The State Education Department
State Review Officer

No. 05-068

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the East Islip Union Free School District

 

 Appearances:
Berger & Brandow, LLP, attorney for petitioner, Deborah Berger, Esq., of counsel

 Goldstein, Ackerhalt & Pletcher, LLP, attorney for respondent, Jay C. Pletcher, Esq., of counsel

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son’s tuition costs at the Sappo School (Sappo) for the portion of the 2004-05 school year that her son attended Sappo.  Respondent cross-appeals from the impartial hearing officer’s determination that it failed to demonstrate that it had offered an appropriate educational program to the student for that school year and that equitable considerations support petitioner's claim for tuition reimbursement.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

            Before addressing the merits of the case, I must address a procedural issue.  On appeal, petitioner requests that I consider Exhibits A, B, and C attached to her petition that were not submitted at the impartial hearing.  Respondent objects to petitioner’s submission of Exhibits B and C. 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 to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 05-020; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-068).

            Exhibit B is the student's final report card at Sappo for the 2004-05 school year.  While the document was not available at the time of the hearing, it is of little probative value pertaining to the issues on appeal because it has not been subjected to examination at the hearing below (8 NYCRR 200.5[i][3][xii]).  It is not necessary for my review and, therefore, I will not accept it (Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-031).

Exhibit C is an affidavit sworn to July 8, 2005 by the director of Sappo.  While the document was not available at the time of the hearing, it also is of little probative value pertaining to the issues on appeal because it has not been subjected to examination at the hearing below (8 NYCRR 200.5[i][3][xii]).  Exhibit C is not necessary for my review and, therefore, I will not accept it (Application of a Child with a Disability, Appeal No. 04-092).

            At the time of the impartial hearing, petitioner's son was 15 years old (Dist. Ex. 11 at p. 4), attending ninth/tenth grade at Sappo (Parent Ex. 77 at pp. 1, 2) and classified for special education purposes as a student with an other health-impairment (OHI) (Dist. Ex. 3 at p. 1).  He was diagnosed with an Attention Deficit Hyperactivity Disorder (ADHD) (Dist. Ex. 11 at p. 4) and was considered to be of average intelligence (Dist. Ex. 9 at p. 2, Dist. Ex. 10 at pp. 2-3, Dist. Ex. 11 at pp. 4, 5).  Sappo is a private school of 38 students, that has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (8 NYCRR 200.7). The record indicates that Sappo has been granted pending registration status by the New York State Education Department which enables graduating students to receive valid diplomas (Tr. pp. 531, 569; Parent Ex. 73).   The record reflects that approximately 50 percent of the students enrolled at Sappo are classified as students with a disability and 50 percent are nonclassified students (Tr. p. 530).  The student’s eligibility for special education and classification as a student with an OHI (8 NYCRR 200.1[zz][10]) are not in dispute in this appeal.

            The record reflects that in addition to the student’s ADHD, the student has a preschool-age history of delays in fine and gross motor skills, speech-language development, and social-relational skills (Dist. Ex. 9 at p. 1, Dist. Ex. 11 at pp. 4-5).  He was classified as a student with an OHI in 1996 (Dist. Ex. 11 at p. 2) and has been receiving special education services since kindergarten (Dist. Ex. 11 at p. 4).  The student's ADHD was basically left untreated medically because he was unable to tolerate stimulant and nonstimulant medications (Dist. Ex. 11 at p. 4).  Counseling initiatives were short-lived (id.).  The student developed a very passive, avoidant personality style (Dist. Ex. 11 at pp. 4-5).  He demonstrates difficulties with executive functioning skills and tends to display a negative self-image (Dist. Ex. 9 at p. 1, Dist. Ex. 11 at p. 5).  The record indicates that the student has chronic difficulty with sleeping and frequently "wakes up exhausted" (Dist. Ex. 11 at p. 2).  Academic difficulties were reported to be the result of the student's consistent refusal to complete class assignments (Dist. Ex. 9 at p. 1).  As a result of an impartial hearing initiated by the student's previous school district, from the middle of sixth grade until February 2002 the student attended a Board of Cooperative Educational Services (BOCES) program for students with an emotional disturbance and students with a learning disability (Tr. pp. 694-95).

            The student entered respondent's district in February 2002 (Tr. pp. 87, 695; Dist. Ex. 10 at p. 3) during seventh grade and attended respondent's junior high school for seventh and eighth grades (Tr. pp. 71-72).  An academic evaluation was performed on March 12, 2002 (Dist. Ex. 12).  On the Woodcock-Johnson Tests of Achievement III (WJ III), the student achieved standard (and percentile) scores of 107 (68th) for broad reading, 103 (57th) for broad math, and 103 (58th) for broad written language (Dist. Ex. 12 at p. 1).  The evaluator noted that within the broad reading achievement cluster, the student scored in the superior range on the letter-word identification subtest and in the average achievement range on the passage comprehension subtest resulting in an overall score in the average range (Dist. Ex. 12 at p. 2).

            Respondent's school psychologist evaluated the student in March 2002 (Dist. Ex. 10).  The student's overall cognitive ability fell within the average range of intellectual functioning (Dist. Ex. 10 at p. 2).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 108 (70th percentile), a performance IQ score of 107 (68th percentile) and a full scale IQ score of 108 (70th percentile).  No discrepancy between the verbal IQ score and the performance IQ score was found, and it appeared that the student's verbal and nonverbal abilities were equally developed (id.).  The evaluator noted that while the student was able to grasp most academic concepts that were being taught, he sometimes appeared unmotivated and often did not complete homework or classroom assignments (Dist. Ex. 10 at pp. 1, 3). 

            The student was placed in a self-contained alternative program with a class ratio of up to 15 students to 1 teacher that was equivalent to a full day in special education with the ability to integrate with nondisabled students for specials, lunch, and foreign language for seventh grade (Tr. p. 72).  Although the student initially attended a self-contained class for seventh grade, he attended a blended integrated program for eighth grade (id.).  The record reflects that the student failed both seventh and eighth grades (Tr. pp. 700-01), but he was "socially promoted" from seventh to eighth grade (Tr. p. 473) and then "socially promoted" again from eighth to ninth grade (Tr. pp. 705-06; Dist. Ex. 11 at p. 2).

            Although there is no indication as to the date of its creation, a "Functional Assessment and Behavior Intervention Plan Worksheet" for the 2003-04 school year was provided as part of the record (Parent Ex. 21).  The worksheet indicates that the student places his head on his desk and refuses to complete his work (Parent Ex. 21 at p. 1).  Further, the worksheet indicates that the behavior should be ignored; the student should be warned and/or reprimanded; the student receives time-out; and a one-to-one discussion is suggested to be used to increase positive behavior (Parent Ex. 21 at p. 2).

            On March 26, 2003, while the student was in eighth grade, the Committee on Special Education (CSE) met to develop the student's ninth grade IEP for the 2003-04 school year for his transition from respondent's middle school to its high school (Dist. Ex. 8).  The CSE considered the student to need a more intensive program for academics than the general education environment because of poor attending skills and limitations in organizational skills (Dist. Ex. 8 at p. 3).  The student's 2003-04 IEP provided that the student receive special education services for math, global history, living environment and English in a special education environment, with a 15:1 student to staff ratio (Dist. Ex. 8 at p. 4).  The CSE recommended that the student participate in general education classes for manufacturing systems, physical education, lunch and Spanish (Dist. Ex. 8 at pp. 3-4).  In addition, the CSE recommended that the student receive 40 minutes of resource room once a week, 30 minutes of individual counseling once a week and 30 minutes of group counseling once a week (Dist. Ex. 8 at p. 3).  Testing modifications included extended time, not to exceed twice the allotted class time; a flexible test schedule in a small group in a separate location for all subjects; use of a word processor with spell check for written responses in all subjects; and recording answers in any manner (Dist. Ex. 8 at p. 2).  The student failed ninth grade (Tr. p. 710; Parent Ex. 18 at p. 6).

            For the 2004-05 school year, the CSE convened for an annual review on February 12, 2004 (Dist. Ex. 7 at p. 1), convened at the parent's request on July 21, 2004 (Dist. Ex. 6 at p. 1), and convened for a program review on September 29, 2004 (Dist. Ex. 3 at p. 1).  The CSE recommended that the student remain classified as OHI, attend its 10th grade program, with integrated special classes for science and social studies with a 15:1 student to staff ratio, a special class for math with a 15:1 student to staff ratio, and resource room daily (Dist. Ex. 3 at pp. 1-2).  The CSE recommended 40 minutes of individual counseling and 40 minutes of group counseling once a week (Dist. Ex. 3 at p. 2).  Door-to door transportation was recommended for the student, as well as access to a computer for appropriate assignments, and testing accommodations of extended time (2.0), use of a calculator, and directions read to the student.  The student was considered to be in need of a more intensive program due to limitations in his attending skills.  Physical education was recommended to occur in the general education environment, and the student was to participate in State or local assessments and the foreign language requirement (id.).  A coordinated set of transition activities is included on the IEP (Dist. Ex. 3 at p. 4).  Projected post-school outcomes for the student noted on the IEP include competitive employment and on-the-job training while living at home (id.). In the comment section of the student's September 29, 2004 IEP, it is noted that the student's parent was requesting a BOCES placement (Dist. Ex. 3 at p. 1).  Further, the student's IEP indicates that a psychiatric evaluation was needed and that the CSE would reconvene pending the receipt of the psychiatric evaluation (id.).

            A psychiatric evaluation was conducted on September 30, 2004 (Dist. Ex. 11).  The evaluator noted that the student had been referred for evaluation because of his longstanding academic difficulties, including failing all of his courses, "even [g]ym" (Dist. Ex. 11 at p. 1).  Further, the student was noted to be unable to tolerate doing any written assignments, to have had personality clashes with teachers, to have been suspended once for fighting and once for insubordination, and to have failed math and English during summer school (id.).  The evaluator noted that that student has had numerous failed medication trials, that his ADHD has largely been untreated, and described the student as demonstrating very low self-esteem that is seemingly conditioned toward failure (Dist. Ex. 11 at pp. 4-5).  The evaluator indicated that while the student's intelligence is documented to be in the average range and his academic achievement scores are generally commensurate with his potential, his academic performance falls far short of this potential (Dist. Ex. 11 at p. 5).  The evaluator recommended that the student receive 1:1 teacher consultant services to enhance his study and organizational skills (id.).  It was emphasized that efforts should initially focus on the student's lowest level of capability, progressing along a continuum toward more challenging tasks (id.). Additional recommendations included individual counseling with emphasis on setting short-term goals in anticipation of achieving long-term aspirations, educating the student about his deficits in attention and concentration, working on motivational strategies, parental involvement in a parent-support group, and structured free time for the student in a job or apprenticeship to foster responsibility and work-related skills (id.).

            The record also indicates that while a CSE meeting was scheduled for December 7, 2004, the CSE meeting was cancelled at the parent's request (Dist. Ex. 1 at p. 1).  The student was suspended in early December 2004 because of his participation in an altercation in which his nose was broken (Tr. pp. 742-44).  Petitioner's testimony indicated that the student was failing ninth grade classes again at that time and if he were to be suspended he would be unable to make up the schoolwork (Tr. p. 744).  Later in December, petitioner subsequently informed the guidance counselor and the principal that she was removing her son from respondent's school (Tr. p. 745; Parent Exs. 24, 25, 26, 27).

            Petitioner did not accept the CSE's recommended educational program.  By letter dated December 6, 2004 (Parent Ex. 27), and received by fax at least by December 7, 2004 (see Parent Ex. 26), petitioner informed respondent that her son would not be attending its school and that he would be attending a private school (Parent Ex. 27).  By letter dated December 15, 2004, petitioner requested to be reimbursed for her son’s tuition costs at Sappo (Parent Ex. 25).  By letter dated December 20, 2004 (IHO Ex. 1 at p. 8), petitioner requested an impartial hearing for the purpose of receiving an award of tuition reimbursement for the remainder of the 2004-05 school year at Sappo and an award of additional services for respondent's alleged failure to offer the student a free appropriate public education (FAPE) for the 2003-04 and 2004-05 school years (IHO Ex. 1 at p. 7).

            On January 4, 2005 petitioner attended another CSE meeting (Tr. p. 749; Dist. Ex. 1).  The student's January 4, 2005 IEP reflects that the student "will be placed in a partial day [e]ducational [p]rogram at Eastern Suffolk BOCES with a class size ratio of 6:1[+]1" and "in a partial day [s]pecial [c]areer [e]ducation program at Eastern Suffolk BOCES with a class size ratio of 6:1[+]1 for the remainder of the 2004[-05] school year," (Dist. Ex. 1 at p. 1) with 30 minutes of individual counseling twice per week and 30 minutes of group counseling once a week (Dist. Ex. 1 at p. 2).  The student's January 4, 2005 IEP indicates that by the time this CSE meeting occurred, petitioner had unilaterally placed her son in a private school and that she had initiated an impartial hearing in December 2004 (Dist. Ex. 1 at p. 1).

            The impartial hearing began on January 18, 2005, and concluded on March 11, 2005.  The impartial hearing officer rendered a decision on June 15, 2005 finding that respondent had not met its burden of proving that it had offered to provide a FAPE to the student for the 2004-05 school year, but also that petitioner had not met her burden of proving that the services provided to her son by Sappo were appropriate (IHO Decision, p. 19).  Thus, the impartial hearing officer determined that petitioner was not entitled to tuition reimbursement for her unilateral placement of her son at Sappo for the portion of the 2004-05 school year that her son attended Sappo.  Although the impartial hearing officer found that petitioner had not met her burden of proving that the services provided to her son by Sappo were appropriate, he further concluded that if he had found in petitioner's favor on this issue, he would have found that equitable considerations support petitioner's claim for tuition reimbursement (IHO Decision, p. 20).  In addition, the impartial hearing officer found that to the extent that respondent provides transportation to classified students pursuant to its policy, respondent was directed to provide transportation to petitioner's son and reimburse petitioner for transportation costs upon proof of expenditures or in their absence, based on mileage (id.).

            On appeal, petitioner alleges that the impartial hearing officer erred in finding that she did not meet her burden of proof that Sappo was an appropriate placement for her son and requests reimbursement for her son’s tuition costs at Sappo from January through June of the 2004-05 school year.  Petitioner further alleges that the impartial hearing officer did not address whether the student was entitled to additional services and requests that she be reimbursed the cost of a summer school program as additional services.  Respondent 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 the 2004-05 school year and that equitable considerations support petitioner's claim for tuition reimbursement.  In addition, petitioner notes on appeal that the impartial hearing officer ordered respondent to reimburse petitioner for transportation expenses, which were not requested by petitioner nor at issue at the hearing.

            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]; Briere 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 F.3d 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).

        Respondent contends on appeal that it offered the student a FAPE for the 2004-05 school year.  I agree with the impartial hearing officer in his finding that respondent failed to adequately address the student's behavioral needs that impeded the student's learning (IHO Decision, pp. 15-17).

           A functional behavioral assessment (FBA) must be performed as part of an initial evaluation of a child suspected of having a disability if the student's behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][1][v]).  In addition, in all subsequent annual IEP reviews, the IDEA as well as state and federal regulations mandate that the CSE "shall…in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior" (20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; see 8 NYCRR 200.4[d][3][i]).   The official commentary to the federal regulations specifies that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38).

Where behavior impedes a student’s learning, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060).  While the record describes the student as having developed a very passive, avoidant personality style (Dist. Ex. 11 at pp. 4-5), the student's September 29, 2004 IEP does not identify that the primary behavioral issue that prevents the student from achieving educational benefit was his passive-aggressive behavior, that of refusing to do schoolwork (see Dist. Ex. 3).  Testimony indicates that the student's behavior was not disruptive in class (Tr. pp. 129, 169).  Further, a letter written by respondent's high school psychologist to the assistant director of BOCES in November 2004 indicated that the student was not a behavior problem (Dist. Ex. 22, Parent Ex. 30).  However, during testimony at the impartial hearing, the same psychologist characterized the student's problems as behavioral rather than academic (Tr. p. 439).  The record is replete with several high school disciplinary and suspension reports (Parent Exs. 16, 17, 33, 52, 53, 58, 67, 69, 79 at p. 1, see Parent Ex. 20).  The record reflects a history of punishments in the form of suspensions and lost privileges (Parent Exs. 17, 18 at pp. 1-3, Parent Exs. 28, 33).  The record does not reflect positive incentives to motivate the student to complete his work and earn rewards based on incremental accomplishments.  The record contains a Functional Assessment and Behavior Intervention Plan Worksheet that was completed some time during the 2003-04 school year (Parent Ex. 21), and a behavioral intervention plan (BIP) marked “draft” that based on its content, appears to have been developed during summer school in 2004 (Parent Ex. 39 at pp. 4-5).  The interventions in the BIP placed responsibility on the student to increase his efforts to make eye contact with teachers; make an effort to bring his agenda book to class; make an effort to bring the required materials to class; and make an effort to respond when the teacher asked him a question or gave him a directive, without defining positive intervention strategies with consequences, for staff to employ with the student so as to allow the student to take incremental steps towards completing his school work (Parent Ex. 39 at pp. 4-5).  The student's September 29, 2004 IEP indicates that the student's behavior is an area of concern regarding self-control and self-management and that the student needs to relate to peers and adults in the classroom  (Dist Ex. 3 at p. 3).  However, the student's IEP does not identify the student's behavioral issues, such as putting his head down on his desk and refusing to do his schoolwork, as a passive, avoidant behavior that needs to be addressed, and there are no goals and short-term instructional objectives related to this behavior (see Dist. Ex. 3).

            The record demonstrates that the student is of average intelligence and is able to grasp most academic concepts that are taught, however, the student often refuses to complete class assignments and he sometimes appears unmotivated (Dist. Ex. 10 at p. 3).  Based on the results of the student's FBA, respondent's CSE should have included in the student's IEP a set of positive behavioral interventions and strategies to address the student's behaviors (see Application of the Bd. of Educ., Appeal No. 05-031; see also Application of a Child with a Disability, Appeal No. 02-114).  The failure to do so denied the student a FAPE.

            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 petitioner has met the burden of proving that the services provided to her son by Sappo 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).

            Petitioner contends that the impartial hearing officer erred in finding that she did not meet her burden of proving that Sappo was an appropriate placement for her son.  I agree with petitioner.  The record reflects that Sappo utilized a "10/5" program to address the student's passive, avoidant behavior of refusing to do schoolwork.  This program consisted of the student’s working for ten minutes and then being permitted to relax for five minutes in preparation for the student’s working for another ten minutes (Tr. pp. 532-33).  Even more specifically, when attempted interventions did not stop behavioral outbursts, which were characterized as the student using inappropriate language or noises in class (Tr. p. 533), the student's attention needs were addressed by changing his environment from the situation that would trigger the outbursts to a smaller learning environment (Tr. pp. 533-34).  For example, instead of the student attending a social studies class of eight students (Tr. p. 530), he was placed in a one-to-one or two-to-one setting (Tr. pp. 533-34).  The classroom teacher planned the daily lesson to be covered, and gave the lesson to a tutor whom she supervised both before and after the actual lesson occurred (Tr. pp. 534-35).  Assigned projects were presented in front of the entire group for subsequent interaction with classmates (Tr. pp. 535-36).  Regarding completion of homework, the student's teacher stopped referring to the student's work as "homework," and instead called it "class work" (Tr. p. 537).  The student's teacher subsequently initiated a policy for the student that required him to complete any unfinished class work in study hall or at home (id.).  On Fridays, the students worked on Regents preparation or any unfinished work that they might have to do (Tr. p. 539).  If any work was left unfinished there was a detention consequence, with either lunch or after school, depending on what worked best for the student (Tr. p. 537).  Regarding positive behavioral expectations, class rules were posted on the door, with an explanation of a point system with which a student may earn points towards an eventual reward such as a homework or a classroom pass, meaning that the student would be excused from completing homework on a pre-approved date (Tr. pp. 542-43).  In addition, the student was sometimes allowed to work with the younger children at Sappo during art as a reward (Tr. p. 545).  I find that the teachers at Sappo utilized strategies including positive behavioral interventions that were appropriate to address this student's behavior that impeded his learning.

            Further, I find that the record indicated that Sappo offered programming that was appropriate for this student, including one-to-one and small group teaching situations, and demonstrated that its positive behavioral interventions were appropriate to enable the student to meet his special education needs and make educational progress (Tr. pp. 529, 531, 532, 569; Parent Ex. 74).  In view of the foregoing, petitioner has 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).

            Respondent contends on appeal that equitable considerations do not support petitioner's tuition reimbursement claim particularly in light of the district’s acquiescence to the parent's repeated requests for therapeutic BOCES placement at the January 4, 2005 CSE meeting.  I concur with the impartial hearing officer’s conclusion that, given the facts of this case, respondent’s contention is not persuasive.  I further note that the record reflects petitioner's frustration with respondent’s failure to address the student's needs before she unilaterally placed her son in the private school.  Petitioner did not fail to cooperate with the CSE in the development of an appropriate IEP.

Thus, I find that equitable considerations favor petitioner's tuition reimbursement claim.

            In appropriate circumstances, an award of additional services to students who remain eligible to attend school and have been denied appropriate services is proper, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).

           On appeal, petitioner requests reimbursement for her son’s tuition costs for the 2005 summer program at Sappo as additional services.  This is contradicted, however, by the record which indicates that at the impartial hearing, petitioner's attorney specifically stated that petitioner was not requesting reimbursement for the cost of the summer program (Tr. p. 754), although "seeking additional services to compensate for the alleged denial of FAPE" (Tr. p. 755).  Under the circumstances presented here, I decline to award reimbursement for the cost of summer services. I find that it would be more appropriate for respondent's CSE to determine what additional services would be necessary and appropriate to remedy the deprivation of services during the first half of the 2004-05 school year as identified in the impartial hearing officer’s decision (see Bd. of Educ. v. Muñoz, 16 A.D.3d 1142 [4th Dept. 2005]; Application of a Child with a Disability, Appeal No. 03-099).

            I have reviewed the parties’ remaining contentions and I find them to be without merit.

            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 petitioner's request for tuition reimbursement for her son’s tuition costs at Sappo from January through June of the 2004-05 school year and to the extent that it granted reimbursement for transportation expenses; and

 

            IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her son's tuition at Sappo from January through June of the 2004-05 school year upon petitioner's submission of proof to respondent of payment for such expenses; and

 

            IT IS FURTHER ORDERED that, unless the parties otherwise agree, that within 30 days of the date of this decision, the CSE convene and determine what additional services are necessary to remedy its denial of a FAPE during the first half of the 2004-05 school year.

 

Dated:

Albany, New York

 

__________________________

 

September 12, 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.