The State Education Department
State Review Officer

No. 05-075

 

 

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 Nyack Union Free School District

 

 

Appearances:
Children’s Advisory Group Inc., attorney for petitioners, George Zelma, Esq., of counsel

Ingerman Smith, LLP, attorney for respondent, Ralph C. DeMarco, 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 the Family Foundation School for the 2004-05 school year.  The Board of Education cross-appeals from the hearing officer's determination that it had failed to demonstrate that it had offered to provide an appropriate educational program to the student for that year and that equitable considerations would not limit tuition reimbursement.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

            Petitioners’ son has a history of behavioral and learning difficulties.  In second grade he was diagnosed with an Attention Deficit Hyperactivity Disorder (ADHD) (Tr. p. 965).  In sixth grade petitioners enrolled their son in respondent’s middle school (Tr. pp. 966-67).  The student’s organizational and attention problems continued, and the student was referred to respondent’s Committee on Special Education (CSE).  Respondent’s CSE evaluated the student, classified him as a student with an Other Health-Impairment (OHI), and developed an individualized education program (IEP) which provided him with resource room services and placed him in an integrated special education class for English and history (Tr. pp. 210, 970-71, 977-78, 980).  During middle school the student’s behavioral problems began escalating and began including destruction of property and physical altercations with his parents and siblings (Dist. Ex. 6 at p. 2; Tr. pp. 991-92).  After one such incident at home at the end of the student’s eighth grade year (Tr. pp. 992-93, 1274-78), in May 2003 he was admitted to Four Winds Hospital for six days where he was diagnosed with an Oppositional Defiant Disorder (ODD), depressive disorder, ADHD and a possible learning disorder in reading (Parent Ex. H).  The student also began complaining of chronic sleep difficulties (Parent Ex. H at p. 3; see also Dist. Ex. 1, Parent Ex. F; Tr. pp. 35, 990).  As in the past, various medications were prescribed for the student to address his ADHD and sleep problems, but he refused to take them (Tr. pp. 990, 993, 1285-88, 639).  Four Winds recommended family therapy (Parent Ex. H; Tr. p. 1284).  Over the summer the student refused to take his medication and his behavioral problems continued to escalate (Tr. pp. 639, 1288-89). 

            The student turned 14 and in September 2003 entered respondent’s high school for ninth grade (Tr. pp. 998-99, 181).  He again received resource room services and was placed in an integrated special education class for English and history (Tr. p. 1019; Dist. Ex. 4).  His attendance was erratic and petitioners began receiving negative progress reports, phone calls and facsimiles concerning their son’s poor performance in high school (Tr. pp. 44-45, 143-44, 386, 391, 999-1001, 1004, 1007-08, 1010, 1295; see Parent Ex. I).  Petitioners resided close to the high school and petitioners’ son would leave school during the day without permission and return home (Tr. pp. 1011, 1005-07).  His behavior at home also became more problematic; he at times stayed out all night or got into physical altercations with his siblings and parents (Tr. pp. 33-34, 1296-1299).  His mother requested he receive counseling services from the school psychologist (Tr. pp. 25, 1035-36). In late fall 2003 the student began counseling sessions with the school psychologist (Dist. Ex. 1; Tr. pp. 31-32, 37, 1035-36, 146-47, 1017-19), which was eventually added to his IEP (Tr. pp. 258-59; see Dist. Ex. 4).  The student’s teachers informed the psychologist that the student was skipping classes, leaving school, refusing to do his homework, refusing to utilize his testing accommodations, and needed to be repeatedly refocused and redirected to remain on task (Parent Ex. M; Tr. pp. 1448-49, 1452, 1454, 1457, 1466-67, 1472-73).  In an attempt to compel petitioners’ son’s attendance at school, in February 2004 a Person in Need of Supervision (PINS) petition was filed in Family Court (Dist. Ex. 1, Parent Ex. K; Tr. pp. 379, 1015-16).

            On February 25, 2004, respondent’s subcommittee on special education met to review petitioners’ son’s program (Dist. Exs. 2, 9; Tr. pp. 211-213).  The student was described as having above average capabilities, but as choosing not to complete his class work and homework assignments, presenting as oppositional both at home and at school (Dist. Ex. 2 at p. 1; Tr. pp. 217-18).  The student’s parents expressed their desire to have their son placed at the Family Foundation School (Family Foundation) for the 2004-05 school year (Dist. Ex. 2 at p. 2; Tr. pp. 154-56, 215-17, 345-46, 1025-28, 1306-07, 1313). Family Foundation is a year-round private residential boarding school that provides an educational program for students with behavioral and emotional difficulties in grades 7 through 12 and includes Regents courses (Tr. pp. 731-32, 740).  The minimum enrollment period for a student is 18 months (Tr. pp. 731, 1076).  It is not currently on the list of state-approved schools for the provision of special education services (Tr. pp. 325-26).  The subcommittee noted that the student was due for a reevaluation, which would include creation of a behavioral modification plan, and tabled the meeting to complete a series of new evaluations and to determine an appropriate placement (Dist. Ex. 2 at p. 2, Dist. Ex. 10; Tr. p. 215).  In February, March and May 2004 the student was assigned to detention at least six times, mostly for attendance issues, but twice for inappropriate or disruptive language/behavior in class; the student failed to report for detentions (Parent Exs. I, J; Tr. pp. 399, 1013, 136).  His truancy increased despite the PINS petition (Dist. Ex. 24, Parent Ex. I; Tr. pp. 335-36, 1040, 132-33), and he was falling behind in classes (Dist. Ex. 24; Tr. pp. 40, 1030, 1042, 1317-18).  In early March and April 2004, petitioners signed consent forms to allow respondent to reevaluate their son (Dist. Exs. 11, 12).  In early March, the CSE chair sent a referral on petitioner’s son to the Rockland County Board of Cooperative Educational Services at Long Island University (BOCES LIU) (Parent Ex. A at p. 2; Tr. p. 346).  In March and on April 12, 2004 petitioners received phone calls from a representative of BOCES LIU who was seeking to schedule an intake interview with petitioners’ son, but petitioners declined, stating that the CSE chair had made no mention of this possible placement to them (Tr. pp. 1033-35, 1328-33).  Thereafter, the CSE chair decided that the referral was premature and withdrew it, pending discussion at the next CSE meeting (Parent Ex. A; Tr. pp. 223, 226-233, 381-82).  On April 29, 2004 petitioners visited Family Foundation and met with staff for an initial interview (Tr. pp. 777, 1310-13; Parent Ex. C). 

            On June 10, 2004, the subcommittee reconvened for the student’s annual review (Dist. Exs. 4, 14); however, the student’s new psychological report was still not completed, and the meeting was again tabled (Dist. Ex. 4 at pp. 4, 7; Tr. pp. 1043, 241).  The student’s year-end report card showed that his grades in English, history, math and science were all in the 60s; he barely passed English, failing history and physical education (Dist. Ex. 24; Tr. pp. 1055-56).  A subsequent CSE meeting was scheduled for July 16, 2004, but was canceled by the parent due to family medical reasons (Tr. pp. 1057-58, 243-44).  According to petitioners, over the summer the student became increasingly defiant at home and his behavioral problems escalated (Tr. pp. 1059, 1324-25, 1340-41; see Tr. pp. 633-34), causing petitioners concern for his safety and their own (Tr. pp. 1325, 1327, 1345, 1375, 1173, 1043-44, 1375).  The student had allegedly punched holes in the walls, kicked a door in and threatened his brother and mother (Tr. pp. 1059-60, 1340, 1345).  On July 20, 2004 petitioners decided to enroll their son as a residential student at Family Foundation (Tr. pp. 1059-60, 1325-26; see Parent Ex. D).  Two days later, petitioners informed respondent that they had enrolled their son at Family Foundation and requested that the CSE meeting be rescheduled and that residential placement be discussed (Dist. Ex. 16; Tr. p. 246). 

            Psychological testing completed by the school psychologist in June 2004 revealed that the student scored in the average range of intellectual ability on the Wechsler Intelligence Scale for Children–Fourth Edition (WISC-IV) (Dist. Ex. 3).  The school psychologist noted that the student’s ability to reason, his knowledge of vocabulary and his fund of information were all in the high average range and indicated that he has the cognitive tools to be successful academically.  Administration of the Woodcock-Johnson Battery III test showed that a weakness in the ability to work quickly and efficiently (fluency) existed across subsets.  The evaluator deduced from the Thematic Apperception Test and Word Association Test results that the student struggled to understand his emotions and to control his behavior, resulting in anger control issues.  The evaluator concluded that serious emotional difficulties coupled with the student’s ADHD symptoms are of “such an extent, severity and nature to warrant significant intervention if there is to be a change” in the student’s behavior (id. at p. 8).  The evaluator recommended a therapeutic milieu with intensive therapeutic intervention aimed at helping the student gain an understanding of his relationships and feelings along with a greater ability to cope with his emotionality.  This would include classrooms with fewer distractions and greater efforts at refocusing.  The evaluator also recommended continued psychiatric counseling (id.). 

            On August 12, 2004 the CSE met to determine the student’s placement and develop the student’s IEP for the 2004-05 school year (Dist. Ex. 18).  The CSE described petitioners’ son as an intelligent student who was capable of much more than he was demonstrating.  The student was described as an auditory learner whose poor attendance, poor organization and attention difficulties impaired his learning.  His needs included refocusing and redirection to keep on task, improving attendance, and completing homework assignments (Tr. pp. 43, 700, 982-83).  The CSE determined that petitioners’ son needed a structured classroom that could accommodate his ADHD needs and oppositional behavior.  The CSE concluded that petitioners’ son needed an “intensive therapeutic environment” where professionals understand his “emotional turmoil, his internal chaos, his anger and his struggle to control in an attempt to ward off the negative self-loathing he experiences” (id. at p. 3).  Based upon the results of the recent psychological-educational evaluation, report cards, progress report, counseling summary, psychiatric evaluation, and parent reports, the CSE changed petitioners’ son’s classification from OHI to  “emotional disability” and recommended placement at BOCES LIU in the Therapeutic Day Program for his 10th grade 2004-05 school year (id.).  BOCES LIU provides a regular academic curriculum, individualized to meet the student’s level of ability, with courses leading to a Regents diploma (Tr. pp. 255,  444, 446, 485-86, 509).  It consists of six homeroom classrooms (Tr. pp. 428, 431) limited to six to eight students each, with a special education teacher, a teaching assistant and a licensed clinician (either a psychologist or clinical social worker) assigned to each class (Tr. pp. 125, 137-38, 434-35, 438).  Petitioners’ son would receive individual counseling for 30 minutes once per week, and 5:1 small group counseling for 30 minutes once per week (Dist. Ex. 18).  Testing accommodations included answers recorded, extended time, refocusing and redirection, preferential seating, alternate location for tests, and directions clarified (id.).  In addition, the student was to be provided with an additional set of books and modified homework assignments (id.).  The student’s IEP included goals and objectives in study skills, writing, and social/emotional behavior (id.).  At the end of the CSE meeting the CSE chair encouraged the parents to visit BOCES LIU and to bring their son for an intake interview (Tr. pp. 636, 1352-53).  On August 19, 2004 the CSE sent a second referral form on petitioner’s son to BOCES LIU (Dist. Ex. 22; Tr. pp. 308-09, 650). 

            A week or two after the August 12, 2004 CSE meeting, petitioners visited the recommended BOCES LIU placement without their son, toured the school, and discussed the program with the school’s principal (Tr. pp. 1065-73, 1353-56, 328, 498).  On August 30, 2004 petitioners sent a letter to the CSE in which they outlined their reasons for rejecting the CSE's recommended educational program (Dist. Ex. 21).  By letter dated September 24, 2004 petitioners, through their attorney, informed respondent’s CSE that the student would be enrolled in Family Foundation for the 2004-05 school year and requested an impartial hearing seeking tuition reimbursement (Dist. Ex. 26).  A follow-up CSE meeting was held on October 7, 2004 in an attempt to resolve the parties’ dispute (Tr. pp. 305-06, 352, 651).  Petitioners were asked if they had yet taken their son to the intake interview at BOCES LIU and they replied they had not (Tr. p. 655).  Petitioners continued to reject the recommended program and informed the CSE that their son would remain at Family Foundation (Tr. pp. 655, 658-59).  The CSE continued to recommend BOCES LIU as an appropriate program; the resultant October 7, 2004 IEP was identical to the August 12, 2004 IEP (compare Dist. Ex. 18 and Dist. Ex. 23; Tr. pp. 312-13, 658-60).

The hearing commenced on February 2, 2005 and was held on six days concluding on May 13, 2005.  In a decision rendered June 20, 2005, the impartial hearing officer found that the recommended BOCES LIU program was appropriate for the student; but, because he found that various procedural inadequacies seriously infringed on the parents’ ability to meaningfully participate in the process, he concluded that the IEP was “invalid.” (IHO Decision, p. 32); however, the impartial hearing officer denied petitioners’ request for tuition reimbursement, finding that Family Foundation was too restrictive and did not meet the student’s needs.  The impartial hearing officer further found that equitable considerations would not have limited petitioners’ claim for tuition reimbursement.1

            On appeal, petitioners request that the findings of the impartial hearing officer with respect to the appropriateness of the program at the Family Foundation School be annulled, that the State Review Officer find that such school is appropriate in meeting petitioners’ son’s needs, and that tuition costs be awarded in full or in part to petitioners.  Respondent cross-appeals and requests that those portions of the impartial hearing officer’s decision which found that respondent procedurally failed to offer petitioners’ son an appropriate program for the 2004-05 school year and which found that equitable considerations would not have limited tuition reimbursement be annulled.  

A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that all students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).2,3 A board of education may be required to reimburse parents for private 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 (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; 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]).  To meet its burden of showing that it had offered to a 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]). 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]).

In the instant case, the intake clinician at BOCES LIU (Tr. pp. 500-02), the school psychologist who was counseling petitioners’ son (Tr. pp. 83-85; Dist. Ex. 3 at p. 8), the psychiatrist who examined petitioners’ son (Dist. Ex. 6), the CSE (Dist. Exs. 18, 23), and petitioners themselves (Dist. Ex. 21) all agreed that the student required a therapeutic environment which included intensive psychological counseling in order for him to receive educational benefits.  His main areas of need in school were in improving attendance, completing his homework, dealing with emotional issues, and staying on task (see Dist. Exs. 6, 18, 23; Tr. pp. 43, 700, 981-83, 991).  The program recommended by respondent’s CSE placed petitioners’ son in a day treatment program where he would be educated in a clinically therapeutic environment.  Small class sizes of six to eight students staffed by a special education teacher and a teacher’s aide would provide petitioners’ son with individual attention and constant refocusing to keep him on task (Tr. pp. 434, 443).  In addition, each class is assigned a professional clinician, either a state licensed psychologist or social worker, who is responsible for meeting the emotional and behavioral needs of each student in the class during the day (Tr. pp. 434-35, 438, 444).  The student is able to talk directly with the therapist either privately or in the classroom on a daily basis as the need arises (Tr. pp. 436, 438-39,  511-12, 509).  Group therapy, lead by a professional licensed mental health professional, is scheduled for fourth period (Tr. pp. 437, 447-48).  A licensed psychiatrist meets with the staff every week and reviews students’ progress (Tr. pp. 439, 533).  The school also has two people trained in crisis support on staff (Tr. p. 435).  An additional period is offered during the day for students to work on their homework with a teacher or therapist (Tr. p. 475).  The program also addresses the student’s attendance issues.  Unlike respondent’s high school, BOCES LIU is not located within walking distance of petitioners’ home, so the student would not be able to walk home during the school day (Tr. pp. 701, 430).  BOCES LIU consists in whole of 10 classrooms on the same floor, students are not permitted to leave the building (Tr. pp. 430-31, 261, 180), hall monitors are present to monitor the student’s passage between classrooms at all times (Tr. pp. 429-30, 477), and if the student fails to come to school, a therapist or other staff member visits the student’s home in the morning to insure the student arrives at school (Tr. pp. 179-80, 256, 640, 454, 457-59).  In addition, the BOCES LIU program offers Regents level courses appropriate to meet the student’s academic level (Tr. pp. 485-86, 509).  In short, the recommended program would appear to meet the student’s needs in the LRE. 

Nevertheless, it is well settled that a CSE cannot recommend a placement in a non-district facility prior to a decision by the facility to accept the student, and that any such recommendation by a CSE is by nature premature (Application of a Child with a Disability, Appeal No. 04-044; Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078; Application of a Child with a Disability, Appeal No. 00-020; Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 96-73; Application of a Child with a Disability, Appeal No. 93-38; Application of a Child with a Disability, Appeal No. 93-15).  While admitting that petitioners’ son’s needs met the general profile of that of almost any BOCES LIU student (Tr. pp. 500, 506-07), the BOCES representative also stated without equivocation that the student’s presence at an intake interview was essential, and that he had not been admitted and could not be admitted into the program without an intake evaluation to determine whether the program was appropriate or whether a different level of care was needed (Tr. pp. 492, 494, 507, see Tr. pp. 490-93). The BOCES LIU intake evaluation assessed, in part, a student’s risk of self-harm and current level of drug usage (Tr. p. 491), the need for program supports (Tr. p. 493), and the extent of parental support for the placement (Tr. p. 490). Without the acceptance of the student at the BOCES LIU program, I am constrained to conclude that the CSE’s recommendation that the student be placed at the BOCES LIU program was premature and that respondent has not met its burden of proving it offered to provide an appropriate program (Application of a Child with a Disability, Appeal No. 04-044; Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078; Application of a Child with a Disability, Appeal No. 98-32).4

Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by Family Foundation during that school year were appropriate (Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 05-010; Application of the Bd. of Educ., Appeal No. 03-062).  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 educational services obtained by the parent were appropriate to the child's special education needs (see Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Muller v. Committee on Spec. Educ., 145 F.3d 95, 104-105 [2d Cir. 1998]; Application of the Bd. of Educ., Appeal No. 05-015; 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 the Bd. of Educ., Appeal No. 05-010; Application of a Child with a Disability, Appeal No. 99-78).

In the instant case, I concur with the impartial hearing officer’s finding for the reasons stated in his decision that Family Foundation’s program did not meet the student’s needs.  Notably, the school psychologist treating petitioners’ son, two CSE chairs holding degrees as school psychologists, the student’s special education teacher, and the student’s parents all agreed that the student required an intensive therapeutic environment where he could receive professional therapy during the school day to enable him to cope with his behavioral and psychological problems in order to receive educational benefits (Tr. pp. 83-86, 255, 265-66, 635, 644-45, 726; Dist. Ex. 21).5  The school psychologist who worked most closely with the student recommended continued psychiatric monitoring (Tr. p. 85) and indicated his concerns that the student might be at risk for more serious psychological problems, including bipolar disorder, if he did not continue to receive professional psychological help in his educational setting (Tr. pp. 81-82, 85, 147-48, 164).  The student’s mother recalled discussions with the school psychologist where he indicated he was concerned about the student’s possible suicidal ideations (Tr. pp. 1375, 1043-44). Petitioners’ own expert agreed that the student “may have an emerging psychotic process that hasn’t declared itself yet” (Tr. p. 1138; see Tr. p. 1193).

While the Family Foundation representative described the school as a “therapeutic environment” (Tr. p. 788), when asked to clarify she went on to state that “we don’t have a clinical---treatment component” and stressed that it is “first and foremost” a boarding school (Tr. p. 788).  She stated there was no intensive psychiatric treatment provided at the school (Tr. p. 789). She testified that at Family Foundation they believed that “For the most part, individual counseling doesn’t work” (Tr. pp. 829-30). There are no psychologists or psychiatrists on staff; an outside consulting psychiatrist is used for crisis intervention and medication, an outside psychologist visits once a week on an “as needed” basis, and a consulting psychologist visits once a month for the purpose of doing intake interviews of new students (Tr. pp. 740-41, 808-09).  If a student has an emotional, behavioral or anger outburst at school, he is put in a room by himself until he calms down, or it is handled by staff or peers (Tr. pp. 835-36, 841).  Instead of clinicians, a staff mentor is available (Tr. p. 793), and instead of psychological counseling, petitioners’ son was provided with a peer mentor (Tr. p. 795), and peer group therapy for 80 minutes once per week, led by a lay “facilitator” (Tr. pp. 740, 742, 789, 792).  There are no qualifications for the lay facilitators or staff mentors (Tr. pp. 789, 793).  The school employs two social workers to cover the needs of its 200 students and to offer direction to lay peer group facilitators (Tr. pp. 741-42, 808, 810, 811). 

In the instant case, for a student such as this, where the majority of professionals agreed that he needed a professional clinical therapeutic environment in order to receive educational benefits, Family Foundation was not appropriate at the time of selection because it did not offer a program appropriate to meet this student’s needs and because it did not offer the student the necessary professional therapy and clinical counseling he needed. The State Review Officer has found in the past that Family Foundation’s program is not appropriate in cases where a student needs intensive clinical therapy provided by qualified mental health professionals (see Application of the Bd. of Educ., Appeal No. 04-070; Application of a Child with a Disability, Appeal No. 03-106). In addition, evidence in the record pertaining to the student’s performance at Family Foundation is consistent with the conclusion that the program was not appropriate at the time of placement.  The record reveals that at the time of the hearing, in the eight months the student had been at Family Foundation he had received no individual psychological counseling (Tr. p. 830), had never seen the school’s consulting psychiatrist (Tr. p. 797), and had only seen the consulting psychologist twice, once as part of his intake process and once as a follow-up (Tr. pp. 758, 768, 799, 807-08; Dist. Ex. F).   Also, the representative from Family Foundation stated that the student continued to engage in avoidance, anger and withdrawal behaviors at school, and while there was some emotional progress, it appeared minimal (Tr. pp. 746-47).  Petitioners’ own expert witness stated he did not think the student’s risk of emerging psychotic problems was being addressed by Family Foundation (Tr. p. 1220). 

Moreover, it is questionable whether or not the student’s academic needs were being met; i.e., whether he was getting any additional help in the classroom to address his attention problems, his homework issues, or whether or not he was receiving any test or program accommodations.  While it is true that teachers in the private school need not be state certified in special education (see Carter, 510 U.S. 7), the educational services provided by the school must be appropriate to meet the student’s needs (Mrs. C., 226 F.3d at 66). The Family Foundation representative stated that they have only one part-time special education teacher on staff (Tr. p. 813), and that she was not assigned to any of petitioners’ son’s classes (Tr. p. 816).  She added that none of petitioners’ son’s teachers at Family Foundation possessed any background in special education (Tr. p. 816). The Family Foundation representative testified that she did not think petitioners’ son received any testing or program accommodations such as extended time for tests or modified homework assignments, was unsure on whether he received preferential seating, but did believe that he received some refocusing and redirection (Tr. pp. 830-31, 833-34).  None of the student’s teachers from Family Foundation testified.  Based on this record it is unclear whether or not the student’s special academic needs were being met. 

In addition to appropriate counseling and academic needs not being adequately addressed, I agree with the impartial hearing officer's determination that petitioners did not show that a residential setting was necessary to provide their child with an appropriate education. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d at 105; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]).  The test for a parental placement is that it is appropriate, not that it is perfect  (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).  A residential placement is one of the most restrictive educational placements available for a student (Application of a Child with a Disability, Appeal No. 03-066; Application of the Bd. of Educ., Appeal No. 01-091), and it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (Walczak, 142 F.3d at 122; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 03-066; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-051;  Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 98-2; Application of a Child with a Disability, Appeal No. 95-33). A disabled child is not entitled to residential placement merely because it would more nearly enable the child to reach his or her full potential (Walczak, 142 F.3d at 132 [reimbursement limited to non-residential portion of program]; Application of the Bd. of Educ., Appeal No. 03-062). 

There has been no showing in the instant case that this student required a residential placement in order to benefit from his educational program.  Unlike the cases cited by petitioners (see New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F.Supp.2d 394 [N.D.N.Y. 2004]; Application of the Bd. of Educ., Appeal No. 01-058; Application of a Child Suspected of Having a Disability, Appeal No. 99-73; see also Mrs. B., 103 F.3d at 1117), in the instant case none of the four witnesses holding degrees in psychology, when questioned, opined that the student needed to be placed in a residential facility (Tr. pp. 163, 183; 314; 506, 508, 529; 658).  In fact, the student’s mother testified that she could not recall any of the student’s prior treating psychiatrists or doctors recommending that the student needed a residential placement (Tr. pp. 1291-94).  In addition, all witnesses agreed that most of the student’s behavioral incidents occurred at home rather than at school (Tr. pp. 46, 217-18, 251, 315, 368, 395, 634, 637, 700, 785-87, 991-93, 1042, 1059, 1274-79, 1288-89, 1296-1300, 1318, 1325, 1340; Parent Ex. H).  Behavioral problems at home do not afford a basis for concluding that the student requires a residential placement, absent evidence that the student was otherwise regressing educationally in a day program as a result of those problems (see Walczak, 142 F.3d at 131-132 [residential placement not appropriate where student made meaningful social and academic progress in a day program]; compare Mrs. B., 103 F.3d at 1121 [residential placement necessary where behavioral problems at home resulted in the student failing all of her classes, and not advancing more than one grade level in any subject in three years while in a day special education program with a therapeutic component]; Application of a Child with a Disability, Appeal No. 04-021; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-093; Application of a Child with a Disability, Appeal No. 01-084).  In the instant case, petitioners did not allow the district to place their son in the recommended day treatment program, hence there is no evidence of him educationally regressing in a day program due to problems at home such as would necessitate a residential placement.  Indeed, such regression would seem unlikely in a day program such as that recommended by the CSE where, unlike his prior year in respondent’s high school, his attendance issues would be highly controlled and he would receive special education instruction in small classes with intensive clinical therapy during the day.  As to his performance in respondent’s high school, his grades were largely 60s and 70s, and he failed one subject in ninth grade (Dist. Ex. 24).  Based on this record, he was not regressing to the point of falling behind by grade levels or failing all of his subjects due to his behavioral problems at home such as would indicate the need for a residential placement rather than a nonresidential therapeutic environment in order for him to receive educational benefit (compare Mrs. B., 103 F.3d 1114).6  

For these reasons and others stated in the impartial hearing officer’s decision, I concur with the impartial hearing officer’s determination that petitioners have not met their burden of demonstrating that Family Foundation’s program offered an appropriate program to meet their son’s needs (see Application of a Child with a Disability, Appeal No. 03-106).

Since petitioners have not met their burden of proof with respect to the second criterion for an award of tuition reimbursement, normally it would not be necessary to reach the issue of whether equitable considerations support such an award (see Application of a Child with a Disability, Appeal No. 03-066; Application of a Child with a Disability, Appeal No. 94-29); however, since the impartial hearing officer made a determination on this issue from which respondent cross-appeals, and due in part to the particular circumstances leading to the district’s failure to recommend a final placement in this case, some discussion of equitable considerations is warranted.  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., 226 F.3d at 68; 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 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 [1985]). 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 n. 9).

 In the instant case, the impartial hearing officer erred in finding that there would have been no basis in equity to deny the parents tuition reimbursement if Family Foundation had been found to be an appropriate placement (IHO Decision at p. 38).  Contrary to the impartial hearing officer’s conclusion, a parents’ act in failing to make their child available for an intake evaluation interview at the district’s recommended placement is relevant in determining whether equitable considerations support their claim for reimbursement (Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078).  Where a parent deliberately deprives the district of its ability to make an appropriate program recommendation and obstructs the district’s ability to finalize the student’s IEP, equitable considerations will not support an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 03-025; see also Application of a Child with A Disability, Appeal No.04-029), and an impartial hearing officer, state review officer, or a court may exercise its broad discretion under section 1412 of the IDEA to limit or reduce an award of tuition reimbursement, based on the fact that the district notified the parent of its intent to do an evaluation on the student and the parent has failed to make the student available for an appropriate and reasonable evaluation (see 20 U.S.C. § 1412[a][10][C][iii][II]; see also 34 C.F.R. § 300.403[d][2]; Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462 [7th Cir. 2000]; P.S. v. Brookfield Bd. of Educ., 353 F.Supp.2d 306 [D.Conn. 2005]), or upon a finding of unreasonableness with respect to the actions taken by the parent (20 U.S.C. § 1412[a][10][C][iii][III]; 34 C.F.R. § 300.403[d][3]).  Equitable principles dictate that parents cannot deliberately withhold their child from an intake interview in an effort to impede a district’s ability to provide a FAPE and secure a future award of tuition reimbursement at a private school of their choosing. 

In the instant case, petitioners’ actions of declining to schedule an intake interview with their son at BOCES LIU after repeated requests by the CSE and by BOCES LIU in March, April, and August 2004, is strong evidence that equities would not favor an award of tuition reimbursement.  The record reveals that as early as February 2004, petitioners came to the CSE subcommittee meeting and requested that the CSE place their son at Family Foundation (Dist. Ex. 2 at p. 2; Tr. pp. 154-56, 215-17, 345-46, 1025-28, 1306-07, 1313).  The student’s mother was unable to give the impartial hearing officer a clear answer on why she did not schedule an intake interview with her son when a representative from BOCES LIU first contacted her and requested it in March and April 2004 (Tr. pp. 1329-1337).  Her explanation that she thought it was a “crank call” is unconvincing (Tr. p. 1329), given the fact that the CSE chair informed her at the CSE meeting in February 2004 that they would be reevaluating the student and looking at  appropriate placement options (Dist. Ex. 2 at p. 2; Tr. pp. 215, 217; see Tr. pp. 1026-28, 1313), her husband worked at a BOCES (Tr. pp. 1335-36), and she herself worked as a special education teacher in another district and had sat on similar CSEs that made referrals for students (Tr. pp. 963, 1332).  It is also significant that just two weeks after the parents declined to schedule a BOCES LIU intake interview in April, the parents visited Family Foundation, their original school of choice, and started the process for their son to attend school there (Parent Ex. C at p. 4; Tr. pp. 777-78, 1039, 1310).  Nor did the student’s mother have any reasonable explanation as to why she did not bring her son with her for an intake interview at BOCES LIU when she finally did visit the school in August 2004, after the CSE meeting where the CSE recommended the school and the CSE chair specifically requested she bring her son to BOCES LIU for an intake interview (Tr. pp. 636, 1352-53).  Notably, at this time the student had already been unilaterally placed by his parents in the school of the parents’ choosing.  The district bears some responsibility for withdrawing their referral in April and waiting until August to revisit the referral, rather than contacting the parents and explaining and pursuing the referral in April.  However, given the actions of the parents in still not making their son available for an intake interview in August 2004 at BOCES LIU even after they were clearly aware that it was being recommended by the CSE, I find that in this instance, in the event that the program selected by the parents had been found to be appropriate, equities would not have supported an award of tuition reimbursement.  Parents have an obligation to reasonably cooperate with the district in finding an appropriate placement for their children and may not thwart the district’s attempts to locate such a placement simply by refusing to make their son or daughter available for an intake interview (Application of a Child with a Disability, Appeal No. 03-025).

 

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer’s decision is annulled to the extent that it determined that equitable considerations would not limit petitioners’ ability to recover some or all of the costs of their son’s tuition at the Family Foundation School for the 2003-04 school year, and

IT IS FURTHER ORDERED that the impartial hearing officer’s decision is annulled to the extent that it ordered the CSE to devise a new IEP for the student for the then-expired 2004-05 school year.  The CSE will instead reconvene, if it has not already done so, to devise a new IEP for the student for the 2005-06 school year.

  

Dated:

Albany, New York

 

__________________________

 

September 19, 2005

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  The impartial hearing officer also ordered the CSE to reconvene to “create a procedurally correct and appropriate IEP” (IHO Decision, p. 38).  Since the decision was rendered after the conclusion of the school year in question, it is unclear what benefit this would have yielded.

2  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.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

3  The term "free appropriate public education" means special education and related services that

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B)  meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8).

4  In light of this determination, I need not address petitioners’ other procedural claims challenging the appropriateness of the district’s recommended program.

5  The only witnesses who arguably questioned this professional determination by the psychologists was the social worker representative from Family Foundation (Tr. pp. 829-30), and petitioners’ hired social worker, who appeared to equivocate on this issue (Tr. pp. 1184, 1218; see Tr. pp. 1192-93, 1195-96, 1201, 1220, 1221).  The testimony of these witnesses is not persuasive.  The Family Foundation representative revealed a bias in her statement that, for the most part, their school did not believe that individual professional psychological counseling “worked” (Tr. p. 829), and I agree with and accept the impartial hearing officer’s credibility finding which rejected petitioners’ hired social worker’s testimony as “inconsistent” and “less than credible” (IHO Decision, pp. 33-34).

6  Family Foundation’s program is also a 12-month program.  Twelve-month programming is warranted for educational purposes when a student exhibits severe management needs, is multiply disabled, requires home/hospital instruction, exhibits needs requiring placement in a seven-day residential facility, or when necessary to prevent substantial regression (8 NYCRR 200.1[j]).  Substantial regression is the “inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year” (8 NYCRR 200.1[aaa]).  There is nothing in the record to indicate that petitioners’ son showed evidence of regression at the beginning of each school year, hence, a 12-month program is not warranted (see Application of a Child with a Disability, Appeal No. 04-021).