The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Skyer, Castro, Foley & Gersten, attorney for petitioners, Jesse Cole Foley, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for their son's tuition costs at the West End Day School (West End) for summer 2005 and the 2005-06 school year. The appeal must be sustained in part.
At the commencement of the impartial hearing in October 2005, petitioners' son was almost six years old and was attending kindergarten (Tr. p. 50) at West End (Tr. p. 42). He had been unilaterally placed by petitioners at West End beginning with the summer program in July 2005 (Tr. pp. 42, 51). West End is a private school 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). The child's eligibility for special education programs and services as a student with an emotional disturbance (ED) is not in dispute on appeal (8 NYCRR 200.1[zz]).
A review of the record reveals concerns regarding the child's behavior, attention/concentration, and communication skills (Dist. Ex. 1). Petitioners' son reportedly did not demonstrate behavior difficulties during his first year of attendance at the Ramaz Nursery School (Ramaz) during the 2003-04 school year (Parent Ex. B at p. 1). However, during the 2004-05 school year, the child began to engage in significant disruptive behavior at school (id.). His mother reported that he expressed anger inappropriately in group settings, hit and bit his peers, ran around the classroom, and did not listen to his teacher (Parent Ex. B at p. 1; Tr. p. 98; Tr. p. 98).
A psychoeducational evaluation was conducted during September 2004 (Parent Ex. B at p. 1). Administration of the Wechsler Preschool and Primary Scale of Intelligence (WPPSI) yielded a verbal IQ score of 101 and a performance IQ score of 140 (id.) yielding a full-scale composite IQ score of 122 (Dist. Ex. 1). A classroom observation was conducted in October 2004 and the child was noted to have a somewhat short attention span, but no aggressive behavior was displayed during the half-hour observation (Parent Ex. B at p. 1). An occupational therapy (OT) evaluation was conducted in December 2004, which described the child as having fine motor delays of about ten months (id.). The child was also described as having mild sensory processing delays (id.).
A psychiatric evaluation was conducted during January 2005 (Parent Ex. B). According to the evaluation report, the child's mother reported that the child did not know how to modulate the expression of his emotions and he would escalate easily (Parent Ex. B at p. 1). The psychiatrist noted that during the evaluation the child was physically restless and easily distracted (Parent Ex. B at p. 2). However, she also noted that once petitioners' son focused on something, he could become almost perseverative (id.). Petitioners' son is diagnosed as having mixed receptive-expressive language disorder and oppositional defiant disorder (ODD) (id.). In addition, the psychiatrist indicated that diagnoses of attention deficit hyperactivity disorder (ADHD)- combined type, and developmental coordination disorder needed to be ruled out (id.). The psychiatrist recommended the use of both behavioral techniques and medication to assist the child in gaining better control over the expression of his emotions (id.). A trial of medication was begun in January 2005 (id.).
Petitioners' son had a "follow-up visit" with the psychiatrist on February 17, 2005 (Parent Ex. B at p. 2). At the time, the child was reportedly attending school on a half-day basis at Ramaz with the assistance of a paraprofessional (id.). The child's mother reported that he was having fewer "meltdowns," but noted the child had recently had a major temper tantrum in a toy store (id.). The child's mother was continuing to work on parenting skills and behavior plans with the help of a therapist. The psychiatrist described the child as contained, cooperative, well related and organized with pretend play (id.). She noted that the child appeared to have fewer aggressive themes during pretend play (id.) and was able to tolerate a little frustration (Parent Ex. B at p. 3). According to the psychiatrist, the child's speech was not very elaborative, but was goal directed without tonal or prosodic abnormalities, and his understanding and expressive language was adequate for ordinary conversation (id.). In the one-to-one setting of the office visit, the child was not grossly overactive or notably distractible or inattentive. The evaluator indicated that "the plan" for petitioners' son was to continue with his trial of medication and have him participate at Ramaz on a half-day basis with a paraprofessional until a "more appropriate" school placement could be sought for September 2005 (id.). The evaluator further indicated that the child's mother had applied to West End seeking a placement (id.). The record indicates that petitioners' son was accepted in the West End program mid to late February 2005 (Tr. pp. 100, 102).
A "follow-up" notation on the psychiatrist's report, dated March 30, 2005, indicated that the child's mother reported that her son's frequency and intensity of explosive outbursts had definitively diminished, but had not disappeared altogether (Parent Ex. B at p. 3). The child continued to attend Ramaz with a paraprofessional and tended to be disorganized during unstructured recess time (id.). The child was reportedly continuing to see his therapist, as well as receive speech-language and OT services (id.). The psychiatrist recommended continuing the child's medication, but also recommended that petitioners try to discontinue the medication to determine if better control could be gained over his outbursts and maintained by appropriate behavioral interventions alone (id.). The psychiatrist recommended providing the child with services 12 months a year and noted that he would benefit from placement in a self-contained "tightly" structured special education classroom with a high teacher-to-student ratio where he could also receive related services including speech-language therapy, OT and counseling (Parent Ex. B at p. 3).1
On June 9, 2005, respondent's CSE met and recommended for the 2005-06 school year that petitioners' son be classified as a student with ED (Dist. Ex. 1 at p. 1). In addition, the CSE recommended the child for a 12-month, 12:1+1 special class in a nonpublic school day setting along with 45 minutes of individual counseling twice a week; 30 minutes of group counseling once a week; 45 minutes of individual OT twice a week; 45 minutes of individual speech-language therapy twice a week; and 30 minutes of group speech-language therapy once a week (Dist. Ex. 1 at pp. 1, 12, 13, 14). Apparently determining that no appropriate public school was available, the CSE did not recommend a specific school placement. The CSE referred resolution of the child's placement to the Central Based Support Team (CBST) for assistance in locating an appropriate non-public school (Tr. p. 39).
Petitioners' son began attending West End's summer program on July 1, 2005 (Tr. pp. 42, 51; IHO Ex. 1 at p. 1). By letter dated August 15, 2005, petitioners informed respondent that they requested an impartial hearing for the purpose of obtaining tuition reimbursement for their unilateral placement of their child at West End for the 2005-06 school year (IHO Ex. 1 at p. 1). The hearing request explained that petitioners agreed with the CSE's classification of ED and referral to the CBST for a non-public school placement but that the district failed to provide the child with an "appropriate spot in non-public school." The hearing request raised no issues pertaining to the program recommended for the 2005-06 school year or concerns pertaining to placement in the least restrictive environment (LRE). In the hearing request, petitioners also asserted that although they had been contacted by two non-public schools, petitioners "could not accept either placement" because they "were not allowed to observe the schools." Petitioners contended in their hearing request that they were not allowed to observe the schools without having their child present and they asserted that to have pulled their child out of his summer program to visit the proposed schools would have been detrimental to him given his need for "routine and structure." (IHO Ex. 1 at p. 2). At the hearing, petitioners' counsel acknowledged that petitioners were unwilling to bring their child in "for an interview in order for the school to assess whether the child was appropriate" and that petitioners were unwilling "to pull him out of [West End] to go through the interview process…." (Tr. p. 9).
The record revealed that petitioners had been contacted by staff from the Lorge school, apparently sometime in July for the purpose of initiating possible placement at the school (Tr. p. 73). Lorge is a New York State approved non-public school (see 8 NYCRR 200.1[d]) that serves children and adolescents who have been classified as having a learning disability, an emotional disturbance or a combination of both (Tr. p. 23). The students' range in age from five to eighteen years old and the classes are ungraded (Tr. p. 25). According to the school's intake coordinator, the five and six year olds present with a broad range of cognitive abilities (Tr. pp. 25-26). The intake coordinator noted that Lorge employs a specialized reading program that includes two periods of reading every day; one targeting basic decoding skills and the other focusing on the development of critical thinking skills (Tr. p. 23). Lorge has instituted a school-wide behavior modification program and provides individual and group counseling (Tr. p. 23). The school also provides speech and occupational therapy (Tr. pp. 23, 24).
Staff from Lorge testified that "on paper" the child seemed to have academic issues consistent with those addressed at Lorge (Tr. p. 22) and was appropriate for the setting (Tr. p. 71). The intake coordinator testified that the students at Lorge generally presented with full scale IQ scores ranging between 70 and 110 (Tr. p. 24). She indicated that it was "possible" that a student with a performance IQ of 140 and a full scale IQ of 122 would be appropriately placed at Lorge because there were certain classes where things were "a little bit higher" (id.). When pressed further the intake coordinator stated that a child with a performance IQ score of 140 and a full-scale IQ score of 122 would not be appropriate for the school's five and six year old class (Tr. p. 26). The intake coordinator's testimony was briefly interrupted and when questioning resumed she clarified her answer further (Tr. pp. 28-29). The intake coordinator indicated that it would have been unusual for her to extend an invitation for a visit to a child with an IQ that high, but also noted that she was always building the young class from scratch and sometimes she could tailor the class to meet the needs of all the students (Tr. p. 28). She further stated that she might invite a child with a full-scale IQ of 122 to visit depending on what the child's other issues were (Tr. p. 29). She noted that Lorge worked with some children who were "quite bright" yet had behavioral or other issues (id.). The intake coordinator opined that for a child with an IQ of 120 who possessed learning difficulties, certain academic aspects of the Lorge program would be appropriate (id.).
The impartial hearing commenced October 28, 2005 and concluded on December 7, 2005 after two days of testimony. On January 31, 2006, the impartial hearing officer rendered her decision finding that respondent offered petitioners' son a free appropriate public education (FAPE) for the 2005-06 school year concluding that the child would have been suitably grouped at the Lorge School with students having similar abilities and needs (IHO Decision, p. 8). Noting that there was a question as to whether Lore could have accommodated a child with such a high IQ, the IHO referred to the testimony of the parent's witness who indicated that at West End the child was grouped based on his actual ability and not on his IQ score (IHO Decision at p. 8; Tr. pp. 101-02). The impartial hearing officer also noted that if she had concluded that had there not been an appropriate offer by respondent, she would have found that West End was an appropriate placement (id.). She further determined that equitable considerations did not support petitioners' claim for reimbursement because she concluded petitioners intended to enroll their son at West End as early as January 2005 and, therefore, had no interest in exploring the placement options offered by respondent for the 2005-06 school year (IHO Decision, p. 9). In reaching her conclusion regarding equities, the impartial hearing officer found that petitioners had been contacted by two non-public schools, including the Lorge School, and she found a staff person from that school credible when she testified that parents are permitted to visit the school without the child (IHO Decision at pp. 8-9; Tr. p. 74).
On appeal, petitioners contend that the impartial hearing officer erred in determining that respondent offered an appropriate education to their son for the 2005-06 school year. Petitioners assert, as they did at the hearing, that the CSE failed to secure a placement for their son for the 2005-06 school year. For the first time in the instant case, petitioners assert that the proposed individualized education plan (IEP) was inadequate because no functional behavioral assessment (FBA) was conducted or behavior intervention plan developed (BIP). Petitioners further assert that West End was an appropriate placement for their son 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)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3 A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).
A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a])
On appeal petitioners contend that their son's June 9, 2005 IEP was inadequate because the CSE failed to conduct a functional behavioral assessment (FBA) or develop a behavioral intervention plan (BIP). Respondent contends that it considered the use of positive behavioral interventions and supports and that the June 9, 2005 IEP provided that his socialization skills were to be addressed through individual counseling sessions. As to the claim that the CSE should have conducted an FBA and developed a BIP, this claim is not properly before me because it was not raised before the impartial hearing officer, as such I do not review it (see Application of a Child with a Disability, Appeal No. 04-019; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).
At the hearing below petitioners acknowledged agreement with the program recommended by the June 9, 2005 CSE, however they asserted that the DOE failed to provide the child with an appropriate placement in a non-public school (IHO Ex. 1 at p. 1). As such, they argued that they had no choice but to enroll the child in West End by July 1, 2005 (IHO Ex. 1 at p. 1). Petitioners contend that a CSE cannot recommend a placement in a non-district school prior to a decision by that school to accept the student. In the record on appeal there is no placement listed on the child's June 9, 2005 IEP and no record of a non-district public school accepting the child for placement.
Although petitioners indicated that they were contacted by two non-public schools (IHO Ex. 1 at p. 2) after the June 9, 2005 CSE meeting, only one of those schools, the Lorge School, is discussed at the hearing. The Lorge clinical supervisor/intake coordinator testified that the child was referred to the school by the CBST (see Tr. p. 20). She testified that placement at Lorge is not offered until a student has visited the school, participated in an interview, and spent a day in the classroom (Tr. p. 22).4 She testified that upon receiving the referral she had reviewed the child's IEP and concluded that on paper, it appeared that Lorge could address the child's "academic issues." (id.) She noted that she had asked a staff person to contact the parents and invite the parent and the student in for an interview and tour (Tr. pp. 20-21). She subsequently received a note from staff stating that the child's mother had been contacted and indicated that she was not interested in coming in for an interview (Tr. p. 21). The social worker from Lorge, presumably the staff member asked to contact petitioners, testified that after reviewing information on the child, and determining that on paper he met the criteria for admission, she contacted petitioners to schedule an interview (Tr. pp. 70-71). Petitioners contend that they were told they could not visit the school without first bringing the child in for an interview (IHO Ex. 1 at p. 1; Tr. p. 41). The child was reportedly attending the West End summer program at the time (Tr. p. 51) and petitioners believed it would be detrimental to remove the child from his summer program to visit potential placements (IHO Ex. 1 at p. 2). The social worker from Lorge testified that she informs parents that they can visit the school without their child, but that they will have to return with the child as part of the process (Tr. p. 74). According to the social worker, when she contacted the child's mother to schedule an interview the child's mother indicated that she had other interviews and was not interested in interviewing at Lorge (Tr. p. 71; see also Tr. p. 21). There is no evidence in the record that petitioners visited either school that contacted them. The social worker also testified that she did not think that she would have advised the parent in this case that she had to bring her child in for the interview process before being allowed to view the school (Tr. p. 74). The social worker stated that when Lorge does not hear back from prospective parents after a certain amount of time the school sends the CBST a letter indicating that the parents aren't interested (Tr. p. 75) She indicated that she sent such a letter in this case (id.). The impartial hearing officer found the social worker's testimony to be credible (IHO Decision at p. 9).
There is no documentary evidence or testimony in the record pertaining to the second school that may have contacted petitioners, nor is there any indication that the child was accepted by a non-public school. The CSE did not reconvene after June 9, 2005. Petitioners' hearing request states that petitioners advised respondent on July 5, 2005 that they had withdrawn their child from public school (IHO Ex. 1).
The Regulations of the Commissioner of Education provide that the recommendation of a CSE shall state the recommended special education program and services from the options set forth in 8 NYCRR 200.6 and shall indicate the child's recommended placement (8 NYCRR 200.4 [d][iv] and [xiv], see Application of a Child with a Disability, Appeal No. 05-008). The child's June 9, 2005 IEP does not indicate a placement, as required, only that his case was "deferred" to the CBST for assistance in locating an appropriate non-public school. Nor does the record contain a notification of placement from the DOE. As such, I find that the child was not offered a FAPE because, although the June 9, 2005 IEP recommended a 12-month school year, the child was not offered an educational placement prior to the July 1, 2005 beginning of the West End summer program.
Having determined that petitioners' son was not offered a FAPE by respondent, I must now consider whether petitioners established that West End offered an educational program that would meet the childs special education needs during that school year (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 05-015). In order to meet that burden, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
The child's IEP indicates that he has a moderate language disorder affecting his receptive, expressive and pragmatic language skills (Dist. Ex. 1 at p. 3). Intelligence testing has revealed a significant discrepancy between the child's verbal and non-verbal abilities suggestive of language based learning difficulties (id.). Despite a full-scale IQ score in the superior range (id.), the child reportedly demonstrates average cognitive abilities (Tr. p. 79). The child is distractible and has difficulty focusing (Dist. Ex. 1 at p. 3). He has difficulty interpreting social cues, is aggressive toward other children and suffers from low self-esteem (Dist. Ex. 1 at p. 5). The child has fine motor delays, as well as mild sensory processing delays (Parent Ex. B at p. 1).
West End is a small, highly structured, therapeutic special education day school, with a December 2005 enrollment of 52 students (Tr. p. 78). At the time of the impartial hearing, West End contained six classrooms from kindergarten to sixth grade, with approximately ten children per classroom with one head teacher and one assistant teacher per classroom (id.). The kindergarten teacher testified that the West End program was designed for a child who needs a small structured environment to succeed and who requires a high degree of nurturing and individualization (id.). At the beginning of the school year the children are assessed and grouped according to their abilities, learning style, and ability to work together (Tr. pp. 80-81). Reading groups are further broken down based on ability and learning style (Tr. p. 78). According to the kindergarten teacher, the children in her class possessed IQ scores in the average range, which she described as being from about 80 to 120 (Tr. p. 86). West End staff provided the child significant individualized attention; utilized a multi-sensory approach with visual, oral, and hands on stimuli; repeated directions when needed; broke down multi-step tasks; and provided the child with frequent redirection and directed social play (Tr. p. 80). The child's teacher testified that there was always an adult facilitating social play to help manage any conflict that might arise (id.). West End further addressed the child's needs through the provision of related services including speech therapy, occupational therapy, and counseling (Tr. p. 85). The child's teacher indicated that the child was making progress and was demonstrating a greater ability to self-regulate in his classroom (Tr. p. 81). She noted that the child was doing well academically (id.). The teacher further noted that the child was performing well without the assistance of a paraprofessional or the use of medication (Tr. pp. 96-97). The child's mother reported that his ability to socialize outside of school had improved (Tr. pp. 43-44).
Based upon the foregoing, I agree with the impartial hearing officer's finding that that the private placement selected by petitioners for the child for the 2005-06 school year was appropriate to meet the child's special education needs.
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 ). With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][C][iii]; see Mrs. C., 226 F.3d at n. 9).
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, in part, with the impartial hearing officer. A parents' failure to make their child available for an intake evaluation interview at the district’s recommended placement option is relevant in determining whether equitable considerations support their claim for reimbursement (Application of the Bd. of Educ., Appeal No. 05-116; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078). Where a parent deprives the district of its ability to make an appropriate program recommendation and obstructs the district's ability to finalize the student's IEP, equitable considerations will not support an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 03-025; see also Application of a Child with A Disability, Appeal No.04-029), and an impartial hearing officer or State Review Officer may exercise their discretion under section 1412 of the IDEA to limit or reduce an award of tuition reimbursement, based on the fact that the district notified the parent of its intent to conduct an evaluation of the student and the parent has failed to make the student available for an appropriate and reasonable evaluation (see 20 U.S.C. § 1412[a][C][iii][II]; see also 34 C.F.R. § 300.403[d]; Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462 [7th Cir. 2000]; P.S. v. Brookfield Bd. of Educ., 353 F.Supp.2d 306 [D. Conn. 2005]), or upon a finding of unreasonableness with respect to the actions taken by the parent (20 U.S.C. § 1412[a][C][iii][III]; 34 C.F.R. § 300.403[d]). Equitable principles dictate that parents cannot deliberately withhold their child from an intake interview and impede a district's ability to offer a FAPE and also secure a future award of tuition reimbursement at a private school of their choosing (Application of the Bd. of Educ., Appeal No. 05-116; Application of a Child with A Disability, Appeal No. 05-075; Application of the Bd. of Educ., Appeal No. 96-9).
Under the circumstances, I find that there is sufficient evidence to find that petitioners acted unreasonably and impeded the placement process. Accordingly, I concur with the impartial hearing officer and find that in this instance, equitable considerations do not support an award of tuition reimbursement for the 2005-06 school year. However, taking into consideration that apparently petitioners were not contacted by Lorge until after the West End summer placement had began, I will award tuition reimbursement for the child's summer 2005 placement only5. In light of my determination, I need not consider petitioners' other challenges to the impartial hearing officer's decision.
IT IS ORDERED that respondent shall reimburse petitioners for the cost of their child's tuition at West End for the summer 2005 placement upon petitioners' presentation of proof of payment of such tuition.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
Albany, New York
May 10, 2006
PAUL F. KELLY
1 At the October 28, 2005 hearing, the child's mother testified that he "used to have behavioral problems with socialization," that he was currently "doing really well," that at West End "he doesn't present with behavioral problems" and that at home he's "able to play, share, go by the rules when you play a game, he's a different child." (Tr. pp. 43-44) She concluded that he was appropriately placed and that his classroom is a "high IQ, high functioning children classroom [that does not] accept anyone that would not fit into that academic atmosphere." (Tr. p. 44)
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).
4 This process is similar to the one that actually took place involving the child's placement at West End. According to the testimony of the Director of Admissions at West End, the child was accepted at the school in mid February 2005 (Tr. p 102), and acceptance took place after the parent visited the school and took the child to West End for an admissions evaluation as part of their multi- step admissions process (Tr. pp. 91-92).
5 Respondent has not asked that petitioners' request for tuition reimbursement be reduced or denied based upon any alleged non-compliance with the notice requirements of 20 U.S.C. § 1412 (a)(10)(C)(iii). I have, therefore, not considered whether petitioners' action complied with the requirement that they give timely notice of their rejection of the placement offered, their concerns, and their intent to enroll their child in a private school at public expense.