The State Education Department
State Review Officer

No. 02-089

 

 

 

 

Application of the BOARD OF EDUCATION OF THE ARLINGTON 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:
Raymond G. Kuntz, P.C., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel

Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Arlington Central School District, appeals from an impartial hearing officer's decision awarding respondents reimbursement for their daughter's tuition at the Kildonan School (Kildonan) for the 2001-02 school year. The hearing officer found that the student's pendency placement was Kildonan based upon a previous State Review Officer's (SRO's) decision that awarded the parents tuition reimbursement for the 1999-2000 and 2000-01 school years (Application of a Child with a Disability, Appeal No. 01-054). The appeal must be sustained in part.

        Respondents' daughter was 18 years old at the beginning of the hearing, diagnosed with dyslexia, classified by petitioner's Committee on Special Education (CSE) as learning disabled, and attending Kildonan. Kildonan is a private college preparatory school specializing in educating students with learning disabilities that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities. There is no dispute about the student's classification.

        The prior educational history of respondents' daughter is set forth in an SRO decision dated May 21, 2002 (Application of a Child with a Disability, Appeal No. 01-054). There is no evidence in the record of any further appeals concerning the 1999-2000 and 2000-01 school years. In that decision I found that the parents were entitled to reimbursement of tuition for the non-residential placement at Kildonan for the 1999-2000 school year and reimbursement of tuition for the residential placement at Kildonan for the 2000-01 school year.

        For the 2001-02 school year, the CSE recommended that respondents' daughter be educated in a general education instructional setting, which would be supplemented by one period of resource room daily, with a student to staff ratio of 5:1, and one period of a fundamentals of reading and writing class every other day (Exhibit 4). The CSE further recommended that the student receive a 40-minute session of individual counseling once a month to help the transition from Kildonan to petitioner's school (Exhibit 4).

        By letter dated August 20, 2001, respondents rejected the CSE's recommended placement and requested an impartial hearing to obtain tuition reimbursement for their daughter's attendance at Kildonan for the 2001-02 school year (Exhibit IHO-1). Hearings were conducted between November 2001 and May 2002 (Transcript pp. 1, 95, 215, 267, 376, 512). In a decision dated August 15, 2002, the impartial hearing officer found that my decision, dated May 21, 2002, created pendency as continued placement at Kildonan for the 2001-02 school year, and further found that on a review of the merits of the placement, the CSE's recommended individualized education program (IEP) for the 2001-02 school year was inadequate because it provided less services than was proposed in the previous year, which I found to be inadequate. Petitioner requests that the hearing officer's decision be annulled and requests a finding that the parents are not entitled to reimbursement for the costs associated with the student's placement at Kildonan for the 2001-02 school year.

        Petitioner contends that the pendency issue was moot by the time the hearing officer rendered his decision on August 15, 2002 because the student dropped out of Kildonan and the school year ended. The mootness doctrine requires that an actual controversy exist at all stages of litigation (Bd. of Educ. v. Schutz, 290 F.3d 476 [2d Cir. 2002]). The end of the school year for which an IEP was intended does not necessarily render moot a challenge to that IEP, where the conduct complained of is capable of repetition (De Vries v. Spillane, 853 F. 2d 264 [4th Cir. 1988]; Daniel R. v. E. Paso Indep. Sch. Dist., 874 F. 2d 1036 [5th Cir. 1989]), or there is a continuing controversy between the parties (Application of a Child with a Disability, Appeal No. 95-78; Application of a Child with a Disability, Appeal No. 94-23; Application of a Child with a Disability, Appeal No. 94-21). Even though the 2001-02 school year is over, the parties are still in disagreement over who was responsible for the student's tuition costs at Kildonan for that year. The question of the student's pendency placement for 2001-02 school year is still relevant to the unresolved issue of tuition reimbursement for that year, which in turn is relevant to whether or not the district provided an appropriate IEP for the 2001-02 school year (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]). Respondents have a continuing interest in obtaining a pendency determination to obtain tuition costs for the 2001-02 school year. In turn, petitioner has a continuing interest in establishing that it offered an appropriate program for respondents' daughter because a favorable determination for the district would alter the student's pendency placement in future proceedings (Application of Bd. of Educ., Appeal No. 01-088). Those questions should be resolved, even though the school year has ended (Application of a Child with a Disability, Appeal No. 95-78). Therefore, I find that respondents' claims involving the 2001-02 school year are not moot, and that respondents have a right to insist that their claim for a pendency determination for the 2001-02 school year be heard on the merits (Application of Bd. of Educ., Appeal No. 01-088).

        The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that a student remain in his or her then current placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; Education Law § 4404[4]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D., 694 F.2d 904). The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). It does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied 449 U.S. 1078 [1981]; Application of the Bd. of Educ., Appeal No. 02-031), or at a particular grade level (Application of a Child with a Disability, Appeal No. 02-023).

        Under the IDEA, the inquiry focuses on identifying the student's then current educational placement (Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F.Supp.2d 354, [S.D.N.Y. 2000] affd 297 F.3d 195 [2002]; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). The U.S. Department of Education has opined that a child's then current placement would " …generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, EHLR 211:481; see, Susquenita Sch. Dist. v Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]). Where there is a subsequent agreement between the parties during the proceedings to change the placement, there is no need to undertake the IEP analysis designed to identify the pendant placement (Bd. of Educ. v. Schutz, 137 F.Supp.2d 83 [N.D.N.Y. 2001] affd 290 F.3d 476 [2d Cir. 2002]; Evans v. Bd. of Educ., 921 F.Supp. 1184, 1189, fn 3 [S.D.N.Y. 1996]). The relevant federal and state regulations on pendency specify that "[I]f the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents" for purposes of pendency (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[l][2]). Once pendency placement has been established, it can only be changed by an unappealed decision of an impartial hearing officer (Application of a Child with a Disability, Appeal No. 98-053), an agreement of the parties, a decision by the State Review Officer agreeing with the parents, or a determination by a court (Schutz, 290 F.3d 476, 484; Bd. of Educ. v. Engwiller, 170 F.Supp.2d 410, 415 [S.D.N.Y. 2001] Murphy v. Bd. of Educ., 86 F.Supp.2d 354, 366 [S.D.N.Y. 2000]; Application of a Child with a Disability, Appeal No. 02-002; Application of Bd. of Educ., 01-088; see, 34 C.F.R. § 300.514[c]).

        Respondents assert that Kildonan became their child's pendency placement by virtue of my decision awarding them tuition reimbursement for the 1999-2000 and 2000-01 school years (Application of a Child with a Disability, Appeal No. 01-054). They are correct in that assertion (34 C.F.R. § 300.514[c]; Murphy, 297 F.3d 195; Schutz, 290 F.3d 476; Susquenita, 96 F.3d 78; Application of a Child with a Disability, Appeal No. 02-023). Petitioner contends that the IHO erred in concluding that Kildonan was the student's pendency placement. Petitioner's argument is without merit. As noted, the student's pendency placement cannot change until a new placement is established either by an unappealed decision by an impartial hearing officer, an agreement by the parties, a decision by the State Review Officer agreeing with the parents, or a determination by a court (Schutz, 290 F.3d at 484; Murphy, 86 F.Supp.2d at 366; see, 34 C.F.R. § 300.514[c]).

        Petitioner also contends that its CSE recommended an appropriate educational program for respondents' daughter for the 2001-02 school year that was reasonably calculated to meet her individualized educational needs. I will consider this issue since petitioner has a continuing interest in establishing that it offered an appropriate program for respondents' daughter and this could in effect "break" the chain of pendency and affect future proceedings (Application of Bd. of Educ., Appeal No. 01-088).

        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 Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The 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. 02-018; Application of a Child with a Disability, Appeal No. 02-006; Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487).

        To meet its burden of showing that it has offered to a provide a free appropriate public education (FAPE) to a student, a board of education must show (a) that it complied with the procedural requirements set forth in IDEA, and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206-207 [1982]).

        The student is deficient in the areas of reading, decoding, and mathematics. She is disorganized and needs supervision with her homework. A neuropsychological evaluation, conducted in March 2002, indicated that the student was at a fifth-grade equivalent in reading comprehension, a third-grade equivalent in math with untimed testing conditions, and a sixth-grade equivalent in written expression (Exhibit N). Petitioner's goal with the student was graduation (Transcript p. 108). The student needed 20 ˝ credits to graduate from petitioner's school (Transcript p. 112). Petitioner's CSE considered the student to be an expected 11th/12th grader because she lacked the necessary credits to be considered to be in 12th grade (Transcript p. 103, Exhibit 4). The student was considered to be partially in the 12th grade, as she would have been taking 12th grade English (Transcript p. 101). She still needed to pass a math Regents Competency Test (RCT), which she had taken and failed twice, and a Regents exam in English, or an RCT equivalent, in order to receive a diploma from petitioner's school (Transcript pp. 36-37, 62, 101). I note that there is a discrepancy in the committee minutes of the student's IEP where it is indicated that the student should take a math class (Exhibit 4). Petitioner's CSE chairperson testified that the CSE recommended that respondents' daughter not take math courses because she did not need them for graduation and because previous math courses frustrated the student (Transcript pp. 61-62, 64, 107-108). Regardless, she still needed to pass a math RCT to graduate (Transcript p. 36). Petitioner's CSE recommended that the student's resource room time could also be utilized if she needed additional work with the math RCT (Transcript p. 62). However, I do not find this to be enough to prepare the student for her math RCT so she could graduate from petitioner's school given the fact that she had already taken the math RCT twice and failed it.

        Petitioner's CSE also recommended that respondents' daughter receive 40 minutes of counseling in a 1 on 1 setting once a month (Exhibit 4). According to the neuropsychological report dated March 2002, the student had signs of clinical depression and needed "strong psychological support" focusing on "self-esteem and intra and interpersonal insight" (Exhibit N). I find that given the student's strong need for psychological support that petitioner failed to adequately address the student's individual needs by only offering 40 minutes of counseling per month and by not providing the services necessary to help ensure the student pass her math RCT. Petitioner failed to address the student's individual needs for the 2001-02 school year.

        Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2001-02 school year, I must now consider whether respondents have met their burden of proving that the services provided to the student by Kildonan during that school year were appropriate (Application of a Child with a Disability, Appeal No. 02-027; Application of Bd. of Educ., Appeal No. 02-024). In order to meet that burden, the parents must show that the private school provided services to the student that were proper under the IDEA (Burlington, 471 U.S. 359, 370; Application of a Child with a Disability, Appeal No. 02-027). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-027).

        Petitioner asserts that Kildonan did not provide the student with an appropriate education. As proof of this, petitioner asserts that the student "dropped" out of Kildonan in March 2002. The record indicates conflicting testimony as to whether the student was on medical leave or had in fact dropped out of school (Transcript pp. 396-398, 405-407, 447-448, 537, 539). However, there was testimony that the student was a residential student until about early December 2001, at which time she became a day student (Transcript pp. 303-304). Even before this, the student's grades became worse in terms of academic achievement since the end of the previous year (Transcript p. 304; Exhibits 14, F, G, H). Kildonan was not addressing this student's individual needs at the start of the 2001-02 school year. This is apparent because her grades started to fall from the beginning of the school year, she then changed from being a residential student to a non-residential student and her grades continue to fall, there was a lack of counseling which became more apparent as the school year progressed (Transcript p. 544), and the student wasn't in a math class despite her shortcomings in this subject area (Transcript p. 284). It also appears that the student needed the more structured environment that the proctored study halls provided in the residential program (See, Application of a Child with a Disability, Appeal No. 01-054). By the time she became a day student her grades were already slipping, and although there is conflicting testimony that the student either dropped out of Kildonan or was on medical leave, there is no indication in the record that she has attended Kildonan since March 2002.

        This student also has psychological needs that are not being met. The student's psychological needs were not being addressed by Kildonan because Kildonan was not even offering counseling services addressing her psychological needs while she was supposed to be out on medical leave for clinical depression and anxiety (Transcript pp. 417-418, 544; see, Exhibit N).

        Under the circumstances, I am unable to find that Kildonan offered an educational program that met the student's individual needs. Because I have found that respondents have not meet their burden of showing the appropriateness of the Kildonan School, I need not reach the question of whether equitable considerations support the parent's claim.

        When respondents formally requested the hearing in this proceeding on August 20, 2001, their child's pendency placement pursuant to my decision in Application of a Child with a Disability, Appeal No. 01-054, dated May 21, 2002, was Kildonan. There has been no change in placement via an agreement of the parties, an unappealed determination by a hearing officer, a decision by the State Review Officer, or a determination of a court. Therefore, respondents' daughter's "then current placement" at the initiation of these proceedings, was and still is Kildonan (Murphy, 297 F.3d 195; Schutz, 290 F.3d 476; Application of a Child with a Disability, Appeal No. 02-023; Application of Bd. of Educ., Appeal No. 01-088). Since Kildonan is the student's pendency placement, petitioner is required to pay for it (Schutz, 290 F.3d 476; Susquenita, 96 F.3d 78; Zvi D., 694 F.2d 904).

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that petitioner shall reimburse respondents for the residential placement for the period of residential services provided and for the non-residential services for the period of non-residential services provided until March 2002, or consistent with Kildonan's stated refund policy, upon respondents' submission of proof of payment for such expenditures.

        IT IS FURTHER ORDERED that petitioner shall determine whether respondents' daughter is returning to school and promulgate an appropriate IEP if she is returning to an educational setting, if petitioner has not already done so.

 

 

 

Dated:

Albany, New York

 

__________________________

 

October  17, 2003

 

JOSEPH P. FREY
STATE REVIEW OFFICER