The State Education Department
State Review Officer

No.  04-022

 

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE BRIARCLIFF MANOR 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

 

 

 

Appearances:
Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for petitioner, Jeffrey J. Schiro, Esq., of counsel

 

Eric S. Zaidins, Esq., attorney for respondent

 

 

DECISION

 

            Petitioner, the Board of Education of the Briarcliff Manor Union Free School District, appeals from the decision of an impartial hearing officer which ordered it to reimburse respondent for the cost of his son's tuition and related expenses at a private school for the 2002-03 and 2003-04 school years.  The appeal must be sustained in part.

 

            When the hearing began in September 2003, the student was 13 years old and an eighth grade boarding student at The Rectory School (Rectory).  Rectory is an independent boarding and day school in Pomfret, Connecticut (Exhibit C).  It has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities.  The student is classified as learning disabled and his classification is not in dispute.

 

            A private psychological evaluation of the student conducted in 2002 suggested the presence of a nonverbal learning disability affecting the student's perceptual and organizational skills.  His verbal IQ score was in the high average range (112), while his performance IQ score was in the intellectually deficient range (66) (Exhibit 9).  These results are consistent with psychological evaluations conducted in 1996 and 1998 which reflect a similar discrepancy between the student's verbal and performance IQ scores (Exhibits 9, 10, 27, 37).  Additional psychological testing conducted by one of petitioner's school psychologists in May and June 2002 confirmed learning difficulties in the areas of visual-perceptual and visual-spatial-motor processing (Exhibit 10).  These deficits impact the student’s ability to organize and reproduce information presented visually, copy from the blackboard, and to organize written work including spacing of arithmetic problems and directionality (Exhibit 10; Transcript pp. 420-22).

 

            Projective data compiled at the same time suggested that the student was fragile and struggling with feelings of anger and insecurity (Exhibit 10).  He exhibited frustration with school and a sense of futility about his ability to succeed.

 

            Additionally, the student has been diagnosed as having an attention deficit disorder (ADD) which negatively affects his attention, focus and organization (Exhibits 10, 32).  Because medication management was unsuccessful, when the student was in the sixth grade his physician attempted to manage his needs without medication (Transcript pp. 623-25).  Teachers have consistently described the student as disorganized, distracted, and unprepared for class (Exhibits 3, 39, 40, F, G).  He requires supervision to complete academic work and frequently does not complete his homework.

 

            The student began attending petitioner's schools in kindergarten (Exhibit 35).  He reportedly was evaluated during the spring of his kindergarten year because of his parents' concerns regarding difficulties remaining on task and following directions, as well as difficulties with social interaction and speech patterns (Exhibit 10).  Evaluation results revealed lower than expected academic performance scores and some suggestion of depression, manipulation and dependence.  Educational remediation and therapy were recommended, and the student began receiving private reading tutoring and speech-language therapy.  He also began seeing a therapist who specialized in behavior and self-esteem concerns in children with learning disabilities.

 

            During the first grade, the student continued to require support to complete tasks, follow routines, organize and focus (Exhibits 10, 35).  In addition to the private reading tutoring, speech-language therapy and the counseling services he had been receiving, the student received speech-language therapy twice per week at school (Exhibit 35).  Petitioner's Committee on Special Education (CSE) met in June 1997, after a May 1997 referral from the student's teacher (Exhibit 30).  The minutes from that meeting reflect that the student had difficulty with routines and unstructured time and also noted that the student needed to be to school on time.  While the CSE determined that the student did not require special education intervention, it recommended that he continue to receive supports.  Additionally, the CSE recommended an individual aide to help the student organize.

 

            Toward the end of second grade, after the student was diagnosed as having an ADD, he was found to be eligible for services pursuant to Section 504 of the Rehabilitation Act of 19731 (Section 504).  Petitioner's Section 504 Committee developed an individual accommodation plan (IAP) with services scheduled to begin in September 1998 (Exhibit 26).  The student continued to receive Section 504 accommodations during the fifth and sixth grades (Exhibits 19, 20, 23, 24). At the beginning of the student’s sixth grade 2001-02 school year, the student changed residence within the district (Exhibits 10, 12; Transcript p. 614). During the 2001-02 school year, the student's Section 504 accommodations included resource room services one period per day for organization and study skills.  He also received various program supports and modifications including preferential seating, an additional set of books and verbal assistance for all perceptual activities.

 

            In a letter dated March 11, 2002 to the student's parents, the student's guidance counselor expressed concern about the student's performance in school (Exhibit 39).  She indicated that the student's behavior and effort were inconsistent, that he had not yet learned the established routines, that he continued to be unprepared for class, that he lacked focus and was distractible, that he had numerous absences and was frequently late, that he was disorganized, that his attitude had deteriorated, and that he was failing math and science.  She indicated that a special education referral was warranted and, on April 15, 2002, referred the student to the CSE for an evaluation (Exhibit 15).  The student's most recent report card was attached to the referral.  For third quarter grades, he received a D in English, an F in math, a C- in science and a B in social studies.  Teachers' comments included inconsistent effort, not prepared for class, assignments late, not always attentive, homework not done regularly, needs to assume responsibility and occasionally does not treat adults and peers with respect (Exhibit 16).  Respondent began exploring private schools for his son when he received the referral (Transcript pp. 632-33).

 

            On April 19, 2002, the student's parents consented to the CSE evaluation (Exhibits 13, 14).  In an effort to expedite the evaluation process, respondent arranged for a private psychological evaluation of his son (Transcript pp. 64-65, 630-31).  As noted above, results of that evaluation conducted in May 2002 suggested the presence of a nonverbal learning disability (Exhibit 9).  Also as noted above, the school psychologist confirmed the presence of a learning disability.  She recommended that the student be considered for special education services, opining that he would benefit from a more structured school environment with smaller classes, increased therapeutic support and greater opportunity for individualized assistance to also encourage independence.

 

            In late May, the student's math teacher reported several concerns to the CSE chairperson including that the student continued to be unprepared for class on a daily basis, that he frequently was late for school missing a significant portion of English Language Arts, that he was late for other classes during the school day often because he had forgotten something, that he often lost focus during class and rarely followed up with substantive homework, that the current supports were not sufficient, and that he was likely to fail math and science.  She recommended a more structured, small class environment, individualized attention, significant homework support and remediation in math (Exhibit 40).  A May and June 2002 speech-language evaluation revealed that the student's overall language performance was in the average range (Exhibit 11).

 

            With the understanding that a CSE meeting would be held prior to the beginning of the 2002-03 school year, respondent consented to an extension of the evaluation process to August 30, 2002 because the CSE was unable to complete an educational evaluation of his son before the 2001-02 school year ended (Exhibit 41; Transcript pp. 65-66, 636).  The educational evaluation was conducted on August 22, 2002 (Exhibit 8).  The evaluator noted that the student was bright, but had some difficulty remaining focused, that he had difficulty with math computation and written expression, and that he required close monitoring for task completion, as well as systems for organization.

 

            The educational evaluation included a classroom observation that was conducted during the 2001-02 school year.  The evaluator reported that the student exhibited a state of confusion on a daily basis in relation to his academic work.  She noted that the student was disorganized and rarely in possession of the materials necessary to complete assignments.  He was detached and distracted, lost focus, did not have homework completed, did not function independently and often was late for class, routinely interrupting the lesson.

 

            On August 22, 2002, respondent waived the requirement that he receive written notice at least five days prior to the CSE meeting (Exhibit 7), and the CSE met on August 27, 2002 (Exhibit 6).  It classified the student as learning disabled and recommended that he be placed in an 8:1+1 special class with individual counseling twice per week for 30 minutes.  The CSE also recommended program modifications, testing accommodations and additional supports.  There was no psychologist at the meeting and no social-emotional goals were developed by the CSE (Exhibit 6; Transcript pp. 219-20).  Nor is there any notation on the student's individualized education program (IEP) that the CSE conducted or considered a physical examination of the student.  During the meeting, respondent advised the CSE that he had reserved a space for his son at Rectory, but that he wanted to keep his son in the district if an appropriate placement were offered (Transcript pp. 644, 716, 973-74).

 

            In September 2002, respondent notified the middle school principal by telephone that his son would be attending Rectory for the 2002-03 school year (Transcript p. 941) and the student began attending Rectory for seventh grade.  By letter dated September 17, 2002, petitioner's director of pupil personnel services sent respondent a copy of the student's IEP for the 2002-03 school year (Exhibit 4).  The letter also requested respondent's consent for his son to receive special education services.  Respondent did not provide consent (Transcript pp. 649-50).

 

            In a spring 2003 report, the student's advisor at Rectory described the student's spring term as one of variable success (Exhibit 3).  He indicated that the student struggled with consistency in all subjects, that he had difficulty focusing in a group, that he was frequently unprepared for class and that he did not complete homework, resulting in placement in a make-up study hall (MUSH) after school.  The student's English, reading, math and science teachers made similar comments.  The student's individualized instructor indicated that the student needed support in organization, time management and homework.

 

            On June 23, 2003, respondent requested an impartial hearing challenging his son's 2002-03 IEP (IHO Exhibit 1).  The impartial hearing officer was appointed on June 27, 2003 (IHO Exhibit 2).  That same day, petitioner's CSE subcommittee met for the student's annual review to develop an IEP for the student for the 2003-04 school year.  It recommended that the student be placed in an 8:1+1 special class with group counseling twice per week (Exhibit 1).  It continued to recommend program modifications, testing accommodations and additional supports.  Respondent received his son's IEP for the 2003-04 school year the day before the 2003-04 school year began (Transcript pp. 285-86, 663).

 

            On July 3, 2003, respondent amended his hearing request regarding the 2002-03 school year to seek tuition reimbursement and related expenses for the 2002-03 school year (IHO Exhibit 3).  On September 2, 2003, respondent requested an impartial hearing with respect to the 2003-04 school year seeking tuition reimbursement and related expenses and he advised the CSE that his son would continue to attend Rectory for the 2003-04 school year (IHO Exhibit 4).  At the request of the parties, the hearing officer assigned to the 2002-03 matter assumed jurisdiction over the 2003-04 matter (IHO Exhibit 6). 

 

            The impartial hearing began on September 30, 2003 and concluded on January 9, 2004 after six sessions.  The hearing officer rendered her decision on March 19, 2004.  She rejected petitioner's arguments that because respondent failed to consent to special education services for his son and because his son had never received special education services under the authority of a public agency, respondent did not have standing to pursue a tuition reimbursement claim.  Additionally, she concluded that petitioner failed to demonstrate the appropriateness of the program its CSE recommended for the student for the 2002-03 school year because among other things, the August 27, 2002 CSE was not properly composed, the IEP did not contain social-emotional goals, the recommended homework support was not sufficient to meet the student's needs, and the student would not have been suitably grouped in the recommended program.  For many of the same reasons, the hearing officer concluded that petitioner failed to demonstrate the appropriateness of the program its June 23, 2003 CSE subcommittee recommended for the student for the 2003-04 school year.  She found that no physical examination had been conducted, that the June 2003 IEP did not contain social-emotional goals, that no plans were made to address the student's disruptive behavior, and that the student would not have been suitably grouped in the recommended program.

 

            Finally, the hearing officer found that Rectory was appropriate for both school years and that the equities supported the parent's claims for reimbursement.  She ordered petitioner to reimburse respondent for all tuition expenses for both school years with the exception of expenses for music lessons.  She also ordered petitioner to reimburse respondent for psychotherapy expenses for his son for both school years.

 

            Petitioner appeals from the hearing officer's decision on numerous grounds.  Initially, it claims that the hearing officer erred in concluding that respondent had standing to pursue a tuition reimbursement claim.  It argues that respondent is not entitled to the remedy of tuition reimbursement for the denial of a free appropriate public education (FAPE) because he declined to consent to the initial provision of special education services and, therefore, declined to consent to a FAPE for his son.  I am not persuaded by petitioner's argument.  School districts are required to obtain parent consent prior to the initial provision of special education and related services (34 C.F.R. §§ 300.505[a][1][ii]; 200.5[b][1][ii]).  School districts also are required to fully inform parents of all information relevant to the activity for which consent is sought (34 C.F.R.  § 300.505[a][1][ii]; 8 NYCRR 200.1[l]).  Here, petitioner failed to fully inform respondent of all information relevant to the activity for which consent was being sought.  Specifically, petitioner's September 17, 2002 correspondence to respondent transmitting the student's IEP and requesting consent does not indicate that the activity for which consent was being sought was the initial provision of special education services.  Respondent credibly testified that he did not sign the consent form because he thought he was being asked to consent to the services recommended in the IEP that was enclosed with the correspondence (Transcript pp. 648-50, 705-10).  He further testified that he was not advised that if he did not provide consent he would be giving up the right to special education services for his son.  Based upon the information before me, I do not construe respondent's failure to provide consent as a failure to consent to the initial provision of special education services barring respondent from seeking an award of tuition reimbursement.

 

            Petitioner also claims that respondent lacks standing to seek tuition reimbursement because his son had not previously received special education and related services under the authority of a public agency prior to his placement at Rectory (see 20 U.S.C. § 1412[a][10][c][ii]).   This argument has been considered and rejected in prior appeals (Application of a Child with a Disability, 03-006; Application of a Child with a Disability, Appeal No. 01-068; Application of a Child with a Disability, Appeal No. 99-45; Application of a Child with a Disability, Appeal No. 98-25) Petitioner relies upon the recent decision in Greenland Sch. Dist. v. Amy N., 358 F.3d 150 [1st Cir. 2004]) to support its position.    However, the court in Greenland specifically chose not to address the issue of whether 20 U.S.C. § 1412(a)(10)(c)(ii) was intended to apply to students who had requested but not yet received special education services while in public school, the precise situation presented in this appeal.  Here, the student was referred to the CSE and the evaluation had commenced while he was still attending public school.  State Review Officers have consistently declined to find that 20 U.S.C. § 1412(a)(10)(c)(ii) was meant to preclude an award of tuition reimbursement to the parent of a child who has not previously received special education from a public agency.  I am not persuaded that the Greenland decision requires that I reconsider that position in light of the circumstances presented in this case (see also, Letter to Lugar, 33 IDELR 126 [OSEP 1999][“We do not view [14]12(a)(10)(C) as foreclosing categorically an award of reimbursement in a case in which a child has not yet been enrolled in special education and related services under the authority of the public agency”]; see generally, Placement of Children by Parent if FAPE is at Issue, 64 Fed. Reg. 12601, at 12602 [Mar. 12, 1999]).

 

            Petitioner also appeals from the hearing officer's award of tuition reimbursement.  The Individuals with Disabilities Education Act (IDEA) guarantees disabled students a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]).  The Supreme Court has determined that tuition reimbursement may be an appropriate remedy for certain enumerated violations of the IDEA (20 U.S.C. § 1415[i][2][A]).  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 known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

 

            Petitioner 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, petitioner must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-015), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).   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]).

 

            I will address the 2002-03 school year first.  The hearing officer found that petitioner failed to demonstrate the appropriateness of the program recommended by its CSE for the 2002-03 school year because among other things, the CSE that developed the student's IEP did not include a school psychologist and the IEP did not include any goals to address the student's social and emotional needs and behavioral difficulties.

 

            State regulation requires that a CSE include a school psychologist (8 NYCRR 200.3[a][1][iv]).  Petitioner does not dispute that there was no school psychologist at the August 2002 CSE meeting.  It asserts, however, that its director of pupil personnel services was capable of interpreting the instructional implications of the psychological evaluations.  The fact that petitioner's director of pupil personnel services may be capable of interpreting the instructional implications of the psychological evaluations is not sufficient to meet the regulatory requirement that a school psychologist attend a CSE meeting.  The record shows the student had been receiving counseling from a specialist in behavior and self-esteem concerns in children with learning disabilities (Exhibit 10).  The record further shows that in addition to his deteriorating academic performance, the student was referred to the CSE because of concerns about his emotional functioning.  Psychological testing identified a significant discrepancy between the student's verbal and performance IQ scores.  Projective testing suggested that the student was fragile, that he was struggling with feelings of anger and insecurity, and that he had a sense of futility and inadequacy.  The psychologists who evaluated the student recommend social-emotional intervention.  Given these identified concerns, a school psychologist would have been able to provide valuable information regarding the student's disability and its impact on his academic and social-emotional functioning.  Accordingly, I find that the absence of a school psychologist from the August 2002 CSE meeting compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP.

 

            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. 03-037; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  An IEP must indicate the individual needs of the student in the areas of academic or educational achievement and learning characteristics, social development, physical development and management needs (8 NYCRR 200.4[d][2][i]).  Additionally, an IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student's needs which arise from his or her disability (see 34 C.F.R. § 300.347[a][2]; Application of a Child with a Disability, Appeal No. 00-058; 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1). 

 

            Despite recommendations by the psychologists who evaluated the student for social-emotional intervention, the August 2002 IEP indicates that there are no social or emotional needs that should be addressed through special education (Exhibits 6, 9, 10).  Both the school psychologist and the director of pupil personnel services testified that the IEP statement regarding the student's social-emotional needs was inaccurate (Transcript pp. 227, 382).  Therefore, I find that the IEP does not accurately reflect the results of evaluations to identify the student's needs.  Additionally, the IEP does not establish annual goals and short-term instructional objectives related to the student's social-emotional needs.  There are no social emotional goals or objectives on the student's IEP.  The school psychologist testified that it would have been appropriate to establish social-emotional goals (Transcript pp. 387-91).  Petitioner's contention that the absence of social-emotional goals is not significant because social skills counseling is a component of the recommended program is inconsistent with the requirement that an IEP be in effect before special education and related services are provided (300.342[b][1][i]).  The absence of annual goals and objectives related to an identified need from which progress, or lack thereof, could be measured, resulted in an IEP that was substantively inadequate and not reasonably calculated to provide educational benefit.

 

            Further, pursuant to 8 NYCRR 200.4(b)(1)(i) an initial evaluation must include a physical examination.  As noted by the hearing officer, there is nothing in the record to show that the CSE conducted a physical examination of the child or reviewed a physical examination report.  The student's IEP identified the use of medication for attention deficit hyperactivity disorder (ADHD) as an additional area of need.  I note that the student has been diagnosed as having an ADD not an ADHD.  Given the student's ADD diagnosis and the various attempts at management of his symptoms with and without medication, a physical examination would have provided useful information about how to meet the student's needs.  For the above reasons, I find that the recommended 2002-03 IEP is inappropriate, and as a result petitioner failed to offer the student a FAPE (M.S. 231 F.3d at 103-04; Evans, 930 F. Supp. at 98).  I further find that respondent has prevailed with respect to the first criterion for an award of tuition reimbursement.

 

            With respect to the second criterion for an award of tuition reimbursement, the student's parent bears the burden of proving the appropriateness of the services provided to the student by the private school (M.S., 231 F.3d 96, 104; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29).  In order to meet that burden, the parent must show that the private school offered an educational program which met the student's special education needs (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29).  The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 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]).

 

            Rectory is an independent junior boarding school for boys in fifth through ninth grade and a day school for boys and girls in fifth through ninth grade (Exhibit C; Transcript pp. 755-56).  Instruction is provided in classes of no more than 12 students and students are placed into varying levels depending on the amount of support they require (Exhibit C).  Level 1 students require no support and are on an accelerated track.  Level 2 students require some support to work at grade level.  Level 3 students require considerable academic support as well as direction initiating and completing assignments (Transcript pp. 761-62).  Curriculum modifications are made for Level 3 students including in-class reading or dividing reading assignments into sections, teacher directed reading and modifying accompanying activities (Transcript p. 764).  Additionally, the amount of written output required for a given assignment is reduced, the amount of homework is reduced, note taking is facilitated, and students work at a slower pace with more hands-on activities (Transcript pp. 763-66, 897-898).

 

            Rectory also offers an Individualized Instruction Program (IIP) which provides a daily 35-40 minute session of individual tutoring (Exhibit C; Transcript pp. 756-59, 851).  Rectory's director of individualized instruction assigns a trained tutor to each student based upon information regarding the student's learning style, testing, past school performance and teacher recommendations (Transcript pp. 757-58, 851-52).  Initially, tutors focus on organization (Transcript p. 758).  Students are provided with an assignment notebook and are responsible for writing down daily assignments for each class and reviewing this information with the tutor (Exhibit C; Transcript pp. 758-59).  Tutors review the students' daily assignments and communicate frequently with classroom teachers to discuss progress and any areas of study that may need specific instruction (Exhibit C).

 

            Another component of Rectory's program is MUSH, a study hall immediately after school during which direct academic support is provided to students (Transcript pp. 768-69).  Students who do not complete their assignments during the day are assigned to MUSH, when they otherwise would have free time (Exhibit C; Transcript p. 768).  Additionally, after dinner each evening, boarding students have a two hour monitored study hall to complete homework assignments (Exhibit C; Transcript p. 766).

 

            Further, social and emotional support is provided to students by Rectory staff (Transcript pp. 770-71).  In addition, a school psychologist is available twice per week and families can contract with him independently to provide additional psychotherapy for their children (Transcript p. 771).  Students also receive weekly behavior grades and face consequences for inappropriate behavior including loss of privileges, detention study hall and following the dress codes on weekends when the dress codes is relaxed (Transcript pp. 776, 779-80).  Positive incentives, such as going to the movies or a ball game, are used to reward good behavior (Transcript p. 781).

 

            I agree with the hearing officer that Rectory offered an educational program which met the student's special education needs.  As noted above, the student had academic, social-emotional and behavioral needs and required small classes, individualized attention and organizational and homework support in a structured environment.  The Rectory program addressed the student's academic needs in various ways.  With the exception of math for which only two levels were scheduled (Transcript pp. 789-90), the student was enrolled in the Level 3 program for the 2002-03 school year, where he received considerable support and individualized attention (Transcript p. 763).  Additionally, he was enrolled in Rectory's IIP.  The tutor assigned to the student had a background in math, an area of weakness for the student  (Transcript p. 874).  She focused on organization, such as paper management and assignment notebook requirements.  She also focused on homework, including helping the student understand homework assignments and how to proceed with assignments, as well as how to complete homework on a daily basis (Transcript p. 854).  Additionally, the student was frequently assigned to MUSH where he was provided direct assistance to complete assignments (Transcript p. 815).

 

            Rectory also provided support and intervention to address the student's social-emotional and behavior needs.  The assistant headmaster, director of student services, and director of admissions provided informal counseling to the student on a regular basis (Transcript pp. 770-71, 817).  In addition to weekly behavior assessments and consequences, the student's behavior needs were addressed through informal counseling by Rectory staff and consultations with the psychologist (Transcript pp. 770-73).  Further, the director of academic administration testified that opportunities to guide the student's behavior were presented at mealtimes as well as in the classroom (Transcript pp. 897-902).

 

            The record shows that during the 2002-03 school year, the student showed improvement in the areas of settling into a routine, maintaining concentration in class and interacting with peers (Exhibit D).  His effort in math improved over the course of the school year (Exhibit D; Transcript p. 786).  The student’s assignment to MUSH and his reliance on his tutor decreased (Transcript pp. 782-783, 815, 856, 881).  Although the student's conduct grades throughout the year were consistently in the satisfactory range, respondent and Rectory staff testified that the student's behavior management had improved (Transcript pp. 665, 776-779, 785, 900-901).

 

            With respect to reimbursement for the residential component of Rectory's program, I must determine whether the student 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. 03-062; Application of a Child with a Disability, Appeal No. 01-083).  The record shows that despite receiving Section 504 accommodations while in sixth grade and a private tutor for a significant portion of that year, the student continued to exhibit difficulty with homework completion and organization (Transcript pp. 618-621, 626, 948-49, 951).  The record further shows that the student's difficulty completing homework and his organization deficits negatively affected his educational performance (Exhibits 40, 43; Transcript pp. 100, 429-30, 435-36, 698).  Through its evening study hall, Rectory provided a structured environment to address the student's homework and organizational needs (Transcript pp. 792-93).  The residential program also provided consistency with respect to behavior expectations after school in the evenings and on weekends (Transcript p. 793).  The director of admissions at Rectory opined that the "all inclusive nature of boarding was a big factor" in the student's progress (Transcript p. 793).  In light of the above, I find that the student required a residential setting in order to receive educational benefits.

 

            While a residential placement is considered to be among the most restrictive of educational placements, Rectory's program does provide opportunities for the student to interact with nondisabled peers.  Rectory is also a day school for boys and girls (Exhibit C).  It does not have the designation of a special education school (Transcript pp. 756, 798), and no more than 50 students have an IEP developed by a public school district (Transcript p. 813).  Students in different instructional levels have the opportunity to interact with each other in the dormitories, on athletic teams and in the dining hall (Transcript p. 781).  Based upon the above, I find that Rectory offered an educational program which met the student's special education needs.  Accordingly, I find that respondent is successful with respect to the second criteria for an award of tuition reimbursement. 

 

            The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim.  The 1997 IDEA amendments clarify the circumstances under which parents who unilaterally remove their children from private school may receive tuition reimbursement (Ms. M. v. Portland Sch. Comm., 360 F.3d 267, 271 [1st Cir. 2004]).  As such, tuition reimbursement may be reduced or denied, if, notwithstanding being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][10][C][iii], 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e][4]).  Under this statutory provision, a reduction in reimbursement is discretionary (Application of the Bd. of Educ. of the Northport-East Northport Union Free School District, Appeal No. 03-062; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Poughkeepsie, Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054; Application of a Child with a Disability, Appeal No. 00-027).

 

            Petitioner asserts that respondent failed to comply with the applicable notice requirements because he formed the intent to place his son at Rectory prior to the August 2002 CSE meeting, but did not provide notice that he was seeking reimbursement until the following July.  Respondent testified that at the August 2002 meeting he advised the CSE that he had reserved a place for his son at Rectory, but that he wanted to keep his son in the public school if an appropriate placement were offered (Transcript pp. 644, 716, 973-74).  Respondent further testified that he contacted the principal's office in September 2002 to advise him that his son would be attending Rectory because he had not yet received his son's IEP and Rectory's school year would be starting (Transcript p. 941).  He further indicated that he did not provide any written notice to the school.  Respondent received his son's IEP around September 20, 2002, after both the public school and Rectory had started (Transcript pp. 647-48).

 

            There is no dispute that respondent failed to comply with the applicable notice requirements.  Additionally, there is no indication in the record that at the August 2002 CSE meeting when he advised the CSE that he had reserved a place for his son at Rectory or in his conversation with the principal the following month, that he was placing his son at Rectory at public expense.  In fact, in his initial hearing request dated June 23, 2003 respondent did not request tuition reimbursement (IHO Exhibit 1).  Rather, he amended his hearing request on July 3, 2003 to seek tuition reimbursement (IHO Exhibit 3).  Given that respondent failed to provide the requisite notice, that there is no indication in the record that he stated his concerns about the proposed placement, that he failed to inform petitioner that he intended to enroll his son in Rectory at public expense, that he waited until the end the school year to request a hearing on the 2002-03 IEP, then waited another week to seek tuition reimbursement, I am unable to find that the equities support respondent's claim.  Consequently, I find that respondent is not entitled to an award of tuition reimbursement for the 2002-03 school year.

 

            With respect to the 2003-04 school year, I agree with the hearing officer that petitioner did not demonstrate the appropriateness of the program recommended by its CSE.  Although the June 2003 IEP indicated that the student had social-emotional needs and had demonstrated inappropriate behavior, and despite having before it information that certain behaviors were continuing, the CSE again failed to establish goals to address these needs.  Further, although the June 2003 CSE meeting was an annual review for which a physical examination is not required, there is nothing in the record to show that the CSE had obtained a physical examination report, despite its failure to do so for the initial evaluation.  In fact, there is no information on the June 2003 IEP about the student's ADD diagnosis even though the IEP identified attending, focus and organizational needs.  A physical examination report would have provided useful information about the current impact, if any, of ADD on the student's educational performance.  As I found with respect to the August 2002 IEP and for the above reasons, I find that the June 2003 IEP is inappropriate, and that petitioner failed to offer a FAPE to the student for the 2003-04 school year.  I further find that respondent has prevailed with respect to the first criterion for an award of tuition reimbursement for the 2003-04 school year.

 

            With respect to the second criterion for an award of tuition reimbursement, I find that respondent has met his burden demonstrating that Rectory offered an educational program which met the student's special education needs for the same reasons set forth above in the discussion relating to the 2002-03 school year.  While the student showed improvement at Rectory, he still required support to address his deficits (Transcript pp. 855-58).  Specifically, for the 2003-04 the student remained in the Level 3 program as well as the IIP (Transcript p. 763).  His tutor helped him to stay focused, to prioritize time and to initiate tasks with the use of organizational and planning aids (Transcript p. 855).  The student's average improved from the previous year (Exhibit H; Transcript pp. 665-67, 787, 906).  In addition, his assignments to MUSH decreased in the 2003-04 school year (Transcript pp. 782-83, Exhibit H).  The student’s behavior also improved during the first half of the school year (Transcript pp. 785, 791-792, 901, 907-908).

 

            I also find that equitable considerations support respondent's claim for the 2003-04 school year.  Petitioner argues that respondent did not provide notice of his intent to continue his son's private placement and seek reimbursement until the day before the 2003-04 school year began and therefore should not be awarded tuition reimbursement on equitable grounds.  The holdings in Burlington and Carter stand for the proposition that tuition reimbursement may be awarded as "appropriate relief" if supported by equitable considerations (see generally, Placement of Children by Parent if FAPE is at Issue, 64 Fed. Reg. 12601, at 12602 [Mar. 12 1999]).  Given the facts of this case, I find that respondent notified petitioner and placed in issue the 2003-04 IEP in a time frame that allowed petitioner to address respondent's concerns relative to the IEP (Application of a Child with a Disability, Appeal No. 03-091).  In the absence evidence demonstrating that respondent failed to cooperate in the development of the IEP or otherwise engaged in conduct which precluded the development of an appropriate IEP, I concur with the hearing officer's finding that equitable considerations support respondent's claim for tuition reimbursement.  Accordingly, I find that respondent is entitled to an award of reimbursement for the tuition and residential costs at Rectory for the 2003-04 school year.

 

            The hearing officer also awarded respondent reimbursement for psychotherapy expenses for both school years.  However, there is no information in the record to support this award.  The record shows that families of Rectory students had the opportunity to contract independently with the psychologist for his services.  The psychologist did not testify at the hearing.  There are no reports or other exhibits in the record describing the services he provided.  The Rectory staff who testified had no information about the services the psychologist provided to the student (Transcript pp. 902, 904, 920-21).  Accordingly, I find that the hearing officer erred in awarding reimbursement for psychotherapy expenses (Application of a Child with a Disability, Appeal No. 97-71).

 

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

            IT IS ORDERED that the hearing officer's decision is annulled to the extent that she awarded reimbursement to respondent for tuition and related costs for the 2002-03 school year and to the extent that she awarded reimbursement for psychotherapy expenses for the 2003-04 school year.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

June 23, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

 

1  29 U.S.C. §§ 701-796(l) 1998