The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE NORTHPORT-EAST NORTHPORT 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
Girvin & Ferlazzo, P.C., attorneys for petitioner, Karen Norlander, Esq., of counsel
Wasserman Steen, LLP, attorneys for respondents, Lewis M. Wasserman, Esq., of counsel
Petitioner, the Board of Education of the Northport-East Northport Union Free School District (district), appeals from an impartial hearing officer's decision awarding tuition reimbursement to respondents for their son's education at Hargrave Military Academy (Hargrave) during the 2000-01, 2001-02, 2002-03 school years. The appeal must be sustained in part.
Respondents' son was initially referred to petitioner's Committee on Special Education (CSE) in April 1999, at the end of his seventh grade year at petitioner's Northport Middle School (Exhibit 20). The student's father was employed at all times relevant herein as petitioner's school physician (Transcript p. 1146). The student had been diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD), and was on medication for the former (Exhibits 20, 11). On standardized tests administered in March 1999 the student achieved a performance level IQ of 102 (Average), a verbal IQ of 110 (High Average), and a full scale IQ of 106 (Average) (Exhibit 22). The school psychiatrist reported that the subset scores did not indicate any areas of weakness, and showed strengths in verbal comprehension and reasoning (Exhibit 22). He also noted that an educational assessment done on the student the same month revealed average to high average levels of achievement (Exhibit 22). However, a social-emotional assessment suggested a pattern of behavior which included disregard for the rules and authority, restlessness and a lack of anger management, both at home and in school, which escalated as the day progressed (id.). The CSE met on September 22, 1999 and developed an individualized education program (IEP) for the student for the 1999-2000 eighth grade school year which classified the student as emotionally disturbed, continued his placement at Northport Middle School in a 5:1 class, and provided special education services consisting of 40 minutes of resource room services five times per week (Exhibit 17). The student's classification is not in dispute.
During the first half of the 1999-2000 school year, the student was the subject of six misconduct reports involving incidents of disruptive oppositional behavior at school and on the bus, where the student was disrespectful to teachers and disruptive in class, often refusing to do his work (see Exhibit 16, Transcript pp. 199, 203-205). His grades had declined in at least two of his core academic subjects (Exhibit 16; see also Exhibit 27). He also exhibited continuing problematic aggressive behavior at home (Transcript pp. 1194-96, 1199, 1205; see Exhibits 5, 11). As a result of these incidents, in February 2000, the CSE met again to discuss alternative placements for the student and to develop a new IEP (Exhibit 15 p. 4). Recognizing a need for a more structured environment, and after noting in the IEP that at the time there were no day treatment programs available for eighth grade students, the CSE continued the student's placement at Northport Middle School, but recommended that he be immediately screened for admission into a program for emotionally disturbed students in an 8:1:1 class operated by the Western Suffolk Board of Cooperative Education Services (BOCES) at Brennan Middle School (Exhibit 15; Transcript p. 207). The Brennan Middle School program was a regular education program designed for students with normal academic ability, but whose learning abilities were impaired due to emotional or psychiatric disturbances (see Transcript pp. 578-79, 551, 565, 612). It used the services of a consulting psychiatrist to provide counseling for students when necessary (Transcript pp. 594-95). It included a behavior modification plan whereby the student was awarded points for good behavior throughout the day, which could be used for special privileges (Transcript pp. 565-66). The CSE also directed that a functional behavioral assessment (FBA) be done (Exhibit 15 p. 4), which was completed February 24, 2000 (see Exhibit 14).
The student was enrolled in the Brennan Middle School program on April 5, 2000, where he finished out his eighth grade year (Exhibit 12; Transcript p. 550). He was suspended once during his three months at Brennan Middle School for disruptive and threatening behavior on the school bus (Exhibit 13). His final grades at Brennan Middle School in his core academic subjects were: English 96, math 92, science 97, and social studies 90 (Exhibit 12). His teacher and the principal reported that he responded well academically and behaviorally to the Middle School program (Transcript pp. 1506-1507, 578, 589-590), and that his behavioral problems only arose in situations outside of the structured behavior modification program of the classroom (Transcript pp. 1507-1511, 595; Exhibit 26). However, the student's psychiatrist reported on May 28, 2000 that the student "continued to have periods of behavioral dyscontrol especially at home where he had been extremely oppositional and at times physically aggressive" (Exhibit 11 p. 1). He recommended a therapeutic day treatment program for the student for the 2000-01 school year and, if that failed, a residential program (Exhibit 11). Brennan Middle School's principal also recommended the student be placed in a therapeutic day treatment school setting for the next school year (Transcript p. 589).
On June 30, 2000, the CSE convened for its annual review to develop the student's placement and program for the 2000-01 school year (Exhibit 9). Due to the student's special social and management needs, the CSE determined that respondents' son required a more structured learning environment with a behavioral intervention plan (BIP) (Exhibit 9 p. 4) that would address both his academic and therapeutic needs (Transcript p. 130). The CSE developed an IEP that recommended respondents' son be placed for ninth grade in a 12-month 8:1+1 self-contained class at the Brennan High School Day Treatment Program (Brennan High School) for emotionally disturbed students operated by the Western Suffolk BOCES (Exhibit 9). The Brennan High School program was a hybrid program whereby Brennan High School provided an academic program consisting of special education classes that followed a general NYS regents curriculum with some modifications (Transcript pp. 1462, 1522; see also Exhibit 28), and the Sagamore Children's Hospital provided a medical staff on site at the school to meet the student's emotional and psychiatric needs during the day (Transcript pp. 595, 128; Exhibits 34, 25 p. 9). Teachers at Brennan High School, like Brennan Middle School, used a behavioral modification program that rewarded compliant behavior and enforced consequences for misbehavior by rating behaviors and awarding points for each student every 15 minutes during the day (Transcript pp. 1519, 585; see Exhibits 34, 25 pp. 11-25).1
Respondents enrolled their son in Brennan High School on September 3, 2000 (Transcript p. 1242). Very soon after, respondents became concerned that their son was not academically benefiting from the program at Brennan High School, and believed that their son had been physically threatened by other students (Transcript pp. 1241, 1133-34). On September 19, 2000, respondents met with the staff at Brennan High School to voice their concerns (Transcript pp. 1138-39). The student's father testified that the school's psychiatrist and one of the student's teachers both informed respondents that their son needed a more structured environment, and agreed that a military school setting would fit that paradigm (Transcript pp. 1141-42, 1144-45, 1436-39, 1444-46). The student's father telephoned petitioner's Executive Director of Pupil Services (Director)2 that evening to inform him of their conversations with the staff and their intention to look into finding a military school in which to enroll their son (Transcript pp. 1145-48, 1210, 1545-1548, 1566). The Director admitted he received a call from the student's father expressing concerns about the student's placement at Brennan High School (Transcript p. 129), and about the conversations the parents had with the staff about the possibility of military school (Transcript p. 1566), and the Director agreed to meet with the same personnel at Brennan High School to discuss the situation (Transcript pp. 1547-48, 1552). The Director denied that the father informed him in this phone call of his intention to withdraw his son from Brennan High School and seek tuition reimbursement (Transcript pp. 116-17, 1563-64); however, the Director did admit that he had had several conversations with the student's father during the preceding year and while the student was enrolled at Brennan High School about the general possibility of the district reimbursing respondents for a private school residential placement for their son (Transcript pp. 118, 120, see 1192). On October 13, 2000 respondents unilaterally removed their son from Brennan High School (Exhibit 7 p. 3; Transcript p. 1127). A subsequent report card from the Brennan High School Day Treatment program showed that, before removal, the student's grades in his core academic subjects were: English 95, math 90, science 93, and social studies 86 (Exhibit 7).
On October 17, 2000 respondents placed their son in Hargrave Military Academy (Hargrave) (Exhibit 3 p. 6; Transcript p. 867), an out-of-state school which has not been approved by the State Education Department as a private school with which school districts may contract to educate children with disabilities. Hargrave is a residential school which uses a military model to provide a structured learning environment both in its residential and academic program (Exhibits D, E, F; Transcript p. 797). It is a fully accredited high school geared towards college preparation, with advanced courses available (Exhibit D; Transcript pp. 805-06). It adopts and incorporates Christian values as part of its program, although it accepts students from all denominations (Exhibits D, G Transcript pp. 834-35, 1064-65). Although the school includes some disabled students (estimated at 20 percent of the student body) (Transcript pp. 839-40, 929), Hargrave does not provide any special education or related services to its students (Exhibits 3, D; see Transcript pp. 840, 899). Hargrave has an honor code (Exhibit E) and detailed rules and regulations on appropriate behavior (Exhibit F) for both in class and out of class that, if broken, result in demerits and immediate consequences; if adhered to, result in privileges, promotions, and rewards (Transcript pp. 808, 810-20, 823-24, 869-72, 976). The school has an academic department and a military department; the military department is responsible for the residential life program and the discipline program at the school (Transcript p. 804). A "training and control" officer (TAC) is assigned to each barracks for mentorship and supervision of the students (Transcript p. 807). Every part of the student's day is monitored and structured from reveille at 6:00 am until lights out at 10:00 pm (Exhibit 35 p. 9; see Transcript p. 804).
On October 16, 2000, the student's father informed petitioner's Director that he had enrolled the student at Hargrave and inquired about how to obtain some form of tuition reimbursement (Transcript pp. 1161, 1190-91, 1217). The Director informed him that the school would obtain outside counsel to look into the possibility of tuition reimbursement (Transcript pp. 1162, 336-37), and that he would do everything he could to help respondents (Transcript pp. 1218, 134-35). Several times during the 2000-01 school year, respondents met with petitioner outside counsel and contacted petitioner's Director to inquire about the status of their request for tuition reimbursement and were consistently told that petitioner's attorneys were still investigating the matter (Transcript pp. 1162-1171, see pp. 336, 1554-55). Since the student's father was also petitioner's school physician, he expressed a desire to keep things nonadversarial and cooperative (Transcript p. 1166). After several months with no answer, in March or April 2001 respondents contacted petitioner's superintendent, who told them he would get back to them (Transcript p. 1166). Several weeks later, the superintendent informed respondents that since Hargrave appeared to be a religious school, the district had concluded it was prohibited from paying tuition (Transcript pp. 1166-1170; see Exhibit 35). Respondents sent the Director a letter dated May 30, 2001, asking for a CSE meeting on their son's placement for the upcoming year, and reminding the Director of their conversation with him in September 2000, when they claimed they informed him of their intent to withdraw their son from Brennan High School and requested tuition reimbursement for the 2000-01 school year at Hargrave (Exhibit 2 p. 6).
On August 15, 2001 the CSE met for its annual review of the student to develop a new IEP for the 2001-02 school year (Exhibit 1). In the IEP the CSE continued to classify the student as emotionally disturbed and recommended placement for the student in the tenth grade in the same 8:1+1 self-contained class in the Brennan High School Day Treatment program (Exhibit 1), the only difference in the placement being that he was recommended for a ten-month program instead of a 12-month program. At the meeting, respondents informed the CSE they rejected the proposed placement (Exhibit 1), and by letter from their attorney dated September 14, 2001, respondents informed petitioner that they were requesting an impartial hearing for tuition reimbursement for both the 2000-01 and the 2001-02 school years (IHO Exhibit 1).
The hearing began on January 24, 2002,3 at which time the student was 16 years old and attending tenth grade at Hargrave (Transcript pp. 23, 52). On the second day of the hearing, April 11, 2002, in a settlement endeavor, the parties entered into a stipulation of settlement on the record (Transcript pp. 149-186), which they agreed would become final and binding subject to petitioner obtaining approval from its Board of Education within 30 days (Transcript pp. 158, 159). A few weeks later, petitioner's attorney notified respondents that the Board of Education had agreed to the stipulation, but only if it was modified to include the additional term that in the event a pending United States Supreme Court decision found that public funds could not be used to support a student's tuition at a pervasively sectarian school, that respondents would withdraw their case against the district (Petition, Exhibit C).4 Respondents refused to agree to the additional condition, withdrew from negotiations, and indicated that they intended to resume the hearing (Petition, Exhibit E). The parties agreed to submit to the hearing officer the issue of whether or not the settlement agreement was enforceable (see IHO Interim Decision, p. 2). On June 28, 2002 the hearing officer rendered an interim decision finding that the settlement agreement was not binding upon the parties (see IHO Interim Decision).
The hearing resumed on July 11, 2002. During the course of the hearing, the CSE met on August 28, 2002 and developed an IEP for the student for the 2002-03 school year, placing him in the 11th grade in the same 8:1+1 self-contained class in Brennan High School, but this time in the Non-Day Treatment Program, and it returned him to the 12-month extended school year (Exhibit 30; Transcript pp. 1347-48). The IEP also for the first time specified that the student be given two 30-minute sessions of individual counseling per week as a related service (Exhibit 30 p. 2). On September 12, 2002, respondents rejected the 2002-03 IEP, continued to enroll their son at Hargrave for the 2002-03 school year, and requested tuition reimbursement and an impartial hearing for that year as well (IHO Exhibit 2). Both parties agreed to allow the current hearing officer to assume jurisdiction over the claim for the 2002-03 school year (Transcript p. 781; Petition, ¶ 57; Answer ¶ 50).
After ten days of testimony from 12 different witnesses spread out over the course of 14 months, which resulted in a record consisting of almost 1600 pages of transcript and 50 exhibits covering three separate school years, the hearing finally concluded on March 19, 2003. Two months later, on May 22, 2003, the hearing officer rendered a 47-page decision awarding tuition reimbursement to the parents for all three school years in question. Petitioner appealed the decision, and both petitioner and respondents' attorneys submitted lengthy legal memoranda,5 together with supplemental affidavits with additional attachments, affidavits and exhibits, which they requested the State Review Officer to consider in addition to the already expansive record. After fully reviewing the record, and exhaustively reviewing the parties' briefs and supporting documents, I find that the following arguments have been raised.
Petitioner contends that the hearing officer erred in that (1) the interim decision should be annulled and the settlement agreement enforced, (2) respondents' claim for the 2000-01 school year should be barred by laches, (3) any award of tuition reimbursement for the 2000-01 school year should be reduced or denied because respondents failed to give the district ten days notice of their intent to seek tuition reimbursement before withdrawing their son from school, (4) any failure to include required members at the CSE meetings did not result in a denial of a free appropriate public education (FAPE), (5) respondents failed to show that Hargrave was an appropriate placement for their son, (6) Hargrave is not the least restrictive environment (LRE) for respondents' son, (7) the district offered respondents' son a FAPE in that its' recommended program each year was substantively appropriate and met the student's needs, (8) equities do not support an award of tuition reimbursement in this instance, (9) under the Blaine Amendment, petitioner is constitutionally barred from reimbursing respondents for tuition costs because Hargrave is a sectarian institution.
Respondents argue that the hearing officer's decision should be upheld in its entirety, and, as an affirmative defense, that the petition should be dismissed because it was not properly verified in accordance with 8 NYCRR 275.5, in that there is no evidence that the Board of Education adopted a resolution authorizing the appeal. In her reply papers, petitioner's attorney asks that I accept an affidavit of the district clerk with Exhibits A-C annexed, which include minutes of the Board of Education's meeting on July 2, 2003, and the Board's resolution authorizing this appeal. The State Review Officer may consider additional evidence not available at the hearing if such evidence is necessary to enable him or her to render a decision (Application of a Child with a Disability, Appeal No. 02-098). Since these documents are directly relevant to the issue raised by respondents' affirmative defense, I will accept them. After carefully reviewing the documents, I find that the petition has been properly verified by resolution of the school board (see McCulloch Affidavit, Exhibit C, ¶ 8.2).
Petitioner first contends that the hearing officer erred in his interim decision, and asks that I find the stipulation of settlement placed on the record on April 11, 2002 to be binding upon both parties. Initially it should be noted that during the colloquy on the record, petitioner's attorney made it quite clear several times that "this is still a proposal" and that it was "not an agreement yet" until the Board of Education approved it (Transcript p. 166). I agree with the hearing officer that petitioner's attorney's subsequent letter to respondents wherein she states, "the Board has authorized me to enter into the agreement with one condition not previously agreed to on the record" (Petition, Exhibit C), effectively acted as a refusal and counteroffer to the settlement proposal on the record. "It is a fundamental principal of contract law that a valid acceptance must comply with the terms of the offer . . . and, if qualified with conditions it is equivalent to a rejection and counteroffer" (Robison v. Sweeney, 301 A.D.2d 815, 817 [3d Dept. 2003] [internal citations omitted]; see Wittwer v. Hurwitz, 216 NY 259, 264). When respondents, through their attorney, rejected the counteroffer (Petition, Exhibit E), it was obvious that there was no offer and acceptance of agreed upon terms; hence I agree with the hearing officer that the stipulation of settlement offer contained in the record is not binding upon either party. 6
Petitioner next contends that respondents' claims for the 2000-01 school year are barred by laches. Laches is an affirmative defense that applies equitable principles to determine whether or not there has been an unreasonable delay in bringing a cause of action which has resulted in prejudice to the defendant (Conopco Inc. v. Campbell Soup Co., 95 F.3d 149, 192 [2d Cir. 1996]). When a federal right is involved and there is no specific statute of limitations provided, the Supreme Court has instructed that federal courts look to the state's most analogous statute of limitations; however, if the state statute would be at odds with the federal purpose of the Act, courts are directed to apply the most analogous federal statute of limitations; and if no state or federal statute passes muster, courts may apply the doctrine of laches (DelCostello v. Int'l Bhd. Of Teamsters, 462 U.S. 151, 152 ). Laches may still be raised where a most analogous state statute has been determined; however, in such instances there is a presumption that laches is inapplicable if the claim is brought prior to the running of the statute, and the burden is on the party raising the laches defense to prove that circumstances exist which require its application (Conopco, 95 F.3d at 191).
The Individuals with Disabilities Education Act (IDEA) contains no statute of limitations of its own for requesting a due process hearing. In such instances, some federal circuit courts have on occasion relied solely on the doctrine of laches (see S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 274 [3d Cir. 2003], citing to Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 157-60 [3d Cir. 1994]), but more commonly, circuit courts have applied the most analogous state statute of limitations analysis (see e.g., S.V. v. Sherwood Sch. Dist., 254 F.3d 877, 880 [9th Cir. 2001]; James v. Upper Arlington City Sch. Dist., 238 F.3d 764, 769 [6th Cir. 2000]; Strawn v. Missouri State Bd. of Educ., 210 F.3d 954, 957 [8th Cir. 2000]; Mannning v. Fairfax Co. Sch. Bd., 176 F.3d 235, 238 [4th Cir. 1999]; Murphy v. Timberlane Reg. Sch. Dist., 22 F.3d 1186, 1192 [1st Cir. 1993], cert denied, 513 U.S. 987 ). The Second Circuit recently joined these latter circuits and directed states to apply their most analogous state statute of limitations to IDEA due process requests (M.D. v. Southington Bd. of Educ., 334 F.3d 217 [2d Cir. 2003]). In New York State, the State Review Officer has determined the most analogous statute to be the one-year statute of limitations for human rights complaints embodied in N.Y. Exec. Law § 297 (Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-119). The federal rules of accrual apply; hence the statute of limitations in IDEA actions begins to run when the petitioner knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 223 F.3d at 221).
Applying this rule to the instant case, it is clear that respondents knew or had reason to know of their injury on October 13, 2000, the day they unilaterally removed their son from petitioner's school system because they believed that petitioner was not providing their son with an appropriate education (see Southington, 223 F.3d at 221). Thus, respondents' first written request for an impartial hearing by letter dated September 14, 2001, was within the one-year statute of limitations period. Accordingly, I find that laches is presumptively inapplicable in the instant case and the burden is on petitioner to show why it should be applied (Conopco, 95 F.3d 191-193). Consistent with the equitable nature of laches, courts typically decline to apply the doctrine when the party against whom it would be applied can show good cause as to why it should not be applied (id., at 191). In the instant case, petitioner has not met its burden of demonstrating that circumstances exist which require application of the doctrine of laches. Petitioner cannot prove that it has been prejudiced by respondents' failure to request a hearing earlier, i.e., during the disputed school year, given that negotiations between the two parties were ongoing for the majority of the time period (from October 2000 until at least May 2001), petitioner shared large responsibility for that delay,7 and petitioner was on notice of respondents' intention to seek help with tuition payments at least as early as October 2000 when the Director admitted that respondents asked for his assistance in obtaining reimbursement (Transcript pp. 336-37) (see Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 97-79). Therefore, I find respondents' request for an impartial hearing on the 2000-01 school year is timely within the statute of limitations and that the laches defense is inapplicable.
I now turn to petitioner's challenge to the hearing officer's award of tuition reimbursement for the three years in question. The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401), developed by a school district, which is tailored to meet the student's unique needs. A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ).
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). In order to meet its burden, the board must show that (a) it complied with the procedural requirements of the IDEA, and (b) 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; M.S., 231 F.3d at 102). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied, 533 U.S. 950 ; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; W.A. v. Pascarella, 153 F.Supp.2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]; Evans v. Bd. of Educ. of Rhinebeck Cent.Sch. Dist., 930 F.Supp. 83, 93 [S.D.N.Y. 1996]; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130). The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
Applying this analysis to the first year, I agree with the hearing officer that the program developed by petitioner's CSE for the 2000-01 school year was both procedurally and substantively flawed.
Procedurally, federal and state regulations require that the IEP team be composed of certain mandatory members. The 2000-01 IEP indicates that only three members were present at the meeting: the chairperson, the additional parent member, and the school psychologist (Exhibit 9). The parent later admitted in testimony he was also present (Transcript p. 1125). The IDEA and state and federal regulations provide that the CSE must consist of "at least one regular education teacher of such child if the child is, or may be, participating in the regular education environment" (20 U.S.C. § 1414[d][B][ii]; see, 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][ii]). In its official interpretation of the regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP" (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). In the instant case, although the 2000-01 IEP states that the student will be included in mainstream courses "as deemed appropriate by the learning support team," (Exhibit 9 p. 3), the IEP indicated that no regular education teacher was present at the meeting (id.). Likewise, the regulations also require that the district ensure that the IEP team includes at least one special education teacher of the child (34 C.F.R. § 300.344[a]). The 2000-01 IEP indicates that no special education teacher attended the IEP meeting (Exhibit 9 p. 3), which is particularly disturbing since the CSE recommended that the student be placed in a self-contained special education program. Lastly, the regulations also require that if the district is recommending placement in a school operated by an agency or school in another school district, that the district "must ensure that a representative of that agency or school attends" the CSE meeting (8 NYCRR 200.4[d][i][a]; 34 C.F.R. § 300.349[a]). In the 2000-01 IEP the CSE recommended that the student be placed in a BOCES program operated by another school district (Exhibit 9); however, the IEP indicates that no representative of Brennan High School attended the meeting or was invited to attend (Exhibit 9; Transcript p. 433).8
The absence of one required member of an IEP team has, in certain circumstances, been found to be a procedural violation which rises to the level of a denial of FAPE (see, e.g., Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability. Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-096; Application of a Child with a Disability, Appeal No. 01-083). I find petitioner's argument that the lack of three out of seven mandatory members of this IEP team amounted to only "harmless error" to be very unpersuasive. The initial procedural inquiry is no mere formality (Walczak, 142 F.3d at 129). The procedural provisions "lie at the heart" of the IDEA (Evans, 930 F. Supp. at 93). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). In the present case, the three members missing from the IEP team were extremely important members whose input would have been crucial in devising an appropriate program for the student, and for setting appropriate goals and objectives for him. I therefore find that the lack of a regular education teacher, a special education teacher, and a representative from the proposed school constituted flagrant procedural violations that amounted to a loss of educational opportunity and/or benefit to the student, which resulted in a denial of FAPE.
The 2000-01 IEP contains numerous other procedural flaws that affected the substance of the program. For example, the regulations require that an IEP must state the frequency, location and duration of any related services on the IEP (8 NYCRR 200.4[d][xi]). Although the student is classified as emotionally disturbed, and the IEP has some counseling goals and objectives, the only counseling services listed are those in his transitional plan for "guidance/career counseling,"---counseling is not specified as a related service and no frequency, location or duration is specified (Exhibit 9 p. 5). When recommending a day treatment program, the CSE is required to obtain an individual evaluation of the student by the treatment team at the facility containing suggestions on the type, frequency, and duration of services, and the CSE is required to use that evaluation in the development of the IEP (8 NYCRR 200.14[c] and [d]). The record contains no evidence that Sagamore Children's Hospital prepared such an individual evaluation on respondents' son or that the CSE obtained any input from Sagamore Children's Hospital. In developing an IEP for a student, the regulations also specify that where behavior is a problem, the CSE must consider results of any evaluations concerning the student's behavior (8 NYCRR 200.4[d]). The record indicates that the CSE had ordered an FBA be conducted, which was completed in February 2000 (Exhibit 13), but nowhere does the IEP indicate that the CSE reviewed or considered that assessment. In addition, when a student's behavior impedes his learning or that of others the CSE must consider "strategies, including positive behavioral interventions and supports to address that behavior" (8 NYCRR 200.4[d][i]). Although the IEP notes that the student "requires a behavior intervention plan" (BIP) (Exhibit 9 p. 4), no BIP is included in or attached to the IEP, and I note that the student's special education teacher at Brennan High School testified that she never received a BIP for the student prior to the start of the school year (Transcript p. 1487). The IEP also states that the student "requires intensive environmental modifications in order to benefit from instruction" and "needs to develop a management system to meet academic responsibilities" (Exhibit 9 p. 4); however, the IEP fails to specify any environmental modifications or how the student will develop a "management system" at school.
Petitioner's explanation for failing to include a BIP or specify time and duration of counseling services, environmental modifications or management plans, is that it was the responsibility of BOCES and Sagamore Children's Hospital to develop the specific behavioral plan and/or services for the student after he started school (Transcript pp. 420-21, 527-28). It is well settled, however, that "each CSE has the responsibility to ascertain a pupil's needs and to recommend the necessary services to address those needs, and may not delegate to others the task of determining the amount or nature of those services" to a BOCES or anyone else (Application of a Child with a Handicapping Condition, Appeal No. 91-25; see Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Handicapping Condition, Appeal No. 90-12). Moreover, the regulations specifically direct that a school district must have an IEP in place at the beginning of the school year (34 C.F.R. § 300.342[a]), and that the IEP must be in effect before special education and related services are provided (34 C.F.R. § 300.342[b][i]).9
There are also numerous inadequacies in the 2000-01 IEP that the CSE devised that impact adversely on the student's substantive program. 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. 01-105). In the instant case, I find the 2000-01 IEP to be vague and sometimes contradictory to the student's stated needs. For example, the IEP states that the student will be attending mainstream courses "as deemed appropriate by the Learning Support Team" (Exhibit 9 p. 2), yet the IEP is recommending the student be placed in a wholly self-contained school, where the principal of the school testified there is no mainstreaming available (Transcript pp. 732-34, see also 409). I find many of the goals and objectives to be likewise vague. An IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student's needs arising from his or her disability (34 C.F.R. § 300.347). Goals must be specific in order to provide sufficient guidance to a student's teachers and parents with respect to the CSE's expectations for the student's performance (Application of a Child with a Disability, Appeal No. 98-14), and they must be measurable (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][iii]). An IEP is inadequate where the goals and objectives lack specificity (Application of a Child with a Disability, Appeal No. 00-058). In the instant case, the student's IEP states that the student "has mastered math and language arts in all academic areas" (Exhibit 9 p. 2), yet the IEP includes goals and objectives in those subjects (Exhibit 9 pp. 4-5). The 2000-01 IEP also contains vague goals and objectives for "skills," such as the student "will comply readily to reasonable teacher requests" and the student "will demonstrate the development of appropriate social skills" (Exhibit 9 p. 6), but it does not explain how the student will achieve this. The district's social worker admitted that in the student's weakest area, behavior, the counseling goals were in "skeletal form," and it was left for the staff at Brennan's Day Treatment program to flesh them out afterwards (Transcript p. 420). For all of these reasons, I find that the resultant 2000-01 IEP was not reasonably calculated to ensure educational benefits to the student, and the district has failed to meet its burden of showing that it offered the student a FAPE for the 2000-01 school year.
After a district has failed to provide a FAPE, in order to prevail on a claim for tuition reimbursement the parents bear the burden of proof with regard to the appropriateness of the services provided to their child by the private school (M.S., 231 F.3d 96, 104). In order to meet that burden, they must show the "private educational services" they obtained were appropriate to meet their child's needs (Burlington, 471 U.S. at 370; accord, Carter, 510 U.S. at 12-14), and were likely to produce progress, not regression (see Walczak, 142 F.3d at 129-130). To determine the appropriateness of the parental placement, courts typically apply the Rowley standard, that is, whether the private placement is reasonably calculated to enable the child to receive educational benefit (Rowley, 458 U.S. at 207; see Carter 950 F.2d at 163; accord, Briere v. Fair Haven Grade Sch. Dist., 948 F.Supp. 1242, 1257 [D. Vt. 1996]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 02-080). Neither the statutes, nor the decisions construing them hold, or even suggest that a school must have a program formally designated a "special education" program in order to constitute a proper placement for a student with special needs (Mathew J. v. Mass. Dept. of Educ., 989 F.Supp. 380, 390 [D. Mass. 1998]; see, e.g., Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-018; Application of a Child with a Disability, Appeal No. 98-17).
In the present case, the student's special education needs were less academic than behavioral (Transcript pp. 487, 1020). His needs were that he had difficulty remaining on task at school and completing homework, had poor social skills, and was disrespectful to teachers and disruptive in class (Transcript p. 1379; Exhibits 9, 14, 16). He had problems with authority figures and anger management (Exhibit 14). The CSE, the child's psychiatrist, Brennan High School's psychiatrist, and the parents all agreed that the student required supervision in a highly structured educational environment with behavioral strategies in order to receive educational benefit (Exhibits 9, 11; Transcript pp. 1029, 1446, 1241). Where the student's disabilities are largely behavioral in nature, a unilateral placement has been found to be appropriate if it addresses the student's behavioral disabilities and allows him or her to progress academically (Application of a Child with a Disability, Appeal No. 98-17 [unilateral placement appropriate where structured environment improved behavior and educational performance was at or above grade level]; see Application of a Child with a Disability, Appeal No. 97-2; Chester County Intermediate Unit # 24, 102 LRP 10309 [Penn. SEA, 2001] [finding unilateral placement at military school appropriate to meet needs of student's emotional disturbance where student achieved good grades and behavior improved]; compare Application of a Child with a Disability, Appeal No. 96-89 [unilateral placement at military school found not appropriate where student's learning disabilities in reading and writing were not addressed, the student's grades were barely passing and inconsistent with his cognitive abilities, and his social problems worsened]).
There is no question that Hargrave provided a highly structured environment (Exhibits E, F). I also find that Hargrave's disciplinary program was in essence a very precise behavioral modification plan. Their detailed code of rules and regulations included, among other things, a specific way to address teachers and other students, required hall passes during classes, required students to remain seated in silence during study hall, prohibited gambling, use of profanity, smoking, gum chewing, lying, cheating, and stealing (Exhibits E, F). Students were given demerits for violations such as not completing homework, and "tours" or assigned marches for inappropriate behavior, and rewarded with a system of promotions and privileges for appropriate behavior. As the student's psychiatrist recognized, "what [Hargrave has] is a very sophisticated behavioral program" (Transcript p. 1036). Although not a conventional "therapeutic" environment, the school had a licensed Director of Counseling, a social worker, and a counseling staff, as well as intervention programs, in addition to assigning the student a TAC as an advisor responsible for monitoring all aspects of the student's behavior (Transcript pp. 827-28). The student's psychiatrist noted that, although the student's TAC is not a licensed therapist, "in some ways, what [the student] is doing with his advisor is far more therapeutic" (Transcript p. 214). The student's psychiatrist evaluated the student after his first year at Hargrave and found Hargrave's regimented behavioral program to be appropriate for the student's educational needs (Transcript pp. 965-66, 981; Exhibit 5). He found that the student had begun to follow the rules and functioned well academically and behaviorally (Exhibit 5). He noted that for the first time, teachers described the student as "delightful to teach" and "motivated, interested and involved." (Exhibit 5). As a result of Hargrave's program, not only did the student's final grades for the 2000-01 school year remain in the B to B+ range (86-92) (Exhibit A-1), but his teachers, TAC officer, Hargrave's academic dean, and the student's psychiatrist all concurred that the student's behavior at school and his social interactions with peers and authority figures had improved greatly in the first year (Transcript pp. 1081-1086, 847, 850, 899-900, 975, 1109; Exhibit 5). The academic dean at Hargrave testified that the student did not have a problem with discipline at Hargrave (Transcript p. 846), and found his infraction record (Exhibit I) to be well within the normal range (Transcript pp. 895-96). His TAC officer testified that the student learned how to contain his oppositional behavior and had become a role model for other cadets (Transcript pp. 1115, 1084). A triennial psychological evaluation done by the district in July 2001 revealed that the student's full scale IQ had improved from 106 (Average) to 112 (High Average) after his first year at Hargrave (Exhibit 32). Hargrave also met the student's needs by providing small class sizes (11:1) and by breaking school projects down into individual components (Transcript p. 823). In addition, by offering a college preparation curriculum, I find that Hargrave not only met the student's behavioral needs, but also his intellectual needs with courses that were commensurate with his cognitive abilities. At the end of the school year, the district's psychiatrist reported that the student felt he had had a very productive year at Hargrave, earning good grades and two promotions (Exhibit 32). Based on the record before me, I find that there is sufficient evidence to conclude that Hargrave's small class size, its detailed behavioral code on proper classroom behavior with strict enforcement, and the daily mentoring/supervision/counseling services performed by the student's TAC were appropriate in this case for meeting the student's special education needs
I also concur with the hearing officer in his determination that Hargrave meets the requirements of the least restrictive environment (LRE) for the student. In considering whether or not Hargrave is the LRE for the student, I note that 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 at 105). The LRE requirement must however be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 668, 692 [2d Cir. 1989]). The LRE provisions mandate that disabled students be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]). In the instant case, although the student was enrolled as a "residential" student because his parents lived out of state, the school itself, unlike the school recommended by the district, was fully mainstreamed. Thus, the student was able to interact with nondisabled peers in all of his classes, comporting with the congressional preference for mainstreaming that is the purpose behind the LRE provisions (see Rowley, 458 U.S at 181, n.4). In sum, I find that respondents have met their burden of proof in demonstrating that Hargrave was an appropriate placement for their son for the 2000-01 school year, in that it allowed him to interact with nondisabled peers, provided an intellectually appropriate curriculum to meet his cognitive abilities, while also utilizing a behavioral modification approach that met the student's emotional and behavioral needs.
The final consideration in an award of tuition reimbursement is if equitable considerations support the award. Initially, I note that I find that the parents fully cooperated with the CSE in making their son available to the CSE for evaluations, in investigating the district's proposed placement, in enrolling their son in the proposed public placement, and in communicating their concerns to the Director of Pupil Services. Petitioner raises the specific issue that tuition should be denied or reduced because respondents failed to give prior written notice of their intention to withdraw their son from petitioner's school in accordance with 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb) and 34 C.F.R. § 300.403(d)(1)(ii). The IDEA (and corresponding regulation) specifies that
The cost of reimbursement …may be reduced or denied if…
(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense, or
(bb) 10 business days [including any holidays that occur on a business day] prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division [aa].
Although respondents withdrew their son on October 13, 2000 and did not send petitioner written notice of their intent to seek tuition reimbursement until May 30, 2001, as noted previously, the record reveals that respondents telephoned petitioner's Director as early as September 19, 2000 to orally inform him of their dissatisfaction with the public placement, their intention to begin seeking a military school placement and their inquiry about reimbursement.10 I first note that the provision in question is wholly discretionary, not mandatory. Further, the purpose of the regulation is to give the CSE an opportunity to reconsider its recommendation and to correct any alleged deficiencies in the IEP (Application of a Child with a Disability, Appeal No. 01-054). Under the circumstances of this case, where the parent, as the school physician, had a unique informal personal and professional relationship with the school district personnel, and he gave the district oral notice of his intentions 22 days before removal of his son during which time the CSE still took no action to address the situation--- given the discretionary form of the provision, I find that the purpose behind the regulation was fulfilled and I decline to apply it against the parent in this instance.
A second equitable factor is at issue in this case. In accordance with the equitable nature of tuition reimbursement, "[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required." (Carter, 510 U.S. 7, at 16). The Second Circuit has interpreted "reasonable" as an amount "that bears a relationship to the quantum of services that the state would have been required to furnish" (Still v. DeBuono, 101 F.3d 888, 893 [2d Cir. 1996]). Where a residential component is not required, a school district is not obligated to pay for that portion of costs (see , e.g., Muller v. Committee on Special Educ. of East Islip Union Free Sch. Dist., 145 F.3d 95, 105 [2d Cir. 1998]). In deciding if a school must fund a residential component of a placement, the court must determine whether the child requires the residential component in order to receive educational benefits (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 01-083). A disabled child is not entitled to residential placement merely because it would more nearly enable the child to reach his or her full potential (Walczak, 142 F.3d at 132 [reimbursement limited to non-residential portion of program]).
In the instant case, although the parents and the child's psychiatrist attested to the fact that the student's behavioral outbursts had become particularly problematic at home prior to his withdrawal from the public school system (Exhibit 5; Transcript pp. 676, 1027, 1030, 1199-1200; see 120-21, 244), it is well settled that behavioral problems at home do not afford a basis for concluding that the student requires a residential placement, absent evidence that the student was otherwise regressing academically in a day program as a result (see Walczak, 142 F.3d at 131-132 [residential placement not appropriate where student made meaningful social and academic progress in a day program]; Application of a Child with a Disability, Appeal No. 02-093; compare Mrs. B., 103 F.3d at 1121 [residential placement necessary where behavioral problems at home resulted in the student failing all of her classes, was not advancing from grade to grade]).
The record shows that, in the months prior to attending Hargrave, the student had been a non-residential student in small classes in two structured day programs, Brennan Middle School and Brennan High School Day Treatment Program, and, while his behavior at home was problematic (Exhibit 5; Transcript pp. 120-21, 212-18, 403-04, 1030), his behavior at school was less problematic (Transcript pp. 403, 123, 579, 696), and his grades remained mostly in the 90's/B+ range (Exhibits 7, 12), which is essentially the same grades he achieved at Hargrave as a residential student (Exhibit A-1). In other words, the student demonstrated that despite his behavioral problems at home, he was able to receive meaningful educational benefit while in school during the day as a non-residential student (see Transcript p. 124). I also note that the student's teacher at the Brennan Middle School and the Brennan Middle School principal both testified that during the day when the student was in petitioner's day program, with the proper system of behavioral strategies in place at school, the student was able to control his behavior, and that it was only when the student was away from such controls, such as on the school bus or at home, that the inappropriate behaviors occurred (Transcript pp. 1507-11, 595, 628 see 222-23; Exhibit 26). Upon the record before me, I am unable to conclude that the student's instructional needs could not be met during the course of the normal school day. Although I sympathize with the parents, I cannot conclude that under such circumstances the school district is responsible for payment of the residential component of their son's education, as I find that in this case it was not necessary for the student to receive educational benefit (see, Mrs. B., 103 F.3d at 1121; Application of a Child with a Disability, Appeal No. 02-093 [reimbursement awarded for non-residential tuition only] Application of a Child with a Disability, Appeal No. 01-054 [same]; Application of a Child with a Disability, Appeal No. 01-083 [same]). Accordingly, I find petitioner is responsible for reimbursement of all tuition costs at Hargrave as determined by the hearing officer, with the exception of room and board expenses, for the 2000-01 school year.
I next consider whether or not respondents are entitled to reimbursement for the 2001-02 school year. Applying the same three-pronged test, the first inquiry is whether or not petitioner's IEP for the 2001-02 school year offered respondents' son a FAPE. I am constrained to find that this IEP, like the previous year, is both procedurally and substantively inadequate.
Initially, I note that the IEP team that assembled to develop the 2001-02 IEP was again not properly composed in accordance with the IDEA procedural requirements. The IEP indicates that there still was no representative from the recommended school (Brennan High School Day Treatment Program) present (Exhibit 1; Transcript p. 441), in violation of 34 C.F.R. § 300.349(a)(2) and 8 NYCRR 200.4(d)(4)(i)(a). The social worker present at the meeting testified that he did not confer with anyone from Brennan High School to determine whether they felt their program was appropriate for the student for the 2001-02 school year (Transcript p. 366). Since the CSE again relied heavily on Brennan High School and Sagamore Hospital to have the appropriate behavioral and therapeutic plan for the student (Transcript pp. 370-75; 1350, 1352), the lack of the mandatory representative from that school cannot be minimized, especially since the resultant IEP in this year contained no behavioral goals and objectives (Exhibit 1). I note that the record reveals that personnel from Sagamore Children's Hospital would participate at CSE meetings if their attendance was requested (Transcript p. 738), but in this case the CSE did not invite anyone from the Brennan High School Day Treatment program (Transcript p. 441). Unlike the prior year, the 2001-02 IEP does list the presence of a special education teacher, but the regulations require that the special education teacher be a special education teacher likely to implement the student's IEP (34 C.F.R. Part 300, Appendix A, Question 26). This teacher was not a witness at the hearing, and there is no evidence in the record that she was employed by or was teaching at the Western Suffolk BOCES's Brennan High School. Hence, I find that the district has failed to meet its burden of proof in establishing that the CSE was properly composed.11
The 2001-02 IEP also contains many of the same inadequacies as the prior year's IEP. For example, although the student's needs continued to be largely behavioral (management and social needs), nowhere does the IEP specify counseling as a related service, other than "guidance/career counseling" (Exhibit 1); the district's social worker testified that that was left up to the staff at Brennan High School (Transcript p. 453).12 I note that since petitioner was again recommending a day treatment program, the CSE was required by regulation to obtain an individual evaluation of the student by the Sagamore Children's Hospital and to use that evaluation and suggestions in the development of the student's IEP (8 NYCRR 200.14[c] and [d]). The record contains no such evaluation or input from Sagamore Children's Hospital on the development of the student's 2001-02 IEP. The IEP again states that the student will attend mainstream courses as determined by petitioner's support team, but the CSE is recommending a school which has no mainstreaming opportunities. Contradictory statements include "[the student] would benefit from a more restrictive special education program" to "[the student] would benefit from a reduction in special education services", and "[the student] will participate in general education in all classes and activities" to "[the student] is not able to participate in the general education system as listed [in his present levels of performance and individual needs]" (Exhibit 1). Most strikingly, however, is the paucity of appropriate goals and objectives. As previously noted, an IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][x]). The goals and objectives portion of the student's 2001-02 IEP is one-half page, consisting in totality of one math goal and three objectives (Exhibit 1). There are no goals for study skills, counseling, or social/behavior management skills, even though his needs specify that he "requires intensive environmental modifications in order to benefit from instructions" and that he "needs to develop a management system to meet academic responsibilities" (Exhibit 1). There is no BIP and still no indication that the CSE reviewed or considered the results of the February 2000 FBA. The social worker who attended the CSE meeting admitted that the goals in the resultant IEP did not accurately reflect the program or the discussion of the student's needs (Transcript pp. 370-373). As previously noted, the CSE has a non-delegable duty to have the student's IEP in place at the beginning of the school year and before any services are rendered (34 C.F.R. § 300.342[a]; 34 C.F.R. § 300.342[b][i]), and goals must be specific in order to provide guidance to a student's teachers and parents with respect to the CSE's expectations for his or her performance (Application of a Child with a Disability, Appeal No. 98-14). For all of the foregoing reasons, I find that the 2001-02 IEP was both procedurally and substantively inadequate, resulting in a program that was not reasonably calculated to ensure educational benefits.
Turning now to the appropriateness of Hargrave for the 2001-02 school year, I find that respondents have met their burden of demonstrating that Hargrave continued to meet their son's individual education needs. His final grades at Hargrave for the 2001-02 school year in his core academic subjects averaged out to be mostly As and Bs, with the exception of a D in geometry (Exhibit B). Behaviorally, he continued to improve, receiving As in the behavioral areas of class assimilation and military (id.). In a meeting with his psychiatrist mid way through the school year, the student confided that Hargrave had "saved his life" (Transcript pp. 966-7; Exhibit L). The student's psychologist found that, while the student still had some behavioral issues, he had made impressive progress at Hargrave and the psychiatrist attributed it to Hargrave's strict behavioral program (Exhibit L). At the end of his second year at Hargrave the student was evaluated by petitioner's school psychiatrist who likewise concluded that, although the student still has features of an emotional disturbance, he "seems to have shown tremendous progress as he has learned coping skills," and his impulse control had improved, and he had progressed both academically and behaviorally while at Hargrave (Exhibit 33). Petitioner's psychiatrist's report also noted that the student had not been on any medication for the last two years while at Hargrave (Exhibit 33), and he attributed this to the structure and intervention going on at Hargrave as helping the student to compensate (Transcript p. 988). The student's psychiatrist also found that Hargrave offered role models and an appropriate peer group for the student (Transcript p. 990). When the CSE met the summer after the student's second year at Hargrave, they did not dispute that the student had made substantial progress while at Hargrave (Transcript p. 1367). Accordingly, I find that respondents have met their burden in establishing that Hargrave continued to be an appropriate placement for their son for the 2001-02 school year.
I also find that respondents cooperated with the CSE at all times during the development of the 2001-02 IEP, including making their son available to petitioner for both a psychiatric evaluation (Exhibit 4) and an educational evaluation (Exhibit 6) over the summer, and cooperating fully by supplying the CSE with various private evaluations of their son and his Hargrave school records, and participating at the CSE meeting that developed the IEP (see Exhibit 1, Comments). Therefore, for the same reasons identified in the 2000-01 school year, I find that the equities support an award of tuition reimbursement to the parents for the 2001-02 school year to the extent necessary to cover the non-residential costs of his tuition at Hargrave.
Lastly, I turn to the IEP for the 2002-03 school year. Although the CSE again recommended that the student be placed in a self-contained class at Brennan High School, this time the CSE recommended the Non-Day Treatment program (Exhibit 30). Beginning with composition of the CSE, I note that there again was no representative present from the recommended placement, as required by 34 C.F.R. § 300.349(a)(2) and 8 NYCRR 200.4(d)(4)(i)(a) (Exhibit 30; see Transcript p. 1353). Petitioner is reminded again that these provisions are mandatory. In addition, since the CSE recommended in this IEP that the student be placed in all special education classes, a special education teacher who "is, or will be, responsible for implementing a portion of the IEP" was a required member (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). Since the special education teacher present at the IEP meeting did not work at the Brennan High School Western Suffolk BOCES program (Transcript pp. 370-71; Exhibit 31), he could not be responsible for implementing the student's IEP. I find that the lack of both a representative from the proposed agency's school and the lack of a special education teacher from that school were procedural violations that resulted in an improperly composed CSE. I find that the special expertise that these members could have contributed concerning whether the program would meet this student's specific needs for an academically challenging yet behaviorally structured environment, and in devising appropriately specific goals and objectives for the student, resulted in a loss of educational opportunity for the student.
I also find that the CSE, as in prior years, improperly delegated its authority to devise an appropriate IEP for the student, resulting in an IEP with several gaps left in its program with the assumption that the BOCES staff would fill them in (see Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Handicapping Condition, Appeal No. 91-25). Although for the first time the IEP listed counseling as a related service and specified frequency, location, and duration (Exhibit 30), and the IEP included counseling and study skills goals and objectives, the IEP still failed to include or attach a BIP (Transcript p. 1358), even though it specifically stated that the student needed a "structured program with clearly defined expectations and consequences," and that "in the absence of a structured environment with adequate supports to deal with emotional issues, [the student] would have difficulty accessing general education curriculum" (Exhibit 30). The CSE chair testified that the CSE "didn't feel the need" to develop an individualized behavior plan for the student; they left it up to BOCES to have the correct plan in place for the student (Transcript p. 1386). When asked about the specifics of the BOCES behavior modification program, the CSE chair responded, "I can't think offhand of any of the specifics of the program at this point" (Transcript p. 1386). The CSE, as noted, has a duty to develop an IEP for the student in accordance with the applicable regulatory provisions, and the completed IEP must be in place prior to the start of the school year (see 34 C.F.R. § 300.401[a]; 34 C.F.R. § 300.342[a]).
As part of its burden of proof, petitioner must also show that the student would be suitably grouped for instructional purposes with children having similar individual needs (8 NYCRR 200.6[g]). It may do so by offering a profile of the students in the class, or having a witness testify about needs and abilities of the students in the class (Application of a Child with a Disability, Appeal No. 01-068; Application of a Child with a Disability, Appeal No. 97-68). The testimony revealed that the CSE knew very little of what the student's class would look like. The CSE chair testified that the IEP did not specify whether or not the student would be enrolled in 10th or 11th grade curriculums in each subject, because that was left up to BOCES to determine (Transcript p. 1350). The CSE chair also testified that the committee did not know when they developed the IEP how many teachers the student would have at Brennan High School (Transcript p. 1348), or what the class profile would look like (Transcript pp. 1357-58). The record contains no evidence of a class profile for the 2002-03 school year, or any other year. Although the principal of Brennan High School testified generally about the composition of classes and how Brennan High School attempted to place students in instructional groupings at his school (Transcript pp. 765-67), he stated he had no class profile for the student's class (Transcript p. 766), and I note that he was not a member of the CSE nor present at the meeting (Exhibit 30). For the foregoing reasons, I find that the composition of the CSE and the process they used to develop the 2002-03 IEP was procedurally inadequate, which resulted in a loss of educational opportunity for the student and a denial of FAPE.
The burden shifts to the parents to demonstrate that Hargrave was an appropriate placement for their son for the 2002-03 school year. During the 2002-03 school year, the record reveals that the student continued to progress at Hargrave, both academically and behaviorally. The student's grades in the first two grading periods in his core academic subjects averaged As and Bs, with the exception of a D in Chemistry (Exhibit C). His class performance and military grades were also As and Bs (Exhibit C). Hargrave's academic dean testified that the student was in some honors and college level courses (Transcript pp. 846-47). The student's TAC officer testified that the student had attained the rank of assistant to the company commander, and was in position to become company commander the next year (Transcript p. 850). He described the student as one of the leaders of the company, a role model of proper behavior, respectful of authority (Transcript pp. 1085-86). The student's TAC officer remarked that the student had continued to progress, not regress at Hargrave (Transcript pp. 1088, 1109). I note that during his time at Hargrave, the student had been on the Dean's list six times (Transcript p. 856), and he successfully passed from grade to grade each year (Transcript p. 1375). The student remarked to petitioner's psychiatrist in the summer of 2002, "I have learned to cope in this school" (Exhibit 33). Because I find that Hargrave's program allowed the student to progress both behaviorally and academically, I find respondents have met their burden.
I also find that equitable considerations support an award of tuition reimbursement in that the parents continued to cooperate with the CSE during the development of the 2002-03 IEP, by making their son available for petitioner to complete a new psychological evaluation (Exhibit 33), and by fully participating in the IEP process (see Exhibit 30, Comments). For the same reasons previously given, I find that the parents are entitled to tuition reimbursement for the non-residential costs associated with their son's tuition at Hargrave for the 2002-03 school year.
Finally, in reference to petitioner's argument which raises the applicability of the Blaine Amendment (Article 11, Section 3 of the New York State Constitution), as a possible bar to tuition reimbursement due to the allegedly sectarian nature of Hargrave, I note that Article 7, Section 8 of the State Constitution provides that "nothing in this constitution contained shall prevent the legislature from providing for the …education and support of the blind, the deaf, the dumb, the physically handicapped, the mentally ill, the emotionally disturbed, the mentally retarded…as it may deem proper" (see Scales v. Bd. of Educ., 41 Misc. 2d 391 ). Indeed, the State Review Officer has routinely awarded tuition reimbursement to private sectarian schools where appropriate (see, e.g,. Application of a Child with a Disability, Appeal No. 01-102; Application of a Child with a Disability, Appeal No. 00-027; Application of the Bd. of Educ. of Newburg Enlarged City Sch. Dist., Appeal No. 00-005; Application of a Child with a Disability, Appeal No. 99-15). As such, I decline to apply the Blaine Amendment under the circumstances presented herein. I also note that the State Review Officer has directed in the past that this issue is more appropriately raised in a court of law (see Application of the Bd. of Educ. of the Croton-Harmon Union Free Sch. Dist., Appeal No. 96-36).
I have considered petitioner's other assertions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent indicated; and
IT IS FURTHER ORDERED that, upon proper submission by respondents of proof of payment, petitioner shall reimburse respondents for their expenditures for the cost of their son's non-residential tuition at the Hargrave Military Academy during the 2000-01, 2001-02, and the 2002-03 school years, in accordance with the tenor of this decision.
Albany, New York
November 25, 2003
PAUL F. KELLY
1Respondents' attorney stipulated to the fact that a copy of the 2000-01 IEP with a copy of the parents' procedural due process rights was sent to respondents on July 10, 2000 (Transcript p. 109; Exhibits 15, 1).
2As the school physician, the student's father had a personal friendship with the Executive Director of Pupil Services as well as being his personal physician (Transcript pp. 1146-47, 49). The Director managed the school's special education program (Transcript p. 48), and was the father's liaison to the CSE (Transcript p. 1215).
3I note that there is no explanation in the hearing officer's decision for the untimely four-month delay from the request for a hearing on September 14, 2001, to the start of the hearing on January 24, 2002. Neither party raises this as an issue, but I will remind petitioner that it is required by regulation to ensure that a decision in an impartial hearing is rendered within 45 days of a request for a hearing, absent an extension granted by a hearing officer at the request of either party (34 C.F.R. § 300.511).
4Concerning the stipulation of settlement, petitioner has annexed various letters between the attorneys and the hearing officer and affidavits as Exhibits B-J to the petition to document the dispute surrounding the stipulation agreement. In his answering papers, respondents' attorney in turn submits his affidavit with exhibits A-F annexed, containing the same correspondence between the attorneys surrounding the status of the stipulation agreement. Although these documents were not admitted into evidence at the hearing, the State Review Officer may accept additional evidence if it is necessary to enable him or her to render a decision (Application of a Child with a Disability, Appeal No. 02-098). I will accept these documents to the limited extent that they assist me in rendering a decision concerning the hearing officer's interim ruling dated June 28, 2002 which found that respondents were not compelled to comply with the proposed settlement agreement (see IHO Interim Decision).
5Petitioner's attorney's brief was 67 pages; respondents' attorney's brief was 53 pages.
6Petitioner's attorney herein attempts to challenge the hearing officer's refusal to recuse himself after presiding over the stipulation on the record (Petition ¶ 69; see Transcript p. 276). However, prior to the stipulation being entered into the record, the hearing officer directly asked both attorneys, "If I'm going to hear the agreement on the record, what happens to my hearing the case in the event that those conditions fail to materialize? Do you presume then to go back to the impartial hearing? ….Do you have any objection to my hearing the terms of the agreement and then continuing?" (Transcript p. 150), to which petitioner's attorney replied, "I have no objection" (id.). Under the circumstances, I find that petitioner's attorney at that point waived any objection to the hearing officer's ability to continue to preside over the hearing.
7The official commentary accompanying the federal regulations instructs that "[e]very effort be made to resolve differences between parents and school staff through voluntary mediation or some other informal step, without resort to a due process hearing. However, mediation or other informal procedures may not be used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under Part B" (34 C.F.R. Part 300, Appendix A, Section II, Question 9).
8In addition, I note that since the CSE was recommending that the student be placed in a Day Treatment Program for at least the first two school years in question, 2000-01 and 2001-02, it had an obligation under 8 NYCRR 200.14(d)(2) to invite a representative from the student's treatment team at Sagamore Children's Hospital to the meeting, and if that person was unable to attend, the regulation requires that the CSE "shall attempt alternative means" of assuring their participation, such as through telephone conference calls, and that such attempts must be documented (8 NYCRR 200.14[d]). There is no evidence in the record that anyone from Sagamore was invited to attend any of the annual CSE meetings in question, nor is there any documentation of any attempts by the CSE to contact them.
9I also note that although the Assistant Principal at Brennan High School testified that it was BOCES's practice to do a 30-day review on new students and fill in more individual goals and objectives at that time (Transcript pp. 691-92), this student was enrolled at Brennan High School for over 30 days, from September 6, 2000 until his withdrawal on October 13, 2000 (see Transcript pp. 697, 1127), and no new IEP had yet been devised.
10Although petitioner disputes whether or not the parent actually asked for tuition reimbursement on this phone call, the hearing officer stated in his decision that he found the parent's testimony to be fully credible (see IHO Decision), and the State Review Officer gives due deference to the findings of credibility of the hearing officer, absent clear evidence in the record to the contrary (see Application of a Child with a Disability, Appeal No. 01-019; Application of a Child with a Disability, Appeal No. 97-73).
11The parent is not listed as a participant on the 2001-02 IEP, but I note that the narrative concerning the meeting outcome does indicate that the parents actively participated and ultimately rejected the CSE's placement (Exhibit 1).
12Although petitioner's CSE chair testified that the 2001-02 IEP was only a transitional IEP and that the practice was for BOCES to take the IEP and develop their own IEP for the student and present it to the CSE "at annual review later on in the year" (Transcript p. 422), I find this not in compliance with the applicable federal law and regulations for the same reasons stated in the analysis of the 2000-01 IEP supra. I also find nothing on the face of the three IEPs indicating that they are temporary or transitional; in fact all three list the next scheduled review as the next annual review (Exhibits 1, 9, 30).