The State Education Department
State Review Officer

No. 03-091

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Clarkstown Central School District

 

 

Appearances:
Neal Howard Rosenberg, Esq., attorney for petitioners

 

Lexow, Berbit and Associates, attorneys for respondent, Carl L. Wanderman, Esq., of counsel

 

 

DECISION

 

            Petitioners appeal from an impartial hearing officer's decision finding that respondent, Clarkstown Central School District, had met its burden to demonstrate that it had offered their son a free appropriate public education (FAPE) and not granting petitioners' request for reimbursement for the child's attendance at the Windward School (Windward) for the 2003-04 school year.  The appeal must be sustained.

 

            Petitioners' son is classified as learning disabled and there is no dispute regarding his classification.  The child had attended respondent's Woodglen Elementary School for kindergarten through second grade (Transcript p. 138).  At the time of the hearing in July 2003, he had been admitted to a non-residential program at Windward, a private school in White Plains, New York, for the 2003-04 school year, where he would be in a third grade class.  The Commissioner of Education has not approved this private school as one that a board of education may contract with to instruct students with disabilities. 

 

            Beginning in September 1998 and following a determination that he was a preschool student with a disability, respondent had provided petitioners' son with preschool speech-language therapy (Exhibit 4; Transcript pp. 13-14).  In May 2000, respondent’s Committee on Special Education (CSE) determined that the child was a student with a disability and classified him as speech impaired (Exhibit 1).  Respondent continued to provide the child with speech-language therapy during the 2000-01 school year when petitioners' son was in kindergarten (Exhibit 1; Transcript pp. 14-15).  Evaluations of the child prior to and at the beginning of first grade indicated that petitioners' son had significant attentional difficulties, a generally high level of anxiety, problems with fine and gross motor skills, and a need to develop self-esteem and social interaction (Exhibits 3, 5).  In October 2001, when the child was in the first grade, respondent’s CSE changed the child's classification to other health impaired (Exhibit 6; Transcript p. 20) and recommended a 1:1 aide, counseling, and occupational therapy (Exhibit 6; Transcript pp. 17-20).  Respondent's CSE met again in January 2002.  At petitioners' request, and taking into account that some progress had been made and petitioners' wish to reduce the child's number of pullout classes, respondent discontinued speech-language therapy and increased the frequency of occupational therapy services  (Exhibit 7; Transcript pp. 21-22).  By the end of first grade, the child was performing below grade level expectations in reading and writing (Exhibit 11 p. 4).  At petitioners' request, and because the child's neurologist had recommended a small structured classroom, the CSE met again in February 2002 and recommended that petitioners' son be placed in a self-contained special class two periods per day for language arts (Exhibits 3, 10; Transcript p. 26). 

 

            The child's program for third grade during the 2002-03 school year was not finalized until August 2002.  Respondent's CSE initially met in May 2002 to develop an individualized education program (IEP) for that school year (Exhibit 11 p. 5; Transcript pp. 26-27, 36).  The meeting was lengthy and focused on the extent to which the child would be placed in self-contained classes (Transcript pp. 26-27, 30-31).  At the end of the meeting, the CSE recommended that the child be placed in a self-contained class for math as well as language arts (Exhibit 11 p. 3; Transcript pp. 29, 31, 36).  The CSE discussed the child's speech-language needs but reached no conclusion about the provision of relevant services (Transcript pp. 27, 30).  The CSE also decided at this meeting that for the 2003-04 school year, it would be appropriate to investigate the placement of petitioners' son in a private school that was either on the list of approved New York State schools, or eligible to be used as an emergency interim placement (Transcript pp. 28-29).  The CSE chairperson suggested Eagle Hill School (Eagle Hill) in Greenwich, Connecticut and Church Hill School (Church Hill) as possible schools for petitioners' son to attend (Transcript pp. 28, 75).  The Community School in New Jersey was also discussed as a possible placement (Transcript pp. 28, 180).  At this time, petitioners also expressed an interest in their son attending Windward, where the child's private tutor was a teacher (Transcript pp. 179-80).  The CSE chairperson advised the parents that respondent could not recommend Windward because it was not an approved school (Transcript pp. 179-82, 196-97). 

 

            A short time after the May 2002 CSE meeting, petitioners began to reconsider placing their child in self-contained classes for the 2002-03 year (Transcript pp. 27-28).  With the support of the CSE chairperson, they asked the CSE to reconvene and develop a mainstream-based program (Transcript pp. 28, 31-32, 37).  Respondent’s CSE reconvened in July to discuss the 2002-03 school year (Exhibit 16 p. 5).  Consistent with petitioners' request, it recommended that the child be placed in a regular education second grade program (Exhibit 16 p. 3; Transcript pp. 35-36).  The CSE also recommended that the child receive one period a day of resource room services to supplement his regular education program in addition to the services recommended in May (Exhibit 16 p. 3; Transcript pp. 35-36). 

 

            In July 2002, petitioners obtained a private evaluation of their son from the Clinical Center for the Study of Development and Learning of the University of North Carolina at Chapel Hill (Exhibit 13).  Administration of the Pediatric Early Elementary Examination (PEEX-2) revealed difficulties with graphomotor functioning, processing information presented orally, and visual attention to detail.  A writing sample produced by the child consisted of mixed uppercase and lowercase letters and few spaces between words, with few discernable words.  The child was unable to read his own writing, but  when presented with the same picture prompt that was used for the writing sample, he  could orally construct an age appropriate narrative.  In an assessment of math skills, the child demonstrated mastery of single digit addition and subtraction, but formed many numerals backwards and made calculation errors due to his resistance to using manipulatives or pencil and paper to assist with problem solving.  Evaluation results indicated that the child's reading and math skills were delayed less than one year but that his independent written language and spelling skills were at the kindergarten level. 

 

            The independent evaluation identified a primary attention deficit, difficulty with tasks requiring temporal sequential ordering, difficulty processing receptive language, graphomotor deficits, and problems with social cognition.  The evaluation report emphasized that while none of the child's dysfunctions were individually severe, their cumulative weight would adversely affect the child's school performance. 

 

            Petitioners also made arrangements for their son to be evaluated in September 2002 as part of a research project on learning and attention at the Yale University School of Medicine Department of Pediatrics (Exhibit 19).  Administration of the Wechsler Abbreviated Scale of Intelligence (WASI) yielded an estimated verbal IQ score of 112, an estimated performance IQ score of 92, and an estimated full scale IQ score of 102, suggesting overall cognitive functioning within the average range.  Results also indicated that the child's verbal abilities were in the high average range and substantially more developed than his nonverbal skills which were in the average range.  Achievement testing revealed weaknesses in reading including inconsistent application of phonetic strategies for decoding and a "pronounced weakness" in comprehension.  Math skills were in the average range, but frequent errors were attributed to the child's failure to attend to operational signs.  Based on a parent questionnaire, teacher rating form and a diagnostic interview, the evaluators concluded that the child met the criteria for an attention deficit hyperactivity disorder, combined type.  The evaluation report recommended individual or small group instruction, as well as systematic decoding instruction to address the child's reading deficits.  It also recommended the use of a computer to assist the child with handwriting and written expression.  For the child's attentional difficulties, the use of a consistent behavior program and the adoption of teaching strategies such as repeating directions, minimizing distraction and breaking down tasks were recommended.  To address the child's social needs, the evaluation recommended, among other things, that a contact person be assigned to coordinate academic/behavioral interventions and to provide him with emotional support.

 

            During the summer of 2002 and into the 2002-03 school year, respondent and petitioners investigated the possibility of enrolling the child in a private school.  Subsequent to the May 2002 CSE meeting, petitioners and/or respondent's special education department contacted Eagle Hill, Community School, and Church Hill to arrange for consideration of enrollment of petitioners' son for the 2003-04 school year (Exhibits 12, 15, 17; 28; Transcript pp. 28-29, 35, 38-40, 48-49, 69-71, 134-36, 143-44).  Petitioners also applied to Windward (Transcript pp. 159-60).  Petitioners and their son visited Community School, Windward, and Eagle Hill (Transcript pp. 133-35, 143-46, 149, 158-59).  Petitioners reported that they liked Windward much more than Eagle Hill, and that their son enjoyed the children at Windward and he did not enjoy the class at Eagle Hill (Transcript pp. 144, 145, 146, 149).  Petitioners opined that, compared to classes at Windward, the smaller instructional groups they observed at Eagle Hill were too small and restrictive an environment for their son (Transcript pp. 144, 146-47, 151-53; see also Transcript pp. 45-46, 51-52).

 

            Both Windward and Eagle Hill accepted the child's application for admission for the 2003-04 school year.  Community School and the Church Hill did not (Transcript pp. 45, 47, 180, 201-202).  Windward accepted the child on March 3, 2003 and requested an initial deposit (Transcript pp. 160-62).  Eagle Hill accepted the child on March 7, 2003 and requested the return of an enrollment contract and deposit by March 21, 2003 (Exhibit 28).  Petitioners paid Windward a deposit of $2500 to secure a place for their son (Transcript pp. 162-63).  In a letter dated March 19, 2003, petitioners advised Eagle Hill that they did not wish to accept Eagle Hill's offer of enrollment (Exhibit A to Affirmation of Respondent’s Counsel annexed to Answer).    

 

            Respondent's CSE met on April 15, 2003 to develop an IEP for the 2003-04 school year when petitioners' son would be in the third grade (Exhibit 22; Transcript p. 41).  Petitioners attended and participated in the meeting (Exhibit 22 p. 10; Transcript pp. 85-86, 166).  Based on the North Carolina and Yale evaluations, the CSE recommended that the child’s classification be changed to learning disabled (Exhibit 22 pp. 3, 6; Transcript pp. 41-43).  Pursuant to discussion at the May 2002 meeting regarding private school placement, the CSE recommended that the child receive services in a special day school program (Exhibit 22 pp. 3, 6; Transcript pp. 47-48).  The CSE recommended  placement at Eagle Hill (Exhibit 22 p. 6; Transcript pp. 44, 45, 47).1  The CSE also recommended that petitioners' son receive counseling, occupational therapy, and speech-language therapy, the latter as part of his academic curriculum rather than as a related service (Exhibit 22 p. 3; Transcript p. 54).  At the end of the meeting, petitioners advised the CSE that they needed time to consider the CSE's recommendation of Eagle Hill (Transcript pp. 163, 168, 202).  At this time, petitioners did not inform the CSE that they had made a deposit at Windward (Transcript pp. 162-63, 164, 168).  Petitioners were in agreement with the balance of the CSE's recommendations and/or raised no objection (Transcript pp. 53-54, 85-86, 133, 190).

 

            Respondent provided petitioners with a copy of the CSE's recommended IEP for the 2003-04 school year by letter dated May 8, 2003 (Exhibit 22).  On May 16, 2003, petitioners had their first meeting with the attorney who represented them at the impartial hearing (Transcript p. 200).  Three days later, petitioners asked the CSE chairperson to have respondent's attorney contact their attorney (Exhibit 28).  On May 30, 2003, respondent advised petitioners that it had approved the IEP developed by the CSE (Exhibit 22 p. 1).  In reply, petitioners gave notice by facsimile and letter from their attorney dated June 3, 2003 that they did not agree with respondent's placement recommendation (Exhibit 30).  By that communication, they also advised respondent that they would be unilaterally placing their son at Windward for the 2003-04 school year and requested a hearing for the purpose of obtaining tuition reimbursement (id.)  By letter dated June 4, 2003, the State Education Department approved an emergency interim placement of the child at Eagle Hill for the 2003-04 school year (Exhibit 31). 

 

The hearing in this matter was held on July 18, 2003.  The hearing officer issued a decision on August 29, 2003.  He concluded that the IEP for the child set forth an appropriate program and he denied petitioners' request for tuition reimbursement to Windward for the 2003-04 school year.  Because of that finding, he did not reach the questions of whether petitioners had shown that Windward would provide their son with an appropriate educational program and whether equitable considerations supported petitioners’ claim for tuition reimbursement at Windward.

 

            Petitioners appeal from the hearing officer's decision.  They assert that respondent has not met its burden of proof to show that it offered their son an appropriate program.  They point to the fact that there was no representative of Eagle Hill present at the April 15, 2003 CSE meeting as required by 34 C.F.R. § 300.349(a)(2) and 8 NYCRR 200.4(d)(4)(I).  Petitioners also assert that respondent did not provide sufficient evidence showing that their son would have been suitably grouped for instructional purposes at Eagle Hill in accordance with 8 NYCRR 200.6(a)(3).  They further claim that no one from Eagle Hill testified at the hearing regarding the extent to which the program at that school was appropriate for the child and whether Eagle Hill would be able to provide the services and program set out in the IEP developed at the April 15, 2003 CSE meeting.  Petitioners also claim that Windward would meet their son’s needs and that equitable considerations supported their claim. 

 

For its part, respondent asserts that it offered petitioners' son a FAPE.  Respondent claims that it "was not feasible" for Eagle Hill to be represented at the April 15, 2003 CSE meeting and that petitioners did not dispute the adequacy of the IEP at that meeting.  Respondent does not claim that Windward would not provide petitioners' son with an appropriate education.  It does, however, dispute that petitioners cooperated with the CSE.  In that regard, respondent alleges the following of the petitioners: refused to allow psychiatric testing of their son to take place; did not object to the IEP developed at the April 15, 2003 CSE meeting;  did not object to previous determinations relative to the child at other CSE meetings; and sent a June 3, 2003 letter giving respondent notice that petitioners were rejecting the IEP developed at the April 15, 2003 CSE meeting that was untimely and was not sufficiently specific.  Respondent  argues that petitioners should also be denied reimbursement because they did not ask for a CSE meeting to discuss their objections to Eagle Hill, and because they did not advise the CSE at its April 15, 2003 meeting or thereafter that, prior to that meeting, they had informed Eagle Hill that they had decided not to accept that school's offer of enrollment.  Finally with respect to this, respondent argues that petitioners’ actions show that they never had any intention of enrolling their son in Eagle Hill.

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP required by the Act (20 U.S.C. § 1401[8]) and it is the IEP that tailors the required FAPE to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]).  A board of education may be required to pay for educational services obtained for a child by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't. of Educ., 471 U.S. 359 [1985]).  The failure of a parent to select a program with certified teachers and known to be approved by the state in favor of an unapproved option which includes uncertified teachers is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

 

            The 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 [2001]; Walczak v. Fla. Union Free Sch. Dist, 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the child through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Rowley, 458 U.S. at 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  A denial of FAPE will occur if a procedural violation of the IDEA compromised the development of an appropriate IEP, depriving the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31621158 [S.D.N.Y. 2002]).  A denial of FAPE will also occur if the procedural violation of the IDEA seriously infringed on a parent's opportunity to participate in the creation or formulation of the IEP (W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist. 948 F. Supp. 1242, 1255 [D. Vt. 1996] accord Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 U.S. 950 [2001]).  The recommended program must also be provided in the least restrictive environment (LRE)  (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            Petitioners are correct that respondent’s April 15, 2003 CSE meeting should have included a representative of Eagle Hill.  The applicable federal and state regulations at 34 C.F.R. § 300.349(a)(2) and 8 NYCRR 200.4(d)(4)(i)(a) provide that if the placement recommended by a CSE is a school other than the school which the child would otherwise attend, then "the school district must ensure that a representative of that.... school attend."  If a representative from such a school cannot attend, the regulations provide that "the school district must use other methods to ensure participation by the private school...including individual or conference telephone calls."   When the United States Department of Education (DOE) sought comment on its amended IDEA regulations in October 1997, certain commentators suggested that this regulation be eliminated or reworded so that only post-CSE meeting consultation with the non-district school would be required.  However, the DOE made no change in the language of the regulation (64 Fed. Reg. 12,596-97 [March 12, 1999]). 

 

            A CSE's failure to comply with this requirement can compromise the development of an appropriate IEP and deprive a child of educational benefits and a FAPE (see Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062).  It can also infringe on a parent's opportunity to participate in the creation or formulation of an IEP by not providing the parent with an opportunity to discuss the content of the IEP or concerns about the school with that non-district school representative at a CSE meeting (see Application of a Child with a Disability, Appeal No. 03-088).  The failure of the other school representative to attend the CSE meeting has given cause for the State Review Officer to find a denial of FAPE (see Application of a Child with a Disability, Appeal No. 03-088; Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; see also Application of a Child with a Disability, Appeal No. 03-046).

 

            In this case, respondent admits that there was no representative from Eagle Hill at the April 15, 2003, CSE meeting (Transcript p. 65).  Nor is there any evidence in the record to suggest that respondent’s CSE made any attempt to include a representative from Eagle Hill at that meeting by telephone.  In fact, respondent provides no evidence that Eagle Hill was even invited to the meeting.  In this case, the attendance of an Eagle Hill representative at the CSE meeting would have provided petitioners with a direct opportunity for meaningful discussion with that school and the CSE regarding the ability of Eagle Hill to appropriately meet their son's needs and address their questions about the school.  This was especially important because petitioners’ concerns about Eagle Hill has led them to believe that such a placement would be inappropriate.  The absence of a representative from Eagle Hill at the April 2003 CSE meeting also deprived the CSE of feedback from that school with respect to whether it was able to provide an appropriate educational program for petitioners’ son and also deprived Eagle Hill of an opportunity to participate in the development of the child's IEP for the 2003-04 school year. 

 

Respondent's claim that it was "not feasible" for a representative of Eagle Hill to attend the meeting is not supported by the record.  First, its argument that the CSE did not know at the time of the meeting whether the child had been accepted by Eagle Hill is belied by the testimony of the CSE chair that the CSE was aware that Eagle Hill had accepted the child's application for admission (Transcript p. 45).  Further, respondent's claim that it was "not feasible" to have a representative from Eagle Hill at the CSE meeting because at the time of the meeting it did not know whether the State Education Department would approve that school as a placement for the child is not persuasive in this case. The applicable state and federal regulations do not make the CSE's obligation to include a representative of the recommended non-district school dependent upon whether or not the State Education Department has approved a board of education's application for an emergency interim placement of a child but on whether the CSE recommends that particular placement.  With all of the above in mind, I find that the absence of a representative of Eagle Hill from the April 15, 2003 CSE meeting compromised the development of an appropriate IEP for petitioners' son for the 2003-04 school year (Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; see Application of a Child with a Disability, Appeal No. 03-046; see also Arlington Cent. Sch. Dist v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]; Application of the Bd. of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-080).  I also find that this infringed on petitioners' opportunity to meaningfully participate in the creation or formulation of their son's IEP for the 2003-04 school year (Application of a Child with a Disability, Appeal No. 03-088).2

 

            Moreover, as part of its burden of proof to show that its offered program was appropriate, respondent must show that the child would be suitably grouped for instructional purposes with children having similar individual needs with regard to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children in the classroom (see 8 NYCRR 200.6[a][3]; Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-037; Application of a Child with a Disability, Appeal No. 02-077; Application of a Child with a Disability, Appeal No. 02-045; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 01-073; Application of a Child with a Disability, Appeal No. 00-064; Application of a Child with a Disability, Appeal No. 01-068; Application of a Child with a Disability, Appeal No. 97-05).  It may do so by offering a profile of the children in the class, or by having a witness testify about the needs and abilities of the children in the class (Application of a Child with a Disability, Appeal No. 02-077; Application of a Child with a Disability, Appeal No. 01-068).  Having reviewed the record here, I am unable to conclude that respondent has met its burden.  Respondent did not present a class profile of the children who would be in the child's classes at Eagle Hill (see Exhibit 22 p. 6; Transcript pp. 44-46, 74-75), nor did it present any testimony with respect to the individual needs of the other children who would be in his classes.  I note here that the CSE chairperson's general, conclusory and nonspecific assertion that Eagle Hill grouped its classes "according to their (student's) needs" is insufficient to meet respondent's burden (Application of a Student with a Disability, Appeal No. 02-045). 

             Respondent failed to do the following: include a representative of Eagle Hill at its April 15, 2003 CSE meeting; produce sufficient information in the hearing record, whether documentary or testimonial, that Eagle Hill is appropriate to meet this child’s needs; and show that petitioners' son would be suitably grouped for instructional purposes at that school.  I find that respondent has failed to meet its burden to demonstrate that it offered to provide an appropriate program to petitioners' son for the 2003-04 school year and that the procedural and substantive inadequacies of the offered program were of a nature and number that denied the child a FAPE (see Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]; Application of a Child with a Disability, Appeal No. 03-037).  Petitioners have therefore prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.  Having made this determination, it is unnecessary to address the other issues petitioners raised regarding whether respondent met its burden to show that it offered an appropriate program.

             Petitioners bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled their son for the 2003-04 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29).  In order to meet that burden, petitioners must show that Windward offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29).  The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20).  While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

 

            Windward is a private school in White Plains, New York (Transcript p. 75).  The school addresses the needs of children who have deficits in reading and writing and who can effectively receive instruction within a group (Transcript pp. 93, 97).  It teaches reading using the Preventing Academic Failure (PAF) methodology (Transcript pp. 90, 91, 103-04).  A head teacher at Windward, who had been employed at that school for six years and who taught a third grade class (Transcript pp. 88-89, 92), testified about the school and its ability to assist petitioners' son.  She was also familiar with the child, as she had tutored him since June 2002 (Transcript p. 88).  The teacher testified that each class at Windward had both a head teacher and an assistant teacher (Transcript pp. at 93-94), and that the head teachers had masters degrees and the assistant teachers had college degrees (id.).  She also testified that the third grade program included small classes in science, art, music, physical education, social studies, math and language skills.  The teacher testified that the school grouped children homogeneously in their language arts and math skills classes and that class size ranged from seven to ten students in those classes (Transcript pp. 95-96).  The language skills class extended for three periods and included spelling, reading, and writing skills (Transcript p. 96).  Math was a one period class (id.).  She testified that the children were heterogeneously grouped for science, art, music, gym, and social studies and that class sizes in those classes ranged from eight to fourteen (Transcript pp. 95-96).

 

            The Windward teacher reviewed the child's 2003-04 IEP (Transcript p. 98).  She testified that the areas addressed in that IEP were included in the Windward curriculum (Transcript p. 99).  The teacher testified that she had used the PAF program in her tutoring of the child and that he had improved with, and benefited greatly from, that program (Transcript pp. 90-91, 99, 102).  She also testified that while Windward did not have occupational therapists and staff counselors, the child's occupational therapy and counseling goals and objectives were of a nature that could be met by the Windward staff and its programs (Transcript pp. 105-07).  I note here that the most recent occupational therapy evaluation shows that petitioners’ son had made great progress in the area of perceptual skills during his second grade year and that he continued to have difficulty with his copying skills (see Exhibit 20; Transcript pp. 77-80), an area of need that can appropriately be addressed by Windward’s program.  With respect to the child's attentional needs, the teacher testified that the teachers at Windward were able to provide individual assistance in their classes because of small class sizes with two teachers in each class, and because they worked to see that the children stayed focused and followed directions (Transcript pp. 97-98).  The Windward third grade teacher also testified that the teachers at the school worked with children on a 1:1 basis when they had difficulty or when they became frustrated (Transcript pp. 124).

 

            Petitioners' son has identified needs in reading and writing, which are compounded by an attention deficit and language processing difficulties and fine motor needs.  The child has also experienced frustration and anxiety in relation to academics, and his social skills deficits have impeded his ability to establish friendships.  Based on the record, I find that the educational program at Windward was appropriate for his special education needs.  As explained above, Windward has an intensive and small group reading and writing program composed of children with similar needs.  It employs a methodology that has been used successfully with the child in the past.  The program as described will also address the child’s attentional needs, by its nature should not result in frustration and anxiety for him, and will provide him with needed assistance in copying skills.  I also note here that respondent makes no argument on appeal that Windward would not meet the child's needs.  With the above in mind, I find that petitioners have met their burden of proof in demonstrating that Windward is an appropriate placement  for the child for the 2003-04 school year and therefore prevailed with respect to the second Burlington criterion for an award of tuition reimbursement.

 

            The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations.  As indicated above, respondent argues that the equities do not favor the parents because it alleges that the parents "failed to cooperate" in a number of ways.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374;  Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist, 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d,  471 U.S. 359 [1985]).

 

            With respect to equitable considerations, a parent may not be penalized for demonstrating a preference for a particular educational placement by rejecting a program or placement proffered by a board of education (see Weast v. Schaffer, 240 F.Supp.2d 396, 407-408 [D. Md. 2002]; Wolfe , 167 F. Supp. 2d at 534-35; see also Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 01-068; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 00-025).  Moreover, the equities do not prohibit a parent from entering into a contract with a preferred private school prior to the date of the relevant CSE meeting (Weast, supra, 240 F. Supp.2d at 407-409; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 99-015; Application of a Child with a Disability, Appeal No. 97-44).  However, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; Weast, supra, 240 F. Supp. 2d at 406-409).

 

            In addition, tuition reimbursement may be denied or reduced because of a failure to give prior written notice of an intention to withdraw a child from 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].3

 

Regarding equities in the instant case, respondent's first claim that petitioners did not cooperate with the CSE in the development of an appropriate IEP because they did not allow a psychiatric evaluation of their son. This assertion is not persuasive.  At its January 14, 2002 meeting, and at the suggestion of petitioners’ advocate, the CSE concluded that a psychiatric evaluation was appropriate in order to assess whether the child had Asperger's Syndrome (Exhibit 7; Transcript pp. 22-23).  Petitioners then signed a release authorizing such an evaluation.  However, on January 16, 2002, the parents withdrew that consent.  Shortly thereafter, they provided the CSE with a report from a licensed psychologist who evaluated the child for Asperger's Syndrome and opined that their son did not have this condition (Exhibit 8a).  The CSE did not subsequently raise any question regarding the validity or accuracy of that report, does not now suggest that it was incomplete or inadequate, and did not again suggest the need for a psychiatric evaluation as it developed the child's IEP for the 2003-04 school year. 

 

Respondent also asserts the following as reasons supporting the denial of tuition reimbursement: petitioners were required to first object to previous CSE recommendations; petitioners should have raised objections at the April 15, 2003 CSE meeting and/or requested a CSE meeting to address their objections to Eagle Hill; and  petitioners' June 3, 2003 letter giving respondent notice that petitioner was rejecting the IEP developed at that meeting was filed too late and was not sufficiently specific. I find respondent’s assertions unpersuasive.

 

            Petitioners' right to object to the CSE's April 15, 2003 recommendation is not contingent on their first having objected to an earlier CSE’s recommendation (see 34 C.F.R. § 300.507[a][1]; 8 NYCRR 200.5[i][1]).  Nor can I find, as suggested by respondent, that petitioners have failed to raise the appropriateness of the IEP relevant here in a timely and appropriate manner.  Although petitioners did not object outright to the recommended placement at the April 15 CSE meeting, and their June 3, 2003 letter could have been more detailed (see 34 C.F.R. § 300.403[d][1]), they did give sufficient notice for respondent to reconvene a properly composed CSE meeting and offer an appropriate program.  Moreover, respondent provided no evidence that it notified petitioners of the applicability of this notice requirement.  As a consequence of the failure by respondent to give such notice, petitioners’ tuition reimbursement may not be limited on that basis (see 34 C.F.R. § 300.403[e]; see Application of a Child with a Disability, Appeal No. 03-037; Application of the Bd. of Educ. of the East Ramapo Cent. Sch. Dist., Appeal No. 99-038; Application of a Child with a Disability, Appeal No. 99-028; Application of a Child with a Disability, Appeal No. 99-013).  I also note that petitioners placed in issue the IEP that was developed in April 2003 prior to the beginning of the 2003-04 school year, which was the school year for which tuition reimbursement is being sought.  In addition, petitioners’ June 3, 2003 letter complied with the procedural safeguards notice provided to them by respondent which advised them how they were required to communicate their objections to the proposed program (see Exhibits 30, 22 p. 15).  Finally, with respect to the suggestion that petitioners had an obligation to request a CSE meeting with respect to their specific concerns regarding Eagle Hill, there is no requirement that before a parent(s) may reject a proposed program and request an impartial hearing they are first required to do that (see C.F.R. § 34 300.507[a]; 8 NYCRR 200.5[i]).

 

            A review of the record reveals that petitioners cooperated with respondent's CSE in numerous ways as it developed their son's IEP for the 2003-04 school year.  They obtained and provided detailed evaluations of their son to the CSE (see Exhibits 13, 19; Transcript p. 140).  Petitioners attended and participated in the CSE meetings to develop an IEP for their son including meetings on May 8, 2002; July 9, 2002; and April 15, 2003 (see Exhibits 11, 12, 16, 22).  Following the July 2002 CSE meeting at which the CSE discussed petitioners' son's attendance at a private school during the 2003-04 school year, as indicated above, petitioners followed up with the three private schools recommended to them by respondent staff.  This included obtaining and submitting applications as necessary, visiting willing schools, making their son available for admissions tests, and making themselves and their son available for school visits.  Further, over the course of the 2002-03 school year, petitioners discussed their son's progress with CSE members, his teachers and the principal of his school on numerous occasions (see Exhibit 18; Transcript pp. 140-41, 147, 190, 203).4

 

            Finally, contrary to respondent's claim, the record does not show that petitioners "never had any intention of enrolling their child in Eagle Hill, the placement recommended by the BOE".  Petitioners complied with the CSE chair's request to apply to Eagle Hill.  Subsequent to that time, they along with their son, traveled out of state to Eagle Hill for a two-day visit.  I also note that petitioners' concerns about Eagle Hill were specific and supported by their visit to, and observations at, the school (Transcript pp. 143-50, 152-53). 5

 

            With all of the above in mind, I therefore find that equitable considerations support petitioners' claim for reimbursement for tuition paid to Windward for the 2003-04 school year.

 

In light of this determination, it is not necessary that I address the remaining issues raised by petitioners.

 

            THE APPEAL IS SUSTAINED.

 

            IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it denied petitioners' request for tuition reimbursement for the 2003-04 school year.

 

            IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at Windward for the 2003-04 school year upon petitioners' submission of proof of payment for such expenses.

 

 

 

Dated:

Albany, New York

 

__________________________

 

February 25, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1  Consistent with this recommendation, the CSE chair testified that respondent had no program or placement within the school district for petitioners' son for the 2003-04 school year (Transcript pp. 64-65) and that there was no appropriate public placement for petitioners’ son outside of the school district for that school year (Transcript p. 65).

 

2  The decision in Application of a Child with a Disability, Appeal No. 03-088, also involved respondent Clarkstown Central School District.  In that appeal, respondent's CSE did not have in attendance a representative of a non-district school when it recommended a child for placement at that school for the 2002-03 school year.    I remind respondent of the importance of the requirements of 34 C.F.R. § 300.349[a][2] and NYCRR 200.4[d][4][i][a] and its continuing responsibility to comply with them.

 

3   This provision is wholly discretionary, not mandatory.  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). 

 

4  I note that the record does not show that petitioners precluded respondent from being able to develop an appropriate IEP for their son (Cumberland Co. Sch. Dist., supra, 190 F.3d at 86; Weast, supra, 240 F. Supp.2d at 406-409).  With respect to this, after respondent received petitioners' June 3, 2003 letter advising it that they objected to the recommended Eagle Hill placement, it took no action to schedule a further meeting to address petitioners’ concerns and to develop an appropriate IEP.  Further, had a representative from Eagle Hill been in attendance at the April 15, 2003, CSE meeting as provided for by the state and federal regulations, the parties at the meeting would have been in a position to discuss and directly address petitioners' concerns relative to that school as the CSE considered whether Eagle Hill would be able to provide the child with an appropriate educational program.  Further, on May 1, 2003, the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities recommended Shepard Academy as well as Eagle Hill as an appropriate potential Emergency Interim Placement for petitioners' son (Exhibits 26, 27).  However, there is no information in the record that the CSE followed up to determine whether an appropriate IEP could be developed with that school.  Finally, on May 18, 2003, which was after the April 15, 2003, CSE meeting but prior to the time they gave notice of their rejection of the IEP, petitioners attempted to communicate with respondent regarding their son’s placement (see Exhibit 28).

 

5  I note that respondent suggests that petitioners may not have informed the CSE at its April meeting that they had written to Eagle Hill and advised that school that they had decided not to accept its offer of enrollment (see 4 of Affirmation of Respondent’s Counsel annexed to Answer).  However, this issue was not addressed at the hearing and is therefore not a part of the hearing record.  Under the circumstances, I do not consider respondent's post-hearing suggestion to be persuasive or meriting further consideration (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-045; Application of a Child with a Disability, Appeal No. 01-038; Application of a Child with a Disability, Appeal No. 01-032; Application of a Child with a Disability, Appeal No. 99-060; Application of a Child with a Disability, Appeal No. 98-14).