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

 

No. 05-117

 

 

 

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

 

 

Appearances:
George Zelma, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel

 

DECISION

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

At the time of the impartial hearing, which began on June 7, 2005, petitioner's son was 17 years old and attending 11th grade at Marvelwood where he had been unilaterally placed by petitioner. Marvelwood 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's eligibility for special education programs and services as a student with a learning disability (LD) is not in dispute in this appeal (8 NYCRR 200.1[zz][6]).  The student has identified deficits in executive functioning, as well as slow processing speed and an attention deficit disorder (ADD) which affect his ability to organize himself, stay on task, communicate in written work and make progress in math.  The student also has a history of depression, first identified when he was in fifth grade, and is described as having a tendency to withdraw when he becomes overwhelmed (Parent Ex. C at p. 2).

When the student was three years of age petitioner placed him in nursery school (Tr. p. 48).  The director of the nursery school recommended testing because  "whenever there was a lot of language involved [the student] would retreat into a corner" (id.).  Petitioner reported that when her son was three and one-half years of age he could barely speak or comprehend speech (Parent Ex. C at p. 1).  Testing by a speech pathologist while the student was in nursery school determined that he had a moderate expressive and receptive language disorder and a speech therapist recommended a specialized nursery school program (Tr. p. 48).    Respondent's Committee on Preschool Special Education (CPSE) placed him in a small, intensive program for children who had difficulty expressing themselves (Tr. pp. 48-49).  Additionally when the student was three and one-half years old, petitioner placed him in private language therapy which he received at least two times per week until the age of ten (Tr. p. 49).  When he entered kindergarten for the 1992-93 school year, respondent's Committee on Special Education (CSE) placed the student in a modified instructional program (MIS-IV) in respondent's P.S. 75 (Tr. p. 50).  Petitioner described it as a program for high functioning LD students and indicated that it incorporated a significant amount of language therapy (id.).  The program was a three-year program, from kindergarten to second grade and petitioner reported the student did very well (id.).  At the conclusion of the student's participation in the program, the CSE recommended that he be placed in general education with support services and although he repeated second grade, petitioner reported that throughout elementary school the student functioned very well (id.).

Petitioner noted that the student had dysgraphia and that during elementary school the student received various supports including resource room and occupational therapy (OT) (Tr. p. 50).  Private tutors were provided by petitioner (id.).  Petitioner testified that in fourth grade during the 1997-98 school year, the principal in respondent's school had recommended a computer for the student and that the student's occupational therapist had told petitioner that the student needed the computer due to difficulty in writing (id.).  Petitioner indicated that an assistive technology evaluation was conducted and the CSE determined that the student should be provided with a computer (id.).  Petitioner reported that the computer was not provided, that she had requested an impartial hearing and that the impartial hearing officer ordered that the student be provided with a computer for the 1998-99 school year (Tr. pp. 50-51).

A report from an August 2004 private neurological evaluation of the student noted that petitioner's son had been treated for depression since fifth grade, for ADD since the age of six, and that he had been prescribed various medications and had participated in psychotherapy to address both the depression and ADD (Parent Ex. C at p. 2).  It was noted that as of the date of the evaluation, the student was no longer taking medication (id.). 

The student entered middle school at respondent's I.S. 44 in September 1999 (Tr. p. 51). He remained classified as LD and received OT, counseling and resource room services (id.).  A new computer was requested by petitioner because the original computer was reported to be obsolete (Tr. p. 52).  Based upon the recommendation of the student’s occupational therapist, petitioner submitted a written request for the new computer and was referred to the CSE (id.).  An OT evaluation was conducted during the 2001-02 school year, and the occupational therapist submitted to the CSE information recommending a new computer, but at that time the student was graduating from middle school and petitioner was told she would have to wait for the computer (id.). For the 2002-03 school year, the student was enrolled in respondent's general education program at Beacon High School (Beacon) where petitioner reported that the student continued to receive services but "struggled terribly"  (Tr. p. 53).  Petitioner testified that the student "was not understanding his assignments. He was not beginning them as he should nor carrying through…there were many occasions reported to me where he withdrew.  He was in a fog.  In some classes he would simply put his head down on the desk" (Tr. pp. 53-54).  Petitioner testified that the student's grades started to fall during his first year at Beacon (Tr. p. 55).  Petitioner testified that the student's English teacher in ninth grade at Beacon indicated that the student needed constant refocusing and attention that he could not receive in a class of 34 students at Beacon (Tr. p. 56).   

The record reflects that the student's tenth grade teachers at Beacon noted his difficulties in their October 2003 Student Progress Reports  (IHO Ex. v).  In a report completed by the student's English teacher, he indicated that the student needed close one to one attention and "regular supervision of day to day assignments until he could start structuring his time better and getting down to business on his own" (IHO Ex. v, English Report).  The student's English teacher commented further that the student needed improvement in his organization of thoughts on paper and that he had poor fine motor use and needed assistance with note taking and using scissors (id.).  He also stated that the student would become frustrated and give up, and had attention lags and a low energy level (id.).  The student's Biology teacher noted that the student needed to improve his organizational skills and participate in class (IHO Ex. v, Biology Report).  The Biology teacher further noted that the student seemed "sluggish and tired" and often distracted in class (id.).  The student's History teacher indicated that petitioner's son was often unfocused in class and needed to work at a higher level (IHO Ex. v, History Report).  A report from the student's Math teacher noted that the student needed to focus more during class  (IHO Ex. v, Math Report).  The student's mother opined that the classes at Beacon were too large for her son and that he needed a more individualized program and "more attention than a class of 34 could afford him" (Parent Ex. C at p. 3).

According to an individualized education program (IEP) developed by respondent's CSE on January 14, 2004, the student was often unfocused and when confronted with difficult tasks either gave up or "shut down" (Parent Ex. M at p. 4).  Goals on the January 2004 IEP included: reading to understand meaning; writing for effective communication; improving fine motor skills; increasing focusing behavior, improving organization skills and improving time on task behavior (Parent Ex. M at pp. 6, 6.3).  The January 2004 IEP also specified needs in the areas of mathematical calculations and algebraic equations (Parent Ex. M at pp. 3, 7).

At the end of the 2003-04 school year, when the student was in tenth grade, he achieved final grades of B in English, D in Math, D in Science and D in History (id.).  

The record reveals that petitioner had arranged for private neuropsychological evaluations of her son when he was four years old and again when he was 14 years old (Parent Ex. C at p. 1).  The private neuropsychologist (neuropsychologist) conducted a re-evaluation in August 2004 when the student was 16 years, 11 months old and had completed tenth grade at Beacon (id.).  The neuropsychologist testified that in her August 2004 evaluation she found that, while the student was in attendance at Beacon, he had problems with executive functioning (Tr. p. 36).  She stated that he had difficulty "just being able to organize and stay on top of his work" and he was "lost in the shuffle" (Tr. p. 36). She opined that, consistent with his diagnosis of ADD, if not provided a lot of structure, the student had trouble organizing himself, keeping track of assignments and maintaining consistent effort (Tr. pp. 36-37).

The neuropsychologist concluded that the student's ADD affected his executive functioning, and caused the student to have difficulty when assignments were not very well structured and/or he was not given step-by-step directions on how to proceed, and that the student had trouble initiating his work (Tr. pp. 37-38). The neuropsychologist testified that the student was capable of difficult work but his ADD interfered and resulted in difficulty with getting logical production on paper (Tr. p. 41; Parent Ex. C at p. 7).  She further noted that the student's slow processing speed, which was also a function of his ADD, caused him to experience difficulty in Math (Tr. p. 42; Parent Ex. C at p. 8) and opined that if the student's needs in these areas were not met, secondary emotional problems might develop (Tr. pp. 42-43). 

The neuropsychologist recommended a small class as an appropriate program for the student so that teachers could provide structure, and follow his work to ensure that he kept pace (Tr. pp. 43-44).  She also suggested that a small class would enable teachers to do more work within the classroom to address the student's study skills and encourage more efficient approaches to his work (Tr. p. 44).  She noted that in larger classes the student would become vulnerable to his depression, and would give up and withdraw (Tr. p. 45).  The neuropsychologist opined that given the student's needs, a small class size was required to enable him "to receive the benefits of educational instruction" (Tr. p. 44).  The neuropsychologist's conclusions were consistent with the opinions expressed by some of the Beacon teachers in their Student Progress Reports which indicated that the student was not benefiting from the instruction in the large class setting or benefiting from his support services (IHO Ex. v, English Report at pp. 2-5; History Report at pp. 1-2; Math Report at p. 2). In her 2004 evaluation report the neuropsychologist recommended that the student "be in a school setting with small classes and support to complete his assignments.  His attention span and it's (sic) impact on school functioning requires ongoing monitoring." (Parent Ex. C. at p. 10).

By letter dated August 16, 2004 petitioner notified respondent that she was withdrawing her son from Beacon and enrolling him in Marvelwood for the 2004-05 academic year (Parent Ex. F).  In September 2004, petitioner placed her son at Marvelwood and by letter dated April 27, 2005,1 petitioner requested an impartial hearing asking for reimbursement for the private placement tuition due to an alleged failure by respondent to offer an appropriate educational program (Parent Ex. A). 

In an amended impartial hearing request dated June 8, 2005,  petitioner added a request for reimbursement of the cost of privately obtained assistive technology equipment for the 2004-05 school year (Parent Ex. A1).

The impartial hearing was held on June 7 and July 13, 2005 (IHO Decision, p. 3).  In a decision dated October 12, 2005, the impartial hearing officer denied petitioner's request for tuition reimbursement (IHO Decision, p. 8).  The impartial hearing officer found that respondent failed to provide the student a free appropriate public education (FAPE), as conceded by respondent (IHO Decision, p. 6).  The impartial hearing officer did not find that the program obtained by petitioner for the student was calculated to ensure educational benefit for the student (IHO Decision, p. 7).  Although she stated that she did not need to reach the issue of a balancing of the equities, she noted for the record that petitioner acted in good faith and cooperated fully with respondent at all times (IHO Decision, p. 8).  The impartial hearing officer denied without prejudice petitioner's request to be reimbursed for the cost of a computer and ordered the CSE to conduct an assistive technology evaluation to consider the student's need for a computer (id.).

On appeal, petitioner contends the impartial hearing officer erred in denying her request for tuition reimbursement.  Petitioner further asserts the impartial hearing officer erred in declining to order reimbursement for the replacement laptop computer that petitioner had purchased for her son. 

A purpose behind the 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][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [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]; 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 [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. 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 [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 a FAPE occurs when procedural inadequacies 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).  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]).

The impartial hearing officer found it "undisputed that [the student] presents significant language issues and needs a small class size and other supports to benefit from education" (IHO Decision, p. 6).  She also found it undisputed that respondent had failed to provide a FAPE for the student and therefore did not "enumerate the multiple failures of the DOE in this regard."  The impartial hearing officer noted: "[t]he DOE put on no witnesses, and entered no exhibits to show that [the student] had been given a free appropriate public education (FAPE) by the DOE.  The district representative, admitting that the DOE had not provided a FAPE, expressly waived the 'Prong I' issue of a Burlington/Carter analysis," I see no reason to disturb the impartial hearing officer's finding and I agree that a FAPE was not offered to petitioner's son.

Petitioner had the burden of proving that the services to be provided to her son at Marvelwood were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).  Parents are not held as strictly to the standard of placement in the least restrictive environment (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]).  

In testimony, the director of studies at Marvelwood described the school as a private college preparatory residential school for grades nine through twelve (Tr. p. 19).  He stated that it provided individualized attention in small classes for college-bound students who had been unsuccessful in larger institutions (id.).  He described a typical class size as eight to ten students with the student population consisting of approximately 150 students (Tr. pp. 19, 20).  He described the school program as consisting of six classes per day, including Saturday classes (Tr. p. 22). He also described a unique program component at Marvelwood, consisting of a mandated evening study hall for two hours each evening, where the students could obtain assistance from their teachers while completing assignments or studying (Tr. p. 23).  The director stated that all of the teachers in the school are college graduates, some teachers at Marvelwood have advanced degrees in education and some have degrees in special education (Tr. p. 20).  He testified that about one third of the student population had IEPs from their previous school districts and were enrolled in Marvelwood's Skills Program (id.).  The director described Marvelwood's Skills Program, as a one-on-one tutorial that was tailored to the individual student's needs which met one period per day (id.).  He testified that petitioner's son was enrolled in this program and received assistance in writing and organization for his U.S. History and English class (Tr. pp. 20-21).  He stated that the Skills Program was helpful for the student because "according to the IEP he came with, he does have some learning disabilities, possible attention deficit disorder," and that petitioner and the clinical psychologist who conducted the neuropsychological evaluation of the student in October 2001 "felt that it would be a more appropriate environment for [the student] to work in" (Tr. p. 21).  The director stated that the student had made some progress but was still in need of the support provided by the Skills Program (id.).  He agreed that the student needed to be monitored, refocused and redirected during the course of a typical school day in order to receive the benefits of instruction and stated that this was specifically mentioned in his IEP (id.).  When the issue of LRE was raised at the impartial hearing, he agreed that the student needed the environment, the level of intervention and the class size he had described in order to receive the benefits of instruction (Tr. pp. 24-25).

            The Marvelwood director of studies testified that teachers at Marvelwood developed their own plans of instruction for inattentive students and that the individual education plan for the Skills Program was shared with the teachers, who followed the recommendations in the plan (Tr. pp. 27-28).  The individual education plan developed at Marvelwood for the student consisted of "a testing profile, a discussion of test scores and classroom observation, and an education plan for the improvement of the student's skills." (Parent Ex. H. at p. 1).  The student's skills tutor at Marvelwood indicated that petitioner's son was placed in the program to assist him with "organization including help with completing his assignments when under pressure, learning strategies to aid reading comprehension, and assisting him with written assignments" (Parent Ex. H at p. 2).  He noted that the student attended this program daily for one hour and also met with his skills tutor during the evening study hall (id.).  The skills tutor indicated that the student's attention and ability to sustain his effort were not consistent (id.).  The skills tutor also noted that the student would be taught strategies for test-taking, including cumulative preparation using teacher prepared study guides, and strategies for taking class notes (Parent Ex. H at p. 3).  The student would also be taught the "Landmark College technique SQ4R" method for taking notes from text and lectures (id.).  The student's would be developing executive skills by learning strategies for reading comprehension as well as organization of his writing (id.).  The skills tutor indicated that petitioner's son would practice and utilize those skills in his classes and his assignments so that he could appreciate their value (id.).  He noted that the student had difficulty writing formally and was often limited or unable to convey his ideas because he relied upon simple sentences  (id.).  The skills tutor would also assist the student by breaking down the overall topic to smaller questions so he was able to see how questions related to the events he had studied (id.).  Grammar would be presented using the student's content course assignments as a platform for introducing the various elements of grammar and their use, supplemented by exercises from a grammar and composition textbook (id.).  The skills tutor expected that this would provide the student with a better understanding of sentence structure and grammar and that he would apply that understanding in his assignments (id.).  He also developed individual goals for the student to address his needs (id.). These included goals to: improve organization of time and materials; improve reading comprehension; improve written expression and composition skills; develop encoding and decoding skills; improve understanding of mathematical concepts; and provided for extra time to be spent on all standardized and classroom tests and assignments (Parent Ex. H at pp. 4-5).

The student's teachers at Marvelwood completed individual reports of the student's progress for the fall term of the 2004-05 school year, which described their provision of individualized instruction to him during the fall of the 2004-05 school year (Parent Ex. G). The student's English teacher indicated that she had to break up longer material into manageable components (Parent Ex. G at p. 2).  She also noted that the student's mind sometimes "wandered" during class and he became absorbed with maps that she had hanging on the wall (id.).  The teacher noted that she could easily redirect the student and she indicated that petitioner's son was a hard worker (id.).  The student's Spanish teacher noted that the student had difficulty memorizing vocabulary but his journal was "fabulous" and he was working hard (Parent Ex. G p. 3).  The student's Algebra teacher noted that the student "spaces out" and needed to be focused with a question (id.).  She indicated that he worked hard and was improving but needed to work on his "daydreaming" (id.).  The student's Science teacher reported that she worked with the student in self-monitoring and asking for help before the teacher checked on his progress. (Parent Ex. G at p. 4).  The teacher reported that she "touched base with him every 10 to 15 minutes" to see if he was "lost and needed to be jump-started"  (id.). 

Petitioner testified that her son's English teacher at Beacon had indicated that the student needed constant refocusing and that he could not get the attention he required in a class of 34 students, which was the size of the student's class at Beacon (Tr. p. 56).  Teacher reports generated at the end of the student's first semester at Beacon stated that the student needed improvement in organizing his thoughts, needed supervision of day-to-day assignments, and needed to focus during class (IHO Ex. v, English Report at pp. 2, 5; Math Report at p. 3).  Moreover, the student's neuropsychologist recommended a small class so that teachers could provide structure, follow his work, and see to it that he kept pace (Tr. pp. 43-44).  Marvelwood was approprite for the student’s needs by offering him individualized attention in small classes.  The director of studies at Marvelwood testified that the program the student was receiving was necessary to meet his needs.  The study skills teacher indicated that the student was placed in the program to assist him with his organization, including help completing his assignments, learning strategies and receiving assistance with written assignments (Parent Ex. H at p. 2).  These skills are consistent with the student's needs as specified in respondent's IEP (Parent Ex. M at pp. 4, 6).  The record reveals that Marvelwood had offered and developed and implemented a program that was appropriate to meet the student's educational needs as identified by respondent's CSE, the neuropsychologist and the staff at Marvelwood.  I 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 impartial hearing officer determined that Marvelwood was not the LRE because she concluded that the student was not attending classes with regular education students and was in a skills class for students with IEPs; because the school was characterized as "isolated”; and because it was a residential facility (IHO Decision, p. 7).  The record does not support the finding pertaining to class placement and class composition.  A review of the record indicates that a third of the population at Marvelwood has IEPs and that, with the exception of a skills class for one period a day, the student receives instruction with disabled and non-disabled students all day (Tr. pp. 20-21; Parent Ex. H at pp. 2-5). 

            Respondent contends that petitioner should not be awarded tuition reimbursement because petitioner cannot show that her son required a residential placement. While parents are generally not held as stringently to the LRE requirement of the IDEA as school boards are (M.S. v. Yonkers, 231 F.3d 96, 105 [2d Cir. 2000], cert. denied 532 U.S. 942 [2001]; Cleveland Heights-University Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir. 1998]), 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., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 03-012). Marvelwood is not a school exclusively for students with disabilities.  Approximately one third of its students are in the Skills program and have IEP's (Tr. p. 20).  The director testified that for students enrolled in the Skills program, one of the six daily academic blocks would be a one on one tutorial tailored to the student (id.).  There is no indication in the record that the student would not have the opportunity to interact with non-disabled peers. 

As for the non-residential component of the program, it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his educational program (Walzak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 01-083).  Where a residential component is not required, a school district is not obligated to pay for that portion of costs (see, e.g., Muller v. Committee on Special Educ. of East Islip Union Free Sch. Dist., 145 F.3d 95, 105 [2d Cir. 1998]; Application of a Child With a Disability, Appeal No. 03-062). In the instant case, petitioner requests reimbursement only for the non-residential component of the tuition and therefore, reimbursement for the cost of the residential component is not in contention.

The final criterion for an award of tuition reimbursement is that petitioner’s 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 [1985]). 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).  In the absence of evidence demonstrating that petitioner failed to cooperate in the development of the IEP or otherwise engage in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).  In the instant case, respondent does not contend that petitioner should be denied reimbursement on equitable grounds; therefore I need not address the issue.

Finally, petitioner requests reimbursement for the cost of a computer for her son and asserts that the assistive technology was recommended on his current IEP.  The IEP lacks specificity as to the need for a computer and no evidence was offered of any assistive technology evaluation or specific current need for a computer. I concur with the impartial hearing officer’s denial of reimbursement for the computer. 

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent shall reimburse petitioner for the cost of her son's non-residential tuition and Skills program at Marvelwood for the 2004-05 school year upon petitioner's submission of proof of payment for such expenses.

 

Dated:

Albany, New York

 

__________________________

 

January 12, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

On appeal respondent does not object to the adequacy or timeliness of the notice provided by petitioner advising that the private placement was intended to be at public expense (see 20 U.S.C. § 1412[a][10][C][iii]).  I therefore decline to address this issue.

2  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

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

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

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

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

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

20 U.S.C. § 1401[8]; see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].