The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-014

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Rocky Point Union Free School District

 

 

Appearances:
Neal Howard Rosenberg, Esq., attorney for petitioners

Hamburger, Maxson, Yaffe, Wishod, Knauer & Rothberg, LLP, attorney for respondent, David H. Pearl, Esq., of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Forman School (Forman) for the 2004-05 school year.  The appeal must be dismissed.

            At the commencement of the impartial hearing in July 2005, petitioners' daughter was 15 years old (Tr. p. 315), attending the ninth grade at Forman (Tr. p. 317) where she had been unilaterally placed by petitioners (Tr. pp. 341-42) and classified as a student with a learning disability (LD) (Dist. Ex. 6 at p. 1).  Forman is a private school located in Litchfield, Connecticut (Tr. p. 317) that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7) (Tr. p. 412).  The student's eligibility for special education services and her classification (see 8 NYCRR 200.1[zz][6]) are not in dispute in this appeal.

            Petitioners' daughter experienced unspecified problems in preschool (Tr. p. 9).  She attended respondent's elementary school where in first grade she reportedly received reading support (Tr. pp. 8-9).  The student repeated first grade at a private school and returned to respondent's school district in second (Tr. p. 10) or third grade (Tr. p. 316). In elementary school, the student was classified as LD and recommended for resource room services (Tr. pp. 11, 316).  While petitioners' daughter was in elementary school, a special education teacher from respondent's school district provided the student with private tutoring services (Tr. pp. 9, 316, 353, 479-81). Petitioners paid for the private tutoring (Tr. pp. 354, 361, 480-81).

            In April 2002, during her sixth-grade year, the student was administered the Wechsler Individual Achievement Test (WIAT) (Dist. Ex. 12).  The student's performance on the WIAT yielded the following standard scores relative to the student's academic achievement:  basic reading 95, spelling 89, reading comprehension 108, math reasoning 96, numerical operations 102, listening comprehension 97, oral expression 113 and written expression 91 (id.). The student's composite standard scores were as follows: reading 100, mathematics 99, language 109 and writing 87 (id.).

            Respondent's Committee on Special Education (CSE) met on May 17, 2002, and recommended that for seventh grade the student maintain LD classification and receive resource room services five times per week for 42 minutes (Dist. Ex. 16 at p. 2).  CSE meeting minutes indicated that the student was making progress toward her goals, but continued to have delays in reading and math (Dist. Ex. 16 at p. 7).  According to her 2002-03 individualized education program (IEP), the student had some difficulty with short- and long-term memory and understanding concepts (Dist. Ex. 16 at p. 11).  The IEP also indicated that the student was focused, that her comprehension was fair, that she was well prepared, and that she completed home and classroom assignments (id.).  No problems relative to the student's social or physical development were noted and the student did not have management needs that required support or supervision (Dist. Ex. 16 at pp. 11-12).  The CSE recommended individual testing modifications for the student which included administering a test to a small group in a separate location, reading directions to the student and extending by 50 percent the allotted time to complete a test (Dist. Ex. 16 at p. 13).  The student's 2002-03 IEP contained goals related to math reasoning, comprehension, study skills and written expression (Dist. Ex. 16 at pp. 15-16).

            A CSE subcommittee met on March 21, 2003, to develop the student's 2003-04 IEP for eighth grade (Dist. Ex. 17).  The subcommittee recommended that the student maintain her LD classification and receive resource room five times per week for 41 minutes (Dist. Ex. 17 at p. 3).  According to subcommittee meeting minutes, the student's scores on educational testing were in the normal range for reading comprehension, however, for most areas of mathematics her scores were significantly below the normal range (Dist. Ex. 17 at p. 4).  The student's performance on the Stanford Diagnostic Math Test (SDMT) yielded the following percentile scores: application 24th, computation 10th, number system 2nd and total math 8th (Dist. Ex. 17 at pp. 3-4, 6-7).  The student's 2003-04 IEP indicated: that she had some difficulty with short- and long-term memory, understanding concepts, and completing home and classroom assignments; that she attempted assigned activities and could perform them with assistance; that she was easily distracted, responded to cues, and required additional time to complete tasks; and that her comprehension was improving (Dist. Ex. 17 at pp. 7-8).  The recommended testing modifications were expanded to include the use of a calculator (Dist. Ex. 16 at p. 13).  The goals contained in the student's 2003-04 IEP were the same as the previous year (compare Dist. Ex. 17 at pp. 12-13, with Dist. Ex. 16 at pp. 15-16).  The student's mother signed a statement indicating that she was in agreement with the recommended program for the 2003-04 school year (Dist. Ex. 17 at p. 15).  She also acknowledged that she had been advised of her due process rights (id.).

            The student's June 12, 2003 seventh grade report card reflected the following grades for academic courses (final exams):  English D (48), Social Studies C- (55), Math D (41) and Science C+ (70) (Dist. Ex. 10).  Teacher comments contained in the report card indicated that the student had failing test grades and inconsistent test results, that she failed to do homework or that more effort was needed, and that she had missed or not completed her work.  The student's social studies teacher noted that she was making acceptable progress.

            In September 2003, at the beginning of the student's eighth grade year, an incident occurred in which petitioners' daughter was tripped by another student (Dist. Ex. 21; Tr. pp. 318, 465, 489-90).  The second student was suspended (Dist. Ex. 21).  Although the student's mother asserted that her daughter was subjected to ongoing bullying in seventh and eighth grades (Tr. pp. 317-18, 330-31), school administrators indicated that the issue had been resolved and that they were not aware of any additional incidents (Tr. pp. 456, 464-66, 490-91).  According to the assistant director of special education, the CSE was not apprised of any bullying (Tr. p. 493).

            During the 2003-04 school year,the student was offered additional help, but did not take advantage of her teachers' offers of assistance (Tr. pp. 190-92, 458-59, 469).  The student's mother was informed that her daughter was not completing her homework (Tr. pp. 182-83).  Although the student's mother  was reportedly invited to meet with her daughter's teachers, she did not do so (Tr. pp. 183-84 ).  Telephone logs contained in the record indicate that during the 2003-04 school year, the student's math teacher contacted or attempted to contact petitioners five times, twice in response to parent-initiated contact (Dist. Ex. 20; Tr. pp. 473-74).

            In January 2004, the Wechsler Individual Achievement Test- Second Edition (WIAT-II) was administered to the student, yielding the following standard scores: reading composite 79, mathematics composite 83 and written language composite 93 (Dist. Ex. 6 at p. 2).

            On March 8, 2004, the CSE subcommittee met for the student's annual review (Dist. Ex. 6).  When it convened on March 8th, the CSE was reportedly aware that the student had recently been referred for Academic Intervention Services (AIS) for Social Studies (Dist. Ex. 14) and Science (Dist. Ex. 13; Tr. pp. 121-22, 291-92).  The subcommittee was also aware of the student's second quarter grades which included Ds in Social Studies, Math, and Science, and a C in English (Parent Ex. A; Tr. pp. 120-21, 264-65).  The student's resource room teacher indicated that the student was not going for extra help and was too social (Tr. pp. 258, 458-59).

            For the 2004-05 school year, the student was classified as LD (Dist. Ex. 6 at p. 1).  The CSE subcommittee recommended that the student continue to receive 41 minutes of resource room five times a week (Dist. Ex. 6 at p. 1; Tr. p. 242).  In addition, the following testing accommodations were recommended:  test administered in small group in a separate location, directions read, use of calculator, extended time (1.5) and directions explained (Dist. Ex. 6 at p. 1; Tr. pp. 242-43).  The student's March 8, 2004 IEP indicated that she had a significant delay in attentional skills, that her rate of progress was inconsistent and that she required a multisensory instructional approach (Dist. Ex. 6 at p. 2).  According to CSE subcommittee meeting minutes, the student made progress during the 2003-04 school year, but continued to struggle with the curriculum (Dist. Ex. 6 at p. 3).  However there is no indication in the minutes or on the IEP of what progress was made, or whether she progressed toward meeting her IEP goals. The student's mother reported that math had been quite difficult for the student (Dist. Ex. 6 at p. 3; Tr. pp. 21-22, 135-36, 247, 270, 319-20).  The IEP generated by the March 8, 2004 CSE subcommittee included one goal and three objectives related to study skills, two goals and four objectives related to reading, and one goal and one objective related to math (Dist. Ex. 6 at p. 4).  Notes taken at the March 8, 2004 CSE subcommittee meeting indicated that the parent was in agreement with other committee members regarding recommendations for 2004-05 (Dist. Ex. 11).  In addition, the student's mother signed a statement acknowledging receipt of a copy of the procedural safeguards notice (Dist. Ex. 5) and consenting to the delivery of special education services recommended by the CSE subcommittee (Dist. Ex. 6 at p. 5; Tr. pp. 19-21).

            The student's June 25, 2004 eighth grade report card reflected the following grades for the student's academic courses (final exams): English C- (67), Social Studies D (53), Math F (52) and Science D (63) (Dist. Ex. 15).  Comments from the student's teachers indicated that she had failing test grades, had inconsistent effort/grades, and that the student was too social (id.).  Following receipt of the student's June 25, 2004 report card, petitioners decided to unilaterally place their daughter at Forman for the 2004-05 school year (Tr. pp. 22-23, 342).  Petitioners offered several explanations at the hearing for their decision to unilaterally place their daughter at Forman for the 2004-05 school year, including her poor academic performance (Tr. pp. 22-23, 317, 331) and problems with other students (Tr. pp. 80, 317).

            As part of the application process to Forman, the student's mother asked a former resource room teacher of the student to complete recommendation forms for English and mathematics (Parent Ex. B).  In the completed recommendations dated September 2, 2004 (Parent Ex. B at pp. 2, 4), the student's former resource room teacher indicated that the student's reading skills were below average for decoding and comprehension and also that her vocabulary, long-range retention, and self-confidence were below average (Parent Ex. B at p. 1).  In mathematics the teacher indicated that the student was below average in accuracy of computation, long-range retention, class attentiveness, organizational skills, leadership, self-confidence, reaction to frustration, and implementing suggestions (Parent Ex. B at p. 3).  The teacher noted that the student had a learning disability in math with some minor reading comprehension difficulties (Parent Ex. B at p. 4).  According to the student's former teacher, the student's recall skills were weak and long-term memory skills needed reinforcement (id.).

            On September 9, 2004, petitioners signed a contract enrolling the student in the residential program at Forman for the 2004-05 school year (Parent Ex. E; Tr. pp. 329-30).  During her first weeks at the private school, numerous standardized tests were administered to the student by Forman school staff (Tr. pp. 392-94).  On the Stanford Diagnostic Reading Test (SDRT) the student's scores were in the 24th percentile for  comprehension, 17th percentile for vocabulary and the 9th percentile for scanning (Parent Ex. F at p. 3).  On the Test of Word Reading Efficiency (TOWRE) her scores were in the in the 36th percentile for reading sight words and the 6th percentile for phonemic reading (id.).  On the Diagnostic Screening Test: Spelling the student achieved a grade equivalent score of 6.5 (id.).  On the Test of Written Language-3 (TOWL-3) the student achieved a score in the 4th percentile on contrived writing and in the 19th percentile on spontaneous writing (id.).    Her overall writing score on the TOWL-3 was in the 7th percentile (id.).

            In October 2004, the student's Strategies Instruction teacher at Forman developed a learning profile of the student (Parent Ex. F; Tr. pp. 389-91).  The profile identified the student's learning strengths as organization, creativity, and expressive language (Parent Ex. F at p. 1). The student's identified learning challenges included decoding and encoding (phonemic and sight), written expression, mechanics (punctuation, capitalization), math fluency (facts and sequences), memory, self-esteem, reading comprehension and vocabulary (id.).  The learning profile included the following long-range goals for the student to be addressed in her Strategies Instruction class: improve decoding (word recognition) skills, improve oral reading for decoding automatically, build self-advocacy skills, develop inferential/critical comprehension skills in literature, improve vocabulary skills, improve sentence writing skills, strengthen paragraph writing, improve memory skills and develop scanning skills (Parent Ex. F at p. 2).

            Documents from the private school indicated that during the 2004-05 school year the student made progress related to improving sentence writing skills, strengthening paragraph writing, improving memory skills, strengthening textbook reading, strengthening knowledge of the writing process, developing note taking skills from written material, developing paraphrasing skills, developing the five paragraph essay format and developing different forms of writing (Parent Ex. F at pp. 4-8).  She made little progress in her ability to recognize imagery (Parent Ex. F at p. 5).  The student achieved the following grades in her coursework (exams): Comparative Cultures C+ (90), English 9 B- (80), Integrated Math 1 C (60), Introduction to Science B- (55) and Strategies Instruction 1 A- (no final exam listed) (Parent Ex. D).  In a document dated June 1, 2005, the student's Strategies Instruction teacher outlined the student's academic needs for the next school year (Parent Ex. F at p. 9; Tr. p. 398).  Petitioners' daughter's needs included improving decoding (word recognition) skills, improving encoding (spelling skills), improving oral reading for decoding automatically, developing five paragraph essay format, developing inferential/critical comprehension skills in literature and developing inferential/critical comprehension skills in persuasive writing (Parent Ex. F at p. 9).

            By letter dated June 17, 2005, petitioners informed respondent that their daughter was enrolled in Forman and requested an impartial hearing for the purpose of obtaining tuition reimbursement for the 2004-05 school year (Dist. Ex. 1). A pre-hearing conference was held on July 19, 2005 (July 19, 2005 Tr. pp. 1-18).

            On July 20, 2005, the CSE met for the stated purpose of reevaluation/annual review (Parent Ex. C at p. 2).  As reflected on the student's July 20, 2005 IEP for the 2005-06 school year, administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-VI) in June 2005 yielded the following standard scores: Verbal Comprehension Index 85, Perceptual Reasoning Index 77, Working Memory Index 74, Processing Speed Index 97 and full-scale IQ score 78 (Parent Ex. C at p. 4).  Intellectual functioning was described as being in the borderline to low average range (id.).  The student's standard scores on the Woodcock Johnson III Test of Achievement (WJ-III ACH) were as follows: letter-word identification 82, passage comprehension 87, reading fluency 81, calculation 75, applied problems 81, math fluency 68, spelling 86, writing samples 88, writing fluency 90, story recall 85 and story recall delayed 100 (Parent Ex. C at p. 4).  The student was described as having overall weak skills with notable weaknesses in mathematics (Parent Ex. C at p. 5).  The July 20, 2005 IEP indicated that the student's rate of progress was inconsistent and that she required a multisensory approach (Parent Ex. C at p. 4).  The July 20, 2005 IEP indicated that the student had anxiety that could interfere with learning, that she had low self-esteem (Parent Ex. C at p. 4) and that she expressed a lack of self-confidence in  her academic achievement (Parent Ex. C at p. 5).

            The CSE recommended that the student continue to be classified as a student with LD and the committee's program recommendations for the student differed from previous IEPs (compare Parent Ex. C at p. 2, with Dist. Exs. 6 at p. 1, 16 at p. 12, 17 at p. 9).  For tenth grade, the CSE recommended placement in 15:1 self-contained credit bearing classes for English and Social Studies, integrated classes for Math and Science, (Parent Ex. C at pp. 2, 6) and a 15:1 special class for study skills (Parent Ex. C at p. 2).  In addition, social work counseling was recommended once per week to address the student's self-esteem and anxiety (id.).  The student's July 20, 2005 IEP contained goals and objectives targeting study skills, reading, writing, mathematics and social/emotional skills (Parent Ex. C at pp. 6-8).

            The impartial hearing commenced July 28, 2005 and concluded on October 28, 2005 after four days of testimony.  On January 10, 2006, the impartial hearing officer rendered his decision finding that the student's March 8, 2004 IEP, along with the recommended AIS, offered the student a free appropriate public education (FAPE) for the 2004-05 school year (IHO Decision, p. 2).  Although the impartial hearing officer determined that respondent offered an appropriate educational program to petitioners' daughter for the 2004-05 school year, he further found petitioners' request for tuition reimbursement would have been denied because the equitable considerations did not support their tuition reimbursement claim (IHO Decision, p. 3).  More specifically, the impartial hearing officer found that petitioners did not 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 did petitioners provide respondent with written notice of such information ten business days before such removal (IHO Decision, p. 3; 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]).  The impartial hearing officer found that petitioners notified respondent of their disagreement with their daughter's March 8, 2004 IEP by letter dated June 17, 2005, which was petitioners' impartial hearing request (IHO Decision, p. 3).  The impartial hearing officer did not make a determination as to whether the placement petitioners selected for their daughter for the 2004-05 school year was appropriate.

            On appeal, petitioners contend that the impartial hearing officer erred in determining that respondent offered an appropriate educational program to their daughter for the 2004-05 school year.  Petitioners further assert that Forman was an appropriate placement for their daughter and that equitable considerations support their claim for tuition reimbursement.

            A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 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][D]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]).2  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).   The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

            A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of 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, 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, 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 student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

            In their request for an impartial hearing, petitioners contended that respondent's recommended placement for the 2004-05 school year did not appropriately address the student's needs, as it was based on an invalid and inappropriate IEP (Dist. Ex. 1).  No claim regarding the validity of the IEP's procedural development was raised during the hearing or in petitioners' pleadings on appeal.  Petitioners contend that the impartial hearing officer erred in determining that respondent offered an appropriate educational program to their daughter for the 2004-05 school year and allege that the student's 2004-05 IEP was not reasonably calculated to enable her to receive educational benefit because it failed to adequately address the student's learning disability.  Petitioners further contend that resource room services provided to the student have only enabled her to make minimal educational progress.

            Petitioners argue that the student began to "go downhill" in seventh and eighth grade (Tr. p. 317).  The record reveals that in seventh grade the student scored significantly below the normal range on a standardized math test (Dist. Ex. 17 at pp. 3-4, 6-7).  She failed the final exam for Math 7 with a score of 41 and received a D as a final grade (Dist. Ex. 10).  The student failed two other final exams in Social Studies (55) and English (48) and received Cs and Ds in her other academic courses (id.).  The student's teachers commented that she had failing test grades and inconsistent test results, that she failed to do homework or that more effort was needed, and that she had missed or not completed her work (id.).  However, when the CSE subcommittee met on March 21, 2003 it continued to recommend the same special education services for the student for eighth grade, along with the same goals and objectives (compare Dist. Ex. 17 at p. 9 with Dist. Ex. 16 at p. 12).

            Although the student struggled in eighth grade, was performing poorly in her academic classes (Dist. Ex. 15; Tr. pp. 181-82, 209), was resistant to extra help (Tr. pp. 190-92, 458-59, 469) and her socializing with other students interfered with her academic progress (Tr. pp. 202, 205), the CSE subcommittee did not meet again until the student's annual review on March 8, 2004 (Dist. Ex. 6).  At the March 8, 2004 CSE subcommittee meeting, the subcommittee had the following information to consider prior to recommending a program for the student for the 2004-05 school year (ninth grade): the results of standardized testing, which revealed deficits in math and reading (Dist. Ex. 6 at p. 2); comments from the student's mother indicating concern regarding the student's academic performance (Tr. pp. 21-22, 247, 270-71, 319); knowledge that the student had recently been referred for AIS for Social Studies (Dist. Ex. 14) and Science (Dist. Ex. 13); and the student's second quarter grades which included Ds in Social Studies, Math, and Science, and a C in English (Parent Ex. A; Tr. pp. 120-21, 264-65).  In addition, the student's resource room teacher informed the subcommittee that the student was not going for extra help and was too social (Tr. p. 258).  The student's mother reportedly told the subcommittee that the student had been prescribed medication for anxiety (Tr. p. 22).

            According to respondent's director of special education, it was committee procedure to consider evaluations, including report cards, psychological evaluations, achievement testing, classroom reports, and parent reports when determining program services and that procedure was followed when developing the student's IEP  (Tr. pp. 91-92, 98-99).  The student's resource room teacher testified that in addition to achievement test results the subcommittee considered a student's grades and effort (Tr. p. 189).  Respondent's assistant director of special education indicated that the CSE subcommittee considered a child's performance relative to his or her IEP goals (Tr. p. 246).

            It is difficult to ascertain what academic progress the student may have made during the 2003-04 school year.  By all standards reportedly used by the CSE subcommittee, the student was performing poorly.  Her performance on standardized achievement testing confirmed deficits in reading and math (Dist. Ex. 6 at p. 2).  The student was not "doing well" in her academic classes (Tr. pp. 181-82), and at the time of the CSE meeting was receiving Ds in three of her academic subjects (Dist. Ex. 15).  According to the resource room teacher, the student's socialization in the classroom  disrupted other students and interfered with her academic progress (Tr. pp. 202, 206).  The record contains little testimony or documentary evidence related to the student's progress toward her IEP goals and objectives (see Dist. Ex. 6 at p. 4).  Furthermore, other than testimony indicating that the student was "passing" (Tr. p. 135) and a global statement on the student's 2004-05 IEP that the student had made progress (Dist. Ex. 6 at p. 3), there is little discussion of skills the student may have acquired or mastered during the 2003-04 school year.  By the end of the 2003-04 school year the student had failed Math (Dist. Ex. 15) and was recommended for additional AIS for Math and English (Tr. pp. 123-24).  The student was recommended for an almost identical program for the 2004-05 school year as the 2003-04 school year (compare Dist. Exs. 6 at p. 1, with Dist. Ex. 17 at p. 9).

            The record indicates that the student had attending problems (Tr. pp. 206, 208; Dist. Ex. 6 at p. 2), and although she was able to perform satisfactorily in the small group setting offered by the resource room, she had difficulty in her general education classrooms (Tr. pp. 208-09).  Her regular education teachers reportedly indicated that the student was social to the point of being disruptive (Tr. pp. 202, 206), that she was "very consumed with her friends" and talked a lot (Tr. p. 202) and that her socialization interfered with her academic progress (id.).  The student's resource room teacher characterized the student's social behavior as "atypical" because of the extent to which it interfered with her schoolwork  (Tr. pp. 204-05).

            The student's resource room teacher also attributed the student's poor performance to lack of effort (Tr. pp. 223, 227-29).  Although she acknowledged that the student benefited from the small group instruction provided in the resource room, the teacher stated that the student "needed to show and make an extra effort" before she would be considered for a more "restrictive" environment (Tr. p. 224).  The assistant director of special education further testified that it would not be appropriate to change the student's placement based solely on her social problems or failure to seek additional help (Tr. pp. 259-60). Significantly, however, the record demonstrates, to the extent that the student was offered additional help and failed to access it, or that her lack of effort and excessive socialization contributed to her poor performance, the CSE did not adequately evaluate her behavioral needs or add services or behavioral interventions to the student's IEP to address the behaviors which were increasingly impeding her learning (see 8 NYCRR 200.4 [d][3][i]).

            Additionally, according to the director of special education, math had always been a problem for the student (Tr. p. 139).  At the March 8, 2004 CSE meeting, the student's mother expressed concern regarding her daughter's performance in math (Dist. Ex. 6 at p. 3; Tr. pp. 247, 270, 319).  However, the student's IEP for the 2004-05 school year contains only one math goal with one objective related to understanding the language necessary to solve word problems (Dist. Ex. 6 at p. 4).  A variation of this objective appeared on the student's two previous IEPs (Dist. Exs. 16 at p. 15, 17 at p. 12).  The results of standardized testing (Standford) suggests that the student had more global math delays, including in the areas of computation and number systems, that would not be adequately addressed by the single goal on listed on the IEP (Dist. Ex. 6 at p. 4).

Accordingly, based upon the combined nature and number of the above mentioned inadequacies, I find that the record demonstrates that the student's March 8, 2004 IEP was not reasonably calculated to enable the to receive educational benefit and petitioners' daughter was not offered a FAPE for the 2004-05 school year3

            I must now consider whether the placement petitioners selected for their daughter for the 2004-05 school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student'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).

            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).  As for the non-residential component of a program, it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (Walczak, 142 F.3d at 122; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 03-062; 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).

            Forman is a college preparatory school for students with "learning differences" (Tr. p. 372).  Approximately 160 students attend the school, which is designed to serve students in grades nine through twelve (id.).  All of the students have learning differences (Tr. p. 373).  Of the 160 students enrolled in the school, 18 are day students and the rest are residential students (Tr. p. 373).  There are approximately ten students in a class at Forman (Tr. p. 375).  Students who are in their freshman and sophomore years are assigned to a Strategies Instruction class in the school's Learning Center (Tr. pp. 376-77, 384).  Strategies Instruction is described in the record as a one-on-one language training course in which the teacher focuses on the student's specific learning deficits and then works with the student to overcome those deficits (Tr. p. 376).  The school uses a variety of approaches to assist students, including Orton-Gillingham instruction for students who have severe decoding problems (Tr. pp. 378; 425-26) and University of Kansas paragraph writing strategies to assist students with writing difficulties (Tr. p. 378).  Classroom teachers are trained in University of Kansas content enhancement strategies (Tr. p. 381), as well as Schools Attuned and All Kinds of Mind strategies (Tr. pp. 386-87).  In some instances students are able to access extra help during daytime study halls or "Y-block," which is described in the record as an evening period "that can be used as further instructional time for students who are having difficulty" (Tr. pp. 404-06).

            At the beginning of the school year, Forman conducts a series of tests, both standardized and informal, to identify a student's specific learning needs (Tr. pp. 377-78, 392-94; Parent Ex. F at p. 3).  Based on the results of testing, the student's language training teacher generates a learning profile of the student, along with academic goals (Tr. pp. 389-91).  The learning profile is shared with the student's teachers (Tr. p. 390).  The language training teacher designs a curriculum specific to the student (Tr. p. 378) based on the goals (Tr. p. 391).

            According to Forman staff, one of the student's primary deficit areas was Reading (Tr. p. 379).  Specifically, the student was reported to have severe decoding deficits (id.), which affected her Reading fluency (Tr. p. 380).  Weaknesses were also evidenced in writing where the student had difficulty organizing her thoughts and using appropriate sentence structure (id.).  The student lacked basic study skills (id.).  The staff person from Forman acknowledged that the school did not use standardized tests to assess the student's math abilities (Tr. pp. 413-14).  The record does not demonstrate that the student's math skills were otherwise assessed.

            The learning profile developed for the student included the following long range goals for the student, to be addressed in her Strategies Instruction class: improve decoding (word recognition) skills; improve oral reading for decoding automatically; build self advocacy skills; develop inferential/critical comprehension skills in literature; improve vocabulary skills; improve sentence writing skills; strengthen paragraph writing; improve memory skills; and develop scanning skills (Parent Ex. F at p. 2).  Each of the goals was broken down into skill objectives that were assessed during the fall, winter and spring (Parent Ex. F at pp. 4-8; Tr. pp. 395-98).  Despite testimony from a Forman staff person that the private school addressed the goals and objectives contained in the student's 2004-05 IEP (Tr. p. 409), significantly there were no goals or skill objectives related to math, a primary area of need, contained in the student's learning profile (Parent Ex. F).  Although respondent's director of special education testified that the student was successful at the Forman School (Tr. p. 301), I find that the record does not demonstrate that Forman did offer a program to adequately address the student's needs related to her math deficits.  Moreover, the record does not demonstrate that such a restrictive, non-mainstream, out of state residential placement was necessary given this student's needs, therefore the placement at Forman was overly restrictive and was clearly not an appropriate placement (M.S., 231 F.3d. at 105).  

            The second criterion of the Burlington analysis has not been met (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 04-028).  Having so found, I need not determine whether the equities weigh in favor of petitioners, the third prong of the Burlington analysis (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 03-097).  However, in the instant case, I have reviewed the record regarding whether equitable consideration supports petitioners' claim for tuition reimbursement and find that the equities do not favor petitioners' claim for tuition reimbursement for the 2004-05 school year.  Even if I had found that Forman was an appropriate placement, I would accordingly be compelled to deny tuition reimbursement for petitioners' unilateral placement of their daughter at Forman for the 2004-05 school year based upon equitable considerations.

            The final criterion for an award of tuition reimbursement is that petitioners' 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; Application of a Child with a Disability, Appeal No. 99-80).

            Petitioners contend that the impartial hearing officer erred in finding that the equities do not support their claim for tuition reimbursement.  However, upon review of the record, I agree with the impartial hearing officer that petitioners' June 17, 2005 impartial hearing request, which also provided notice that the student was attending Forman, failed to comply with the notice requirements of the IDEA (IHO Decision, p. 3; see Application of a Child with a Disability, Appeal No. 97-88).

            With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. 1412[a][10][C][iii]; see Mrs. C., 226 F.3d at 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] (emphasis added), 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 20 U.S.C. 1412[a][10][C][iv][IV]). 

            Petitioners acknowledge receiving copies of their due process rights on numerous occasions which provided them with notice of the notice requirement in 20 U.S.C. 1412(a)(10)(C)(iii) (Tr. pp. 12, 13, 14, 18, 20-21, 349; Dist. Ex. 6 at p. 5; see also 20 U.S.C. 1412[a][10][c][iv][VI]).  Petitioners did not notify the March 8, 2004 CSE, which was the most recent CSE meeting prior to their removal of the child from public school, of their intention to withdraw their daughter and place her in a private school because they reportedly did not make that decision until after receiving the student's end of the year report card (Tr. pp. 22-23, 342). Nor did they give notice 10 business days before removal.  As part of the application process to Forman, the student's mother asked the student's former resource room teacher to complete recommendation forms for the private school (Parent Ex. B).  Petitioners argue that the teacher was an agent of respondent's school district and the mother's request to complete the forms constituted notice to respondent that petitioners were withdrawing the student and placing her in the private school.  Petitioners did not formally notify respondent of their decision to place their daughter in private school, at public expense, until June 17, 2005, when they requested an impartial hearing (Dist. Ex. 1).  None of the exceptions to the statutory and regulatory notice requirements were present.

            As stated, petitioners did not inform the CSE of their disagreement with the CSE's proposed placement and their intent to place their daughter in Forman for the 2004-05 school year at public expense at the most recent CSE meeting prior to their removal of their daughter from public school (Tr. pp. 22-23, 192), nor did they provide respondent with written notice of such information ten business days before removal of their daughter from public school.  Petitioners provided notice that they unilaterally placed their daughter at Forman for the 2004-05 school year by letter dated June 17, 2005, in which they requested an impartial hearing seeking tuition reimbursement for the 2004-05 school year (Dist. Ex. 1).  IDEA's statutory provision requiring parental notice prior to unilaterally placing their child in private school "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].  Subsequent notice to respondent almost a year after petitioners unilaterally removed their daughter from public school and just before the 2004-05 school year ended is inconsistent with the aforementioned purpose (Greenland Sch. Dist., 358 F.3d at 162; see Warren G., 190 F.3d at 86).  Therefore, I concur with the impartial hearing officer and find that in this instance, equitable considerations do not support an award of tuition reimbursement.

            In light of my determination, I need not consider petitioners' other challenges to the impartial hearing officer's decision.

            THE APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

March 20, 2006

 

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 [IDEA], 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 IDEA 2004 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)  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).

3 This determination would remain if during the administrative hearing the burden had been placed on the parents, the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S. Ct. 528, 537 (2005)

4 At the March 2004 CSE meeting the student's mother expressed concern that her daughter continued to struggle with math (Tr. pp. 247, 270).  Respondent's staff acknowledged that math was a primary area of deficit for the student (Tr. pp. 135-36) and the student failed math during the 2003-04 school year (Dist. Ex. 15). Despite general reports of  general progress at Forman,  the record  does not sufficiently explain how the Forman School assessed or addressed the student's needs in math, or how the placement was appropriate to her meet her math needs.