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

06-041

 

 

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:
Skyer, Castro, Foley & Gersten, attorney for petitioner, Regina Skyer, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer, which denied his request to be reimbursed for his son's tuition costs at the Mary McDowell Center for Learning (MMCL) for the 2005-06 school year.  The appeal must be sustained.

In the instant case, the impartial hearing officer did not render a decision on the merits of petitioner's tuition reimbursement claim. Instead, the impartial hearing officer issued a decision dated March 29, 2006 where he found that he is "precluded from reaching a decision on the merits in this case because it is undisputable [sic] that the student in this [case] has never received special education services from a public agency as defined by the [Individuals with Disabilities Education Act] IDEA as a condition of public reimbursement." (IHO Decision, p. 4). For the reasons set forth below, I find that the impartial hearing officer erred in concluding that he could not decide the case on the merits.

 At the commencement of the impartial hearing on October 21, 2005, petitioner's son was nine years old and attending MMCL for the 2005-06 school year (Tr. pp. 143-44; Dist. Ex. 1 at p. 1).  The child has been classified as a student with a learning disability by respondent's Committee on Special Education (CSE) (Dist. Ex. 1; see 8 NYCRR 200.1[zz][6]). The child's eligibility for special education services is not in dispute.

It is undisputed that the child has always attended non-public schools (Tr. p. 165).  His parents enrolled him in a pre-kindergarten program at Berkley Carroll School (Berkley), a non-public school, for the 2000-01 school year (Tr. pp. 141-42).  During his kindergarten year at Berkley, the 2001-02 school year, Berkley referred the child for a speech-language evaluation (see Dist. Ex. 6).  The spring 2002 speech-language evaluation report indicated that the child exhibited a mild weakness in expressive language skills characterized by word retrieval difficulties, and significant weaknesses in phonological awareness skills (Dist. Ex. 6 at pp. 2, 3).   The speech-language pathologist described the child in her report as cooperative and hard working; however, she noted that the child demonstrated difficulty sitting still and was "slightly" impulsive in his responses (Dist. Ex. 6 at p. 4).  The speech-language pathologist recommended that the child receive individual speech-language therapy twice a week (id.).

In the spring of 2003, petitioner obtained a private psychoeducational evaluation for his son who at the time was seven years old and attending first grade at Berkley (Tr. p. 143; Dist. Ex. 7).  Administration of the Weschsler Intelligence Scale for Children – Third Edition (WISC-III) yielded a verbal IQ score of 121, a performance IQ score of 104 and a full scale IQ score of 113 (Dist. Ex. 7 at p. 3).  The school psychologist who conducted the testing reported that the child displayed dramatic variability in cognitive functioning with subtest scores ranging from low average to very highly superior (id.).  The Wide Range Achievement Test – Revised (WRAT-R) was administered to the child to measure his academic achievement skills (Dist. Ex. 7 at p. 4).  The school psychologist reported that the child's academic skills were below grade level, which "would not have been predicted given his range of superior intellectual capabilities" (id.).  The school psychologist administered tests of the child's attention skills, the results of which revealed his difficulty with continuous performance tasks and visual attention tasks (Dist. Ex. 7 at pp. 8, 9).  The school psychologist noted that the child's difficulty with selective visual attention had an impact on his learning to read (Dist. Ex. 7 at p. 9).  Projective testing indicated that the child's inability to read and write at a level commensurate with his intellectual ability was an area of frustration and that he experienced anxiety and stress related to his learning difficulties and his lack of academic achievement (id.).  The school psychologist included in her recommendations that the child attend "a specialized school geared to teaching bright youngsters with unique learning needs" (Dist. Ex. 7 at p. 10).  An April 2003 occupational therapy (OT) progress note indicated that the child had received OT services since July 2002 to improve his fine and gross motor skills, perceptual and graphomotor skills and sensory processing ability (Dist. Ex. 5 at p. 1).

 Concerned that the child seemed to be struggling in school, particularly in reading, petitioner contemplated other educational placements for the child (Tr. pp. 142-43), and enrolled the child at MMCL for the 2003-04 school year (Tr. pp. 143-44).  MMCL is a non-public school and has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The record indicates that MMCL is a school for students with learning disabilities (Tr. pp. 193-94).

In September 2003, petitioner obtained private, individual counseling for his son, which continued until June 2005 (Tr. pp. 223, 239). The counseling focused on helping the child cope with his academic weaknesses and taught the child strategies to manage his feelings in a socially appropriate way  (Tr. pp. 237-39).  During the 2004-05 school year at MMCL, the child was instructed in a class of 11 students and two teachers (Dist. Ex. 11 at p. 3).  He participated in a small reading group of five children four times per week and was instructed in Writing, Mathematics, Social Studies, Science, Art, Movement and Physical Education (Dist. Ex. 11).  The child also received speech-language therapy and OT services during the school year (Dist. Ex. 11 at pp. 27, 32).  He was reported to struggle with graphomotor tasks despite supports provided in the classroom and to have difficulty transferring reading strategies outside his small reading group (Dist. Ex. 11 at p. 3).  Although reportedly well-liked in and outside of the classroom, the child exhibited episodes of inappropriate behavior related to his academic difficulties (Dist. Ex. 11 at pp. 3, 8, 13).  Administration of the Gates-MacGinitie Reading Tests – Fourth Edition to the child at the end of the 2004-05 school year yielded a score in the ninth percentile for word decoding, second percentile for comprehension and a total score in the second percentile (Dist. Ex. 11 at p. 38).  Also at that time, with testing accommodations provided, the child achieved a Wide Range Achievement Test (WRAT) math score in the 42nd percentile (id.).

On March 3, 2005, a CSE meeting was held to develop an individualized education program (IEP) for petitioner's son for the 2005-06 school year (Dist. Ex. 1).  CSE members included petitioner, a parent member, respondent's school psychologist, a social worker employed by respondent who acted as the district representative, a special education teacher from MMCL who participated by telephone, and a general education teacher (Dist. Ex. 1 at p. 2; Tr. p. 88).  The CSE classified the child as a student with a learning disability and the resultant IEP offered the child a special education program in a 12:1+1 special class "in a community school" with the related services of speech-language therapy, OT and counseling (Dist. Ex. 1 at pp. 1, 12).  The CSE developed annual goals and short-term objectives for the child in the areas of reading, writing, math, speech-language, OT and counseling (Dist. Ex. 1 at pp. 7-9).  Testing accommodations of extended time and special location were also recommended for the child (Dist. Ex. 1 at p. 12).  No mainstreaming opportunities were provided for on the IEP.  Sometime around July 7, 2005, petitioner received a placement notification by mail from respondent indicating a proposed placement for his son (Tr. p. 150).  Petitioner testified that he attempted to contact the proposed school twice over the summer to set up a time to visit, but was unable to get in touch with a representative of the school until September 2005 (Tr. pp. 150, 164).

By letter dated August 15, 2005, petitioner notified respondent through his attorneys that he would be unilaterally placing the student at MMCL for the 2005-06 school year at public expense (Parent Ex. E).1  The August 15, 2005 letter also requested an impartial hearing, claiming respondent failed to offer his son a free appropriate public education (FAPE) (id.). Petitioner requested tuition reimbursement and bussing services for the child at MMCL for the 2005-06 school year (id.).

The impartial hearing commenced on October 21, 2005, continued on December 1, 2005, and concluded on January 24, 2006 (Tr. pp. 5, 45, 182).  Both parties presented documentary and testimonial evidence.  The impartial hearing officer rendered a decision on March 29, 2006, denying petitioner's request for tuition reimbursement because the record demonstrated that petitioner's son never attended public schools (IHO Decision).  In reaching his decision, the impartial hearing officer relied on Bd. of Educ. v. Tom F., 2005 WL 22866 [S.D.N.Y. 2005]  (see IHO Decision). The impartial hearing officer declined to discuss the merits of the case; however, the impartial hearing officer noted without discussion that a "decision [on the merits] could easily favor the Parent" (IHO Decision, p. 6).

This appeal ensued.  Petitioner argues on appeal that the impartial hearing officer erred by relying on Tom F., and thereby, erred in concluding that he was precluded from reaching a decision on the merits of petitioner's claims.  Petitioner requests that the impartial hearing officer's decision be annulled, that respondent's recommended program be found inappropriate on procedural and substantive grounds, that the MMCL program be found appropriate, and that petitioner be awarded tuition reimbursement for his unilateral placement of his son at MMCL for the 2005-06 school year.2  Respondent requests that the impartial hearing officer's decision be affirmed, contending that the impartial hearing officer correctly determined that he was without authority to award tuition reimbursement because petitioner's son never attended public schools.  In the event that the impartial hearing officer's decision is annulled, respondent requests that the case be remanded to the impartial hearing officer for a determination on the merits.  As to the merits of petitioner's claims, respondent generally denies petitioner's allegations and specifically asserts that the equities do not favor petitioner. 

Petitioner asserts that the impartial hearing officer erred by concluding that 20 U.S.C. § 1412(a)(10)(C)(ii) precluded tuition reimbursement.  I concur with petitioner's assertion. The impartial hearing officer, relying on Tom F., and a decision from the United States District Court for Maryland (Baltimore City Bd. of Sch. Comm'rs v. Taylorch, 395 F. Supp. 2d 246 [Md. 2005]), held that 20 U.S.C. § 1412(a)(10)(C)(ii) requires that tuition reimbursement be denied for any student, who has not previously received special education and related services under the authority of a public school agency.  This, however, is not a new argument. 

The statutory provision in question provides as follows: 

Reimbursement for private school placement.  If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education [FAPE][3] available to the child in a timely manner prior to that enrollment.

(20 U.S.C. § 1412[a][10][C][ii]).

The official commentary to the federal regulations implementing this provision of the IDEA4 states that

[H]earing officers and courts retain their authority, recognized in Burlington [Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985)]and Florence County School District Four v. Carter, 510 U.S. 7 (1993) (Carter), to award "appropriate" relief if a public agency has failed to provide FAPE, including reimbursement and compensatory services, under section 615(i)(2)(B)(iii) in instances in which the child has not yet received special education and related services.  This authority is independent of their authority under section 612(a)(10)(C)(ii) to award reimbursement for private placements of children who previously were receiving special education and related services from a public agency.

 

(Placement of Children by Parent if FAPE is at Issue, 34 C.F.R. § 300.403, 64 Fed. Reg. 12601 at 12602 [Mar. 12, 1999]); see also Letter to Luger, 33 IDELR 126 [OSEP 1999] ["We do not view § 612(a)(10)(C) as foreclosing categorically an award of reimbursement in a case in which a child has not yet been enrolled in special education and related services under the authority of the public agency. Reimbursement is an equitable remedy that courts and hearing officers may order in appropriate circumstances."].

State Review Officers have consistently declined to construe section 1412 of the IDEA as limiting the authority of an impartial hearing officer or review officer under section 1415 of the IDEA to grant an award of tuition reimbursement to the parents of a child who has not previously received special education or related services under the authority of a public agency, absent convincing evidence to the contrary of Congressional intent to do so (see Application of a Child with a Disability, Appeal No. 06-032; Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-125; Application of the Dep't. of Educ., Appeal No. 05-074; Application of the Bd. of Educ., Appeal No. 05-015; Application of a Child with a Disability, Appeal No. 02-052; Application of a Child with a Disability, Appeal No. 00-012; Application of  a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 99-35; Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-41; Application of a Child with a Disability, Appeal No. 98-25). I note that the Tom. F. case relied on by respondent and the impartial hearing officer is currently on appeal (see Bd. of Educ. v. Tom F., No. 05-0566 CV [2d Cir. Feb. 3, 2005]) and is not settled law at the time of this decision.  Therefore, I must respectfully decline to follow it, pending its final resolution (see generally Application of a Child with a Disability, Appeal No. 01-052; Application of a Child with a Disability, Appeal No. 01-049; Application of a Child with a Disability, Appeal No. 01-044).  Given the absence of a final decision from a controlling court to the contrary, I continue to adhere to the State Review Officers' well-settled position and decline to construe section 1412(a)(10)(C)(ii) of the IDEA as limiting the authority of an impartial hearing officer or review officer under section 1415 of the IDEA to grant an award of tuition reimbursement to the parent of a child who has not previously received special education or related services under the authority of the public school district in which the child resides. I note that the Eleventh Circuit Court of Appeals recently concluded that "sole reliance on the fact that [the student] never attended public school is legally insufficient to deny reimbursement under §1412(a)(10)(C)(ii)" (M.M. v. School Bd. of Miami County, Fla., 437 F.3d 1085, 1098 [11th Cir. 2006]).

Having determined that the impartial hearing officer erred by not deciding the case on the merits, I turn to petitioner's request for reimbursement for his son's tuition costs at MMCL for the 2005-06 school year.  In reviewing the record in this case, I note that a complete record was developed over the course of the three-day hearing.  Both parties had the opportunity to adequately question witnesses, enter exhibits into evidence, and present their case as to the merits of petitioner's claims.  I note that petitioner presented the testimony of three witnesses and also testified on his own behalf (Tr. pp. 140, 191, 221, 257); respondent presented the testimony of two witnesses (Tr. pp. 20, 86); petitioner submitted nine documents into evidence (see Parent Exs. A-I); respondent submitted fourteen documents into evidence (see Dist. Exs. 1-14); and the transcript of the impartial hearing consists of 287 pages. I have also examined the issues to be decided, and find that they can be addressed upon the record that is before me.  Accordingly, I find that I have a sufficient record upon which to base a decision and will not remand this matter to the impartial hearing officer for his determination on the merits (see Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 96-35; Application of a Child with a Disability, Appeal No. 96-6).5

Petitioner contends that respondent failed to offer the student a FAPE for the 2005-06 school year.  One of the main purposes of the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  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 Bd. of Educ., 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]).

A FAPE must be tailored to the unique, individual needs of a child by means of an IEP.  Rowley, 458 U.S. at 181; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1115 (2d Cir. 1997).  The Regulations of the Commissioner of Education 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).  In the instant case, the March 2005 IEP reflected that the child's behavior did not "seriously interfere with instruction and [could] be addressed by the special education classroom teacher" and the child did not require a behavior intervention plan (Dist. Ex. 1 at p. 5).  The special education teacher of the child's proposed class testified that her classroom was composed of children whose behavior is sometimes "questionable" (Tr. pp. 23-24), and she testified that some of the students in the class had social-emotional problems (Tr. p. 27).  The record contained descriptions of behavior methods used within her class to address the students' difficulties (Tr. p. 23).  The special education teacher stated that the behavior methods that she used helped the students stay motivated and complete their work "so they're less likely to be causing problems" (Tr. p. 24). The administrator of MMCL testified that she did not believe the child was a child with an emotional disturbance (Tr. pp. 192, 210).  She stated the child did not need a behavior modification plan and that the anxieties he experienced were due to his feelings about his learning disability and frustration with reading (Tr. pp. 210-11).

Petitioner testified that during a September 2005 conversation with the guidance counselor at respondent's recommended placement, the guidance counselor, after hearing information about the child, was surprised that the child had been placed in the class because students in that class primarily had behavior problems (Tr. pp. 150-51).  Petitioner testified that when he visited the proposed classroom in, the guidance counselor told him that the students in the class primarily experienced difficulties because their behavior interfered with their learning, as opposed to their primary difficulty being a learning disability (Tr. pp. 152-54).  Petitioner testified that when he observed the class, the special education teacher described in detail and emphasized the behavior modification methods used to keep the students focused on their work, and she did not discuss with petitioner the academic instruction the students received (Tr. p. 155).  Petitioner testified the child has never been in a class similar in description to the recommended class (Tr. pp. 169-70).  After visiting the class, petitioner concluded that it was not an appropriate class for his son (Tr. p. 177). 

Based on the information before me, I find that respondent did not offer the child special education and related services tailored to the individual needs of the child, as the record indicates that the child would not have been suitably grouped in respondent's proposed class.  I am therefore persuaded by petitioner's contention that the recommended program and placement were not reasonably calculated to enable the student to receive meaningful educational benefit.

            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 his 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).

Parents are not held as strictly to the standard of placement in the LRE as school districts are; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]).  However, this must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). The test for a parental placement is that it is appropriate, not that it is perfect  (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).

            MMCL is a private school for children with learning disabilities ages 5 to 14 (Tr. p. 193).  The child's non-graded classroom during the 2005-06 school year was composed of 13 students and two teachers (Tr. pp. 193, 258).  There is a two-year age range in each class (Tr. p. 197).  Related services such as speech-language and occupational therapy are provided (Tr. p. 194).  Students who attend MMCL have been identified with a learning disability from an "outside source," and their IQ scores span from the average to the superior range of cognitive ability (id.).  Class composition is developed based on a child's academic, social and emotional development (Tr. p. 197).  Classroom teachers and related service providers meet weekly to discuss the students (Tr. pp. 203, 267-68).

            Children are placed in reading groups after MMCL staff assess them and receive feedback from the teacher (Tr. p. 198).  Students are grouped with other children who are at a similar level and have a similar learning style, for example, with students who are primarily auditory or visual learners or with students who may also need more comprehension, decoding or writing skill development (id.).  The composition of each group is assessed throughout the year (Tr. p. 199).  The child's classroom teacher stated that the child's primary academic difficulties were reading and writing (Tr. p. 260).  During the 2005-06 school year the child was in a second grade level reading group which met four times per week for an hour and used the Wilson program, a multisensory reading program (Tr. pp. 206, 261, 263).  The child's reading group consisted of four or five students and one teacher (Tr. p. 263).  The reading group used kinesthetic and visual modalities to complete reading tasks (Tr. p. 261).  The child's reading instruction consisted of sound and letter drills, sky writing activities, daily dictation, phonics activities, and decoding practice, used magnetic letters for spelling out words and taught chunking strategies (Tr. pp. 261, 265).  The child's reading group completed reading comprehension activities, and worked with story structure, character and story development using a whole language approach (Tr. pp. 264-65).  His classroom teacher testified that the whole language approach was incorporated throughout the day, not solely in reading group (Tr. p. 265).  The private school psychologist stated that the child needed this combination of a whole language approach and phonics based instruction (Tr. p. 243).

In addition to group reading instruction, the child received twice weekly individual instruction from a learning specialist who addressed the child's reading, encoding and decoding needs (Tr. p. 261).  The classroom teacher described this individual service as providing preview and reinforcement of the reading group teacher's instruction (Tr. pp. 261-62).

            The child's multisensory Math group consisted of five or six students and met four times per week (Tr. pp. 266-67).  During the 2005-06 school year the child was also instructed in Social Studies, Science, and Language Arts (Tr. pp. 263, 265-66).  The child received once weekly instruction in typing skills and once weekly instruction in computer use (Tr. p. 268). The child's classroom had enough keyboards or computers for each child to use at the same time (Tr. p. 204).  The classroom teacher stated that the child used a keyboard to complete journal activities once or twice a week and also during Language Arts instruction (Tr. p. 268).  The classroom teacher stated that using a keyboard helped the child because it relieved much of his struggle with writing (Tr. p. 268).

            Although counseling services are not provided at MMCL, the administrator testified that it is a therapeutic environment with access to psychologists for emergency situations and psychologists are available to work with teachers (Tr. pp. 200-01).  For students who receive private counseling, MMCL psychologists discuss students' counseling programs with their private therapy providers and the private providers are also in contact with the teachers at MMCL (Tr. p. 213).  Petitioner obtained private social skills training for the child as recommended by the private school psychologist (Tr. pp. 179, 239-40).

            Based on the foregoing, I find that the record demonstrates that MMCL was appropriate to meet the child's needs at the time placement was effectuated and that the child'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).

Here, I find that the record demonstrates that the equities favor petitioner.  Petitioner participated at the March 2005 CSE meeting (Dist. Ex. 1 at p. 2).  After learning of respondent's proposed placement in July 2005, petitioner twice attempted to contact respondent's school so he could schedule a visit (Tr. pp. 163-64).  He then contacted the school in September 2005 to visit the classroom after being unsuccessful in doing so over the summer, and actually visited the classroom and spoke with the special education teacher in October 2005 (Tr. pp. 150-52).  I am not persuaded by respondent's contention that petitioner had no intention of considering any public placement offered by respondent because petitioner allegedly signed a contract for his son to attend MMCL in the Spring of 2005.  The equities do not prohibit a parent from entering into a contract with a preferred private school prior to the date of the relevant CSE meeting (Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 02-059; Application of a Child with a Disability, Appeal No. 99-015).  

            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 MMCL placement was appropriate, and that equitable considerations support petitioner's claims.  In light of my determination, it is not necessary for me to address petitioner's remaining claims.

 

          THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of his son's tuition at MMCL for the 2005-06 school year, upon petitioner's submission of proof of payment for such tuition expenses.

 

Dated:

Albany, New York

 

__________________________

 

June 12, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  The documents petitioner submitted into evidence are referred to in the record by both letter and number (compare the transcript from the impartial hearing where petitioner's exhibits are marked numerically with the IHO decision where exhibits are referenced alphabetically). To avoid confusion with respondent's exhibits that are indicated by number, this decision refers to petitioner's exhibits only by letter.  Accordingly, petitioner's exhibit "1" is referenced herein as exhibit "A", petitioner's exhibit "2" is referenced herein as exhibit "B", petitioner's exhibit "3" is referenced herein as exhibit "C", and so forth.   

2  On appeal, petitioner does not seek bussing costs as he did at the impartial hearing.

3 The term "free appropriate public education" means special education and related services that -

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B)  meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8). 

4 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.

5 Missing from the record, however, is another student's IEP and two envelopes.  There are also slight discrepancies between the impartial hearing officer's exhibit list attached to his decision and the documents received into evidence per the hearing transcript.  Despite requests from the Office of State Review, respondent has failed to provide these missing exhibits or provide written clarification about these discrepancies.  While I find that the record was sufficient for me to render a determination, I direct respondent to ensure that in the future that a complete copy of the record before the hearing officer is provided to the Office of State Review in accordance with section 279.7 of the Commissioner’s regulations (Application of a Child with a Disability, Appeal No. 03-055; Application of the Bd. of Educ., Appeal No. 99-58).