The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE SHENENDEHOWA CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorney for petitioner, Susan T. Johns, Esq., of counsel
Petitioner, the Board of Education of the Shenendehowa Central 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 petitioner to reimburse respondents for their son's out-of-state private residential tuition costs at the Hampshire Country School (HCS) for the 2004-05 school year. The appeal must be sustained.
At the commencement of the impartial hearing on May 16, 2005, respondents' son was 14 years old and enrolled as an ungraded student receiving instruction in the eighth grade curriculum at HCS (Tr. p. 612; Parent Ex. 8-I). The Commissioner of Education has not approved HCS as a school with which school districts may contract to instruct students with disabilities (Tr. p. 618; see 8 NYCRR 200.7). The record describes HCS as a small, "family style" school that could accommodate approximately 25 elementary through high school students (Tr. pp. 546-48). This residential school is located in New Hampshire (Tr. p. 962). According to the record, the student body of HCS consists of mostly seventh through ninth grade students and, in general, those students possess very high verbal abilities and exhibit characteristics of Asperger's Disorder and nonverbal learning disabilities (Tr. pp. 550, 607). HCS offers classes consisting of two to six students with approximately six students to a dormitory (Tr. p. 546). Respondents unilaterally placed their son at HCS on August 26, 2004 (Tr. p. 962; see Dist. Ex. 78). The student's eligibility for special education programs and classification as a student with an other health impairment (OHI) are not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
The student attended a private parochial school for first grade and a public elementary school for second and third grade (Dist. Ex. 5 at p. 2). In 2000-01, he attended one of petitioner's elementary schools for fourth grade and in November 2000, his mother referred him for the first time to petitioner's Committee on Special Education (CSE) (Dist. Ex. 1). Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) at that time yielded a verbal IQ score of 101 and a performance IQ score of 80 (Dist. Ex. 6 at p. 4). Although a full scale IQ score was not reported, it was described as "not valid due to [the] significant discrepancy between VIQ and PIQ[,]" however, the report noted that the student's potential level of intellectual functioning fell within the average range (Dist. Ex. 6 at pp. 4-5).
Academic achievement testing conducted at that time using the Kaufman Test of Education Achievement (K-TEA) revealed the following subtest standard scores (SS): reading decoding (100), reading comprehension (91), spelling (90), math computation (100) and math applications (87), all of which the examiner described in the report as within the low average to middle average range and commensurate with the student's estimated average IQ (Dist. Ex. 6 at p. 5). The student reportedly exhibited avoidance behaviors when asked to produce a writing sample. His teacher judged the writing sample the student produced to be below average compared to his classmates (Dist. Ex. 6 at pp. 4, 6).
Results of student and parent reports regarding the student's social emotional functioning indicated that the student did not have any friends in his class, and his teacher indicated that the student exhibited withdrawn behaviors, social problems, attention problems and argumentative/aggressive behaviors (Dist. Ex. 6 at pp. 6-7). The evaluation report indicated the need for the student to be further evaluated to determine the presence of an attention deficit hyperactivity disorder (ADHD) or a psychiatric disorder that would qualify him for special education services (Dist. Ex. 6 at p. 8). If identified for special education services, the report recommended academic and social skills counseling in school (id.). The student's private social worker stated that the student's behavior was consistent with ADHD, and a classification of OHI was warranted (Dist. Ex. 8; Tr. p. 803).
In February 2001, petitioner's CSE classified the student as OHI and recommended placement in a 15:1 self-contained special education classroom to receive instruction in reading, writing and spelling; daily resource room for social studies, science and organization skills; and counseling once weekly in a group for social skills development (Dist. Ex. 10 at p. 5). During spring 2001, the CSE recommended a shared aide for the student. The services of the shared aide increased during the remainder of the 2000-01 school year (Dist. Exs. 11, 13, 14). In March 2001, the CSE referred the student to Wildwood Institute for a functional behavioral assessment (FBA) (Dist. Exs. 12, 16). The April 2001 FBA report noted the student's off-task behavior, limited participation in activities and limited social skills (Dist. Ex. 16).
The student underwent a private evaluation in April 2001 by a licensed psychologist, which revealed that the student's ability to learn was severely limited by his difficulty maintaining appropriate social functioning and by his impulsivity (Dist. Ex. 15 at p. 3). The evaluation report stated that the student continued to exhibit behaviors consistent with a diagnosis of ADHD but that he did not display Asperger's Syndrome (Dist. Ex. 15 at p. 3). His recommendations included the provision of substantial one-to-one contact with educators and an environment that would provide structure and active support for social interactions with peers (Dist. Ex. 15 at p. 3).
In May 2001, respondents took their son to a private licensed and school certified psychologist at Karner Psychological Associates to conduct additional testing (Parent Ex. 1-S). Results indicated that the student exhibited atypical development of pragmatic language skills and flexibility in thinking, poor social awareness, and elevated levels of anxiety consistent with a diagnosis of a Pervasive Developmental Disorder (PDD) (Parent Ex. 1-S at p. 5). Recommendations included direct instruction for organization, modification of writing assignments, social skills instruction and consultant teacher services for the student's general education teacher and his aide (Parent Ex. 1-S at pp. 8-9).
At the June 2002 annual review at the end of the student's fifth grade year, petitioner's CSE subcommittee recommended that for sixth grade in the 2002-03 school year, the student be placed in petitioner's 12:1+1 Management Needs program and receive behavioral supports (Dist. Ex. 31). In September 2002, respondents notified petitioner that they rejected petitioner's recommended program and privately placed the student outside the district at the Waldorf School (Dist. Ex. 33; IHO Ex. 3 at p. 14). The student returned to petitioner's school in March 2003 and was placed in a sixth grade general education program located at one of petitioner's middle schools, where he received "intense" support in petitioner's Management Needs program (Dist. Ex. 37 at p. 2).
Respondents did not attend the June 2003 CSE subcommittee's annual review of the student, which recommended that for seventh grade during the 2003-04 school year, the student continue in the Management Needs program with group and individual behavioral support specialist services and a shared aide (Dist. Ex. 37). The CSE subcommittee also determined the student eligible for extended school year (ESY) services, and he attended petitioner's Concepts in Motions summer program during summer 2003 (Tr. pp. 143-44). During the 2003-04 school year, the Management Needs program was not located in the same middle school that the student had attended at the end of the 2002-03 school year when he returned to petitioner's district (Dist. Exs. 38, 39).
The record contains numerous documented incidents of the student's inappropriate behavior during Fall 2003 (Parent Exs. 2-X, 2-Y, 2-Z, 3-B, 3-C, 3-D, 4-K, 4-L). In October 2003, the CSE subcommittee convened (Dist. Ex. 42 at p. 3). Notes from the meeting indicated that the student had difficulty transitioning to the new school and exhibited behavior that resulted in two days of internal, and five days of external, suspension (Dist. Ex. 42 at p. 4). The CSE subcommittee agreed to develop a written behavior plan and consult with a PDD specialist (Dist. Ex. 42 at p. 4).
The CSE convened in November 2003 (Dist. Ex. 45). At that time, the student received grades of D in most subjects except science (C-), math (F) and physical education (C-) despite modifications to the curriculum (Dist. Ex. 45 at p. 4). The record reveals that, at this time, the student exhibited difficulty in mainstream situations (Dist. Ex. 45; Parent Exs. 3-U, 4-B). The CSE recommended that the student's school day be reduced to approximately three hours per day, with two hours per week of tutoring in science, while the CSE investigated potential "outside" placements for the student (Dist. Ex. 45 at p. 4). That same month, the student was referred to the Board of Cooperative Educational Services (BOCES) (Dist. Ex. 46).
When the CSE convened in January 2004, the student had received ten suspensions during the 2003-04 school year, and the CSE recommended an out-of-district tutoring program (Dist. Ex. 48 at pp. 2-3). Respondents rejected this recommendation and their son continued to attend petitioner's reduced hours in-school program (Dist. Ex. 49; Tr. p. 296). A February 2004 report of the student's progress toward his individualized education program's (IEP) goals and objectives indicated that he had not demonstrated any progress in objectives related to "demonstrating improvement in socially acceptable behaviors in the school environment" (Parent Ex. 5-J). After the student returned from a suspension in March 2004, the CSE convened and recommended that the student receive three hours of tutoring daily at an out-of-district location until an alternative placement could be identified (Dist. Ex. 52). Petitioner and the student's mother visited a number of BOCES programs during spring 2004, however, respondents determined that the BOCES programs were not appropriate for their son (Parent Ex. 5-W, Dist. Ex. 55).
Petitioner approved an independent educational evaluation (IEE) of the student, which was conducted in May 2004 by a clinical neuropsychologist (Dist. Ex. 57). Administration of the Wechsler Intelligence Scale for Children – IV (WISC-IV) yielded a verbal comprehension index of 96, a perceptual reasoning index of 79, a working memory index of 59, a processing speed index of 83 and a full scale IQ score of 76 (Dist. Ex. 57 at p. 13). The clinical neuropsychologist stated in her report that "due to the presence of significant variability among the component indices, [the student's] full scale IQ [score] of 76 is not a valid or representative index of his general level of intellectual ability" (Dist. Ex. 57 at pp. 5, 13). She reported that the student displayed generally average performance on subtests assessing verbal/language functioning, with the exception of tasks that required him to name words that began with specific letters and name pictures as quickly as possible (Dist. Ex. 57 at p. 5). She also reported that the student displayed relative difficulty in the visual perceptual domain, especially on tasks measuring his ability to think about objects in multiple ways and process information about orientation (Dist. Ex. 57 at pp. 5, 6). The clinical neuropsychologist reported that the student exhibited difficulty with various aspects of attentional functioning, including his tendency to be distractible, and difficulty with mental hold for information, visual search, divided attention and sustained mental processing (Dist. Ex. 57 at p. 6). On tasks measuring the student's memory skills, the examiner noted significant variability in his performance, but reported that he demonstrated relatively better recognition for verbal than for visual information and also demonstrated difficulty with organizational/retrieval aspects of his recall (Dist. Ex. 57 at p. 6). Variability was noted in the student's performance on tasks measuring executive function, with relative difficulty noted on tasks related to systematic and methodical problem solving and planning, with limitation in self-monitoring noted (Dist. Ex. 57 at p. 7).
The clinical neuropsychologist indicated in her report that the student's skills in reading were a relative strength compared to his math and writing skills (Dist. Ex. 57 at p. 7). Projective testing revealed "themes of anxiety and weak self esteem" and the examiner reported that the student exhibited significant deficits in his reciprocal social interaction and appreciation of others' perspective, as well as weaknesses in social and organizational domains of adaptive behavior (Dist. Ex. 57 at pp. 8-10). The clinical neuropsychologist indicated that the student's profile was consistent with nonverbal learning disability syndrome (NLD) and a Pervasive Developmental Disorder, Not Otherwise Specified (PDD-NOS)1 and recommended, among other things, an experiential structured, but flexible, learning environment with small classes where routine, modeling, feedback and positive reinforcement were available (Dist. Ex. 57 at pp. 9-11; Tr. pp. 702, 711). She further indicated that "emphasis on social and behavioral control skills as well as basic academic skills remediation" would be important (Dist. Ex. 57 at p. 11).
The record indicates that the student exhibited much greater skill in rote verbal knowledge and recall than in visual processing and visual perception (Tr. pp. 703, 711). Other characteristics of NLD exhibited by the student and reported by the clinical neuropsychologist included the student's difficulty with writing fluency, graphomotor and math skills (Tr. p. 712). The student's social relatedness skills, ability to imagine the perspectives of others and awareness of others' feelings was also impaired (Tr. p. 706). Petitioner's special education teacher, who provided instruction to the student for a portion of the 2003-04 school year, indicated that the student exhibited difficulty remaining on task within the classroom, taking notes, following directions, completing classroom assignments and working in small groups with peers (Tr. pp. 272, 296).
The CSE convened on June 25, 2004 to conduct the student's annual review and to prepare the student's 2004-05 IEP (Dist. Ex. 58). Notes contained in the IEP indicated that the CSE considered and reviewed the IEE conducted by the clinical neuropsychologist in May 2004 (Dist. Exs. 53, 58 at p. 5). The CSE recommended that the student's ESY program consist of daily tutoring for one hour and weekly social skills training for one hour (Dist. Ex. 58). Respondents requested that the CSE consider Summit Camp, an out-of-state summer program, for the student's ESY program, and also consider two out-of-state residential schools for the student's placement for the 2004-05 school year (Parent Ex. 6-J; Dist. 58 at p. 6). Unable to determine a recommendation for a placement for the 2004-05 school year, the CSE tabled the discussion and reconvened on August 9, 2004 (Dist. Exs. 58 at pp. 6, 69, 79). Between June 25, 2004 and August 9, 2004, petitioner continued to seek an appropriate out-of-district placement for the student that would be acceptable to respondents (Tr. pp. 154, 195).
During summer 2004, petitioner provided, and the student received, 30 hours of individual tutoring services at an out-of-district location as recommended by petitioner's CSE (Tr. p. 474). Tutoring was provided by the tutor who had provided services to the student during spring 2004 (id.). The tutor arranged the services to accommodate the student's vacation and his attendance at Summit Camp, the private summer camp requested by respondents (Tr. p. 477; Parent Ex. 8-K at p. 25).
When the CSE reconvened on August 9, 2004 to continue to discuss the student's placement for 2004-05, it could not reach a consensus (Dist. Ex. 69 at p. 7). Discussions at the CSE meeting included the "option of residential placement and whether all less restrictive appropriate options had been pursued" (Dist. Ex. 69 at p. 7). Comments contained in the IEP stated that petitioner and respondents would "continue to explore placement options, including residential schools, with the goal of having an IEP in place by the beginning of September. In the event that a new IEP is not prepared by that time, tutoring was agreed upon to begin in the home, with a CSE meeting no later than October 15th" (id. at p. 7). The IEP described the student's present levels of performance as requiring constant adult support to help him master basic classroom survival skills and support in the areas of organization, work completion, social interactions and maintaining focus in class (Dist. Ex. 69 at pp. 3, 4).
On August 10, 2004, petitioner's Coordinator of Student Placement and Director of Student Services contacted the New York State Education Department regarding approved out of state residential placements for respondents' son (see Dist. Ex. 72). The residential schools identified as possible placements required respondents and their son to participate in an intake process prior to committing to petitioner those they would accept the student (Tr. pp. 103-04). To begin the intake process, the Coordinator of Student Placement forwarded a copy of the student's draft IEP for 2004-05 and the student's most recent neuropsychological evaluation report (May 2004) to three residential schools (id.; see Dist. Ex. 70). By letter dated August 13, 2004, petitioner advised respondents of the contact with the State Education Department and the initiation of the intake process (Dist. Ex. 72).
Unable to reach respondents by telephone, petitioner notified respondents, by letter dated August 20, 2004, that an intake interview had been scheduled for August 27, 2004, at one of the proposed residential placements (Dist. Ex. 73). By letter dated August 26, 2004, the Assistant Director of Admissions at this proposed placement advised petitioner that she had sent information about the school directly to respondents, attempted telephone contact with respondents, left messages with respondents about the interview date, and since she had not received any response from respondents, she had cancelled the interview scheduled for August 27, 2004 (Dist. Ex. 75). Petitioner forwarded the letter from the Assistant Director of Admissions to respondents by letter dated August 26, 2004 (id.).
Documentation from a second proposed residential placement also indicated that respondents failed to attend another intake interview scheduled for August 24, 2004 (Dist. Ex. 77). The Director of Admissions at this second proposed school had spoken directly to respondents on August 13, 2004 to schedule the intake interview for their son (id.).
By letter dated August 27, 2004, petitioner's Director of Student Services notified the student's mother that petitioners believed "several appropriate programs" had been identified in the process of finding a placement for the 2004-05 school year; however, her unwillingness to attend scheduled visitations at the New York State approved programs was a "significant reason" for the delay in finding an appropriate placement for the student for the 2004-05 school year (Dist. Ex. 76).
During July and August 2004, respondents investigated other private residential schools for their son without petitioner's assistance (Parent Exs. 7-A, 7-F, 7-I) and visited HCS on August 25, 2004 (Parent Ex. 7-J). Respondents had also visited another residential school and were notified of the student's acceptance by letter dated August 23, 2004 (Parent Ex. 7-I). Respondents decided to place the student at HCS on August 26, 2004 (Tr. p. 926) and notified petitioners of their intent by letter, which petitioner received on September 8, 2004 (Dist. Ex. 78; Tr. pp. 887-88). Respondents' letter noted that petitioner failed to provide their son with a free appropriate public education (FAPE), they disagreed with petitioner's recommendations for 2004-05, and they would seek reimbursement for tuition expenses from petitioner (Dist. Ex. 78). The student attended HCS during the 2004-05 school year (Parent Ex. 8-J).
Respondents requested an impartial hearing by letter dated April 11, 2005, in which they alleged that petitioner did not provide a FAPE to the student and sought reimbursement for the student's 2004 summer program at Summit Camp, as well as tuition and fees, including transportation costs, for the student's placement at HCS for the 2004-05 school year (Dist. Ex. 83). The impartial hearing commenced on May 16, 2005, and continued over eight days. In a decision dated October 11, 2005, the impartial hearing officer determined that respondents were not entitled to reimbursement for Summit Camp; however, he awarded tuition reimbursement for HCS, excluding the cost of transportation (IHO Decision, p. 24).
Petitioner appeals the impartial hearing officer's award of tuition reimbursement to respondents for their son's attendance at HCS during 2004-05. Petitioner argues that respondents failed to demonstrate that HCS was an appropriate placement for their son, and further, that equitable considerations did not support the impartial hearing officer's decision regarding tuition reimbursement. Petitioner argues that the impartial hearing officer erred when he determined that HCS addressed the student's social and academic needs and provided specially designed instruction, and that respondents cooperated with petitioner during the placement process at potential state approved residential placements. In addition, petitioner contends that the impartial hearing officer failed to consider, and erred in concluding, that the June 25, 2004 CSE meeting was the last CSE meeting prior to respondents' unilateral placement of the student at HCS. Petitioner also contends that the impartial hearing officer erred in concluding that respondents were excused from providing petitioner with ten days' notice prior to the unilateral placement of the student at HCS. Petitioner does not appeal the impartial hearing officer's determination that it failed to offer a FAPE to the student at the commencement of the 2004-05 school year.
Respondents contend that the impartial hearing officer appropriately exercised his authority in awarding tuition reimbursement for their son's attendance at HCS during the 2004-05 school year, noting that the impartial hearing officer correctly concluded that HCS met the student's social and academic needs and provided specially designed instruction, and that respondents cooperated with petitioner regarding potential residential placements for 2004-05. Respondent requests that the impartial hearing officer's decision be upheld in its entirety.
A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). 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 ). 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 a 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]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).
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). An IEP must 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]; see also 8 NYCRR 200.4[d][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]).
Petitioner does not appeal the impartial hearing officer's determination that it failed to offer the student a FAPE at the commencement of the 2004-05 school year. Respondent has, therefore, prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.
I must now consider whether the placement respondents selected for their son 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). 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).
An examination of the record reveals that HCS is a private non-profit boarding school for boys with very high verbal ability who may also exhibit difficulties associated with Asperger's Disorder, NLD and/or ADHD (Parent Ex. 7-Q; Tr. pp. 547, 550). It provides instruction for up to 25 students in small classes of two to six students (Tr. p. 546). Most students who attend are in middle school (Tr. p. 547). For the 2004-05 school year, HCS enrolled 20 students ranging in age from 10 to 17 (Tr. p. 606). HCS does not offer related services, counseling, formal social skills training or a formal program to address specific learning disabilities (Tr. pp. 637-38).
The impartial hearing officer concluded that HCS was an appropriate placement for the student. He concluded that the school was appropriate to meet the student's academic and social skill needs (IHO Decision, pp. 19-20). He based his conclusions in part on documents in the record, including a letter from the headmaster of HCS to petitioner's Coordinator of Student Placement in May 2005, which provided an assessment of the student's year, progress reports from HCS, testimony of the headmaster and of experts who spoke at the hearing regarding the student's needs (IHO Decision, pp. 19-20).
I concur with the impartial hearing officer in finding that the record shows that HCS was an appropriate placement for respondents' son. Placement at HCS specifically addressed the student's social skill needs. Respondents' son has been diagnosed with NLD, PDD-NOS (Dist. Ex. 57 at p. 10), and ADHD (Parent Ex. 5-N), and has relative weaknesses in processing visual perceptual information, deficits in internal organization, generation of alternative solutions and ability to sustain attention (Dist. Ex. 57 at pp. 9-10; see Tr. pp. 711-12), identified deficits in writing, spelling and numerical ability (Dist. Ex. 57 at pp. 7-8; Tr. pp. 711-12), significant deficits in reciprocal social interaction, appreciation of another's perspective and processing non-verbal interpersonal cues (Dist. Ex. 57 at pp. 4, 8, 9; Tr. pp. 705-06), as well as anxiety and weak self-esteem (Dist. Ex. 57 at p. 8; Parent Ex. 5-N).
The record reflects that the student's needs in the area of social skills and classroom behavior negatively impacted his ability to participate in a learning environment, evidenced by his lack of social judgment and "tremendous repertoire of behaviors designed to avoid school work and scholastic responsibilities" (Parent Exs. 8-H at p. 2, 8-I, 8-J at pp. 2-3; Tr. pp. 272, 433, 581-83, 596). The impartial hearing officer concluded the following:
HCS addressed the student's social skills training needs by offering proximity to fellow schoolmates and dorm mates, where facial and other social cues are clearly observable; that the student's involvement in board games with fellow students and with dorm parents provide[d] him with the opportunities to interact socially and gain self-esteem, guided and reinforced by staff, teachers and dorm parents.
(IHO Decision, p. 19).
Petitioner alleges that HCS is not appropriate for the student due to the lack of a formal social skills training program. I disagree. Rather than a direct social skills program, HCS combined students with complementary temperaments and similar interests and encouraged their interaction (Tr. p. 573). The headmaster of HCS stated that social skill practice is a "constant" in that the students are always with each other as they go from class to class, and students eat meals together (Tr. pp. 577-78). He further characterized the students' social interaction practice as "probably the most important or close to the most important thing going on" (Tr. p. 578). The headmaster of HCS opined that the student's constant immersion in social practice versus a social skills class is "absolutely essential" and that "real interaction is much more powerful, including the fact that it's many more hours a day than social interaction classes. I would say that's perhaps the most important thing of all for [the student]" (Tr. pp. 575-76).
The record reflects that along with adult guided game situations, HCS offered other opportunities for the student to learn social skills (Tr. pp. 568, 570, 572-82; Parent Exs. 8-I, 8-J). Students ate together daily with adults who provided redirection to elicit socially appropriate behavior (Tr. pp. 572, 579-80) and participated in formal dinners on Sunday nights where they practiced serving one another (Tr. pp. 598-600). The record supports the impartial hearing officer's conclusion that HCS met the student's social skill needs.
In his finding that HCS offered an appropriate program, the impartial hearing officer pointed out that the student received academic instruction "on an intense and almost individual basis, in a setting that also permits immediate attention and redirection of inappropriate behaviors" (IHO Decision, p. 20). The student's classes contained two to five students and "tried to follow" a standard seventh and eighth grade curriculum, with the understanding that "it's more important to keep the students within the class than it is to quickly get all the way through" (Tr. p. 567). The headmaster of HCS stated that the student's classes move slowly with both pressure and flexibility for subjects such as writing (Tr. p. 567). Daily study halls consist of one teacher and "a couple" of other students, with nightly study halls conducted in each dorm (Tr. pp. 567, 571-72). The headmaster of HCS testified that the student did seek out interaction with his teachers, and the small class size allowed for the student to be able to be redirected without disrupting the class (Tr. p. 595). He further indicated "[the student] responds to redirection, but it's because we have the time to redirect and he's used to it" (Tr. p. 595).
The headmaster of HCS stated that the student exhibited needs in the area of "prescholastic" skills, such as settling down, attempting to do work, and taking an interest in whether schoolwork was done (Tr. p. 583). He testified that during the beginning of the school year, the student's dorm parent spent virtually all study periods tutoring the student and providing redirection in order for the student to "sit down and think about schoolwork" (Tr. p. 571). However by the time of the impartial hearing in June 2005, the student did not require as much support (Tr. pp. 571-72, 582-83). The headmaster of HCS stated that initially, the student accomplished virtually no homework, but by the end of the school year, he was accomplishing more than he had accomplished previously (Tr. p. 623).
The student began the 2004-05 school year as an eighth grade student, but his designation was changed to "ungraded" in October 2004 (Tr. p. 615). The headmaster of HCS explained that ungraded students work within the same courses, assignments and tests as students who have been designated a particular grade; however, the ungraded designation allowed the school to develop the best program for the student (Tr. p. 614). He further explained that the student's designation as ungraded did not affect the classes that he attended or the schoolwork he was assigned (Tr. p. 615). The headmaster of HCS indicated that the student's designation as ungraded enabled HCS staff to adapt the program to his needs (id.).
The headmaster of HCS stated that the student arrived with very low test scores, significant gaps in his learning and an active dislike for reading (Parent Ex. 8-J). The headmaster testified that student's IQ scores were much lower than those of the rest of the HCS student population and the student was considered "far behind" scholastically (Tr. pp. 559-60). The record reflects that the student did make some degree of progress while at HCS (Parent Exs. 8-I, 8-J). The student was administered the Stanford Achievement Test in September 2004 and April 2005 (Parent Ex. 8-I at p. 9). The student demonstrated an increase in his total math percentile score from 8th to 32nd, an increase in total reading percentile score from 34th to 54th, and an increase in total language percentile score from 22nd to 30th between the two administrations (Parent Ex. 8-I). Although if considered an eighth grader he would most likely be receiving D's or F's, the headmaster of HCS testified that the student made progress since entering the private school (Tr. pp. 584-85). For example, the student made progress in his understanding of numbers related to improving basic math skills (Tr. p. 584). He also reported that although the student required much assistance with writing basic sentences, he wrote almost not at all in the past, and at HCS wrote letters home and notes in class (Tr. pp. 584-85).
Following her May 2004 assessment of the student, the independent clinical neuropsychological evaluator made specific recommendations (Dist. Ex. 57 at pp. 11-12), one of which was that the student would do best in "a structured but flexible and supportive environment where routine, modeling, feedback and positive reinforcement are built into the learning process" where "new learning can be reinforced across multiple settings (e.g. classroom, social and home)" (Dist. Ex. 57 at p. 11). She also recommended that "integrated social skills training" be built into his daily academic program (id.). The testimony of the headmaster of HCS reflected that this was the learning environment that the student was exposed to at HCS (Tr. pp. 576-82). The neuropsychologist's report also recommended that "behavioral requirements be stated explicitly" to the student, which was a technique used by HCS staff in the form of "adult modeling, by clear expectations, predictability and by constant reminders" (Dist. Ex. 57 at p. 11; Tr. pp. 587-88).
The clinical neuropsychologist also recommended that the student receive remediation in certain academic areas (Dist. Ex. 57 at p. 11). The headmaster at HCS testified that all academic instruction the student was receiving was remedial due to the small class size, slow pace and redirection (Tr. pp. 566-67). He noted that the student responded to redirection (Tr. pp. 595-96). Narrative teacher reports indicated that the student's progress was variable; however many teachers commented that he had demonstrated improvement in his ability to take notes, complete homework and improve basic skills (Parent Ex. 8-I at pp. 8, 11). The headmaster at HCS stated that although his schoolwork remained weak for his age and grade, by the end of the 2004-05 school year, the student's basic school habits had steadily grown (Parent Ex. 8-J at p. 3).
Prior to enrolling their son, respondents had contacted the headmaster of HCS by telephone to discuss the student (Parent Ex. 7-F). On August 12, 2005 the headmaster wrote a letter to respondents, which included information about the school and indicated "your son sounds like a boy who might thrive at Hampshire County School" (id.). On August 25, 2005, the headmaster met with the student and his mother (id.). According to the headmaster's testimony, the visit consisted of discussion with the student and parent and a tour of the school (Tr. pp. 555-57). The headmaster of HCS stated that he expressed concerns that although the student "temperamentally and behaviorally" was a very good match, the student did not exhibit the very high ability that most of the students at HCS exhibit (Tr. p. 559). He further testified in response to the respondents' questions:
And my question was with [the student], even though socially and behaviorally and in terms of the nurturing that he needed, and so forth, we would be an excellent program, even with all of that, I was not certain whether scholastically he would blossom here in the way we like to look for with youngsters. I didn't have any concern that it would be a disservice to him, because I know our ability to adapt once we accept the youngster, we're tremendously committed and we adapt to whatever we need to. But in dealing with you as a prospective parent, I wanted to be sure that you knew that you were taking a certain risk here. And that if your goal was to be sure that we had a learning disabilities educational program or that we would be specifically highly skilled in improving handwriting, or some of the other academic deficiencies, that I would expect those would improve but I would not want to give guarantees that we would be able to fulfill any high desires in those areas. I believe those were the major and primary concerns we had. And I think I was probably pretty clear and straightforward about any questions I had in that area (Tr. pp. 560-61).
The headmaster indicated that although his approach to accepting a student was a conservative one, he made the decision to accept the student for enrollment during the August 25, 2004 meeting (Tr. pp. 558-59).
The student's mother testified that during the time the CSE was attempting to find a placement for the student, she continued to search for an appropriate program for the student that would meet his needs (Tr. p. 960). She stated at the impartial hearing that during the visit with HCS, she believed the headmaster seemed to understand her son, had extensive experience with PDD and NLD, and understood her son's needs and how to teach him (Tr. p. 962). She stated that respondents made the decision on August 26, 2004 that HCS "sounded like an appropriate school" for the student (Tr. p. 962).
Based upon the foregoing, I concur with the impartial hearing officer and find that the program selected for the student for the 2004-05 school year was appropriate to meet the student’s special education needs (see Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).
The final criterion for an award of tuition reimbursement is that respondents' claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. 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 ). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).
Petitioner contends that the impartial hearing officer erred in finding that the equities weighed in favor of respondents. Specifically, petitioner asserts that the impartial hearing officer erred in finding that petitioner had provided verbal and written notice more than ten days before the student was placed at HCS and in finding that respondents cooperated with petitioner with respect to the intake process for state approved residential placements for 2004-05. Petitioner argues that respondents' failure to participate in the intake process directly precluded the CSE's ability to develop an appropriate IEP.
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][C][iii]; see Mrs. C., 226 F.3d at 69 n.9). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][C][iii][I], 1412[a][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e]). Under 20 U.S.C. § 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary (Application of a Child with a Disability, Appeal No. 04-071; Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054) (see 20 U.S.C. § 1412[a][C][iv][IV]). The cost of reimbursement may not be reduced or denied for failure to provide notice if compliance with the notice requirements (20 U.S.C. § 1412[a][C][iii][I]; 34 C.F.R. § 300.403[d]) would likely result in physical or serious emotional harm to the child (20 U.S.C. § 1412[a][C][iv][II]; 34 C.F.R. § 300.403[e]).
Nevertheless, 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. 05-075; 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). Petitioner's Coordinator of Student Placement testified that an intake process must be concluded before the CSE can make a recommendation when an out-of-district placement is considered (Tr. pp. 103-04). In addition, she testified that if a student does not participate in the intake process, the out-of-district placement would not accept the student (id.). In the present case, the record reflects that neither respondents, nor respondents' son, attended the intake interviews scheduled at the two potential state-approved residential placements. Furthermore, the record reflects that respondents knew about the interview dates at these two potential state-approved residential placements because personnel from each facility contacted respondents, directly, to either advise of the interview date or to schedule the interview date (Dist. Exs. 75, 77).
Contrary to the impartial hearing officer’s conclusion, the 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. 05-075; 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 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; 20 U.S.C. § 1412[a][C][iii][II-III]; 34 C.F.R. § 300.403[d][2-3]; 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]). Equitable principles dictate that parents cannot deliberately withhold their child from an evaluative 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, respondents' actions of failing to attend scheduled intake interviews with their son are strong evidence that equities would not favor an award of tuition reimbursement. Given the actions of the parents in not making their son available for intake interviews in August 2004 after they were clearly aware that residential placements were being considered by the CSE, I find that in this instance, equities do not support 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. 05-075; Application of a Child with a Disability, Appeal No. 03-025).
I have considered petitioner's and respondents' remaining contentions, and I find them to be without merit.
THE APPEAL IS SUSTAINED.
Albany, New York
January 13, 2006
PAUL F. KELLY
1 Although some exhibits contained in the record indicate that the student was diagnosed with Asperger's Disorder, the May 2004 IEE report stated that he did not meet the DSM IV criteria for Asperger's Disorder (Dist. Ex. 57 at p. 11; Tr. p. 704).
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.