The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of Arlington Central School District
Neal H. Rosenberg, Esq., attorney for petitioners
Kuntz, Spagnuolo, Scapoli & Schiro, attorney for respondents, Jeffrey J. Schiro, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's residential tuition costs at the Logan River Academy (Logan River) for a portion of the 2003-04 school year.† The appeal must be sustained.
††††††††††† Before addressing the merits of this appeal, I must address a procedural issue.† Petitioners request that I consider the individualized education program (IEP) recommended by respondent for the studentís 2004-05 school year which is annexed to their petition.† Respondent, the Board of Education of the Arlington Central School District (district), objects to its submission.† 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).† While the document was not available at the time of the hearing, it is not necessary for me to consider the document to determine the appropriateness of the 2003-04 educational program, and, therefore, I will not accept it.
††††††††††† Respondent further asserts affirmative defenses that petitionersí claims predating the 2003-04 school year are barred by the relevant statute of limitations and/or the equitable doctrine of laches, and that claims regarding the 2004-05 school year should be dismissed because petitioners have failed to exhaust their administrative remedies.† As petitioners seek relief for the 2003-04 school year only, I do not address these issues.††††
††††††††††† At the start of the hearing, petitioners' daughter was almost 16 years old (Dist. Ex. 14 at p. 1).† She enrolled at Logan River on December 16, 2003 during her sophomore year (Tr. pp. 323, 351).† Logan River is a private school that has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities.† The studentís current classification as a student with an emotional disturbance (ED) (Dist. Ex. 14 at p. 1) is not in dispute (Tr. p. 13; see 8 NYCRR 200.1[zz]).†
On January 8, 2003, petitionersí daughter was admitted to St. Francis Hospital (Dist. Ex. 63 at p. 1).† A psychiatric evaluation conducted there diagnosed her with Major Depression with Psychotic Features (Dist. Ex. 63 at pp. 2, 49) and she was admitted to the adolescent psychiatric unit. (Dist. Ex. 63 at p. 1).†† Poor insight and impaired judgment were noted (Dist. Ex. 63 at p. 2) as was her history of causing self-harm (Dist. Ex. 65 at p. 1).† A psychological evaluation dated February 7, 2003 conducted by respondent's school psychologist indicated that, based on psychiatric reports from St. Francis Hospital and the results of the Behavior Assessment System for Children-Self Report-A (BASC SRP-A) (Dist. Ex. 51), the presence of serious emotional disturbance was suggested (Dist. Ex. 52 at p. 9).
††††††††††† During her sixth and seventh grade years, 2000-01 and 2001-02 respectively, the student attended a private school (Dist. Ex. 68 at p. 1).† By letter dated January 14, 2003, the head of the private school stated that it was appropriate that the student take an extended leave of absence, asserting that she would be best served by a school which combines academic work with an emotional growth component (Dist. Ex. 61).†
††††††††††† By letter dated January 14, 2003, the father requested an emergency meeting of respondentís Committee on Special Education (CSE) (Parent Ex. KK).† At the time of the letter, his daughter was a patient at St. Francis Hospital (id.).† The letter indicated the father's willingness to share all of his daughter's testing and evaluations with respondent (id.).† By letter, respondent acknowledged receipt of petitioners' referral to the CSE for an initial evaluation to determine whether petitioners' daughter required special education services (Dist. Exs. 58, 59).†
††††††††††† Respondent's school psychologist conducted a psychological evaluation in January and February 2003 and rendered a report on February 7, 2003 (Dist. Ex. 52).† Administration of the Wechsler Intelligence Scale for ChildrenĖThird Edition yielded a full scale IQ score of 112 (79th percentile) in the high average range of intellectual functioning.† Her verbal IQ score of 110 (75th percentile) and performance IQ score of 112 (79th percentile) were both in the high average range of intellectual functioning (Dist. Ex. 52 at pp. 4, 6).
††††††††††† Results from the Woodcock Reading Mastery Test- Revised/NU administered on January 31, 2003 revealed the student's total reading score to be in the 41st percentile or in the average range (Dist. Ex. 52 at pp. 7, 8).† Passage comprehension was ranked at the 17th percentile (Dist. Ex. 52 at p. 7).† The evaluator noted it was difficult to determine whether the weakness in the reading comprehension part of the test may have been due to the student's emotional state or medication, acknowledging that no reading difficulties were noted in the student's educational history, but reading remediation might be indicated (Dist. Ex. 52 at p. 8).†
††††††††††† The Key Math Revised/NU was administered to the student on February 6, 2003† (Dist. Ex. 52 at p. 8).† Although I note there is a discrepancy in the percentile rankings listed for the applications and total test result sections and the accompanying narrative, the evaluator noted that the overall math score was in the average range, with a weakness indicated on the operations subtest in the area of mental computation (Dist. Ex. 52 at p. 8).† The Developmental Test of Visual Motor Integration administered on January 29, 2003 revealed the student's visual motor integration skills to be average (Dist. Ex. 52 at p. 8).† As discussed earlier, the presence of serious emotional disturbance was suggested (Dist. Ex. 52 at p. 9).† The psychological evaluation concluded that home bound instruction was necessary, based upon the student's emotionally fragile state, until such time as it could be decided where her social/emotional needs could best be met (Dist. Ex. 52 at p. 9).††††††††
††††††††††† Respondent's CSE met on February 21, 2003 pursuant to the studentís initial referral (Dist. Ex. 43 at p. 3) and classified the student as ED (Dist. Ex. 43 at p. 1).† The CSE found the student to have significant difficulties in the area of management of emotions, due to depression, that adversely affect her educational performance (id.).† The CSE recommended individual home instruction for ten hours per week, commencing February 24, 2003 and terminating June 25, 2003, to address the studentís mental health problems (id.). With the parents' consent (Dist. Ex. 46), a representative from the Duchess County-Astor High Risk Service Coordination/Single Point of Access (SPOA) program participated in the meeting to make recommendations regarding the appropriateness of the program and placement (Dist. Ex. 43 at p. 3).† The CSE meeting comments section on the IEP indicates that based on medical information the student was at risk for a future placement in a residential school (id.). The comments further indicate that after consideration of the least restrictive environment (LRE), the CSE intended to explore the appropriateness of other programs, such as board of cooperative educational services (BOCES) programs and private day schools, for the student (id.).†††
Respondent's CSE met again on April 3, 2003 to finalize the student's program at the Putnam/Northern Westchester BOCES-The Learning Center at Walden (Learning Center) (Dist. Ex. 33 at p. 3).† The CSE formulated an IEP which provided for a BOCES special class with a 6:1+1 student to teacher ratio for six hours a day in a non-integrated setting (Dist. Ex. 33 at p. 1).† Individual and group counseling were each recommended for thirty minutes a week (id.).† Testing accommodations included extended time and the use of a calculator (id.).† The student started attending special class at the Learning Center on March 20, 2003 (Dist. Ex. 33 at p. 3).† IEP information comments indicate that the student was doing well, adjusting and making progress in class (id.).† It was reported that medication appeared to make the student sleepy in class (id.).† The father noted that he would work with the mother to address this concern with a medical doctor (id.).† The student completed the 2002-03 school year at the Learning Center (Dist. Ex. 14 at p. 3).
In a School Counseling Report dated May 2003, the school counselor stated that although the student had identified goals that she wished to accomplish that year, she made minimal effort to achieve them (Dist. Ex. 28, School Counseling Report at p. 3).† She further stated that the student "has made some emotional growth, however, her depression is a factor that limits greater progress and adds to the difficulty that comes naturally with this stage of early adolescence" (id.).† The school counselor referred to an incident of self-abuse, during her second week of attendance, because she did not get the attention she wanted in class (Dist. Ex. 28, School Counseling Report at p. 2).† She recommended that the student "return to a small environment that has sufficient clinical support to meet her academic and emotional needs" and further recommended continuing weekly group and individual counseling sessions (Dist. Ex. 28, School Counseling Report at p. 3).
††††††††††† In a Teacher Report dated June 4, 2003, under joint teacher and supervisor signatures, the student was reported to have been sleeping in class (Parent Ex. Q, Teacher Report at p. 1).† The student had not always been able to keep up with her current assignments, class work, and homework, due to her sleeping and ailments (Parent Ex. Q, Teacher Report at p. 2).† The teacher recommended a small, highly structured, and nurturing environment (id.).
Respondent's CSE met again on June 13, 2003 with the student in attendance to conduct the student's annual review (Dist. Ex. 24 at pp. 1, 3).††† The meeting information comments on the IEP indicate that the student stated that she felt better when she was in a private school setting (id.).† It was noted that petitioners believed that the students in the current program had different needs than their daughter's needs (id.).† The IEP indicates that the student continued to display emotional difficulties that required therapeutic support beyond her previous placements (id.).†
††††††††††† The June 13, 2003 CSE discussed two possible program options, the Oasis program (Oasis) at the Walter Panas High School and the Karafin School (Karafin), a private non-residential school (Dist. Ex. 24 at pp. 3-4), for the student.† The CSE approved the BOCES option (Oasis) as an appropriate school for the student, with plans to reconvene if Karafin was determined to be the more appropriate setting (Dist. Ex. 24 at p. 4).†††
††††††††††† Respondent's CSE met on August 13, 2003 to finalize the student's program for the 2003-04 school year (Dist. Ex. 14 at p. 1).† The director/special education teacher from Karafin participated in the meeting by telephone (Dist. Ex. 14 at p. 3).† The program and services on the April 3, 2003 IEP (Dist. Ex. 33 at p. 1) were again recommended by the August 13, 2003 CSE (Dist. Ex. 14 at p. 1), but with the substitution of Karafin (Dist. Ex. 14 at pp. 1, 4) for the BOCES special class previously recommended (Dist. Ex. 33 at p. 1).††† The August 13, 2003 IEP noted that Karafin offered a small, very structured, Regents diploma program, with a therapeutic milieu (Dist. Ex. 14 at p. 4).† The IEP indicated that Karafin would provide consistent counseling support through a school psychologist and individualized attention, as well as an appropriately challenging but individualized academic program (id.).†
††††††††††† The student's first date of attendance at Karafin was on September 3, 2003 (Tr. p. 107).† On October 1, the studentís father went to Karafin and stated that the following day he would be sending his daughter to a wilderness program in Utah (Tr. pp. 115-16).† The father was indefinite regarding the length of time she would be there or what she would do once the program ended (id.).† The student's last date of attendance at Karafin was October 2, 2003 (Tr. p. 107).†††
††††††††††† According to the Second Nature Wilderness Program (Wilderness Program) Treatment Summary, the student was "admitted" to the Wilderness Program on October 3, 2003 (Parent Ex. N at p. 1) due to her depression and inappropriate behaviors (Parent Ex. N at p. 2).† The mother testified that it was her daughter's plan to run away from Karafin that triggered her daughterís removal from Karafin (Tr. pp. 297-99).† The Treatment Summary from the Wilderness Program recommended aftercare, which included group therapy integrated into a residential single gender program and a strong and well planned behavioral program to help her motivation with academics (Parent Ex. N at p. 6). The summary also recommended no family therapy until she was stable in self-care and had emotional, behavioral, social, and academic successes (id.).† The therapist strongly cautioned "that a return to her previous environment (family and academic) will confront . . .[the student] with pressures that she is in no way prepared to cope with, other than using . . .dysfunctional patterns" (id.).††
††††††††††† By letter dated December 13, 2003, the father informed the district that his daughter would be transferred from the Wilderness Program to Logan River on December 16, 2003 (Parent Ex. G).† By letter dated January 29, 2004, petitioners' counsel requested an impartial hearing to consider tuition reimbursement for Logan River for the 2003-04 school year (Parent Ex. C).† Petitioners' counsel advised respondent's director of special education that the district did not make a placement recommendation for the 2003-04 school year to appropriately address the student's educational needs, and that the student had been unilaterally placed by her parents at Logan River, in Logan, Utah, for the 2003-04 school year (id.).
††††††††††† An impartial hearing commenced on July 22, 2004 and concluded on August 19, 2004, after two days of testimony.† By decision dated October 2, 2004, the impartial hearing officer did not address the appropriateness of the district's program, but rather proceeded to the issue of whether the private placement was appropriate and whether Logan River offered an "instructional/educational program" that met the student's special needs (IHO Decision, p. 25).† The impartial hearing officer denied petitioners tuition reimbursement, concluding that they failed to establish that Logan River met the student's special needs and that it is was the LRE for the student (id.).† He did not address the question of whether equitable considerations supported the parentsí claim.
On appeal, petitioners assert, inter alia, that the district did not adequately consider evaluative data, develop an IEP with appropriate, measurable goals and objectives, or offer an appropriate residential placement in a timely fashion.† Petitioners further assert that the impartial hearing officer arbitrarily and capriciously disregarded testimony regarding the student's growth, progress, and academic advances at Logan River, and seek tuition reimbursement for the 2003-04 school year.†††††
††††††††††† Respondent asserts that its recommended program and placement for the 2003-04 school year offered the student a free appropriate public education (FAPE) in the LRE and was based on sufficient evaluative information.†† It argues that the IEP was properly constituted and that the student was suitably grouped with other students with disabilities, possessing similar educational needs and abilities, and that equities do not support tuition reimbursement.†
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 ; 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 Individuals with Disabilities Education Act (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 ). 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. ß 1412[a]; 34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]).
The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. ß 1400[d][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. ß 1401), which is tailored to meet the student's unique needs. A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 .† Under equitable considerations "[f]actors that should be taken into account include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters"(Burlington v. Dep't. of Educ.,736 F.2d 733, 801-02 (1st Cir. 1984) aff'd 471 U.S. 359 (1985).† This three-pronged test is commonly referred to as the Burlington/Carter test.† The fact that the private school selected by the parents has not been approved by the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ).
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. ß 300.347[a]; 8 NYCRR 200.4[b][ii][b] and [d][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. ß 300.347[a]; 8 NYCRR 200.4[d][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. ß 300.347[a]; 8 NYCRR 200.4[d][iii] and [x]).
††††††††††† In order to permit meaningful review in a tuition reimbursement claim, in the absence of any stipulation by the parties conceding an issue, it is preferable for an impartial hearing officer to admit relevant evidence on all three prongs of the Burlington/Carter test at the hearing stage (Application of a Child with a Disability, Appeal No. 03-003; see Application of the Bd. of Educ., Appeal No. 97-92; Application of a Child with a Disability, Appeal No. 96-72).† In the instant case, sufficient evidence regarding all three prongs was admitted during the hearing by the impartial hearing officer, thus providing an adequate basis for a three-prong Burlington/Carter analysis.† However, the impartial hearing officer concluded that the parents had not met their burden to establish that Logan River meets the student's special needs in the LRE, and denied tuition reimbursement without determining whether respondent had offered a FAPE (IHO Decision, p. 25).† I find that the impartial hearing officer erred by failing to determine whether respondent had offered a FAPE; however, because the record is adequate in this case, sufficient basis exists for me to make that determination.
††††††††††† Petitioners argue that the August 13, 2003 IEP contains goals and objectives that are not appropriate or measurable. Annual instructional goals and objectives should correspond to a studentís identified needs based upon adequate evaluations.† Therefore, the adequacy of the IEP (Dist. Ex. 14) developed by the CSE on August 13, 2003 must be examined.†
††††††††††† †A St. Francis Hospital psychiatric evaluation report, referencing a January 8, 2003 admission, noted that the student was admitted to the adolescent psychiatric unit because of increased depression and plans to harm herself (Parent Ex. EE).† The evaluation further indicated that she said she had tried to harm a sibling (Parent Ex. EE at p. 2).† The treatment plan indicated a change in medication with observation of mood and behavior, and discharge with referral to the Adolescent Intensive Outpatient Program (AIOP) after being stable (id.).† According to a St. Francis Hospital occupational therapy mental health unit initial evaluation dated January 9, 2003, the studentís continued deficits included the areas of insight into her illness, coping skills, flat affect and appearance of fatigue, establishing a plan including self-concept, self-control, problem solving, and self-expression (Parent Ex. DD).†
††††††††††† By letter dated February 10, 2003 directed to respondent's school psychologist, the student's psychiatrist and psychologist jointly acknowledged the student's current enrollment in the AIOP at St. Francis Hospital Mental Health Clinic, and her active participation in various daily group therapies and individual psychotherapy (Dist. Ex. 49).† The AIOP treatment team recommended that the student be placed in a residential facility in order to best address her educational and mental health needs (id.).† The SPOA Universal Referral Questionnaire dated February 21, 2003 indicated that the student was being referred to intensive case management, a residential treatment facility, and the coordinated childrenís services network (Dist. Ex. 45 at p. 1).
The August 13, 2003 IEP contained seven instructional goals (Dist. Ex. 14 at pp. 5-7).† Based on the studentís evaluations and history, the area in which the student presented the most serious need was in the social/emotional/behavioral domain (id.; see 8 NYCRR 200.1[ww]). One goal and four objectives were developed in this area† (Dist. Ex. 14 at p. 7).† The identified goal seeks the demonstration of an improvement in socially acceptable behaviors (id.).† No specific goals were developed to address the additional social, emotional, behavioral and management needs discussed above.† The single goal and accompanying objectives in this domain are insufficient and do not adequately address the studentís needs.† Moreover, the IEP provided for counseling services two times per week, one individual session for a half an hour and one group session for a half an hour. I find that this level of service not to be sufficient in light of the studentís high level of psychological needs.
††††††††††† Further, the August 13 2003 considered parent, school, and psychiatric letters, a social work statement, a physical examination, a social history, and a report card, as well as psychiatric, psychological, occupational therapy, and educational evaluations (Dist. Ex. 14 at p. 5).† On February 10, 2003, a St. Francis Hospital psychiatrist and a St. Francis Hospital psychologist recommended that the student be placed in a residential facility (Dist. Ex. 49).† An undated letter from a St. Francis Hospital social worker acknowledged that the student had been a patient at St. Francis Hospital since January 8, 2003 and stated that the inpatient and outpatient teams, collectively, concluded that the student would "benefit from a residential treatment facility where they could most safely, and appropriately address her educational and psychological needs" (Parent Ex. BB). Indeed, the school psychologist's psychological evaluation referred to the St. Francis Hospital social worker as having recommended a residential treatment facility by letter dated January 24, 2003 (Dist. Ex. 52 at p. 9).† The motherís testimony indicated that the parents believed a residential therapeutic environment to be an ongoing option and repeated this in "incremental meetings" (Tr. pp. 295-96).† Yet, the IEP did not list a residential placement as an option that was considered (Dist. Ex. 14 at p. 2).† Nor did the comments on the IEP indicate that this was discussed on August 13, 2003 (Dist. Ex. 14 at pp. 3-5), despite this recommendation being in the documents listed as considered (Dist. Ex. 14 at p. 5).
††††††††††† By letter dated December 5, 2003 directed to The Summit Childrenís Residence Center (Summit School), the CSE expressed its interest in "exploring a therapeutic residential program" for the student (Parent Ex. J).† Respondentís CSE concluded its letter by stating that the student "is in need of a placement as soon as possible so we would appreciate any efforts to expedite this process. . ." (id.).† On December 19, 2003 (Tr. p. 264), Summit School responded to the district and indicated the student was an appropriate candidate for its residential school (Tr. pp. 241, 264).† No meeting was held since Summit School indicated it would accept the student (Tr. pp. 266-67).† This issue was never discussed by the CSE (id.).† By letter dated January 15, 2004 to the CSE chairpersons, petitioners stated that they still had not received the list of residential schools or any further communication from the office (Parent Ex. E).† As of January 16, 2004, one month after the student began Logan River on December 16, 2003 (Tr. p. 323), and almost a year after the AIOP treatment team recommended a residential treatment facility (Dist. Ex. 49), respondent was investigating potential residential programs (Dist. Ex. 1) and had not recommended a residential program for the student (Tr. p. 279).† The studentís recommended placement remained at Karafin, a nonresidential program (Dist. Ex. 14 at p. 1).
By the August 2003 CSE meeting, the student had already been enrolled in a BOCES program at the Learning Center which was not successful, and mental health experts as well as the parents suggested residential placement.† The child had a history of serious, self-destructive behavior. With this information before it, I find that the CSE erred in that it did not consider residential placement as an option and did not obtain an updated mental health evaluation to supplement the mental health information and evaluations generated in January and February 2003.† Based on the inadequacies of the IEP content in terms of not having appropriate, measurable annual goals to address the students social, emotional and management needs, and the CSEís failure to provide appropriate services to address her needs, and the CSEís failure to adequately consider residential placement and have updated evaluative material, I am constrained to find that the August 13, 2003 IEP, at the time it was formulated, was deficient and not reasonably calculated to enable the student to receive educational benefits.
I find that respondent did not meet its burden of demonstrating that it offered a FAPE to the student for the 2003-04 school year (Application of a Child with a Disability, Appeal No. 95-71; Application of a Child with a Disability, Appeal No. 94-13).
Having determined that respondent did not provide petitioners' daughter a FAPE in 2003-04, I must now consider whether petitioners have met their burden of proving that the services provided to the student by Logan River during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, petitioners must show that Logan River offered an educational program which met their daughter's special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111).
Respondent asserts that Logan River was an inappropriate and overly restrictive placement for the student and failed to provide her with specialized instruction to address her unique learning needs.†
Logan River is a structured residential treatment program, with academic and clinical components (Parent Ex. A).† Of the approximately 90 students at Logan River this past year, 14 had IEPs (Tr. p. 362).†††
††††††††††† The student was unilaterally removed from Karafin because she was going to runaway (Tr. p. 298).† She was transferred to the Wilderness Program (Parent Ex. N at p. 1) and then was admitted on December 16, 2003 to Logan River, an adolescent residential treatment center licensed by the State of Utah and licensed "academically" by the Northwest Accreditation Association (Parent Ex. B).† The program is designed to treat male and female individuals from 12 to 17 years old experiencing behavioral, emotional, and substance abuse problems (Parent Ex. B).†
When the student first entered Logan River, the student was taking anti-psychotic and anti-depressant medications (Tr. p. 320). The Logan River social worker stated that, "[b]ased on her decision making and patterns before treatment, she was headed in a very dangerous direction" (Parent Ex. A).† He further testified that emotions were impeding her academic success, she was depressed and not motivated (id.) and always blaming someone else for her problems (Tr. p. 323).† He stated that she showed no personal accountability and was attention seeking (Tr. p. 318).† Both the current and previous Logan River therapists believed the student needed a residential facility upon enrollment (Tr. pp. 324-25).† He further testified that the student receives individual and family therapy, as well as drug, and group therapy (Tr. pp. 329-30).† Boys and girls are not allowed to interact "too much" and only in "very structured limited sections of the program such as group therapy" (Tr. pp. 343-44).† A psychiatrist comes in once a week to see students and monitor medications (Tr. p. 345).
††††††††††† The special education coordinator at Logan River testified that the school has been approved by the Utah State Department of Education to instruct students with disabilities (Tr. p 357).† Academic programming is determined on an individualized basis with the academic director (Tr. pp. 357, 370).† He stated that a therapeutic plan addressing certain school issues was put into place for the student (Tr. pp. 357-58).†
††††††††††† The students attend school from 9:00 to approximately 3:30 (Tr. pp. 312, 348).† The rest of the day is very structured; they do chores, work on homework, and have frequent therapy (id.).† After school, they can get help from teachers and participate in study hall (Tr. p. 348).† Logan River utilizes a "level system" wherein students advance through the system based on behavior, attitude, and performance in school and therapy, and on the unit, as determined by the therapist and teachers scoring a "level sheet" with 12 different areas (Tr. p. 312).† Consequences for negative behavior include varying amounts of time spent in a "development room" depending upon the behavior (Tr. pp. 335-36).† The students do either academic or therapy work there and earn points by staying on task, being quiet, and not being disrespectful (id.).†††††
††††††††††† According to the social worker, the student is starting to learn how to accept boundaries and limits (Parent Ex. A).††† She is "quite engaged" in her therapy and willing to accept confrontation (Tr. p. 318).† Her GPA (grade point average) has risen from approximately 1.3 when she first arrived, to approximately 3.8 in June (Tr. p. 322).† The student has gained a little self-confidence, has "taken more accountability" (Tr. p. 323), and is willing to work on her low self-esteem and insecurity (Tr. pp. 318-19).† The student typically gets her assignments in on time (Tr. p. 353).†† She wants a future, to do better in school, and to go to college (Tr. p. 323).† She has also expressed interest in taking a careers class (Tr. pp. 368-69).† The student realizes a "little bit" of cause and effect and that if she wants a goal, she has to work for it (Tr. p. 323). ††
††††††††††† After having begun as a "level 1" student, the student is considered to be a "level 5" on an 8 level program scale (Tr. p. 318).† Based on the studentís behavior, she is still struggling to consistently apply what she is learning (Parent Ex. A).† However, her "infractions" have lessened in quality and quantity as time has progressed (Tr. p. 343).††† She is no longer using anti-psychotic and anti-depressant medications, but uses a sleeping medication (Tr. p. 320).† Logan Riverís social worker asserts that the student realizes that she needs to be there and acknowledges that the program is good for her (Parent Ex. A).†† He testified that the student has not voiced a desire to be in a residential program in New York (Tr. p. 341).† She has verbalized an interest in staying (at Logan River) until she "gets it right and is ready to go home" (id.).††
Although the residential placement selected by petitioners is highly restrictive, I find that the placement is not inappropriate† (Application of a Child Suspected of Having a Disability, Appeal No. 01-082). I do not find that the parentsí unilateral placement of the student at Logan River inconsistent with the LRE requirement, particularly when the district failed to identify an appropriate placement closer to home (Application of the Bd. of Educ., Appeal No. 01-012) after the student was removed from Karafin.† Further, since mental health evaluations recommended residential placement and, unlike Karafin, Logan River has students with and without IEPs, I cannot conclude that Logan River is too restrictive.† Accordingly, and on the basis of all the above, I find that petitioners have met their burden of demonstrating the appropriateness of the program at Logan River (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57).† By doing so, they have prevailed with respect to the second criterion for an award of residential tuition reimbursement for their daughter's attendance at that school for the portion of the 2003-04 school year commencing December 16, 2003.
††††††††††† The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations.† Petitioners contend that the student's removal from Karafin was necessitated by regressive, deteriorating, and dangerous behavior exhibited by the student during her enrollment at Karafin.† They argue that the district did not respond to their daughter's needs in a timely manner, and failed to offer a residential placement until the student had already been placed at Logan River for more than eight months.† Petitioners allege that they provided proper notice regarding their daughter's removal from Karafin.†
††††††††††† Respondent argues that the equities balance against reimbursement, and that the impartial hearing officer properly concluded that the parents are not entitled to reimbursement for tuition, room, board, and other costs associated with their unilateral placement of their daughter at Logan River for the 2003-04 school year.
††††††††††† The student had a history at Karafin, which included complaining of "feeling depressed and frightened, saying she felt the need to be hospitalized because she felt unsafe with herself" (Parent Ex. M at p. 2).†† The parents removed their daughter from Karafin on October 2, 2003 (Tr. p. 107) because they learned that she had her bag packed with clothing and was preparing or threatening to run away from home (Tr. pp. 373-74).† They felt desperate and were deeply concerned that the next time their daughter would not be within their supervision, and she would be at risk of disappearing or doing something very severe or drastic (Tr. p. 374).† The father discussed their worries and his plan with the school principals (id.).† The parents felt that they did not have the luxury of time to interview therapeutic schools (Tr. p. 375) and placed their daughter in the Wilderness Program, allegedly a program frequently used prior to placement in a residential school (id.).†††
††††††††††† The father testified that he made over a weekís worth of (telephone) calls and left messages at the Arlington office where he was trying to bring the three committee "chairpeople" "up to speed with what actions we had to take" (Tr. pp. 376-77).† By letter dated November 6, 2003, the father informed the CSE chairperson that the parents had been advised by their daughter's psychiatrist (at the Wilderness Program) that she could not return home for any length of time and must be placed in a residential facility (Parent Ex. L).† Petitioners requested that appropriate action be taken (id.). After a series of letters directed to respondent requesting placement (Parent Exs. I, K, L), by letter and facsimile dated December 13, 2003, the father stated that he could no longer wait for the district to recommend an alternative therapeutic school for his daughter (Parent Ex. G).† He further stated that many weeks had gone by without any response from the (CSE) office (Parent Ex. G).† The father informed the district that his daughter had to be moved from the Wilderness Program and immediately placed in a school (id.).† He also informed the district that his daughter would be transferred to Logan River via child custodian on December 16 (id.).† By letter dated January 29, 2004, petitionersí counsel requested an impartial hearing to consider the issue of tuition reimbursement (Parent Ex. C).† As of the last date of the hearing, August 19, 2004, there had been no CSE meeting held since November 21, 2003 (Tr. pp. 262-63).† The studentís current placement recommendation remained Karafin (Dist. Ex. 14 at p. 1) even though she was no longer a student there and circumstances had changed.
††††††††††† The parents participated in the meetings and conversations (Tr. pp. 242-43), shared information with respondent (Tr. p. 75), and corresponded with respondent regarding placement (Parent Exs. G, I, K, L).† Their inability to have their daughter participate in the Summit School interview was explained as their daughter not being home or being able to participate (Tr. p. 173).† The father participated in a discussion regarding the student's placement at the Learning Center (Dist. Ex. 33 at p. 3) and petitioners indicated a willingness to place their daughter at Karafin as early as July 9 (Tr. p. 161), prior to her unilateral, residential placement at Logan River.† When asked, they did not refuse to sign any consent provided to them by the board of education (Tr. pp. 245-46).
I find no evidence that the parents failed to cooperate with the CSE.† Accordingly, I find that equitable considerations support the award of reimbursement to petitioners for residential tuition (tuition plus room and board) at Logan River for the portion of the 2003-04 school year, commencing December 16, 2003.
I have considered petitioners' remaining contentions and I find them to be without merit.
††††††††††† THE APPEAL IS SUSTAINED.
††††††††††† IT IS ORDERED that the impartial hearing officerís decision is annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for residential tuition (tuition plus room and board) at Logan River for the portion of the 2003-04 school year, commencing December 16, 2003 upon petitionersí submission of proof of payment for such residential tuition expenses.
Albany, New York
December 17, 2004
PAUL F. KELLY