The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

 05-092

Application of the BOARD OF EDUCATION OF THE HASTINGS-ON-HUDSON UNION FREE SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Keane & Beane, P.C., attorney for petitioner, Eric L. Gordon, Esq., of counsel

 

Law Offices of Deusdedi Merced, P.C., attorney for respondents, Steven L. Goldstein, Esq., of counsel

 DECISION

Petitioner, the Board of Education of the Hastings-on-Hudson Union Free School District (district), appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for 60 percent of their son's tuition, costs and fees at the Windward School (Windward) for the 2004-05 school year.  The appeal must be dismissed.

Before addressing the merits of this appeal, I must address a procedural issue.  Respondents contend that petitioner was not duly authorized to commence the appeal and it therefore must be dismissed (see Application of the Bd. of Educ., Appeal No. 00-034; see also Application of the Board of Educ., Appeal No. 00-004).  When an appeal is brought by a board of education, its petition shall be verified by any person who is familiar with the facts underlying the appeal, "pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board" (8 NYCRR 279.7).  Petitioner has attached to its reply a copy of the minutes of a special meeting of the Board of Education on September 6, 2005, showing that it approved a resolution at that meeting authorizing the commencement of this appeal (see Reply Ex. A at p. 2). I find that petitioner has overcome respondents' affirmative defense (Application of the Bd. of Educ., Appeal No. 01-058).  

Respondents' son was 13 years old and in the eighth grade at Windward at the commencement of the impartial hearing in February 2005 (see Tr. pp. 393-94).  Windward 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). Cognitive testing conducted in November 2004 indicated that the student's cognitive abilities were in the high average range, with relative weakness in some areas of perceptual reasoning and working memory (Dist. Ex. 26 at p. 2).  The student has identified deficits in reading decoding and fluency (Dist. Exs. 31, 10).  Reading comprehension subtest scores indicate abilities in the average to above average range (Dist. Exs. 31 at p. 2; 10). The student also has an identified deficit in spelling (Dist. Exs. 7 at p. 2; 9 at p. 2; 10; Tr. p. 79).  Goals and objectives on the student's individualized education program (IEP) suggest that the student exhibits difficulty with organizing his work (see Dist. Exs. 7 at p. 3; 9 at p. 4; 29 at pp. 4, 8; 30 at pp. 4, 8; 31 at p. 5).  The record also reflects social-emotional deficits affecting the student's ability to interact appropriately with peers, for which he has received, and at the time of the impartial hearing continued to receive, weekly private counseling (Dist. Exs.  29 at pp. 4-7; 30 at pp. 4-7; 31 at pp. 5-7; Tr. pp. 658, 682-91, 716-17, 736).  In April 1998, the student's private therapist reported that the student had been diagnosed as having an attention deficit hyperactivity disorder (ADHD), for which he takes medication, as well as a learning disability (LD) which the therapist identified as dyslexia (Dist. Exs. 7 at pp. 1, 2; 10; 31 at pp. 1, 2; Parent Ex. A; Tr. p. 424).  The student's eligibility for special education and classification as a student with LD (see 8 NYCRR 200.1[zz][6]) are not in dispute in this appeal.  

In kindergarten and first grade, the student attended a private school (Dist. Ex. 27; Parent Ex. B; Tr. pp. 395-97, 399).  He attended petitioner's Hillside Elementary School (Hillside) in second grade during the 1998-99 school year and was classified by its Committee on Special Education (CSE) as a student with a learning disability on March 25, 1999 (Dist. Ex. 29 at p. 1; see also Dist. Ex. 27; Tr. pp. 401, 405).  During third and fourth grades, petitioner provided respondents' son with consultant teacher services, speech-language therapy and counseling services (Dist. Ex. 12; see Dist. Exs. 30 at p. 2; 31 at p. 3).  His IEP for the fourth grade also provided that the student receive occupational therapy (OT) services once a week to address difficulties with handwriting (see Dist. Ex. 31 at pp. 1; 10).  The student experienced difficulties with peers in the fourth grade, including episodes of bullying by classmates, a situation that reportedly began at the end of the previous school year (see Tr. pp. 436-39, 442-44, 872; see also Parent Exs. H, I, J, K, L), which was followed by private psychiatric assistance, and reportedly resulted in the student being out of school for a period of weeks in the winter of 2001 (Tr. pp. 436-40, 442-44; see Parent Exs. N, H, I, J,). 

The student was accepted at Windward in March 2001 and respondents placed their son in fifth grade at Windward during the 2001-02 school year (Tr. pp. 447, 449).  His records from Windward indicate that respondents' son made satisfactory progress at Windward during the 2001-02 school year (Dist. Ex. 11 at p. 2).  Although the student continued to have difficulties with social interactions, his mother reported that he was no longer bullied and that she was satisfied with her son's academic performance at Windward (Tr. p. 449).  He remained at Windward for sixth grade during the 2002-03 school year (Tr. p. 461).  His mother reported that, although her son continued to be "a loner" who did not have "any particular friend," he benefited from the small group setting available to him during unstructured times (id.). 

Petitioner's CSE did not meet or recommend an IEP for the 2003-04 school year (Tr. pp. 462-64).  The student continued at Windward in the seventh grade during that school year (see Tr. pp. 464; Dist. Ex. 13).  Windward referred the student for counseling in February of 2004 and he began private counseling in March 2004 (Tr. pp. 483-85, 653-55).  Respondent mother reported that she saw improvements in her son's social interactions during the school year  (Tr. p. 465) and that his involvement in sports and social activities with peers increased his self-confidence (Tr. pp. 465-66).

Respondents requested tuition reimbursement for the 2002-03 and 2003-04 schools years by letter from their counsel dated June 22, 2004 (Dist. Ex. 1).  The parties have reached a settlement with respect to those school years (Tr. pp. 43, 124-26, 490).  

Petitioner's Director of Pupil Personnel testified that she learned about the student's eligibility for special education from counsel's June 2004 letter (Tr. pp. 34, 37).  She testified that the student's special education files were in the "inactive file" and that things had been "overlooked" by the previous director (Tr. pp. 39, 122).   

On August 25, 2004, petitioner's CSE convened for the student's annual review for the 2004-05 school year when he would be in the eighth grade (Dist. Ex. 9 at p. 1).  The CSE recommended continuation of the student's classification as LD (Dist. Ex. 9 at p. 3).  The CSE recommended that respondents' son be enrolled in a district-based program at petitioner's Farragut Middle School, receive resource room support once a day for 40 minutes, be placed in "collaborative classes" for social studies and science, and receive certain testing accommodations and program modifications (Dist. Ex. 9 at pp. 1-4; Tr. pp. 86, 87, 89-90).

The student's mother indicated in testimony that when she left the meeting, she believed that the CSE understood that she was not satisfied with the offered program (Tr. p. 617).  The CSE Chairperson testified otherwise, stating that as a result of the meeting, she believed that respondents were in agreement with the CSE and that the student would return to petitioner's school (Tr. pp. 101, 102, 107, 162, 812, 912).  Other members of the CSE also testified that they believed that the student would be returning to petitioner's district (Tr. pp. 226, 317-18).  Under cover of a letter dated August 26, 2004, the CSE Chairperson mailed respondents a copy of the IEP resulting from the August 25, 2004 meeting (see Dist. Ex. 17). 

By letter from their counsel dated December 6, 2004, respondents asserted that petitioner's recommended program for the 2004-05 school year did not offer their son a free appropriate public education (FAPE) (Dist. Ex. 21 at pp. 1-3).  The letter also requested an impartial hearing and advised petitioner that respondents had unilaterally placed their son at Windward for the 2004-05 school year (Dist. Ex. 21 at pp. 1, 2).  The student remained at Windward for that school year.

            The impartial hearing commenced on February 18, 2005, continued on March 29, March 31, April 14, and concluded on May 24, 2005.  The impartial hearing officer issued a detailed 43-page decision dated August 3, 2005.  The impartial hearing officer found that petitioner did not show that it offered the student an appropriate program.  The impartial hearing officer also concluded that Windward was an appropriate placement for the student and was not inconsistent with least restrictive environment (LRE) considerations (see IHO Decision, pp. 35-37).  However, with respect to equitable considerations, the impartial hearing officer limited respondents' reimbursement award to 60 percent (IHO Decision, pp. 37-39).

Petitioner appeals the impartial hearing officer's determination that Windward was an appropriate placement and also his conclusion that the student's enrollment was not precluded by LRE considerations.  Petitioner also appeals the determination regarding equitable considerations and asserts that the impartial hearing officer was required to deny their requested award in its entirety.  Petitioner does not appeal the impartial hearing officer's determination that it failed to offer an appropriate program to the student for the 2004-05 school year.  Respondents do not appeal the determination to limit the reimbursement award to 60 percent. 

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]).2  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]).  A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were 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, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist.,    --F.3d--, 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]; Application of the Bd. of Educ., Appeal No. 03-062). 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).  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]; Application of a Child with a Disability, Appeal No. 05-091).  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 (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim, 346 F.3d at 381).  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., 231 F.3d at 103 [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 v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 [2d Cir. 2003] [citation and internal quotation omitted]; 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).

Petitioner has not appealed the impartial hearing officer's determination that it did not offer a FAPE to the student for the 2003-04 school year. An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]).  Consequently, this part of the decision is final and binding and I do not reach the issue of the propriety of that determination (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).  Petitioner has, therefore, prevailed with respect to the first Burlington/Carter criterion.

Having determined that petitioner did not offer a FAPE during the 2004-05 school year, I must now consider whether respondents have met their burden of proving that the services provided to their son by Windward 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 parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

Windward is a private coeducational day school for children with language-based learning disabilities (Dist. Ex. 23).  It provides direct instruction in small class settings (id.), including a "skills class" focusing on reading and writing, grammar, sentence structure, and reading decoding skills (see Parent Ex. E at p. 4; Dist. Ex. 15 at p. 5).  It uses specialized methods of teaching reading, including the Orton-Gillingham program for reading instruction (see Parent Ex. E at p. 4; Dist. Ex. 15 at p. 5; see also Tr. pp. 228). 

The impartial hearing officer concluded that Windward was an appropriate placement for the student.  He concluded that the school was appropriate for the student's academic needs and provided support for the student’s social and emotional needs (IHO Decision, pp. 35-37).  He based his conclusions on documents in the record including Windward's progress reports and report card for the 2003-04 school year, the results of three years of standardized tests at Windward, and testimony of the student's treating psychologist and the student's parent (id.). 

I concur with the impartial hearing officer that the record shows that Windward was an appropriate placement for respondents' son.  Placement at Windward addressed the student's needs.  Respondents' son has a language-based learning disability (Tr. pp.  200), diagnoses which include ADHD and dyslexia (Parent Ex. A), relative weaknesses in some areas of perceptual reasoning and working memory (Dist. Ex. 26 at p. 2), identified deficits in reading decoding and fluency (Dist. Exs. 7 at p. 2; 10; 31 at p. 2), a deficit in spelling (Dist. Exs. 7 at p. 2; 9 at p. 2; 10 at p. 2; Tr. p. 79) and difficulty with organizing his work (see Dist. Exs. 7 at p. 3; 9 at p. 4; 29 at pp. 4, 8; 30 at pp. 4, 8; 31 at p. 5) as well as social-emotional deficits affecting the student's ability to interact appropriately with peers for which he is receiving private counseling (Dist. Exs.  29 at pp. 4-7; 30 at pp. 4-7; 31 at pp. 5-7; Parent Exs. H, I, J, K; Tr. pp. 658, 682-91, 716-17, 736). 

The impartial hearing officer concluded that Windward was conscious of its students' social and emotional needs, as it offered respondents' son a supportive atmosphere based upon "mutual success" which addressed his social and emotional needs (IHO Decision, p. 35).  The record supports the impartial hearing officer's conclusions  (see Tr. pp. 693, 697, 699-70).  I also note that when the student’s behavior became problematic in the winter of 2004, Windward referred him for counseling (Tr. pp. 484-85, 653-55).  His counselor testified that the student's behavior reflected his social and emotional needs, and that the program at Windward positively addressed those needs (Tr. pp. 658, 663-64, 669-70, 686-88, 694-95, 697-700).

In his finding that Windward was an appropriate program, the impartial hearing officer also pointed out that narrative progress reports and the student's report card for the 2003-04 school year as well as the results of three years of standardized tests from Windward ending in May 2004 demonstrated that he had made progress there (IHO Decision, pp. 36-37).  The student's progress reports showed that during the 2003-04 school year, the student made progress in decoding, fluency, self-correction of mistakes, vocabulary, writing, including the use of new vocabulary words and correct use of subordinate clauses, transitional phrases and verb tense agreement (see Parent Ex. E at pp. 2, 3, 4; Dist. Ex. 15 at pp. 2, 3, 5).  The June 2004 progress report included a narrative from each of the student's subject area teachers that described the content and methodology of each course and the topics addressed during the 2003-04 school year (see Dist. Ex. 15 at p. 2).  Of particular significance, each section described not only the student's progress but also specific strategies used in each class to address the student's unique needs (id.).  Strategies used to address the student's reading deficits included practicing summarizing and predicting skills orally and use of a guide to track while reading aloud in order to reduce the student's tendency to omit affixes or replace correct words with incorrect ones (Dist. Ex. 15 at p. 2).  Windward addressed comprehension through activities such as summarizing and paraphrasing  (id.).  The student's writing program at Windward used programs identified as Quick Outline and Multiple Paragraph Outline to improve the student's skills in organizing paragraphs (Dist. Ex. 15 at p. 3).  In his study skills class, an Orton-Gillingham approach was implemented to teach spelling, decoding, handwriting and vocabulary (Dist. Ex. 15 at p. 5).  Multisyllable words were practiced in daily drills to improve decoding, supplemented by practice in dividing words into syllables (id.).  Using a program identified as the Klieber program, the student reportedly increased his vocabulary skills through practice in the use of Greek and Latin roots and affixes, and demonstrated knowledge of Greek and Latin roots and affixes in analyzing unfamiliar vocabulary (id.).  Spelling instruction used multisyllable word lists and rules for adding suffixes (id.).  I note here that Windward rated the student's progress in seventh grade during the 2003-04 school year as satisfactory or better (see Dist. Ex. 13).  The results of three years of standardized testing at Windward indicated steady growth (see Dist. Ex. 14).  This documentary evidence shows that the school offers a program that has been used successfully with the student in the past, a relevant consideration to whether the school is an appropriate placement (cf. Application of a Child with a Disability, Appeal No. 03-091). 

Further, the student's psychologist testified that the student made progress socially and emotionally during the time that the psychologist has known him (Tr. pp. 694-95). I note also that the student's success at Windward is not disputed, that petitioner's witnesses testified that the school was helping him (see Tr. pp. 249, 326), and that its witnesses also reported that the teacher from Windward who participated by phone during part of the August 25, 2005 CSE meeting advised the CSE that the student was doing well there (Tr. pp. 83-84, 211).  Given the nature of the student's needs, the information in the record with respect to Windward's program, and the success of the student there prior to re-enrollment, I find ample evidence in the record to conclude that Windward was appropriate to address the student's needs.  

    Petitioner asserts that the impartial hearing officer erroneously relied on petitioner's settlement in 2002-03 and 2003-04 as evidence that Windward was appropriate.  It was improper for the impartial hearing officer to draw any adverse inference from petitioner's willingness to settle respondents' tuition reimbursement claims relating to the 2002-03 and 2003-04 school years (Application of the Bd. of Educ., Appeal No. 04-080).  However, this was only one of a number of factors that the impartial hearing officer took into account in determining the appropriateness of the parents' unilateral placement (see IHO Decision, pp. 35-37). 

I am not persuaded by petitioner's claims that respondents did not present sufficient evidence regarding the appropriateness of the student's unilateral placement at Windward.  In particular, petitioner argues that that no one from Windward participated at the impartial hearing, that respondents relied on the testimony of the student's treating psychologist and parent, and petitioner asserts that such testimony was insufficient to meet respondents' burden of proof.  While it is true that no one from Windward testified at the impartial hearing, that fact alone is not dispositive of whether respondents are able to show that Windward was an appropriate placement for their son (see Application of a Child with a Disability, Appeal No. 02-093; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, 97-02; Application of a Child with a Disability, Appeal No. 96-09).  Moreover as the impartial hearing officer pointed out, the record includes a number of Windward documents relating to the student, the opinion of one of his teachers at Windward as reported by petitioner's own witnesses, as well as the testimony of the student’s psychologist and a parent.  I concur with the impartial hearing officer's decision and find that there is sufficient evidence to show that Windward offered an appropriate program to the student for the 2004-05 school year.

Petitioner's argument that the student's placement is not appropriate because it is not the LRE is not persuasive.  Parents are not held as strictly to the standard of placement in the LRE as school districts are; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d at 105).  However, this must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).  Given the circumstances of this case, I decline to find that Windward was an inappropriate placement based on LRE considerations alone  (see M.S. v. Bd. of Educ., 231 F.3d at 105, citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir.1999] ["(T)he test for the parents' private placement is that it is appropriate, and not that it is perfect"], and also citing Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir.1998] [holding private placement's failure to meet IDEA's mainstreaming requirement does not bar parental reimbursement]).  Accordingly, I concur with the impartial hearing officer and find that respondents have met their burden of demonstrating the appropriateness of the program at Windward and that they have prevailed with respect to the second Burlington criterion for an award of tuition reimbursement 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 [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).

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]; 34 C.F.R. § 300.403[d]; see Mrs. C., 226 F.3d at 69 n.9).  With respect to a parent's obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][10][C][iii][I], 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e][4]).  Under 20 U.S.C. § 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary (Application of a Child with a Disability, Appeal No. 04-071; Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054; see also 20 U.S.C. § 1412[a][10][C][iv][IV]).

The impartial hearing officer concluded that respondents' request for reimbursement should be reduced by 40 percent on the basis of equitable considerations.  He referenced the IDEA notice provisions and indicated that he was making such a determination because the CSE members left the August 25, 2005 meeting with the belief that respondent mother was happy with the IEP and that the student would return to petitioner’s schools, and because of respondents' "unexplained delay of almost four months" from the date of the CSE meeting in providing petitioner with notice of their intent not to enroll their son in petitioner's school district for the 2004-05 school year (IHO Decision, pp. 37-39). 

I have considered petitioner's arguments regarding equities, however given the circumstances of this case, I will not disturb the impartial hearing officer's decision to award respondents reimbursement for 60 percent of their son's tuition, costs and fees at Windward for the 2004-05 school year. 

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

THE APPEAL IS DISMISSED.

Dated:

Albany, New York

__________________________

November 14, 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 stands 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].