The State Education Department
State Review Officer
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel
Neal Howard Rosenberg, Esq. attorney for respondents
Petitioner, the New York City Department of Education (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 and residential costs at the Hyde School (Hyde) for summer 2005 and the 2005-06 school year. The appeal must be sustained in part.
The student was 16 years old and in the tenth grade at Hyde at the commencement of the impartial hearing on January 5, 2006 (Dist. Exs. 2; 25 at p. 1; see Dist. Ex. 26).1 The student began attending Hyde in summer 2005 and remained at Hyde for the 2005-06 school year (Tr. pp. 424-25). Hyde is a private residential school located in Connecticut. The Commissioner of Education has not approved Hyde as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]). The student is diagnosed with an attention deficit hyperactivity disorder (ADHD), Asperger's Syndrome, Oppositional-Defiant Disorder (ODD), Conduct Disorder, and Mood Disorder (Parent Ex. H at p. 4; Dist. Ex. 16 at p. 7).2 The student's eligibility for special education programs and services and classification as a student with an emotional disturbance (see 8 NYCRR 200.1[zz]) is not in dispute in this appeal. Also not disputed by the parties is that a residential placement is appropriate given the student's special education needs.
For purpose of context, a review of the student's educational history is appropriate. The student attended public school from first through fifth grade (Dist. Ex. 16 at p. 3). In 1997, at the age of eight, the student was diagnosed by a child psychiatrist with an ADHD-combined type and was prescribed medication (id.). A psychoeducational evaluation of the student that same year yielded a verbal IQ score of 123 (superior) and a performance IQ score of 98 (average) (id.). Although her visual-motor integration test scores were approximately one year below age level, the student's academic achievement test scores were above grade level (id.). Respondents placed the student in a private school for sixth grade, but removed her in the middle of the school year due to an increase in withdrawn behavior at school and oppositional behavior at home (id.). Respondents home schooled the student for the remainder of sixth grade and all of seventh grade (Parent Ex. W at p. 3; Dist. Ex. 16 at p. 3).
In 2001, at the end of her sixth grade year, respondents obtained another psychoeducational evaluation of the student (Dist. Ex. 16 at p. 4). Although still within the average range, intelligence test results indicated the student's verbal IQ score declined substantially from the 1997 evaluation and the student demonstrated "average to below average visual-motor integration skills" and weakness in active working memory (id.). The examiner reported the student's reading skills were above average but her reading comprehension skills were in the average range (id.). The student demonstrated significant weakness in math; achieving a conceptual math score in the 18th percentile and a math computation score in the 13th percentile (id.). The examiner concluded that while the student exhibited strengths in her fund of information, vocabulary, verbal fluency and visual recognition memory, she found the student to have significant weakness in visual-spatial organization, non-verbal problem solving, and working memory (id.). The student also exhibited dysgraphia and slow processing speed (id.). Despite administration of medication for ADHD, the examiner reported the student showed weak executive functioning skills (id.). The examiner indicated that the student was "socially immature for her age" and suffered from low self-esteem (id.). Administration of a behavior checklist to the student yielded scores in the clinical range for social problems, attention problems and delinquent behavior, with borderline clinical range scores for withdrawn and aggressive behavior (id.).
In October 2002, a clinical psychologist from the Yale University School of Medicine, Department of Psychiatry privately evaluated the student due to her "longstanding, chronic" problems with inattention and behavior (Tr. p. 370; Dist. Ex. 16). In January 2003, respondents obtained the services of the Director of Child and Adolescent Psychiatry of North Shore Children's Hospital, a private psychiatrist, for the student (Tr. pp. 416-17; Dist. Ex. 14).
During the 2002-03 school year for eighth grade, respondents placed the student at Bay Ridge Preparatory School (Bay Ridge) in Brooklyn, New York, which she attended through ninth grade (Dist. Ex. 16 at p. 1). While at Bay Ridge, the student received five day per week math support services and worked with an advisor who assisted the student with organization (Parent Ex. W at p. 3). During ninth grade, the student exhibited behavior problems at school and failed "most" of her classes because she did not study or complete homework (Parent Ex. W at p. 3; Dist. Ex. 16 at p. 1). Due to her behavior problems and academic failures, the student did not attend Bay Ridge for tenth grade during the 2004-05 school year (Parent Ex. W at p. 3; Dist. Ex. 16 at p. 1).
An August 2004 administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) to the student by the private clinical psychologist yielded a verbal comprehension index score of 119 (high average), and scores in the average range for the perceptual reasoning index, the working memory index, and the processing speed index (Dist. Ex. 17 at pp. 1, 2). The student's full scale IQ score of 105 was in the average range of cognitive functioning (Dist. Ex. 17 at p. 1). The private clinical psychologist stated in his report that the student's overall cognitive ability cannot easily be summarized because her verbal reasoning abilities are much better developed than her nonverbal reasoning abilities (Dist. Ex. 17 at pp. 1, 4). The Wechsler Individual Achievement Test-Second Edition (WIAT-II) was administered to the student to assess her academic achievement (Dist. Ex. 17 at p. 3). The student achieved a reading composite score in the 81st percentile, but the private clinical psychologist's report stated that it might not be the most accurate manner in which to summarize her reading skills because the student performed better on tasks that assessed her ability to read printed words rather than on reading comprehension tasks (Dist. Ex. 17 at pp. 3, 12). The student's written language composite standard score and spelling standard scores were in the high average range (Dist. Ex. 17 at p. 4). The student achieved a math composite score in the third percentile indicating overall mathematic skills in the borderline range (Dist. Ex. 17 at pp. 3, 12). The private clinical psychologist concluded that the student was a "bright girl with high average verbal skills" who exhibited a specific learning disability in mathematics (Dist. Ex. 17 at p. 4).
Respondents enrolled the student in petitioners' Riverdale/Kingsbridge Academy (RKA) for tenth grade during the 2004-05 school year (Tr. p. 141; Dist. Ex. 16 at p. 1). In September 2004, the student's mother contacted the assistant principal of RKA to schedule a meeting to discuss the student (id.). On September 24, 2004, the student's mother met with the assistant principal, parent coordinator and the student's guidance counselor (Tr. p. 143). At the meeting, the student's mother reported that the student had received special education services in the past (Tr. p. 144).3 By the end of the first marking period in early November 2004, the student had failed four academic subjects and received a grade of 65 in English (Parent Ex. R). Later that month the assistant principal of the school that the student attended met with the student's mother to discuss the student's report card, the student's consistency in medication for her ADHD and what assistance petitioner could offer the student (Dist. Ex. 31). As a result of that meeting, the assistant principal agreed to request an additional set of books for the student, to obtain phone numbers for math tutors and to submit respondent mother's request for evaluation to the School Based Support Team (SBST) (id.). The student's mother, among other things, was asked to write a letter referring the student to petitioners' Committee on Special Education (CSE), meet with the school nurse to arrange for medication administration at school, and investigate after school tutoring/homework assistance (id.).
Respondents' referral of their daughter to petitioner's' CSE was received on December 13, 2004 (Tr. p. 29). In January 2005, the student's teachers indicated she was having difficulty completing homework, participating in class, taking notes off the board, and attending to instruction (Dist. Exs. 18-21). On January 13, 2005, a principal's suspension hearing was held following an incident where the student wrote a note that indicated her desire to "turn into a tiger and kill [the teacher]" (Parent Ex. Z). The suspension hearing resulted in a five-day suspension from school (id.). In January 2005, petitioner's social worker and the student's mother unsuccessfully attempted to arrange meetings to complete the consent to evaluate and the student's social history (Tr. pp. 403, 405; Dist. Exs. 24, 32). In her last contact with petitioner, the student's mother indicated she would not be available to meet for a few weeks due to a serious illness in the family (Dist. Ex. 24). By letter dated January 24, 2005, the CSE closed the student's case because it could not meet with the student's mother prior to the "compliance date" (Dist. Ex. 32). The letter further noted that when the student's mother was available in the future to meet with the SBST she could call at any time to "re-open the case" (id.). The student stopped attending petitioner's school on January 25, 2005 (Tr. p. 161). By letter dated February 17, 2005 the student's mother wrote to the CSE informing it the student was absent from school on the advice of her doctors and requested information on how to initiate homebound instruction (Dist. Ex. 33). On February 28, 2005, the assistant principal of RKA sent the student's mother forms and instructions necessary to request home instruction (Dist. Ex. 34 at p. 1).
In February 2005, the private clinical psychologist compiled a report of his consultations with the student from October 2002 through February 2005 (Dist. Ex. 16). His report documented the student's behavior problems such as stealing from her family, defying parental directives, deliberately damaging belongings of other, taunting her younger sister and exhibiting "infrequent" episodes of "bizarre behaviors," including making cat sounds and repetitively lunging at family members (Dist. Ex. 16 at p. 2). Administration of the Brown Attention Deficit Disorder Scale for Adolescents to the student yielded T-scores over 60 (clinically significant) for the five separate clusters of ADHD related symptoms (Dist. Ex. 16 at p. 6). His report stated the student met the DSM-IV diagnostic criteria for ADHD-combined type (severe), ODD (severe) and Conduct Disorder, Childhood Onset Type (moderate) (Dist. Ex. 16 at p. 7). He concluded the student was "decompensating in multiple areas of functioning" and in need of residential treatment so that she "can get an appropriate education in a structure that will attend to the emotional and behavioral problems that seriously interfere with her academic and social functioning" (Dist. Ex. 16 at p. 2). He also noted "in order to prevent further decompensation the residential setting should be a "treatment setting" with a "structured therapeutic environment" (Dist. Ex. 16 at p. 8).
A March 11, 2005 letter from the private psychiatrist indicated that the student was engaged in "extraordinarily dangerous things with the kids in her local school" to the point he opined that she required a therapeutic school setting with a staff that could provide 24 hour residential services and who are expert in the education of students with Nonverbal Learning Disability (Dist. Ex. 14). The private psychiatrist advised without such a placement the student was at a "very significant risk of deterioration and significant harm" (id.).
On or about March 17, 2005 the student's mother submitted a Home Instruction Referral Form to the Bronx Home Instruction Office (Tr. pp. 407-08; Dist. Ex. 34 at pp. 2-3). By letter dated March 24, 2005, the Bronx Home Instruction Office notified the student's mother that because the student was referred for home instruction for psychological reasons, it could not initiate home instruction services until the student was reviewed by the CSE (Tr. pp. 154-55, 408). In February and March 2005, the student and her mother participated in interviews at the Franklin Academy, the Learning Clinic and Hyde (Tr. pp. 413-14, 438).
In April 2005, the private clinical psychologist stated that since February 2005 the student had become "even more unmanageable" at home including episodes of defying parental rules and writing a note stating she had been thinking of killing herself (Dist. Ex. 13 at p. 1). He opined that the student was in need of immediate placement in an appropriate residential treatment center and until that placement was established that she be provided with homebound tutoring (id.).
In letters dated March 30, April 14, April 28, and May 5, 2005 respondents requested that the CSE reopen their daughter's case and evaluate her due to her need for a residential placement (Dist. Ex. 35; Parent Exs. I, J, X). On April 19, 2005, a social history interview of the student's mother was conducted (Parent Ex. W). The school social worker reported that the student's mother felt the student needed a boarding or residential school (Parent Ex. W at p. 5). The student's mother reported the student has a "serious impairment," poor judgment and the potential to be victimized by others (id.). The student's mother provided the school social worker with information from the student's private clinical psychologist, private psychiatrist, general physician and other "current materials" (Tr. p. 435). The student's mother stated later that day she and her husband were reported to the Administration for Children Services (ACS) for educational neglect (Tr. pp. 410-11; Dist. Ex. 36). The student's mother indicated the representative from ACS visited her home and told her the student must be in school (Tr. pp. 411-12). On May 10, 2005, respondents enrolled the student at the Robert Louis Stevenson School, which she attended for the remainder of the 2004-05 school year (Tr. pp. 412-13; Dist. Ex. 37).
In a May 2005 psychopharmacology evaluation report of the student the private psychiatrist noted that over the past year the student has had a significant deterioration in her function and at the time of the report exhibited poor planning and impulsive behaviors which affected her self-esteem and put her "in harms way" (Parent Ex. H at p. 1). He reported the student's behavior at home was "out of control," and included both verbal and physical aggression toward others (id.). The student also was reported to demonstrate self-injurious behavior such as cutting herself as well as making threats of wanting to be dead or hurting herself (Parent Ex. H at pp. 1, 3). The private psychiatrist concluded that the student should be placed in a structured, therapeutic program that could address her social, emotional and cognitive needs (Parent Ex. H at pp. 4, 5).
The CSE met on May 16, 2005 and determined the student was eligible for special education as a student with an emotional disturbance (Dist. Exs. 2, 22; Tr. p. 47). The CSE also determined that the student exhibited a significant discrepancy between her full scale IQ score and math achievement scores (Dist. Exs. 17 at p. 1; 23). Both the student's parents attended the CSE meeting (Dist. Ex. 2 at p. 2). The student's mother testified she provided the CSE with "reports" and documentation regarding the student's difficulties (Tr. pp. 405-06, 410). The school psychologist who attended the CSE meeting testified that the CSE reviewed a "great deal of clinical documentation," including reports from the student's private psychiatrist and private clinical psychologist (Tr. pp. 27, 45, 46). The resultant individualized education program (IEP) includes statements such as the student "has become unmanageable at home and is decompensating in many areas of functioning. [The student] has placed herself at risk by sneaking out at night, has engaged in dangerous cutting behavior and has explored inappropriate internet websites. More recently, she has expressed a wish to hurt herself in a note to her parents" (Dist. Ex. 2 at p. 4). The record reflects the respondents participated at the May 16, 2005 CSE meeting where the student's present levels of performance were developed (Tr. p. 44, 63; Dist. Ex. 2 at p. 2). There is no evidence in the record that the student's parents disagreed with the characterization of the student provided by her private clinical psychologist, private psychiatrist or contained in the present levels of performance in her IEP (Dist. Ex. 2 at pp. 3-5).
The CSE prepared annual goals and short-term objectives for the student in the areas of counseling, study skills/organization and math (Dist. Ex. 2 at pp. 6-11). The school psychologist who participated in the May 16, 2005 CSE meeting testified the goals were based upon the student's strengths and weaknesses that were mentioned in the clinical, teacher and parent reports (Tr. pp. 27, 32, 47).4 The student was determined eligible for testing accommodations such as extended time, special location and use of a calculator (Dist. Ex. 2 at p. 14). The long term adult outcomes contained in the May 2005 IEP's transition plan indicated the student will integrate into the community independently, attend a post secondary institution for a bachelor of arts degree, live independently and be competitively employed (Dist. Ex. 2 at p. 15). The student's IEP included a behavior intervention plan that described general behaviors that interfered with the student's learning and recommended strategies to change the student's behaviors as well as supports to assist the student in changing the behaviors (Dist. Ex. 2 at p. 17). Relying in part on the clinical reports by the student's psychiatrist and psychologist (Tr. p. 46), with full participation afforded CSE members (Tr. p. 64), the CSE devised an IEP that recommended that the student be referred to the Center Based Support Team (CBST) for placement in a 12:1:1 "highly structured and supportive, therapeutic" residential setting with the related service of group and individual counseling (Dist. Ex. 2 at pp. 1, 12, 14).
Over the summer 2005, the student attended a five-week program at Hyde (Tr. p. 424; Dist. Ex. 10 at p. 1; Parent Ex. DD). Also during that summer petitioner's CBST sent packets of information regarding the student to nine state-approved residential placements, several of which indicated they were interested in accepting the student if provided with additional information and parental consent to place her (Dist. Exs. 3 4, 5, 7, 9). The student's mother visited the two in-state residential placements and spoke on the phone with representatives from the two out-of-state residential placements that responded to the CBST referrals of the student (Parent Ex. F; Dist. Ex., 6, 8, 10). On or about August 18, 2005, KidsPeace National Centers notified the CBST that the student was an appropriate candidate for its "Combined Program" (Dist. Ex. 7). The school required voluntary agreement from the student and completed forms from the New York State Education Department in order for the student to be admitted (id.). By letter dated September 7, 2005, after a telephone conversation with a representative from KidsPeace and Internet research, the student's mother informed the CBST that the school was inappropriate for her daughter (Dist. Ex. 8). By letter dated September 6, 2005, Greenburgh-North Castle informed the CBST it accepted the student for "immediate placement"; however, needed additional information including a parental consent form (Dist. Ex. 4). The student's mother, after visiting the school, had sent a letter dated July 11, 2005 to the CBST outlining her reasons why that school was not appropriate for the student (Parent Ex. F). By letter dated September 9, 2005, the CBST was notified by Lake Grove that it was unable to make a decision whether the student was appropriate for the school or not and preferred to conduct a "personal interview"; however, the letter also noted that the student's parents had notified the school they did not find it appropriate for the student (Dist. Ex. 9). The student's mother had previously notified the CBST by letter dated August 26, 2005 that after visiting and meeting with a representative of the school, she found Lake Grove inappropriate for her daughter (Dist. Ex. 10).
In four separate letters, respondents informed the CBST that none of the four proposed residential placements were appropriate for the student (Parent Ex. F; Dist. Ex., 6, 8, 10). A CBST staff member testified that subsequent to the CBST's receipt of the parent's fourth letter, the case was referred "back to the District" and then "the District has to in turn meet with the parent." (Tr. p. 218). The CBST staff member testified that "nothing further" happened at her end after that, that "(t)he district then has to take a look" (id.), and that she was waiting for the decision from the CSE (Tr. pp. 218, 234). The CBST staff member also indicated that she would have notified the CSE of the four schools' initial interest in the student (Tr. p. 219) and it was her understanding that the CSE was supposed to reconvene after that (Tr. pp. 219, 220). The record does not indicate that the CSE reconvened at any time subsequent to its May 16, 2005 meeting and the student's mother testified that the CSE did not contact her for such a purpose (Tr. p. 427). On August 12, 2005, respondents signed a boarding enrollment contract with Hyde for the student's attendance there for the 2005-06 school year (Dist. Ex. 29).
For the 2005-06 school year, the student was enrolled at Hyde. During the fall trimester term, the student was instructed in English, World History, French, Algebra and participated in the Learning Enhancement Academic Development (LEAD) program that provided "motivational and remedial" academic support (Tr. pp. 462-63, 472, 483; Dist. Ex. 25). The student also was enrolled in "Math Enhancement" a program described as addressing each student's individual math needs and deficiencies; as well as reinforcing concepts presented in the student's current math class (Dist. Ex. 25 at p. 4). The student's fall trimester effort/achievement grades were in the 72-90 and 74-86 ranges, respectively (Dist. Ex. 25).
Hyde offers a traditional academic curriculum for students with a range of academic ability including those who need remedial classes (Tr. p. 460). Although Hyde does not employ certified special education teachers, it does offer the LEAD program that provides extra learning support (Tr. pp. 479, 484, 510). Hyde accepts students that for some reason are "not making it" in the regular school system or at home (Tr. p. 461). Hyde considers itself a "family based character education school" in that they work on a child's character as much as their academic growth (Tr. pp. 461, 477). The director of admissions characterized Hyde as a "sped up 12 step program"(Tr. p. 503). Literature in the record states that two of Hyde's campuses offer professional counseling opportunities (Dist. Ex. 30 at p. 13). Parental involvement activities facilitated by Hyde include journaling, monthly regional meetings, family weekends, contact with parents at least four times per year, and conference calls between discovery group leaders, students and their parents (Tr. pp. 467-68).
Literature entered into the record about Hyde reveals its focus on character development (Dist. Ex. 30). Hyde literature states it offers a holistic approach to personal and family growth has often proved to "coincidentally" help many teenagers with issues pertaining to a given diagnosis (Dist. Ex. 30 at p. 3). The school's largest group of students, prior to entering Hyde, performed poorly in school, behaved badly or both and some have psychological and cognitive diagnoses (Dist. Ex. 30 at p. 9). Hyde states that parents of these children are often attracted to Hyde because of a preference for a "normal" college preparatory program as opposed to a special or therapeutic model (id.).
For students in need of academic remediation, Hyde offers math and writing support classes in addition to the regular academic curriculum (Tr. p. 463). Individual tutoring and guided study hall services are also available (Tr. pp. 463, 498). Faculty allows extra test time, extra help and the opportunity to take a re-test (Tr. p. 463). Hyde has a computer lab, a language specialist and math specialist (id.). The director of LEAD testified, "you can get help in any subject that you're struggling in" (id.). In fall 2005, the student participated in the math enhancement class and guided study hall program that met for two hours per night (Tr. pp. 472, 483, 499).
Hyde literature states "There are ample opportunities for students to engage in illicit behavior if they are intent upon doing so" and although students can "earn" a more restrictive lifestyle at the Hyde Wilderness School in Maine, Hyde is "neither prepared nor inclined to function in as restrictive a manner as a therapeutic boarding school" (Dist. Ex. 30 at p. 10). Hyde states it is not a therapeutic school and if a therapeutic effect is achieved it is "residual"; the primary mission is to teach a "philosophy of life" (Dist. Ex. 30 at p. 13). The school does offer the LEAD program for students with learning differences and "professional counseling opportunities" for students with emotional "issues" (id.). Hyde's literature states during the admission process it urges parents to consider other educational opportunities if their primary concern is a learning disability or an emotional issue because Hyde will not concern itself primarily with either (Dist. Ex. 30 at p. 14). Parents should only pursue Hyde if they want to focus primarily on a program committed to "family based character education" (id.). The student's mother testified she is aware that Hyde's website states it is a "character building school" (Tr. p. 443).
In February 2005, the student participated in a two to three hour interview with the director of admissions of Hyde (Tr. pp. 497, 500). Although the director of admissions testified she was not sure Hyde would be the right place for the student, the student was accepted prior to June 2005 (Tr. pp. 500, 506). The hesitancy surrounding accepting the student at Hyde was due to her low math scores (Tr. p. 520). The director of admissions testified she was not provided with the private psychiatrist's May 2005 psychopharmacology report (Dist. Ex. 12), or his letter of March 11, 2005 (Dist. Ex. 14), both of which recommended a therapeutic school setting (Tr. pp. 506-510). She testified she was not aware that the student's doctors recommended a highly structured therapeutic program that specializes in children with Asperger's Syndrome (Tr. pp. 509-10).
The May 2005 psychiatry's psychopharmacology report states the student needs to continue her medication regime and without the current amount of stimulant medication she is "considerably more impulsive and more out of control" (Parent Ex. H at pp. 2, 4). The student's mother testified under certain circumstances that the student requires psychotropic medications "a lot" (Tr. p. 444). The record reflects prior non-compliance with the student's medication treatment regime. In November 2004, petitioner's assistant principal asked the student's mother to meet with the school nurse to arrange for administration of the student's medication at school (Dist. Ex. 31 at p. 2). The assistant principal testified at the hearing that her understanding from the school nurse is that in December 2004 the student's mother brought in medication for the student (Tr. pp. 147-48). She indicated the student did not take the medication and about a week later, her mother came and picked up the medication supply (Tr. p. 148). Hyde's medication policy is that if a student is supposed to take medication they are responsible for taking it at the appropriate time (Tr. p. 511; Dist. Ex. 30 at p. 9).
Students are placed in "discovery groups" that are composed of eight to ten students and two to three faculty members (Tr. pp. 461, 484-85). Discovery groups are held twice weekly with the same discovery group leader for the whole year (Tr. p. 470). Although not run by therapists, the discovery group is considered a therapeutic gathering oriented toward personal growth and where most of the "emotional work" is done during the year (Tr. pp. 461, 484-85, 503). Discovery groups use peer observation and positive peer pressure to facilitate positive change (Tr. pp. 461, 466, 503). In addition to the discovery groups, Hyde requires students to participate on sports teams and in performing arts (Tr. p. 461). Hyde also offers journaling and self-esteem building activities, and campus jobs (Tr. pp. 462, 466). Daily morning and twice-weekly evening "wing" meetings are held to discuss students' personal goals for the day (Tr. p. 469).
For students who are not participating "properly," have attitude problems or who have broken ethics rules, Hyde uses a variety of behavioral consequences (Tr. p. 465). The main behavioral consequence is called a "2-4 work detail program," in which the students are "mentally" taken out of the community and sit separately in the cafeteria from the rest of the students and join the maintenance and facilities staff (Tr. p. 465). Hyde also uses 5:30 am workouts (Tr. pp. 465-66; Dist. Ex. 30 at p. 12). For students who "may be struggling down here or need a little bit of extra…leadership opportunity" Hyde has a wilderness program in Maine which the student has been to twice, for "growth opportunities" (Tr. pp. 464, 471, 481-82; Dist. Ex. 30 at p. 12). Hyde uses student leaders to hold underclassmen accountable. The assistant dean of students/director of LEAD testified "our first line of defense is always to use other students believing that peers have a greater sway over kids then we would," and "we try to, any opportunity we have, to use student leaders" (Tr. p. 466).
Testimony from the director of admissions states there are no psychiatrists or therapists employed and they do not practice psychotherapy at Hyde (Tr. p. 503). Testimony from the assistant dean of students states that Hyde trains faculty to provide social and emotional "support services," but that doesn't mean they are providing therapy, "they're simply using a model that we have here at Hyde, a certain philosophy around personal growth and attitude" (Tr. p. 477). There is a school counselor on staff; however, the director of admissions testified the student is not seeing a therapist (Tr. pp. 503, 521). The assistant dean of students/director of LEAD who has a MSW does not see individual students for therapy, but she does supervise the student's tutor in the LEAD program (Tr. pp. 488-89, 493).
Teacher comments contained in the student's Hyde fall 2005 grade report indicate that in English she exhibited a negative and sarcastic attitude, in World History she had not been in class much due to "continued ethical violations," and had little impact on the class (Dist. Ex. 25 at pp. 1, 2). The math enhancement teacher reported the student's frequent absence "plagued any momentum she seemed to gather," and her Algebra teacher commented the student approached her work with resignation (Dist. Ex. 25 at pp. 4, 5).
Fall 2005 grade reports indicate the student was instructed in English, World History, French and Algebra (Dist. Ex. 25). The student passed all her courses during the fall term (Dist. Ex. 25).
Teacher comments contained in the Hyde fall 2005 grade report include that the student was prepared for class and exhibited a strong work ethic, actively participated in class, was conscientious about making up missed work, her written work was thorough, she sought extra help, and was consistent with class responsibilities (Dist. Ex. 25).
Testimony from the assistant dean of students/director of LEAD revealed that when she met the student, the student appeared to be depressed and withdrawn (Tr. pp. 459, 464). She stated that the student had made "enormous strides" while at Hyde and at the time of the hearing was engaged socially and academically, and was one of the friendlier students on campus (Tr. pp. 464, 471-72). The assistant dean of students/director of LEAD stated the student's grades have improved and she had made "a lot of attitude adjustments" following her time spent in the Maine wilderness program (Tr. pp. 464-65). She reported the student takes very good advantage of the guided study hall program (Tr. p. 472). Although during the summer program the student was assigned "a couple of times" to work detail, she reportedly did not have any disciplinary "issues" (Tr. pp. 490-91). The director of admissions testified that when she first met the student the student was quiet and withdrawn (Tr. pp. 497, 500). She stated that now the student has many friends, she participates in class and has made "significant growth" (Tr. p. 501).
The private psychologist testified that he has seen the student "a couple of times" since she started at Hyde and reviewed some reports, and that it appeared to him she was benefiting from the work she was doing in the program (Tr. pp. 370, 385). He stated the student was completing schoolwork, participating in class and showing respect for faculty and peers (Tr. p. 386). The private psychologist testified that the student has shown improvement in academics, productivity, ability to adjust her behavior, willingness to follow directions and compliance with rules (Tr. p. 391). He stated he thought Hyde was optimal for the student, she was clearly benefiting from the program and to place her in another setting would risk serious decompensation. The private psychologist testified that Hyde staff confront the student when there are problems, and they recognize and positively reinforce her when she acts in an adaptive way (Tr. p. 397). He opined the kind of setting that Hyde provides offers the student an opportunity to build on her strength and to work around some of her weaknesses (id.). He also indicated that Hyde offers the student "as good an environment for therapeutic intervention as we are going to find" (Tr. p. 395). Hyde's literature specifically states that it is not a therapeutic school (Dist. Ex. 30 at p. 12).
By letter dated September 23, 2005, respondents, through their attorney, requested an impartial hearing alleging that petitioner failed to identify and recommend an appropriate New York State approved program for the student (Dist. Ex. 1; Parent Ex. A). The impartial hearing request proposed tuition reimbursement for the student's attendance at Hyde and provision of transportation (id.). By letter dated December 21, 2005, respondents, through their attorney, submitted another impartial hearing request (see Parent Ex. S). Respondents alleged in that letter that no appropriate New York State approved program in the least restrictive environment (LRE) was recommended. It also alleged that the student's IEP was "both procedurally and substantively invalid." It asserted that the May 16, 2005 CSE was improperly composed; the IEP goals were too generalized, "unmeasurable" and inappropriate; a behavior modification plan was not completed; and no interim service plan was offered or put in place (Parent Ex. S).
The impartial hearing commenced on January 5, 2006, continued on February 7, and February 8, and concluded on March 2, 2006. The impartial hearing officer rendered a decision on March 29, 2006 (IHO Decision, p. 13). The impartial hearing officer concluded that petitioner did not comply with a number of federal and state regulations and that the IEP was rendered "invalid" (IHO Decision, p. 13). She indicated that the CSE "must provide the parents a meaningful opportunity to interact with the CSE members in developing the provisions of the IEP" (id.) and contrary to this, cited respondent testimony that the goals, transition program and behavior intervention plan were not discussed with respondents during the IEP meeting (id.). The impartial hearing officer also concluded that a functional behavioral assessment (FBA) should have been conducted pursuant to 8 NYCRR 200.4[b][v], and that "(a)though the CBST offered the student several residential schools, the CSE never reconvened to have a representative from the school participate," and that the CSE "failed to indicate a placement on the IEP in violation of 8 NYCRR 200.4[d]" (id.).
On appeal, petitioner argues that it "complied with the procedural mandates of the IDEA in developing a special education program [for the student]", that the "IEP was developed in conformity with" the appropriate standard, that it "fulfilled all duties to the student as quickly as the mother’s cooperation would allow" and that it "offered [the student] a FAPE." Petitioner also asserts that respondents' placement of the student at Hyde was inappropriate and that the equities favored petitioner because of respondents' "complete lack of cooperation with the CBST process."
In response, respondents assert that petitioner did not timely evaluate the student or make a timely recommendation on its IEP with respect to the student, did not conduct a functional behavioral assessment, and failed to involve the parents in the preparation of the behavior intervention plan or in the creation of the goals and transition plan contained in the IEP. Respondents also assert that petitioner's CSE did not reconvene at any point and recommend an appropriate school on the IEP and that the schools suggested by the CBST did not have an accurate description of the student and were not appropriate placements for her. Respondents also argue that Hyde was appropriate for the student and that the equities support their request for tuition reimbursement. They do not argue on appeal that the May 16, 2005 CSE was improperly composed, that the goals on the IEP resulting from that meeting were inadequate, that a behavior modification plan was not completed, or that no interim service plan was offered or put in place.
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)5 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).6 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; 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. at pp. 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
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 ). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-029; 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).
Turning to whether petitioner offered the student a FAPE, I concur with the impartial hearing officer's conclusion that under the circumstances of this case the failure of the CSE to make a final recommended placement as part of the IEP for the 2005-06 school year denied that student a FAPE (see 34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][v]; see also 34 C.F.R. § 300.342). The significant error in the instant case that did occur in the IEP formulation process is that petitioner never made a final placement recommendation after being advised that respondent believed that the residential placements that were offered for consideration were inappropriate. Under the circumstances of this case, petitioner should have reconvened a CSE meeting subsequent to asking respondents to visit and consider various placements, discussed respondents' concerns and, with participation by a representative of one or more of the recommended placements, made a final recommendation (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; Application of a Child with a Disability, Appeal No. 03-088; see also 34 C.F.R. § 300.349[a]).
In determining whether placement at Hyde was appropriate, respondents bear the burden of proof with regard to the appropriateness of the educational program for which they seek reimbursement during the 2002-03 school year (M.S., 231 F.3d 96, 104; Application of a Child with a Disability, Appeal No. 03-088; Application of a Child with a Disability, Appeal No. 02-111). In order to meet that burden, respondents must show that Hyde offered an educational program which met their daughter's special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111).
In order to determine whether the private school addressed the student's special education needs, it is necessary to determine what those needs were prior to the private school placement at Hyde for the 2005-06 school year. The parties agreed, when devising the IEP for the 2005-06 school year, that residential placement in a therapeutic setting with both group and individual counseling, among other things, was needed to address the student's emotional disability. The record reflects Hyde is not considered a therapeutic program (Dist. Ex. 30 at p. 2, 12). The record does not reflect that the student is receiving counseling (Tr. pp. 477, 503), nor does it reflect that needed compliance with her recommended medication intake is monitored (Dist. Ex. 30 at p. 8). The program selected by respondents is not providing programming and services consistent with the therapeutic setting and counseling that were identified in the IEP and clinical reports to be appropriate to meet the student's needs. This is particularly significant given the numerous documents in the record that describe the severity of the student's disability. I have taken into consideration the testimony of respondent's daughter's consulting psychologist whose "impression" was that the student was benefiting at Hyde. The record reflects that the psychologist had some familiarity with Hyde but it did not reflect that he had ever visited Hyde or that he had a detailed knowledge of the program's services. The record also reflects that he had "seen the student" a "couple of times" since the student started the program, that he had spoken with her over a break (Tr. p. 385) and that he had seen some of her school records. However the record does not reveal where or in what context he had seen the student nor does the record demonstrate that that he had formally evaluated the student since her attendance at Hyde. The record does indicate that he reviewed the student's report cards (Tr. p. 386). I have also considered the evidence concerning the student's performance during the 2005-06 school year. This evidence is mixed. For example, there is report card evidence that the student was given a passing grade in English, yet was impeded by "her negative and sarcastic attitude" (Dist. Ex. 25) and that her "frequent absences plagued any momentum she seemed to gather" in math class. There is also evidence that she was given a passing grade in history despite missing much of the class due to "her continued ethical violations" and the teacher's conclusion the class "had little impact" on the student (Dist. Ex. 25). There is testimonial evidence by the Hyde Assistant Dean of Students that the student progressed, but there is also evidence that the school sent the student to it wilderness program in Maine on at least two occasions due to misbehavior. Based upon my review of the record in its entirety, I find that the evidence does not demonstrate that Hyde was appropriate to meet the student's needs at the time of placement or that the placement was appropriate at the time of the impartial hearing. A parent's unilateral placement need not be perfect, but it needs to be appropriate. I cannot conclude that this program that is non-therapeutic and is neither providing professional counseling services to the student nor monitoring her taking of prescribed medication is appropriate for this student who prior to admission was described as engaging in self-mutilating cutting behavior, threatening at times to kill herself, engaging in other bizarre behavior, and, as her psychiatrist opined, at a "very significant risk of deterioration and significant harm." I therefore conclude that the Hyde placement was not appropriate to meet the student's emotional needs for the 2005-06 school year and the impartial hearing officer erred in awarding reimbursement for tuition and residential cost for that school year.
In addition, I find the impartial hearing officer also erred in awarding reimbursement for costs pertaining to the parents' request for tuition reimbursement for the summer of 2005. The student began attending Hyde for their Summer Challenge program in July 2005 (Tr. p. 473). The assistant dean of admissions/director of LEAD testified that the student was not in the LEAD program over the summer and that the summer program is not academic (Tr. pp. 459, 483). The purpose of the summer program is to introduce the students to the "way Hyde works," and that the summer classes offered would not require academic support (Tr. p. 483). Examples of the classes and activities offered in the summer 2005 program included Culture of the 50's, 60's, 70's and 80's, preparation for a performing arts show, sports and outdoor skills (Tr. p. 483). The Assistant Dean of Admissions/Director of LEAD stated the students engage in discovery groups "do a lot of personal growth," and that it is a very rigorous program (Tr. p. 483). The Director of Admissions did not testify about the content of Hyde's summer program at all. The record does not reflect how the activities described met the student's social-emotional needs. The student did not receive any special education math services. The impartial hearing officer does not specifically address or discuss the appropriateness of the summer 2005 program in her decision. Given the paucity of evidence in the record pertaining to the summer 2005 program, let alone evidence suggesting that it offered services appropriate to the student's special education needs (as discussed above), I do not conclude that the record demonstrates that the services were appropriate to meet the student's instructional needs in math or her significant therapeutic needs for the summer 2005 programming.
IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it ordered petitioner to reimburse respondents for their daughter's tuition and residential costs at the Hyde School (Hyde) for summer 2005 and the 2005-06 school year.
Dated: Albany, New York __________________________
July 27, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 I note that the record contains multiple duplicative exhibits. For purposes of this decision, only District exhibits were cited in instances where both a District and Parent exhibit were identical. I remind the impartial hearing officer it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][xii][c]).
2 Although the psychopharmacology evaluation report states the student has been diagnosed with a Nonverbal Learning Disorder, the student's private clinical psychologist stated it is not an official diagnosis (Tr. p. 372; Parent Ex. H at p. 4).
3 There is conflicting testimony in the record regarding the timeframe for which the student's mother initially requested special education services for the student during the 2004-05 school year (Tr. pp. 143-45, 398-400).
4 When asked if the goals were drafted at the CSE meeting, the school psychologist replied that they were in a "general sense, the discussion at the review, there---notes were taken about people's feelings about weakness[es] and strengths. The actual typing took place after the meeting" (Tr. p. 59). The school psychologist testified that at no point after the meeting did the parent contact the CSE and object to the goals (Tr. pp. 59-60). The student's mother testified that the goals contained in the student's IEP were not discussed at the meeting (Tr. p. 417). In light of the discussion surrounding the student's strengths and weaknesses and the parent's opportunity for input at the CSE meeting and opportunity to review the goals and object, the lack of specifying the language of each goal at the meeting, under the circumstances of this case, did not deny the parent an opportunity to participate in the IEP formulation process, or result in a denial of a FAPE.
6 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.