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

No. 06-024

 

 

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 Monroe-Woodbury Central School District

 

 

 

Appearances:
Michael H. Sussman, Esq., attorney for petitioners

Donoghue, Thomas, Auslander & Drohan, attorney for respondent, James P. Drohan, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which found that respondent offered an appropriate program to their daughter for the 2005-06 school year and which denied their request to be reimbursed for their daughter's tuition at The Family Foundation School (Family Foundation) for that school year.  Notwithstanding his finding that respondent offered an appropriate program to the student for the 2005-06 school year, the impartial hearing officer went on to consider whether the program offered by Family Foundation was appropriate and whether equitable considerations favored petitioners' claim for reimbursement.  Respondent cross-appeals from that part of the impartial hearing officer's decision which determined that the program offered by Family Foundation was appropriate and that equitable considerations favored petitioners' claim.  The appeal must be dismissed.  The cross-appeal must be dismissed.

            The student was 17 years old and attending Family Foundation when the impartial hearing began in November 2005.  Family Foundation is not 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, 200.1[d]).

            Assessments conducted when the student was in elementary school indicated overall average cognitive ability, as well as reading and writing weaknesses, attention deficits and poor organization (Joint Ex. 3 at p. 3).  In addition, when the student was 11 years old, she began taking medication to treat an attention deficit hyperactivity disorder (ADHD) (Joint Exs. 7, 23, 23A).  The student also has difficulties relating appropriately to adults and peers (see Joint Exs. 3, 4, 6, 7, 8, 9, 10, 11).  In February 2005, the student was diagnosed as having a mood disorder, not otherwise specified, for which she received pharmacological intervention (Joint Ex. 19 at p. 2).  In March 2005, the student exhibited clinical signs of a bipolar spectrum disorder combined with oppositional defiant disorder, and she also demonstrated a pattern of interaction suggestive of a personality disorder (Joint Exs. 23, 23A).  She reportedly struggles with long-standing emotionally based issues involving self-image, self-destructive/suicidal feelings, anger and defiance toward authority figures.  The student's eligibility for special education programs and services and classification as a student with an emotional disturbance (see 8 NYCRR 200.1[zz][4]) are not in dispute.

            The student first began receiving special education services when she was in elementary school (Joint Ex. 3, Joint Ex. 4 at p. 2).  She was classified as having a learning disability, received various special education and related services (Joint Ex. 3 at p. 1), and continued to receive such services through the first half of the 2004-05 school year when she was in the 11th grade (see Joint Exs. 4, 5, 6, 7, 8, 9, 10).

            In May 2004, respondent's Committee on Special Education (CSE) met for the student's annual review and to develop her individualized education program (IEP) for the 2004-05 school year (Joint Ex. 11).  It recommended that the student continue to be classified as having a learning disability and that she be placed in "Collaborative" Chemistry, English and United States History classes, with resource room, "Skills" class and counseling.  It further recommended various testing accommodations.  At the meeting, the student's special education and regular education teachers reported that the student used classroom time appropriately and demonstrated good work habits.  The student's overall performance and progress in all academic areas was judged to be good.  School staff noted impulsive behavior, but such behavior did not appear to negatively impact the student's academic performance.  The school psychologist reported that the student demonstrated progress in social-emotional areas.

            The student began 11th grade at respondent's high school in the fall of 2004 (Joint Ex. 12).  In January 2005, she was admitted to Four Winds Hospital after expressing suicidal ideation (Joint Ex. 19 at pp. 1, 5, 6).  A Four Winds psychosocial assessment completed shortly after the student was admitted indicated that the student reported three prior suicide attempts and a history of self-mutilation, as well as poor sleep and mood swings (Joint Ex. 19 at p. 6).  It further indicated that the student was doing well in school, but that home was "incredibly chaotic" with frequent verbal altercations (id.).  The assessment report noted that the student had been sneaking out of her house for 18 months (id.).  It listed psychosocial impairments including poor judgment and no insight (Joint Ex. 19 at p. 8).  The assessment report also described the student's current levels of functioning (id.).  With respect to her family, peers and activities of daily living, the student's current levels of functioning were described as extremely poor.  With respect to her education, the student's current level of functioning was described as average (id.). 

            A Four Winds Hospital discharge/referral summary provided for a February 2005 discharge date, after which the student would return to live with her parents and attend the Four Winds Adolescent Partial Hospitalization Program (Joint Ex. 21).  The summary indicated that at the time of the student's admission, she presented as moody, explosive, grandiose, defiant, silly at times, and hyperverbal.  It further indicated that during the course of the student's hospitalization, she received individual, group and family therapy, as well as medication management.  It noted that initially, the student did not cooperate with the assessment process or in family sessions, did not engage much in clinical treatment, did not interact well with peers or staff, and refused her medication.  The summary also noted that the student was inappropriately provocative and had difficulty following redirection with respect to such behavior.  It indicated that the student's insight was impaired with respect to the consequences of her actions. 

            The discharge referral summary also indicated that the student had been involved in a relationship with an adult male, who died while the student was hospitalized (Joint Ex. 21 at p. 2).  After petitioners informed their daughter of the  death, additional safety precautions were initiated.  Eventually, the student "stepped down" from that status to "self-checks," and ultimately, was able to attend off-unit activities.  The summary further indicated that the student "engaged in grief work," and in therapy sessions discussed the significance of her "boyfriend" in her life, her emotions with respect to that relationship and the negative impact it had on her life.  Therapy sessions often focused on coping skills for feelings of loneliness and helplessness, as well as the student's poor self-esteem and her feelings of being unloved.  The summary indicated that the student also participated in group therapy and was supportive to her peers.  It noted that the student's family was supportive and continued to actively participate in her treatment.  In the diagnosis section of the summary, the Four Winds psychiatrist listed "Bipolar Disorder, Type II" and specified family conflict, social phobia, and failing grades as psychosocial and environmental problems.

            A Four Winds Hospital outpatient screening/admission note indicates that the student was admitted on February 8, 2005 (Joint Ex. 19 at p. 5).  An outpatient psychiatric evaluation of the student was conducted on February 10, 2005 (Joint Ex. 19).  The psychiatrist noted that the student denied any suicidal and homicidal ideations (Joint Ex. 19 at p. 2).  He indicated that the student's insight and judgment were fair to poor (id.).  Diagnoses included mood disorder not otherwise specified and attention deficit disorder (ADD) by history (id.).  The psychiatrist recommended that the student attend the Adolescent Partial Hospitalization Program with an estimated length of stay of one to two weeks, that she receive individual, group and family therapy, that she attend a therapeutic school and that she be provided medication management (Joint Ex. 19 at p. 3).

            In a February 23, 2005 clinical recommendation, the Four Winds psychiatrist and social worker noted the importance of the student continuing in a supportive program that offered a low student to teacher ratio, a highly structured environment and therapeutic support  (Joint Ex. 22).  They recommended that the student attend an intensive day treatment (IDT) program until she could be referred to a long-term supportive program and that she be provided with home instruction to cover any gaps in scheduling.  The diagnosis listed on the recommendation was ADD by history.

            The CSE met on February 28, 2005 for a special review to outline a reentry plan for the student following her hospitalization (Joint Ex. 14).  At the meeting, the special education teacher described the student's progress as productive and indicated that the student was on track to fulfill requirements for graduation.  The Four Winds social worker reported that the student responded well in the small group therapeutic setting.  She indicated that while the student did well in the program, therapy should continue.  The CSE indicated that a psychiatric evaluation was necessary to determine the impact of the recent emotional events on the student's overall functioning and special education needs.  Respondent's social worker arranged for the student to complete an intake at the IDT program with an expected starting date in early March 2005.  A follow up CSE meeting was scheduled to review the results of the psychiatric evaluation.

            In a March 17, 2005 psychiatric evaluation report provided to petitioners, the psychiatrist indicated that the student continued to struggle with long standing emotionally based issues involving self-image, chronic feelings of worthlessness, self-destructive/suicidal feelings, chronic anger and emptiness, as well as defiance toward authority figures.  He further indicated that the student exhibited clinical signs of bipolar spectrum disorder combined with oppositional defiant disorder (Joint Ex. 23A).  He also indicated that she demonstrated a pattern of interaction which was suggestive of a personality disorder.  The psychiatrist recommended providing increased structure and routine throughout the student's day and eventually offering a vocational training component to her program.  He indicated that a more structured small class program with counseling supports would be required if the above recommendation was not sufficient to maintain the student's functioning.  He further indicated that the student's clinical needs required continued individual counseling, parent education/support and pharmacological intervention.  The psychiatrist recommended that the student would benefit from having a job with regular hours and routine in order to help provide a daily structure.

            The psychiatrist prepared two reports (Joint Exs. 23, 23A).  The report received by respondent differed from the report received by petitioners in that the psychiatrist indicated that the student's long-standing emotionally based issues "were complicated by unresolved grief/loss" (Joint Ex. 23).  The report received by respondent also differed with respect to some of the recommendations.  In the report received by respondent, the psychiatrist recommended referral to a highly structured, therapeutically based school setting with both individual and group counseling services during the school day (id.).  He also recommended that the student would benefit from further vocational assessment (id.).

            The CSE met on March 21, 2005 for a special review to develop a transition plan for the student following the IDT placement (Joint Ex. 15).  At the meeting, the IDT staff reported that the student met academic goals and worked well toward making progress on clinical objectives.  The IDT staff indicated that the student acknowledged daily that she was ready to move on from the program.  They agreed with the psychiatrist's recommendation for a highly structured therapeutic high school program.  Four programs were discussed and briefly explained to petitioners.  The CSE also discussed whether the student would be successful on the June 2005 Regents examinations and concluded that the student would be successful if she invested some effort.  The student indicated she was willing to try and felt ready to return to work.  The student expressed difficulty with Math and Chemistry and home tutoring arrangements were made.

            The CSE met again in April 2005 to amend the student's IEP to recommend that the student's placement be changed to a therapeutic special education high school program with group counseling twice per week (Joint Exs. 16, 17).  The student and her parents supported the program change and requested placement at Summit School (Summit).  Comments on the IEP noted that the student presented with elevated emotional needs due to significant stressors.  The IEP included a special alert noting that the student is prescribed medication for social behavioral issues.

            On April 18, 2005, the student was admitted to Summit (Joint Ex. 24).  In an educational update dated June 13, 2005, the student's guidance counselor indicated that initially, the student had a difficult time following the Summit program and that she was often unaccountable and skipping classes.  She noted, however, that within a week, the student settled down and became acclimated into the program in that she became accountable, began attending classes and developed positive relationships with staff and other students.  The student's teachers reported that the student was doing well in class and making up work for the third quarter.  They indicated that the student earned grades in the A to B range, but that test taking was an area of concern.

            The student's teachers at Summit completed progress reports in May 2005 (Joint Ex. 26).  The student's English teacher noted that the student expressed concern about processing auditory and written information (Joint Ex. 26 at p. 5).  The teacher indicated that a multi-modal approach would be provided to the student, but noted that the student must be on time for class and be cooperative (id.).  The student's American History teacher commented that the student successfully completed written work, but had difficulty passing exams (Joint Ex. 26 at p. 7).  He indicated that the student needed to focus on the topic during class and not on social matters (id.).  The student's Math teacher commented that the student completed all homework assignments and given one-to-one instruction, was progressing rapidly (Joint Ex. 26 at p. 9).

            In a June 10, 2005 social history update, the Summit social worker described the student as "hyperactive and hypomanic" who "sees little or no optimism in a future especially one with independence" (Joint Ex. 25).  She reported that the student had slowly acclimated to the program and appeared to be compliant with class attendance.  The social worker indicated that the student had been offered two individual therapy sessions weekly for 30 minutes during the school day, but generally attended one.  She noted that the student was restrained with regard to expressing her emotions, but had begun to share background information.

            The CSE met on June 15, 2005 for the student's annual review (Joint Ex. 18).  The CSE reviewed reports from Summit which indicated that the student made a good social and academic adjustment to the day treatment program at Summit with grades of As and Bs.  The CSE changed the student's classification from having a learning disability to having an emotional disturbance and recommended that the student continue attending the day treatment program at Summit.  It further recommended extended school year (ESY) services.  Petitioners indicated that their daughter had been defiant and difficult to manage at home.  They requested that respondent place their daughter at Family Foundation on a residential basis.

            In June 2005, the student earned grades of C in English, A in Mathematics, A+ in Science, and B in Social Studies (Joint Ex. 26 at p. 4).  On the English, Math and U.S. History Regents examinations, for which a passing score is 65 percent, the student scored a 62, 55, and 54 respectively (Joint Ex. 27).

            The student began attending Family Foundation in July 2005 (Tr. p. 133).  In a letter dated July 14, 2005, petitioners stated their reasons for placing their daughter at Family Foundation and they requested that respondent pay the cost of their daughter's attendance at Family Foundation (Joint Ex. 1).  They further indicated that should respondent disagree with the Family Foundation placement, they were prepared to engage in mediation before the commencement of an impartial hearing (id.).

            In a response dated October 4, 2005, respondent stated that it had not agreed to pay tuition because the IEP it offered the student for the 2005-06 school year was appropriate to meet her needs in the least restrictive environment (LRE) (Joint Ex. 2).  It explained that it considered, but rejected, a residential school program because it was overly restrictive as the student's needs could be met in a less restrictive environment.  It listed the evaluation procedures, assessment records and reports it considered in reaching its decision.  It also listed factors relevant to its refusal to pay for Family Foundation including the appropriateness of the student's existing IEP, the progress made by the student in her placement at Summit and the fact that her needs could be met in an environment less restrictive than Family Foundation.

            The impartial hearing began on November 21, continued on November 22 and concluded on December 7, 2005.  The impartial hearing officer rendered his decision on January 20, 2006.  He found that the Summit program was appropriate and reasonably calculated to provide an educational benefit.  Consequently, he denied petitioners' request for tuition reimbursement.  In addition to finding that the Summit program was appropriate and reasonably calculated to provide an educational benefit, he went on to consider the second criterion for an award of tuition reimbursement and found that the placement at Family Foundation was appropriate.  He also found that equitable considerations favored petitioners' unilateral placement of their daughter at Family Foundation.

            Petitioners appeal from the impartial hearing officer's decision claiming that Summit was not appropriate.  Specifically, they assert that Summit did not provide the supervision and structure that their daughter required, that Summit offered minimal services beyond academic classes and that Summit provided little feedback with respect to their daughter's progress.  In addition, they contend that their daughter's performance at Summit was inconsistent and that her behavior at home was no more obedient or responsive.  They argue that their daughter required a residential placement and that they should be reimbursed for tuition at Family Foundation.  Respondent cross-appeals from the impartial hearing officer's finding that Family Foundation was appropriate and that the equities favored their claim.

            A purpose of the Individuals with Disabilities Education Act (IDEA)1 is to ensure that students with disabilities have available to them a free appropriate public education (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 FAPE is offered to a student when the board of education (a) complies 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]).  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. Florida 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).  The student's recommended program must also be provided in the LRE (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).  [S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak, 142 F.3d at 122).

            A board of education may be required to reimburse a parent for his or her 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]).  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).

            As noted above, in addition to reading and writing deficits, the student has social and emotional needs.  The record shows that in January 2005, the student was admitted to Four Winds Hospital after expressing suicidal ideation (Joint Ex. 19).  Upon her discharge from the hospital in early February 2005, she returned to live with her parents and attended a partial hospitalization program at Four Winds (Joint Ex. 21).  While a clinical recommendation completed when the student was attending the partial hospitalization program indicated that the student responded well to the small, structured setting of the therapeutic program (Joint Ex. 22), she reportedly remained non-compliant with family rules (Tr. pp. 50-52).  In the clinical recommendation, the Four Winds psychiatrist and social worker noted the importance of the student continuing in a supportive program that offered a low student to teacher ratio, a highly structured environment and therapeutic support  (Joint Ex. 22).  They recommended that the student attend an intensive day treatment (IDT) program until she could be referred to a long-term supportive program (id.).

            In early March 2005, after her discharge from the partial hospitalization program, the student began attending an IDT program (Joint Ex. 15).  The record shows that while at the IDT program, the student met academic goals and worked well toward making progress on clinical objectives (id.); however, the record also shows that she refused to attend the final week of the program and that she began to exhibit negative behavior at home (Tr. p. 52).  When the CSE met on March 21, 2005 to develop a transition plan for the student following the IDT placement, IDT staff agreed with a private psychiatrist's recommendation for a highly structured therapeutic high school program (Joint Exs. 15, 23, 23A).

            Following her IDT placement, on April 18, 2005, the student was admitted to Summit as a day student (Joint Ex. 24).  Summit is a specialized, small residential and day high school treatment program for students with a wide variety of emotional needs in grades nine through 12 (Joint Ex. 32 at p. 3; Tr. p. 288).  It serves up to 115 residential and 35 day students (Tr. p. 288).  Summit offers an "open setting" and the benefits of a closely supervised therapeutic environment, where students are provided with significant support services aimed at modification of both their academic deficits and their emotional issues (Joint Ex. 32 at pp. 1, 3).  Summit employs a full-time psychiatrist who serves as a resource to the staff social workers and is involved in medication management for the residential students, and a part-time psychologist who conducts academic, educational and psychological testing (Tr. pp. 291, 296-97).  In addition, eight certified social workers provide individual and group psychotherapy, three of whom work exclusively with the day students (Tr. p. 292).  Summit also offers a Regents level academic program (Tr. p. 289).  The maximum class size at Summit is 12 students, with the average class size between eight and nine students (Tr. pp. 290-91).  Each class has a teacher and a teacher aide (id.).

            When the CSE met in June 2005 to develop the student's program for the 2005-06 school year, she had been attending Summit for approximately two months.  The CSE recommended that the student's classification be changed from a student with a learning disability to a student with an emotional disturbance, and that she continue to attend Summit (Joint Ex. 18 at p. 2).  It further recommended that she receive individual counseling twice weekly.  In addition, it determined that the student was eligible for ESY services.

            Petitioners assert that Summit is not appropriate for their daughter in that Summit does not provide the supervision and structure that their daughter requires.  Petitioners' claim, however, is not supported by the record.  The principal at Summit testified that Summit provides a structured situation for students throughout the entire school day (Tr. p. 299).  He further testified that if a student has difficulty, different levels of support and structure are provided including intervention by staff and escorts to class (Tr. pp. 299-300).  He noted that the student was being escorted into class, at which times she was somewhat disruptive (Tr. p. 305).  The principal stated that he met with the student several times during the first and second weeks of her attendance because she did not comply with the initial guidelines he had set for her concerning the nature of her discussions with other students about her hospitalization (Tr. pp. 303-04).  He also contacted petitioners during their daughter's first week at Summit to advise them of her behavior (Tr. pp. 56, 115).  Additionally, he asked to meet with petitioners before the end of the third week of their daughter's attendance at Summit because she was not following the program and was not going to class (Tr. pp. 304-05).  The principal testified that he had a conference with one of the student's parents, reviewed the student's program and developed another set of guidelines for her (id.).  He indicated that relatively quickly, the student's demeanor, attitude and ability to function day to day improved (Tr. p. 306).

            Petitioners also claim that Summit offered only minimal services.  To support their claim they argue that their daughter was not seen by a psychologist or psychiatrist at Summit, and that she was not provided medication management.  As noted above, the psychologist's sole responsibility at Summit is to conduct various testing (Tr. p. 291).  The record shows that the student was assessed, treated and evaluated by several professionals prior to attending Summit, and there is no indication in the record that further testing was requested or recommended.  With respect to petitioners' assertion that their daughter was not seen by the psychiatrist at Summit, the record shows that the Summit psychiatrist is primarily involved in medication management for residential students (Tr. pp. 296-97).  Here, the student was a day student and her medication was not prescribed by the Summit psychiatrist (Tr. pp. 158, 352). 

            To further support their claim that Summit offered minimal services, petitioners argue that their daughter attended only one counseling session per week although she was scheduled for two, and that she was not provided group or grief counseling.  As noted above, counseling at Summit is provided by social workers, for whom the Summit psychiatrist serves as a resource (Tr. pp. 292, 296-97).  The records shows that the social worker assigned to the student at Summit reported that the student generally attended one counseling session weekly (Joint Ex. 25).  The principal at Summit indicated that after a period of nonattendance, there would be a discussion about why the student was reluctant to attend both sessions (Tr. p. 316).  With respect to petitioners' assertion that Summit did not provide group counseling, a service listed on the student's April 2005 IEP, one of respondent's school psychologists who also served as district liaison to out-of-district placements testified that the social worker at Summit advised her that the student's situation did not lend itself to group counseling "right away" (Tr. pp. 232-33).  I note that the student's IEP for the 2005-06 school year provides for individual rather than group counseling (Joint Ex. 18 at p. 2).  With respect to petitioners' assertion that Summit did not provide grief counseling, the record shows that while the professionals who worked with or evaluated the student recommended counseling, there was no specific recommendation for grief counseling (Joint Exs. 15, 22, 23 and 23A).  I note that in June 2005, after the student had been attending Summit for approximately two months, she was described as restrained with regard to expressing her emotions, but had begun to share background information (Joint Ex. 25).

            In addition, petitioners argue that Summit provided little feedback with respect to their daughter's progress, failed to provide parent education and support, and made no effort to involve them in family therapy.  With respect to advising petitioners of their daughter's progress, as noted above, the record shows that the principal at Summit contacted petitioners within the first few weeks of their daughter's attendance to advise them that their daughter was not following the program (Tr. pp. 304-05).  Further, the principal at Summit testified that when a student attends Summit for the full school year, the student's IEP goals are reviewed quarterly and at the end of the school year for the following year (Tr. pp. 347-48).  The principal explained that because the student did not attend Summit for the entire school year, her IEP was not reviewed quarterly, and because the student was not attending Summit the following school year, an end of the year assessment was not conducted (id.).  I note that the social worker assigned to the student at Summit prepared an updated social history on June 10, 2005 that was reviewed at the June 2005 CSE meeting (Joint Ex. 18 at p. 2, Joint Ex. 25).  I further note that the student's guidance counselor at Summit prepared an educational update on June 13, 2005 that also was reviewed at the June 2005 CSE meeting (Joint Ex. 18 at p. 2, Joint Ex. 24).  Additionally, the record shows that Summit prepared a fourth quarter report card, the student's teachers completed fourth quarter supplementary progress reports with comments and the student's guidance counselor advised petitioners of their daughter's performance on the June 2005 Regents examinations (Joint Exs. 26, 27).  With respect to parent education and support and family therapy, the record shows that the student's IEP for the 2005-06 school year provides for the district social worker to contact petitioners to offer assistance with arranging a "Network Meeting" which "could result in home and community based assistance for the family" (Joint Ex. 18).  Contrary to petitioners' assertions that the services at Summit were minimal, I find that Summit offered the services listed on the student's June IEP for the 2005-06 school year consistent with the student's needs.  I note that on appeal petitioners do not make specific challenges to the June 2005 IEP, but rather challenge the recommended placement at Summit, claiming that their daughter requires a residential placement.

            Petitioners further claim that their daughter's performance at Summit was inconsistent.  While they assert that several teachers noted their daughter's need to focus on class and not be engaged in social issues, they also acknowledge that their daughter succeeded academically for the short time she attended Summit (see Pet. 55).  Petitioners also challenge the validity of the grades their daughter received at Summit, given that she failed three Regents examinations.  I note that at the March 2005 meeting, the CSE discussed whether the student should take the June 2005 Regents examinations and the student indicated that she was ready to get back to work and was willing to try (Joint Ex. 15).  Respondent's psychologist testified that she spoke with the student in June 2005 and that the student acknowledged that she had not performed well on the June Regents examinations and that she would take them again in August (Tr. p. 176).  She stated that the student appeared to be committed to attend summer school at Summit (id.).

            Petitioners further claim that while at Summit their daughter continued to exhibit erratic behavior and that she was no more obedient at home.  Petitioners testified about their daughter's difficult behavior at home during the time she attended Summit (Tr. pp. 58, 138-40).  The record shows, however, that the student was not exhibiting the same behavior at school.  As noted above, the principal at Summit testified that the student's demeanor and attitude improved after a brief transition period (Tr. p. 306).  In addition, all but one of the student's teachers rated the student's classroom behavior as "Very Good" or "Meets Expectations/IEP Goals" (Joint Ex. 26 at pp. 5-9).  I note that the student's mother testified that after the first several days of school at Summit, things started to improve and her daughter seemed more interested (Tr. p. 145).

            Consistent with the recommendations of the professionals who evaluated or worked with the student, Summit offered a structured, therapeutic environment and classes with a low student to teacher ratio.  After a brief adjustment period at Summit, the student began to follow the rules and attend classes, she attended counseling sessions and began sharing background information, she did not express suicidal ideation (Tr. pp. 308-09, 367) or engage in self-abusive behavior (Tr. p. 367), and she was successful academically (Joint Ex. 26).  Based upon the information before me, I agree with the impartial hearing officer and find that the day program at Summit recommended for the student for the 2005-06 school year was appropriate.

            I also have considered petitioners' assertion that their daughter requires a residential placement.  To support their assertion, they note that their daughter did not comply with family rules when she attended the Four Winds partial hospitalization program and that while she met her academic goals when she attended the IDT program, she refused to attend the final week of the program.

            A residential placement is one of the most restrictive educational placements available for a student (Application of a Child with a Disability, Appeal No. 03-066; Application of the Bd. of Educ., Appeal No. 01-091), and is not appropriate unless it is required for a student to benefit from his or her educational program (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. 03-066; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-051; Application of a Child with a Disability, Appeal No. 01-083).

            The record shows that the student displayed difficult behavior principally at home.  The record also shows that despite the student's behavior at home, she made appropriate academic and social progress while attending Summit's day program.  I note that the professionals who evaluated or worked with the student during the second half of the 2004-05 school year recommended a structured therapeutic environment, and did not recommend a residential placement.  Under the circumstances, I must find that the student did not require a residential placement in order to receive a FAPE during the 2005-06 school year.

            Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Family Foundation was an appropriate placement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).  Consequently, I do not address respondent's cross-appeal from that part of the impartial hearing officer's decision which determined that the program offered by Family Foundation was appropriate3 and that equitable considerations favored petitioners' claim.

            Finally, petitioners assert that the impartial hearing officer did not address their claim that the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) requires that a school district do "whatever is possible to assist each child attain what they can."  As the IDEA 2004 did not become effective until July 1, 2005, after the challenged IEP was formulated, I do not address petitioners' claim.

            I have considered the parties' remaining contentions and I find them to be without merit.

            THE APPEAL IS DISMISSED.

            THE CROSS-APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

June 5, 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 [2004], Pub. L. No. 108-446, 118 Stat. 2647).  However, 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.  Citations contained in this decision are to the statute, as it existed prior to the 2004 amendments.

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), (see 34 C.F.R. 300.13; 20 U.S.C. 1414[d]).

3. By letter dated May 4, 2006, respondent asks that I accept an affidavit from its director of pupil personnel services containing information that was not available at the time of the impartial hearing and which is relevant to the issue of the appropriateness of the Family Foundation placement.  Petitioners object.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-005; Application of a Child with a Disability, Appeal No. 05-080).  The exhibit is not necessary to render a decision, and therefore, I decline to accept it.