The State Education Department
State Review Officer

 

No. 05-087

 

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

Appearances:
Law Offices of Neal H. Rosenberg, attorney for petitioner, Melvyn Hoffman, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chou, Esq., of counsel

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her daughter's tuition costs at the Stephen Gaynor School (Gaynor) for the 2004-05 school year.  The appeal must be sustained in part.

            Petitioner's daughter was 13 years old and had completed the seventh grade 2004-05 school year at Gaynor at the time of the impartial hearing in July 2005 (see Dist. Ex. 1 at p. 1; Tr. p. 66).  Gaynor has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7).  The student has attended Gaynor for the past five years (Tr. p. 67).  Her eligibility for special education programs and services and classification as a student with a learning disability (see 8 NYCRR 200.1[zz][6]) are not in dispute in this appeal.

            The record indicates that petitioner's daughter has receptive language deficits which affect her reading and listening comprehension, as well as her ability to solve word problems and to use abstract thinking in mathematics  (see Tr. pp. 53, 56; Dist. Ex. 3 at pp. 1, 2, 6, 9, 10, 11).  At the time her 2004-05 individualized education program (IEP) was prepared, her teacher at Gaynor indicated in the student's Comprehensive Progress Report that the student was performing at a fourth grade level in reading decoding and comprehension, listening comprehension and mathematics (Dist. Ex. 3 at pp. 1, 2, 6, 9; Tr. pp. 11, 13).  

            Respondent's Committee on Special Education (CSE) met on June 3, 2004, for the student’s annual review (Dist. Ex. 1 at p. 1; Tr. p. 11).  Its membership included an individual who was certified in special education but who was not actively teaching (see Tr. pp. 11, 30-31, 33-34).  It did not include a regular education teacher (Tr. pp. 11-12).  The CSE recommended continuation of the student's classification as a student with a learning disability (see Dist. Ex. 1 at p. 1; Tr. p. 12).  It also recommended that petitioner's daughter be placed in a special class in a community school with a student to teacher ratio of 12:1 (Tr. pp. 14, 31; Dist. Ex. 1 at pp. 1, 11, 12).  The CSE also recommended that the student receive speech-language therapy for 30 minutes, twice a week in a group of three and group counseling once a week for 30 minutes (Dist. Ex. 1 at pp. 1, 4, 11; Tr. pp. 12, 31-32).  Testimony does not reflect that the CSE recommended a particular class or specific community school at its meeting and the IEP provided to the parent at the meeting made no reference to a specific placement (see Tr. pp. 12, 14, 31; Dist. Ex. 1 at p. 1; see also Dist. Ex. 5).

By notice dated August 13, 2004, respondent advised petitioner that her daughter would be assigned to a 12:1 special class program at its School 1044 (Dist. Ex. 6).  The letter was postmarked August 17, 2004, and petitioner testified that she received it some time in late August (Parent Ex. D; Tr. p. 64).  Petitioner wrote to respondent stating that the date of respondent's final recommendation precluded her from observing the proposed program and asking to be provided with a profile of the proposed class and the rationale for choosing the class and school (Tr. p. 64; Parent Ex. E).  The record does not reflect that respondent replied to petitioner.

By letter dated September 13, 2004, the attorney for petitioner requested an impartial hearing for the 2004-05 school year, asserting that the IEP was "inappropriate" and "invalid" and advising respondent that the student was attending Gaynor (see Parent Ex. C).  Attempts at settlement were not successful (see Parent Exs. B, A) and an impartial hearing was held on July 8, 2005. 

The impartial hearing officer rendered a decision dated August 5, 2005.  She concluded that the program offered to the student was appropriate (IHO Decision, p. 6). She concluded that there was no showing that any procedural error resulted in the loss of educational opportunity, seriously infringed on petitioner's opportunity to participate in the IEP formulation process or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits (id.).  The impartial hearing officer further concluded that the evaluations in the record properly identified the student's needs, that the needs were properly described in the IEP, and that the CSE properly established annual goals and short-term instructional objectives in each area of need (id.).  Having concluded that the student had been offered a free appropriate public education (FAPE) for the 2004-05 school year, the impartial hearing officer did not make a determination as to whether the student's unilateral placement was appropriate or whether equitable considerations supported petitioner's claim (IHO Decision, p. 7). However, she noted that the student's unilateral placement at Gaynor was more restrictive than recommended by the CSE and that Gaynor did not provide speech-language therapy and counseling in the manner recommended by the CSE (id.).  The impartial hearing officer denied petitioner's request for tuition reimbursement (IHO Decision, pp. 2, 7). 

On appeal, petitioner asserts that respondent's CSE was not properly constituted, that the IEP goals and objectives were not developed at the CSE meeting, that the IEP goals and objectives were inadequate, that the student was not suitably grouped for instructional purposes, and that respondent's final notice of recommendation was not timely. 

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, ___S. Ct.___2005 WL 3028015 [U.S. Nov. 14, 2005]).  A FAPE includes 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]).2  A board of education may be required to reimburse parents for their expenditures 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]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192  [2d Cir. Sept. 28, 2005]).  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 (Carter, 510 U.S. at 14).

A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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]).  While school districts are required to comply with all IDEA procedures, 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]).  A denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see, Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; 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 compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  To do this, the record must be examined for "any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan" (Grim, 346 F.3d at 383 [citation and internal quotation omitted]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130).

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, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

Petitioner asserts that the CSE that developed the June 2004 IEP did not have the requisite members and was therefore improperly constituted.  The IDEA requires that an IEP be developed by a group of individuals including at least one special education teacher, or where appropriate, at least one special education provider of such child (20 U.S.C. § 1414[d][1][B][iii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1][iii]).    The U.S. Department of Education (DOE) has further advised that the special education teacher or provider, if applicable, member of the IEP team should be the person who is or will be responsible for implementing the IEP (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 26). 

The special education teacher who attended the CSE meeting was not a special education teacher of the student.  Although the special education teacher was certified to teach special education, he was not the student's current special education teacher, a special education teacher who would or might have implemented the student's IEP, or an appropriate related services provider who was currently providing services or would or might have implemented the student's IEP (see Application of a Child with a Disability, Appeal No. 01-072; Application of a Child with a Disability, Appeal No. 00-044; Application of the Bd. of Educ., Appeal No. 00-031).3  This CSE member was not an active teacher but was assigned to the CSE for the purpose of being its special education teacher member (Tr. pp. 11, 17, 30-31, 34).  Respondent argues that the person was a proper special education teacher member of the CSE because of his testimony that "at any time" he could have been asked to return to a 12:1 classroom (see Tr. p. 34).  Such testimony is too speculative to conclude that this CSE member would or might have implemented the student's IEP and therefore be properly considered, as required, a "special education teacher of the student."  I note that this CSE member was not ultimately assigned to teach a 12:1 class that petitioner's daughter would or might have been enrolled in during the 2004-05 school year (see Tr.  pp. 32, 34). 

I therefore find that the June 2004 CSE was improperly composed (cf. Application of a Child with a Disability, Appeal No. 02-100 [determining that participation of regular education teacher not actively teaching was not consistent with  requirement that the required regular education teacher member of the CSE be a regular education teacher "of the student"]).  The contribution of an appropriate special education teacher was essential at this CSE meeting because the CSE was recommended self-contained special education classes for the student.  The lack of an appropriate special education teacher at the CSE meeting deprived the student and her parent of the perspective and input of a special education teacher familiar with the self-contained special education class and program recommended as appropriate for the student's needs.  The IEP which resulted from the improperly composed June 2004 CSE meeting was also inadequate because it recommended a special education program for the student without sufficient evaluative information.  

Under the circumstances, the absence of an appropriate special education teacher from the June 3, 2004, CSE meeting compromised the development of an appropriate IEP for petitioner's daughter for the 2004-05 school year (Application of the Bd. of Educ., Appeal No. 04-006; see also Application of the Bd. of Educ., Appeal No. 05-074).    Further, it significantly impeded petitioner’s participation in the creation and formulation of the IEP because respondent had no appropriate special education teacher of the student present at the CSE meeting with whom petitioner could review and discuss an appropriate special education program for the student for that school year (cf. Application of the Bd. of Educ., Appeal No. 05-074 [finding failure of CSE to include appropriate regular education teacher member seriously infringed on the parent's participation in the creation or formulation of student's IEP]).  For these reasons, respondent's failure to have a properly composed CSE deprived petitioner's daughter of a FAPE for the 2004-05 school year. 

Even if the CSE had been properly constituted, the record demonstrates that the student's 2004-05 IEP was substantively inadequate.  A CSE must have adequate and timely evaluative data to prepare an appropriate IEP for a child (Application of a Child with a Disability, Appeal No. 05-025; Application of the Bd. of Educ., Appeal No. 99-94; Application of a Child with a Disability, Appeal No. 99-05; see Application of a Child with a Handicapping Condition, Appeal No. 91-25).  The IEP developed at an annual review is to be based upon "review of the student's IEP and other current information pertaining to the student's performance" and that annual review is to consider, among other things, the initial or most recent evaluation of the student (8 NYCRR 200.4[f][1]).  The record does not show that the CSE considered the student’s most recent educational evaluation, psychological evaluation, or social history.  A social worker who was on the CSE team indicated in testimony that the CSE reviewed the student's progress report from Gaynor and an observation of the student at that school (see Tr. pp. 12-13).  The social worker could not remember what else was considered (id.).  The record does not show that the CSE considered IQ test scores or any other information regarding the student's cognitive ability.  Additionally, notwithstanding that the CSE recommended speech-language therapy (Tr. pp. 12, 31-32; Dist. Ex. 1 at pp. 1, 11, 13), there is no speech-language evaluation in the record and there is no evidence in the record that any such evaluation was considered in determining the amount or type of speech-language therapy recommended.  The IEP itself does not indicate what evaluative data was considered (Dist. Ex. 1).

I also concur with petitioner's assertion that respondent's development of the IEP's goals and objectives deprived petitioner of the opportunity to meaningfully participate in the formulation of her daughter's IEP.  Respondent had an obligation to involve petitioner meaningfully in the IEP development process (Application of the Bd. of Educ., Appeal No. 02-036; Application of a Child with a Disability, Appeal No. 00-074; Application of a Child with a Disability, Appeal No. 98-26) and may not seriously infringe on the parent's participation in the creation or formulation of the IEP (see, e.g., Pascarella, 153 F. Supp. 2d at 153; Briere, 948 F. Supp. at 1255; Application of a Child with a Disability, Appeal No. 02-015; Application of a Child with a Disability, Appeal No. 96-31).  The DOE has indicated that while agency staff "may come to an IEP meeting prepared with evaluation findings and proposed recommendations regarding IEP content", "the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parent"  (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 32; see also Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, Appeal No.  00-068; Application of a Child with a Disability, Appeal No. 93-040; Application of a Child with a Handicapping Condition, Appeal No. 90-013).  Moreover, the DOE has indicated that "if agency personnel bring drafts of some or all of the IEP content to the IEP meeting (public agencies must ensure that) there is a full discussion with the child's parents, before the IEP is finalized, regarding drafted content and the child's needs and services to be provided to meet those needs" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 32). 

The presentation of draft goals at a CSE meeting does not violate statute or regulations, provided that the parents are not deprived of the opportunity to discuss the goals at the meeting (see Application of a Child with a Disability, Appeal No. 02-029; Application of a Child with a Disability, Appeal No. 01-073; Application of a Child with a Disability, Appeal No. 01-028; Application of a Child with a Handicapping Condition, Appeal No. 90-013).   In this case, the goals and objectives were prepared in advance of the CSE meeting (see Tr. pp. 25-26).  While respondent's witness testified that the CSE "typically" reviews and discusses goals and objectives that have been prepared in advance, making revisions as needed, there was no testimony or other evidence that respondent advised petitioner that the IEP goals and objectives were recommendations for review and discussion (id.).  Nor was there any testimony that the IEP's goals and objectives were reviewed at the meeting or that petitioner was asked to comment on them.  I note here that to the contrary, petitioner testified that the IEP's goals were not reviewed and discussed with her and that respondent's witness could not remember otherwise (Tr. pp. 63, 18).  Under these circumstances, I find that petitioner was not offered the opportunity to discuss her daughter's IEP goals and objectives at the CSE meeting and that as a consequence respondent seriously infringed on her participation in the creation and formulation of the June 2004 IEP.

 Accordingly, and based on all of the above, I find that respondent has not offered petitioner's daughter a FAPE for the 2004-05 school year.  Having made the above determinations, it is not necessary that I further consider petitioner's challenges to the impartial hearing officer's decision (Application of a Child with a Disability, Appeal No. 02-100; (Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 00-075).  Petitioner has, therefore, prevailed with respect to the first Burlington criterion for an award of tuition reimbursement. 

I must now consider whether the placement petitioner selected for her daughter for the 2004-05 school year was 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).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

Gaynor is a private school for students with learning disabilities (Tr. p. 51).  The school has individuals described as language therapists and reading specialists on staff (id.).  Each classroom has two teachers (id.).  Assistant teachers have bachelor's degrees in education and head teachers have master’s degrees (Tr. p. 52).  Classes range in size from six to 11 students; instructional groups in mathematics and reading instruction are smaller (Tr. p. 51).  The school uses multisensory methods of instruction, largely based on Orton-Gillingham principles but also modified by other instructional programs (Tr. p. 52).  During the 2004-05 school year, the student's instruction included classes in reading, writing, social studies, and mathematics (Tr. p. 58).  Petitioner's daughter also received speech-language instruction with a language therapist once a week for 30 minutes in a group of two and once a week for 40 minutes in a larger, class group (Tr. pp. 59-60). 

One of the student's teachers, who had both a bachelor’s and a master's degree in education and six years of teaching experience, and who provided petitioner's daughter with instruction in reading, writing, and social studies during the 2004-05 school year testified at the impartial hearing (Tr. pp. 49-50).  She testified that the student had disabilities that were language-based and affected all areas of learning and that she taught specific strategies to address these deficits  (Tr. p. 53).  She testified for example, she taught the student strategies for self-monitoring her reading comprehension (Tr. pp. 53-54).  She provided the student with opportunities to implement these strategies and to practice using them independently (Tr. p. 54).  She also trained the student to recognize different paragraph structures in order to improve her reading comprehension in content area courses (id.).  The teacher testified that petitioner's daughter needed small group instruction because of the amount of feedback she required in order to process information (id.).  Her further testimony indicated that the student showed improvement in the 2004-05 school year.  She stated that while the student's comprehension remained delayed, the student increased her ability to self-monitor, would identify when she was having a problem with comprehension, then use a strategy such as chunking to address comprehension  (Tr. pp. 55-56).  The teacher testified that the student was performing at a fifth grade instructional level in mathematics during the 2004-05 school year (Tr. p. 61).  I note that this indicates a year's growth from the instructional level reported by the student's teacher at Gaynor for the 2003-04 school year (see Dist. Ex. 3 at p. 9). 

The student's progress report from Gaynor shows that petitioner's daughter had also made progress during the 2003-04 school year  (see Dist. Ex. 3).   The report noted that the student had started "to make personal connections to what she read" in reading comprehension (Dist. Ex. 3 at p. 2); had improved her ability to grasp  "inferences within text" in listening comprehension (Dist. Ex. 3 at p. 6); and had progressed in "thinking abstractly with math concepts" (Dist. Ex. 3 at p. 9).  A review of this report shows that Gaynor offered a program that had been used successfully with the student in the past, a relevant consideration to whether the school is an appropriate placement (Application of a Child with a Disability, Appeal No. 05-092).

Respondent asserts that Gaynor is an inadequate placement because it did not provide the student with the amount of speech-language therapy recommended in the IEP and, unlike the IEP, it made no provision for regular group counseling.  The absence of a related service is not necessarily determinative of whether a private school's program will be found appropriate (see Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 02-093; Application of a Child with a Disability, Appeal No. 99-78).  With respect to counseling, the CSE recommended counseling to assist the student in her transition to its recommended program (see Dist. Ex. 1 at p. 4).  Therefore, that service would not be necessary if she remained at Gaynor.  With respect to the amount of speech-language therapy recommended in the IEP, the record does not provide any evidence to support the CSE's conclusion that the student required the level of speech-language therapy provided for in the IEP, as there is no speech-language evaluation report in the record and no indication in the record that such evaluation was reviewed by the CSE at its June 3, 2004 meeting.    I note that the Gaynor progress report indicates that the student received language therapy in 2003-04 (Dist. Ex. 3 at p. 15) and her teacher at Gaynor testified that the student received "speech and language" once per week in a group of two and once a week as a push-in service for all students in the classroom in 2004-05  (Tr. pp. 59-60).  Upon review of the record, I find it shows that Gaynor addressed the student's needs.

The impartial hearing officer noted that the student's placement at Gaynor was more restrictive than that recommended by the CSE and that LRE considerations therefore preclude a finding that the school is an appropriate placement for petitioner's daughter.  Except for some uncertainty regarding instruction in physical education and for "specials," if petitioner’s daughter had attended respondent's schools during the 2004-05 school year, she would have been enrolled in 12:1 special education classes for all of her classes (see Dist. Ex. 1 at pp. 1, 11).  She would have received other special education services as well (see Dist. Ex. 1 at pp. 1, 13). Both the placements viewed by respondent and petitioner as appropriate involve non-general education placements. I do not find Gaynor unduly restrictive and note that the student's academic achievement is significantly delayed (see Dist. Ex 3 at pp. 1, 2, 6, 9) and Gaynor is appropriate to her meet her needs.

Accordingly, based upon my review of the hearing record before me, I find that petitioner has prevailed with respect to the second Burlington criterion for an award of tuition reimbursement for her daughter's attendance at that school for the 2004-05 school year.

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 [2d 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).

The record does not show that petitioner failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP.  Petitioner attended the June 2004 CSE meeting (Tr. p. 63) and testified that she advised the CSE at the meeting that she understood its recommendations (id.).  When she received respondent's final notice of recommendation sometime after August 17, 2004, she requested information in writing about the specific class that was recommended and the school in which the class was located (see Parent Exs. D, E; Tr. pp. 64-65).  The record does not reflect that respondent provided her with the information she requested (see Tr. p. 65). 

Respondent argues that the equities should preclude an award of tuition reimbursement because petitioner executed a contract with Gaynor in the spring of 2004 (see Tr. p. 67) and asserts there is nothing in the record to indicate that petitioner intended to enroll her daughter in public school.  I do not find respondent's argument persuasive. A parent’s preference for a private school placement is not dispositive of a claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 05-070; 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. 01-068).   The equities do not prohibit a parent from entering into a contract with a preferred private school prior to the date of the relevant CSE meeting (Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 99-015; Application of a Child with a Disability, Appeal No. 97-44).  Moreover, petitioner testified at the impartial hearing that had respondent offered an appropriate placement she would have considered it (Tr. p. 68).  I find that equitable considerations support petitioner's claim for tuition reimbursement. 

Accordingly, based upon my examination of the entire hearing record, I find that the evidence demonstrates that petitioner's daughter was not offered a FAPE, that the Gaynor placement was appropriate, and that equities do not preclude reimbursement.

I have considered petitioner's remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it found that respondent’s Committee on Special Education offered petitioner's daughter a free appropriate public education and denied petitioner's request for tuition reimbursement; and 

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her daughter's tuition at Gaynor for the 2004-05 school year, upon petitioner's submission to respondent of proof of such payment.

 

Dated:

Albany, New York

__________________________

 November 16, 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.  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.

2 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) meets 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); see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].

3 There may be circumstances under which a CSE will not know who the student's special education teacher will be prior to the CSE meeting.  In such circumstances, it should nevertheless have sufficient information about the student to designate a special education teacher who was not only appropriately certified to teach the student but was also teaching in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 01-072; Application of a Child with a Disability, Appeal No. 00-044).