits SD-5, 6, 9). One teacher indicated that the student took pride in making strange comments and asking unusual questions (Exhibit SD-14, 16). The studentís English teacher reported that he was unprepared, had many incomplete assignments, and had on one occasion refused to turn in a paper because he did not "feel like it" (Exhibits SD-11,18). He told his transition room teacher that it was a waste of time to administer a test to him because "he already knew how smart he was" (Exhibit SD-26).

        Respondentsí son reportedly had strained relationships with other students because of his attitude of superiority (Exhibits SD-15 and 16). In May 1999, a teacher wrote that "[he] tends to think he runs the class and can get very nasty if he is not allowed to do as he pleasesÖhe seems to think he is right on everything and everyone else is wrong and ignorant" (Exhibits SD-21, 24).

        On March 10, 2000, respondentsí attorney asked the CSE to convene prior to spring break in order to develop a program for the student after his discharge from Wyndham (Transcript p. 88). Prior to the requested meeting, petitionerís CSE chairperson and its assistant superintendent for exceptional education and student services attended a meeting of Wyndhamís CSE, at which a report by Wyndhamís psychologist was reviewed. The psychologist opined that the student was capable of doing Regents level work, but did not perform to his potential due to "anxiety, fearfulness, and inability to relate to peers and teachers in appropriate ways" (Exhibit SD-34). He concluded that the student could be enrolled in a college preparatory program, but only in a small, highly structured residential setting where social-emotional skills were part of the curriculum.

        At its annual review on April 13, 2000, petitionerís CSE reviewed a report by the studentís psychiatrist, who indicated that the student had been diagnosed with ADHD, Atypical Bi-Polar Disorder, Eating Disorder not otherwise specified, Oppositional Defiant Disorder, and Social Emotional Learning Disability. He opined that it would not be appropriate for the student to return home, or to be enrolled in a traditional high school program. The psychiatrist urged petitionerís CSE to recommend placement in another psycho-educational facility like Wyndham (Exhibit SD-32). A social worker from Wyndham advised the CSE that the student had realized all of the benefits that Wyndham could provide, but that he continued to need specialized treatment services, and should be placed in a structured residential program (Exhibit SD-160). At the hearing in this proceeding, the CSE chairperson testified that everyone agreed the student should be placed in a residential setting with a therapeutic milieu containing the structure and supports to address his unique needs (Transcript p. 118). The CSE recommended that the student be placed in a highly specialized residential program on a twelve-month basis to address his unique learning, social and emotional needs (Exhibit SD-66).

        Immediately after the CSE meeting, the chairperson contacted SED regarding the need for a private residential school placement, and received approval for such a placement on April 21, 2000 (Transcript p. 125; Exhibit P-31). The CSE chairperson testified that she attempted to match the list of State-approved residential schools with the studentís particular needs, sending packets of information about the student to approximately 21 different residential schools located across the Northeast (Transcript p. 419). She also worked with the parents during the next month to revise the studentís IEP (Transcript p. 122).

        At a May 3, 2000 meeting with the CSE chairperson, the parents indicated they had hired a private educational consultant in February, 2000 to help find a placement for their son (Transcript pp. 744-45, 838). The private consultant had reportedly concluded by the end of April that the Oakley School might be the best school for the student (Transcript pp. 1433-34, 1436). On or about May 9, 2000, the student and his father went to Boston to meet with one of the owners of the Oakley School (Transcript p. 1434). In mid-May 2000, the educational consultant asked Wyndhamís school psychologist to administer certain tests to the student to obtain information for respondents to use in placing their son (Transcript p. 285).

        The IEP that was sent to the parents for final approval on May 22, 2000, did not identify a specific residential facility (Exhibit SDĖ66; Transcript pp.120-21). By letter dated May 25, 2000, respondents informed the CSE chairperson that they were considering placing their son at Oakley (Exhibit SD-147). They also advised the chairperson of an upcoming Family Court appearance on June 27 related to their sonís discharge from Wyndham. Respondents made arrangements to visit the Oakley School in Utah on June 6th and 7th (Transcript p. 1434).

        Meanwhile, the CSE began to receive responses from prospective residential schools. Devereux-Mapleton responded on May 31st that it would accept the student, contingent upon a "funding confirmation" (Exhibit SD-40). Lake Grove responded on June 8th that it would accept the student, contingent upon an interview (Exhibit SD-42). Crestwood/Woodís Services indicated on June 7th that it wanted to conduct a pre-admission evaluation (Exhibit P-16). A few schools declined to accept the student because they were not equipped to meet his psychiatric needs (Exhibits SD-37,39,41,43,44,45). On or about June 15th, KidsPeace-Allentown requested more information about the student (Transcript p. 472). On July 3rd, Kolburne responded affirmatively, and requested a pre-planning interview (Exhibit SD-49). The CSE chairperson called the childís father to inform him each time she received a possible acceptance, and passed along the telephone number of a contact person (Transcript pp. 133, 423).

        The studentís father testified at the hearing that he called most of the schools that offered a placement, but did not find any to be appropriate. He eliminated the Devereux/Mapleton school as a possibility when it was described as a residential treatment program (Transcript pp. 796-99). He testified that he lost interest in the Summit School, which ultimately rejected the student, when he learned of its "therapeutic milieu" and that it was considered a residential treatment program (Transcript pp. 799-801; Exhibit P-27). Following conversations with representatives of Crestwood/Woodís Services, Lake Grove, and KidsPeace, the studentís father concluded that his son should not attend those schools because of the kinds of students they served (Transcript p. 803-10).

        When petitionerís assistant superintendent learned that the parents were rejecting the schools from the state-approved list of residential schools, he sought the assistance of the director of residential placement (director) at SED. In a June 13, 2000 conference call with the parents and the CSE chairperson, the director named a few additional state-approved schools he thought might meet the studentís needs. He also raised the possibility of invoking the SEDís emergency interim placement (EIP) process to temporarily place the student in a school that was not on the state-approved list (Transcript pp. 146, 148). On the following day, petitionerís assistant superintendent called the schools suggested by the director, but found they did not have vacancies (Transcript p. 583). He then wrote to the director to request an EIP for the student, noting on the application that Devereux, Hillcrest, and KidsPeace, among other schools, had rejected the student because of their inability to meet his needs (Exhibit P-30).

        The assistant superintendent asked respondents to put their objections to the proposed placements in writing (Transcript p. 580). In a June 17, 2000 letter, received by the district on June 19th, respondents indicated that they viewed "psychiatric-based treatment programs" as inappropriate, and reiterated that they were seeking "a more normalized school environment" with therapeutic supports surrounding it. They did not want a "lateral move", but rather a "step down" from the residential treatment center (Exhibit SD-52).

        On or about June 20, 2000, the parents learned that their son had been accepted at Oakley (Transcript pp. 1454, 1500). They immediately notified petitioner through their attorney that they intended to unilaterally place their son at the Oakley School, because they did not find any of the state-approved schools that had responded appropriately (Exhibit SD-53). Although their letter purported to give the CSE until July 1, 2000 to identify an appropriate state-approved school, the father testified at the hearing that respondents had become committed to sending their son to Oakley on June 22nd or 23rd (Transcript p. 1526).

        In a June 26, 2000 letter to the parents, petitionerís assistant superintendent noted that the Oakley School had not been approved to provide instruction to children with disabilities. He presented them with a list of schools that might be appropriate for the student, including KidsPeace, and asked that respondents help complete the intake process by visiting the schools. He also suggested that the Phelps School in Pennsylvania should be considered as a possible EIP (Exhibit SD-54).

        The father testified at the hearing that the voluntary foster care arrangement with the Erie County Department of Social Services was terminated in June 2000 by merely writing a letter to the commissioner of that agency, thereby avoiding a Family Court appearance (Transcript pp. 817-18, 944). Petitionerís assistant superintendent testified that the April 13, 2000 IEP was never sent to the Board of Education for approval because the CSE was waiting for a specific placement to be selected (Transcript pp. 1761-62). He further testified that the IEP never went to the Board because the student no longer had a number assigned to his file, which was apparently part of an administrative oversight (Transcript p. 1753).

        On July 3, 2000, respondents informed the school district that their son would be attending Oakley School, and that they planned to seek reimbursement for his tuition at the school (Exhibit P-33). The student started at Oakley School on July 4, 2000 (Transcript p. 1526). Respondents formally requested an impartial hearing on July 21, 2000, seeking reimbursement for tuition and for travel and lodging expenses to the Oakley School (Exhibit SD-56).

        KidsPeace, a State-approved residential treatment program in Pennsylvania, officially accepted the student in August 2000, more than a month after he had started at the Oakley School (Transcript p. 539-40). There is no indication in the record that petitioner notified the parents it had selected the KidsPeace program for the student.

        After requests for extensions of the 45-day time requirement, the hearing began on November 6, 2000, and ended on December 14, 2000. The hearing officer called a few of the witnesses back for additional testimony on January 3, 2001, and rendered his decision on January 6, 2001. He found that petitioner had failed to implement an appropriate placement for the student in a timely manner, because it had not implemented the studentís IEP within 60 days after his referral to the CSE by respondentsí attorney on March 10, 2000, in violation of 8 NYCRR 200.4(e)(1). While acknowledging the good faith effort by district staff to identify an appropriate residential placement for the student, the hearing officer noted that no placement had been found within the 60-day period, and that the CSEís recommendations had not in fact been presented to the Board of Education.

        Based on the testimony of the educational experts, the hearing officer further found that the program provided to respondentsí son by the Oakley School was reasonably calculated to meet the studentís educational, social and emotional needs. He declined to construe the parentsí rejection of the state-approved schools or their hiring of an independent consultant as evidence of a lack of cooperation by respondents. He therefore directed petitioner to reimburse respondents for the cost of tuition at the Oakley School during the 2000-01 school year. However, he denied the parentsí request for reimbursement of their travel and lodging expenses associated with placing their son at the Oakley School, because those costs were excessive.

        The Board of Education challenges the hearing officerís determination that it had failed to offer an appropriate placement to respondentsí son on a timely basis. Petitioner asserts that its CSE chairperson worked diligently to locate an appropriate residential school for the student, and that it had offered to send respondents at district expense to visit the residential schools that had been identified as potential placements for their son. However, respondents never visited or set up a personal interview for their son at any of the schools that had expressed an interest in the student. Petitioner alleges that any one of those schools would have been appropriate for the student. It contends that respondentsí failure to cooperate with the CSE has prevented the CSE from completing the studentís IEP by identifying a specific placement for him. Since the IEP is incomplete, petitioner argues that it would not have been appropriate for the CSE to send its recommendations to the Board of Education. As a result, petitioner contends that its 30-day period in which to implement the CSEís recommendation for a private school placement has not begun.

        In this instance, there appears to be no dispute about the contents of the IEP that was prepared as a result of the CSEís April 13, 2000 meeting with respondents. The issue in dispute is whether the studentís IEP was implemented within the time frame required by law. I note that the applicable federal regulation provides that a studentís IEP is to be implemented "as soon as possible" after the meeting at which it was prepared (34 CFR ß 300.342[b][ii]). The Regulations of the Commissioner of Education provide that for a student already identified as having a disability, the board of education must arrange for the appropriate special education programs and services to be provided to the student within 60 school days of the studentís referral to the CSE, unless the CSE recommends that the student be placed in an approved in-state or out-of-state private school, in which case the board of education "shall arrange for such programs and services within 30 school days of the boardís receipt of the recommendation of the committee" (8 NYCRR ß200.4[e][1]).

        I agree with petitioner that the 30-day period for implementation of the IEP upon receipt of that document from the CSE could not have elapsed, because the Board of Education had not, in fact, received the IEP. However, that is not dispositive of this matter. Petitioner cannot rely upon the failure of its CSE to send its recommendations in the form of an IEP to the Board of Education to indefinitely extend the time limit for implementation of the IEP. I note that petitionerís assistant superintendent explained to the hearing officer that this studentís identification number had not converted, as had other studentsí at the time, so that the CSE secretaries "couldnít put him on the board agenda because the board always sees a number instead of a name" (Transcript pp. 1752-1753).

        I have also considered petitionerís argument that its CSE was prevented from performing its duty to recommend a program by respondentsí failure to cooperate in the process of identifying an approved private school that would have been appropriate to meet the studentís needs. I cannot agree with that argument for two reasons. First, I find that the studentís father did cooperate in the process, promptly making calls to each school in order to determine whether they would be suitable for his son. Second, the fatherís rejection of the schools does not excuse the CSE from making a recommendation to the board, or the school district from offering a residential program in a timely manner. A CSE cannot avoid its obligation to make a recommendation simply because of a parentís expressed unwillingness to accept a placement (Union School Dist. v. Smith, 15 F. 3rd 1519 [9th Cir. 1994]; Glendale Unified S.D. v. Almasi, 122 F. Supp. 2d 1093 [C.D. Cal. 2000]).

        In view of the fact that the CSE accepted the referral in March and convened on April 13th to define the educational program, I find there was adequate time for petitioner to arrange a placement by time the student left Wyndham at the end of June. At the very least, petitioner could have offered an EIP, or arranged to extend the studentís residence at Wyndham until the CSE could select an appropriate program, as suggested at one point (Transcript p. 573-74). In failing to do so, it left the parents with no other option than to place their son in a residential school that appeared to meet his educational and emotional needs.

        As an alternate argument, petitioner asserts that its responsibility to provide an educational program did not begin until the end of June, when the Family Court released its jurisdiction over the student. I must reject this argument as well. First, I must note that the record does not fully reveal the circumstances under which the Court assumed jurisdiction or the precise nature of that jurisdiction. In any event, the CSE acknowledged on April 13, 2000 that the student would need a residential placement upon his release from Wyndham at the end of June, and that he would risk significant regression if he were to go home or be placed in a public school. Petitionerís assertion that the courtís jurisdiction over the student prevented it from arranging services in a timely manner is inconsistent with the convening of the CSE, its preparation of the IEP, and its continued attempts to identify a suitable placement.

        The record is clear that the CSE never sent a recommendation to the Board of Education, and that the Board of Education never arranged for an appropriate residential program for the student. I must conclude that despite the CSEís good faith effort to locate a suitable placement for the student, it failed to meet its legal obligation to implement the IEP in a timely manner and provide services within the recommended timeframes.

        A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parentsí claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). For the reasons set forth above, I find that petitioner has not met its burden of proof.

        Respondents bear the burden of proof with regard to the appropriateness of the services provide to their son by the Oakley School during the 2000-01 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, they must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        Petitioner argues that Oakley is not an appropriate placement for the student. Its educational consultant, who visited Oakley and praised many aspects of its program, did not think the student had the ego strength to perform well there, and feared there would be no safety net for him if he were to become overwhelmed (Transcript p. 1573). However, I find that there is evidence of a safety net in Oakleyís program, and that its program was reasonably calculated to provide an educational benefit to the student. The school is accredited by the State of Utah, and offers college preparatory courses (Transcript p. 1085). The head of Oakley testified that the school attracts many students who have left a residential therapeutic facility and require a less restrictive setting (Transcript p. 1043). He explained that Oakley provides a safe environment for young people to test the skills they have learned, and an opportunity to deal with real life stressors in a safe environment (Transcript p. 1081). The program includes individual counseling focusing on the studentís self-esteem, group counseling to address peer issues, and family counseling. In addition, the school has a recreational component that allows students to develop skills, and relate to their peers in a safe, controlled environment (Transcript 1038; Exhibit P-40).

        The record also demonstrates that the student made progress at Oakley. While his grades decreased over the course of the school year, as has been his pattern, the progress reports indicate that he is doing well overall (Exhibit P-39, 42). I find, based on reports of his counselor, the head of the school, and his psychiatrist, that his educational needs and his social and emotional needs are being met at Oakley. The studentís social worker indicated that the student is participating more willingly in counseling, and that he reports an increase in self-satisfaction and confidence, as well as being more calm and relaxed (Exhibit P-45). His treating psychiatrist testified that Oakley is the best possible situation for him at this point (Transcript p. 1151).

        Petitioner contends that since Oakley is 2,000 miles away from the studentís home, respondents have failed to meet their burden of demonstrating that its program addressed the studentís educational needs in the least restrictive environment (LRE) (IDEA Amendments of 1997, 20 U.S.C. ß1412[a][5]). While the restrictiveness of parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement, parents are not held as strictly to the standard of placement in the LRE as are school districts (M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]). I cannot find that the parentsí unilateral placement of the child at Oakley violated the LRE requirement, when the district was unable to identify an appropriate placement closer to home. Further, since the CSE determined that the student should be placed in a residential therapeutic facility, I cannot conclude that Oakley is too restrictive. I find that respondents have met their burden of proof as to the appropriateness of the services provided to their son by the Oakley School.

        The third and final criterion for an award of tuition reimbursement is whether the parentsí claim is supported by equitable considerations. Equitable considerations "include the partiesí compliance or noncompliance with state and federal regulations pending review, the reasonableness of the partiesí positions and like matters" (Town of Burlington v. Depít of Educ., 736 F. 2d 773, 801-02 [1st Cir.] cert. granted, 469 U.S. 1071, 105 S.Ct. 562, affíd, 471 U.S. 359, 105 S.Ct. 1996 [1985]).

        Petitioner asserts that equitable considerations do not favor respondents, because they failed to fully cooperate with the CSE and declined to visit the residential schools proposed by the district. I find that the parents spent a great deal of time contacting the State-approved schools suggested by the district, and I would also note that a few of the suggested schools were clearly inappropriate. Although the parents did not consult with the CSE about their decision to hire a private educational consultant in February 2000, the fact that they chose to hire the consultant is not evidence of bad faith or an unwillingness to work with the CSE. The record reveals that they notified petitioner about the need for services in time for petitioner to provide an appropriate educational program, and that they worked in a cooperative manner with the CSE at all other levels of decision making. I therefore find that respondents are entitled to be reimbursed for the cost of their sonís tuition at Oakley for the 2000-01 school year.

        I now consider respondentsí cross-appeal. The Regulations of the Commissioner of Education authorize expenditures related to suitable transportation of the student "from the studentís home to the school at the commencement of the school year, from the school to the studentís home at the conclusion of the school year, and no more thanÖfour additional trips to and from school for students enrolled in or receiving a 12-month special service and/or programÖ" (8 NYCRR 200.12[a]). The hearing officer denied respondentsí request based on an "excessive cost factor." Since there were no bills or other evidence of the actual costs incurred by respondents, I must conclude that the hearing officerís decision is not supported by the record. Therefore, I will annul that portion of his decision. I will not order petitioner to pay for any specific expenditure in the absence of evidence of such expenditure. Respondents must submit their request for payment to petitioner. If there is a dispute about payment, the due process procedures may be used (Application of a Child with a Disability, Appeal No. 00-010).

 

        THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS SUSTAINED.

        IT IS ORDERED that the hearing officerís decision that respondentsí expenditures for travel relating to the placement of their son were excessive is annulled.

 

 

Dated:

Albany, New York

 

__________________________

 

December 19, 2001

 

FRANK MUÑOZ