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

No. 06-035

 

 

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

 

 

Appearances:
Sonnenschein Nath & Rosenthal, LLP, attorneys for petitioner, Arthur H. Ruegger, Esq., of counsel

Advocates for Children of New York, Inc., attorneys for petitioner, Randee J. Waldman, Esq., of counsel

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

DECISION

Petitioner appeals from the decision of an impartial hearing officer, which found that respondent offered an appropriate educational program to petitioner's son for the 2005-06 school year and denied petitioner's request for funding of her son's tuition costs at Bay Ridge Preparatory School (Bay Ridge) for the 2005-06 school year.  The appeal must be sustained in part to the extent indicated.

 

At the time of the impartial hearing in January 2006, petitioner's son was 13 years old and attending seventh grade in the Bridge program at Bay Ridge (Tr. pp. 12, 22).  Petitioner unilaterally placed her son in the Bridge program at Bay Ridge at the beginning of the 2005-06 school year (Tr. p. 22).  The record indicates that the Bridge program is designed for students with learning disabilities, particularly for those who have significant reading and writing difficulties (Tr. p. 73).  The Commissioner of Education has not approved Bay Ridge as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).  The student's eligibility for special education services and classification as a student with a learning disability are not in dispute (see 8 NYCRR 200.1[zz][6]).

 

Petitioner's son attended respondent's schools for five years from kindergarten through third grade (Tr. p. 23).  While her son was in respondent's schools, petitioner grew increasingly concerned that her son appeared to be struggling in school and repeatedly requested that respondent evaluate the student (Tr. pp. 23-26).  The record indicates that respondent initially evaluated the student during his kindergarten year, the 1997-98 school year, at which time it began providing consultant teacher services to the student (Dist. Ex. 10 at p. 3).  After the student repeated first grade, respondent evaluated the student for a second time and recommended that the student receive resource room services and tutoring for reading (Tr. pp. 25, 60; Dist. Ex. 10 at p. 3).  During these years at respondent's schools, the record indicates that respondent's Committee on Special Education (CSE) did not classify the student as a student with a disability (Tr. p. 55).

 

Upon her son's completion of second grade at respondent's schools, petitioner referred her son for a private psychological evaluation where he was evaluated over two days in August 2001 (Tr. pp. 25-26; Parent Ex. H).  Petitioner reported to the evaluator that her son could express himself and could comprehend what he heard and what was read to him, however, he could not read or write (Parent Ex. H at p. 3).  Petitioner indicated that her son reversed letters, became confused when he had to visually analyze "novel" information, took a long time to establish hand dominance and exhibited poor hand eye coordination (id.).  The evaluator administered a variety of standardized tests designed to measure the student's cognitive abilities, his achievement levels, and his emotional functioning (see Parent Ex. H).

 

Based on the test results, the evaluator opined that the student was of average to above average intelligence and demonstrated a "reading disability" and "disorder of written expression" (id. at p. 9).  Specifically, the evaluator found that the student exhibited difficulties with visuospatial processing, mental organization of phonological information, the capacity to rapidly learn and retrieve phonological information from memory, and organization for complex problem solving (id.).  She noted that the student had some difficulty sustaining his attention (id. at p. 6), and concluded that the student presented himself as a "sensitive, anxious youngster who is overwhelmed and distressed by his academic difficulties and is at risk for feelings of dysphoria" (id. at p. 8).  The psychologist made a number of recommendations (see id. at pp. 9-12), including use of an "Orton Gillingham approach or similar program which emphasizes learning basic phonetic principles and decoding strategies in a highly organized manner, with consistent repetition until each small step is mastered . . ." (id. at p. 9); that the student be placed in a "full time setting for bright, learning disabled youngster[s] in a specialized school where all material is presented in a multisensory manner" (id.); and that the student receive counseling to improve his low self-esteem (id. at p. 12).

 

The private psychological report was completed sometime when the student was in third grade at respondent's schools (Tr. p. 25).  Around this time, respondent's CSE classified the student as learning disabled (Tr. p. 55).  Petitioner then submitted applications on behalf of her son to private schools that petitioner believed could address the student's learning needs (Tr. p. 26).  The Sterling School (Sterling) accepted the student and petitioner unilaterally placed her son there beginning with the 2002-03 school year (fourth grade) and continuing through the end of the 2004-05 school year (sixth grade) when the student graduated from Sterling (Tr. pp. 22-23, 26).

 

In March 2003, as part of a triennial evaluation, respondent's school psychologist conducted a psychological evaluation of the student when he was ten years of age and attending  Sterling (see Dist. Ex. 8).  Administration of the Wechsler Intelligence Scale for Children - III (WISC-III) yielded a verbal IQ score of 99, a performance IQ score of 82, and a full scale IQ score of 90; which placed the student in the average range of cognitive functioning (id. at p. 6).  The evaluator noted that the student's performance IQ score was within the lower limits of the low average range and that the student exhibited significant variability within the performance domain as well, with sub test scores ranging from the superior to the deficient range of intelligence (id. at pp. 7, 12).  Administration of the Bender Visual Motor Gestalt Test (Bender Gestalt) indicated the student's graphomotor development was similar to that of an eight year old child  (id. at p. 7).  The evaluator opined that the student's delays in visual-motor integration and the 17 point statistical discrepancy between his verbal and performance IQ scores were indicative of visual perceptual difficulties and "may be a contributing factor to [the student's] academic difficulties" (id. at pp. 6, 8).  She opined that projective testing suggested the student had strong oppositional and defiant tendencies and that he was aware of his school difficulties but felt "helpless" to improve his grades (id. at p. 9).  The evaluator recommended the student receive counseling both in and outside of school to help him mature socially and academically (id.).

 

A social history dated March 26, 2003 reported that the student had started to read independently, was doing his homework independently, and was scoring 90's and 95's on tests (Dist. Ex. 9 at pp. 2-3).

 

As part of the triennial review, respondent also conducted an educational evaluation of the student over the course of two sessions that concluded in April 2003 (see Dist. Ex. 10).  The evaluator reported that the student spoke in a low but audible tone with no overt articulation errors (id. at p. 4).  Formal testing indicated that the student's vocabulary was in the average range and that he could process material that was orally presented to him on a sixth grade level, which was two years above his grade placement at that time (id.).  On the written expression subtest of the Wechsler Individual Achievement Test (WIAT), the student achieved a standard (and percentile) score of 84 (14) placing him in the low average range of ability (id. at p. 2).  His writing was simple with "erratic" use of punctuation and determined to be within the early second grade range (id. at p. 4).  The student utilized an adequate pencil grip and although his writing was legible, the evaluator noted irregularities in his letter formation, spacing, and alignment of letters (id.).  On the Kaufman Test of Educational Achievement, the student achieved standard (and percentile) (and grade equivalent) scores of 83 (13) (2.9) in decoding, 80 (9) (2.4) in reading comprehension, 76 (5) (2.3) in spelling, 84 (14) (3.7) in math computations, and 85 (16) (3.4) in math applications (id. at p. 2).  He demonstrated mastery of sound/symbol associations for consonants and their blends, however, required additional remediation in identifying short vowels as well as vowel diphthongs (id. at p. 4).  In math, the student demonstrated mastery of addition and subtraction of multi digit facts with regrouping and borrowing as well as basic calendar, money, and time telling skills (id. at p. 5).  The evaluator noted that the student had made at least a one year gain in reading comprehension and a two to three year gain in math skills since his last evaluation three years ago (id.).

 

Respondent's CSE convened on March 29, 2004 to develop the student's individualized education program (IEP) for his sixth grade 2004-05 school year (Parent Ex. D).  The student was reported to continue to have "notable and persistent" academic delays due to deficits in his phonological awareness skills, visual perceptual ability, and processing speed (id. at p. 3).  By teacher estimate, his decoding skills were at the middle third grade level, his writing skills were at the third grade level, and his math computation skills were at the low fourth grade level (id.).  The student's academic management needs included use of a multisensory approach and explicit teaching of phonological awareness skills (id.).  The CSE recommended that the student be placed in a 12:1 "special class in a community school" for all areas of instruction and receive individual counseling as well as counseling in a small group (id. at pp. 1, 9).  His proposed IEP contained goals and objectives related to reading, mathematics, writing, and social emotional needs (id. at pp. 5-6).

 

Petitioner re-enrolled her son in Sterling for his sixth grade 2004-05 school year after she was unsuccessful in scheduling an observation at respondent's recommended placement (Tr. pp. 30-32).  A report dated December 2, 2004 from a classroom observation of the student at Sterling, indicates that the student was reading a "Mad Magazine" during an independent reading period, was immediately able to produce his homework when requested, and participated in a class discussion (Dist. Ex. 11).  He copied the salient points elicited from the discussion, writing in an increasingly large, but legible manuscript form (id.).

 

On February 16, 2005, respondent's CSE convened for the student's annual review and to develop the student's IEP for his seventh grade 2005-06 school year, the subject of the present appeal (Parent Ex. C; Dist. Ex. 14).  CSE members included petitioner, a parent member, respondent's psychologist, a regular education teacher, a special education teacher from Sterling, and a social worker employed by respondent who acted as the district representative (Tr. pp. 111, 113; Parent Ex. C at p. 2; Dist. Ex. 14 at p. 2).  The student was reported to be of average cognitive ability but to continue to have academic difficulties due to deficits in his phonological and visual perceptual skills, and his motor speed (Parent Ex. C. at p. 3; Dist. Ex. 14 at p. 3).  The student was also reported to exhibit deficiencies in decoding, encoding, written expression, and organizational skills (id.).  By teacher estimate, the student's reading comprehension skills were at the middle third grade level, his writing skills were at the low third grade level, and his math computation and problem solving skills were at the middle fifth grade level (id.; Tr. p. 35).

 

The resultant IEP continued to classify the student as a student with a learning disability and recommended placement of the student in a "special class in a community school" with a 12:1 staffing ratio (Tr. p. 113; Parent Ex. C at p. 1; Dist. Ex. 14 at p. 1).  The IEP included additional services of one session of individual counseling for 30 minutes per week and one session of group counseling for 30 minutes per week (Tr. p. 113; Parent Ex. C at p. 10; Dist. Ex. 14 at p. 10).  The IEP noted that the student "[r]equires ongoing collaboration among all service providers" and recommended a "[m]ulti sensory approach and direct and explicit teaching of phonological skills" (Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  Annual goals and short-term objectives were also developed to address the student's needs in reading, math, written expression and social/emotional well-being (Parent Ex. C at pp. 6-7; Dist. Ex. 14 at pp. 6-7). 

             

Petitioner contends that the CSE told her at the February 16, 2005 meeting that respondent would notify her if it found an appropriate placement for the student so that petitioner could visit the proposed school (Tr. p. 36).  Petitioner also contends that it was her understanding that if respondent did not locate a placement for the student, then petitioner could continue to enroll the student at a private school at respondent's expense (id.).  By letter dated August 19, 2005, petitioner notified respondent through her attorneys that she would be unilaterally placing the student at Bay Ridge for the 2005-06 school year due to respondent's alleged failure to recommend a placement for the student (Parent Ex. B).  The August 19, 2005 letter also advised respondent that petitioner intended to seek tuition payment for the student's placement at Bay Ridge (id.). 

 

Petitioner formally requested an impartial hearing through her attorneys by letter dated November 2, 2005 (Parent Ex. A).  Petitioner's hearing request alleged that respondent failed to offer the student a free appropriate public education (FAPE) for the 2005-06 school year (id. at p. 1). Specifically, petitioner asserted that respondent failed to recommend a placement for the student at any school (id. at p. 2).  Petitioner sought funding for her son's tuition costs at Bay Ridge for the 2005-06 school year (id. at pp. 2-3).

 

An impartial hearing was held on January 11, 2006 and January 27, 2006 (Tr. pp. 1, 146).  At the hearing, respondent submitted into evidence a one-page "Final Notice of Recommendation" (FNR) dated June 16, 2005 (see Dist. Ex. 16), which respondent maintains was mailed to petitioner on or about the date indicated on the document (see Tr. pp. 18-19, 154-55).  A placement officer for respondent testified that his assistant prepared the FNR at issue and mailed it to petitioner (Tr. pp. 154-55).  He described his office's general procedures for mailing placement notices.  In his words, "Once we receive a site, we generate a final notice of recommendation.  We address it to the parent.  We carefully check the address that we received.  We forward it in the mail." (Tr. p. 154).  Respondent's placement officer also testified that his office keeps a copy of mailed placement notices (Tr. p. 153), and in the instant case, his office retained a copy of the student's FNR (Tr. p. 157).

 

Petitioner testified that she did not receive the FNR (Tr. pp. 36, 53).  She also testified that the FNR listed her correct address and that in the past she has received other mailings from respondent without difficulty (Tr. pp. 36-37, 53-54).  Petitioner explained that she never contacted the CSE to inquire about public school placement for the student because the CSE instructed her that it would send her written notice if it located a placement (Tr. p. 54).

 

In a decision dated March 3, 2006, the impartial hearing officer determined that respondent offered the student a FAPE for the 2005-06 school year and denied petitioner's request for funding for her son's tuition costs at Bay Ridge (IHO Decision, pp. 13-14).  The impartial hearing officer relied on the placement officer's testimony to find that respondent mailed the FNR to petitioner (id. at p. 6).  She rejected petitioner's assertion that the February 16, 2005 CSE was improperly constituted after determining that a social worker for respondent was an appropriate district representative because he testified that he was knowledgeable about the general curriculum and that he had access to documents relating to respondent's resources (id. at pp. 6-7).  The impartial hearing officer also rejected petitioner's assertion that the IEP was flawed for lack of specific and current performance levels and inappropriate goals (id. at pp. 7-10).  Specifically, the impartial hearing officer found it irrelevant that the IEP set forth test scores from 2003, because respondent's CSE district representative testified that the IEP goals were based upon the input from the teachers and other current information at the IEP meeting, and were not simply based on testing performed in 2003 (id. at p. 8).  The impartial hearing officer declined to find the student's goals in his IEP inappropriate (id. at p. 8-9).  She determined that respondent recommended an appropriate placement to the student (id. at 13), finding that the teacher who would have taught the student "is very successfully and energetically conducting the special education equivalent of a one room schoolhouse." (id. at 11).  The impartial hearing officer also found that the student would have an appropriate opportunity to achieve his annual goals at the offered placement despite a range of academic abilities in the class (id.).

 

On appeal, petitioner seeks a reversal of the impartial hearing officer's findings, requests that respondent's recommended program be found inappropriate, that Bay Ridge be found appropriate, and that respondent be ordered to provide funding for the student's tuition costs at Bay Ridge for the 2005-06 school year.  Petitioner does not seek reimbursement for out-of-pocket costs incurred prior to the impartial hearing related to providing her son educational services, nor does she seek additional services.  Specifically, petitioner makes the following assertions: 1) the impartial hearing officer erred in concluding that respondent mailed the FNR; 2) the February 16, 2005 CSE was improperly constituted; 3) the academic performance levels stated in the student's IEP were inappropriate because they were insufficiently detailed and outdated; 4) the goals indicated in the IEP only allowed the student to make trivial progress; 5) the recommended placement for the student was inappropriate because the students in the class were not of similar needs and abilities; 6) the recommended placement was inappropriate because the teachers were not adequately trained; and 7) the impartial hearing officer was not qualified.  Respondent denies petitioner's assertions and requests that petitioner's appeal be dismissed in its entirety.

 

As a preliminary matter, I note that the impartial hearing occurred after the United States Supreme Court issued its Schaffer v. Weast decision in which the Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." (Schaffer, 126 S.Ct. 528, 537 [2005]).  Accordingly, petitioner, as the party seeking relief, has the burden of persuasion to demonstrate that respondent failed to offer the student a FAPE.

 

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer, 126 S. Ct. at 531).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "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" (id.). 

 

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education 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, 206-07 [1982]).  The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

Initially, I must address petitioner's assertion that respondent did not mail the FNR.  New York law provides a presumption of mailing and receipt by the addressee where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829 [1978]).  "As long as there is adequate testimony by one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing" (In re Lumbermens Mutual Casualty Co. v. Collins, 135 A.D.2d 373, 374 [1st Dep't 1987]; but see Rhulen Agency, Inc. v. Gramercy Brokerage, Inc., 106 A.D.2d 725, 726 [3d Dep't 1984] ["It is necessary to prove by testimony of the person who mails them that letters are customarily placed in a certain receptacle and are invariably collected and placed in a mailbox."]).  In order to rebut the presumption of mailing and receipt, the addressee must show more than the mere denial of receipt and must demonstrate that the sender's "routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed" (Nassau Ins. Co., 46 N.Y.2d at 829-30). 

 

Here, the impartial hearing officer rejected petitioner's testimony that she did not receive the FNR.  I find no compelling reason to reverse the impartial hearing officer's determination.  A placement officer for respondent testified that his assistant prepared the FNR, carefully checked the address, mailed the FNR, and retained a copy in accordance with respondent's standard office procedures, thus giving rise to a presumption of mailing and receipt (Tr. pp. 153-54, 157; see Nassau Ins. Co., 46 N.Y.2d at 829).  Petitioner's claim that she did not receive the FNR is insufficient by itself to rebut the presumption (see Nassau Ins. Co., 46 N.Y.2d at 829-30).  I am not persuaded by petitioner's contention that no mailing should be deemed here because of the fact that respondent offered no proof of mailing or because of alleged "irregularities", like the fact that the date was typed on the FNR while the rest of the form was handwritten.  These arguments fail to overcome the presumption of mailing and receipt, especially here when petitioner testified that the address on the FNR was her correct address (Tr. p. 53).

 

Having deemed the FNR mailed, I turn to petitioner's procedural and substantive arguments that respondent failed to provide the student with a FAPE for the 2005-06 school year.

 

Petitioner contends that the February 16, 2005 CSE was improperly constituted because a social worker for respondent served as the district representative.  The CSE must include a representative of the district who is: (i) qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities; (ii) knowledgeable about the general curriculum; and (iii) knowledgeable about the availability of the resources of the school district (20 U.S.C. § 1414[d][1][B][iv]; 30 C.F.R. § 300.344[a][4]; 8 NYCRR 200.3[a][1][v]).  The IDEA does not restrict a school district from choosing which specific staff member will serve as its representative provided the district representative meets the above requirements (34 C.F.R. Part 300, Appendix A, Section 1, Question 22). It is important, however, that the district representative has the authority to commit district resources and be able to ensure that whatever services are set out in the IEP will actually be provided (id.). The Regulations of the Commissioner of Education additionally provide that the district representative may be the same individual appointed as the special education teacher or the school psychologist provided that such individual meets the above statutory qualifications (8 NYCRR 200.3[a][1][v]).

 

Petitioner also argues that the IEP is deficient in that it fails to adequately identify her son's present levels of performance and provides annual goals that only allow the student to make trivial progress.  An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 06-005; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

 

Formal test scores included on the student's 2005-06 IEP were two years old, however, the IEP contained current teacher estimates of instructional levels for the student in reading comprehension, writing, computation, and problem solving (Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  Respondent's CSE district representative testified that at the February 16, 2005 CSE meeting the director of Sterling provided current estimates of the student's instructional levels as well as reports from the student's teachers at Sterling (Tr. pp. 124-26).  He further testified that significant discussion was held regarding the student's present levels of performance (id.).  

 

Although petitioner testified that she was in agreement with the student's present levels of performance at the February 16, 2005 CSE meeting (Tr. p. 34), petitioner contends on appeal that the levels of academic performance on the 2005-06 IEP are outdated and insufficiently detailed.  I have reviewed the student's 2005-06 IEP and find that it does not adequately describe the student's present levels of performance.  Global statements such as "[the student's] decoding and encoding skills are deficient" and "[the student] puts in a lot of effort in writing" do not provide a meaningful description of the student's abilities or needs, nor provide sufficient specificity regarding the deficits that need to be addressed (see Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  For example, the 2005-06 IEP indicates that the student's decoding and encoding skills are deficient, however, the IEP does not describe the student's current decoding and encoding abilities, does not provide current evaluative data relative to decoding or encoding, nor state at what instructional level the student is capable of being taught decoding or encoding (see Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  Thus, I find that the statements on the student's IEP concerning his academic performance and needs do not adequately describe the student's present levels of performance (see Application of a Child with a Disability, Appeal No. 00-058 [rejecting an IEP that contained a number of conclusory statements about a student's academic performance and needs, such as "has moderate academic deficits"]).  The present levels of performance and individual needs outlined on a student's IEP serve as the foundation on which the CSE builds to identify goals and services to address the student's individual needs (see 34 C.F.R. Part 300, Appendix A, Section 1, Question 1; see also Office of Vocational and Educational Services for Individuals with Disabilities (VESID), “Sample Individualized Education Program and Guidance Document,” p. 40 [December 2002]).  Without developing an appropriate description of the student's present functioning, it is unclear how the CSE determined appropriate goals and objectives for petitioner's son.  However, the inadequacy of the present levels of performance as described herein does not in and of itself rise to a denial of a FAPE, particularly considering petitioner's opportunity for input and agreement with the levels during the formulation process.

 

Moreover, the record supports petitioner's contention that the annual goals are inadequate.  For example, the student's math goal states that the student will develop skills of operational math and problem solving at early sixth grade levels by June 2006 (Parent Ex. C at p. 6; Dist. Ex. 14 at p. 6), however, the present levels of performance on the IEP indicate that the student's instructional level for math was at a middle fifth grade level in February 2005 (Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  Thus, this goal seeks for the student to make less than a year's worth of progress in math, when in the previous year the student demonstrated more than a year and a half's worth of improvement  (compare Parent Ex. D at p. 3, with Parent Ex. C. at p. 3 and Dist. Ex. 14 at p. 3 [indicating that the student's instructional levels for math improved from low fourth grade levels to middle fifth grade levels in the course of a year]).  I must also note that the student's IEP contains a short-term objective related to decoding words from "Dolch" or similar word lists (Parent Ex. C at p. 6; Dist. Ex. 14 at p. 6).  The "Dolch" list contains the most frequently found words in books that children read, but cannot be sounded out or "decoded" because they do not follow decoding rules.  Words on the "Dolch" and similar word lists must be learned as "sight words."

 

Turning to petitioner's contention that the recommended placement is inappropriate, state regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a][3], 200.1[ww][3][i], 200.6[g][2]; Application of a Child with a Disability, Appeal No. 05-102; Application of a Child with a Disability, Appeal No. 03-023; Application of a Child with a Disability, Appeal No. 01-084).  The similarity of abilities and needs may be demonstrated with a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 94-7).  State regulations also require that the chronological age range among the students within special classes of students with disabilities who are less than 16 years of age is limited to 36 months (8 NYCRR 200.6[g][5]).

 

             Petitioner testified that respondent's CSE recommended a "special class in a community school", but did not identify a class for the student at the time of the CSE meeting on February 16, 2005 (Tr. pp. 35-36).  Respondent does not contend otherwise.  The IEP indicates that a "Notice of Recommendation" and the IEP were given to the parent on February 16, 2005 (see Parent Ex. C at p. 2; Dist. Ex. 14 at p. 2), however, petitioner testified that she did not receive the IEP on February 16, 2005 (Tr. pp. 57-58), and she received just the IEP in the mail sometime at the end of the 2004-05 school year (Tr. pp. 36-37).  Petitioner maintains that she never received the FNR (see Tr. pp. 36, 53).  Although the IEP states otherwise, there is no other indication in the record to suggest that respondent recommended a proposed class for the student prior to June 16, 2005 when respondent claimed to have mailed the FNR.

 

At the impartial hearing, a placement officer testified for respondent about the process he uses in locating classes, however, it should be noted that the placement officer who testified was not the placement officer responsible for determining the community class for petitioner's son (Tr. pp. 162-65).  The placement officer testified that when a class location for a student is requested from him, his primary goal is to place the student as close to home as possible (Tr. p. 162). When considering a potential classroom for a student, he indicated that he determines whether functional groupings and age ranges of the students are appropriate, and if students' reading and math scores are at similar levels (id.).  The placement officer further testified that when he is unfamiliar with either the related services being requested or information that may be noted in the "alerts" section of the placement request, he seeks assistance from a regional administrator of special education who is responsible for instruction at a proposed school, to determine the appropriateness of the class for a particular child (Tr. p. 163).  He also testified that if a request does not contain any unusual information or any special "alerts", he might not review a student's IEP (Tr. pp. 179-81).  The placement officer defined "alerts" by providing examples such as "[a student] needs a barrier free building, is wheelchair bound, . . .would probably benefit from being in a class with a male teacher" (Tr. p. 182).  The placement officer could not verify whether the placement officer responsible for determining an appropriate class placement for petitioner's son used a similar process. 

 

Testimony by respondent's placement officer reveals that he forwarded the student's IEP and a "cover page" to another regional placement officer to determine an appropriate placement for petitioner's son (Tr. p. 175).  The record contains an undated "Request for Placement" form (Parent Ex. Z).  The form indicates that the student's reading level is 4.0 and his math level is 5.0 (id.).  The program recommendation is for a 12:1 special class in a community school with related services of individual and group counseling (id.).  There are no "special alerts" identified on the form (see id.).  Based on the foregoing, the record indicates that respondent did not determine a proposed class for the student until sometime in June 2005, and the placement officer who made the determination did not participate in the February 16, 2005 CSE meeting, and may not have even looked at the IEP.  I turn now to petitioner's contention that the recommended placement did not match the student's needs. 

 

Petitioner argues that there is an unacceptably broad range of students in the recommended placement as demonstrated by the special education class roster dated November 18, 2005 for the proposed class.  The class roster indicates that the instructional levels for the students in the proposed class for reading ranged from kindergarten to fourth grade and in math ranged from kindergarten to fifth grade (Parent Ex. M at p. 2; Dist. Ex. 17).  Seven of the nine students in the class were at an instructional level below 4.4 in math and seven of the nine students in the class were at an instructional level below 2.1 in reading (id.).  Testimony from the social studies/science teacher of the proposed class and the special education coordinator of the proposed school indicated that the students were in the average to low average range of cognitive ability (Tr. pp. 232, 250).

 

In February 2005, at the time the student's IEP was being developed for the 2005-06 school year, the student's instructional levels were reported to be at the middle third grade level for reading comprehension, at the low third grade level for writing, and at the middle fifth grade level for math computation and problem solving skills (Tr. p. 35; Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  It is unknown from the record what his instructional levels for decoding and encoding were at the time of the development of his 2005-06 IEP (see Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  The student's academic management needs included use of a multisensory approach, direct and explicit teaching of phonological awareness skills, and use of manipulative materials in mathematics (Parent Ex. C at p. 3; Dist. Ex. 14 at p. 3).  The student was reported to be of average cognitive ability (id.).

 

            The teacher responsible for teaching social studies and science testified about the needs and abilities of the students currently enrolled in the class proposed for petitioner's son.  He testified that the current students in the class were working in the sixth, seventh, and eighth grade curriculums and that prior to the recent enrollment of a new student in his class, the highest instructional level for reading was second grade (Tr. pp. 223-24).  The teacher testified that he accommodated the range of reading abilities in the class by developing content worksheets for the students based upon their individual reading levels (Tr. p. 207), and using the "workshop model" approach where he provides a five to ten minute lesson to either the whole class or a small group, and then places the students into work groups according to "their level" (Tr. p. 213).  The teacher testified that he always used a multisensory approach in the class, which he defined as using an "overhead", computers, cassette tapes, and pictures from magazines (Tr. pp. 204-05, 226).  The teacher also testified that he had been taught the Wilson reading approach in college, that the approach was applicable to teaching social studies, and that he could use the approach with petitioner's son (Tr. pp. 216-17).  He stated that he had not heard of Orton Gillingham and that he was unaware of training specific to multisensory approaches (Tr. pp. 217, 226).  When asked if petitioner's son would have been appropriately placed in his class, the teacher responded that looking at the student's IEP, the student would be "a nice fit" because the other students in the classroom were "great," they always worked together, and they were very friendly (Tr. p. 211).  He further responded "I think he would be able to help us in certain areas" (id.).  The teacher was not able to elaborate on the methodologies used by the English and math teachers who would have taught petitioner's son other than to testify that the English teacher utilized Read 180, a computer based program that was individualized for each student (Tr. p. 218), and that the math teacher utilized the Impact Math program and grouped students according to their needs (Tr. p. 220). 

 

Respondent’s special education coordinator at the recommended placement testified that the Read 180 program used by the English teacher was a scripted computer program that allowed the students to work both independently and in small groups and that Read 180 was a multisensory program (Tr. p. 241).  He stated that the students "work together in groups,"  "work on the computer," "read passages," and the English teacher "ties it all together at the end" (id.).  The special education coordinator further testified that none of the teachers in the school used the Orton Gillingham or Wilson methods (Tr. pp. 238-39).  He also testified that the math teacher conducted an extremely thorough assessment of each student and tailored the regular math curriculum to each student's individual needs (Tr. pp. 241-42).  When asked if the proposed class was functionally appropriate for the students, respondent's special education coordinator responded that there was "no doubt" that a five year difference in instructional levels was "a lot of difference" and that he would prefer to have less of a range (Tr. p. 252).  He further testified, "It can be workable.  In groups, it can be workable" (id.).  In response to the question "Why is it done if you don't feel it's appropriate or you don't feel it's optimal to put students in [the class]?" he replied "when placement gives us a class, they put in kids as they see fit and as they have room" (Tr. pp. 252-53).  He indicated that if a school has a sufficient number of special classes, students can be moved around internally and stated that he has moved students to get a different mix of ranges (Tr. p. 253).  The special education coordinator also testified that no one on behalf of respondent sent a letter to the CSE or the parent about the ranges in the proposed class (Tr. p. 257).  He opined that the proposed class could have been appropriate for petitioner's son because the school was willing to get input from individuals who had previously worked with the student, the school was "pretty flexible," the school had a young enthusiastic staff, and the school was "technology heavy" (Tr. pp. 243-44). 

 

The director of the Bridge program at Bay Ridge, who had accompanied petitioner to observe the proposed class at respondent's school, testified on petitioner's behalf.  He testified that his relevant prior employment included the teaching of graduate courses in learning disabilities and developmental psychology as well as publication of book chapters and journal articles specific to learning disabilities and assessment (Tr. pp. 70-72).  When testifying about the range of instructional levels for reading in the proposed class, the Bridge program director questioned how respondent's teacher could effectively teach the student the reading skills he needed while trying to teach the other students in the class who needed a more basic level of skill instruction (Tr. p. 92).  He stated that in the past 20 years he had tested more than a thousand students and considered the students in the proposed class to be significantly delayed, much more so than most learning disabled students would be (id.).  He opined that it would be difficult to challenge petitioner's son in the proposed group and he might become a "peer tutor" for many of the other students (Tr. p. 94).  The director further opined that other than reading which is the student's primary need, petitioner's son could probably learn in a 12:1 class if it were composed of a relatively homogeneous group of students (Tr. p. 102). 

 

Based on the foregoing, I find petitioner's arguments on appeal persuasive that the student would not have been suitably grouped in respondent's proposed class and that petitioner offered sufficient persuasive evidence that the recommended program and placement were not reasonably calculated to enable the student to receive meaningful educational benefit.  The inadequate statement of present levels of performance pertaining to the primary special education need of the student (decoding), inadequate annual goals pertaining to math and reading, and inappropriate grouping as detailed above, collectively amounted to a denial of a FAPE for the 2005-06 school year.  In light of this determination, I need not address petitioner's assertion that the placement was inappropriate because the teachers were not adequately trained.  I also find that the hearing record was not sufficiently developed to determine petitioner's contention that the social worker was not an appropriate district representative, and given my determination herein on the adequacy of the student's program and offered placement, I need not make that determination.  I do, however, caution respondent to ensure that district representatives serving on CSEs meet the requirements of 20 U.S.C. § 1414[d][1][B][iv]; 30 C.F.R. § 300.344[a][4]; and 8 NYCRR 200.3[a][1][v].

 

Having determined that the record does not demonstrate that the student was offered a FAPE for the 2005-06 school year, I must now consider whether petitioner has met her burden of demonstrating that the placement selected for the student for that school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the 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).  A 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). 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 director of the Bridge program at Bay Ridge testified that the Bridge program is designed for students with different types of learning disorders (Tr. p. 73).  He testified that many of the students in the Bridge program have significant reading and writing difficulties, and some have trouble with math (id.).  Petitioner's son was reported to be in the average range of cognitive functioning, who exhibited difficulties with reading, writing, and math (Tr. p. 74).  At the Bridge program, the student was in a 7:1 language arts class, a 12:1 history class, a 12:1 science class, and a 12:1 math class (Tr. pp. 75, 85).  The student participated in general education computer and physical education classes (Tr. p. 75).

 

The director testified that the reading levels of the students grouped with petitioner's son are within approximately one year of his current level (Tr. p. 103).  The students' instructional levels for reading range from approximately high third grade to beginning fifth grade (id.).  The director testified that the math ranges are similar to those for reading (id.).

 

 At Bay Ridge, the student received approximately eight hours of instruction per week in language arts (Tr. p. 76), which is the student's primary area of need.  The director testified that the student's language arts teacher uses the "Language!" curriculum, which follows the basic tenets of Orton Gillingham; specifically sequential, systematic presentation of phonemic elements, use of multimodal presentation of materials, and teaching to mastery (Dist. Ex. 20 at p. 1; Tr. pp. 83-84).  The focus of the class is on decoding skills in order to improve the student's reading and writing skills (Tr. p. 76).  The director testified that the student received intensive instruction on breaking down and decoding words and was taught to memorize key sight words (Tr. pp. 76-77).  In language arts, students are also taught how to read for comprehension.  The director further testified that as a result of their reading disorder, the students have not read as well or as much as others and have not developed the ability to find the important information in order to understand the message of the author (Tr. p. 77).  He stated that the process of writing is incorporated in the language arts class, including brainstorming, developing drafts, and producing a finished piece (Tr. p. 78).  The director testified that language arts has an intensive focus in the Bridge program because it forms the foundation for the language that will occur in history or science classes (id.).  He opined that "if [the students] can't read, those other subjects will be much more difficult for them" (id.). 

 

The director testified that the student's math class is using a modified sixth grade curriculum, meaning that the essential topics have been culled out of the regular sixth grade curriculum in order to slow down the pace of the instruction for the students and provide opportunities for "over learning" to promote mastery of the material (Dist. Ex. 20 at p. 2; Tr. pp. 81-82).  Manipulatives and mnemonics are used as well (Dist. Ex. 20 at p. 2; Tr. pp. 81-82).  In earth science, the student's teacher has provided a very detailed study guide for the students to use with the textbook so they can cue in on critical elements (Tr. p. 85).  The teacher provides opportunities to "over practice" the vocabulary words, by teaching the students to break down the words by meaning and to tie them together with the key concepts (id.).

 

The director testified that the student also meets for a 20 minute advisory period in the morning and afternoon with a group of approximately four other students and a teacher (Tr. p. 87).  The purpose of the advisory is to help the student with his organizational skills by addressing questions or situations before the start of the day, ensuring the student is keeping track of his homework, tests, and projects, ensuring he knows what his assignments are and is taking the right materials to get it done properly (Tr. pp. 87-88).

 

At the time the student's 2005-06 IEP was developed, the student was reported to be of average cognitive ability, but he continued to struggle academically due to deficits in his phonological and visual perceptual skills, and his motor speed (Parent Ex. C at p. 3; Dist. Ex.  14 at p. 3).  He exhibited deficiencies in decoding, encoding, written expression, and organizational skills (id.).  By teacher estimate, the student's instructional levels were at the middle third grade level for reading comprehension, at the low third grade level for writing, and at the mid fifth grade level for math computation and problem solving (id.; Tr. p. 35).  The student's academic management needs included ongoing collaboration among all service providers, a slow and supervised transition to less restrictive settings, repetition and drill as well as use of manipulatives in math, and use of the multisensory approach and explicit teaching of phonological awareness skills (Parent Ex. C at p. 3; Dist. Ex.  14 at p. 3).  His proposed IEP contained goals and objectives related to reading, mathematics, writing, and social emotional needs (Parent Ex. C at pp. 6-7; Dist. Ex.  14 at pp. 6-7). 

 

Based on the foregoing, I find that the record demonstrates that the Bridge program placement was appropriate to meet the student's needs at the time placement was effectuated and that the student's academic needs were in fact addressed by the private school.  

 

The final criterion for an award of tuition reimbursement is that petitioner's claim be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Mrs. C., 226 F.3d at n. 9).

 

Tuition reimbursement may be reduced or denied, if, notwithstanding being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][10][C][iii], 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d],[e][4]).  Under this statutory provision, a reduction in reimbursement is discretionary (Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054; Application of a Child with a Disability, Appeal No. 00-027).  In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engage in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

 

Respondent contends that petitioner is not entitled to funding for her son's tuition costs because the equities do not favor petitioner's claim.  Specifically, respondent contends that the equities do not favor petitioner because she claimed that she did not receive the FNR and she failed to contact respondent when she allegedly did not receive the placement notice.  The record indicates that petitioner provided notice by letter dated August 19, 2005 that she intended to enroll the student at Bay Ridge at public expense because respondent failed to offer an appropriate placement (Parent Ex. B).  Respondent does not assert that it would have taken steps to revisit the appropriateness of the offered program and placement had it received earlier notice, nor does the record demonstrate that it took any steps to revisit the appropriateness of the offered program subsequent to the receipt of notice of the private school placement.  Respondent also argues that the equities do not favor petitioner because she failed to inform the February 2005 CSE that she had already looked at private schools for the 2005-06 school year.  Although petitioner may have explored the possibility of her son attending another private school before the February 2005 CSE meeting, I am not persuaded that the record supports a finding that the petitioner had no intention of sending her son to a public school during the 2005-06 school year (see Application of the Bd. of Educ., Appeal No. 04-045).  Petitioner testified that she would have accepted an appropriate public school placement for her son (Tr. p. 57).  The reading of the entire record does not controvert that testimony. Moreover, the record reflects that petitioner was advised by the CSE to wait for a placement notice subsequent to the CSE meeting, and in the absence of receipt of a placement notice that petitioner's son may very well have to remain in a private school for the 2005-06 school year (see Tr. p. 36).  Under the circumstances of this case, I find that the parental notice of unilateral placement at public expense was adequate.  In determining that the equities favor petitioner, I note that the record reveals that petitioner attended CSE meetings and cooperated with respondent's CSE  (see Tr. p. 29).

 

Accordingly, based upon my examination of the entire hearing record, I find that the evidence demonstrates that petitioner's son was not offered a FAPE by respondent for the 2005-06 school year, that the Bay Ridge placement was appropriate, and that equitable considerations support petitioner's claims.  However, petitioner also seeks an order directing respondent to pay her son's tuition costs directly to Bay Ridge for the 2005-06 school year and I decline to award such relief for the reasons set forth below. 

 

The record reflects that at the time of the hearing and at the time of this appeal, petitioner's son was attending private school for the 2005-06 school year and petitioner had incurred no out of pocket tuition expenses (see Dist. Ex. 23; Parent Ex. Y at p. 1).  It is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk (Burlington, 471 U.S. at 373-74).  The United States Supreme Court in Burlington held that retroactive reimbursement of private educational expenses is appropriate as an available remedy under IDEA (see Burlington, 471 U.S. at pp. 370-71).

 

[C]ourts may award retrospective reimbursement of out-of-pocket expenses incurred by parents who place their child in private schools if the "private school placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate."

 

P.J. v. State of Conn. Bd. of Educ., 788 F. Supp. 673, 683 [D. Conn. 1992] [emphasis added]  [quoting Burlington, 471 U.S. at 370]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005] [noting the availability of "retroactive tuition reimbursement" under IDEA]; Muller v. Comm. on Spec. Ed. of East Islip, 145 F.3d 95 [2d Cir. 1998] [holding that compensation for "out of pocket expenses" was appropriate]; 34 C.F.R. § 300.403[c] [noting the potential availability of "reimbursement" under IDEA]; Application of the New York City Dept. of Educ., Appeal No. 05-073.  Additionally, Burlington/Carter "relief" has been codified at 20 U.S.C. § 1412[a][10][C][ii] (see also 34 C.F.R. § 300.403[c]).  It is also settled that monetary damages are not available under the IDEA (Taylor v. Vt. Dep't. of Educ., 313 F.3d 768, 786 n.14 [2d Cir. 2002]; Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2002]).  Reimbursement is distinguished from monetary damages by the Supreme Court in that reimbursement "merely requires the [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, 471 U.S. at 370-71; Carter, 510 U.S. 7; see Muller v. Comm. on Special Educ., 145 F.3d 95, 105 [2d Cir. 1998]).  At least one circuit court of appeals has noted that where neither the parents nor the student actually paid for private educational services, they had no standing to seek reimbursement under IDEA (see, e.g., Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 297-99 [4th Cir. 2005]; Piedmont Behavioral Health Center LLC v. Stewart, 413 F. Supp. 2d 746, 755-56 [S.D. W.Va. 2006]). 

 

In the present case, petitioner asserts that she is unable to pay the cost of tuition at Bay Ridge and that she has made no tuition payments (Parent Exs. K at p. 1, Y at p. 1; Tr. pp. 44-45).  The record also reflects that petitioner has been attending non-approved private schools for approximately the past four years and has attended Bay Ridge for the 2005-06 school year without paying tuition.  Regarding the school year in dispute, petitioner entered into a contract with Bay Ridge in which Bay Ridge assumed the risk of non-payment of tuition from petitioner and respondent if petitioner agreed to cooperate in efforts to secure funding from respondent (Parent Ex. Y at p. 2; Dist. Ex. 24).  Under the circumstances of this case, petitioner is essentially asserting a claim on appeal more on behalf of Bay Ridge, a non-party not entitled to relief under the IDEA, than her son (see Application of a Child with Disability, Appeal No. 05-044).  Petitioner requests that I issue an order directing respondent to pay tuition costs directly to Bay Ridge.  Under the facts of this case, I decline to do so.  Petitioner cites a New York district court decision for the proposition that respondent should be ordered to pay tuition costs directly to Bay Ridge under the facts presented herein (Connors v. Mills, 34 F. Supp. 2d 795 [N.D.N.Y. 1998]).  In Connors, the court dismissed the parent's claim for tuition costs and in dicta discussed the concept of "prospective" tuition payment after the court made a finding that the school district conceded that it could not provide an appropriate education for the child and the private school could (Connors, 34 F. Supp. 2d at 799).  Here, there is no concession by respondent that it cannot offer the student a FAPE, moreover, the record demonstrates that this student can be provided a FAPE in a public school setting.  Under the circumstances of this case, an order for a district to pay tuition costs at an unapproved placement is appropriate only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services (20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]; see generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; A.A. v. Bd. of Educ., 196 F. Supp.2d 259 [E.D.N.Y. 2002]; Application of the Bd. of Educ., Appeal No. 04-037). 

 

Under the circumstances of this case, I decline to direct that respondent pay tuition costs directly to Bay Ridge.  Respondent shall provide reimbursement to petitioner for the cost of the student's tuition at Bay Ridge for the 2005-06 school year upon petitioner's presentation of proof of payment of such tuition.  

 

 I have also considered petitioner's contention that the impartial hearing officer was not qualified to serve as an impartial hearing officer.  After carefully reviewing the entire transcript of the hearing, including the impartial hearing officer's interaction with the parties and the text of her fourteen page decision, I find no evidence to support petitioner's contention.  Although petitioner disagrees with the conclusions reached by the impartial hearing officer, that disagreement does not provide a basis for finding actual or apparent bias by the impartial hearing officer (Application of a Child with a Disability, Appeal No. 06-013; Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75).

 

In conclusion, the record demonstrates that petitioner's son can be appropriately educated in a public school setting.  Moreover, petitioner has indicated her interest in having her son attend public school.  I will direct that respondent take appropriate steps to secure such a public school placement for the 2006-07 school year consistent with the requirements of the IDEA. 

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it found that respondent offered an appropriate educational program to petitioner's son for the 2005-06 school year; and

            IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her son's tuition at Bay Ridge for the 2005-06 school year upon petitioner's submission of proof of payment for such tuition expenses; and

IT IS FURTHER ORDERED, if it has not done so already, that respondent shall convene a CSE within fifteen calendar days from the date of this decision and shall recommend an appropriate program and secure an appropriate public school placement in the least restrictive environment for the student for the 2006-07 school year.

                       

Dated:

Albany, New York

 

__________________________

 

June 7, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004]).  Since the underlying events at issue in this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEA do not apply, and citations contained in this decision are to the statute as it existed prior to the 2004 amendments, unless otherwise specified.

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).