The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Neal Howard Rosenberg, Esq., attorney for petitioner
Petitioners appeal from an impartial hearing officer's decision, which denied their request for tuition reimbursement for their son's attendance at the Stephen Gaynor School (Gaynor) in New York City for the 2001-02 school year. The appeal must be sustained.
The applicable state regulation required respondent to answer the petition within ten days of the date of its service (8 NYCRR 279.5). Petitioner served the notice with petition and verified petition on respondent on October 31, 2002. At the parties' request, the Office of State Review (OSR) granted respondent an extension of its time to answer to December 13, 2002. Respondent did not answer by that time. On December 20, 2002, the OSR advised the parties that respondent's time to answer had expired and that no answer had been received, that the State Review Officer (SRO) would proceed with the review of the appeal, and that the SRO has the discretion to consider the contents of an answer received before the rendering of his decision. With respect to the consideration of a late answer, the OSR also advised the parties that respondent should set forth in its answer the reasons for its failure to submit a timely answer. As of the date of the issuance of this decision, respondent has not answered. However, I am required to examine the entire record with respect to the pending appeal (34 C.F.R. § 300.510[b][i]) and to make an independent decision with respect to an appeal (20 U.S.C. § 1415[g]), notwithstanding the lack of an answer (Arlington Central Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]). I will therefore proceed to do so.
At the commencement of the hearing in February 2002, petitioners' son was 11 years old and a student in a fifth/sixth grade classroom at Gaynor. The Commissioner of Education has not approved this school as one that school districts may contract with to instruct students with disabilities. The student was initially referred for special education services in April 1997 when he was completing the first grade at P.S. 321 in Brooklyn (Transcript pp. 17, 220). He was subsequently classified as learning disabled and received consultant teacher services during the 1997-98 school year when he was in the second grade (Transcript pp. 18, 220). In September 1998 the student entered the third grade at Gaynor for the 1998-99 school year, and he has been a student at that school since that time. During the 2000-01 school year, his educational program at Gaynor included reading remediation, occupational therapy, and speech-language therapy (Exhibit B; Transcript p. 164). The student remains classified as learning disabled and there is no dispute with respect to that classification.
As part of the student's annual review for the 2001-02 school year, respondent's staff observed him at Gaynor, conducted an occupational therapy assessment, a speech-language assessment, an educational evaluation and a psychological report, and prepared an updated social history (Exhibits E, F, G, H, B).
A school psychologist employed by respondent observed petitioners' son in a science class in November 2000. He reported that the student was an active and involved participant in the class. The observer also reported that the student answered questions correctly and read handout material without difficulty (Exhibit E).
Respondent's licensed occupational therapist prepared an assessment of the student in November 2000. She found no difficulties in his gross motor coordination, motor development, fine motor coordination, or sensory skills. The evaluator also indicated that tests of visual motor integration, visual perception, and copying ability showed no difficulties. Based on the results of the assessment, the therapist advised that occupational therapy was not needed (Exhibit F).
A licensed speech-language therapist employed by the district assessed the student in December 2000. Based on results from the administration of the Clinical Evaluation of Language Fundamentals–Third Edition (CELF–3), she concluded that the student exhibited strengths in his ability to interpret, recall, and execute oral commands of increasing length and complexity; to formulate associations between words; to divide sentences that are semantically and syntactically correct; to recall sentences of increasing length; and to complete, process, and retain the content of a read paragraph. The therapist reported that this test also indicated that petitioners' son had a possible difficulty in assembling different syntactic structures into a sentence, which she attributed to observed weak reading skills. She also noted that picture vocabulary testing showed that the student's one-word receptive and one-word expressive vocabulary were above the norm. The therapist found that petitioners' son did not have problems with articulation and concluded that oral communication was easy and effective. Based on the results of her formal and informal assessment, the speech therapist advised that the student not be enrolled in a speech-language therapy program (Exhibit G).
Respondent's educational evaluator administered sections of the Weschler Individual Achievement Test (WIAT) to the student in early January 2001. The student scored within the average range in mathematics reasoning (Standard Score 97/42nd percentile) and in numerical operations (Standard Score 91/27th percentile); within the borderline range in basic reading (Standard Score 76/5th percentile) and spelling (Standard Score 76/5th percentile); and within the deficient range in written expression (Standard Score 69/2nd percentile). With respect to reading, the evaluator indicated that the student improperly substituted letters and sounds when identifying words in isolation and during oral reading, and that a limited number of known sight words and strategies interfered with his ability to understand written text. She also indicated that petitioners' son had difficulty in structural analysis and in combining syllables to form words. The evaluator further reported that petitioners' son did not consistently use context clues and that only once during the evaluation did he correct a miscue by testing a word guess to see if it made sense. With respect to his written language skills, the evaluator indicated that the student's inventive spelling made it difficult to decipher the intended words and that he often did not observe punctuation and spelling rules (Exhibit H).
A different school psychologist administered the Weschler Intelligence Scale for Children–Third Edition (WISC–III) to the student and prepared a psychological report in late January 2001. Administration of that test yielded a full scale IQ score of 112, which placed the student in the high average range of general intellectual functioning. The psychologist reported that the student's verbal IQ score was in the average range and that his performance IQ score was in the high average range but she did not provide scores. The psychologist also reported that there was not a significant discrepancy between the student's verbal and performance IQ scores and as a result concluded that the student expressed his intelligence equally well via both verbal and non-verbal problem solving. The psychologist reported that all of the student's verbal subtest scores fell at or above the norm for his age, with the exception of the test of arithmetic reasoning, a test of word problems given orally, on which the student scored in the low average range. With respect to his performance subtest scores, she reported that all of the scores fell at or above the age norm. The psychologist did not report any of the actual subtest scores. The student's scores on the Bender Visual Motor Gestalt Test were reported to show errors of integration and of distortion of shape, and slightly delayed visual motor perception. She also reported that the student's visual memory was intact, but that he struggled with designs, and that a writing sample revealed some difficulty in the grapho-motor area (Exhibit D).
These reports also indicated that the student was well behaved, cooperative, positive and friendly, that he paid attention, worked hard, was not distractible and that he did not appear to have any management needs or emotional difficulties (Exhibits B, D, E, F, G, H).
Respondent's Committee on Special Education (CSE) for Community School District 3 met on April 16, 2001 to discuss the student and to recommend a program for the 2001-02 school year. CSE members included petitioners, one of the student's teachers at Gaynor, a school psychologist, a school social worker, an education evaluator, an individual who was licensed to teach grades kindergarten through six, and an additional parent member (Exhibit A p. 2; Transcript p. 18). At the meeting, the CSE agreed to continue the student's classification as learning disabled and recommended his placement in a special class with a teacher to student ratio of 12:1 (Transcript pp. 20-22). Based on a written report from the Gaynor teacher (Exhibit I) and discussion with that person during the meeting, the CSE also recommended that petitioners' son receive occupational therapy and speech-language therapy as related services (Exhibit A p. 26; Transcript pp. 20, 35-38, 39, 78, 84). With respect to these services, the CSE recommended individual occupational therapy for thirty minutes, twice a week and speech-language therapy for thirty minutes, twice a week, in a group of three (Exhibit A p. 26). Under cover of a letter dated June 22, 2001, respondent provided petitioners with a copy of the individualized education program (IEP) developed as a result of the April 16, 2001 CSE meeting (Exhibits A, L; Transcript p. 26). The letter also notified petitioners that their son had been assigned to P.S. 51 in respondent's Community School District 3 (Exhibit L; Transcript p. 43).
Petitioners' attorney notified the CSE by letter dated August 20, 2001 that petitioners' son would be attending Gaynor for the 2001-02 school year (Exhibit Q; Transcript pp. 71-73). Consistent with this, by letter dated September 7, 2001, their attorney requested an impartial hearing to determine petitioners' right to reimbursement of the student's tuition at Gaynor during that school year (Exhibit R).
The hearing commenced on February 1, 2002. At the conclusion of that day's testimony, at the parties' request, the hearing officer adjourned the hearing to May 8, 2002 to hear the balance of the testimony. The hearing reconvened on that date and the parties' testimony concluded. In a letter dated May 5, 2002 from respondent's attorney, counsel for the parties requested that the record be reopened. The hearing officer held a conference call with counsel for the parties on June 13, 2002. At that time, the attorney for the respondent requested that the record be reopened with respect to certain matters relating to petitioners' visit to the recommended school program. After discussion, the parties and the hearing officer agreed that it was not necessary to reopen the matter. Upon petitioners' application and with no objection from respondent, the hearing officer determined to issue a decision by August 31, 2002 (Transcript p. 279-80).
The hearing officer rendered his decision on September 25, 2002. In reverse order, he concluded that the parent cooperated with the CSE and that the equities did not preclude a grant of tuition reimbursement, that the student's program at Gaynor was appropriate for his needs and not prohibited by least restrictive environment considerations, and that he saw no reason why the student could not have derived educational benefit from the placement recommended by the CSE. With respect to the student's proposed placement, the hearing officer concluded that respondent had grouped the student appropriately with other children with disabilities. He also concluded that the recommended 12:1 special class provided appropriate instructional opportunities for petitioners' son and that its teacher would have been able to implement the student's IEP. With respect to the IEP itself, the hearing officer concluded that the goals and objectives were appropriate in relevant part and that the evaluative criteria could be understood by those who would implement it. In light of the information provided by, and the recommendations of, the student's teacher from Gaynor, the hearing officer also concluded that respondent properly recommended speech-language therapy and occupational therapy services. The hearing officer did conclude that the CSE may have erred with respect to that part of the student's program that involved the student's learning of a foreign language. However, he concluded that any such error could have been rectified in due course and therefore did not render the IEP inadequate or inappropriate. Based on his conclusion that respondent's program was appropriate for the student, the hearing officer denied petitioners' request for tuition reimbursement.
Petitioners appeal that portion of the hearing officer's decision that determined that respondent had offered the student an appropriate program. Among other things, petitioners argue that the CSE was not properly constituted as it related to the CSE's obligation to include a regular education teacher of the student at its April 16, 2001 meeting, that the student was not suitably grouped for instructional purposes with other students in his proposed class, that respondent did not properly involve petitioners in the IEP development process, and that the IEP did not provide the student with a free appropriate public education (FAPE).
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with an IEP required by the Act (20 U.S.C. § 1401) and it is the IEP that tailors the required FAPE to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 ). 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 (Sch. Comm. of Burlington v. Dep't. of Educ. of Mass, 471 U.S. 359 ). The failure of a parent to select a program with certified teachers and known to be approved by the state in favor of an unapproved option which includes uncertified teachers is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). A denial of FAPE will occur if a procedural violation of the IDEA compromised the development of an appropriate IEP, depriving the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31621158 [S.D.N.Y. 2002]). A denial of FAPE will also occur if the procedural violation of the IDEA seriously infringed on a parent's opportunity to participate in the creation or formulation of the IEP (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist. 948 F.Supp. 1242, 1255 [D. Vt. 1996]. Accord Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 U.S. 950 ). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's 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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
A student's IEP is developed, reviewed, and revised by an IEP team (20 U.S.C. § 1414[d][A], and [A]; 34 C.F.R. §§ 300.340[a], 300.343[c], 300.346), in New York, the CSE (8 NYCRR 200.4[d], and [f]). The IDEA and the applicable federal regulations require that the IEP team, or CSE, include a regular education teacher of the student if the student is or may be participating in the regular education environment (20 U.S.C. § 1414[d][ii]; 34 C.F.R. § 300.344[a]; see also Education Law § 4402[b][a][ii]; 8 NYCRR 200.3[a][ii]). As a member of the CSE, the regular education teacher must participate in the development, review, and revision of the child's IEP to the extent appropriate (20 U.S.C. § 1414[d][C]; 34 C.F.R. § 300.346[d]). This includes assisting in determining appropriate positive behavioral interventions and strategies, supplemental aids and services, and program modifications and supports (20 U.S.C. § 1414[d][C]; 34 C.F.R. § 300.346[d] and ). Consistent with this, in its official interpretation of the regulations, the U.S. Department of Education (DOE) has made it clear that a regular education teacher is required to be a member of the IEP team of a child who is, or may be, participating in the regular education environment, regardless of the extent of the participation in that environment (34 C.F.R. Part 300 Appendix A Question 23). The DOE has also advised that the regular education teacher member must participate in CSE discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the student's involvement and progress in the general curriculum as well as his participation in the regular education environment (34 C.F.R. Part 300 Appendix A Question 24). The DOE has further advised that the regular education teacher member of the IEP team should be a teacher who is or may be responsible for implementing a portion of the IEP so that this team member can participate in discussions about how best to teach the child (34 C.F.R. Part 300 Appendix A Question 26). At the same time, a student's other regular education teachers may not be ignored. Where not all of the child's regular education teachers are members of the IEP team, the DOE strongly encourages the CSE to seek input from those who do not attend (Id.).
In this case, petitioners' son was a student at Gaynor at the time of the April 16, 2001 CSE meeting. At this time, therefore, he was not participating in a regular education environment. However, the purpose of that CSE meeting was to discuss the student's placement for the next school year. This would include whether the student may be participating in the regular education environment during that year. Additionally, the April CSE's recommendation for the student during the 2001-02 school year included that he be mainstreamed in talent class and also in physical education (Transcript pp. 119-121). As a consequence, a regular education teacher of the student was required to be a member of the April 16, 2001 CSE (See Application of a Child with a Disability, Appeal No. 00-056; Application of the Bd. of Educ. of the Monroe Woodbury CSD, Appeal No. 00-048; Application of the Bd. of Educ. of the East Ramapo CSD, Appeal No. 99-038).
The person proffered by respondent as the regular education teacher member of the April 15, 2001 CSE was licensed to teach students grades kindergarten through six. However, there is no evidence that this person would or might have taught student talent or physical education, the regular education courses that the CSE recommended for the student. To the contrary, the person could not have taught the student during the 2001-02 school year, as he was not an active teacher during that year (Transcript pp. 24, 52). With respect to the appropriate regular education teacher required to be a member of the April 16, 2001 CSE, I note also that none of the evaluations completed prior to the CSE meeting with respect to the 2001-02 school year recommended that petitioners' son be placed in any regular education core academic subjects and that petitioners had not requested that the student be considered for enrollment in any such classes.
The absence from the CSE meeting of a regular education teacher who would have or could have been1 the student's regular education teacher was not without harm. That absence deprived the CSE of information regarding appropriate program modifications in the student's regular education talent and gym classes. Consistent with this, that portion of the IEP that addresses how the program in the student's regular education classes will be modified was left blank (Exhibit A p. 24). Both of the student's regular education classes were relatively large. There were approximately 30 students in the talent class and about 40 to 50 students in the physical education class (Transcript pp. 119-20). This made it particularly important for the student's regular education teachers to be aware of his special education related needs. As indicated above, petitioners' son needed assistance in retaining multi-step verbal directions and in understanding written directions, and he had significant needs in decoding, spelling, and written language (Exhibit H, Exhibit I; Transcript pp. 37, 78, 80-83, 88-89, 91, 158, 160-61, 164-67). With respect to his physical education class, the IEP should have indicated the need for the physical education teacher to provide the student with appropriate assistance in following instructions for activities including games and drills, as well as transitions from one activity to another to help ensure the student's participation and progress in that part of his regular education program and environment and provide guidance as to how this might be done. Similar to his academic classes, strategies regarding the latter might have included providing the student with short and direct instructions, cueing by the teacher, non-obvious repetition of directions and other non-obtrusive measures so that the student understood what he needed to do in the class. With respect to the talent class, although its curriculum and focus is unclear, the IEP should have provided information to the student's teacher in that course relative to program modifications which would be appropriate to ensure that the student would be able to successfully participate with his mainstream peers in this regular education class. Given the student's needs, this would address the student's need for modifications to assist in following and understanding directions and in transitioning from one class activity to another, as well as allowing participation in that regular education class notwithstanding his significant decoding, written language, and spelling deficits.
With the above in mind, the absence of the student's regular education teacher at the April 16, 2001 CSE meeting compromised the development of an appropriate IEP for petitioners' son for the 2001-02 school year. This deprived the student of educational benefits and a FAPE for that school year (Arlington Cent. Sch. Dist v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]; Application of the Bd. of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-080).
This is not the first time that respondent's CSE membership has raised the issue of whether it is using persons not actively teaching to attempt to satisfy the statutory requirement that the CSE include a regular education teacher when a student is or may be participating in the regular education environment (See Application of a Child with a Disability, Appeal No. 01-095). Such a practice is not consistent with the IDEA's requirement that the required regular education teacher member of the CSE be a regular education teacher "of the student" (20 U.S.C. § 1414[d][ii]; 34 C.F.R. § 300.344[a]).
Even if the CSE had been properly constituted, as explained below, I would be constrained to find that the student's 2001-02 IEP was deficient and that respondent was therefore not able to meet its burden to show that it had offered to provide petitioners' son with a FAPE for that school year. A CSE's recommendation of an appropriate program is premised on adequate and sufficient evaluative information (Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008). With respect to this, a board of education must assess a student in all areas related to a suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs (8 NYCRR 200.4[b][vii] and [ix]). Further, the evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (8 NYCRR 200.4[b]). A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b]). Importantly, without an appropriate evaluation of a student's special education needs, it is not possible to formulate an IEP to address those needs by providing the individually designed instruction and services necessary for the student to receive educational benefit as required by the IDEA (Monterey Peninsula Unified Sch. Dist. v. Giammanco, 1995 WL 476610 [N.D. Cal. 1995]; Flowers v. Martinez Unified Sch. Dist., 19 IDELR 898 [N.D. Cal. 1993]).
The evaluative information considered by respondent's CSE did not assess the student in all relevant areas, was not sufficiently comprehensive to identify all of his special education needs, and was insufficient to ascertain the physical, mental, behavioral, and emotional factors contributing to the student's disability. As explained below, the CSE needed additional information regarding the nature and extent of the student's disability in order to identify and assess his special education needs and to develop an appropriate IEP to meet those needs in the least restrictive environment (LRE).
The psychological report presented to the CSE by the school psychologist did not include the student's verbal IQ score, his performance IQ score, or the variance between the two. The report contained the student's full scale IQ score and stated that there was no significant discrepancy between the student's verbal and performance IQ scores and that this indicated that he expressed himself equally well in both verbal and non-verbal problem solving. With respect to the student's verbal and performance subtest scores, the report did not include the scores but indicated that they were in the average range and that all but one was at or above age level. The conclusion that the student would do equally well in verbal and non-verbal problem solving, however, is not consistent with other information in the record. Test results on the WIAT, and the information and testimony from his teachers at Gaynor show a significant performance deficit in reading, spelling, and written language, which is not easily reconcilable with the results of the psychological report as presented. The specific information regarding the student's verbal and non-verbal IQ scores and subtest scores may help to explain and/or to better understand the reason(s) for the student's significant difficulty in reading, writing, and written language and discrepant performance when considering his performance in other areas. Such information therefore should have been presented to the CSE for its use in understanding the student's needs and in recommending an appropriate IEP for the student.
The CSE did not adequately evaluate the student's significant reading and written language deficits. The student's WIAT scores documented that petitioners' son functioned in the borderline and deficient intellectual range in these areas. However, the CSE did not have before it any formal and comprehensive diagnostic testing results of the student's component reading or written language abilities. The results of such testing would have provided the CSE with needed and appropriate information to more precisely define the student's specific needs and disaggregated abilities in these two critical need areas, to allow for the creation of documented baseline related goals and objectives tied to these specific needs, and to recommend appropriate and specific teaching strategies targeted to these needs.
Although not an area identified as a weakness by respondent's evaluators who examined the student under one to one conditions, other information, including that from his teacher and speech-language therapist at Gaynor, who had worked with the student on a daily or weekly basis individually and/or with other students, reported that petitioners' son had difficulty following verbal directions, understanding written directions, retrieving words, and that he needed assistance and repetition in this area (Exhibit I; Transcript pp. 37, 78, 80-81, 198). Importantly, none of the evaluations considered the extent to which the student possessed an auditory processing deficit and the extent to which the student's demonstrated areas of need, including reading, which is in part an auditory process, were affected by such a deficit. A central auditory processing evaluation (CAPE) would have provided the CSE with this relevant information. Therefore and in the circumstances here, this was an evaluation that was necessary to complete and review prior to the development of the student's IEP.
In the absence of the above evaluative information with respect to the student's needs, the CSE recommended an IEP for the student without a sufficient basis. As a result, respondent is unable to show that the CSE developed an IEP that was reasonably calculated to enable petitioners' son to receive educational benefits. For this reason also, I find that respondent is not able to meet its burden to show that it offered to provide a FAPE to petitioners' son during the 2001-02 school year. Having made the above determinations, it is not necessary that I further consider petitioners' challenges to the hearing officer's decision (Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 00-075).
Petitioners bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled their son during the 2001-02 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioners must show that Gaynor offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; 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. 02-027; Application of a Child with a Disability, Appeal No. 94-20). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).
The hearing officer concluded that the program Gaynor offered to petitioners' son was appropriate for his special education needs. Pursuant to federal and state regulations, an impartial hearing officer’s decision is final and binding upon the parties unless appealed to the State Review Officer (34 CFR 300.509; 8 NYCRR 200.5[c]). As indicated above, petitioners have only appealed that portion of the decision that found that respondent offered petitioners' son a FAPE. Respondent has not appealed or cross-appealed from the hearing officer's decision and as a result, the parties are bound by that portion of it (Application of a Child with a Disability, Appeal No. 02-073; see also Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ. of the Arlington Central School District, Appeal No. 98-7). Accordingly, I will not review that part of the hearing officer's decision finding that Gaynor offered petitioners' son an appropriate educational program (Application of a Child with a Disability, Appeal No. 02-073).
The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. The hearing officer found that equitable considerations favored petitioners. Again, petitioners did not appeal from this portion of the hearing officer's decision and respondent has neither appealed nor cross-appealed from it. With this in mind, and for the reasons explained above, the hearing officer's decision with respect to equitable considerations is final and binding on the parties and I will not review its finding that petitioners' claim is supported by equitable considerations.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent indicated; and
IT IS FURTHER ORDERED, unless the parties otherwise agree, that this matter is remanded to respondent's CSE to conduct an appropriate evaluation of the student's reading and written language skills, to obtain a central auditory processing evaluation of the student; and to prepare a more specific psychological report; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of their son’s tuition at the Gaynor School for the 2001-02 school year, upon petitioners’ submission of proof of payment for such expenses.
Albany, New York
October 27, 2003
PAUL F. KELLY
1 There may be occasions when the student is not currently in a regular education environment and the CSE meeting takes place prior to the time that the Board of Education knows which particular regular education teacher would be teaching the student in question. In such a case, it may therefore not be possible for the board of education to insure that a regular education teacher who would ultimately be the regular education teacher of the child is in attendance at the CSE meeting. In that circumstance, the regular education teacher at the CSE meeting should be a regular education teacher who will be teaching the relevant subject matter class or grade at the school that the student would be attending (Application of the Bd. of Educ. of the Pine Plains CSD, Appeal No. 02-046; Application of a Child with a Disability, Appeal No. 00-060; 34 C.F.R. Part 300 Appendix A Question 26).