The State Education Department
State Review Officer

 

No. 04-026

 

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE SCARSDALE 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:
Keane & Beane, P.C., attorneys for petitioner, Eric L. Gordon, Esq., of counsel

 

S. Jean Smith, Esq., attorney for respondent

 

DECISION

 

            Petitioner, the Board of Education of the Scarsdale Union Free School District, appeals from the decision of an impartial hearing officer that ordered petitioner to reimburse the student's parent for tuition and other expenses incurred by her unilateral placement of her son at the Pathways School (Pathways) for the 2003-04 school year.  The appeal must be sustained in part.

 

The impartial hearing in this matter commenced in November 2003.  At that time respondent's son was nine years old and a fourth grade student at Pathways.  Pathways is a nonpublic school, which has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities.

 

The student's prior educational history and evaluations are discussed in Application of a Child Suspected of Having a Disability, Appeal No. 03-095, and familiarity with the facts in that decision will be assumed.  In Application of a Child Suspected of Having a Disability, Appeal No. 03-095, I denied petitioner's request for tuition reimbursement for her placement of her son in Pathways for the 2002-03 school year finding that the district offered a public school educational program that was reasonably calculated to provide educational benefit.  This appeal involves a dispute over tuition reimbursement for the 2003-04 school year.  The student is currently classified as other health impaired and this classification is not in dispute.1

 

The student appears to demonstrate many needs similar to those outlined in my prior review.  The student still has difficulty with the auditory processing of language and delays in pragmatic language and graphomotor skills (Transcript pp. 411, 412, 413, 424, 449).  He has significant attentional difficulties and is internally and externally distracted much of the time, requiring redirection (Transcript pp. 414, 416, 424).  Coping with unstructured time presents significant difficulties for him (Transcript pp. 416, 449).  The child also has difficulty with organization, socialization (due to pragmatic language deficits) and has behavioral issues (Transcript pp. 412-13, 416, 424, 427).2  The record before me reflects that little objective evaluative or assessment data was created between the August 21, 2002 Committee on Special Education (CSE) meeting, which was the subject of Appeal No. 03-095, and the June 20, 2003 CSE meeting which is the subject of this appeal (Transcript p. 35).  New evaluative data considered at the June 20, 2003 CSE meeting were the following: a Pathways progress report from the 2002-03 school year (District Exhibit 9); a Speech and Language Report dated June 3, 2003 (District Exhibit 15); and an Occupational Therapy (OT) Progress Summary dated March 31, 2003 (District Exhibit 13).  

 

            During the 2002-03 school year, respondent’s son received group OT for 30 minutes, once a week.  The OT  report  stated that the child had made progress but that he displayed moderate delays in fine motor, gross motor, visual motor, and sensory motor skills and that these deficits interfered with the acquisition and mastery of skills necessary for classroom success.  The therapist noted that respondent's son exhibited visual motor integration and visual motor coordination delays of more than a year.  She recommended that the child's OT program be continued (District Exhibit 13).

 

            The child's speech-language pathologist prepared a progress report in June 2003 (District Exhibit 15).  At the time of the report respondent's son received group speech-language therapy for 30 minutes, twice a week.  The speech-language therapist reported that "good progress" had been made but that weaknesses continued.  Auditory processing remained an area of weakness and the child’s response to auditory input remained poor.  The child continued to require visual cues and refocusing in sequencing and to struggle with "more abstract" rules of English.  Respondent's son also had continued difficulty organizing narratives and knowing the difference between relevant and irrelevant information in conversation exchanges.  The report also indicated that the student’s behavior had "greatly improved" during the 2002-03 school year.  The speech-language pathologist recommended that the child continue to receive speech-language therapy.

 

            The Pathways third grade progress report indicated approximate functional grade levels for each academic area (District Exhibit 9). The report stated that the student was functioning below grade level in all academic areas, except for spelling, but there was progress in behavior, mathematics, oral reading, peer interaction, and interest in all academic activities. The report did not reveal any objective basis or formal testing to determine performance level or progress.

 

            The record does not demonstrate that either Pathways or petitioner tested the student to determine what he had learned during the 2002-03 school year.  Neither did petitioner request that Pathways conduct standardized testing, although the Pathways special education teacher testified that such testing is conducted when requested by a district (Transcript p. 415).  Unlike the prior year, a classroom observation by petitioner of the child did not take place in preparation for the CSE meeting.

 

            The child's CSE met on June 20, 2003 for the child's annual review for the 2003-04 school year.  The CSE recommended that the child attend a fourth grade self-contained special class at petitioner's Greenacres School with a staff to student ratio of 12:1+1 (District Exhibit 1; Transcript p. 75).  It also provided for mainstreaming the child for remedial reading instruction with a small group of regular education students (Transcript pp. 103-04).  The CSE recommended that the child also be mainstreamed in "specials" (including art, music, library, chorus, and gym) and in a homeroom with regular education students (District Exhibit 1 p. 2; Transcript pp. 103, 268, 321, 322, 355).  It also recommended continued speech-language therapy and occupational therapy (District Exhibit 1 p. 1; Transcript p. 79).

 

            An impartial hearing took place on November 6 and December 4, 2003 and February 13, 2004.  The hearing officer issued his decision on April 2, 2004 awarding tuition reimbursement.  This appeal ensued.  The hearing officer determined the following: the evaluations, reports and other information considered by the CSE were not current or sufficient to allow for development of a meaningful individualized education program (IEP); parental consent was not withheld for the collection of needed educational data and that even if consent was withheld the district could have pursued evaluations by using due process procedures; the district failed to determine what additional evaluative data was needed prior to the CSE meeting; the district failed to conduct a functional behavioral assessment (FBA); that placement at Pathways for the 2003-04 school year was appropriate and in the least restrictive environment (LRE); and that equitable considerations supported an award of tuition reimbursement.   

 

            Petitioner contends that the hearing officer erred in awarding tuition reimbursement and argues that the CSE had sufficient information to develop an appropriate IEP, the Pathways placement is not the LRE for the student and is therefore an inappropriate placement, and that equitable considerations favor petitioner because respondent withheld consent for evaluations and did not make timely notification of dissatisfaction with the offered educational program.   

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]) which is tailored to meet the student's unique needs.  A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]).  The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

 

            A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).  To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), 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]).  As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130). The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  State and federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[b][5][ii][b] and [d][2][i][a]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Question 1).

 

            An IEP must include measurable annual goals, with benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii][a] and [b]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii] and [x]). 

 

            Turning now to the question of whether petitioner offered a FAPE to respondent’s son, I agree with the hearing officer that the IEP developed by the June 20, 2003 CSE for the 2003-04 school year did not contain an adequate statement of the child’s present levels of educational performance and therefore was not reasonably calculated to provide educational benefit.  Without an objective measure of the student’s progress during the 2002-03 school year the CSE lacked the information necessary to determine the student’s present levels of performance at the time the IEP was developed and thereby establish a baseline for the 2003-04 IEP. 

 

            The ‘present levels of performance’ section of the June 30, 2003 IEP reflects the results of the standardized tests administered in 2001 and 2002, and also contains a narrative description of the student’s academic, social, physical and management needs.  A significant portion of the narrative was written in August 2002 prior to the 2002-03 school year (District Exhibit 1, pp 2-5), although parts of it were updated at the June 2003 CSE meeting (District Exhibit 1, p. 3). 

 

            The June 30, 2003 IEP indicates the student is functioning at the second to third grade level in all academic areas and his academic skills are below grade expectancy.  According to the IEP, the student was scheduled to be mainstreamed into a regular education reading group after the first month of school, however it is noted that this suggestion was based on previous information which indicated the student could read at grade level.  While the narrative developed in August 2002 describes specific academic skills mastered by the student (able to answer literal and inferential questions related to texts he has read, identifies three digit numbers, skip counts, uses ordinals) the June 2003 update is devoid of such information. Although the updated narrative indicates the student’s academic skills are below grade expectancy it does not provide details regarding specific skills the student has mastered related to reading, math, written expression or spelling. Nor does it specify, other than globally, the areas of deficiency that contribute to the student’s delayed academic performance and require remediation. For example, the 2002-03 IEP indicates (under present levels of performance) that the student has difficulty telling time to the half hour and contains an objective to “tell time to the half hour with 70% accuracy”.  No new information regarding the student’s ability to tell time is contained in the 2003-04 IEP.  The objective to “tell time to the half hour” is dropped.  A generic goal of “demonstrate an understanding of time concepts” is carried over from the previous IEP.  By looking at the IEP there is no way of knowing what, if any, time concepts the student has mastered.  It is not clear if the student continues to struggle with this concept or if he has mastered the ability to tell time to the half hour and is ready to move on to telling time in quarter hour or five minute intervals.

 

            In addition to the lack of academic information, the IEP does not appear to reflect the student’s fine motor or sensory motor needs as described by the occupational therapist in her March 2003 progress report. 

 

            Without an accurate baseline of educational performance the CSE lacks a basis for projecting annual performance and for developing meaningful, measurable goals and objectives for the 2003-04 school year (see, Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, 96 [S.D.N.Y. 1996];  Application of the Bd. of Educ., 01-092; Application of the Bd. of Educ., Appeal No. 99-033; Application of a Child with a Disability, Appeal No. 96-62; see also 34 C.F.R. § 300.347[a][1],[2]; 8 NYCRR 200.4[d][2][i],[iii]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  

 

            Although petitioner asserts that the Pathways special education progress report (District Exhibit 9) sufficiently identifies present levels of performance, the report does not contain objective data, and while subjective teacher observation provides valuable information, teacher observation, by itself, is not an adequate method of monitoring a student's progress in his areas of academic need (Evans, supra at 96; Application of a Child with a Disability, Appeal No. 02-041; see also New York State Education Department's Sample Individualized Education Program (IEP) and Guidance Document, December 2002 pp. 54-61).

 

            The impartial hearing officer also determined that the June 20, 2003 CSE's proposed placement for 2003-04 was inappropriate because of “stale” and “inadequate” data used to support the significant change in placement.  I agree.  The June 20, 2003 CSE recommended that the child be placed in a 12:1+1 class and mainstreamed with regular education children in homeroom and in special instructional classes including art, music, chorus, library, and physical education (District Exhibit 1 p. 2; Transcript pp. 103, 268, 321, 322, 355).  The anticipated size of these classes was approximately 25 students (Transcript p. 268). Pathways had less than 20 students and included at least 18 instructional or specialized personnel (Transcript pp. 411, 441-42, 453).  The child's class at Pathways included a special education teacher, a classroom aide, and seven students (Exhibit 26; Transcript pp. 411, 443).  Moreover, even in his small, contained, and well-structured environment, because of his attentional and behavioral needs, respondent's son required the regular and continuing attention of his teacher and the implementation of a positive behavioral management plan (Transcript pp. 414, 419-20, 432-34, 450, 457-59).  The child’s certified special education teacher, who had taught him for more than two school years at the time of the hearing, testified that respondent's son needs a small, structured classroom and that he "thrives on structure and small group settings" and that "in a larger environment with lots of children he would find it difficult to filter out the external stimuli and maintain his focus" (Transcript pp. 422, 431).  This teacher also explained that "unstructured" or "free recess time" was very difficult for respondent’s son and could result in over stimulation leading to inappropriate physical and verbal behavior on his part (Transcript pp. 416, 449).  The educational environment at Pathways also included the presence of teachers and other staff during physical education, lunch, and other such activities to address his attentional and behavioral needs (Transcript pp. 442-43, 449-50).  Pathways provided instruction in subjects such as music and art  within the child’s regular self-contained classroom setting (Transcript pp. 416, 443, 447).  Although his Pathways teacher testified that she looked to his placement in inclusion and mainstreaming environments at some point in the future, she believed that he should be placed in a small, language-based special education setting for the fourth grade for his instructional needs (Transcript pp. 425-26).

           

            The IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be placed in a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 03-024; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).  I agree with the impartial hearing officer that the CSE did not consider current data from the 2002-03 school year to determine the appropriateness of the offered 2003-04 placement or the need for supplementary aids and services to support such a placement (Hearing Decision p. 15).

 

In addition, the written IEP did not accurately reflect the program that would be implemented. Testimony at the hearing reflected that the district's program would also have included an inclusion class in science or social studies every afternoon (Transcript p. 322).  There is nothing in the record to show that the CSE discussed instructing the child in such an inclusion class or that it recommended the class as part of his instructional program.

 

            For the reasons discussed above, I concur with the determination of the impartial hearing officer that petitioner has not demonstrated that it offered the child a FAPE by recommending an IEP that was substantively appropriate.3  

 

            Respondent bears the burden of proof with regard to the appropriateness of the educational program in which she enrolled her 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, respondent must show that Pathways offered an educational program that met her 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 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 Co. Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  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 entitlement 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]).

 

            Pathways is a private school that provides special education to children on the autistic spectrum and to those with neurological and communication disabilities (Transcript pp. 410, 423).  The child's special education teacher at Pathways for the 2003-04 school year has a master's degree in special education with a concentration in language and learning (Transcript p. 409) and is certified in New York State to teach special education (Transcript pp. 410-11).  She testified at the hearing that the student's class at Pathways is small with six children and a classroom aide (District Exhibit 25; Transcript p. 443).  The teacher follows the New York State curriculum, modifying when necessary, and instructs the student's class in areas including math, English, language arts, reading, social studies, science, and art (Transcript pp. 415, 443).

 

The Pathways' special education teacher addressed the child's auditory processing and memory difficulties by presenting him with instruction and/or directions in smaller amounts or "chunks" (Transcript pp. 412, 436), in different modalities, and in techniques geared individually to him (Transcript pp. 418, 423-24).  She regularly redirects the child to address his attentional needs and to keep him on task and directed to his school work (Transcript pp. 414, 432, 450, 457-59).  She also implemented a behavior intervention system that focused the child on instruction and related activities that has significantly minimized disruptive conduct (Transcript pp. 419-20, 432-34).  Recess activities at Pathways included structured periods that allowed the child to participate and  maintain appropriate organization, behavior, and focus (Transcript p. 416).  The school used modeling, role-playing, and interactive play to improve his social skills (Transcript p. 435).  His teacher also included sensory and gross motor activities in her class to address those needs (Transcript p. 416).  Teachers were present for all school and related activities including recess, gym, lunchtime, in the hallways, at the school restroom, and in the parking lot to address non-academic issues that might arise (Transcript pp. 442-43, 449-50, 454).  Speech-language therapy and occupational therapy were provided to address the child’s individual speech-language and motor needs (District Exhibit 13, 15; Transcript pp. 416, 423, 444-45, 451). 

 

The hearing record reveals that respondent's son has made consistent and significant educational progress  since enrolling at Pathways at the beginning of the 2001-02 school year (see District Exhibits 1, 4, 5A, 7, 8, 9, 10, 12, 13, 15; Transcript pp. 411-14, 416, 418, 419, 420, 421, 424, 427, 431-32, 433-34, 449, 451-52, 461-63).   Although there is a lack of objective data, subjective and anecdotal information suggests that progress continued during the 2003-04 school year.  The Pathways special education teacher testified that during the current school year the child  made "significant progress" in reading and math ( Transcript p. 418).  Further, he now consistently asks for help or assistance when he doesn't understand what is expected (Transcript pp. 418, 419) and has improved his ability to interact with peers (Transcript p. 419).  Additionally, the frequency of his disruptive conduct has been significantly reduced and is now infrequent (Transcript pp. 431-32, 451-52, 461-63).  Generally, the child's behavior is now able to be managed by a behavior modification system relying on delayed rather than immediate gratification, as was previously necessary (Transcript pp. 420, 431, 433-34) and is an improvement.  The child's graphomotor and keyboarding skills have also improved (Transcript p. 413).  Finally, while respondent's son continues to be internally and externally distractible much of the time and needs regular redirection by his teacher, he understands that better now and he is able to more readily be redirected by the teacher (Transcript p. 414).

 

Petitioner asserts that Pathways is not an appropriate placement.  It claims that the child's performance was "solidly on grade level on most subject (sic)" prior to enrolling there and that now he is "below grade level" (Answer ¶ 67).  The record does not support this contention.  There are no comparable standardized test results from which such a conclusion may be drawn.  Further, the child's test scores from April 2001 (during the last school year that he was enrolled at petitioner's school) do not show that he was "solidly on grade level" in most subjects as claimed.  To the contrary, respondent's son scored below his grade level at the time of the testing in four of seven tests relating to reading, mathematics, and written language (see District Exhibit 1).  Moreover, even if the child had performed better at respondent's school in the first grade than at Pathways in the third grade, there is no showing that he should have had the same degree of difficulty with first grade material as with third grade material (Application of the Bd. of Educ. of the Springville-Griffith Institute Cent. Sch. Dist., Appeal No. 02-036).

 

Petitioner contends that because Pathways did not provide the child with an opportunity for education with nondisabled students, LRE considerations precluded his placement there.  I concur with the hearing officer that this fact did not require a finding that Pathways was not an appropriate placement for respondent's son.  Consideration of LRE applies to unilateral parental placements (M.S., 231 F.3d at 105).  However, it must be balanced against the requirement that each student receives an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2nd. Cir. 1989]). 

 

            I concur with the impartial hearing officer and find that the child's program at Pathways meets the child’s needs and that respondent has met her burden of demonstrating the appropriateness of her placement of her son at that school. Therefore, respondent has prevailed with respect to the second Burlington criterion for an award of tuition reimbursement for her son's attendance at that school for the 2003-04 school year. 

 

The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations.  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 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 v. Schaffer, 240 F. Supp. 2d 396, 406-409 [D. Maryland 2002]).

 

            The 1997 IDEA amendments also provide that tuition reimbursement may be denied or reduced, if notwithstanding their 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).  Moreover, the provision will not apply if the parents had not received notice of it pursuant to IDEA's procedural safeguards provisions (see 20 U.S.C. 1412[a][10][C][iv][IV]). 

 

            Petitioner first contends that equitable considerations preclude an award of tuition reimbursement to respondent because, despite its request in January 2003 that respondent return a district form authorizing it "to evaluate" her son, respondent did not provide such consent until she submitted a May 11, 2003 consent form, and that as a result, petitioner did not have sufficient time to evaluate the child before the June 20, 2003 CSE meeting.  I am not persuaded by petitioner’s argument  Although petitioner wrote respondent on January 30, 2003 and asked her to sign and return a consent form, the consent form it asked her to sign was entitled "Parent Unilateral Placement Acknowledgement Form" and included language which, when returned, would advise petitioner that respondent had "unilaterally elected to place (her) child in a private school at (respondent’s) expense" (District Exhibit 9; Parent Exhibit 4 p. 1-3; Transcript pp. 177, 396-97).  A fair reading of the form suggests that it was designed for a situation where a parent has made a unilateral private school placement when FAPE is not at issue (20 U.S.C. § 1412 [a][10][A]). As used here, when FAPE is at issue (20 U.S.C. 1412 [a][10][C]), the form served primarily as a request for a waiver of tuition reimbursement.

 

            Also, contrary to petitioner’s claim, the form petitioner sent did not address consent "to evaluate" the child, but in relevant part sought consent for the release of educational records and the classroom observation of the child (see District Exhibit 9, Parent’s Exhibit 4).   Respondent provided petitioner with such consent approximately six weeks before the June 20, 2003 CSE meeting using a different consent form that she had from the prior year.  In response to the receipt of that consent, Pathways provided the CSE with all relevant reports relating to the child in advance of the CSE meeting (District Exhibits 1 pp. 5, 9, 13, 15; Transcript p. 108).  Petitioner’s assertion that it "did not have adequate time" to obtain an observation of the child between the receipt of respondent’s May 11, 2003 consent form and the June 20, 2003 CSE meeting is not supported by the record.    

 

Petitioner also contends that the equities do not support respondent's request for tuition reimbursement asserting that during the June 20, 2003 IEP meeting respondent did not make specific objections to the IEP, did not specifically reject the IEP, and more generally, did not notify petitioner in a timely fashion regarding her objections to the IEP.  Petitioner's contention relating to the specificity of respondent's statements at the CSE meeting is directed to the parent's compliance with the notice requirement set out in the 1977 IDEA amendments (see 20 U.S.C. §§ 1412[a][10][C][iii], 1412[a][10][C][iv][IV]).    Even if these notice requirements applied to situations where the student is not removed from public school, the notice provision would have no impact in this appeal because the record does not show that petitioner informed respondent of the requirement that parents give notice when seeking payment for the education of children enrolled in private school without consent or referral by the public agency (see Application of a Child with a Disability, Appeal No. 03-091; 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 Suspected of Having a Disability Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 99-028; Application of a Child with a Disability, Appeal No. 99-013).  With respect to this, I note that although two letters from petitioner refer to due process materials being sent to respondent (District Exhibits 18, 20), copies of the referenced materials were not submitted into evidence and no witness testified as to the content of the materials.  As a result, the record does not demonstrate that petitioner informed respondent of any requirement that parents give notice to the district   (Application of the Bd. of Educ., Appeal No. 99-038). 

 

As applied to the circumstances of this appeal, I do not read 20 U.S.C 1412 (a)(10)(C) (ii) as the only authority for me to order an award of tuition reimbursement.  Likewise, I do not read 20 U.S.C. 1412 (a)(10)(C)(iii) as the only basis for limiting or denying tuition reimbursement on equitable grounds.  I interpret 20 U.S.C. 1415 (i)(2)(B)(iii) and the holdings in Burlington and Carter to stand for the proposition that tuition reimbursement may be awarded or denied as "appropriate relief" independently from 20 U.S.C. 1412 (a)(10)(C) (see generally, Placement of Children by Parent if FAPE is at Issue, 64 Fed. Reg. 12601, at 12602 [Mar. 12 1999]; see also, Education Law section 4404[2]).  However, given the facts of this case, contrary to petitioner's claim, I find that respondent notified petitioner in a timely fashion regarding her objections to the IEP.  The evidence is not clear regarding what respondent advised the CSE at its June 20, 2003 meeting.  There is evidence that she merely advised the CSE that her son would be returning to Pathways (District Exhibit 1; Transcript pp. 136, 137) and there is evidence that she specifically objected to the placement recommendation at that meeting (District Exhibit 22; Transcript p. 384).  Either way, after the CSE meeting and well prior to the beginning of the 2003-04 school year, respondent made it clear that she objected to the IEP.  She advised petitioner's CSE chair by letter dated July 11, 2003 that she disagreed with and objected to the IEP and also requested a due process hearing (District Exhibit 21; Transcript p. 111).  On July 28, 2003, respondent’s attorney provided petitioner with specific details of respondent's disagreement and objection with the IEP, including the extent to which formal testing had been done prior to the CSE's recommendation and whether her son would be able to cope with a mainstream environment (District Exhibit 22).  In light of the above, I find that respondent placed in issue the IEP resulting from the June 20, 2003 CSE meeting in a time frame that allowed petitioner to address respondent's concerns relative to the IEP.  Based on the above, I find that respondent timely notified petitioner of her objections to her son's IEP (Application of a Child with a Disability, Appeal No. 03-091).  Finally, as indicated above, respondent provided petitioner with consent to obtain additional information relative to her son.  She also attended the June 20, 2003 CSE meeting.  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.

 

THE APPEAL IS SUSTAINED IN PART.

 

            IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that petitioner was required to reimburse respondent for "other expenses incurred by her unilateral placement" of her son at Pathways during the 2003-04 school year; and 

 

IT IS FURTHER ORDERED that petitioner shall reimburse respondent for the cost of her son's tuition at Pathways during the 2003-04 school year, upon respondent's submission to petitioner of proof of such payment.

 

 

 

Dated:

Albany, New York

 

__________________________

 

June 21, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  Previously, in kindergarten, the student had been classified as speech impaired and emotionally disabled (Transcript p. 361).

 

2  A June 2002 psychiatric evaluation diagnosed him with a probable attention deficit hyperactivity disorder (ADHD), mixed type; a phonological disorder; a mixed receptive/expressive language disorder; and a coordination disorder (District Exhibit 5A).

 

3  Although an FBA may be helpful, I do not believe at this time, given the student’s improved behavior and response to classroom interventions and redirection, that petitioner is required to conduct an FBA while the student is at Pathways in order to offer an appropriate program.  Given the history of behavioral needs, however, subsequent CSEs should take into consideration the student’s behavior as a special factor (8 NYCRR 200.4 [d][3][i]) and an FBA should be considered in the child’s new environment upon return to petitioner's schools.