The State Education Department
State Review Officer

No. 04-045

 

 

 

 

Application of the BOARD OF EDUCATION OF THE SMITHTOWN CENTRAL 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:
Peter G. Albert, Esq., attorney for petitioner

 

Pamela Anne Tucker, Esq., attorney for respondents

 

DECISION

 

            Petitioner, the Board of Education of the Smithtown Central School District, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondents for the cost of their son's tuition and related transportation expenses incurred by their unilateral placement of their son at the Crestwood Country Day School (Crestwood) for the 2003-04 school year.  The appeal must be dismissed.

 

            Respondents' son was seven years old at the time of the hearing and attending the first grade at Crestwood, where his parents unilaterally placed him for the 2003-04 school year.  Crestwood is a private school (Tr. p. 924) that has not been approved by the New York State Education Department as a school with which school districts may contract to serve students with disabilities.  The child's classification by the Committee on Special Education (CSE) as multiply disabled is not in dispute.

 

            Respondents' son began receiving speech therapy at the age of 3 1/2 from St. Charles Educational Institute and Therapeutic Center (St. Charles), due to reported developmental speech and language delays (Parent Ex. 18 at p. 1) and episodes of gagging on solid foods (Tr. p. 966).  The child's mother testified that her son was isolated from other people from the age of 18 months to 3 1/2 years due to serious health concerns within the family (Tr. pp. 968-69; Parent Ex. 4 at p. 8).  In addition to receiving speech-language therapy, respondents' son was referred for an occupational therapy (OT) evaluation.  In August 1999, the occupational therapist who evaluated the child recommended OT on an outpatient basis to address an identified sensory integration dysfunction (Tr. p. 779).

 

            Respondents' son was initially referred to petitioner's Committee on Preschool Special Education (CPSE) for the 1999-2000 school year at the age of 3 1/2  (Parent Ex. 7).  The CPSE convened on December 7, 1999, and recommended that respondents' son be classified as a preschool student with a disability and placed in a self-contained 12:1+1 preschool program at St. Charles for two and one-half hours per day, five days a week (Parent Ex. 7 at p. 1).  The CPSE also recommended OT, physical therapy (PT), and speech-language therapy services for respondents' son (Parent Ex. 7 at p. 2).  The child's preschool services continued throughout the 2000-01 school year and respondents' son attended preschool four hours per day, five days a week during that school year (Dist. Ex. 13 at p. 1).

 

            In a speech-language evaluation report dated February 2, 2001, respondents' son was described as demonstrating a low tolerance for frustration.  The child would cry to avoid directions given by his teacher (Dist. Ex. 4 at p. 1).  He presented with a 26% delay in receptive language skills (Dist. Ex. 4 at p. 4).  Respondents' son was observed to have decreased attending skills as well as distractive behaviors during structured tasks, and he continued to demonstrate oral hypersensitivity which inhibited appropriate feeding behaviors (Dist. Ex. 4 at p. 4).

 

            In an educational evaluation report dated February 2, 2001, respondents' son was noted to have made great strides in his adaptation to the school environment over the past year, but his ability to tolerate frustration and to wait for preferred activities was still described as limited (Parent Ex. 8 at p. 3).  The child was noted to have increased his independence within the classroom environment, but his limited strength and coordination adversely affected his performance on classroom tasks and learning activities (id.).  The evaluator reported that recent reevaluation assessment and classroom observations indicated that respondents' son had significant delays in social and adaptive skills development (Parent Ex. 8 at p. 6).  The evaluator further reported that the child tended to regress in both behavior and skills development when there was a break between school sessions (Parent Ex. 8 at p. 6).

 

            In an OT annual report dated February 2, 2001, respondents' son was noted to demonstrate impulsive behaviors and to have difficulty following directions (Parent Ex. 8 at p. 7).  Respondents' son reportedly worked well in a small, quiet environment with limited distractions, and in one-to-one situations (id.).  Continuation of OT services was recommended due to the child's immature grasp of writing and feeding utensils (Parent Ex. 8 at p. 8).  In a PT annual report dated February 2, 2001, respondents' son was described as having difficulty with motor planning, coordination, balance, and age- appropriate motor skills (Parent Ex. 8 at p. 10).  In an OT evaluation dated February 28, 2001, it was noted that respondents' son exhibited difficulty with the motor planning required to sequence and organize movements in a coordinated manner when performing unfamiliar gross and fine motor tasks (Dist. Ex. 8 at p. 3).  He also presented with poor sequencing, timing, speed, bilateral coordination and fluidity of movement (Dist. Ex. 8 at p. 3).

 

            For the 2001-02 school year, petitioner's CSE recommended that respondents' son be classified as multiply disabled and placed in a 12-month, self-contained 12:1+1 kindergarten class at petitioner's St. James Elementary School (Dist. Ex. 13).  According to the child's 2001-02 IEP, respondents' son received two 30-minute individual sessions of OT per week, two 30-minute group sessions of PT per week, three 30-minute individual sessions of speech services per week, and a one-to-one aide at lunch (Dist. Ex. 13 at p. 2).  The child's 2001-02 IEP further indicated that the child would be mainstreamed in extracurricular activities (Dist. Ex. 13 at p. 2).

 

            In an OT reevaluation report dated June 3, 2002, it was noted that respondents' son was focusing on improving his ability to integrate sensory information, fine motor skills, motor planning, visual perceptual skills and activities of daily living (ADL) skills (Parent Ex. 22 at p. 1).  The evaluator recommended that he be placed in a first grade setting with a small class size and with children who exhibit work and social behaviors and skills that he could emulate, and who could provide encouragement (Parent Ex. 22 at p. 2).

 

            For the 2002-03 school year, the CSE recommended that respondents' son be placed in a 12-month, self-contained 12:1+1 first grade class at petitioner's Mills Pond Elementary School (Mills Pond) (Parent Ex. 10).  He continued to receive the same services as in the previous school year, including OT, PT, speech-language therapy, and a one-to-one lunch aide (Parent Ex. 10 at p. 3).  The child's 2002-03 IEP further indicated that the child would be mainstreamed in general physical education (Tr. p. 157-58) and for extracurricular activities (Parent Ex. 10 at pp. 3).

 

A CSE reconvened on June 20, 2003 for an annual review to develop the child's 2003-04 IEP, which became the subject of this dispute (Parent Ex. 19; Tr. pp. 1115-16).1  During the meeting, the CSE discussed program options, including placing the child in a regular educational setting with an individual aide (Tr. p. 92).  At the CSE meeting, the child's mother requested that her son be retained in first grade and placed in a general education first grade class with a one-to-one aide (Tr. pp. 92-93, 1049, 1058, 1080), because she believed he had not had sufficient opportunity to develop appropriate social skills and needed to model nondisabled students (Parent Ex. 4 at p. 12).  However, the CSE determined that a regular education setting would not be appropriate for the 2003-04 school year because the child demonstrated inappropriate behaviors, distractibility and poor social skills, and he lacked skills necessary for independence (Tr. p. 101).  The child's first grade teacher testified that respondents' son had been receiving individualized attention in the classroom (Tr. p. 103).  She opined that the attention he had been receiving was not sufficient because he was distractible and impulsive (Tr. pp. 115-16).  The CSE recommended that respondents' son be placed in a 12-month, self-contained 12:1+1 second grade class at petitioner's Dogwood Elementary School (Tr. pp. 89-90, 96; Parent Ex. 19).  The child's mother and her advocate gave notice at the June 20, 2003 CSE meeting that respondents would be making a unilateral private school placement and requesting an impartial hearing (Tr. p. 1057).

 

After the June 20, 2003 CSE meeting, a neuropsychological evaluation was conducted between June 23, 2003 and July 10, 2003 (Parent Ex. 4).  The Wechsler Intelligence Scale for Children-III (WISC-III) was administered but IQ scores were not reported.  The evaluator did report that the child's performance yielded a verbal IQ score at the 68th percentile, a performance IQ score at the 4th percentile, and a full scale IQ score at the 25th percentile, placing the child within the average range of intellectual functioning (Parent Ex. 4 at p. 6).  The evaluator noted that the child had been isolated from family and peers between the ages of 18 months and three years due to illness in the family (Parent Ex. 4 at p. 9).  According to the neuropsychologist, the child’s first grade teacher at Mills Pond described respondents’ son as an immature but "endearing little boy" who loved to learn and to talk about plants, flowers, and trees (Parent Ex. 4 at p. 9; Tr. pp. 61, 132).  The teacher also reported that the child was easily distracted and exhibited inappropriate behaviors, such as acting like an animal and pretending to fly around the classroom, which "significantly interfere[d] with his ability to complete his classwork" (Parent Ex. 4 at p. 10; Tr. pp. 58-59).  Also, the child worked very slowly and required a lot of assistance to complete tasks (Parent Ex. 4 at p. 10).  The neuropsychologist noted that the “main issue” for the child is “his difficulty with attention and concentration, and impulse control” (Parent Ex. 4 at p. 9).  Pertaining to the child’s social and emotional needs, his mother reported that the child interacts well with adults but has difficulty interacting with other children and engages in “parallel” play. The neuropsychologist attributed this to anxiety rather than a lack of social awareness (Parent Ex. 4 at p. 9). His first grade teacher at Mills Pond reported that he tended to keep to himself and when he interacted with others he acted inappropriately (Parent Ex. 4 at p. 10).2  The neuropsychologist concluded that respondents' son would benefit socially and emotionally from being surrounded by nondisabled students where the child could model peer behavior.  He recommended placement in a mainstream setting with the provision of supplemental supports and services (Parent Ex. 4 at p. 12).

 

            Also after the June CSE meeting, the school administrator for Special Education and Special Services sent a letter, dated June 30, 2003, to respondents stating he would like to “bring back to the CSE” a recommendation for a split program consisting of one-half day in a mainstream class with “in-class” supports and one-half day in a self-contained class (Parent Exs. 3, 20; Tr. pp. 516-517).  The parents did not respond to this letter or to telephone messages from petitioner (Tr. pp. 1061-62); however, petitioner did not schedule a CSE meeting to discuss the appropriateness of the new placement and program suggested by the administrator or to review the neuropsychological evaluation.   

 

            By letter dated July 8, 2003, respondents informed petitioner that the child would be enrolled in Crestwood for the 2003-04 school year, and requested an impartial hearing for the purposes of obtaining tuition reimbursement and reimbursement for the cost of a summer program (Parent Ex. 2).  The hearing commenced on October 16, 2003 and, after seven sessions, concluded on March 11, 2004.  In a decision dated May 25, 2004 and amended May 29, 2004, the impartial hearing officer found that petitioner was “remiss” for failing to: conduct a formal functional behavioral assessment (FBA) and develop a behavioral intervention plan (BIP) despite evidence of behaviors that impeded the student’s learning and limited his access to the general curriculum; conduct an assistive technology evaluation to determine the need for “devices or services”;3 consider the need for adaptive physical education; provide a scribe; and offer a program in the least restrictive environment (LRE).  As a result, the impartial hearing officer determined that petitioner did not develop a program that offered a free appropriate public education (FAPE).

 

         The impartial hearing officer also determined that the private school placement was appropriate and met the child's needs.  The impartial hearing officer found that Crestwood provided: an integrated mainstream classroom, an assigned special education teacher as well as a classroom teacher, a modified curriculum, a focus on his language program and completing assignments, an individualized behavior modification plan (charting behaviors needing improvement); pairing with high functioning children to model appropriate behavior, and the use of assistive technology employed within the classroom including use of a slant board and seating cushion; special seating placement; and use of a home/school daily notebook to enhance communications.  The impartial hearing officer further found that the student progressed socially, behaviorally and academically at Crestwood during the 2003-04 school year (IHO Decision p. 12). The impartial hearing officer concluded that respondents cooperated with the CSE and gave appropriate prior notice of their intent to remove the child from public school.

 

           Petitioner contends that the hearing officer erred in awarding respondents tuition reimbursement, alleging that its recommended program was appropriate and that it offered to provide a FAPE in the LRE.  Petitioner further asserts that equities do not favor reimbursement.

 

            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 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 (Sch. Comm. Burlington 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 Sch. 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, 206-07 [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, Appeal No. 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]).

 

The child’s June 20, 2003 IEP identifies 16 management needs including completing tasks, establishing routines, preparing for transitions, as well as a need for nonverbal cues to stay on task, one-on-one attention to focus on tasks, teacher reinforcement to stay on task, preferential seating near the instructor, and both primary and secondary reinforcers (Parent Ex. 19 at p. 5).  The IEP states that the child was functioning below his chronological age in the area of social development.  The IEP specifies that the child needed to identify himself, react appropriately to disappointment, develop appropriate social judgment, decrease dependency upon adults, adapt well to transitions, participate in small groups, reduce attention seeking behavior, make friends, and increase social interactions with peers and others (Parent Ex. 19 at p. 6).  The child’s needs in the areas of transition, self-directed play, assistance with making friends, working in small groups, reducing his attention seeking behaviors, and improving his feelings about himself are not adequately addressed in any of the goals and objectives of the IEP (Parent Ex. 19 at pp. 5-6, 8-16).  A lack of progress in meeting his social, emotional and management needs during the 2002-03 school year is noted in the record  (Tr. pp. 58-59, 103; Parent Ex. 4 at p. 10).    The supplemental aides and services listed on the June IEP (positive behavioral support, a reward system and simple and clear rules) are not sufficient to meet his management needs (Parent Ex. 19 at p. 17).

 

            A threshold issue in this case is whether petitioner's CSE had adequate information about the child's behavioral needs and limitations at its June 20, 2003 meeting to determine a program and placement that would appropriately meet respondents' son's needs in the LRE (see Application of a Child with a Disability, Appeal No. 02-032).  Petitioner asserts that it did not need to conduct an FBA or develop a BIP for respondents' son because the highly structured classroom program incorporated the teacher's behavior modification techniques and, therefore, a BIP was not considered necessary (Tr. pp. 39, 368, 534-535; Parent Ex. 19).  I disagree.

 

            Both state and federal regulations provide that any subsequent IEP review shall   ". . . in the case of a student whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior" (8 NYCRR 200.4[d][3][i], 8 NYCRR 200.4[f][1][i]; 34 C.F.R. § 300.346[a][2][i], 34 C.F.R. § 300.346[b]). A failure to, if appropriate, consider and address these behaviors in developing and implementing the child’s IEP would constitute a denial of FAPE to the child (Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38).  Thus, a CSE must accurately identify a student’s needs as a first step when amending his or her IEP, which would include, where behavior is at issue, performing a functional behavioral assessment and/or adding a formal behavior management plan to the IEP where appropriate (Application of a Child with a Disability, Appeal No. 02-032).

 

Petitioner's CSE determined that respondents' son had behavioral needs that prevented him from participating in a mainstream environment (Tr. p. 14).  The child has been observed slithering around on the floor in imitation of a snake and pretending to fly around the classroom (Tr. pp. 58-59, 216-218, 242).  He was described as distractible and impulsive (Tr. pp. 37, 115-16), and as lacking social skills and skills necessary for independence (Tr. p. 101).  These behaviors and skill deficits impeded the child's learning and prevented him from participation in a mainstream environment (Parent Ex. 19 at p. 4; Tr. pp. 14, 101).  Petitioner's first grade classroom teacher employed behavior modification techniques with respondents' son, but they were largely unsuccessful (Tr. p. 368).  I agree with the impartial hearing officer that an FBA should have been conducted to determine what strategies, including positive behavioral interventions, and supports could have been used to address the behavior that impeded respondents' son's learning and access to the general curriculum.

 

            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]).  The June 2003 CSE did not conduct an FBA and did not incorporate an appropriate behavior plan in its IEP for the 2003-04 school year.  I find that the failure to do so resulted in an offered placement that was not consistent with the student's social and management needs and not in the LRE.

 

            Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to respondents' son during the 2003-04 school year in the LRE, I must now consider whether respondents have met their burden of proving that the services provided to their child during that school year were appropriate (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., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29).  In order to meet that burden, respondents must show that Crestwood offered an educational program that 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 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]). However, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 693 [2d Cir. 1989]; Application of a Child with a Disability, Appeal No. 02-077; Application of the Bd. of Educ., Appeal No. 00-080).

 

The child’s class at Crestwood consisted of six first grade students, three of whom were classified (Tr. pp. 838-839).  The record reflects that respondents' son has been isolated from peers and would benefit from socialization with nondisabled peers (Parent Ex. 4 at 9).  The record reveals that respondents' son made consistent and significant educational progress since enrolling at Crestwood at the beginning of the 2003-04 school year and repeating first grade (Tr. p. 862).  His teacher at Crestwood testified that, at the beginning of the 2003-04 school year, the child was still pretending to fly around the room as he had done at his previous school (Tr. p. 853).  The principal of Crestwood described respondents' son's entering behavior as solitary, not mingling with the group, crawling on the floor, making animal noises, rarely in his seat, and not responding to any verbal cues, and also noted that the child had poor eye contact (Tr. p. 938).

 

            The private school teacher further testified that when a behavioral technique was not effective with respondents' son she was quick to discard and change the technique (Tr. p. 858).  He was given extra time when he needed it, had a behavioral chart on his desk, a daily notebook went home to his parents, and he received considerable individualized attention from the teacher as needed (Tr. pp. 877-78).  All behavioral techniques and interventions were done with a positive outcome (Tr. pp. 878-79).  His teacher utilizes positive behavioral interventions and asks him to look around at his friends and has him model his peers' behaviors (Tr. pp. 843, 875-876).  For example, if the child exhibited inappropriate behavior when entering the room, he was asked to leave the room and reenter the room as "a first grader" (Tr. p. 843).  He responded well to praise, such as the use of stickers (Tr. pp. 878, 886, 914) and to having the other children clap for him when he did something positive (Tr. p. 914).  Respondents' son attended field trips and sat properly, listened, and displayed appropriate behavior during these trips (Tr. p. 856).  The private school principal testified that the child now entered the school like all of the other students, unpacked his bag, and put his away work assignments.  When the child is off task, a look, tap on the shoulder, or gentle comment would bring him back to task (Tr. p. 939).  He was exposed to natural child-to-child interaction with his peers by being paired with other students in gym, music, art and in the classroom, and was beginning to interact with classmates in a positive manner (Tr. p. 940).  Also, his solitary behavior had changed and he now shared his work and achievements with the class.  He was described as being very good in art and would ask to show his work to the class, who applauded his work (Tr. p. 943).  I find that Crestwood provided an appropriate educational program that met respondents' son's special education needs.

 

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., Appeal No. 03-062; Application of the Bd. of Educ., 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]). 

 

            In its petition, petitioner contends that respondents are not entitled to tuition reimbursement and related costs, including transportation, because equities do not favor respondents' claim and further alleges that respondents had predetermined to enroll their son in an out-of-district program since March 2003 (Pet. ¶ 78).  I am not persuaded by petitioner's assertion that the record supports a finding that respondents had no intention of sending their son to the public school during the 2003-04 school year.  While respondents had explored the option of their son attending another private school in March 2003 (Tr. pp. 97-99, 159-160), respondents attended the June 20, 2003 CSE meeting (Parent Ex. 19) and the child's mother requested that her son be retained in first grade in public school and placed in a general education first grade class with a one-to-one aide (Tr. pp. 92-93, 1049, 1058, 1080). This request was rejected by the CSE, resulting in the subsequent unilateral private school placement.

 

I am troubled, however, by certain behavior by both parties after the June CSE meeting and prior to the start of the September 2003 private school placement. First, the parents did not respond to petitioner’s letter offering to reconvene a CSE over the summer to discuss a “compromise” regarding placement. However, petitioner did not go forward and schedule a CSE meeting to consider the appropriateness of the placement and “in-class” supports suggested by the special education administrator.  In general, parents who do not cooperate with a district’s attempt to redress identified deficiencies in an offered program run the risk of not being awarded tuition reimbursement on equitable grounds. Moreoever, a school district is not likely to be persuasive on appeal by asserting that a parent impeded the district, or did not cooperate with a district’s attempt to correct IEP deficiencies, if the record suggests that the district’s efforts to correct mistakes were not in earnest.  Second, the record suggests that respondents did not share the July 2004 neuropsychological evaluation with petitioner until the time of the hearing, and petitioner, whose staff contributed to the evaluation process, did not request the evaluation or convene a CSE to consider the resulting report prior to the 2003-04 school year.  In general, parents also run the risk of not being awarded tuition reimbursement on equitable grounds if they do not timely share evaluative material (Application of a Child with a Disability, Appeal No. 04-029), however, a failure to do so is less egregious if a district knows of the evaluation but does not request it or seek to review it. In determining the equities of awarding tuition reimbursement in this appeal, I have taken into consideration the overall cooperation of the parents and the significant extent to which petitioner failed to offer a FAPE.  Accordingly, I find that respondents are entitled to an award of reimbursement for the cost of their son’s tuition at Crestwood for the 2003-04 school year and that respondents are entitled to reimbursement for reasonable transportation costs incurred in transporting their son to Crestwood during the 2003-04 school year.

 

           

THE APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

August 20, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

 

1  There are multiple versions of the June 20, 2003 IEP that were made part of the record (Parent Exs. 21, 31, District Ex. 23); however, the hearing officer limited the dispute to one exhibit (Parent Ex. 19) at the hearing (Tr. pp. 1115-16).

 

2  The neuropsychologist’s report lists the child’s first grade teacher at petitioner’s Mills Pond school as a respondent on behavioral inventories completing a child behavior checklist and profile, and the Connors’ Teacher Rating Scale (Parent Ex. 4, pp. 5, 9). From this I conclude that the teacher participated in the evaluation process and the district was on notice that the evaluation was taking place.

 

3  Petitioner did not provide the use of a seat cushion, weighted vest or figits as recommended by the parent and occupational therapist (Tr. p. 790; IHO Decision p. 10).