The State Education Department
State Review Officer
Linda A. Geraci, Esq., attorney for petitioners
Shaw & Perelson, LLP, attorneys for respondent, Michael K. Lambert, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision which denied their reimbursement request for the cost of an independent neuropsychological examination, the cost of their son’s tuition at an out-of-state private residential facility and associated transportation and psychiatric treatment expenses for the 2001-02 school year. The appeal must be sustained in part.
Petitioners’ son was 16 years old and in the tenth grade at the Academy at Swift River (ASR) in Cummington, Massachusetts when the impartial hearing commenced in June 2002. ASR is a private residential school that has not been approved by the New York State Education Department to provide educational services to students with a disability. The student’s classification as other health impaired is not in dispute in this appeal.
The student attended respondent’s schools from age five through the beginning of tenth grade with the exception of an eight-month period during first grade when the family lived out of state. The student has received psychiatric treatment since age four. Initially, he was diagnosed as having an adjustment disorder due to the stress of ongoing medical issues including respiratory illnesses, hospitalizations, leg cramps and headaches. When the student was six years old, he was diagnosed as having an attention deficit hyperactivity disorder (ADHD).
Although the student experienced some academic difficulties in the earlier grades, these difficulties became more significant when he was in the sixth grade. In April 1998, petitioners referred their son to respondent’s Committee on Special Education (CSE). Petitioners stated that their son was struggling to maintain his grades with their extensive assistance and tutoring in math, organization and study skills. Based upon a May 1998 administration of the Weschler Individual Achievement Test (WIAT), the school psychologist determined that the student had grade appropriate skills in all areas except for numerical operations and written expression. The CSE recommended that the student not be classified as a student with a disability, and petitioners did not challenge that determination.
The student had seizure episodes in the sixth grade
and has been continued on medication since that time. Throughout
middle school, his social interaction with other students was poor. He
was teased and ostracized. In March 2000, the school psychologist interviewed
the student who was then in eighth grade and determined that he showed
significantly high symptoms of sadness, self dislike, self-criticism, worthlessness
and changes in appetite. The psychologist contacted the student's
psychiatrist who began treating the student for depression. The student
chose not to attend his eighth grade graduation due to his perception that
he had no friends and had been bullied throughout middle school. Based
upon a May 2000 administration of the WIAT, the school psychologist determined
that the student’s basic reading, writing and math skills were in
the average to high average range. She concluded that he did not
qualify for any special services because his skills were commensurate with
his cognitive ability; however, she noted that teacher prompting and clarification
of directions and concepts would help him self-monitor his attention, check
for accuracy and fully comprehend material. However, the student
achieved a level two on both the eighth grade New York State English Language
Arts and Mathematics examinations.
The student attended respondent’s high school for ninth grade during the 2000-2001 school year. Due to his level of performance on the statewide eighth grade assessments, the high school’s child study team determined in February 2001 that he required academic intervention services and was at risk of not meeting the New York State learning standards. In March 2001, petitioners requested that respondent provide accommodations to their son under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794) (Section 504). With their request, petitioners submitted a privately obtained evaluation by a neurologist. The neurologist’s report recommended that the school provide the student with preferential seating, class notes, outlines and other visual aides, extended time for tests, clarification of instructions and the use of a computer. Her report also suggested the school psychologist’s involvement in establishing social contacts for the student at lunch, the student’s participation in a social skills or conflict mediation group and psychiatric consultation. Subsequently, petitioners changed their request for 504 accommodations to a referral to respondent’s committee on special education (CSE).
On May 1, 2001, petitioners met with the CSE. No regular education teacher attended the meeting. The CSE classified the student as other health impaired and recommended a daily period of consultant teacher support focusing on organization and study skills for the 2001-2002 school year. His individualized education program (IEP) also provided for the use of testing modifications including extended time for testing and a special testing location, proctor cueing and revised directions. Annual goals were set in the areas of organization, reading comprehension, written expression, math and attending skills.
Respondent implemented the student’s IEP for the first six weeks of the student’s tenth grade during 2001-2002 school year. A progress report for the period ending October 12, 2001, indicates that the student was failing his math and Spanish courses. At home, the student appeared depressed, and petitioners became aware of his drug use. On October 19, 2001, petitioners arranged to have their son escorted to a wilderness program for children with emotional and behavioral problems in Idaho. Petitioners are not seeking reimbursement for the 21 days their son spent at that program. As the student neared discharge, a social worker at the wilderness program recommended that the student attend a therapeutic boarding school, and the student’s treating psychiatrist agreed that a therapeutic residential placement was necessary. Therefore, petitioners requested a meeting of the CSE.
At the CSE meeting on October 30, 2001, petitioners requested that their son be placed at ASR at the district’s expense. The CSE determined that the student was making satisfactory progress in his academic classes and his minimal behavioral issues were not having an impact on his school performance. It decided that the student’s needs could be met at respondent’s high school with individual counseling twice weekly.
Commencing on November 7, 2001, the student attended a program at ASR that focused on social, emotional and behavioral issues. On January 2, 2002, the student began a tenth grade academic program at ASR. On February 26, 2002, the student started receiving psychiatric care through ASR. The psychiatrist diagnosed the student with an ADHD which was somewhat helped by medication, dysthymic disorder with episodes of suicidal ideation and probably decline into major depression, oppositional defiant disorder, substance use disorder in remission in a controlled environment, and parent-child and sibling conflicts. The psychiatrist adjusted the medications that the student was receiving for the ADHD, seizure disorder and depression.
By letter dated April 26, 2002, petitioners requested an impartial hearing seeking invalidation of respondent’s IEPs for the 2001-2002 school year, reimbursement for tuition and related expenses at ASW and reimbursement for a privately obtained educational evaluation.
The hearing commenced on June 12, 2002, and continued on July 12 and 18, August 13, September 18 and 25, and October 30, 2002. In a decision dated December 26, 2002, the impartial hearing officer found that the CSE which met in October 2001 was properly constituted and developed an IEP which offered the student a free appropriate public education (FAPE). The impartial hearing officer credited petitioners' concern for their son’s educational and emotional needs and accepted their argument that ASR in all likelihood would be beneficial to their son. He found ASR did provide a placement and program reasonably designed to have the student learn and progress; however, he also found that a proper view of the equities did not require respondent to reimburse petitioners for the cost of a residential program which included a five week visit to Costa Rica.
I will first address respondent’s assertion that the appeal is untimely because petitioners did not serve the notice and petition upon respondent within 40 days from their receipt of the hearing officer’s decision as required by 8 NYCRR §279.2(c). The record indicates that within the 40-day period for service of a petition, petitioners personally served a copy of the petition verified only by their attorney upon the district. After being informed by the Office of Counsel of the State Education Department that the petition’s verification must comply with §§ 275.5 and 275.6 of the Commissioner’s regulations, petitioners personally promptly served a properly verified petition upon respondent. Since petitioners corrected their mistake with regard to the petition’s verification within the time allotted by the Office of Counsel, I will exercise my discretion and excuse petitioners’ brief delay.
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 ). 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 ). 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 ). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Bd, of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
A student’s IEP must be prepared at a CSE meeting which each of the CSE’s required members attends, and at which the parents have been afforded the opportunity to participate either in person, or by telephone. Respondent has not demonstrated that its CSE was validly composed on May 1, 2001. Therefore the IEP that was produced at that meeting was a nullity (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Disability, Appeal No. 96-68). An IEP for the 2001-2002 school year was not prepared by a validly composed CSE until October 30, 2001, and respondent provides no excuse for its delay. Under the circumstances, I find that respondent's offer of an appropriate educational program for the student was untimely. Accordingly, I will annul that portion of the hearing officer's decision which found that respondent had met its burden of demonstrating that it had offered the child a FAPE for the 2001-2002 school year. Even though the CSE prepared a second IEP for the 2001-2002 school year on October 30, 2001, I find that the belated IEP failed to sufficiently identify and address the student’s needs. Petitioners, therefore, have satisfied the first of the three criteria for obtaining tuition reimbursement.
Petitioners bear the burden of proof with regard to the appropriateness of the services they selected for the 2001-2002 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 Bd. of Educ., Appeal No. 93-34). In order to meet that burden, a parent must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ; Application of a Child with a Disability, Appeal No. 94-29).
The psychiatrist who had treated the student from ages 4 to 16 testified that a therapeutic residential placement was necessary at the time that the student was placed at ASR. The record contains the testimony of the coordinator of special programs and the headmaster at ASR as well as copies of the student’s individual learning plan, academic reports and psychiatric treatment notes. ASR provided the student with individual attention and modified instruction in small academic classes. The school provided him with books on tape to address his difficulty in grasping details from written materials and an Alphasmart for note taking and mandatory letter writing to accommodate his visuomotor and attention issues. The school’s therapeutic component was designed to assist the student in overcoming emotional and social obstacles to learning in a regular school. The record indicates the student made emotional and academic progress while at ASR. He became more confident, communicative and cooperative. He began making friends, and his grades improved. Thus, I find that the student’s placement at ASR was appropriate and met his individual needs.
The child's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). 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 (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S., 231 F.3d 96). However, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688 [2d Cir. 1989]; Application of the Bd. of Educ. of the Bay Shore Union Free Sch. Dist., Appeal No. 00-080). The student’s treating psychiatrist testified that a therapeutic residential placement was necessary. Although ASR is located in Massachusetts, the record lacks evidence of an appropriate placement nearer to the student’s home. Balancing LRE requirements against the need to provide an appropriate placement, I find that ASR was not unduly restrictive and that petitioners have met their burden of demonstrating the appropriateness of the placement at ASR for the 2001-02 school year.
In order to obtain an award of tuition reimbursement, parents must also show that equitable considerations support their claim for reimbursement (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). The record indicates that petitioners cooperated with the CSE, and that they were actively involved in attempting to get help for their son. Petitioners advised respondent of their intent to enroll their son at ASR promptly and requested an impartial hearing requesting tuition reimbursement during the academic year. Therefore, I find that their claim is supported by equitable considerations. Respondent’s contention that it was unaware of petitioners’ dissatisfaction with the CSE’s recommendation is contradicted by statements contained in the student’s IEP.
I agree with the impartial hearing officer’s determination that petitioners’ claim for reimbursement of the independent evaluation should be denied. The applicable federal regulation provides in pertinent part as follows:
(b) Parent right to evaluation at public expense
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.
(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either-
(i) Initiate a hearing under Sec. 300.507 to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under Sec. 300.507 that the evaluation obtained by the parent did not meet agency criteria.
(3) If the public agency initiates a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent education evaluation, but not at public expense.
(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.
(34 C.F.R. § 300.502[b]; see also 8 NYCRR 200.5[g]).
Here, petitioners obtained an independent evaluation without notifying the district of their disagreement with its educational evaluation of the student. Therefore, petitioners are not entitled to reimbursement for this privately obtained evaluation.
Petitioners also contend that they should be reimbursed for the expense of transporting their son to and from school as well as travel expenses associated with their attendance at mandatory “family resolutions” sessions. The Office of Special Education Programs (OSEP) of the United States Department of Education has opined that the reimbursement of a child's parents for other transportation expenditures not involving transporting the child to and from school must be determined on a case-by-case basis (EHLR 213:164). The OSEP opinion indicated that a parent's trips to and from school which could be considered to be contributing to the achievement of his or her child's IEP annual goals would be included within the Federal definition of the term "related services", i.e., would be part of the free appropriate public education which school districts must provide (see Application of a Child with a Disability, Appeal No. 98-43). In this instance, petitioners offered testimony that ASR required participation in “family resolution” sessions. In addition to an ADHD and dysthymic disorder, the psychiatric evidence establishes the student’s oppositional defiant disorder and notes parent-child and sibling conflicts. Upon the record before me, I find that petitioners were entitled to reimbursement for reasonable expenditures of transporting their son to and from ASR and for their travel, hotel and meals while attending “family resolution” sessions. Although the hearing evidence includes petitioners’ credit card statements for the monthly periods ending November 13, 2001, and April 15, June 13, and September 13, 2002 (Parent Exhibit V), petitioners failed to comply with their own offer to clarify their reimbursement request in the hearing brief (Transcript p.1131). Therefore, the record lacks sufficient information to determine the amount of these expenditures.
Finally, I agree with respondent’s contention that the issue before the impartial hearing officer related only to the 2001-2002 school year. Thus, petitioners are not entitled to relief in this appeal concerning the reimbursement of any expenses beyond June 30, 2002.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is annulled to the extent indicated; and
IT IS FURTHER ORDERED that upon the submission of proof by petitioners to respondent of the amount of the tuition, travel expense and psychiatric fees paid for their son's residential placement at the Academy at Swift River from November 2001 through June 2002, respondent shall reimburse petitioners for such expenditure in accordance with the terms of this decision.
Albany, New York
October 28, 2003
JOSEPH P. FREY