The State Education Department
State Review Officer

No. 04-071

 

 

 

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

 

Appearances:
Sara B. Baughan, attorney for petitioners

Harris Beach LLP, attorney for respondent, Alfred L. Streppa, Esq., of counsel

 

DECISION

        Petitioners appeal from the decision of an impartial hearing officer, which denied their request to be reimbursed for their sonís tuition costs at the Norman Howard School (Norman Howard) for the 2003-04 school year. The Board of Education cross-appeals from the impartial hearing officerís determination that it failed to demonstrate that it had offered to provide an appropriate educational program to the student for the 2004-05 school year. The appeal must be sustained in part. The cross-appeal must be sustained.

        Before addressing the merits of this appeal, I must address two procedural issues. Respondent asserts that the petition for review was not timely served. Respondent asserts that petitioners served the petition on September 17, 2004 (Answer ∂ 24).  

        Part 279.2(b) of the Regulations of the Commissioner of Education, as amended, effective January 1, 2004, provides that the petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.

        The impartial hearing officerís decision was dated August 9, 2004 and was mailed to the parties (IHO Decision, p. 1). Petitioners served the petition for review on respondent on September 17, 2004 (see Petitionersí Aff. of Service sworn to September 18, 2004). I find that service of the petition to seek review was timely.

        The second procedural issue is petitioners' request that I consider Exhibits A-E attached to their petition that were not made part of the hearing record and are now submitted for review. Respondent objects to the introduction of Exhibits A, B, C, and D and sets forth that Exhibit E is already a part of the record. In the event that Exhibit D is accepted, respondent requests that I accept two additional exhibits that it offers for submission which were not made part of the hearing record. The documents presented by petitioners are: an e-mail message dated October 3, 2003, from the Committee on Special Education (CSE) Chair to another district employee summarizing the outcome of the September 30, 2003 CSE meeting (Pet. Ex. A); a letter dated January 5, 2004 from petitionersí attorney to the CSE Chair and an attachment relative to the scheduling of respondentís CSE meeting (Pet. Ex. B); an affidavit sworn to on September 16, 2004 by the Director of Education at Norman Howard addressing a finding of the impartial hearing officerís decision in this case (Pet. Ex. C); a letter dated August 16, 2004 from petitionersí counsel to the impartial hearing officer with respect to the August 16, 2004 request by respondentís counsel requesting clarification of the impartial hearing officerís August 9, 2004 decision in this matter (Pet. Ex. D); and an e-mail message dated August 20, 2004 to counsel for the parties from the impartial hearing officer clarifying her August 9, 2004 decision (Pet. Ex. E).

        Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020). Exhibits A and B were available at the time of the hearing, therefore, I decline to accept them. Exhibit C is an affidavit that was prepared after the date of the impartial hearing officer's decision which in part addresses that decision. The affiant was a witness at the hearing and testified extensively. I find that the submission on appeal of an affidavit by a witness who testified at the hearing to be inappropriate. Besides the fact that the witness was available to testify at the time of the hearing, consideration of such a submission would violate the fundamental concepts of due process involving the right to confront and cross-examine all witnesses (8 NYCRR 200.5[i][3][xii]), hence I decline to accept Exhibit C. Exhibit D relates to respondent's request that the impartial hearing officer clarify her August 9, 2004 decision. While it is true that this e-mail was not available at the time of the hearing, it is not necessary for my review, therefore, I will not accept Exhibit D nor the two documents offered to me by respondent in response to Exhibit D. As to Exhibit E to the petition, I note that it was previously made a part of the record.

        Petitionersí son was 11 years old and in the fifth grade at Norman Howard at the commencement of the hearing in June 2004. The student was classified as a student with a learning disability in February 1998 (Parent Ex. 30) and that classification is not in dispute. Petitioners moved to respondentís school district in March 2002 (Tr. p. 439) when their son was in the third grade. The student initially attended a private school but enrolled in respondentís Victor Central School District (Victor) in April 2002 where he completed the third grade.

        The student entered fourth grade for the 2002-03 school year and received special education services pursuant to an Individualized Education Program (IEP) developed by a Committee on Special Education (CSE). The IEP continued to classify the student as a student with a learning disability (Dist. Ex. 11 at p. 1) and identified mathematics reasoning, written expression, and basic reading skill as areas of need (id.). It provided that petitionersí son receive resource room services for 40 minutes a day and 30 minutes of group speech-language therapy for two days out of every six-day cycle (Dist. Ex. 11 at p. 3).

        The studentís mother testified that during the fourth grade there were developing concerns about her sonís self-esteem and emotional needs (Tr. pp. 1339-41). She also testified that in the final months of that school year he was whiney about going to school, crying at times, and beginning to have difficulty sleeping (Tr. p. 1431). The regular education teacher testified that in December 2002 petitioners began voicing concerns to her about their sonís anxiety with regard to school (Tr. p. 81). The teacher testified that the student had not exhibited any signs of anxiety at school but as a result of petitionersí concerns she began to watch for signs that their son might be uncomfortable (Tr. p. 82). The studentís fourth grade resource room teacher testified that the student showed anxiety and frustration about completing his schoolwork and getting it done on time (Tr. pp. 293, 294). She also testified that the studentís mother told her that the student expressed self-doubt, would be up at night, and had anxiety about coming to school (Tr. pp. 291, 294).

        A CSE conducted an annual review on April 25, 2003, to develop the studentís IEP for the balance of the fourth grade and for the beginning of the 2003-04 school year when he would be in the fifth grade (see Dist. Exs. 31, 33; Tr. pp. 187-89). The CSE recommended that the studentís special education program for the beginning of the fifth grade continue with the same level of resource room and speech-language therapy as he was currently receiving (see Dist. Ex. 33 at p. 4; Tr. p. 188). An occupational therapy screening/observation was completed on April 24, 2003 and the CSE added a recommendation for consultant teacher services in occupational therapy twice a year (Dist. Ex. 32 at pp. 16, 25, Dist. Ex. 33 at p. 4; Tr. p. 188).

        At the April 25, 2003 CSE meeting, participants discussed the studentís social and emotional functioning. A pre-conference document created for use at the CSE meeting identified needs in the area of social and emotional functioning. They included: sensitivity about not keeping up with his peers academically; a need for support and encouragement to understand his learning differences and his learning disabilities; and that he "may shut down when frustrated" (Dist. Ex. 32 at p. 5). The document also included "new social emotional comments" indicating fatigue during small group instruction and demonstration of behaviors impeding learning such as: fatigue, lack of intrinsic motivation, and need for individual attention to complete tasks (id.). The document also stated, "would benefit from supportive in-school counseling." The studentís mother testified, that at the CSE meeting, she raised concerns about the student having "missed so many days of school," his reluctance to go to school and his low self-esteem (Tr. p. 1296). She stated she further advised the CSE that her son "is very angry" and needed help with anger management and coping skills (id.). She testified that she requested that respondent provide the student with on-going counseling but the district declined to do so citing, in part, the school counselorís heavy caseload (id.). Shortly after the CSE meeting, petitioners obtained services from a private counselor (Tr. p. 1298; see Tr. p. 865). Petitioners did not reject the IEP at the CSE meeting nor during the following summer.

        Unfortunately, the night before he was to return to school on September 3, 2003 for the fifth grade, the student experienced significant anxiety and panic. Petitioners testified that he was crying, begging not to go to school, and that he returned in tears at the end of the first day (Tr. pp. 1044, 1045, 1048, 1049). The studentís mother testified that she believed the student had a "panic attack" (Tr. pp. 1048-49). Petitioners reported that the student's significant distress, anxiety, and panic regarding his re-enrollment continued that evening and into the second and third days (Tr. pp. 1048-1050, 1052-1054). Petitioners contacted the school psychologist for help on the second day (Tr. p. 1055). Because the studentís anxiety, expressed panic, and continuing resistance to attend school continued the next week (Tr. p. 1058), on September 9, 2003, petitioners requested the scheduling of a CSE meeting and asked that the school psychologist conduct a reevaluation of the student (Tr. pp. 134, 1060-61; Dist. Exs. 4, 5, 73). Later in September, petitioners requested that respondent approve an independent evaluation by a neuropsychologist (Tr. pp. 190-93).

        As part of the requested reevaluation, respondent requested and obtained an updated physical examination of the student (Dist. Ex. 24), conducted a psychological evaluation (Dist. Ex. 26), another occupational therapy observation (Dist. Ex. 25), and obtained a social history update (Dist. Ex. 27). As part of this process, petitioners also completed a pediatric problem checklist and parent questionnaires (Dist. Ex. 34). These were submitted to the school psychologist (Tr. pp. 163-65).

        Respondentís CSE met on September 30, 2003. In addition to the CSE Chair, meeting participants included a school psychologist, the studentís fourth and fifth grade teachers, his fourth grade resource room teacher, respondentís speech-language pathologist and an occupational therapist. Both parents also attended, as did the studentís counselor at that time and an independent educational specialist. Attorneys for both parties also attended the meeting. At this meeting, the CSE reviewed and discussed the evaluation reports that had been prepared by respondent and other participants at the meeting. The minutes of the meeting indicate that based on the discussion that took place, the CSE Chair asked for a complete occupational therapy evaluation, a speech-language evaluation and the results of an independent neuropsychological evaluation (Parent Ex. 11 at pp. 18, 19, 21, 22, 24-28). With no disagreement, the CSE Chair indicated that the CSE would consider programming for the student upon its receipt of the results of the independent neuropsychological evaluation (Parent Ex. 11 at p. 31; see also Parent Ex. 11 at p. 36). The CSE Chair advised petitioners that when students are awaiting the results of an evaluation to determine appropriate placement, the typical interim placement was home tutoring where there was documentation that a student should not to return to school because of a crisis (Parent Ex. 11 at p. 28). A short time later petitioners were asked whether they would be interested in home tutoring pending the completion of the independent neuropsychological evaluation and CSE review (Parent Ex. 11 at p. 36).

        The meeting recessed while petitioners and their attorney discussed the CSEís offer of home instruction (Parent Ex. 11 at p. 36). After discussing the matter, petitioners advised the CSE that they believed that respondentís home tutoring proposal had "risk" to it and they would instead unilaterally enroll their son in Norman Howard (Parent Ex. 11 at pp. 36-37). Petitioners advised the CSE that they wanted the additional evaluations of the student to go forward and wished to continue with the CSE process (Parent Ex. 11 at pp. 37, 38).

        On October 3, 2003, an occupational therapist employed by respondent completed an occupational therapy evaluation (see Dist. Ex. 38). The report recommended that the student receive direct occupational therapy services and also recommended a complete visual examination by a pediatric optometrist (Dist. Ex. 38 at p. 7). A speech-language therapist employed by respondent completed a speech-language evaluation report on October 4, 2003 (see Dist. Ex. 39). An independent neuropsychologist evaluated the student on October 21 and 22 and on November 3, 2003 (Dist. Ex. 40). He concluded that the student exhibited a significant learning disability for nonverbal processing of information, particularly within the domain of visual perceptual integration and judgment of line orientation in space (Dist Ex. 40 at p. 6). He also diagnosed a developmental coordination disorder and a mathematics disorder (Dist. Ex. 40 at pp. 5, 6). Because of his significant visual perceptual difficulties, the neuropsychologist recommended that the student be seen by a pediatric ophthalmologist and potentially a pediatric neurologist (Dist. Ex. 40 at pp. 4, 5, 7). An ophthalmologist conducted an eye examination of the student on December 5, 2003 (Dist. Ex. 41). He reported normal visual pathway findings and also recommended possibly following up with a pediatric neurologist (id.) The optometrist reported that the studentís directionality was not concrete and that he exhibited an ocular motor skills dysfunction (Dist. Ex. 42; Parent Ex. 88; see also Tr. pp. 1373-75). A neurological examination was conducted on January 30, 2004 (Tr. p. 1353). The studentís mother reported that the neurologist recommended an MRI, that this examination was done on March 10, 2004 and that its results were normal (Tr. p. 1353).

        By letter dated February 20, 2004, the CSE Chair advised petitioners that the previously "tabled" September 30, 2003 CSE meeting was being reconvened on March 2, 2004 (Dist. Ex. 44). The CSE met on that day and also on March 22, April 28, and May 17, 2004 (Dist. Exs. 47, 49, 51, 56). During this period, the CSE reviewed the evaluations requested at the September 30, 2003 CSE meeting, engaged in extensive discussions of the studentís present levels of performance and needs, and developed appropriate goals and objectives. Petitioners and their attorney participated fully in these discussions.

       By letter dated April 26, 2004, petitioners, by their attorney, requested an impartial hearing, asserting that the CSE at its September 30, 2003 meeting, failed to offer their son a free appropriate public education (FAPE) (Parent Ex. 1). Petitioners advised that they had turned down the offer of home instruction, enrolled their son in Norman Howard, and sought reimbursement for the studentís tuition at Norman Howard. At respondentís request, petitionersí attorney thereafter submitted a request for due process proceedings form dated May 5, 2004 to respondent (Parent Ex. 2).

        At its May 17, 2004 meeting, the CSE completed the development of an IEP for the balance of the studentís 2003-04 school year and for that portion of the studentís 2004-05 school year beginning in September 2004 and ending on May 16, 2005 (Dist. Ex. 58 at pp. 2, 9-11; Parent Ex. 6 at pp. 1, 8-10). For these periods, the CSE recommended that the student be placed in a class with a student to teacher ratio of 17:1 (Tr. p. 226). While the class would be a regular education class, the teacher would be dually certified in special education as well as regular education and the class would have a small number of students with disabilities (Tr. pp. 226, 806; Dist. Ex. 56 at p. 4). The CSE also recommended that the student receive daily resource room services by his teacher within the regular classroom setting (Tr. p. 226; Dist. Ex. 58 at pp. 9, 10, 11; Parent Ex. 6 at pp. 8, 9, 10). For additional support in the classroom, the CSE recommended that the student have "access to an aide" (Dist. Ex. 58 at pp. 9, 10; Parent Ex. 6 at pp. 8, 9). The aide would be assigned to the student and possibly shared with one other student (Tr. pp. 227, 252). The CSE also recommended that the student receive individual and group counseling (Tr. p. 229; Dist. Ex. 58 at pp. 9, 10, 11; Parent Ex. 6 at pp. 8, 9, 10), individual occupational therapy and consultant teacher services in occupational therapy (Tr. pp. 229, 230; Dist. Ex. 58 at pp. 9, 10, 11; Parent Ex. 6 at pp. 8, 9, 10), a special math class taught by a resource room teacher in a small group not to exceed 12 students (Tr. pp. 231-32; Dist. Ex. 58 at pp. 10, 11, 12; Parent Ex. 6 at pp. 9, 10, 11), and individual speech therapy (Tr. p. 233; Dist. Ex. 58 at pp. 10, 11; Parent Ex. 6 at pp. 9, 10). The IEP included numerous goals and objectives in these areas as well as testing accommodations (see Dist. Ex. 58 at pp. 3, 13-20; Parent Ex. 6 at pp. 2, 12-19).

        By letter of May 24, 2004, petitioners, by their attorney, requested an impartial hearing, asserting that the CSE at its May 17, 2004 CSE meeting had failed to offer their son a FAPE (Parent Ex. 3). Petitioners asserted that the CSE did not recommend sufficient special education services for the balance of the 2003-04 school year or for the 2004-05 school year and that their son should be provided with compensatory services in occupational therapy (id.). At the request of petitioners and without objection by respondent, the impartial hearing officer consolidated the requested hearings (Tr. pp. 7-8). The hearing commenced on June 2, 2004. It continued on June 15, 16, 17, 18, 22, and 30 and concluded on July 1, 2004.

        During the course of the hearing, petitioners raised a number of issues in addition to those raised in the two hearing requests. Petitioners asserted that the IEP for the 2003-04 school year was not appropriate when drafted and that the 2003-04 and 2004-05 IEPs should have identified who would be responsible for providing the studentís IEP to district staff and advising them of their consequent responsibilities. Petitioners further asserted that respondent did not provide petitioners with a copy of the New York State special education parent handbook, that respondent staff provided the Board of Education with information about their son without notice to them, that the Board of Education approved special education services to their son without first reviewing the recommendations of an IEP from its CSE, and that the Board of Education did not advise petitioners when it approved the studentís IEPs. The impartial hearing officer rendered a decision on August 9, 2004.

       The impartial hearing officer determined that petitioners were not entitled to an award of tuition reimbursement for the 2003-04 school year. She concluded that the IEP was appropriate when drafted at the April 25, 2003 CSE meeting and when the 2003-04 school year began. She also concluded that it was appropriate to amend the IEP after the September 30, 2003 CSE meeting and the receipt and review of additional evaluations during that year. She further concluded that the CSE amended the 2003-04 IEP in an appropriate and timely manner. The impartial hearing officer also determined that petitioners did not comply with the prior notice provisions of 34 C.F.R. ß 300.403(d)(1) and that the delay in amending the 2003-04 IEP was due in part to petitionersí delay in providing respondent with the results of the independent evaluation. With respect to petitionersí argument that respondent should have developed an IEP at the September 30, 2003 CSE meeting prior to the conclusion of the reevaluation, the impartial hearing officer concluded that respondent had attempted to discuss interim placements but that petitioners chose not to discuss such options.

        With respect to the 2004-05 school year, the impartial hearing officer found that petitioners were entitled to tuition reimbursement. The impartial hearing officer concluded that the student was not emotionally able to benefit educationally in 2004-05 from a full-time placement in the small (17:1) traditional integrated regular education classroom recommended by the CSE. She found that this classroom placement was not the LRE for the student. Based on the testimony of petitionersí witnesses that the student had improved, the impartial hearing officer also concluded that he should begin a transition program from Norman Howard back to public school in September 2004 and complete that transition on or before June 30, 2005. In a clarification of her decision, the impartial hearing officer advised that the student should be at Norman Howard for 100 percent of the school day in September 2004, at the public school for 100 percent of the school day at the end of June 2005 and that "at some time during the (2004-05) school year he would gradually increase his time at (the public school) from zero to 100 percent."

        The impartial hearing officer rejected petitionersí request for occupational therapy compensatory services, finding that their request for a hearing did not raise that issue, that they did not request that such services be provided when they enrolled their son at Norman Howard or on other occasions, and that they had not provided respondent with a prescription for such services when requested by respondent. The impartial hearing officer found that petitionersí claim that respondent had not complied with its procedural obligations was without merit.

        Petitioners appeal from the impartial hearing officerís order that their request for tuition reimbursement for the 2003-04 school year be denied, and her order requiring the addition of a transition plan to the studentís IEP for the 2004-05 school year. Petitioners also assert that the impartial hearing officer improperly issued a clarification to her decision. Respondent cross-appeals from the impartial hearing officerís order awarding petitioners tuition reimbursement for the 2004-05 school year.

        The purpose behind the IDEA (20 U.S.C. ßß 1400 - 1487) is to ensure that students with disabilities have available to them a 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 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 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).

        I will first consider the 2003-04 school year. A CSE is required to revise a studentís IEP as appropriate to address anticipated needs and other matters (34 C.F.R. ß 300.343[c][2][iv] and [v]). The CSE developed an IEP for the 2003-04 school year at its meeting on April 25, 2003 (see Dist. Ex. 33; Tr. p. 189). The studentís return to school in September at the beginning of the 2003-04 school year was accompanied by significant anxiety, panic, and fear (Tr. pp. 1044, 1045, 1048, 1049, 1050, 1052-54). Petitioners communicated the studentís difficulty with returning to school to respondentís psychologist and requested that the studentís reevaluation be moved up and that a CSE meeting be scheduled (Tr. pp 134, 1060-61; Parent Exs. 4, 5). Thereafter, the September 10-12, 2003 psychological evaluation reported that the student appeared to be deeply discouraged, with significant feelings of academic inadequacy (Dist. Ex. 26 at p. 4). The school psychologist recommended that "counseling support may be helpful in providing (the student) strategies to deal with his thoughts and feelings" (Dist. Ex. 26 at p. 5). Although emotional factors were discussed at the April 2003 CSE meeting, the psychological report provided significant new information related to the studentís emotional needs and it also included a recommendation that counseling might be appropriate as part of the studentís IEP. Respondentís September 11, 2003 occupational therapy observation report (Dist. Ex. 25) identified a number of needs including poor motor memory for letter formation; midline eye weakness; fine motor concerns relating to drawing, copying, coloring, and scissor use; difficulty with visual perception, and sensory concerns that did not appear on the existing IEP. By the time of the September 30, 2003 CSE meeting, the studentís needs had changed and revision of the studentís IEP for the 2003-04 school year was appropriate.

        Contrary to the conclusion of the impartial hearing officer, I find that the record does not demonstrate that the September 30, 2003 CSE adequately considered providing special education services in the LRE (8 NYCRR 200.6) nor does it demonstrate that an appropriate IEP was offered. The record reveals that the only placement offered for the student was home instruction (see Parent Ex. 11, pp. 28, 36). Such a placement is only to be recommended by a CSE if such placement is in the LRE (8 NYCRR 200.6[h]). There is no persuasive evidence that this was the LRE for instruction for the student. There is nothing in the record to indicate that the continuum of services (8 NYCRR 200.6) were considered and a determination made as to what was appropriate to meet this studentís individual needs. For example, there is no indication that consideration took place concerning special classes, a smaller classroom size, supportive related services such as counseling, consultant teacher services, additional resource room programming, or placement of the student by respondent at the state approved Norman Howard school. The petitioners here were only offered the most restrictive setting. Respondent has thus failed to meet its burden of proving that it offered to provide a FAPE to the student. Petitioners have therefore prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.

        Petitioners bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled their son for the 2003-04 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioners must show that Norman Howard offered an educational program that met their sonís 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]).

        Upon my review of the record, I find that Norman Howard met the studentís needs for the 2003-04 school year. The school is an independent New York State approved school for students who have learning disabilities in grades 5 through 12 (Tr. p. 1072). The school has approximately 165 students and employs alternative teaching strategies and remediation in reading, writing and basic math skills (Tr. pp. 1072-73). The population of students served at Norman Howard includes students, such as petitionersí son, who have nonverbal learning disabilities and who are very anxious (Tr. p. 1074).

        The school provided the student with a small class educational environment (Tr. pp. 1136-37) that was nonthreatening and which allowed him to participate in and focus on educational instruction. He received instruction by a certified special education teacher who was assisted by a teaching assistant in his science class (Tr. pp. 1116, 1123, 1215, 1235; IHO Ex. 10). He received instruction from the special education teacher in English language arts, writing, science, social studies, and math and made use of the goals and objectives contained in the IEP that respondent had developed for him for the 2003-04 school year (Tr. pp. 1136-37, 1197-1202, 1227; Parent Exs. 70, 71, 96). Norman Howard used a multisensory program for reading instruction (Tr. p. 1257) and the student received daily reading instruction by a certified teacher (Tr. p. 1256; IHO Ex. 11). This multisensory program was appropriate for the studentís needs and focused on decoding, encoding and comprehension (Tr. p. 1257). Norman Howard also provided the student with speech-language services for 30 minutes, twice a week from a speech-language pathologist (Parent Ex. 61; Tr. p. 1073). Norman Howard provided instruction to the student in an environment that was sensitive to the studentís need to keep up academically with peers, that provided him with appropriate support and encouragement, and which facilitated his need to understand his learning differences. The school provided instruction relative to the studentís educational needs including, but not limited to, grade level content and included assistance in dealing with his deficits relating to mathematics, shapes, position and direction (Tr. pp. 1080, 1136, 1227; Parent Exs. 70, 71, 96). Norman Howard utilized educational techniques with the student that included repetition, verbal mediation, enlarged type faces, metacognitive awareness, scaffolding, thinking maps, visual aids, manipulatives and hands on opportunities (Tr. pp. 1080, 1081, 1083-84, 1142, 1143-49, 1160, 1161-62, 1166, 1221). The student made progress at Norman Howard during the course of the 2003-04 school year. His attitude toward instruction and school was positive (Tr. pp. 1193, 1196). He improved his levels of self-confidence and classroom participation and felt able to communicate with instructional staff regarding his needs and questions related to instruction (Tr. pp. 1193-97, 1202; Parent Exs. 71, 96). His handwriting improved (Tr. pp. 1150-51). His reading comprehension improved and his responses became more structured (Tr. p. 1267). A January 26, 2004 progress report indicated that the student had made progress on 15 of 21 IEP related objectives (Parent Ex. 71). The year end progress report showed that he had mastered 3 of 17 IEP related objectives and made progress in 13 others (Parent Ex. 96). Petitioners have established that Norman Howard provided an appropriate placement for their son for the 2003-04 school year and have therefore satisfied the second Burlington criterion.

        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]). Courts must consider "all relevant factors" (Carter, 510 U.S. at 16). These 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], affíd, 471 U.S. 359 [1985]).

        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. ßß 1412[a][10][C][iii], 1412[a][10][C][iv][IV]; see also 34 C.F.R. ßß 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).

        Petitioners withdrew their son from respondent's school subsequent to the September 30, 2003 CSE meeting and enrolled him in Norman Howard (Parent Ex. 104). At that September 30, 2003 CSE meeting, petitioners advised the CSE of their concerns about and the problems with the program that had been recommended for their son at the April 25, 2003 CSE meeting (Parent Ex. 11 at pp. 7, 18, 19, 29, 30, 31, 33, 36) as well as why they were rejecting the offer of home tutoring proffered to them at that meeting (Parent Ex. 11 at pp. 36, 37).

       The impartial hearing officer concluded that at the September 30, 2003 CSE meeting, the CSE attempted to discuss interim placement options but that petitioners chose not to discuss them. I have reviewed the verbatim transcript of the September 30, 2003 CSE meeting. The only option that the CSE Chair suggested pending the completion of the independent neuropsychological evaluation was home tutoring (see Parent Ex. 11 at pp. 28, 36). The CSE Chair did not make any attempt to discuss interim options other than home tutoring with petitioners. The only reference to options at the September 30, 2003 CSE meeting concerned possible CSE recommendations after the completion of the independent neuropsychological evaluation (see Parent Ex. 11 at pp. 31, 32).

        Petitioners cooperated with respondentís CSE. They attended and participated in all scheduled CSE meetings. They provided significant amounts of evaluative information to the CSE, and gave timely notice of their placement decision. For all of these reasons, and in the absence of any other equitable factor, I find that equitable considerations support petitionersí claim for tuition reimbursement for the 2003-04 school year.

        I now turn to respondentís cross-appeal of the impartial hearing officerís decision to award petitioners tuition reimbursement for their sonís attendance at Norman Howard for the 2004-05 school year. I first look to the appropriateness of the program offered by respondent Board of Education for that school year.

        The IEP recommended by the CSE for the 2004-05 school year was based on numerous evaluations. These evaluations included a psychological evaluation (Dist. Ex. 26), a neuropsychological evaluation (Dist. Ex. 40), a Strength Based Assessment (Dist. Ex. 29; Parent Ex. 55), an occupational therapy evaluation (Dist. Ex. 38), a speech-language evaluation (Dist. Ex. 39), an ophthalmologic evaluation (Dist. Ex. 41), and an evaluation by an optometrist (Dist. Ex. 42; Parent Ex. 88; Tr. pp. 1373-75). Other relevant information considered by the CSE included progress reports (see Dist. Ex. 74 at p. 3) and other information submitted on behalf of petitioners (Dist. Ex. 45; Parent Ex. 59). The CSE discussed and finalized the studentís program over the course of four separate CSE meetings attended by a number of professionals with extensive first-hand experience relative to the student. In addition to petitioners, personnel from Norman Howard attended one or more of the CSE meetings and their opinions were taken into account in the development of the CSEís recommendations.

        The IEP contains a very detailed description of the studentís needs (see Dist. Ex. 58 at pp.5-8; Parent Ex.6 at pp. 4-7). The student experiences significant difficulty with written expression, mastery of basic concepts, basic comparison concepts recognizing and naming basic shapes, mathematics, positional/directional concepts and time/sequence concepts (Dist. Ex. 58 at p. 5; Parent Ex. 6 at p. 4). He demonstrates anticipatory anxiety regarding academic performance (Dist. Ex. 58 at p. 6; Parent Ex. 6 at p. 5). The student needs support and encouragement and may shut down when frustrated (id.). He needs to experience academic success to relieve anxiety and he needs to also feel it is okay to make mistakes (id.). He needs a safe, accepting classroom environment where learning differences are accepted and respected and where the student can feel comfortable in learning his own way (Dist. Ex. 58 at p. 8; Parent Ex. 6 at p. 7). Petitionersí son is sensitive to others and eager to receive help from adults (Dist. Ex. 58 at p. 5; Parent Ex. 6 at p. 4). He is cooperative and courteous and once he feels comfortable and "safe" in his environment, he will share his thoughts and questions and begin to seek assistance when needed (Dist. Ex. 58 at p. 7; Parent Ex. 6 at p. 6).

       With the exception of math, the sixth grade program recommended for the student included a small, traditional 17:1 integrated classes that would be taught by dually certified teachers; it would include access to an aide throughout the day, a daily resource room program within the regular education classroom, a special math class in a small group resource room setting, group and individual counseling, consultant teaching in occupational therapy and individual occupational therapy, and individual speech-language therapy on a push in and pull out basis. There was no dispute that the student would benefit from the counseling, occupational therapy, resource room, small group math class, or speech-language instruction.

        The IEP included numerous strategies which all CSE members agreed would be of benefit to the studentís instruction including access to a calculator; pre-teaching and rephrasing of questions when necessary; copy of class notes; graph paper; "Finger Thinking" strategies; immediate feedback; verbal mediation; manipulatives and hands-on opportunities to support learning; additional time to process instructions; models of written work; mneumonics; cues; scaffolding material; reduced homework; metacognitive strategies; movement opportunities; auditory presentation of materials; the use of multi-sensory approach to reading instruction; "Thinking Maps"; word banks; a safe, accepting classroom environment where learning differences are accepted and respected and to earn in his own way without embarrassment or ridicule (see Dist. Ex. 58 at pp 5, 7-8; Parent Ex. 6 at pp. 4, 6-7).

        Both parties agreed that the IEPís goals and objectives were appropriate, reflected the studentís current needs, strengths and present levels of performance (Tr. pp. 219-223, 459, 479, 513, 1366). The impartial hearing officer concluded that the needs, goals, objectives, and services in the studentís 2004-05 IEP were appropriate (IHO Decision, p. 3).

        The record included extensive testimony from one of the studentís two 17:1 proposed classroom teachers. Her testimony persuasively described the structure of the 17:1 classroom which allowed her to work intensely with small groups of students on an every-day basis (Tr. p. 647). She testified as to her familiarity with and use of instructional strategies recommended for the student including thinking maps (Tr. p. 682), metacognition (Tr. p. 687), verbal mediation (Tr. p. 689), visual references (Tr. p. 663), and immediate feedback (Tr. p. 688). She reviewed the studentís IEP and testified that petitioners' son would be appropriate for her class and would fit into the 17:1 setting of the classroom (Tr. p. 681). She testified that she had no concern about her ability to implement the strategies, goals and objectives on the studentís IEP (Tr. p. 682).

        Respondentís school principal testified that the student would have access to an aide who was experienced in special education and familiar with the sixth grade curriculum (Tr. pp. 800-01). The aideís activities would include appropriate nonteaching duties such as talking through a problem with the student (Tr. p. 149); picking up on cues from the teacher with respect to the student, providing cues to the student in order that he remain on task, and clarifying directions (Tr. p. 227); being available to the student for checking his understanding and expressing his knowledge (Tr. p. 800); and being available to speak with the student before he wrote something down (Tr. pp. 846-47). The CSE added to the IEP the studentís access to an aide in order to provide additional adult support for the student within the classroom and to make sure that his needs were quickly met (Tr. p. 227). There would be an additional aide assigned to the class for the 40 minute period during which the teacher would be involved in guided reading group instruction (Tr. pp. 252-53, 645-46, 659, 673, 706). This would provide additional support and resources to the classroom instructional program.

        One of the studentís two 17:1 dually certified classroom teachers testified that the studentís social and emotional needs would be appropriately addressed in her classroom (Tr. pp. 696-98). The classroom atmosphere is a supportive environment and provides a strong sense of community where students are very involved (Tr. p. 650). Students work at their own pace (Tr. p. 698). She testified that she has worked with students in the past on self-advocacy (Tr. p. 686) and communicates to her students that it is alright to make mistakes and everyone has strengths and weaknesses (Tr. p. 694). The school principal stated that she has directly observed the teacher on many occasions utilizing a vast array of instructional techniques and has seen this teacher give a lot of individualized attention to students (Tr. p. 809). The school principal indicated that this teacherís classroom environment was one where students felt comfortable with themselves and with taking risks (Tr. p. 827) and where students felt comfortable in asking for assistance (id.). She testified that this classroom was "a family unit" where there was mutual respect between the students as well as between the teacher and the students (Tr. p. 808).

        The impartial hearing officer awarded petitioners tuition reimbursement for their sonís placement at Norman Howard for the 2004-05 school year. Based on testimony by petitionersí witnesses, she concluded that petitionersí son was "too emotionally fragile" to benefit educationally in the 2004-05 school year from a full-time placement in the districtís small, traditional regular education integrated classroom and that such a placement was not in the LRE. I must disagree.

        The record shows that in the several months since the beginning of the 2003-04 school year, the student improved in self-confidence, self-understanding and in reaching for instructional assistance in nonthreatening environments when he had adequate support. The independent neuropsychologist testified that the studentís anticipatory anxiety would preclude successful participation by the student in the recommended 17:1 classroom. Although he had read recent reports relating to the student, I note that he last examined the student more than seven months prior to the date of his testimony (Tr. pp. 457, 458, 488, 521). The testimony with respect to the student from a former tutor is similarly limited (see Tr. pp. 738, 742). Moreover, the opinions expressed by the witnesses that were relied upon by the impartial hearing officer to the effect that the student would not be able to effectively participate in the recommended 17:1 program did not take into account the additional support that would be provided by the studentís access to an aide. I also note that while the impartial hearing officer relied on certain witnesses to conclude that the student would not be able to receive educational benefit in the district's recommended 17:1 classroom, she rejected without adequate explanation the testimony of those witnesses that the student was not yet ready to transition back to the district's program.

        Respondent has sustained its burden of proving that it has offered a FAPE to the student with respect to the 2004-05 school year and it has therefore prevailed with respect to the first Burlington criterion for that school year. This being the case, the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-008; Application of a Child with a Disability, Appeal No. 03-058) and I find that petitioners are not entitled to tuition expenses. I need not reach the issue of whether Norman Howard was an appropriate placement for the 2004-05 school year.

        Petitioners also assert that the impartial hearing officer should have ordered the provision of compensatory occupational therapy services to the student. During the hearing, respondentís counsel consented to petitionersí request for compensatory occupational therapy services (Tr. pp. 1502-1504). There is no longer any controversy regarding this matter and petitionersí request for additional occupational therapy educational services is therefore moot.

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

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        THE CROSS-APPEAL IS SUSTAINED.

        IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it denied petitioners' request for tuition reimbursement for their sonís attendance at Norman Howard for the 2003-04 school year; and

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

        IT IS FURTHER ORDERED that the hearing officer's decision is hereby annulled to the extent that it awarded tuition reimbursement to petitioners for their sonís tuition for the 2004-05 school year.

 

 

 

 

 

Dated: Albany, New York   __________________________
  November 12, 2004   PAUL F. KELLY
STATE REVIEW OFFICER