The State Education Department
State Review Officer

No. 01-035




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

Plunkett & Jaffe, P.C., attorneys for petitioner, Ralph C. DeMarco, Esq., of counsel

Barbara J. Ebenstein, Esq., attorney for respondents



        Petitioner, the Board of Education of the Irvington Union Free School District, appeals from the decision of an impartial hearing officer that found that petitioner failed to offer respondentsí son an appropriate educational program during the 1999-2000 and 2000-2001 school years. The hearing officer ordered petitioner to reimburse respondents for their son's tuition at a private school and for a portion of certain counseling fees. Respondents cross-appeal from the hearing officerís determinations that their claim regarding their son's pendency placement had become moot, and that it was not necessary to address their procedural challenges to their son's Individualized Education Programs (IEPs) in view of his finding that petitioner had not offered an appropriate educational program to the student. The appeal must be dismissed. The cross-appeal must be sustained in part.

        The student was 17 years old and in the 11th grade at the Forman School (Forman) in Litchfield, Connecticut when the hearing began in October 2000. Forman has not been approved by the New York State Education Department (SED) to provide education to students with disabilities. Respondentsí son was initially classified as emotionally disturbed by the Hastings-on-Hudson Union Free School District Committee on Special Education (CSE), and was placed in a Board of Cooperative Educational Services (BOCES) Therapeutic Support Program for kindergarten and first grade (Transcript pp. 201, 1039). The studentís classification was changed to other health impaired by petitionerís CSE upon his entry into petitionerís district for second grade, because he had reportedly been diagnosed as having an attention deficit disorder (ADD).

        Respondentsí son was placed in a self-contained classroom for second grade. In third and fourth grade, he attended mainstream classes and received related services including resource room and counseling (Transcript pp. 1039-42). The student was referred to a gifted special education program at Southern Westchester BOCES for fifth grade in the 1994-95 school year because social and emotional issues interfered with his ability to handle all of the transitions in the regular education program. The studentís IEP for 1994-95 listed a number of significant concerns regarding the studentís social development, particularly his relationships with adults and peers.

        In his May 1994 triennial psychological evaluation, the student achieved a verbal IQ score of 111, a performance IQ score of 112 and a full scale IQ score of 112. His academic skills were reported to be consistent with his cognitive ability, but he was described as going through a very difficult time emotionally and struggling to understand where he fit in. The psychologist noted that the studentís readiness to be engaged in instruction, his tendency to be rigid in his thinking, and his moods all interfered with academic performance (Exhibit P-NN).

        In May 1996, petitionerís CSE applied to the SED for an Emergency Interim Placement for the student at the Eagle Hill School (Eagle Hill) in Greenwich, Connecticut, because the pace of the gifted special education program was too fast for him, and the CSE could not locate a suitable public school program or an approved private school for the student. A psychiatric report that accompanied the CSEís application to the SED recommended that the student not be placed in a special group in a mainstream school because that would not be conducive to developing his self-esteem. The studentís psychiatrist indicated that he was treating the student for ADD and mood difficulties. He suggested that the student be placed in a program with small classes, enrichment activities and the ability to help him develop social skills as well as organizational and study skills. On September 3, 1996, SED approved the studentís placement at Eagle Hill (Exhibit P-KK).

        At the end of the 1996-97 school year, the studentís educational advisor at Eagle Hill reported that the student continued to struggle socially and did not accept rules and routines in the classroom. Petitioner requested and obtained SED approval to place the student at Eagle Hill again for the 1997-98 school year. On the studentís IEP for the 1998-99 school year, the CSE indicated that the student continued to function below grade level in math computation and concepts, to have difficulty with written expression and to demonstrate weak study skills. It also indicated that the student had not attained sufficient social skills to be placed in a public school environment, and recommended that he continue to attend Eagle Hill for ninth grade during the 1998-99 school year. The SED approved the studentís placement at Eagle Hill for that school year. He boarded at the school for that year.

        The studentís private psychiatrist prepared treatment reports dated July 17, 1995, December 24, 1997 and November 16, 1998 that listed the following diagnoses for the student: attention deficit hyperactivity disorder, dysthymic disorder, social phobia, reading disorder, Aspergerís disorder and an unspecified encephalopathy (Exhibit P-TT). The reports noted that the student had a history of ADD, impulse control problems, mood instability, obsessive thoughts and social impairments consistent with a pervasive developmental disorder. The psychiatrist had prescribed Dexedrine and Zoloft for the student, and reported that he was making slow but steady progress.

        In December 1998, an educational advisor reported that the student had made gains academically and socially at Eagle Hill, where he had been placed in a transitional program with all Eagle Hill ninth graders to prepare them for a mainstream educational setting. Eagle Hill does not offer classes beyond ninth grade. The advisor stated that the student was highly motivated by the increased expectations for students in the transitional program and by the addition of a laptop computer to his program. He also reported that the "added structure of a residential program has made a tremendous, positive impact on [studentís] overall performance, both academically and socially. [He] profits from a proctored evening study periodÖ" and appreciates "the ready accessibility of teachers to help himÖ." (Exhibit D-6). The student achieved Cs in most of his fall semester courses, and a B- in math.

        On January 11, 1999, the studentís mother completed an application for him to attend a residential program at Forman during the 1999-2000 school year (Exhibit P-PP). He was accepted in February (Exhibit D-29), but was not formally admitted to the school at that time.

        At its annual review on March 8, 1999, petitionerís CSE recommended that the student attend the Irvington High School for tenth grade, with two periods of resource room per day, collaborative classes in English and social studies, and a shared half-time aide. The collaborative classes were to be taught by one regular education teacher and one special education teacher. The aide was available for science and math, which were mainstream classes. The CSE also recommended that the student receive counseling in a small group once a week for 30 minutes, and individually once a week for 30 minutes. On the studentís IEP, the CSE indicated that he was to have a word processor, and a calculator for math. It recommended that he given up to twice the normal time limits to complete tests. The CSE minutes show that no parent member of the CSE was present at the meeting (Exhibit P-J).

        The IEP indicated that the student had achieved grade equivalents of 5.5 for computation and 7.6 for math concepts on the Stanford Diagnostic Math test in September 1998, and was performing at the seventh to eighth grade level in math. I note that two months after the IEP was prepared, the student achieved grade equivalents of 3.7 and 7.2 respectively, on the same test (Exhibit P-RR). It also noted that written expression continued to be an area of weakness for the student. Problems with self-esteem and self-advocacy also were noted. While the parents raised a number of concerns at the meeting, they did not reject the IEP at that stage (Transcript pp. 149-52). They and the studentís advisor from Eagle Hill observed part of the proposed program a month or two after the meeting (Transcript pp. 153-54). The advisor expressed reservations about the social part of the program, but not about academics (Transcript p. 155).

        In June 1999, respondentsí son achieved grades of B for math, C for study skills, B for science, C+ for literature, B- for grammar and composition, and P for his tutorial at Eagle Hill. While the studentís grades were generally better than his December 1998 grades, his advisor reported that the student "has been progressively less able to consistency [sic] meet the homework requirements across all of his classes." He explained that he and the studentís teachers were concerned about the "amount of supervision and support necessary each day" to get the student to perform consistently. He noted that the student had made some progress socially, but continued to approach many situations cautiously and at times inappropriately. He opined that "without question, [his] academic and social needs require a continuation of this type of supportive, structured and accommodating environment."

        By letter dated June 9, 1999, respondents asked the CSE to reconvene to review the studentís year-end report from Eagle Hill and reconsider its recommendation for placement (Exhibit P-K). At a CSE meeting on June 28, 1999, the studentís advisor from Eagle Hill informed the CSE that the student had had increasing difficulty completing his assignments and turning in homework since the March CSE meeting (Transcript pp. 167-68). The CSE reviewed a June 22, 1999 letter to respondents from the studentís treating psychiatrist, who indicated that the student had a neurological disorder best described as pervasive developmental disorder, "probably Aspergerís type", symptoms of ADD, and a moderately severe mood disorder. He recommended that the student be placed in a boarding school program that was predictable and structured, with minimal transitions between academics and recreation. The psychiatrist opined that the student needed to be placed with similar students in order to learn social skills, and could not be with students who acted out or were aggressive (Exhibit D-11).

        The CSE chairperson later testified that she had not been aware that the student had been diagnosed as having Aspergerís or a "moderately severe" mood disorder, prior to receiving the psychiatristís report (Transcript pp. 161-62). She noted, however, that his records reflected behaviors consistent with those diagnoses (Transcript pp. 232-34). Petitionerís school psychologist expressed doubt about the student being depressed, or being affected by his ADD because of the medication he was taking (Transcript pp. 342, 368-70).

        On June 28, 1999, the CSE adhered to its prior recommendation for the studentís educational program during the 1999-2000 school year. The minutes of the June 28 meeting reveal that the CSE concluded that the program proposed by the studentís psychiatrist was "overly restrictive and not an appropriate program given [his] progress." (Exhibit P-L). However, the CSE determined that an updated social history, psychological testing and educational testing were needed. The CSE decided to reconvene in August to review the additional information and reconsider the studentís program. The parents gave oral consent for the CSE to conduct the additional evaluations before the family left on its annual summer vacation (Transcript pp. 1310-12).

        By letter dated June 28, 1999, respondentsí attorney advised petitioner that the parents believed the district had failed to offer their son a free appropriate public education (FAPE), and that they were unilaterally placing him at Forman and would seek tuition reimbursement from the district (Exhibit P-A). Correspondence between the partiesí attorneys indicated that the parents withdrew their oral consent for additional evaluations (Exhibits D-18, P-L). Petitioner subsequently mailed respondents two forms seeking written consent to evaluate the student (Exhibits P-M, D-27). Respondents signed an enrollment contract with Forman on August 10, 1999, and the student began attending the school in September 1999 (Exhibit D-30).

        Respondents ultimately consented to the additional evaluations. The Woodcock Johnson Psycho-Educational Battery (WJ-R) was administered to the student on August 19 and September 2, 1999 (Exhibit D-3). The student scored in the 92nd percentile for Broad Reading, the 29th for Broad Math, the 32nd for Math Reasoning, the 87th for Broad Written Language, and the 61st for Broad Knowledge. The school psychologist reported that the student had achieved a crystallized scale IQ score of 110 on the Kaufman Adolescent and Adult Intelligence Test, a fluid scale score of 118, and a composite score of 116 (Exhibit D-8). Although the student consistently scored in the above average range of intellectual functioning, the school psychologist noted that the student had a history of learning deficits, social difficulties and emotional problems. He also noted that the student had responded well to a structured environment, and recommended that intensive resource room support, test modifications and counseling sessions should be included in his school program.

        The student experienced some difficulty adjusting to Forman during the beginning of the 1999-2000 school year. He earned a fall term grade of 60 in algebra which his teacher attributed to the difficulty of the material, as well as his failure to complete homework or seek extra help and his lack of organization. Some teachers praised his performance and interest in class while acknowledging he had difficulty with organization. Others noted a lack of motivation (Exhibits P- AA and BB). The dean of students wrote to the student about behavioral concerns on two occasions (Exhibits P-Q and R). On November 4, 1999, the student signed a behavior contract in which he agreed to be cooperative and productive in study hall, to ask for help when needed, and to use his computer and discman in an appropriate manner (Exhibit P-P).

        The CSE reviewed the studentís program on November 17, 1999 (Exhibit P-O). It recommended the same placement and services it had suggested in the March 8, 1999 and June 28, 1999 IEPs. The minutes of the CSE meeting indicate that the CSE reviewed the latest educational and psychological evaluation reports, as well as academic reports from Forman indicating that he was having motivational difficulties at Forman. Respondents advised the CSE that their son had recently begun to receive counseling. The CSE again rejected the studentís private psychiatristís recommendation that he attend a boarding school, and concluded that individual and group counseling would address the studentís social needs. On November 18, 1999 the parentsí attorney notified the school districtís attorney that the parents rejected the IEP, and would continue to seek tuition reimbursement for the 1999-2000 school year (Exhibit P-B).

        In a report dated December 19, 1999, the studentís advisor at Forman indicated that the studentís average of 69 was well below his level of capability, and expressed concern about the studentís 61 missed school commitments during the fall term (Exhibit D-10). During the remainder of the school year, the student improved his academic average to 82, and reportedly improved his study habits. He missed only one school commitment, but did receive a two-day in-school suspension in a disciplinary matter (Exhibit P-OO).

        Respondentsí counsel requested an impartial hearing by letter dated March 8, 2000 (Exhibit P-G). She requested an immediate determination of the studentís pendency placement as well as tuition reimbursement. I note that the hearing did not begin until October 16, 2000, for reasons that the record does not reveal. The parents do not object to the timeliness of the hearing.

        The CSE conducted its annual review of the studentís educational program on June 14, 2000 (Exhibit D-1). According to its minutes, the CSE noted that the student had made significant progress academically, socially, and emotionally, but he continued to struggle with self-monitoring, planning, and social interactions, and needed a structured supportive learning environment. It noted that the student was weak in written expression, math and study skills. I note that on the PSAT in October 2000, the student scored in the first percentile for math (Exhibit P-W). Notwithstanding its belief that the student required a structured supportive learning environment, the CSE concluded that he could be educated at the Irvington High School in a regular education program, with a half-time shared aide, collaboration classes for English and social studies, and resource room services twice per day during the 2000-01 school year. It also recommended that he receive 40 minutes of individual counseling and 40 minutes of counseling in a group per week.

        On the studentís IEP, the CSE indicated that he should receive preferential seating in class, and that a positive reinforcement plan and a daily planner should be used. The IEP also provided that the student should have a word processor, calculator, and an extra set of books. Time limits for test were to be doubled for the student. The CSE identified school personnel who would be responsible for closely monitoring the studentís re-entry, and intervening if problems arose. Respondents expressed dissatisfaction with the recommendation. They were concerned about the transition to public school for the studentís senior year, his lack of friends and prior bad experiences in the public school, and his need for supervision in the evenings.

        The hearing began on October 16, 2000 and concluded on December 17, 2000. During the hearing, it was agreed to expand the scope of the proceeding to include the 2000-2001 as well as the 1999-2000 school years. The hearing officer rendered his decision on March 23, 2001. He held that petitioner had not shown that it offered the student an appropriate education in the 1999-2000 and 2000-2001 school years. He noted that the IEPs for both years recommended that the student be placed in a mainstream Regents math class, which he found to be inappropriate because it did not address the studentís well-documented weakness in math. He was not persuaded that the student would have access to sufficient extra help to succeed in the mainstream class. The hearing officer noted that the June 14, 1999 IEP listed 26 math objectives for the student and concluded that the proposed program would not enable the student to work toward achieving those objectives. In sum, he held that the disputed IEPs were not reasonably calculated to enable the student to make progress in math. Because he found that the IEPs were substantively defective, the hearing officer did not address the parentsí allegations that the district also had made procedural errors.

        The hearing officer next found that Forman provided the student with an appropriate education during the years in question because it provided support for the student in meeting his academic, social and emotional needs. He rejected the Board of Educationís argument that equitable considerations did not favor an award of tuition reimbursement to the parents because they had allegedly failed to cooperate with petitionerís CSE. He found that the parentsí conduct had not prejudiced the CSE or impeded it in formulating appropriate IEPs for the student. The hearing officer directed the Board of Education to reimburse the parents for the cost of their sonís tuition at Forman during the 1999-2000 and 2000-2001 school years, and for the cost of counseling of the student, to the extent that it was not covered by the parentsí insurance. Having found for the parents on the merits of their reimbursement claim, the hearing officer concluded that the parentsí request for a pendency determination was moot.

        Petitioner appeals from the hearing officerís decision. It asserts that the placements it proposed for the years in dispute were appropriate, and that the residential program selected by respondents was inappropriate and inconsistent with the requirement that children with disabilities be educated in the least restrictive environment (LRE). Petitioner also alleges that the parents failed to cooperate with the CSE, and concealed their plan to send their son to private school regardless of the placement proposed by the district. Petitioner contends that equitable considerations should bar any recovery by the parents. In the cross-petition, respondents argue that the hearing officer erred when he found their pendency claim to be moot, and when he failed to address their claims of procedural error in preparing their sonís IEPs.

        I will address petitionerís claims first. As noted above, this appeal challenges the hearing officerís award of tuition reimbursement for both the 1999-2000 and the 2000-2001 school years. A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

        Petitioner asserts that its CSE recommended appropriate programs for the student. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with 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]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the studentís needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        The record includes three IEPs for the 1999-2000 school year, one developed in March, one in June and one in November 1999. I must first determine which IEP should be reviewed. A CSE may revise a childís IEP from time to time. The amended IEP supersedes the initial IEP (Application of a Child with a Disability, Appeal No. 96-78). However, the relevant IEP in tuition reimbursement award cases is the IEP which the parent had at the time the parent removed the child from the public school and unilaterally enrolled the child in a private school (Application of a Child with a Disability, Appeal No. 98-14; Application of a Child with a Disability, Appeal No. 01-010). The record shows that after the June 1999 IEP meeting the parents advised petitioner that they had enrolled their son in Forman. As such, I find that the relevant IEP is the IEP that was drafted in June 1999.

        As stated above, the IEP must accurately reflect the results of evaluations to identify the student's needs. Federal and state regulations require that each child with a disability be reevaluated at least once every three years to determine the student's individual needs and continuing eligibility for special education (34 C.F.R. ß 300.536; 8 NYCRR 200.4[b][4] previously found at 8 NYCRR 200.4[e][4]). The record shows that a reevaluation of the student should have been conducted in May 1997. There is no dispute that the student did not receive the required reevaluation prior to the CSE's preparation of the student's IEP for the 1999-2000 school year. I note that at the June 1999 meeting, the CSE reviewed, but disagreed with the recommendation in a current psychiatric evaluation obtained by the parents. However, reviewing the psychiatric report did not relieve the CSE of its obligation to reevaluate the student. Based upon the information before me, I find that the IEP prepared by the CSE does not reflect the results of a current evaluation. Moreover, the CSE recommended moving respondentsí son from Eagle Hill to Irvington High School, which constituted a change in this studentís placement for which an adequate evaluation was required. A CSEís failure to perform an adequate evaluation of a child before recommending a change in placement may afford a basis for annulling that recommendation (Appeal of a Child with a Disability, Appeal No. 99-41; Application of a Child with a Disability, Appeal No. 96-22). As petitioner has failed to demonstrate the appropriateness of its recommended program, I find that the parents have prevailed on the first criterion for an award of tuition reimbursement for the 1999-2000 school year.

        With respect to the second criterion for an award of tuition reimbursement, respondents bear the burden of proving the appropriateness of the services selected during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington., 471 U.S. at 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).

        I find that respondents have established that Forman offered a program that met their sonís academic and social/emotional needs during the 1999-2000 school year. Forman is a college preparatory school for students with learning disabilities. Classes typically include about ten students, and some math classes have as few as six. Each student is also assigned to a daily "Learning Center" class of one to four students which provides intensive individualized support. The student was placed in a math class that spread the algebra curriculum over two years, which gave the teacher the opportunity to review prerequisite skills, repeat and re-emphasize concepts that were not mastered, and provide cueing and direct instruction to individual students. The student received 1:1 help from his math teacher and worked on math skills with a peer tutor. Teachers monitored mandatory study periods and checked whether the student completed homework. The student also received counseling. Additionally, the school employed a system of progressive discipline in which students were held accountable for academics and other responsibilities. The student responded well to this system, accruing fewer missed commitments as the 1999-2000 school year progressed. While the studentís performance was uneven during the year, he finished his first year at Forman with passing grades. I note that he raised his math average from 55 in the fall term to 77 in the spring term.

        Petitioner argues that the Forman program could not have been appropriate for respondentsí son because it offered him no opportunity to interact with nondisabled peers. While LRE is an important consideration in parental as well as school district placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2d Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F. 2d 688 [2d Cir. 1989]). Both parties acknowledge that the student requires a significant amount of support in order to receive educational benefit from his instructional program. Although the studentís program at Forman did not provide him with the same opportunities for mainstreaming as a less restrictive program, I cannot conclude on this fact alone that it is inappropriate for him. I also note that his parents are requesting reimbursement for tuition, and are seeking reimbursement for the cost of the studentís residence while the student was enrolled in Formanís residential program. I find that the parents demonstrated that Forman offered an educational program which met the student's special education needs. Accordingly, I find that they have prevailed on the second criterion for an award of tuition reimbursement for the 1999-2000 school year.

        The third and final criterion for an award of tuition reimbursement is that the parentsí claim is supported by equitable considerations. The record shows that respondents initiated contact with petitionerís CSE when the student was in his final year at Eagle Hill to request that the review process begin as early as possible. They expressed their dissatisfaction with the proposed program at the March 8, 1999 meeting. They requested an additional meeting in June, provided the CSE with more information and continued to express their dissatisfaction when the CSE recommended the same program. The parents immediately advised petitioner in writing that they rejected the proposed program and planned to seek tuition reimbursement. While the parentsí vacation schedule necessitated some delay in obtaining evaluations during the summer, I note that petitioner had not conducted a timely triennial review or obtained current evaluations before it proposed a change in placement.

        Respondentsí counsel promptly notified petitioner that her clients disagreed with the placement proposed at the November 17, 1999 CSE meetings, which was the same as that proposed in the prior IEPs. Respondents did not make specific complaints about the CSEís recommendation to place their son in a Regents math course during the meetings they attended. Nevertheless, the record shows that math was a longstanding weakness of the studentís, and petitionerís CSE should have been aware of his needs in that area. Finally, petitioner argues that respondents concealed their intention to send their son to a private school and would not have accepted any public school placement. In light of the circumstances set forth above and after considering petitionerís arguments, I find that equitable considerations support the parentsí claim for tuition reimbursement. Accordingly, I find that respondents are entitled to tuition reimbursement for the cost of their son's tuition at Forman for the 1999-2000 year.

        I now turn to the CSEís recommendations for the 2000-01 school year. The IEP that petitioner's CSE prepared provided for essentially the same instructional program as was on the studentís IEP for the 1999-2000 school year. However, I note that the June 2000 IEP contained 26 math objectives for the student compared to only six objectives on the two previous IEPs. The record demonstrates that the studentís weakness in math had been identified in earlier years and was well known to petitioner. Nevertheless, petitioner did not offer to provide the student with special education in math. Rather, petitioner offered to place the student in a mainstream Regents math course. In contrast, the student was offered collaborative courses with special education teachers for English and social studies.

        It is unlikely that the student, who was performing below grade level, could keep up with a mainstream math class. It is also unlikely that a shared aide or resource room teacher could provide him with adequate assistance in math, or that the mainstream teacher could follow the recommended strategies for repeating concepts until mastered and still keep the student on pace. I find that petitioner failed to address one of the studentís primary needs, and that the June 2000 IEP was therefore not reasonably calculated to permit the student to make educational progress. Accordingly, I agree with the hearing officerís finding that the Board of Education failed to meet its burden of proving that it had offered to provide an appropriate educational program.

        With respect to the appropriateness of the services provided by Forman during the 2000-01 school year, I note that the hearing was conducted between October and December 2000, so the record contains less information about the studentís progress during that year. However, it is clear that the studentís longstanding difficulties in math, written expression and organization had not been resolved by the end of the 1999-2000 school year. He also continued to have management needs and social and emotional needs during the 2000-01 school year. Formanís Dean of Students testified that missed commitments were no longer a major concern with the student in the 2000-01 school year, but there were still occasional behavioral difficulties (Transcript pp. 471, 486). He indicated that the student was given more structure as a consequence of his occasional behavioral difficulties.

        The dean of academic affairs at Forman testified that a summary of suggested skills was prepared at the end of each school year, listing the skills that should be worked on the following year to complement the existing program (Transcript p. 571). She reviewed the goals established for the student for the 1999-2000 school year and indicated where he had made progress and which skills he needed to continue to work on during the 2000-01 school year, such as homework completion, goal setting and attention. The dean of academic affairs further testified that the student had made progress while at Forman. She opined that the interventions and structure provided at Forman enabled the student to improve his grades (Transcript p. 590). There is some evidence suggesting that the student engaged in aggressive behavior during the 2000-01 school year, as a result of which he may have required a behavior plan or other intervention. However, it does not follow that respondentsí son was not receiving an educational benefit from the Forman program during the 2000-01 school year. Based upon the information before me, I find that Forman provided an appropriate program for the second year as well.

        I also find that the parentsí claim is supported by equitable considerations. There is no indication in the record suggesting that respondents failed to cooperate with the CSE. I find that they are entitled to an award of tuition reimbursement for the 2000-01 school year.

        In their cross-appeal, respondents argue that the hearing officer wrongly concluded that their pendency claim had become moot. At the beginning of the hearing, respondentsí counsel asked the hearing officer to determine the studentís pendency placement "as soon as possible" (Transcript p. 58). She then stated that an interim decision on pendency might not be necessary if the hearing were completed quickly. The hearing officer did not make an interim ruling. He ultimately decided that the parents were entitled to tuition reimbursement for both the 1999-2000 and 2000-2001 school years and that the pendency issue had become moot.

        I agree with the parents that the hearing officer should have determined their pendency request during the hearing. Parents who unilaterally enroll their child in a private school usually must bear the cost of the private school placement while seeking an award of tuition reimbursement. However, this studentís last agreed upon placement was in a day private school program (Exhibit P-J). When that placement was no longer available, petitionerís CSE recommended a substantially different placement for the student (Exhibit P-L). Respondents placed their son in another day private school program that was similar to the studentís last agreed upon placement. At the time of their request for a pendency determination, respondents were paying for that placement, which should have become the studentís pendency placement. Although the hearing officer ultimately determined that the parents were entitled to tuition reimbursement for both school years, his determination did not change the studentís pendency placement, or protect the parents against having to pay for their sonís placement during the pendency of any future proceeding. Nevertheless, the matter has now become moot because my decision upholding the award of tuition reimbursement does change the studentís pendency placement (34 CFR ß 300.514[c]; Application of a Child with a Disability, Appeal No. 99-100).

        Respondents also contend that the hearing officer erred when he declined to review their procedural claims because he had determined that their sonís IEPs were substantively invalid. As indicated above, I have found that the studentís June 1999 IEP was invalid because the CSE that prepared it was not properly composed, which was one of the procedural claims the parents had raised. However, I agree with the hearing officer it is not necessary to address each of the procedural issues raised by respondents.

        The Board of Education also challenges the hearing officerís determination that respondents were entitled to reimbursement for the portion of counseling costs that was not covered by their insurance. Respondentsí request for reimbursement for counseling expenses is subject to the Burlington criteria set forth above. There is no dispute that the student required counseling. The CSE had recommended that the student receive counseling during both the 1999-2000 and 2000-2001 school years. Petitioner asserts that respondents never requested that the district provide counseling. However, the burden is on petitioner to demonstrate that it provided the appropriate services. There is no information in the record suggesting that the school district offered to provide counseling and that the parents rejected it in favor of the counseling arranged by Forman. Moreover, the CSE chairperson testified that she was aware that the student received counseling at Forman, that she was interested in finding out about the counseling services being provided, and that she had requested a counseling report (Transcript p. 834). I find that the school district failed to provide the recommended counseling services.

        I further find that the counseling services obtained by the parents were appropriate. The record shows that in June 2000, the studentís psychologist reported that the student had made steady gains in his ability to function effectively in social/emotional areas. She noted that in therapy he had become open and responsive and more willing to try various strategies relevant to his self-perceptions and peer relationships. I also find that the equities support the parentsí claim. There is nothing in the record to suggest that the parents did not cooperate with the CSE regarding their sonís counseling services. The fact that the parents did not request reimbursement for counseling until the hearing as petitioner asserts does not provide a basis for me to direct that reimbursement for counseling services be reduced or denied. I agree with the hearing officerís determination that reimbursement is appropriate for counseling costs that were not covered by insurance.

        I have considered petitionerís remaining claims and find them to be without merit.




        IT IS ORDERED that the hearing officerís decision is hereby annulled, to the extent that it is inconsistent with this decision, and;

        IT IS FURTHER ORDERED that petitioner shall reimburse respondents for their sonís tuition and counseling at Forman for the 1999-2000 and 2000-2001 school years, upon respondentsí submission of proof of payment for such tuition and counseling.





Albany, New York


February 22, 2002