The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hon. Michael B. Risman, Corporation Counsel, attorney for petitioner, Denise M. Malican, Esq., of counsel
Andrew K. Cuddy, Esq., attorney for respondents
Petitioner, the Board of Education of the City School District of the City of Buffalo, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents’ son and ordered it to reimburse respondents for their son’s tuition costs at the Gow School (Gow) for the 2004-05 school year. The appeal must be dismissed.
Respondents' son was 15 years old and attending eighth grade at Gow when the impartial hearing began on October 13, 2004 (Oct. 21, 2004 Tr. p. 107; IHO Decision, pp. 3, 9). Gow has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The student began attending Gow at the beginning of the 2004-05 school year and had attended Gow for approximately six weeks when this hearing began (Oct. 21, 2004 Tr. p. 159). The 2004-05 school year is the third school year that the student is attending eighth grade (Oct. 21, 2004 Tr. pp. 140-141). Prior to the 2004-05 school year, the student had been enrolled in petitioner’s district since 1997 (Parent Ex. P at p. 1). The student's eligibility for special education as a student with a learning disability (LD), as determined in 1997 at the end of second grade in petitioner’s school is not in dispute (Parent Ex. P at p. 1; see 8 NYCRR 200.1[zz]).
Prior to classification, a private psychological evaluation of the student was conducted in February 1997 (Parent Ex. D-4). Cognitive testing indicated intellectual functioning in the average range (Parent Ex. D-4 at p. 2). The evaluator identified difficulties in decoding which were consistent with a specific reading disorder and difficulties with concentration, diagnosing him with an attention deficit hyperactivity disorder (ADHD) (Parent Ex. D-4 at pp. 3-6). It was recommended that the student be classified as LD and receive resource room support, reading remediation and assistance with spelling as well as accommodations for spelling (Parent Ex. D-4 at pp. 6-9). The evaluator noted that the student had difficulty maintaining social relationships and exhibited unpredictable and oppositional behavior (Parent Ex. D-4 at p. 6). Medication was prescribed for the student's ADHD in April 1997 (Dist. Ex. 6 at p. 1). An educational evaluation report dated July 31, 1997 stated that the student had had difficulty getting along with peers and maintaining self-control, but that both his attention and his impulse control improved when he began taking medication (Parent Ex. T).
Petitioner convened a Committee on Special Education (CSE) for an initial evaluation of the student on August 4, 1997 and recommended a classification of LD (Parent Ex. P at pp. 1-2). The CSE developed an individualized education program (IEP) for the 1997-98 school year, which recommended that the student be placed in a general education third grade class and receive resource room services and test modifications (Parent Ex. P at pp. 1-3). The student's June 1998 report card noted passing grades in all subjects with a final grade average of 83.33 (Parent Ex. G-16). The report card also noted that the student had been absent 15 school days and that 10 of these days were unexcused absences (id.). When the CSE convened for the student's annual review on April 7, 1998, the IEP developed by the committee included a statement indicating that the student had a history of asthma (Parent Ex. B-7 at p. 1, Parent Ex. B-8 at p. 2).
The student continued to receive resource room services with test and classroom accommodations through fourth, fifth and sixth grades (Parent Ex. B-4 at p. 6, Parent Ex. B-5 at p. 6, Parent Ex. B-6 at p. 6, Parent Ex. B-7 at p. 6). He received passing grades in general education classes during those years, but his report cards indicated 20 or more absences per year (Dist. Ex. 1).
At the completion of the student's 2001-02 seventh grade school year, the student earned passing grades in Health and Physical Education but his final grade average of 66.46 resulted in a recommendation that he be retained in seventh grade and that he attend summer school (Dist. Ex. 1 at p. 4). The report card also included a notation that the student displayed an unsatisfactory attitude in Physical Education, and his overall final conduct grade was an F (id.). During the 2001-02 school year, the student was absent 18 days, 12 of which were documented as unexcused absences, and was tardy 21 days (id.).
The student’s IEP for the 2002-03 school year, developed on May 1, 2002, indicated that the student was "healthy" and also noted that the student's behavior was usually age appropriate but that he had a "tendency to follow the misbehavior of others" (Parent Ex. B-2 at pp. 3, 4). For 2002-03, the CSE recommended continuation of resource room services as well as test and classroom accommodations (Parent Ex. B-2 at pp. 5, 8). On the student’s 2002-03 report card, his Physical Education teacher reported unsatisfactory behavior and his Home and Careers teacher reported that the student's efforts were unsatisfactory and that he did not work to his ability or make appropriate use of class time (Dist. Ex. 1 at p. 5). He achieved final passing grades in Art, Physical Education and Technology, but his final grade average was 64.35, and his overall conduct grade was again an F (id.). During the 2002-03 school year, the student was absent 31 days, all listed on his report card as unexcused absences, and he was tardy 39 times (id.). An IEP developed as a result of the student's annual review on March 25, 2003 noted that the student was healthy and that he exhibited "immature behaviors" (Parent Ex. B-1 at p. 3). The student was retained in eighth grade for the 2003-04 school year. His IEP indicated that he was to remain in general education and receive consultant teacher (CT) services 42 minutes per day for English and Language Arts and was to continue to receive test accommodations to address difficulties with reading and with attention (Parent Ex. B-1 at pp. 7, 9).
During the student’s second year in eighth grade, the 2003-04 school year, the student exhibited difficulties with attendance, tardiness, and resistance to receiving special education services (Parent Ex. D-1 at p. 2, Parent Ex. O-7). An October 1, 2003 psychologist's report noted that the student's special education teacher had contacted the student's parents on five dates in September 2003 to discuss the student's argumentative attitude and use of profanity (Dist. Ex. D-1 at p. 2). The record indicates that the student's inappropriate behavior and language continued throughout the 2003-04 school year (Oct. 13, 2004 Tr. pp. 23-24, 76, 131).
During the 2003-04 school year, an educational evaluation of the student was conducted on October 1, 2003, when the student was 14 years old (Parent Ex. D). On the Woodcock-Johnson Tests of Achievement, the student achieved standard (and grade equivalent) scores of 89 (6.1) for broad reading, 100 (8.9) for broad math and 80 (4.5) for broad written language, with a spelling subtest score of 78 (3.9) (Parent Ex. D at p. 1). The CSE convened on October 9, 2003 to develop an IEP for the student for 2003-04, which was to be implemented for the remainder of the student's eighth grade year and which was intended to continue through the student’s first month of ninth grade in the 2004-05 school year (Oct. 13, 2004 Tr. pp. 43-44; Dist. Ex. 7; Parent Ex. B). No general education teacher from either eighth grade or ninth grade was present at this CSE meeting despite the recommendation that the student be placed in general education classes (Parent Ex. B at pp. 7, 11). The CSE recommended that the student receive daily CT services in English/Language Arts, Math and Science (Parent Ex. B at p. 7). Accommodations of preferential seating and an electronic speller were also recommended, as were test accommodations of extended time, tests administered in an alternate location in a small group, tests read, and use of a scientific calculator (Parent Ex. B at pp. 5, 9). The IEP developed at the October 9, 2003 meeting noted that the student had diagnoses of ADHD as well as asthma, for which he used an inhaler (Parent Ex. B at p. 4). The IEP also noted that the student lacked motivation, exhibited disrespectful behavior towards others, and was "resistant" to receiving CT services and test modifications (Parent Ex. B at p. 3). There is no indication on the IEP or in the record that the CSE considered the student’s history of extensive absences when it considered social/emotional behavior factors impeding his learning (id.). Neither does the IEP indicate that the CSE considered whether health issues may have contributed to his absences (id. at p. 4).
During the 2003-04 school year, the student was absent 46 days, tardy 61 days, and suspended 8 days (Dist. Ex. 9 at p. 1). His June 2004 report card indicated a final grade average of 53.2, and teacher comments on the report card noted that the student's grades were affected by poor attendance and incomplete assignments (Parent Ex. G).
In February 2004, respondents completed an application for their son to attend Gow, a residential school for boys who have reading disabilities (Parent Ex. CC-1). By letter dated August 25, 2004, respondents advised petitioner of the unilateral placement of their son at Gow and requested an impartial hearing seeking tuition reimbursement for Gow for the 2004-05 school year (Parent Ex. A-1). By letter dated September 21, 2004, respondents’ counsel supplemented the impartial hearing request to allege that petitioner did not provide appropriate programming for the student during the 2003-04 school year, did not conduct an annual review of the student at the end of the 2003-04 school year and did not develop an IEP for the 2004-05 school year (Parent Ex. A).
The impartial hearing began on October 13, 2004 and concluded on December 15, 2004 after five days of testimony. The impartial hearing officer rendered his decision on January 18, 2005. The impartial hearing officer found that the IEP developed for the student on October 9, 2003 was procedurally and substantively defective (IHO Decision, pp. 17-18), that the placement of the student at Gow was appropriate (IHO Decision, p. 26) and that equitable considerations favored an award of tuition reimbursement to respondents (IHO Decision, p. 28). The impartial hearing officer determined that respondents were entitled to tuition reimbursement by petitioner for the unilateral placement of the student at Gow for the 2004-05 school year (id.).
On appeal, petitioner asserts that the impartial hearing officer erred in finding that the IEP that was developed for the student on October 9, 2003 was procedurally and substantively defective; erred in finding that the student’s placement at Gow was appropriate; and erred in finding that equitable considerations favored an award of tuition reimbursement to respondents. Petitioner requests that the decision of the impartial hearing officer be reversed. Respondents request that the decision of the impartial hearing officer be affirmed.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][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. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 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 ). 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 ). 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 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043). (05-015).
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 ). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 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). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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. 04-046; 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 Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][i]). 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).
An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]). An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][x]).
In addition, the IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][B][ii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][ii]). The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).
The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (Assistance to States for the Education of Children With Disabilities and the Early Intervention Program for Infants and Toddlers With Disabilities, 64 Fed Reg. 12591 [March 12, 1999]). The State Review Officer has found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).
With respect to the first criterion for an award of tuition reimbursement, petitioner bears the burden of demonstrating that it offered to provide an appropriate educational program to the student. I concur with the impartial hearing officer’s determination that the IEP developed for the student on October 9, 2003 was both procedurally and substantively inappropriate (IHO Decision, p. 20). I also concur with the impartial hearing officer’s determination that petitioner failed to meet its burden of proving that it offered to provide an appropriate program to the student for the 2004-05 school year (IHO Decision, p. 21).
The IEP developed for the student on October 9, 2003 and intended for continuation into ninth grade for the first month of the 2004-05 school year recommends placement in general education for all subjects and daily CT services for English/Language Arts, Mathematics and Science (Oct. 13, 2004 Tr. pp. 43-44; Parent Ex. B at p. 7). The IEP contains three goals, one goal each for reading and writing and a third goal to address completion of tasks and class participation (Parent Ex. B at p. 6). The objectives for the reading and writing goals are vague and indicate that the student will "apply concepts of grammar," "construct a written passage," "show growth in sight vocabulary," and "apply context cues,” but offer no information regarding the level of ability at which these skills will be demonstrated or what would constitute the 75 percent accuracy indicated as mastery of each objective (Parent Ex. B at p. 6). Further, although there is some testimony about small group direct instruction in reading (Nov. 10, 2004 Tr. p. 53), how these goals were to be addressed is not clear from the IEP. The objectives for the goal for task completion and class participation state that the student will “be organized and ready for class” and “follow teacher directions” (Parent Ex. B at p. 6). While the IEP and the record indicate that this is an area of need, the goal and its objectives offer no guidance to the student's general education and special education teachers regarding means by which these objectives are to be addressed or adequately measured.
The student has a history of frequent absences and tardiness which affected his academic performance (Dec. 1, 2004 Tr. pp. 28-29; Dist. Ex. 1). There are references to a history of asthma on the October 9, 2003 IEP (Parent Ex. B at p. 4), but the IEP does not contain any information relating the student's medical condition to his attendance, and contradictory statements on previous IEPs indicate the student was in good health (Parent Exs. B-1, B-2). The record does not demonstrate that the CSE considered the student's medical condition as related to his attendance nor addressed with the parents any concerns about the number of absences documented as unexcused during the 2003-04 school year or during previous years. The IEP does not address this issue, nor does it determine if the student's absences were related to other factors, such as social-emotional needs (see 34 C.F.R. § 300.346[a][i]; 8 NYCRR 200.4[d][i]). Likewise, the IEP does not address the student's frequent tardiness. The IEP suggests "contact with parent" as an appropriate strategy to address attendance, but testimony suggests that this method has not been successful, and there is nothing in the record to indicate that any collaboration between relevant school personnel and the parents to address this concern has been effective (Oct. 13, 2004 Tr. pp. 25, 67; Dec. 15, 2004 Tr. pp. 7, 44-45). Despite the extensive absences and frequent tardiness, the IEP does not contain any positive behavioral interventions, strategies, or supports to address the behavior (34 C.F.R. § 300.346[a][i]; 8 NYCRR § 200.4[d][i]).
The October 9, 2003 IEP notes that the student is resistant to receiving CT services and test modifications and is disrespectful to others (Parent Ex B at p. 3). This statement is consistent with reports from his special education teacher, who testified that the student refused her services and frequently used profane language in her presence as well as in the presence of other teachers (Dec. 13, 2004 Tr. pp. 72-73, 76-77, 131). The IEP refers to the student's resistance to services and to his disrespectful behavior, but offers no means of either exploring or addressing these concerns, which are identified as major impediments to his academic progress (see 34 C.F.R. § 300.346[a][i]; 8 NYCRR 200.4[d][i]). Given the student’s behavioral history, I find that the lack of attendance by a regular education teacher at the development of the October 9, 2003 IEP who could discuss the impact of the student’s behavior on his academic performance, and could participate in the development of goals and objectives to meet the student’s needs, constituted a procedural error that impeded the development of the IEP to the extent that educational benefits were denied to the student and a substantively inadequate program was developed. The October 9, 2003 IEP was inadequate at the time it was formulated (see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]).
Petitioner also failed to subsequently address the student's needs when the student performed poorly while the October 9, 2003 IEP was in effect during the 2003-04 school year. Throughout the 2003-04 school year, the student received failing grades, failed to turn in homework assignments, used profanity in the presence of teachers, was suspended three times (Oct. 13, 2004 Tr. p. 23), and exhibited an increased pattern of absences and tardiness. None of these concerns prompted the CSE to convene to review the student's deteriorating performance (Oct. 13, 2004 Tr. p. 46). I find that given the facts presented, the failure of the CSE to reconvene and review and revise the student’s IEP denied the student a FAPE (34 C.F.R. § 300.343[c]; 8 NYCRR § 200.4[f]).
The record before me does not indicate that the CSE convened in a timely manner to develop an IEP for the 2004-05 school year. The implementation of the student's October 9, 2003 IEP was intended to continue during the first month of the 2004-05 school year, allowing his ninth grade teachers to become familiar with him before developing an IEP for the remainder of the 2004-05 school year (Oct. 13, 2004 Tr. pp. 43-44). I concur with the impartial hearing officer’s reasoning that there was “no reason or benefit” in continuing this student’s eighth grade program into a high school program rather than conducting an annual review of the eighth grade program, determining the student’s progress toward annual goals, and “plotting his course for the following school year” (IHO Decision, p. 15). An appropriate IEP must be in effect at the beginning of each school year (34 C.F.R. § 300.342[a]). Although the student did not enter petitioner's high school but was instead unilaterally placed in a private school by respondents days before the 2004-05 school year began, petitioner failed to meet its affirmative duty to have formulated an IEP that was reasonably calculated to offer to provide the student a FAPE for the 2004-05 school year.
Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student in the October 9, 2003 IEP for the 2004-05 school year, I must now consider whether respondents have met their burden of proving that the services provided to the student by Gow for the 2004-05 school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). In order to meet that burden, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
I concur with the impartial hearing officer’s determination that respondents have established the appropriateness of the student’s unilateral placement at Gow for the 2004-05 school year and that such placement is the least restrictive environment to meet his unique educational needs (IHO Decision, pp. 25-26).
The student has identified deficits in reading and written language. The Gow School is a private boarding school for boys with language based learning disabilities, most of whom are two to three years behind in their reading skills (Oct. 21, 2004 Tr. p. 108). A significant component of the Gow curriculum is based upon a program called "reconstructive language," which implements methodologies developed by Dr. Samuel Orton, who later collaborated on the Orton-Gillingham method of reading instruction (Oct. 21, 2004 Tr. p. 109). The reconstructive language program adapts Orton-Gillingham methodologies for use at the high school level (Oct. 21, 2004 Tr. pp. 142-43). Instruction is provided in small groups, with a maximum class size of six students (Oct. 21, 2004 Tr. p. 182).
All Gow students are required to live on campus (Oct. 21, 2004 Tr. pp. 108, 116). Students attend classes six days per week, Monday through Saturday (Oct. 21, 2004 Tr. p. 107). Classes begin at 8:00 each morning and include a daytime study hall and a tutorial, which is scheduled with specific teachers based upon individual student needs. Needs are monitored by an assigned faculty advisor (Oct. 21, 2004 Tr. pp. 117-19). An afternoon athletic activity is scheduled before the evening meal, and each student is assigned to a table for a supervised study hall every evening from 6:45 p.m. until 8:30 p.m. (Oct. 21, 2004 Tr. p. 117). Although classes do not convene on Sundays at Gow, students are required to attend a Sunday evening study hall from 6:00 p.m. until 8:00 p.m. (Oct. 21, 2004 Tr. p. 118).
A Gow representative testified at the hearing that the student was repeating eighth grade at the school and had been attending Gow for approximately six weeks (Oct. 21, 2004 Tr. p. 107). During that time, the student came to class prepared every day and completed his daily homework assignments (Oct. 21, 2004 Tr. p. 141). No problems with attendance or tardiness had been reported since the student's enrollment at Gow (Oct. 21, 2004 Tr. pp. 121-22). The representative from Gow indicated that the school offered a highly structured environment and that the student benefited from this structure (Oct. 21, 2004 Tr. p. 159). He testified that the student had "absolutely not" used profanity in the presence of teachers at Gow (Oct. 21, 2004 Tr. p. 158). The student attends classes with students who have similar needs and the Gow representative opined that the school's status as a school for boys affords the student freedom from peer pressure which, in a coeducational program, could cause the student to be too embarrassed to ask for assistance or clarification in the classroom (Oct. 21, 2004 Tr. pp. 161-62).
I find that the Gow School appropriately addresses the student's need for direct instruction in reading and written language through its daily sessions implementing the reconstructive language program. I further find that the structure at Gow, including its residential component, is successfully addressing the student's poor attendance, which had not been addressed by petitioner. The residential component, with its supervised study halls and tutorial sessions, is also providing the student with a structure in which to organize and complete assignments. The Gow School, which does not tolerate the use of profanity (Oct. 21, 2004 Tr. p. 176), has had a positive effect upon the student's verbal interactions with his teachers. Finally, the student is no longer refusing special education services and benefits from the structure at Gow.
With respect to the third criterion for an award of tuition reimbursement, I concur with the impartial hearing officer’s determination that respondents’ claim is supported by equitable considerations (IHO Decision, p. 28).
The final criterion for an award of tuition reimbursement is that the parents’ claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 ). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; Weast v. Schaffer, 240 F. Supp. 2d 396, 406-409 [D. Md. 2002]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).
Tuition reimbursement may be reduced or denied, if, notwithstanding being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][C][iii], 1412[a][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d],[e]). 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). In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engage in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049). The record reveals that the parents attended and participated in the CSE meetings and cooperated with petitioner’s CSE in the student's evaluations and in preparing the student's IEP.
Petitioner asserts that respondents failed to give adequate notice of the unilateral placement. The record reveals that respondents gave petitioner notice, by letter dated August 25, 2004 (Parent Ex A-1), of the unilateral placement prior to the start of the 2004-05 school year, albeit only seven business days’ notice. However, in this case, I do not find that the failure to give notice a full ten business days prior to the removal justifies the denial of tuition reimbursement. Here, the record reflects that petitioner did not respond to the notice until September 14, 2004 (Parent Ex. O), twelve business days after receipt of parental notice of unilateral placement and five business days after the start of petitioner’s school year. Moreover, as discussed above, I have found that petitioner was remiss for not convening a CSE meeting to discuss the student’s performance in eighth grade and to develop a ninth grade program. Had petitioner convened a timely CSE, it would have had an opportunity to discuss programming for the 2004-05 school year and respondents’ intentions regarding placement for ninth grade.
In determining the equities of awarding tuition reimbursement in this appeal, I have taken into consideration the significant extent to which petitioner failed to offer a FAPE. I find that the parents' claim for tuition reimbursement is supported by equitable considerations.
I have considered petitioner’s remaining contentions and I find them to be without merit.
I have considered respondents’ affirmative defense asserting that petitioner’s memorandum of law should not be considered because it did not comply with the provision the Regulations of the Commissioner of Education pertaining to the practice on review of impartial hearings for students with disabilities setting forth the proper form of pleadings and memoranda of law submitted to the State Review Officer (SRO) (8 NYCRR 279.8). In the exercise of discretion, I have accepted and considered petitioner’s memorandum of law. Petitioner is strongly reminded, however, that its pleadings and memoranda of law should comply with the requirements set forth in the Part 279 regulations.
THE APPEAL IS DISMISSED.
Albany, New York
April 8, 2005
PAUL F. KELLY
STATE REVIEW OFFICER