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

No. 06-026

  

 

Application of the BOARD OF EDUCATION OF THE HUDSON FALLS CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Tabner, Ryan and Keniry, LLP, attorneys for petitioner, Tracy L. Bullett, Esq., of counsel

Julie Michaels Keegan, Esq., attorney for respondents

DECISION

            Petitioner, the Board of Education of the Hudson Falls Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' daughter and ordered it to reimburse respondents for their daughter's tuition costs at the Spring Hill Waldorf School (Spring Hill)1 for the 2005-06 school year, to reimburse respondents for reasonable transportation expenses for that portion of the 2005-06 school year that had elapsed, and to provide transportation for the remainder of that school year.  Respondents cross-appeal that portion of the impartial hearing officer's decision which denied their request for reimbursement for their daughter's tuition costs at Spring Hill and transportation expenses for the 2004-05 school year.  The appeal must be sustained.  The cross-appeal must be dismissed.

 

            At the commencement of the impartial hearing in September 2005, respondents' daughter was 13 years old and was attending Spring Hill, where she had been unilaterally placed by respondents since the beginning of the 2001-02 school year in the fourth grade (Tr. p. 1264).  Spring Hill is a private school located in Saratoga Springs, New York that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (Tr. p. 242; see 8 NYCRR 200.7, 200.1[d]).  The student's eligibility for special education programs and services as a student with a learning disability (LD) is not in dispute on appeal  (see 8 NYCRR 200.1[zz][6]).  Cognitive testing in April 2005 indicated that the student's cognitive abilities are in the average range.  Administration of the Wechsler Intelligence Scale for Children Fourth Edition (WISC-IV) yielded a Full Scale IQ Score of 104 and identified deficits in processing speed (Dist. Ex. 55 at p. 1).  Administration of the Wechsler Individual Achievement Test that same month indicated difficulty with math and written language (id.).  Respondents' daughter reportedly has deficits in sequential processing and short-term and working memory, which result in difficulty with spelling and writing, and with math calculation and reasoning (Dist. Ex. 55 at p. 1, Parent Ex. D at pp. 2-3).  She also has difficulty with receptive language, and needs to have information presented to her in small components or "chunks" (Parent Ex. D at pp. 2-3).  The student has difficulty completing her work, is easily distracted and frequently off task, requires redirection, and demonstrates significant attentional difficulties which interfere with her ability to receive instruction (Dist Exs. 8 at p. 5; 14 at p. 4; 21 at p. 2; 36 at p. 2; 45 at p.4).

 

            Respondents' daughter attended petitioner's public school from kindergarten through third grade (Dist. Ex. 50 at p. 1).  During first, second and third grade at petitioner's elementary school, the student received Academic Intervention Services (AIS), a regular education service primarily offered to unclassified students who need additional intervention (Tr. p. 1458).  She was recommended for retention after each of these school years (Dist. Ex. 56U), and attended summer school in second grade (Tr. p. 1458), but her parents chose to not have her retained for any school year at petitioner's school (Dist. Ex. 56U; Tr. p. 1341).  By letter dated June 20, 2000, the student's mother agreed to her daughter attending summer school after completing second grade in 2000 and also agreed to retaining her in third grade "if she [did] not catch up" (Dist. Ex. 56M); however, the record indicates that, after their daughter completed third grade during the 2000-01 school year, respondents chose to enroll her in Spring Hill at a fourth grade level instead of having her retained in third grade at petitioner's public school (Dist. Ex. 50 at p. 2; Tr. p. 1341).  In September 2001, respondents placed their daughter at Spring Hill in the fourth grade for the 2001-02 school year (Tr. p. 1264).

 

            Respondents' daughter did not receive special education services while she attended petitioner's public school (Tr. p. 247).  By letter dated January 29, 2002, the student's mother referred her daughter to petitioner's Committee on Special Education (CSE) and requested that her daughter be evaluated for "possible learning disabilities" (Dist. Ex. 1).  By letter received February 14, 2002, the student's mother consented to the evaluation of her daughter for special education services (Dist. Ex. 2 at p. 4).  Petitioner's CSE held its initial meeting on March 22, 2002 (Dist. Ex. 6 at p. 1).  The March 22, 2002 CSE recommended that respondents' daughter be classified as a student with LD (Dist. Ex. 8 at p. 1).  Comments in the management needs section of the student's March 22, 2002 individualized education program (IEP) include a statement that the student can become easily distracted by visual, auditory, and tactile stimuli in the learning environment, even in one-to-one situations (Dist. Ex. 8 at p. 5).  It was also noted that the student could become drawn off-task and need a "good deal" of redirection to return to task (id.).  This was especially noted with "non-preferred" tasks (id.).  The CSE recommended, with a beginning date of April 10, 2002 (Dist. Ex. 8 at p. 1), that the student receive one hour of resource room daily on a "pull-out" basis in a separate location (Dist. Ex. 8 at p. 6) to be provided at petitioner's intermediate school building (Dist. Ex. 8 at p. 3).  By letter dated April 4, 2002, the student's mother agreed with and consented to the CSE's initial recommended program (Dist. Ex. 9 at p. 3).  By letter dated March 27, 2002, respondents requested transportation to Spring Hill (Parent Ex. K at p. 1).  The student's mother testified that it is approximately 20.5 miles between her house and Spring Hill (Tr. p. 1630).  By letter dated April 10, 2002, petitioner denied respondents' request for transportation to Spring Hill because Spring Hill was "beyond the 15 mile radius per New York State Education Department regulation" (Parent Ex. K at p. 2; see N.Y. Educ. Law 3635 [1]).  By letter dated April 29, 2002, the CSE Chairperson informed the student's mother that beginning April 30, 2002 petitioner would be providing transportation from Spring Hill to its intermediate school building to provide one hour of recommended resource room services daily (Dist. Ex. 11).

 

            On July 10, 2002, a subcommittee of the CSE met and recommended that the student remain classified as a student with LD (Dist. Ex. 14 at p. 1) and that for the 2002-03 school year she receive one hour of resource room daily on a "pull-out" basis (Dist. Ex. 14 at p. 5).  The student's July 10, 2002 IEP notes that the student was to be transported from Spring Hill to petitioner's public school for the recommended services (Dist. Ex. 14 at p. 1).  The student attended fifth grade at Spring Hill during the 2002-03 school year (Tr. pp. 935, 1273).

 

            A limited neurodevelopmental evaluation was conducted by a private evaluator over the course of several months beginning June 2002 and completed by October 17, 2002 (Parent Ex. D).  The private evaluator noted that the student had weak retention of skills and factual knowledge over time (Parent Ex. D at p. 1) and that her visual short-term memory was constrained by her needing information presented to her in small components or "chunks" (Parent Ex. D at p. 2).

 

            By letter dated March 28, 2003, respondents again requested transportation to Spring Hill (Parent Ex. K at p. 3; Tr. p. 1274), but by letter dated April 17, 2003, petitioner's superintendent denied respondents' request (Dist. Ex. 18).  On May 12, 2003 a subcommittee of the CSE met and recommended that the student remain classified as a student with LD (Dist. Ex. 21 at p. 1) and that for the 2003-04 school year she receive two hours of resource room daily (Dist. Ex. 21 at p. 5) at petitioner's intermediate school building (Dist. Ex. 21 at p. 1).  In addition, the subcommittee of the CSE recommended that, for summer 2003 the student receive extended school year (ESY) services with three hours a week of primary math instruction because significant regression had been evident "over summer vacations" (Dist. Ex. 21 at p. 2).  The CSE also recommended providing special transportation for the student to receive ESY services (Dist. Ex. 21 at p. 1).  At the May 12, 2003 subcommittee meeting, the student's mother requested that the recommended special education services be provided "on-site" at Spring Hill (Tr. p. 1386).  By letter dated June 11, 2003, the student's mother agreed with the subcommittee's recommendation for her daughter to receive ESY services during the summer 2003 (Dist. Ex. 22 at p. 2).  However, the record contains evidence that respondents did not agree with the subcommittee's recommendations for the 2003-04 school year.  By letter dated June 17, 2003, petitioner's CSE Chairperson noted telephone conversations describing respondents as not wanting their daughter to return to petitioner's public school, but yet unsure as to whether the student would continue at Spring Hill or at another parental placement and further noted that petitioner needed "to have an IEP in place for both ESY and the school year" (Dist. Ex. 24).  On July 8, 2003, petitioner approved the May 12, 2003 subcommittee's recommendation for the 2003-04 school year to provide the student with two hours of resource room to be delivered at petitioner's intermediate school building (Dist. Ex. 26 at p. 1); however, on July 8, 2003 petitioner also approved a recommendation that the student receive one hour of resource room per day at Spring Hill (Dist. Ex. 26 at p. 2; see Tr. p. 1386).  Petitioner contracted with an independent consultant special education teacher to provide the recommended special education services on site at Spring Hill  (Tr. pp. 162, 342, 922).

 

            By letter dated September 12, 2003 to respondents, petitioner's CSE Chairperson indicated that the respondents had not made a decision whether to enroll their daughter in Spring Hill and petitioner could not arrange for special education services to be provided to their daughter until respondents made a decision as to where their daughter would be enrolled  (Dist. Ex. 29).  Also, by letter dated September 12, 2003, petitioner's intermediate school principal noted that since respondents had indicated a desire to "possibly" have their daughter return to petitioner's public school, a child study team (CST) met and recommended that respondents' daughter be retained in the fifth grade for the 2003-04 school year (Dist. Ex. 28).  Spring Hill had also recommended retaining the student in the fifth grade for the 2003-04 school year (Tr. pp. 621-22) and respondents' daughter was retained in fifth grade at Spring Hill for the 2003-04 school year (Tr. p. 935).  By letter dated October 7, 2003 to respondents, petitioner's CSE Chairperson noted that she had received a telephone message from the student's mother indicating that the student was at Spring Hill, but that the CSE Chairperson was not aware whether the student was remaining at Spring Hill for the 2003-04 school year or returning to petitioner's public school (Dist. Ex. 30).

 

            By letter dated October 24, 2003, respondents requested an impartial hearing for the purpose of obtaining reimbursement for tuition costs at Spring Hill and transportation expenses, and for petitioner to provide transportation to and from Spring Hill (Parent Ex. G at p. 4).  Respondents in the instant appeal, who were petitioners in Application of a Child with a Disability, Appeal No. 04-018, raised the following issues at the impartial hearing:  "(1) untimely identification of their daughter as a student with a disability; (2) development of IEPs at improperly composed CSE meetings; (3) failure to provide their daughter with a free appropriate public education (FAPE); (4) entitlement to tuition reimbursement for the 2001-02, 2002-03 and 2003-04 school years; (5) failure to provide appropriate special educational services at Spring Hill; and (6) the cost of transportation to and from Spring Hill during the 2003-04 school year" (Application of a Child with a Disability, Appeal No. 04-018).  During the impartial hearing that was held prior to Appeal No. 04-018, respondents asked to withdraw their impartial hearing request "without prejudice" for the purpose of obtaining counsel.  The impartial hearing officer denied their request, continued with the impartial hearing and issued a decision on February 17, 2004.  The decision Application of a Child with a Disability, Appeal No. 04-018, issued May 3, 2004, annulled the impartial hearing officer's decision, and granted the parents' application to withdraw their hearing request, without prejudice. 

 

            On May 24, 2004, the CSE met and recommended that the student remain classified as a student with LD (Dist. Ex. 36 at p. 1) and that for the 2004-05 school year the student receive 40 minutes of resource room services ten times a week to be provided on both a "push-in" and "pull-out" basis (Dist. Ex. 36 at p. 5) at Spring Hill (Dist. Ex. 38).  In addition, the CSE recommended that the student receive ESY services for summer 2004 with three hours a week of primary math instruction (Dist. Ex. 36 at p. 2).  During the May 24, 2004 CSE meeting, the student's mother conveyed that it was her intent to place the student at Spring Hill for the 2004-05 school year (Tr. pp. 1431-32).  The student's mother did not object to recommended services being provided for the 2004-05 school year, but indicated that she believed that petitioner should have placed her daughter at Spring Hill and provided transportation (Tr. pp. 1440-41).  The student attended sixth grade at Spring Hill for the 2004-05 school year (see Tr. pp. 979-80, 1202).  By letter dated March 31, 2005, respondents requested transportation to Spring Hill (Parent Ex. K at p. 6).

 

            A social history update was performed April 2005 and indicated that the student was becoming more comfortable and confident in herself and her abilities (Dist. Ex. 53).  Results of an April 2005 psychological evaluation indicated cognitive abilities in the average range with weakness in processing speed (Dist. Ex. 55 at pp. 1, 7).  Achievement testing identified deficits in written language, including spelling, and in math, and identified reading as an area of strength (id.).  The evaluator's report described the student's communication, socialization and daily living skills as age appropriate (Dist. Ex. 55 at p. 7).  The student was reported to be generally compliant with teacher directions, but continued to exhibit characteristics consistent with an attentional deficit and required frequent redirection and refocusing (id.).  A private psychological evaluation report dated August 2005 reviewed and confirmed the results of the April 2005 evaluation and also confirmed a diagnosis of Attention Deficit/Hyperactivity Disorder, Predominantly Inattentive Type (Parent Ex. L at p. 3).

 

            On May 2, 2005, a subcommittee of the CSE met and recommended that the student remain classified as a student with LD (Dist. Ex. 45 at p. 1) and that for the 2005-06 school year the student receive 40 minutes of resource room services ten times a week, to be provided on a "push-in" and "pull-out" basis (Dist. Ex. 45 at p. 5) at Spring Hill (Dist. Ex. 47).  In addition, the subcommittee of the CSE recommended that the student receive ESY services for summer 2005 with three hours a week of math instruction, spelling and handwriting (Dist. Ex. 45 at p. 2).  The May 2, 2005 subcommittee meeting notes indicate that the student's mother would "not agree to any plan that does not include transportation" and that she felt that the services offered were "not complete without transportation" (Dist. Ex. 44 at p. 2).  By letter dated May 11, 2005, petitioner's superintendent denied respondents' request for transportation to Spring Hill (Parent Ex. K at p. 7; see Parent Ex. K at p. 6).  At the CSE meeting, respondent agreed with the recommendation for resource room services, program modifications and supports, and goals and objectives (Dist. Ex. 44; Tr. pp. 991, 1447; Pet. 76, 77, Ans. 76, 77).  She testified that she did not want an IEP that placed the student anywhere but Spring Hill (Tr. pp. 1448, 1451).  There is no indication in the record that at the May 2, 2005 subcommittee meeting that respondents requested a public school placement, that respondents requested a 1:1 aide (see Pet. 143; Ans. 143), or that the student respondents were placing the student at Spring Hill at public expense.

 

            By letter dated May 27, 2005, respondents requested an impartial hearing for the purpose of obtaining tuition reimbursement for Spring Hill "from 2001 to the present" and to provide transportation or in the alternative arrange and pay for transportation to and from Spring Hill  (IHO Ex. 2 at p. 5).  The hearing request asserts that the IEP generated from the May 2, 2005 CSE meeting provides for resource room activities on site at Spring Hill (IHO Ex. 2 at p. 4).

 

            The impartial hearing commenced September 22, 2005.  At the November 2, 2005 hearing, and by letter dated November 11, 2005 (IHO Ex. 4 at p. 3), respondents moved to amend their impartial hearing request to include reimbursement for transportation expenses (IHO Decision, p. 1) in addition to seeking tuition reimbursement for the Spring Hill placement from the 2001-02 school year "to date" (IHO Ex. 4 at p. 3).  On November 15, 2005, the impartial hearing officer rendered an interim decision granting respondents' request to amend their petition allowing their claim for transportation expenses from the 2001-02 school year "to date" to be heard at the impartial hearing (IHO Ex. 5 at p. 4).  The impartial hearing concluded on November 30, 2005 after nine days of testimony.  On February 13, 2006, the impartial hearing officer rendered his decision finding that respondents' claims regarding the 2001-02, 2002-03, 2003-04, and 2004-05 school years were barred by statute of limitations (IHO Decision, pp. 48-49); that petitioner failed to offer a FAPE to respondents' daughter for the 2005-06 school year (IHO Decision, pp. 51-52); that the placement respondents selected for their daughter for the 2005-06 school year was appropriate (IHO Decision, pp. 53-54); and that equitable considerations supported respondents' reimbursement claims for the 2005-06 school year (IHO Decision, pp. 54-55).  The impartial hearing officer awarded respondents reimbursement for costs of their daughter's tuition at Spring Hill for the 2005-06 school year and reasonable travel expenses associated with that portion of the 2005-06 school year that had already elapsed, and ordered petitioner to provide transportation to and from Spring Hill for the remainder of the 2005-06 school year (IHO Decision, p. 57).

 

            Petitioner contends on appeal that it offered an appropriate program to respondents' daughter for the 2005-06 school year, and further contends that respondents failed to demonstrate that Spring Hill was an appropriate placement for respondents' daughter for the 2005-06 school year.  In addition, petitioner asserts in its memorandum of law that the equities do not support respondents' reimbursement claim for the 2005-06 school year.  Respondents cross-appeal, contending that the impartial hearing officer erred in determining that they were not entitled to reimbursement for their daughter's tuition costs at Spring Hill and transportation expenses for the 2004-05 school year.

 

            I do not agree with the impartial hearing officer's conclusion that petitioner failed to offer the student an appropriate educational program for the 2005-06 school year.  However, I find the impartial hearing officer's 57-page decision to be thorough and well reasoned in making the following determinations with which I agree: a) dismissing the tuition reimbursement claims for the 2001-02, 2002-03, 2003-04, and 2004-05 school years as untimely, b) dismissing the claims for transportation reimbursement for the 2001-02, 2002-03, 2003-04, and 2004-05 school years, and c) dismissing respondent's request for attorney fees.

 

            Respondents do not appeal from that portion of the impartial hearing officer's determination that their claims regarding the 2001-02, 2002-03, and 2003-04 school years were barred by statute of limitations (IHO Decision, p. 48).  Pursuant to federal and State law, an impartial hearing officer's decision is binding upon both parties unless appealed to the State Review Officer (8 NYCRR 200.5[j][5][v]; see 20 U.S.C. 1415[i][1][A]; 34 CFR 300.510[a]).  Having failed to appeal from that portion of the impartial hearing officer's decision, respondent is bound by that portion of the decision (see Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ., Appeal No. 98-7).  Accordingly, I find that respondents' claims regarding 2001-02, 2002-03, and 2003-04 school years have been fully and fairly litigated at the impartial hearing below, with the impartial hearing officer's decision being final and binding upon the parties.

 

            I now turn to respondents' claims regarding the 2004-05 school year.   At the time of the relevant events underlying this appeal, the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1487) did not prescribe a time period in which requests for administrative impartial due process hearings must be asserted; during the time of the events in question State Review Officers were applying a one-year statute of limitations in light of Second Circuit case law directing that states adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-222 [2d Cir. 2003]; Application of the Dept. of Educ., Appeal No. 06-016; Application of a Child with a Disability, Appeal No. 05-112; Application of the Bd. of Educ., Appeal No. 02-119; see, e.g., Application of the Bd. of Educ., Appeal No. 04-104; Application of a Child Suspected of Having a Disability, Appeal No. 04-090; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-077; Application of a Child with a Disability, Appeal No. 04-075; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 03-098; Application of a Child Suspected of Having a Disability, Appeal No. 03-068; Application of the Bd. of Educ., Appeal No. 03-062).  Subsequently, effective July 1, 2005, Congress amended the IDEA to include a provision specifically creating a two-year statute of limitations period for filing a due process hearing request, unless a state has an explicit time limitation set by state law (20 U.S.C. 1415[f][3][C]).

 

            Since newly enacted federal statutes of limitations are typically not applied retroactively absent express congressional intent (see Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]; In Re Enterprise Mortgage Acceptance Co., 391 F.3d 401, 407 [2d Cir. 2005]; see also R.G. v. Glen Ridge Bd. of Educ., 2005 WL 3274857 at *4 [D.N.J. Dec. 2, 2005] [in considering new statute of limitations for civil actions in federal courts, because amendments to the IDEA are not retroactive, court must apply the IDEA as it existed when the claim was filed]), the most analogous statute of limitations analysis prevailing at the time of the underlying events of respondents' claim will be applied to the facts in this case.  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the most analogous statute of limitations for requesting an impartial hearing to resolve respondents' dispute under the IDEA or Article 89 of the New York Education Law began running when respondent knew or should have known of the alleged injury involved, i.e., the alleged inappropriate education (Southington, 334 F.3d at 221).

 

            In the instant case, the impartial hearing officer properly applied the one-year most analogous statute of limitations analysis (IHO Decision, pp. 48-49).  Respondents attended the May 24, 2004 CSE meeting (Dist. Ex. 36 at p. 14).   The student's May 24, 2004 IEP indicates that the student was privately placed by her parents (Dist. Ex. 36 at p. 2).  May 24, 2004 CSE meeting notes indicate that the student's mother "anticipated that [her daughter would] return to Spring Hill" for the 2004-05 school year (Dist. Ex. 35 at p. 1).  Respondents requested an impartial hearing for the purpose of obtaining tuition reimbursement for Spring Hill "from 2001 to present" (IHO Ex. 2 at p. 5) by letter dated May 27, 2005, over one year after they knew or should have known of the alleged failure by petitioner to offer a FAPE.  Thus, their claims regarding the 2004-05 school year are barred as untimely under the applicable most analogous one-year statute of limitations (Application of the Bd. of Educ., Appeal No. 02-119).  Absent a specific tolling provision, a party cannot claim mitigating circumstances in order to avoid or toll the applicable statute of limitations period; such arguments fall more properly under the equitable defense of laches (see Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]).  In any event, respondents' claim for the 2004-05 school year would have failed under a laches analysis as well (see Application of a Child with a Disability, Appeal No. 02-101).

 

            Generally, a claim is barred by laches if: (1) a party fails to assert a right in a timely manner; and (2) the lapse of time causes prejudice to the adverse party (see Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 [2d Cir. 1996]; Phillips v. Bd. of Educ., 949 F. Supp. 1108, 1112 [S.D.N.Y. 1997]).  Where a most analogous statute of limitations exists and a claim is made after the most analogous statute of limitations period has run, there is a strong presumption that laches bars the claim, and the claimant has the burden of rebutting that strong presumption (see Conopco, 95 F.3d at 191).  In the instant case, respondents' request for an impartial hearing was made after the one-year most analogous statute of limitations had run, hence a strong presumption of laches attaches (id.).  Once the legal presumption of laches attaches, it creates a legal presumption that the lapse of time caused prejudice to petitioner, and it is respondents' burden to produce evidence to show that petitioner was not prejudiced by the delay.  Respondents have failed to produce evidence to overcome this strong presumption.  While recognizing that it is petitioner's duty in the first instance to provide appropriate services, in the absence of notice by respondents during the entire 2004-05 school year that they would be seeking tuition reimbursement for the 2004-05 school year, respondents' delay in bringing their claims prejudiced petitioner by not putting it on fair notice, and also acted in part to preclude petitioner from answering respondents' concerns during the 2004-05 school year and developing an appropriate plan prior to the expiration of the school year (see Bernardsville, 42 F.3d at 158; Phillips, 949 F. Supp. at 1113-14; Application of a Child with a Disability, Appeal No. 04-025).

 

            I now turn to petitioner's claims regarding the 2005-06 school year.  A purpose behind the IDEA (20 U.S.C. 1400 - 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]; 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[8][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 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).  The parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

 

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

 

            Petitioner contends that it offered the student appropriate services for the 2005-06 school year.  Respondents contend that their daughter's 2005-06 IEP was substantively invalid because it failed to provide their daughter with a 1:1 aide.  The impartial hearing officer noted that a review of the record indicated "mixed signals about whether the May 2, 2005 IEP was in fact a district plan" (IHO Decision, p. 50).  The record reveals conflicting testimony whether the student's IEPs were created for the student's placement at petitioner's public school or Spring Hill (Tr. pp. 113-14, 463-66, 778-79, 784, 884-86, 1192, 1786, 1792).  A review of the documents and testimony leads me to the conclusion that the IEP was formulated anticipating that the student would remain at Spring Hill, that most IEP provisions for services were equally applicable for placement at petitioner's school if respondent chose a public school placement, and that if a public school placement were chosen a 1:1 aide could be added as a service for the student.  I note also that at the time of the May 2, 2005 CSE meeting, respondents had withdrawn their previous hearing request for tuition reimbursement for prior school years and had not reinstated it and that at the CSE meeting respondents did raise the issues of unilateral placement at public expense.  Respondents' written rejection of the proposed May 2, 2005 IEP and request for reimbursement was dated May 27, 2005 (IHO Ex. 2).  At the time of the May 2, 2005 CSE meeting, the student was enrolled by her parents in private school (34 C.F.R. 300.450) and there was no indication she would be enrolled in private school for the 2005-06 school year with FAPE at issue (34 C.F.R. 300.403).

 

            The record reveals the student's mother testified that she had not made up her mind where she was placing her daughter by the time of the May 2005 CSE subcommittee meeting (Tr. pp. 1793-94).  While the student's mother testified that she had not "made up" her mind as to where she was placing her daughter by the time of the May 2, 2005 CSE subcommittee meeting (id.), the record includes petitioner's approval of the student's May 2, 2005 IEP reflecting that the student would receive 40 minutes of resource room ten times a week in the general education setting to be provided at Spring Hill (Dist. Ex. 47).  The CSE Chairperson testified that if the student were going to return to petitioner's public school she would need a 1:1 aide because the student-to-teacher class size ratio was larger at petitioner's public school, but would not need a 1:1 aide at Spring Hill where the student-to-teacher class size ratio was smaller (Tr. pp. 113-14, 463-66, 1786).  The IEP does not reflect a 1:1 aide service.  The May 2, 2005 subcommittee meeting notes indicate that the student's mother would "not agree to any plan that [did] not include transportation" and that she felt that the services offered were "not complete without transportation" to Spring Hill (Dist. Ex. 44 at p. 2; see Tr. p. 1453; Parent Ex. K at p. 7).  The independent consultant special education teacher, who contributed significantly to the development of the student's 2004-05 IEP and who consulted with petitioner's school psychologist about the student's goals and objectives for developing the student's 2005-06 IEP (Tr. p. 1202), testified that the student's IEP was written to reflect that the student was going to Spring Hill (Tr. p. 1192).  Additionally, under exemptions for a foreign language requirement, the student's May 2, 2005 IEP notes that Spring Hill requires participation in a foreign language, and under exemptions for state/district tests the student's IEP notes that the student will not participate because the "school placement does not require it" (Dist. Ex. 45 at p. 1).  In addition, the May 2, 2005 subcommittee meeting notes indicate that petitioner's independent consultant special education teacher was going to order a program for typing through Spring Hill (Dist. Ex. 44 at p. 2).  Further, by letter dated June 14, 2005, petitioner approved the CSE subcommittee's recommendation that the student receive 40 minutes of resource room in the general education setting ten times a week by the independent consultant special education teacher with whom petitioner contracted to provide special education services to the student (Tr. pp. 162, 922) at Spring Hill (Dist. Ex. 47).  After a review of the record pertaining to the May 2, 2005 CSE meeting (Dist. Ex. 45), I find that services were offered to reflect the student's attendance at Spring Hill for the 2005-06 school year.

 

            The record reflects a history of the provision of services at Spring Hill when FAPE was not at issue (Dist. Exs. 26 at p. 2, 38, 47) and reflects, through the May 2, 2005 IEP, a continuation of services to be provided to the student attending Spring Hill, with FAPE not at issue. Although the record contains no indication that respondents filed a request for dual enrollment services, as required by law, on or before the first day of June, I find that the special education services in question were offered consistent with section Education Law 3602-c[2]  (see Application of the Bd. of Educ., Appeal No. 03-059; see also Application of a Child with a Disability, Appeal No. 02-035; IHO Decision, p. 51 at n. 3).

 

            The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.  Although boards of education are required by the IDEA to provide some special education services to some children enrolled privately by their parents in nonpublic schools, no such children are individually entitled under the IDEA to any or all of the services they would receive if enrolled in a public school (see 34 C.F.R. 300.454[a]).  The IDEA also authorizes the delivery of whatever special education services are to be provided to such children "on the premises of private, including religious, schools, to the extent consistent with law" (20 U.S.C. 1412[a][10][A][i][III]; see 34 C.F.R. 300.456[a]).  Section 3602-c of the Education Law requires the provision of special education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made (see Bay Shore Union Free Sch. Dist. v. T., 405 F.Supp.2d 230 [E.D.N.Y. Dec. 21, 2005]; Application of the Bd. of Educ., Appeal No. 04-079).  As noted previously, respondents agreed with the May 2, 2005 CSE's recommendation for resource room services, program modifications and supports, and goals and objectives at Spring Hill (Dist. Ex. 44; Tr. pp. 991, 1447; Pet. 76, 77, Ans. 76, 77). Under the circumstances, I find that petitioner offered special education services consistent with section 3602-c of the Education Law that were appropriate to meet the student's individual needs.4 

 

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

            THE APPEAL IS SUSTAINED.

            THE CROSS-APPEAL IS DISMISSED.

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it granted respondents' request for reimbursement of their daughter's tuition costs at Spring Hill for the 2005-06 school year, reimbursement for reasonable transportation expenses for that portion of the 2005-06 school year that had elapsed, and to provide transportation for the remainder of that school year.

 

Dated:

Albany, New York

 

__________________________

 

June 8, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 For consistency within this decision, the Spring Hill Waldorf School will be described as "Spring Hill" although the record interchangeably describes this private school as the "Waldorf School" as well.

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 [IDEA 2004], 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.

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 I note that had I found that the one-year most analogous statute of limitations analysis had not applied to respondents' claims for the 2004-05 school year, I would have found that petitioner provided special education services for the 2004-05 school year consistent with section 3602-c of the Education Law that appropriately met the student's individual special education needs (see Dist. Ex. 36 at p. 5) at Spring Hill (Dist. Ex. 38).