The State Education Department
State Review Officer

No. 04-058

 

 

 

 

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., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Briarcliff Manor Union Free School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondentsí daughter and ordered it to reimburse respondents for their daughterís residential tuition and related transportation costs at the New Haven Residential Treatment Center (New Haven) for the 2003-04 school year. The appeal must be dismissed.

        A procedural issue must first be addressed before discussion of the merits of this appeal. Respondents request dismissal of this appeal asserting that the petition for review was improperly and untimely served. Respondents assert that petitioner did not effectuate personal service of the petition for review as required by 8 NYCRR 275.8 of the Regulations of the Commissioner of Education. Respondents also assert that they were not served with the petition for review in a timely manner (see 8 NYCRR 279.2 [b]). The impartial hearing officerís decision is dated July 7, 2004 and was received by the petitioner electronically (Pet. Reply ∂ 10). Petitioner correctly avers that the time to serve the petition for review concluded on August 11, 2004 (id.). On July 26, 2004 an agreement was reached during a telephone conversation between counsel for petitioner and respondents whereby respondents agreed to accept service of the petition for review by mail and by e-mail to respondentsí personal e-mail address. As part of the conversation, petitioner agreed to stipulate to an extension of time for respondents to answer because of an upcoming three-week vacation planned by respondents. Despite this conversation, petitioner attempted unsuccessfully to personally serve respondents four times between August 4, 2004 and August 6, 2004 (Pet. Reply ∂ 13). On August 6, 2004 petitioner had affixed at respondentsí residence a copy of the petition for review and also electronically sent the same to respondentsí business address (Pet. Reply ∂ 14). On August 9, 2004 petitioner mailed a copy of the petition for review and supporting papers to respondents. A review of the record reveals that respondents waived personal service and that respondents agreed to receive service by general mail and was so served in a timely manner. I, therefore, decline to dismiss the petition for review on the grounds of improper or untimely service.

        Respondentsí daughter was 17 years old and in the 11th grade at New Haven at the time of the hearing in June 2004. Her eligibility for special education services and programs as a student with an emotional disturbance is not in dispute (8 NYCRR 200. 1[zz][4]).

        The hearing record reveals a significant history of serious emotional concerns as well as inconsistent educational performance since the 1999-2000 school year when the student was in the seventh grade (Dist. Exs. 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 15, 16, 19, 20, 21, 22, 23; Parent Exs. A, C; Tr. pp. 39, 40, 43-49, 112). Intelligence testing conducted in August 2000 and October 2002 revealed the studentís overall cognitive ability was in the average to high average range (Dist. Exs. 5, 10). Likewise, the student scored in the average to above average range on standardized measures of academic achievement (Dist. Ex. 6). However, depression and anxiety have interfered with the studentís ability to attend school and complete her work. Further discussion of the studentís educational history prior to the dispute that is the subject of this appeal is not necessary here, although it has been considered as part of this review.

        A Committee on Special Education (CSE) met on March 31, 2003 to determine the studentís eligibility for special education programs and services (Tr. p. 43; Dist. Exs. 15 at p. 2, 16 at p. 1). At that meeting, the CSE determined that respondentsí daughter was eligible as a student with an emotional disturbance (Dist. Ex. 16 at p. 1). The CSE recommended that the student enroll in a Board of Cooperative Educational Services (BOCES) special class for gifted students beginning on April 22, 2003, be provided with group and individual counseling, and receive extended time for taking tests (Dist. Ex. 15). The student remained in the BOCES program for two days before she stopped attending due to anxiety associated with her schoolwork. Thereafter, petitioner provided respondentsí daughter with home tutoring, a program that extended to the end of July 2003 (Tr. pp. 51-52; see Dist. Exs. 19-23). She did not complete the tenth grade (Tr. pp. 52, 113).

        At the hearing, the CSE Chairperson (Chairperson) testified that as a result of the studentís inability to continue in the BOCES program, she and respondents concurred that the student should be placed in a private residential therapeutic environment for the 2003-04 school year (Tr. pp. 53, 56). In the spring 2003, respondents met with and ultimately hired an educational consultant to provide advice regarding their daughterís educational placement (Parent Ex. C; Tr. pp. 113-14). In a letter to petitioner dated July 21, 2003, the student's psychiatrist recommended that the student be placed in a therapeutic residential school with students of comparable cognitive abilities and severity of diagnoses (Parent Ex. A). The psychiatrist specifically recommended that respondentsí daughter enroll in New Haven (id.).

        The Chairperson met with respondents on July 24, 2003, to discuss their daughterís educational programming (Tr. pp. 53-55, 118). During this meeting, the Chairperson suggested that respondents consider Harmony Heights on Long Island and a campus of the Devereux School (Devereux) in Pennsylvania, two private out-of-district residential schools (Tr. pp. 57-58). The Chairperson advised respondents that these schools were approved by the Commissioner of Education as schools which petitioner could contract with for the education of students with disabilities and provided respondents with a New York State publication containing information about such schools (Tr. pp. 60-62, 85, 118-120, 131, 156). Respondents testified that during this meeting they asked the Chairperson about the possibility of the student attending New Haven but that she was "dismissive" of that possibility because it was not one of the schools approved by the Commissioner (Tr. pp. 118-19). Respondents also testified that during the July 24, 2003 meeting the Chairperson suggested they visit the schools and that they in turn asked the Chairperson to speak with the student's psychiatrist and the family's educational consultant about Harmony Heights and Devereux (Tr. pp. 119-20).

        On July 24, 2003, after the meeting between the Chairperson and respondents, the Chairperson transmitted a packet of information relative to the student to Harmony Heights (Tr. pp. 53, 63, 71). Shortly after that meeting, respondents spoke with the student's psychiatrist and their educational consultant (Tr. pp. 117, 120, 156). Both advised respondents that Harmony Heights was not appropriate for the student (id.). Subsequent to these conversations, respondents advised the Chairperson that their educational consultant did not believe that either Harmony Heights or Devereux was appropriate for the student and that the educational consultant had recommended that they enroll their daughter in New Haven (Tr. pp. 58-59, 65-66, 84). Respondents advised the Chairperson that the educational consultant was concerned about the level of student supervision at Harmony Heights and whether the student would be in a safe environment at that school (Tr. p. 121). The Chairperson testified that respondents communicated to her that they were "not interested" in either Harmony Heights or Devereux (Tr. pp. 72, 83-84, 86), "were not going for any intakes", and were not going to "follow up" with these schools (Tr. p. 86). Conversely, the studentís father testified that respondents attempted to discuss their concerns regarding these schools at a August 19, 2003 CSE meeting and that such a discussion was not permitted at the meeting (Tr. pp. 126-27). The father further testified that respondents did not "refuse to consider" options other than New Haven or "shut off dialogue" regarding these schools (Tr. pp. 126, 129-30, 131).

        In a letter dated July 28, 2003, respondents requested that the CSE place the student at New Haven (Tr. p. 118). In support of that request, respondents provided the Chairperson with information about New Haven and its program (Tr. pp. 69-70). The Chairperson testified that she had additional information relative to Harmony Heights, however, she did not provide that information to respondents, believing they were not interested in that option at that point (Tr. pp. 82-84).

        The Chairperson followed up her July 24, 2003, transmittal of information about the student to Harmony Heights with a conversation with that schoolís intake coordinator (Tr. pp. 64-65). She testified that the intake coordinator advised her that Harmony Heights "had room" for the student and "could service" her (Tr. pp. 65, 71). She further testified that the intake coordinatorís review of the submitted material with respect to respondentsí daughter was at the level of an initial screening and did not reflect a level of review that would accompany an offer of admission (Tr. pp. 55, 63, 64-65). Thereafter, and prior to the August 19, 2003 CSE meeting, the Chairperson advised respondents that the CSE would be recommending Harmony Heights as a placement for their daughter (Tr. p. 71).

        The CSE met on August 19, 2003 for an annual review (Tr. pp. 72, 107). The parties differ on whether the CSE recommended a particular placement for the student. The Chairperson testified that the CSE recommended that the student be placed at Harmony Heightsí residential program in a special class program with a student to staff ratio of 8:1 and be provided with counseling (Tr. pp. 72, 73, 76, 87-88). She also testified that the CSE recommended Harmony Heights because it was appropriate for the student and was on the state approved list (Tr. p. 72). Respondents testified that the Chairperson made it clear at the meeting that the CSE would only address the question of whether a residential placement was appropriate for the student and would not address the issue of the appropriateness of particular schools (Tr. pp. 126, 177-78). Respondents also testified that at the CSE meeting they tried to discuss the student's placement at New Haven and their concerns regarding Harmony Heights (Tr. pp. 126-27, 177-78). They indicated that when they did so, the Chairperson indicated that these subjects were not to be addressed at the meeting (id.).

        Respondents testified that at the end of the meeting they advised the Chairperson that they were convinced that Harmony Heights and Devereux were not appropriate placements and that they "really felt (they) had to send (their daughter) to New Haven" (Tr. pp. 128, 178). According to respondents, the Chairperson then advised them to request a hearing and they did so (Tr. p. 129). The record reveals the following: the Chairperson did not discuss with respondentsí daughterís psychiatrist or respondentsí educational consultant the appropriateness of placement at Harmony Heights or Devereux as requested by respondents; no representative from either Harmony Heights or Devereux participated in the August 19, 2003 CSE meeting; that respondents did not contact either school directly to visit or obtain information as requested by petitioner; and that petitioner did not facilitate contact between respondents and the residential schools so that interview arrangements could be made.

        The hearing was held on June 18, 2004. Respondents requested payment for their daughterís residential tuition at New Haven, the costs of transportation for the student and themselves to and from New Haven, and the cost of the family's educational consultant. Respondents asserted that Harmony Heights was not an appropriate placement for their daughter and that New Haven was an appropriate placement (Tr. pp. 14, 117, 120, 122, 123, 128, 145-46, 158, 172, 187-88). They asserted that the CSE failed to recommend a placement for their daughter at the August CSE meeting (Tr. pp. 143, 187). They also contended that the CSE failed to respond both to the expressed concerns with respect to a possible placement at Harmony Heights (Tr. pp. 143, 187) and to their request that the student be placed at New Haven (Tr. pp. 143-44). Respondents also asserted that petitioner did not comply with applicable Individuals with Disabilities Education Act (IDEA) notice provisions because petitioner did not advise them why Harmony Heights was proposed, what options were considered, and the reasons why petitioner rejected options other than placement at Harmony Heights, such as New Haven (Tr. pp. 144-145). Respondents also claimed that petitioner should have but did not make an offer of mediation (Tr. pp. 129, 146). Petitioner contended that it recommended Harmony Heights as a placement for the student, that such a placement was appropriate, and that it complied with the applicable IDEA notice provisions by hand delivering to one of respondents a copy of the student's IEP with an explanatory letter (Tr. pp. 10-12, 85-86, 99, 103; see Dist. Exs. 18, 17).

        The impartial hearing officer issued a decision on July 7, 2004 in which she ordered that petitioner reimburse respondents for tuition for their daughterís attendance at New Haven for the 2003-04 school year. She found that petitionerís CSE had recommended placement at Harmony Heights at its August 19, 2003 CSE meeting but that petitioner had not met its burden of proof to demonstrate that the placement was appropriate for the student (IHO Decision, p. 13). She concluded that there was "minimal information" in the record about Harmony Heights and that the Chairperson, who was petitionerís only witness, did not have any personal experience with the school, had never been at the school, and had not known students who had been admitted to the school. She found that the Chairpersonís belief that Harmony Heights was an appropriate program was based on the following: a description of the school in a New York State handbook of approved schools; the fact that the Commissioner of Education had approved the school and the Harmony Heightís intake coordinatorís indication that "there was a match" after reviewing the information that petitioner had sent about the student to the school. The impartial hearing officer noted that the record did not reveal what information had been sent to the intake coordinator nor did the record contain more than generic information about whether the placement matched the studentís specific emotional, academic, and management needs.

        The impartial hearing officer did not address respondentsí procedural claims because she determined that petitioner had not met its burden of demonstrating that Harmony Heights was an appropriate placement (IHO Decision, p. 13). The impartial hearing officer found that respondentsí unilateral placement of their daughter at New Haven was appropriate (IHO Decision, pp. 13-14) and that there were no equitable reasons which should preclude reimbursement of the studentís tuition at New Haven (IHO Decision, p. 14). Finally, the impartial hearing officer granted respondentsí request for reimbursement of transportation expenses in part and denied their request for reimbursement of the costs of their educational consultant (IHO Decision, pp. 14-15).

        Petitioner appeals from that part of the impartial hearing officer's decision that awarded respondents reimbursement for the student's tuition, room, board and other costs at New Haven for the 2003-04 school year. It argues that Harmony Heights was an appropriate program "as a matter of law" for this particular student because it has been approved by the Commissioner of Education as a school that a board of education may contract with to instruct students with disabilities pursuant to section 4405 of the Education Law (an "approved school") and because the intake coordinator at the school had advised that the school was a match for the student. Further, as it did at the hearing, petitioner argues that its individualized education program (IEP) set forth an appropriate description of the studentís needs, established appropriate present levels of performance, proper annual goals and short-term instructional objectives. Petitioner further asserts that Harmony Heights is an appropriate residential placement for the student that would have provided the student with individual and group counseling and that respondents' daughter would have been suitably grouped for instructional purposes with students having similar needs and abilities. Petitioner also claims that the studentís placement at New Haven was inconsistent with IDEAís least restrictive environment (LRE) mandate because of its distance from the student's home when compared to that of Harmony Heights. Petitioner also summarily asserts that the impartial hearing officer erred in concluding that the equities balance in favor of respondents but makes no argument in support of this contention.

        The purpose behind the IDEA (20 U.S.C. ßß 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. ß 1400[d][1][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. ß 1401[8]; 34 C.F.R. ß 300.13; see 20 U.S.C. ß 1414[d]). A board of education may be required to pay for educational services obtained for a student 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 parent's failure to select a program 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]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

        To meet its burden of showing that it had offered to a 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. Pawlett 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]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. ß 1412[a][5]; 34 C.F.R. ß 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. 04-029; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). 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. ß 300.347[a][1]). 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, Section 1, Question 1).

        Upon my review of the record, I find that the impartial hearing officer's decision was well reasoned in all respects. I find that the hearing was conducted consistent with the requirements of due process, that the impartial hearing officer applied the proper legal analysis in determining whether respondents are entitled to tuition reimbursement, and that there is no need to modify the order of the hearing officer (34 C.F.R. ß 300.510[b][2]; Education Law ß 4404[2]).

        I concur with the impartial hearing officerís determination for the reasons she stated finding that petitioner has not met its burden of demonstrating that the placement of respondentsí daughter at Harmony Heights would have met the individual needs of this particular student (see Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 02-077; Application of a Child with a Disability, Appeal No. 99-087; Application of a Child with a Disability, Appeal No. 97-67). Harmony Heights "may" have been an appropriate placement but there is insufficient evidence to demonstrate that the placement was appropriate. Significantly, the record reveals that Harmony Heights was considered a "match" prior to the development of the August 19, 2003 IEP. An appropriate placement for a student must be identified based upon whether a school can meet the studentís needs as identified on the studentís IEP.

        I also concur with the impartial hearing officerís finding that petitioner did not address respondentsí specific concerns regarding their daughterís placement at Harmony Heights. Respondents expressed concerns to the Chairperson regarding Harmony Heights with respect to the degree of supervision at the school and whether the school would provide a safe environment for their daughter. They indicated that these concerns were the result of conversations with, and information from, their educational consultant and their daughterís psychiatrist. The Chairperson advised respondents in advance of the August 19, 2003 CSE meeting that the CSE would be recommending placement of their daughter at Harmony Heights (Tr. p. 71). There is nothing in the record to show that respondentsí concerns regarding Harmony Heights were discussed at the August 19, 2003 CSE meeting (see 34 C.F.R. ß 300.346[a][1][I]; 8 NYCRR 200.4[f][1][i]) or that a representative from Harmony Heights participated in the CSE meeting (Dist. Ex. 17 at p. 3; Tr. pp. 147-49). Had a representative of Harmony Heights been in attendance at that CSE meeting (see 34 C.F.R. ß 300.349[a][2]; 8 NYCRR 200.4[d][4][i][a]), respondents would have had a direct and appropriate opportunity for meaningful discussion with that school and the CSE regarding their concerns with respect to the school and their questions as to whether it would be able to meet the studentís individual needs (see Application of a Child with a Disability, Appeal No. 03-091).

        I concur with the impartial hearing officer that petitioner has failed to meet its burden of proving that it offered to provide an appropriate program to respondentsí daughter for the 2003-04 school year. Respondents have, therefore, prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.

        Respondents bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled their daughter 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., 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 New Haven offered an educational program that met their daughterís 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, 14-15 [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]).

        New Haven is a private residential treatment facility in Utah. It includes a therapeutic school setting with a small classroom environment (Parent Ex. D) and provides 24-hour supervised care (Parent Ex. F). The school has certified teachers (Parent Ex. E) and its teachers are trained to work with students with behavioral and emotional difficulties (Parent Ex. D). Its instructional program is accredited by the Northwest Association of Schools and Colleges and includes a core instructional program of English, history, mathematics, and science (Parent Ex. F). New Havenís instructional program also includes physical education, health, and art (id.). The school's therapeutic services include weekly individual and family therapy, group therapy five times a week, and experiential therapy four times a week (Parent Ex. F). The teachers at New Haven work directly with the schoolís clinical director, therapists, psychiatrists, nurses, and residential staff in order to provide consistent structure to the students and to promote student success (Parent Ex. D). The school's teachers are aware of the student's treatment issues, are trained to handle those issues, and are supported by professional staff in the school's non-instructional areas (Parent Ex. D). The program includes a one-year period of "aftercare" for follow-up purposes after a student successfully completes the on-site residential and instructional portion of the program (Parent Ex. F).

        I find that the record demonstrates that New Haven addressed the studentís social, emotional, and organizational needs by providing her with an educational program in an appropriate and supportive therapeutic setting so that she was able to attend classes and focus on her schoolwork. During the 2003-04 school year, respondentsí daughter made up the tenth grade school work that she had been unable to complete during the previous school year (Tr. p. 136). The student was also able to take the SATís in June 2004 (id.). Further, her grades for the 2003-04 school year show good academic performance (Parent Ex. H). The student received six A's and one B in the first term of the fall semester, seven Aís in the second term of that semester, and seven A's and an incomplete in the first term of the spring semester (id.). The Chairperson did not dispute that respondentsí daughter had made progress at New Haven and she testified that she was "pleased at (that) progress" (Tr. p. 95).

        Petitionerís argument that the studentís placement is not appropriate because it is not the LRE is not persuasive. Parents are not held as strictly to the standard of placement in the LRE as school districts are, however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ, 231 F.3d at 105). Given the circumstances of this case and the agreement of the parties that a residential placement was appropriate for the student, I decline to find that Harmony Heights was an inappropriate placement based on geographic location alone (see M.S. v. Bd. of Educ., 231 F.3d at 105, citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir.1999] ["(T)he test for the parents' private placement is that it is appropriate, and not that it is perfect"], and also citing Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir.1998] [holding private placement's failure to meet IDEA's mainstreaming requirement does not bar parental reimbursement]; Application of a Child with a Disability, Appeal No. 04-015; Application of a Child with a Disability, Appeal No. 01-098).

        I concur with the impartial hearing officer and find that respondents have met their burden of demonstrating the appropriateness of the program at New Haven and that they have prevailed with respect to the second Burlington criterion for an award of tuition reimbursement for the 2003-04 school year.

        I also concur with the impartial hearing officer that the third Burlington criterion favors respondents. As noted by the impartial hearing officer, respondents cooperated with petitioner, attended meetings when requested, promptly shared evaluative information, and gave timely notice of their placement decision. Moreover, as indicated above, petitioner put forth no argument opposing the award of reimbursement on equitable grounds.

        Given the facts and circumstances of this case, I find the award of tuition reimbursement and expenses as ordered by the impartial hearing officer to be appropriate.

        I have considered petitionerís remaining contentions and find them to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

__________________________

October 27, 2004

PAUL F. KELLY
STATE REVIEW OFFICER