The State Education Department
State Review Officer

No. 05-049

 

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 Lawrence Union Free School District

 

 

Appearances:
Law Offices of Deusdedi Merced, P.C., attorney for petitioners, Paul Ivers, Esq., of counsel

Ehrlich, Frazer & Feldman, attorney for respondent, Timothy M. Mahoney, Esq., of counsel

DECISION

Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son’s tuition costs at Kulanu Torah Academy (Kulanu) for the 2004-05 school year.  The Board of Education cross-appeals from the impartial hearing officer’s determination that it failed to demonstrate that it had offered to provide an appropriate educational program to the student for that year.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

At the time of the impartial hearing, petitioners’ son was almost 11 years old and attending Kulanu where he was receiving speech-language therapy, occupational therapy (OT), and applied behavioral analysis (ABA) services at home, provided by respondent (Tr. pp. 1, 5, 300, 312-13, 378, 428-29, 464-67).  Kulanu has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities.  The student’s eligibility for special education and classification as a student with autism (8 NYCRR 200.1[zz][1]) are not in dispute in this appeal.

The student falls below the first percentile on measures of intelligence as determined by administration of the Stanford Binet Intelligence Scales, Fifth Edition on May 20, 2004, as a part of a psychological evaluation of the student (Dist. Ex. 13 at p. 2).  His adaptive skills were shown to be similarly delayed (Dist. Ex. 13 at p. 3).  A speech- language evaluation conducted on January 29, 2004, indicated significant delays in speech and language development (Dist. Ex. 3 at p. 4).  The student requires the use of a voice output augmentative/alternative communication (AAC) device to effectively and efficiently communicate (Dist. Ex. 4).  The student also has significant delays in socialization (see Dist. Ex. 2 at p. 1, Dist. Ex. 13 at p. 4).  An evaluation conducted during the 2003-04 school year indicated that petitioners' son did not show an interest in his peers and required adult supervision to interact appropriately (Dist Ex. 2 at p. 1).  An augmentative and alternative communication evaluation conducted on June 2, 2004 indicated that he could walk independently within his classroom and the school setting (Dist.  Ex. 4 at p. 4; Tr. p. 46).  The student’s 2004-05 individualized education program (IEP) indicated that petitioners’ son had significant fine and gross motor delays (Dist. Ex. 1 at p. 3).  An OT evaluation conducted during the 2003-04 school year indicated deficits in the student’s fine motor and perceptual motor abilities (Parent Ex. 4 at p. 2).  Testimony indicated that the student engages in self-stimulatory and aggressive behaviors (Tr. pp. 320-21, 342-43).

Petitioners’ son received Early Intervention special education services beginning in late March or early April 1996 (Tr. pp. 374-75).  In September 1996, at respondent’s recommendation, the student began attending the Hagedorn Little Village School (Little Village), an out-of-district, nonprofit educational placement (Tr. pp. 13-14, 375-76; Dist. Ex. 6).  He remained at Little Village for eight years and received ABA instruction during that entire period (Dist. Ex. 2 at p. 1, Dist. Ex. 3 at p. 1, Dist. Ex. 6; Tr. pp. 376, 435).

In fall 2003 Little Village informed petitioners that due to age restrictions their son would no longer be eligible for services at the end of the 2003-04 school year (Dist. Ex. 6; Tr. pp. 376-77).  The student’s mother notified respondent of this and of the need to find a placement for her son (Tr. pp. 200, 377).  In early February 2004 the student’s mother met with the school psychologist and reviewed a list of approved public and private schools (Tr. pp. 380-81).  Respondent contacted and sent information to a number of approved schools seeking an appropriate placement for petitioners’ son (Tr. pp. 141, 212, 216-17, 218, 223, 228).

Respondent’s Committee on Special Education (CSE) convened for the student’s annual review on March 17, 2004 (Parent Ex. 1 at p. 3; Tr. p. 131).  The CSE determined that an out-of-district placement was appropriate (Tr. p. 29; Parent Ex. 1 at p. 3). However, it was not able to identify an appropriate placement or an available opening for the student at such a school and it, therefore, determined to continue to explore placements (Parent Ex. 1 at p. 3; Tr. pp. 128, 131-32).

Between the end of March and the end of July 2004, the student’s mother visited potential out-of-district programs including the Developmental Disabilities Institute (DDI) (Tr. pp. 389-91), the Center for Developmental Disabilities (CDD) (Tr. pp. 391-400) and the Board of Cooperative Educational Services (BOCES) Rosemary Kennedy School (Rosemary Kennedy) (Tr. pp. 400-02).  Respondent contacted additional private schools on or about August 8, 2004 (Tr. pp. 128, 405; see Dist. Exs. 10, 11, 12).

The CSE met on August 23, 2004, to recommend a placement for the 2004-05 school year (Tr. pp. 30, 75, 133, 158, 356).  Representatives from CDD and Rosemary Kennedy participated via telephone for part of the meeting (Tr. pp. 31-32, 98-99, 133, 154-57; Dist. Ex. 1 at p. 4).  The CSE decided that CDD was not an appropriate recommendation (Tr. pp. 50, 357-58, 407).  The parties dispute whether Rosemary Kennedy advised the CSE that the student’s teacher would have ABA training and whether the CSE recommended a placement at that school (see Tr. pp. 32, 33, 48-50, 99-100, 112, 407-09, 414-15, 428, 447).  The student’s mother indicated that she did not want to send her son to Rosemary Kennedy and that she could not accept that placement (Tr. pp. 31, 50, 445).

The IEP resulting from the August 23, 2004, CSE meeting provided that petitioners’ son would attend a 6:1+2 class at Rosemary Kennedy, receive individual speech-language therapy daily for 30 minutes, individual OT weekly for 30 minutes, and be provided with an appropriate AAC device (Dist. Ex. 1 at pp. 1, 2).  It also provided for home services and parent training (Dist. Ex. 1 at p. 1).

By letter dated August 20, 2004, and received by the district on August 24, 2004, petitioners requested an impartial hearing (Dist. Ex. 8).  The request asserted that as of August 20, 2004, the CSE had not recommended an appropriate program.  Petitioners’ letter also stated that in view of the district’s failure to offer the student a free appropriate public education (FAPE), the parents had chosen to place him at Kulanu and seek tuition reimbursement (Dist. Ex. 8 at p. 4).

The impartial hearing commenced on November 22, 2004, and concluded on January 7, 2005.  On March 28, 2005, the impartial hearing officer issued a decision.  Contrary to petitioners’ assertion that respondent’s CSE had not made a placement recommendation at the CSE meeting on August 23, 2004, the impartial hearing officer concluded that respondent’s CSE had recommended Rosemary Kennedy (IHO Decision, p. 15).  She noted that both parties agreed that an ABA trained teacher was a necessary component of the student’s program (id.) and she agreed with petitioners that respondent had not shown at the meeting that the student’s classroom teacher at Rosemary Kennedy would be trained in ABA (id.).  She found that the CSE’s recommendation was therefore not appropriate (IHO Decision, pp. 14-15).  The impartial hearing officer further determined that petitioners failed to show that Kulanu was an appropriate placement for the student (IHO Decision, p. 15) and that petitioners’ request for tuition reimbursement failed on equitable grounds (IHO Decision, p. 16).

Petitioners appeal the impartial hearing officer’s conclusion that Kulanu was not an appropriate placement and that the equities do not support their application for tuition reimbursement.   They also assert that the August CSE was not appropriately composed, that the CSE did not develop appropriate goals and objectives, and that the IEP was deficient.  Respondent cross-appeals from the determination that it did not offer an appropriate educational program.  The parties do not dispute the appropriateness of placing the student in a 6:1+2 classroom (Tr. p. 53).

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 FAPE (20 U.S.C. § 1400[d][1][A]).1  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[8][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 [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. 04-043).

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]). 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][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 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][1]; see also 8 NYCRR 200.4[d][2][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).

I will first address respondent’s cross-appeal. The parties agree that petitioners’ son requires an ABA based program and should have an ABA trained or certified teacher (Tr. pp. 33, 66, 112, 408-09, 447).  With respect to the August CSE meeting, the impartial hearing officer found that the CSE recommended Rosemary Kennedy and further found that its representative was unable to assure the CSE that the student’s teacher at that school would be ABA trained (IHO Decision, p. 15).  She, therefore, concluded that respondent had not shown that it had offered petitioners’ son an appropriate placement at the August 23, 2004 CSE meeting (IHO Decision, pp. 14-15).  Although the testimony is controverted with respect to whether the CSE made a recommendation and what Rosemary Kennedy representatives advised the CSE, the record provides support for the impartial hearing officer’s conclusion (see Tr. pp. 32, 48, 50, 358-59, 408, 409, 428, 447, 456-57, 461-62) and I will not disturb it.  Accordingly, I find that respondent has not shown that it offered the student an appropriate program and placement at the August 23, 2004 CSE meeting.  I, therefore, concur with the impartial hearing officer that respondent has not met its burden of demonstrating that it recommended an appropriate program and placement.

Respondent’s cross-appeal asserts that after the CSE meeting, the principal of Rosemary Kennedy telephoned petitioners and advised them that their son would have an “ABA trained teacher” at Rosemary Kennedy (Answer ¶ 73; see Tr. pp. 427-28, 458-59).  A CSE may reconsider its recommendation for a child at a subsequent CSE meeting to make changes or cure inadequacies (see Application of a Child with a Disability, Appeal No. 97-37; Application of a Child with a Disability, Appeal No. 96-30; Application of a Child with a Handicapping Condition, Appeal No. 91-008).  In this case, however, the CSE did not reconvene.

Even had respondent shown that its CSE had offered petitioners’ son an ABA class with an ABA trained teacher, I would still be constrained to find that the CSE had not offered to provide a FAPE.  The IEP’s present levels of performance and descriptions of the student’s needs contain conclusory and cursory statements and global descriptions (see Dist. Ex. 1 at pp. 2, 3) and as such do not provide the information required by 8 NYCRR 200.4(d)(2)(i) and 34 C.F.R. § 300.347(a)(1) (see Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 00-058).  A number of annual goals are overbroad and many short-term objectives are not measurable and lack required specificity (see 8 NYCRR 200.4[d][2][iii]; 34 C.F.R. § 300.347[a][2]; Application of the Bd. of Educ., Appeal No. 04-070; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 00-058).  The goals do not relate to meeting the student’s needs resulting from his disability (see 8 NYCRR 200.4[d][2][iii][a]; 34 C.F.R. § 300.347[a][2]) as the IEP contains no goal or objective relative to mathematics or to his gross motor abilities (see Dist. Ex. 1A at pp. 1-4).  Further, notwithstanding that the student exhibited behaviors that impeded his learning during the 2003-04 school year (see Dist. Ex. 2 at p. 1, Dist. Ex. 3 at p. 2; see also Parent Ex. 4 at p. 1), neither a functional behavioral assessment (FBA) nor positive behavioral interventions and supports were included as part of the development of the IEP for the 2004-05 school year (8 NYCRR 200.4[b][1][v], [d][3]; K.F. and G.F. v. Clarkstown Cent. Sch. Dist., No. 04 Civ. 2601 [S.D.N.Y. March 24, 2005]; Application of a Child with a Disability, Appeal No. 02-114).  These inadequacies in the IEP development cumulatively rise to the level of denying petitioners’ son a FAPE (see Evans, 930 F. Supp. at 93).  Given the above findings, it is not necessary that I consider petitioners’ remaining challenges to the impartial hearing officer’s decision with respect to the program offered by respondent. Petitioners have, therefore, prevailed with respect to the first Burlington criterion.

Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE during the 2004-05 school year, I must now consider whether petitioners have met the burden of proving that the services provided to their son by Kulanu during that 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 parent 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. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

The impartial hearing officer concluded that petitioners failed to show that Kulanu was an appropriate placement  (see IHO Decision, pp. 15-16).  I disagree.  The record shows that Kulanu is a private special education school housed within the Hebrew Academy of the Five Towns and Rockaway (HAFTR), a private day school (Tr. p. 267).  The student is enrolled in a specialized classroom that provides one-to-one ABA instruction  (Tr. pp. 266, 269, 272) and a limited number of group ABA programs (Tr. pp. 269, 289, 341-42).  The student’s instruction is developed and delivered according to ABA principles (Tr. pp. 269, 280, 283-85, 291, 294-95, 297-98, 337, 342) and data is recorded and used for the basis of decision making (Tr. pp. 273, 274, 318, 336).  The class is staffed by an ABA supervisor and four ABA teaching assistants (Tr. pp. 266, 269, 272).  The ABA supervisor develops the individual ABA programs and the ABA teaching assistants provide the students with the one-to-one instruction (Tr. pp. 272-74, 323).  The ABA programs are individualized and developed on the basis of each student’s results on the Assessment of Basic Language and Learning Skills (Tr. pp. 279-81, 294, 325).

The ABA instruction addressed the student’s identified social needs (Tr. pp. 295-96; Dist. Ex. 2 at p. 1, Dist. Ex. 3 at p. 2, Dist. Ex. 4 at pp. 2, 3; Parent Ex. 5), math needs (Tr. p. 296; Dist. Ex. 13 at p. 3; Parent Ex. 5), play skills needs (Tr. pp. 296-97; Dist. Ex. 2 at p. 1, Dist. Ex. 3 at p. 2; Parent Ex. 5), speech and language needs (Tr. pp. 297-99; Dist. Ex.  2 at p. 2; Dist. Ex. 3 at pp. 2, 3; 4; Parent Ex. 5), and language arts needs (Tr. p. 299; Dist. Ex. 3 at p. 2, Dist. Ex. 4 at p. 3; Parent Ex. 5).  It also addressed daily living skills (see Tr. pp. 333-34; Dist. Ex. 2 at p. 2).  With respect to the impartial hearing officer’s conclusion that the location of the student’s speech-language therapy was inadequate, there was no showing that its location interfered with the benefit petitioners’ son received from that related service (Tr. pp. 468, 488).

The impartial hearing officer's conclusion that an appropriate program required a “certified” teacher or instructor is not supported by law (see Carter, 510 U.S. at 14). In addition, the record does not support the impartial hearing officer’s conclusion that the individuals providing the student with one-to-one ABA instruction were insufficiently trained in ABA, needed additional formal education or that additional information about their educational background was required.  Testimony indicated that three of the ABA instructors were believed to be college graduates (Tr. p. 272).  Testimony showed that the ABA supervisor provided them with initial, continuing and regular training as necessary to provide the student proper ABA instruction (Tr. pp. 273-75, 324).  The ABA supervisor also observed and supervised their one-to-one student work and modeled the implementation of individual ABA programs (Tr. pp. 274-75, 323, 347).  While the ABA supervisor was not present during the entire school week (see Tr. p. 277), Kulanu provided petitioners' son with a full day, five day per week educational program (Tr. pp. 277, 291-94).  The ABA supervisor did not spend all of her time in the ABA classroom (Tr. p. 320).  However, time spent outside of the classroom included necessary classroom related duties (see Tr. pp. 270-71).  I note that respondent provided no evidence that any part of the educational program implemented by the teaching assistants was ineffective or not directed to the student’s educational needs.  Moreover, as discussed below, the instruction provided educational benefits to the student.

The impartial hearing officer misstates the lack of opportunities for socialization in the student’s placement.  Classroom instruction included a limited number of group ABA programs (Tr. pp. 269, 289) and dyads for story time (Tr. pp. 341-42).  The student’s program included supervised community outings with his classmates (Tr. pp. 293-94) and weekly social skills training provided by a psychologist (Tr. pp. 278-79).  The student also had contact with regular education students during lunch and recess (Tr. pp. 267-68).  Finally, the impartial hearing officer’s conclusion that a classmate with management difficulties did not have a behavior modification plan is not supported by the record.  The record shows that the child whose inappropriate behaviors necessitated a behavior plan had one in place (see Tr. p. 322).

Petitioners’ son also made educational progress at Kulanu.  The ABA supervisor at Kulanu testified that the student mastered several ABA programs (Tr. p. 338) and his communication increased (Tr. p. 305).  The supervisor further testified that the student mastered his AAC device faster than expected, and that he did “quite nicely” with it (Tr. pp. 304-05, 332-33).  Testimony also demonstrates that the student made progress in independent play skills as he was able to sit and play with a puzzle for 13 consecutive minutes (Tr. pp. 296-97) as well as in daily living skills in which he showed significant improvement in the use of a fork at lunch (Tr. pp. 286, 329).  As a result of the use of his AAC device and its incorporation in his classroom instruction, his aggressive behavior decreased (Tr. pp. 291, 320-21, 331-32).  The balance of his aggressive behaviors were dealt with through the use of verbal prompts (Tr. pp. 321, 331).  The hearing record does not show that the student’s behavior currently impeded his learning or that of others at Kulanu (see, e.g., Tr. pp. 321, 342-43).  I, therefore, do not agree with the finding of the impartial hearing officer that a behavior modification plan was necessary; the use of the AAC device, along with verbal prompts, utilized at Kulanu were having a positive impact on the student’s behavior.  In view of the foregoing, petitioners have prevailed with respect to the second Burlington criterion.

The final criterion for an award of tuition reimbursement is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 [1985]).

In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of the Bd. of Educ., Appeal No. 05-030; Application of the Bd. of Educ., Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049).

With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Mrs.C., 226 F.3d at 69 n.9).  With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][10][C][iii][I], 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e][4]).  Under 20 U.S.C. § 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary (Application of a Child with a Disability, Appeal No. 04-071; 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) (see 20 U.S.C. § 1412[a][10][C][iv][IV]).

The impartial hearing officer concluded that petitioners’ request for tuition reimbursement failed for equitable reasons (IHO Decision, p. 16).  The impartial hearing officer considered relevant that petitioners did not inform the CSE of their concern about a particular incident that “turned off” the student’s mother during her visit to Rosemary Kennedy, that petitioners had applied to Kulanu at the end of July, and that they had retained an attorney, who on petitioners’ behalf, had requested a hearing three days prior to the CSE review.   She also concluded that petitioners “never had any intention” of sending their son to Rosemary Kennedy.2,3

Respondent argues that the request should fail because petitioners advised respondent that they were withdrawing their son from respondent’s district and were enrolling him in Kulanu prior to the August 23, 2004 CSE meeting at which the recommendation for Rosemary Kennedy was made, did not request that the August CSE consider Kulanu as a placement or ask that a representative from that school attend that CSE meeting, and did not serve a revised request for hearing and a written 10 day notice rejecting the CSE’s August recommendation.

Respondent's contention that petitioners had an obligation after the August CSE meeting to serve a revised demand for due process and a written 10 day notice, refers to the extent of petitioners’ compliance with the notice requirement set out in the 1997 IDEA amendments (see 20 U.S.C. §§ 1412[a][10][C][iii], 1412[a][10][C][iv][IV]) and relates to the need for petitioners to place the relevant IEP at issue. In this case, I find that even if these notice requirements applied to situations where the student is not removed from public school, the provision would have no impact in this appeal because the record does not show that respondent informed petitioners of the notice requirements (see Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 03-037; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child Suspected of Having a Disability Appeal No. 01-082).  I note that petitioners placed at issue the IEP that was developed at the August CSE meeting.  The impartial hearing officer concluded that the student’s mother advised the CSE at the meeting that she could not accept Rosemary Kennedy (IHO Decision, p. 15) and that conclusion is supported by the record (see Tr. p. 445).

With respect to equitable considerations more generally, although petitioners decided that they did not wish their son to attend Rosemary Kennedy, they had previously authorized respondent to send a letter and relevant records to the school for its consideration (see Tr. pp. 216-17, 380-81). They also visited the school so that their son could be screened for enrollment and there met with relevant staff (Tr. pp. 400-01).  Petitioners did not preclude the CSE from developing an appropriate IEP or fail to cooperate in the development of an IEP.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it denied petitioners' request for tuition reimbursement for their son’s tuition costs at Kulanu for the 2004-05 school year; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at Kulanu for the 2004-05 school year upon petitioners' submission of proof to respondent of payment for such expenses.

  

Dated:

Albany, New York

 

__________________________

 

July 8, 2005

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. Petitioners initiated this proceeding prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

2A parent’s preference for a private school placement is not dispositive of a claim for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 02-059; Application of the Bd. of Educ., Appeal No. 00-025; Application of a Child with a Disability, Appeal No. 96-53).

3 The impartial hearing officer found petitioner not to be credible pertaining to: 1) her testimony asserting that she suggested the Kulanu school at the CSE meeting, and 2) her testimony that the CSE did not recommend the Rosemary Kennedy placement at the CSE meeting. I do not dispute the impartial hearing officer’s credibility findings, however, I do not find them to be dispositive of the determination of whether petitioners are entitled to an equitable award of tuition reimbursement.