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

No. 06-042

 

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

 

Appearances:
Mayerson & Associates, attorney for petitioners, Gary S. Mayerson, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, Esq., of counsel

 DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Manhattan Day School (MDS) for the 2004-05 school year, and for the cost of services provided by the McCarton Center for Developmental Pediatrics (McCarton Center) for the 2004-05 school year and summer 2005, which included a one-to-one aide, occupational therapy (OT), speech/language therapy and applied behavioral analysis (ABA) services.  The appeal must be sustained in part.

At the time of the impartial hearing on March 7, 2006, the child was six years old.  For the 2004-05 school year, which is the year in dispute on this appeal, the child attended MDS's kindergarten, a preschool program for typically developing children (Tr. p. 54).  She also received services provided by the McCarton Center that included a one-to-one aide who accompanied her to school, OT, speech/language therapy, and ABA services (Tr. pp. 57-58).  For the 2004-05 school year the child was classified as a preschool student with a disability.  Her classification is not in dispute (Dist. Ex. 1 at p. 4).

            From approximately June 2002 through December 2003, the child received early intervention services to address slow motor development (Parent Ex. H at p. 1).  Also in 2002, the child began receiving private speech/language therapy and OT (Parent Exs. G, H at p. 7).

            Respondent's Committee on Preschool Special Education (CPSE) convened on December 11, 2003, when the child was three years old, and recommended that the child's program be changed from special education itinerant teacher (SEIT) and related services to a 12:1+1 special class and related services consisting of individual OT (OT) two times per week for 30 minutes and individual speech/language therapy two times per week for 30 minutes (Parent Ex. J at pp. 2, 9-10).  The CPSE also recommended that the child's progress be monitored to determine her need for extended school year (ESY) services (Parent Ex. J at p. 8).  At the time of the CPSE's review, the child was reported to have moderate to severe receptive and expressive language delays, as well as pragmatic language delays and echolalia (Parent Ex. J at p. 3A).  She exhibited limited eye contact and was unable to sustain attention to an activity for more than one to two minutes without constant redirection (Parent Ex. J at pp. 3A-B).  A behavior plan was in place to address the child's mouthing of nonfood objects and banging together of toys (Parent Ex. J at pp. 11A-B).  Pursuant to the CPSE's recommendation, the child began attending Machzik Bracha, an approved private school, in January 2004, after having attended a regular nursery program for the beginning of the 2003-04 school year (Parent Exs. E; H at p. 2; L, M).

            Petitioners had their child evaluated at the McCarton Center on January 20, 2004 and February 5, 2004 to ascertain her developmental status and to obtain specific recommendations regarding her educational and therapeutic needs (Parent Ex. H).  A previous private evaluation in November 2003 by a child neurologist at the Albert Einstein College of Medicine did not yield a firm diagnosis, but identified a semantic/pragmatic language disorder and signs of a Pervasive Developmental Disorder (PDD) (Parent Ex. H at p. 2). 

            Petitioners reported to the evaluator from the McCarton Center that the child had recently started to cover her ears, had no interest in playing with other children and showed limited pretend play (Parent Ex. H at p. 1).  Petitioners also reported that the child was a "picky" eater and refused to feed herself (id.).  The evaluator reported that the child was very self-directed and unfocused during testing (Parent Ex. H at p. 3).  The child's speech was remarkable for high pitch, rising tone, and singsong parody (Parent Ex. H at p. 4).  The child's articulation was variable and made her speech difficult to understand at times (id.). 

            The evaluator administered the Stanford Binet Intelligence Scale - Fourth Edition (Stanford Binet), the Expressive One-Word Picture Vocabulary Test-Revised (EOWPVT), the Receptive One-Word Picture Vocabulary Test-Revised  (ROWPVT), the Developmental Test of Visual-Motor Integration, and the Vineland Adaptive Behavior Scale  (Parent Ex. H at pp. 9-10). 

            Administration of the Stanford Binet yielded a composite score of 81, which is in the low average range of cognitive functioning (Parent Ex. H at p. 9).  The evaluator reported that the child needed a great deal of support to attend to the testing tasks and some items had to be demonstrated, repeated or omitted (Parent Ex. H at p. 5).  On the verbal scale, the child's scores fell in the low average range and difficulties were noted across all of the language domains (id.).  The child's nonverbal reasoning skills were in the low average range (id.).  She demonstrated weak visual/motor planning and perceptual organization and had more difficulty as the amount of stimuli increased (id.).  The child exhibited difficulty with comprehending instructions on the short-term memory portion of the test and obtained scores in the low average range (Parent Ex. H at p. 6).

            The child achieved standard (and percentile) scores of 79 (8) on the ROWPVT and 83 (13) on the EOWPVT (Parent Ex. H at p. 5).  The evaluator opined that the scores demonstrated the child's weak word knowledge and revealed her poor organization and representation skills (id.).

            Based on parent reporting on the Vineland Adaptive Behavior Scales (Vineland), the child's overall adaptive behavior skills were in the low range for her age and scores across test domains ranged from moderately low to low (Parent Ex. H at p. 6).  The child was reported to know the alphabet, shapes and numbers, and was able to sing songs (id.).  She did not relate events or elaborate on topics independently and although her use of prepositions and questions was reported to be poor, she was able to "get her ideas across" (id.). 

            The evaluator determined the child met the criteria for a diagnosis of a Pervasive Developmental Disorder, Not Otherwise Specified (PDD-NOS) and made numerous recommendations, including that the child receive a continuous 12-month program of intervention given over a seven day period each week, including school holidays and school vacations (Parent Ex. H at p. 7).  She specified that the child's program include attending a mainstream nursery school program for one to two hours three to five times per week accompanied by an ABA therapist, ABA therapy for at least 20-25 hours per week at home, ABA program supervision by an individual very experienced in ABA therapy, direct instruction of the child by the ABA supervisor for at least two hours per week, weekly teaching clinics for the ABA therapists conducted by the ABA supervisor, monthly interdisciplinary team meetings to review the child's progress and modify her program, parent training for two hours per week, individual speech/language therapy five times per week for one hour, and individual OT three to five times per week for one hour (Parent Ex. H at pp. 7-8).  The evaluator also recommended that the child be monitored for an auditory processing disorder and that she receive auditory integration therapy (AIT) if indicated (Parent Ex. H at p. 8).

            A speech-language progress report dated February 9, 2004 indicated that the child had improved across language areas, especially in receptive, expressive and pragmatic language, since March 2002, although she continued to demonstrate significant speech and language delays (Parent Ex. G).  She continued to require significant cuing to generalize her acquired skills to natural interactions (id.).

            By letter dated March 24, 2004, petitioners reportedly informed respondent that they would be moving into Region 9 (Manhattan) from Brooklyn on April 15, 2004 and requested an IEP meeting (Parent Ex. A at p. 3).  A CPSE meeting was scheduled for April 19, 2004 but was subsequently cancelled, reportedly by respondent (Tr. p. 52). 

            Respondent's CPSE convened on May 11, 2004 for the child's annual review and to develop an individualized education program (IEP) for the child's 2004-05 school year (Dist. Ex. 1).  At the time of the CPSE review, the child was reported to exhibit delays in all areas of development and her communication was severely compromised by distractibility, inappropriate and inconsistent responsiveness, and an absence of reciprocity (Dist. Ex. 1 at p. 8).  The CPSE determined that the child required a small highly structured learning environment with consistent individualized support, and recommended the child be placed in a 12:1+1 special class and receive related services consisting of individual OT three times per week for 60 minutes, individual speech-language therapy five times per week for 60 minutes, and individual counseling two times per week for 60 minutes (Dist. Ex. 1 at pp. 1, 8, 9-1).  A behavior plan was developed to address the child's mouthing of nonfood objects, inappropriate interactions with other children, and inattentiveness (Dist. Ex. 1 at p. 11).  The record reveals that respondent was unable to provide the child with the recommended program (Tr. p. 12).

            An OT evaluation of the child was performed by the McCarton Center on May 25, 2004 (Parent Ex. E at p. 1).  The evaluator opined that the child's significantly delayed gross and fine motor skills, coupled with her difficulty modulating sensory information from her environment, contributed to the child's low frustration tolerance and made learning new skills a challenge for her (Parent Ex. E at p. 5).  She recommended the child receive OT five times per week for at least 45 minutes per session and that all sessions focus on a sensory integrative approach (Parent Ex. E at p. 5).

            By letter dated June 10, 2004, petitioners submitted a request for an impartial hearing through their attorney, seeking reimbursement and funding for the services and programming they obtained for their daughter (Parent Ex. A at pp. 3-4).  In late June 2004, the parties reportedly entered into settlement negotiations (Parent Ex. A).

            The McCarton School1 developed an individual education plan for the child for the period of September 2004-August 2005 (Parent Ex. O).  This document contained one goal and 12 corresponding objectives related to the child's receptive and expressive language skills, one goal and eight corresponding objectives related to her pre-academic skills, one goal and five corresponding objectives related to her social and leisure skills, and two goals with corresponding objectives related to the child's behavioral needs (Parent Ex. O).

            In September 2004, the child began attending MDS three days per week, accompanied by a one-to-one ABA instructor from the McCarton Center (Parent Ex. D at p. 1; Tr. p. 89).  The child also attended the McCarton Center daily for one-to-one discrete trial instruction, speech-language therapy, and OT (Tr. pp. 57-58).  While at MDS, the one-to-one ABA instructor assisted the child with peer socialization, participation in classroom activities, and generalization of the skills taught during her daily one-to-one discrete trial instruction at the McCarton Center (Tr. p. 105). 

            An educational progress report dated April 30, 2005, written by the McCarton Center ABA supervisor, indicated that the child had adjusted to the highly structured and contingent classroom atmosphere at MDS and had begun to demonstrate some control over her inappropriate behaviors with the use of a token system and visual reminders (Parent Ex. D at p. 1).  The ABA supervisor reported that the child had demonstrated improvements but continued to struggle with social, attentional, behavioral, and communication problems and required individualized teaching and attention, as well as a consistent predictable routine, continuous positive reinforcement, and guidance during activities to resist maladaptive behaviors (id.).  The child was reported to enjoy going to school, and with prompting had started to follow her classmates in gross motor, play, and academic activities; however, due to distractibility and inappropriate behavior, her peer interactions remained highly variable (Parent Ex. D at p. 2).  

            The ABA supervisor also reported on the child's one-to-one discrete trial instruction that occurred five days a week at the McCarton Center, indicating that the child had demonstrated an "upward trend" in skill acquisition across all programs targeted for intervention (Parent Ex. D at pp. 2-4).  The supervisor also reported that the child responded to a variety of reinforcers and that social reinforcement was becoming more desirable to her (Parent Ex. D at p. 2).  She continued to exhibit behaviors of yelling and pinching to avoid tasks (Parent Ex. D at p. 4).

            An OT progress report was completed on May 12, 2005 by clinicians from the McCarton Center (Parent Ex. C).  The child's performance was rated poor on all but the grasping subtest, where her performance was rated in the average range (Parent Ex. C at p. 1).  Although she had improved in her ability to walk up steps without support, she demonstrated more difficulty descending than when previously tested (Parent Ex. C at p. 2).  The child was noted to demonstrate the most difficulty with the stationary subtest, as she tended to lose her balance easily (Parent Ex. C at p. 2).  The therapists opined that in order for the child to attend to directions, to sit at a table for activities, or to listen to a story, she required sensory integration therapy so that she would be able to focus on these tasks (Parent Ex. C at p. 3).

            A speech-language progress report dated May 14, 2005 indicated that the child continued to have "severe delays" in receptive, expressive, and pragmatic language areas, and had the greatest difficulty in integrating her learned knowledge, despite having made progress with individual skills  (Parent Ex. B at p. 1).  The speech-language pathologist recommended the child continue to receive speech-language therapy five days per week for 45 minutes (Parent Ex. B at p. 3).

By letter dated August 5, 2005, petitioners reinstated their June 10, 2004 request for an impartial hearing, as resolution of a settlement had not been reached (Parent Ex. A). 

            As noted above, respondent's CPSE met on May 11, 2004 to prepare the 2004-05 IEP for the child (Dist. Ex. 1).  The IEP prepared as a result of that meeting was for the child's 2004-05 school year, which was the school year in dispute at the impartial hearing in this matter (id.).  On June 10, 2004, petitioners requested an impartial hearing because they asserted they had not received a copy of the IEP resulting from the May 11, 2004 CPSE meeting (Parent Ex. A at p. 3).  They attempted to settle the matter without success, and ultimately in August 2005 reinstated their request for an impartial hearing. 

            The impartial hearing was held on March 7, 2006.  At the impartial hearing, respondent conceded that it had not offered petitioners' daughter a free appropriate public education (FAPE) for the 2004-05 school year (Tr. pp. 12-16).  Respondent further conceded that a 12-month program was appropriate for the 2004-05 school year for the child, and that the number of sessions and duration of speech/language therapy and OT that petitioners unilaterally obtained were appropriate (Tr. pp. 16-18).  Petitioners sought reimbursement for the following services:  1) ABA services one-to-one for a total of 25 hours a week, which included the ABA services provided at MDS; 2) ABA supervision for two hours a week; 3) parent training two hours a week with the ABA supervisor; 4) MDS nursery school three days a week; 5) speech and language therapy one-to-one five times a week for 45 minutes; and 6) OT one-to-one five times a week for 45 minutes.  Petitioners presented witnesses and documentary evidence in support of the appropriateness and the cost of the educational services from MDS and the McCarton Center that they had obtained and paid for.  Respondent did not present witnesses and cross-examined petitioners' witnesses only to the extent of asking clarifying questions. 

            The impartial hearing officer denied petitioners' request for tuition reimbursement in its entirety.  He first acknowledged respondent's concession that it had not offered the child an appropriate educational placement for the 2004-05 school year.  He went on to hold that, regarding the appropriateness of petitioners' unilateral placement, petitioners proved the appropriateness of the program description.  He acknowledged respondent's concessions that the amount of OT and speech/language therapy was appropriate for the 2004-05 school year; as well as its concession that a 12-month school year was appropriate.  He however disagreed with a portion of the program as it was implemented, concluding that one of the ABA service providers from the McCarton Center, who also worked as a SEIT, was in fact functioning as a one-to-one aide. 

The impartial hearing officer then considered equitable considerations and detailed the hourly rates for the McCarton service providers.  He noted that the McCarton Center was billing for an OT service described as "Treatment of swallowing dysfunction and/or oral function for feeding" even though there was no indication that the child had a need for such service in the record.  The impartial hearing officer held that, without considering equitable considerations, petitioners' reimbursement for the McCarton Center should be reduced by the charges incurred prior to September 7, 2004.  He then held, without an expressed rationale, that the appropriate amount of reimbursement for the McCarton Center was $34,000, were there not other equitable considerations.  This amount of reimbursement does not correspond with the charges incurred commencing upon September 7, 2004 through the end of the 2004-05 school year.

            The impartial hearing officer detailed additional equitable considerations that he found warranted a complete denial of any tuition reimbursement to petitioners.  He found that because petitioners had their child privately evaluated prior to the first scheduled CSE meeting for the 2004-05 school year, and because they commenced a search for a placement following the cancellation of the first scheduled CSE meeting, which was cancelled by respondent, petitioners did not intend to work with respondent to develop and locate a proper public program.  He also concluded that they failed to give proper ten-day notice and that respondent may have otherwise been able to secure a proper placement for the child.  He then dismissed petitioners' claim for reimbursement.

            Petitioners appeal and assert that the impartial hearing officer erred in denying their reimbursement claim based upon equitable considerations.  They dispute the grounds by which the impartial hearing officer reduced and then dismissed their claim, as set forth above.  On appeal, petitioners seek reversal of the impartial hearing officer's order and request full reimbursement; and alternatively seek remand for further consideration of the amount of reimbursement relief based upon evidence of rates charged by private New York City providers, and seek a declaration that equitable considerations should not reduce or preclude reimbursement.  Respondent asserts that the impartial hearing officer reasonably determined that petitioners failed to establish that the equities were in their favor, and respondent seeks dismissal of petitioners' appeal.

A purpose behind the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3  As the Supreme Court recently established in Schaffer, the burden of persuasion rests on the party challenging the IEP (Schaffer, 126 S. Ct. at 537).  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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 (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

 

            The record is undisputed on the issue of respondent's concession that it did not offer petitioners' daughter a FAPE for the 2004-05 school year, and this is not an issue on appeal.  I concur with the impartial hearing officer that petitioners therefore have prevailed with respect to the first Burlington/Carter criterion for an award of reimbursement for private educational services expenditures.

 

            Additionally, as a preliminary matter, I note that the impartial hearing officer deemed the 2004-05 school year to have begun for the child on September 7, 2004.  I concur with petitioners that this was in error.  Respondent's CPSE had prepared an IEP recommending a 12-month school year for the child for the 2004-05 school year (Dist. Ex. 1).  Respondent conceded at the impartial hearing and on appeal that the child was appropriately provided with a 12-month school year and that the school year for 2004-05 commenced on July 1, 2004 (Ans. ¶ 97).

 

As to the second Burlington/Carter criterion, the impartial hearing officer found the program, as described, was appropriate.  As noted by the impartial hearing officer, respondent affirmatively conceded that the amount of OT and speech/language therapy was appropriate for the 2004-05 school year; as well conceded that a 12-month school year was appropriate.  The impartial hearing officer also noted however that one of the ABA service providers from the McCarton Center, who also worked as a SEIT, was in fact functioning as a one-to-one aide in his opinion based on the mother's testimony.  The impartial hearing officer concluded that this provider had no special education license or training and that her function was refocusing the child and helping the child get along with classmates.  He found the program otherwise appropriate.  Petitioner asserts that the impartial hearing officer applied too strict a standard to reimbursement for this provider's services.  Respondent has not cross-appealed the impartial hearing officer's finding on prong two.

 

The record includes a report from the ABA supervisor describing the child’s program at MDS and at the McCarton Center as well as her progress related to her identified goals and objectives (Parent Ex. B) and progress reports from the child's related service providers (Parent Exs. B, C, E, G).  Related testimony was provided by each of these professionals as well (Tr. pp.  36-50, 67-79, 87-108).  The record includes a report of an evaluation conducted by a physician and a psychologist that described the child's deficits and included recommendations for addressing her needs (Parent Ex. H).  Testimony by the child’s one-to-one ABA instructor and the child's related service providers as well as the evaluation and progress reports contained in the record were uncontroverted, reflect the requisite alignment between the child’s needs and her goals and objectives necessary for the provision of an appropriate program, demonstrated that the child had received some educational benefit from the program provided, and opined that the private services obtained were appropriate for the child's needs.  I also note that respondent did not call witnesses or present any evidence at the hearing challenging the appropriateness of services provided to the child, although it had the opportunity to do so (8 NYCRR 200.5 [I][3][viii]).

 

I do not find that the record affords a basis for the impartial hearing officer's conclusion that the private services of the one ABA service provider should be deemed services of a one-to-one aide.  The testimony of the provider herself was taken at the impartial hearing as noted above.  She detailed her credentials and training, as well as the services she performed with the child (Tr. pp. 87-95).  Her training included present work toward becoming a board certified behavior analyst (Tr. p. 87).  She also described the multiple ABA programs that she worked on with the child and also detailed how the child progressed through the programs and into new programs as the school year progressed (Tr. p. 95).  The programs involved assistance with language, learning turn taking, attending to stories, and staying on task, among others.  The private services obtained from this provider were appropriate as set forth above and I find that the impartial hearing officer erred in finding that the hearing record demonstrated otherwise on this issue.

 

The impartial hearing officer raised another issue under prong three of the Burlington/Carter analysis that I find is more appropriately raised under the prong two analysis which is regarding the appropriateness of petitioners' unilaterally selected private educational services.  The impartial hearing officer noted that the McCarton Center was providing "Treatment of swallowing dysfunction and/or oral function for feeding" to the child.  He found that the record did not establish "any such dysfunction or need for such service" (IHO Decision, p. 11), and I concur.

Petitioners appeal the impartial hearing officer's finding on this issue and assert that these services were justified by evaluation references to the fact that the child was a "picky eater" who would not feed herself (Pet. Memorandum of Law, p. 10).  I disagree.  The record reflects that the results of the physical/neurological evaluation of the child conducted at the McCarton Center indicated that the child's face was symmetrical with spontaneous movements, her tongue position was normal, involuntary mouth movements were absent, primitive reflexes were absent, and cranial nerves were normal (Parent Ex. H at pp. 2-3).  The evaluators' recommendations did not include feeding therapy (Parent Ex. H).  They recommended that speech therapy focus on expressive, receptive, and pragmatic skills (Parent Ex. H at p. 8).  The individual education plan developed by the McCarton School for the child does not contain any goals or objectives related to swallowing or feeding dysfunction (Parent Ex. O).  Speech-language progress reports also do not reflect any identified needs, reported progress or lack thereof, or recommend any goals and objectives for feeding (Parent Exs. B, G).  There is no documentary evidence in the record specifying what needs have been addressed in the services for the "treatment of swallowing dysfunction and/or oral function for feeding" that were provided to the child.  Therefore, the appropriateness of this service is not supported by the record.  The charges for this service are therefore not appropriately reimbursed.

The impartial hearing officer found that petitioners failed to submit any documentation relating to costs for the summer 2005 program that they unilaterally selected, and I concur.  Petitioners assert that they provided proof regarding summer 2005 services in the form of testimony by an ABA provider.  This testimony however was wholly insufficient to determine what services were provided in summer 2005.  Petitioners also assert that they "should have been given the opportunity to present additional invoices and proof of payment" (Pet. Memorandum of Law, p. 17).  In fact, they were given this opportunity.  Notably, the impartial hearing officer had given petitioners the opportunity to submit additional evidence after the impartial hearing, specifically regarding the McCarton Center invoices.  The affidavit submitted by a McCarton Center representative was appropriately disregarded by the impartial hearing officer after he found that it was inconsistent with that representative's testimony at the impartial hearing, and because it failed to attach invoices as referenced (IHO Ex. 1).  The only invoices in evidence are for services through June 30, 2005 and therefore petitioners are limited to reimbursement through that date.

The final criterion for an award of tuition reimbursement is that petitioners' claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). 

 

The reasonableness of the cost of services which a parent has obtained is to be considered in determining whether equitable considerations support the parents' claim for tuition reimbursement (Carter, 510 U.S. at 15-16). Where the costs of private services are excessive, an impartial hearing officer may limit a parent's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 00-060; Application of a Child with a Disability, Appeal No. 97-10; Application of a Child with a Disability, Appeal No. 96-8).

 

Additionally, reimbursement may be reduced or denied if parents fail to give appropriate notice of their removal of the child (20 U.S.C. § 1412[a][10]).  Specifically, reimbursement may be reduced or denied if 1) at the most recent IEP meeting prior to removal of the child from public school, parents failed to inform the IEP team that they were rejecting the placement proposed, and stated their concerns and their intent to enroll the child in private school at public expense; or 2) 10 business days prior to the removal of the child from public school, parents failed to give written notice to the public agency informing it of their rejection of the placement proposed, and stating their concerns and intent to enroll the child in private school at public expense (id.; see e.g., Application of a Child with a Disability, Appeal No. 06-014).  IDEA's statutory provision requiring parental notice prior to unilaterally placing their child in private school "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]. 

 

I am unable to concur either with the impartial hearing officer's reduction of petitioners' reimbursement or with his complete denial of reimbursement, as set forth below.  I find that petitioners are limited to reimbursement for the 2004-05 12-month school year, and may not recover for "treatment of swallowing dysfunction," however; I do not find that the hearing record provides a basis for equitable considerations that limit their reimbursement.

 

First, prior to denying any reimbursement, the impartial hearing officer limited petitioners' reimbursement for the McCarton Center to $34,000.  Prior to this reduction, he found that the total amount requested by petitioners was "exorbitant and outrageous" (IHO Decision, p. 9).  He set forth the hourly rates, then specifically stated that he would not "attach an appropriate hourly rate for the varied services," and then ruled that $34,000 was an appropriate reimbursement (IHO Decision, p. 11).  The impartial hearing officer did not set forth a rationale and the record does not afford a basis for the reduction of reimbursement to the McCarton Center to $34,000.  I find that the impartial hearing officer erred by setting forth this reduction.

 

Second, regarding the impartial hearing officer's complete denial of reimbursement, I do not find that the record reflects that petitioners evidenced a lack of intent to work with the CPSE, or that they failed to give adequate notice of their removal of the child.

 

Regarding petitioners' intent, while it is true that the record establishes that they consulted with the McCarton Center before and after the CPSE meeting in May 2004, the impartial hearing officer cites no other evidence regarding his conclusion that petitioners lacked intent to work with the CPSE.  I find this evidence insufficient to support the impartial hearing officer's conclusion.  There is no evidence that petitioners failed to cooperate with the CPSE, and notably the child had attended nursery school the prior year pursuant to the CPSE's recommendations.

 

The impartial hearing officer also concluded that petitioners failed to give 10-day notice of their intent to place the child in private school at public expense.  The record does not support this conclusion.  Petitioners introduced a June 10, 2004 letter into evidence, which established that petitioners in fact gave appropriate notice of their intent to enroll their child in private school at public expense (Parent Ex. A).  Although reference was made to an April 2004 letter, which the impartial hearing officer noted was never introduced into evidence, the existence of the June 10, 2004 letter constitutes appropriate notice.  On appeal, petitioners note that any reference to an April 2004 letter was "apparently in error" (Pet. Memorandum of Law, p. 16).  The existence or non-existence of an April 2004 letter has no relevance in light of the June 10, 2004 letter. 

 

In summary, under the circumstances presented herein, and based upon the hearing record before me as developed by the parties, I am constrained to find that petitioners' reimbursement request made at the time of the hearing is granted for the time period from July 1, 2004 to June 30, 2005 for the 2004-05 school year, with the exception that charges for "treatment for swallowing dysfunction" are not properly reimbursed, as detailed above. 

I am also directing the CSE to reconvene within 30 days and to reassess the child's needs and recommend a program and secure a placement that adequately addresses those needs.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

 

            IT IS FURTHER ORDERED that respondent shall reimburse petitioners in accordance with this decision; and

 

            IT IS FURTHER ORDERED, unless the parties otherwise agree, that the CSE shall reconvene within 30 days from the date of this decision and reassess the child's needs and recommend a program and secure a placement that adequately addresses those needs.

 

 

    Dated:             Albany, New York                                              __________________________

                            August 4, 2006                                                    PAUL F. KELLY

                                                                                                        STATE REVIEW OFFICER

  

1 The record reflects that the McCarton School, a non-profit educational provider, and the McCarton Center, a private practice offering psychological evaluations, medical testing and services such as speech therapy, OT and ABA services, are separate entities (Tr. p. 26).  While the McCarton School is listed as preparing an IEP for the child, the testimony by the McCarton Center representative was that the child only received services from the McCarton Center.

 2 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply.

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

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

(B) meets the stands 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); see 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d]).

20 U.S.C. § 1401(8).