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

No. 06-043 

 

 

 

 

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

 

 

Appearances:

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for petitioner, Susan T. Johns, Esq., of counsel

 

Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorneys for respondents, Kenneth S. Ritzenberg, Esq., of counsel

 

 

DECISION

 

Petitioner, the Board of Education of the New Hartford Central School District (district), appeals from the decision of an impartial hearing officer, which found that it failed to offer an appropriate educational program to respondents' son for the 2004-05 and 2005-06 school years, and ordered petitioner to reimburse respondents for their son's tuition costs at the Family Foundation School (Family Foundation) from January 10, 2005 through the end of the 2005-06 school year.  Respondents cross-appeal from the impartial hearing officer's determination, which denied their request for reimbursement of their son's tuition costs at Family Foundation from September 2004 through January 10, 2005.  The appeal must be sustained in part.  The cross-appeal must be dismissed.  

 

  At the commencement of the impartial hearing on July 14, 2005, the student was 17 years old and attending Family Foundation (Tr. pp. 1, 14-15).  Petitioner's Committee on Special Education (CSE) initially classified him as a student with an emotional disturbance in May 2001, and respondents unilaterally placed the student at Family Foundation in April 2003 (Parent Exs. 3 at p. 6; 34).  Family Foundation is described as a private residential school with a therapeutic component  (Parent Ex. 3 at p. 12).  The school utilizes the Alcoholics Anonymous Twelve-Step approach as a counseling method throughout the school, which aims at bringing families back together.  Family Foundation has not been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities (8 NYCRR 200.1[d], 200.7).

 

Family Foundation is organized into family units with staff, who serve in pseudo-parental roles, with approximately 30 students in each unit, who are encouraged to act as brothers and sisters (see Application of a Child with a Disability, Appeal No. 04-070).  Each unit provides family counseling at which attendance is mandatory, as well as group counseling sessions and seminars for parents.  Students range in age from 12 to 19 years, and the education component of the school provides instruction for grades seven through twelve.  Students generally remain at Family Foundation for a minimum of 18 months, but the average stay is two to two and one half years.  Students are responsible for the cooking, cleaning, and all aspects of daily living.  Students with academic difficulties are provided with peer tutors, staff tutors, and individualized attention in class, as well as extra time, extra notes and opportunities to retake tests.  If these modifications are not successful for any given student, that student may have access to a special education teacher, who may conduct a formal educational evaluation.

 

The student's eligibility for special education programs as a student with an emotional disturbance is not in dispute in this appeal (see 8 NYCRR 200.1[zz][4]). The student’s educational history is set forth in Application of a Child with a Disability, Appeal No. 04-070, and will not be repeated at length in this decision (Parent Ex. 3).1  The student's history includes a record of a diagnosis of congenital adrenal hyperplasia, behavioral problems, depressed mood,  emotional outbursts, "disobeying rules and orders, verbal and physical aggression, substance use, academic underachievement, disordered eating habits, and psychological problems" (Tr. p. 184; Parent Exs. 3 at p. 2; 34 at p. 1).   

 

On June 23, 2004, petitioner's CSE convened for the student's annual review to develop the student's 2004-05 individualized education plan (IEP) (Parent Ex. 10 at p. 1). Attendees at the meeting included: petitioner's CSE chairperson, psychologist, special education teacher, and regular education teacher; an additional parent member; the principal of Oneida Board of Cooperative Educational Services (BOCES); Family Foundation's guidance counselor via telephone; respondent mother; and petitioner's and respondents' attorneys (Parent Ex. 10 at p. 6).

 

Teacher reports indicated that as of June 11, 2004 - some 14 months after respondents initially enrolled the student at Family Foundation—the student had missed class, been late to class, failed homework assignments, and "hardly ever participate[d]."  The reports also noted that he failed "too many quizzes and tests," "tend[ed] to get angry over little things," performed below his academic potential, and " often act[ed] immature[ly] with staff, especially when he [did] not get his way" (Parent Ex. 45 at pp. 1, 3).  The student's interactions with adults were described as generally respectful, and he appeared to interact appropriately with peers in the classroom setting (Parent Ex. 45 at pp. 1, 3, 4). 

 

A social worker at Family Foundation wrote a letter, dated June 11, 2004, which described the student as beginning to make changes in his lifestyle (Parent Ex. 34).  However, the letter noted that the student still "presents a series of emotional and functioning problems.  He is socially immature, tells lies, and has difficulty in the classroom, both in academic achievement and motivation. . . .  He still has a difficult time determining appropriate behavior and holding himself accountable for his actions"  (Parent Ex.  34 at p. 1).  The letter also indicated that there was a discontinuance of psychotropic medication and the emergence of social building blocks.  The student was noted to associate with a positive peer group and was beginning to display appropriate behavior (Parent Ex. 34).  The social worker opined, at that time, that if placed in a "normal school setting," the student would revert to adverse behavior because he was "'still attracted to a deviant lifestyle, wishes to belong to a 'cool' crowd, and has not developed a sufficient internal sense of self to resist the influence of a negative peer group"' (Parent Ex. 34 at p. 1). The social worker indicated that the student was easily distracted and that his grades would suffer without a structured classroom environment (Parent Ex. 34).

 

Petitioner's CSE updated the student's present levels of performance based on reports from Family Foundation (Tr. pp. 54-55).  Academically, the student's grades at Family Foundation, as of May 2004, ranged between 76 and 89 percent (Parent Ex. 11 at p. 4).  Reports demonstrated that although the student completed homework on time and in an acceptable manner, homework required monitoring (Parent Ex. 11 at p. 4).  The 2004-05 IEP indicated that the student's "most recent psychological reports him to be a strong visual learner" (Parent Ex. 11 at p. 4). 

 

Family Foundation's guidance counselor2 reported at the June 2004 CSE meeting that the student demonstrated improved self-esteem, but that he tended to get "sulky" or angry when confronted (Parent Ex. 10 at p. 3).  The student received weekly group counseling to work through the Twelve-Steps at Family Foundation, but he received no individual counseling (Tr. pp. 48-49; Parent Ex. 10 at p. 3).  A staff member assumed the role of counselor during what was referred to as a "family session," but the staff member held no certifications in any field (Parent Ex. 10 at p. 3).  The student received no special education instruction at Family Foundation (Dist. Ex F at pp. 2-3).  He did, however, lose 95 pounds of body weight during the 2003-04 school year (Parent Ex. 11 at p. 4). 

 

Testimony by the CSE chairperson indicated that the student's primary area of need appeared to be social-emotional, with anger continuing to be a problem (Tr. p. 55). Goals and objectives from the 2003-04 IEP were repeated in the 2004-05 IEP because they addressed continued areas of concern (Tr. p. 55; compare Parent Ex. 11 at pp. 6-8 with Dist. Ex. E at Joint Ex. 78). 

 

The CSE recommended that the student attend the Oneida BOCES 12:1+1 adjustment class within the Westmoreland Central School District for the 2004-05 school year without specifying any program recommendations for the summer of 2004 (Parent Ex. 11 at p. 1).   

 

According to the Oneida BOCES principal, the Oneida BOCES 12:1+1 adjustment class recommended by the CSE was a grade level, structured, behavioral program designed to meet the social, emotional, and academic needs of its students (Tr. pp. 438-39).  It is located in a regular school building where the students have the opportunity to be mainstreamed when appropriate (Tr. p. 57).  Students in the class are described as academically capable, but have behaviors that interfere with their academics (Tr. p. 58). Counseling is an integral component of the BOCES program, and a full-time social worker is assigned to the three "senior high" adjustment classes (Tr. pp. 435-36).  The social worker provides individual and group counseling and makes family contacts (Tr. pp. 437-38).  In addition, an alternative learning room is available as a place where students from the program can either choose to go or be requested to go by a teacher, to address behavior management and social skills development (Tr. pp. 436-37).  The alternative learning room is staffed by a full-time "student manager," who is a teaching assistant specifically trained in therapeutic crisis intervention (TCI) (Tr. pp. 435-36).  TCI is a curriculum developed by Cornell University to provide skills to staff members in the areas of communication, de-escalation, and physical restraint (Tr. p. 441). 

 

 The Oneida BOCES principal explained at the impartial hearing that the behavioral management program is implemented within the BOCES class with rewards individualized to the student (Tr. p. 440).  Students are supervised throughout the day (Tr. p. 440).  The BOCES staff, which includes a special education teacher, social worker, and school psychologist, conducts functional behavioral assessments and develops behavior intervention plans for the students (Tr. pp. 61, 441).  The BOCES principal reported to the CSE at the June 2004 CSE meeting that she believed the student's needs were similar to the other students in the 12:1+1 class (Tr. pp. 443, 444).

 

The CSE also recommended the related services of individual counseling two times per week for 30 minutes and group counseling once per week for 30 minutes (Parent Ex. 11 at p. 4).  The CSE recommended supplementary aids and services and program modifications, such as an agenda planner checked daily in the classroom, preferential seating in front of the classroom, monitor homework completion daily, and parent training for consistent carryover of behavioral interventions (Parent Ex. 11 at p. 4).  Test accommodations included extended time (1.5), administration of tests in a separate location with minimal distractions, student to repeat directions back to adult, and access to word processor with spell check and grammar check (Parent Ex. 11 at p. 6).  

 

Through their attorney, by letter dated March 24, 2005, respondents rejected the 2004-05 IEP (Parent Exs. 11; 13 at p. 1; Dist. Ex. F at p. 4).  The student remained at Family Foundation through the 2004 summer and for the 2004-05 school year.

 

The record reflects that in October 2004, the student injured himself after he "deliberately kicked a window out of anger" at Family Foundation (Parent Ex. 23 at p. 18).  A month later, on November 11, 2004, the student met with a psychiatrist, who noted that the student had been "violent" and had "kicked in a window and pushed another student" (Parent Ex. 23 at p. 16).  The psychiatrist reported that the student tried to "talk his way out of the consequences of his behaviors" and that he was "[n]ot very responsible" or "trying very hard" (Parent Ex. 23 at p. 16). 

 

On December 13, 2004, respondent father requested that Family Foundation arrange for an updated psychiatric evaluation of the student by the same psychiatrist who evaluated him 18 months earlier (Parent Ex. 37).  On December 17, 2004, respondent father requested that Family Foundation provide the student with weekly individual counseling with a social worker and that the psychiatrist "follow the student on a regular basis, perhaps monthly for cognitive and behavioral psychotherapy to address his negative emotions" (Parent Ex. 38 at p. 1).  On December 22, 2004, the psychiatrist met with the student and maintained the earlier diagnosis of Oppositional Defiant Disorder, but rated the diagnosis as "severe" (Parent Ex. 32 at p. 6). 

 

In January 2005, Family Foundation referred the student to their consultant psychologist for "individual counseling" (Tr. pp. 372-73).  Although the psychologist has a Master's degree in psychology, he is not certified or licensed (Tr. p. 368).  At that time, he worked at Family Foundation for approximately 15 hours per week, counseling students and consulting with staff (Tr. p. 369).  The psychologist provided individual counseling to the student for the first time on January 10, 2005 (Parent Ex. 39).  At the hearing, the psychologist described the student as an individual who had great difficulty managing his anger and attitude toward peers and school work (Tr. p. 373). He noted that the student was under performing, sullen, and disconnected from "what was important for his progress and movement forward" (Tr. p. 373).  He further noted that staff had concerns about the student's lack of any appreciable progress given the "length of time" he had been at Family Foundation, and that the student had a very significant problem managing his anger and emotions (Tr. pp. 373; 379-80).  In addition, the student was "underachieving, stuck," and "very stagnant in his progress" and in his "development"  (Tr. p. 382). 

 

In February 2005, the student attempted to run away from Family Foundation  (Parent Ex. 56).  As a result, he was moved from family unit one, where he had been since his arrival at Family Foundation, to family unit eight because he was "feeling angry at every person he sees" (Parent Ex. 56 at p. 1).  Generally, a student is moved to a different family unit if the student is not making progress (Tr. p. 318). 

 

By letter dated February 5, 2005, respondent father wrote to Family Foundation that "I feel I need to advocate for him to get regular group counseling" with either the psychologist or the social workers (Parent Ex. 42 at p. 1).  Respondent father noted in the letter that a recent psychiatric re-evaluation indicated that the student was still "very defiant" and exhibiting "negative emotions" (Parent Ex. 42 at p. 1).  A Family Foundation social worker responded to the student's father, by letter dated February 15, 2005, that the student was attending "weekly individual counseling sessions" with Family Foundation's consultant psychologist (Parent Ex. 43 at p. 1).  She also indicated in the letter that the student also had the opportunity to see the school's social workers "as the need arises" (Parent Ex. 43 at p. 1). 

 

In preparation for the student's 2005-06 annual review, petitioner requested updated records from Family Foundation (Tr. p. 65; Parent Exs. 12; 15).  By letter dated April 13, 2005, the CSE chairperson invited the student to participate by telephone in transition planning at the upcoming CSE meeting (Parent Ex. 18).  Family Foundation's guidance counselor responded in a letter dated April 26, 2005, that the student was "refusing to work through his current difficulties, and it would be counterproductive for [the student] to focus on the future" (Parent Ex. 19 at p. 1). 

 

On or about April 28, 2005, the CSE chairperson spoke with Family Foundation's consultant psychologist to gather insight regarding the student's social-emotional level of performance (Tr. p. 71; Dist. Ex. C).  The psychologist reported that the student was very defiant, very angry with adults including his parents, was chronically dishonest, and had difficulty taking responsibility (Tr. p. 73).  The psychologist stated that the student felt that life was unfair and that he wanted to go home (Tr. pp. 81-82).  The student was closed, not insightful or self-reflective (Dist. Ex. C).  The student did not have the ability to live well with other people, and the psychologist was "waiting for him to get fed up with his life and he will change" (Tr. p. 83; Dist. Ex. C at p. 4).  The psychologist stated that the student needed a facilitator and counseling because he would not change on his own accord (Tr. p. 83; Dist. Ex. C).  The psychologist testified that "part of what collectively we were waiting on [was] for him to be so frustrated with his current behavioral pattern and recognize its ineffectiveness in productivity to be motivated to change" (Tr. p. 419). 

 

On May 10, 2005, petitioner's CSE convened to prepare the student's 2005-06 IEP (Parent Ex. 27 at p. 2).  Attendees at the meeting included:  petitioner's CSE chairperson, school psychologist, special education teacher, regular education teacher, and social worker; an additional parent member; the principal from Oneida BOCES; respondents; and petitioner's and respondents' attorneys  (Parent Ex. 24 at p. 1).  Family Foundation's consultant psychologist, guidance counselor, and the student's 11th grade English teacher also participated by telephone (Tr. pp. 85-87; Parent Ex. 25).

 

The consultant psychologist, who began providing "individual counseling" to the student in January 2005, reported to the CSE that the student was beginning to demonstrate a willingness to talk about his anger and frustration in the counseling format, but he was defiant; the student had changed family groups because he was not making anticipated progress; he was provided counseling, but was not actively engaging; he was resistant to counseling; he had superficial peer relationships; the student's peer relations were poor; the student's interactions were very limited and superficial; he had a sullen and depressed look; he was calculated; the student's obsessions interfered with academics; and, he had had a number of work sanctions (Tr. pp. 86-87; 97; 372-73; 400-02; Parent Ex. 24 at p. 6).  He also reported that the student's need for anger management had not been addressed and the student had a "shadow" since January 2005, who walked with the student to monitor his behavior (Tr. pp. 103-04; 406-07).  Family Foundation's consultant psychologist advised the CSE that, as of that date, the student's needs "would suggest the necessity for regular therapeutic intervention. Weekly would be preferred" (Tr. p. 402-03).

 

The English teacher opined that the student had underlying anger that she could "hear in his voice" and she viewed him as a "time bomb" (Tr. p. 97; see Parent Ex. 46 at p. 2).  The participants from Family Foundation reported to the CSE that the student's grades were inconsistent, but he was passing his courses (Tr. p. 85).  Academically, his area of need was in the area of homework completion (Tr. p. 86).  There was no report that the student had any physical needs (see Tr. p. 87).  The student had not made a home visit in two years (Tr. p. 601).

 

Based upon the information provided by the Family Foundation participants regarding the severity of the student's behavioral needs, the Oneida BOCES principal concluded at the CSE meeting that the 12:1+1 adjustment program at Westmoreland Central School District could no longer meet the student's needs (Tr. p. 104).  Petitioner's special education teacher agreed with the Oneida BOCES principal and concluded that given the student's current behavior, a program with more structure than the 12:1+1 adjustment program was needed (Tr. p. 106). 

 

Upon consideration of the information presented at the meeting, petitioner's CSE determined that the student's emotional state had deteriorated, thus increasing the student's needs at that time, and the CSE recommended that the student attend a New York State Education Department (NYSED) approved residential placement for the 2005-06 school year (Tr. p. 104-05; Parent Exs. 25, 27).  Respondent mother testified that the student needed a residential school and counseling to help maintain his academics (Tr. p. 601).  Petitioner's CSE chairperson testified that no one at the meeting objected to the recommendation for a residential placement (Tr. p. 107). 

 

Following the CSE meeting, petitioner contacted the NYSED representative for residential placements to seek recommendations for potential placements at NYSED approved residential schools (Tr. p. 108).  Petitioner was advised of two schools and submitted an application to each school (Tr. pp. 108-09).  By letter dated June 8, 2005, the admissions coordinator at the Devereux Brandywine-Fenwood program (Devereux-Fenwood) responded that their services, activities, and programs could meet the student's needs and that Devereux-Fenwood would accept the student (Parent Ex. 26).  Devereux-Fenwood would set an admission date after receiving the completed information packet from respondents (Tr. p. 112-13; Parent Ex. 26). 

 

On July 11, 2005, the CSE reconvened for a program review to discuss the potential residential placement at Devereux-Fenwood with the following attendees: petitioner's CSE chairperson, psychologist, and special education teacher; an additional parent member; respondent mother; petitioner's and respondents' attorneys; and Devereux's Admissions Coordinator via telephone (Tr. pp. 113-14, 512; Parent Ex. 30 at pp. 1, 2).  The CSE recommended that the student attend the Devereux-Fenwood program for 2005-06, beginning on July 1, 2005 (Parent Ex. 31 at p. 3). 

 

 Petitioner's director of student services testified that the Devereux-Fenwood program has both school and residential program components (Tr. p. 115).  It is separate and distinct from the Devereux-Glenwood program, which the student attended for two weeks in 2001 as a result of a unilateral placement by respondents (Tr. p. 604; Parent Ex. 26 at p. 6).  The Devereux-Fenwood school component provided for education in a 12:1+1 class setting, with individual counseling available (Tr. pp. 115-16; Parent Ex. 26 at pp. 5-14).  According to the education director at Devereux, each classroom had a certified special education teacher and a teaching assistant (Tr. p. 495).  All classrooms were self-contained with grouping based upon students' academic abilities and age ranges (Tr. p. 495).  Although it is an out-of-state special education school, the students have the opportunity to prepare to take the Regents exams to earn a Regents diploma when they return to New York State (Tr. pp. 494-95). 

 

Additional counseling is provided in the residential program.  Counselors from the residential program are at the school every day and are available if a crisis should arise (Tr. pp. 496-97).  The students' primary therapists are either Master's level or Ph.D. level licensed social workers (Tr. p. 499).  The school has its own psychiatric hospital (Tr. p. 535).  A psychiatrist is present on campus every day (Tr. p. 505-06).  Counselors provide 24-hour coverage in the residences, and the counselors all possess Bachelor's degrees (Tr. p. 532; Parent Ex. 30 at p. 5).  Family counseling is also available (Tr. pp. 534-35; Parent Ex. 26 at p. 11).  

 

Respondents did not complete, or return, the information packet to Devereux-Fenwood and respondent mother testified that they had no intention of removing the student from Family Foundation for the 2005-06 school year (Tr. pp. 598, 602). 

 

Respondents had requested an impartial hearing through their attorney by letter dated March 24, 2005, seeking tuition reimbursement and all other educationally related expenses accrued on behalf of the student for the 2004-05 school year, including attorney's fees (Parent Ex. 13).  The parents generally asserted that petitioner failed to provide a free appropriate public education (FAPE) to the student for the 2004-05 school year, failed to offer the student 12-month programming over the summer of 2004, and failed to provide the student and respondents with procedural due process rights (Parent Ex. 13 at pp. 1-2). 

 

On the first day of the impartial hearing, the parties stipulated that although respondents had not prepared a formal written request for an impartial hearing to seek tuition reimbursement regarding the 2005-06 school year, the parties agreed to address the issue during the current impartial hearing (Tr. pp. 5-6).  The impartial hearing continued on July 15, August 22, August 23, and October 24, 2005 (Tr. pp. 250, 427, 700, 746).

 

The impartial hearing officer determined that petitioner's 2004-05 IEP failed to offer the student a FAPE and that Family Foundation was an inappropriate placement, until such time that individual counseling was implemented for the student on January 10, 2005 (IHO Decision, p. 9).  For the 2005-06 school year, the impartial hearing officer found that petitioner's failure to include a general education teacher at the July 11, 2005 CSE meeting invalidated the 2005-06 IEP, and therefore, denied the student a FAPE (IHO Decision, pp. 9-10).  The impartial hearing officer concluded that Family Foundation was an appropriate placement for the student for the 2005-06 school year, and thus, directed petitioner to reimburse respondents for their son's tuition costs from January 10, 2005, through the end of the 2005-06 school year (IHO Decision, pp. 11-12).   

 

On appeal, petitioner alleges that the impartial hearing officer erred in finding that the 2004-05 IEP failed to offer the student with a FAPE.  Petitioner asserts that the failure to include a general education teacher at the July 2005 CSE meeting did not invalidate the 2005-06 IEP or deny the student a FAPE.  Petitioner also contends that the implementation of individual counseling on January 10, 2005, could not be used to rehabilitate the inappropriateness of Family Foundation for either the 2004-05 or the 2005-06 school year.  Respondents assert that the impartial hearing officer's determination should be upheld in its entirety, and cross-appeal that portion of the determination that denied respondents' request for tuition reimbursement for the cost of their son's attendance at Family Foundation from September 2004 through January 10, 2005. 

 

A purpose behind the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 is to ensure that all 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]).4  A board of education may be required to reimburse parents 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]; Mrs. C. v. Voluntown Bd. of Educ., 226 F. 3d 60, 66, 68 [2d Cir. 2000]).  

 

A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).

 

The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120  [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

I will first address petitioner's appeal with respect to the 2004-05 school year.  Based upon a thorough review of the record, I agree with the impartial hearing officer's determination that petitioner failed to offer the student a FAPE for the 2004-05 school year.5  The 2004-05 IEP developed on June 23, 2004 is deficient. The IEP does not accurately reflect how the student performs or adequately describes the student's needs (Parent's Ex. 11 at p. 3).

 

Present levels of performance do not reflect the student's anger and how that anger and resultant behaviors affect his educational and social development (Parent's Ex. 11 at p. 3). The present levels of performance, as written, reflect that the student achieved average grades in his academic courses and needed to be monitored for homework completion (Parent's Ex. 11 at p. 3). In the section describing the student's social development, the student is described as "generally gets along well with his peers," yet under the management section, there is a contradicting notation that the student needs to improve peer relationships (Parent's Ex. 11 at p. 3). These descriptions minimize the degree and intensity of the student's emotions and behaviors and their subsequent impact on his academic and social performance. The IEP does not reflect an earlier diagnosis of Oppositional Defiant Disorder (Parent's Ex. 32 at pp. 5-6).

 

The record is replete with information regarding the 2003-04 school year up to the time of the June 23, 2004 CSE annual review, which indicates that the student's needs were more significant and intense than what the IEP actually reflects.  A social worker at Family Foundation wrote a letter, dated June 11, 2004, which described the student as beginning to make changes in his lifestyle (Parent Ex. 34).  However, the letter noted that the student still "presents a series of emotional and functioning problems.  He is socially immature, tells lies, and has difficulty in the classroom, both in academic achievement and motivation. . . .  He still has a difficult time determining appropriate behavior and holding himself accountable for his actions" (Parent Ex. 34 at p. 1).  The letter also indicated that there was a discontinuance of psychotropic medication and the emergence of social building blocks.  The student was noted to associate with a positive peer group and was beginning to display appropriate behavior (Parent Ex. 34).  The social worker opined, at that time, that if placed in a "normal school setting," the student would revert to adverse behavior because he was "still attracted to a deviant lifestyle, wishes to belong to a 'cool' crowd, and has not developed a sufficient internal sense of self to resist the influence of a negative peer group" (Parent Ex. 34 at p. 1).  The social worker indicated that the student was easily distracted and that his grades would suffer without a structured classroom environment (Parent Ex. 34). The 2004-05 IEP does not reflect the intensity of the student's needs in either the academic or social domain.

 

Testimony by the CSE chairperson indicates that the student's primary area of need at that time was in the social-emotional domain (Tr. p. 55). Family Foundation's consultant psychologist testified that at the time the student was referred to him during the 2004-05 school year by the student's family leader, the student was having "great difficulty managing his anger and managing his attitude towards his peers, towards schoolwork. He was underperforming, appeared to be very sullen, sulky, and disconnected from what was important for his progress and movement forward" (Tr. p. 373).  In addition, he noted that there was "concern about the length of time that he had been here at the school and not made any appreciable progress with his program" (Tr. p. 373).

 

The inadequate reporting of the student's present levels of performance and needs, particularly as they relate to his difficulty with anger and anger management, resulted in inadequate goals on the 2004-05 IEP.  The goals and objectives did not adequately address the student's anger and need for anger management. 

 

The goals and objectives included in the 2004-05 IEP were vague in that they did not provide sufficient guidance to the student's teachers and parents with respect to the CSE's expectations for the student's performance (Parent Ex. 11 at pp. 6-8).

 

Having determined that petitioner did not offer to provide a FAPE to the student during the 2004-05 school year, I must now consider whether respondents have met their burden of proving that placement of their son at Family Foundation 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).  As noted above, in order to meet that burden, respondents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the student'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).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).  

 

With respect to the second Burlington criterion for an award of tuition reimbursement, the impartial hearing officer determined that respondents failed to sustain their burden of proving the appropriateness of their unilateral placement from September 2004 through January 10, 2005.  The impartial hearing officer did find, however, that Family Foundation became an appropriate placement when counseling was implemented on January 10, 2005, and awarded partial tuition reimbursement for the 2004-05 school year.

 

I agree with the impartial hearing officer's determination that Family Foundation was not an appropriate placement from September 2004 through January 10, 2005 for reasons similar to those set forth in Application of a Child with a Disability, Appeal No. 04-070:  "I find that the Family Foundation School’s program does not meet the student's identified behavioral and emotional needs.  This school does not provide the special education services needed by this student" (Application of a Child with a Disability, Appeal No. 04-070; Dist. Ex. 3 at p. 13).  There is no evidence in the record to suggest that Family Foundation's program from September 2004 through January 10, 2005, differed in any manner from the program in place during the 2003-04 school year (see Application of a Child with a Disability, Appeal No. 04-070).   

 

Testimony by the CSE chairperson indicated that the student's primary area of need appeared to be social-emotional (Tr. p. 55). The guidance counselor from Family Foundation, who had no credentials as a guidance counselor, reported that the student tends to get "sulky" or angry when confronted (Tr. pp. 309-10; Parent Ex. 10 at p. 3).  While the student received weekly group counseling to work through the Twelve-Step program at Family Foundation, the staff member who assumed the role of counselor during the "family session" held no certifications in any field (Parent Ex. 10 at p. 3).  When respondents placed the student at Family Foundation for the 2004-05 school year, Family Foundation did not offer or provide individual counseling (Parent Ex. 10 at p. 3).  Furthermore, during the 2004-05 school year, the student did not receive special education instruction or test modifications at Family Foundation (Tr. pp. 291-92; 358; Dist. Ex F at pp. 2-3).

 

The placement at Family Foundation was inappropriate to meet the student's needs at the time respondents continued the placement for the 2004-05 school year.  I disagree, however, with the impartial hearing officer's decision that Family Foundation became an appropriate placement upon implementation of counseling services on January 10, 2005.  The record reflects that the student began receiving "individual counseling" in January 2005, as a result of specific requests made by respondents shortly after Application of Child with a Disability, Appeal No. 04-070 was issued regarding the 2003-04 school year and after the student exhibited violence toward himself and another student (Parent Exs. 3; 38; 39).  Family Foundation's consultant psychologist testified that the student's family leader referred the student to him in January 2005 because the student was having "great difficulty managing his anger and managing his attitude towards his peers, towards schoolwork.  He was underperforming, appeared to be very sullen, sulky, and disconnected from what was important for his progress and movement forward" (Tr. p. 373).  In addition, he noted that there was "concern about the length of time that he had been here at the school and not made any appreciable progress with his program" (Tr. p. 373). 

 

The record reflects that, in total, the student's "individual counseling" consisted of seven or eight sessions between January 2005 and July 2005, and occurred only at the student's initiative (Tr. pp. 371; 389-90).  The consultant psychologist did not read the student's 2003 psychological evaluation or speak to the psychiatrist about the student during the time that he provided counseling to the student (Tr. pp. 399; 417; IHO Decision, p. 6).  Moreover, he reported to the CSE that, in his opinion, the student required regular therapeutic intervention and weekly counseling was preferred (Tr. pp. 402-03).

 

Based upon the evidence in the record, I am not persuaded that the limited "individual counseling" implemented at Family Foundation in January 2005 transformed an inappropriate unilateral placement into an appropriate placement.   

 

I will now address petitioner's appeal with respect to the 2005-06 school year.  I disagree with the impartial hearing officer's finding that the absence of a regular education teacher at the July 2005 CSE meeting invalidated the 2005-06 IEP and therefore, petitioner failed to provide the student with a FAPE (IHO Decision, p. 9).

 

A CSE meeting must include the parent of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (8 NYCRR 200.3[a][1]). 

 

The IDEA, its implementing regulations, and New York law require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).  The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

 

In this case, the record demonstrates that a regular education teacher was present at the May 10, 2005 annual review when the CSE discussed and developed the student's 2005-06 IEP (Parent Ex. 24 at p. 1).  When the CSE reconvened on July 11, 2005, it did so to conduct a program review to discuss the student's potential residential placement at the Devereux-Fenwood program and no regular education teacher was required at the July meeting, particularly given the level of participation by the regular education teacher at the May meeting.  (Tr. p. 113-15; see Parent Ex. 30 at pp. 1, 2).  The student's classification, present levels of performance, supplementary aids and services and program modifications and supports, testing accommodations, participation in the general education, related services, and goals and objectives had been discussed at the May 2005 meeting (Parent Exs. 24 at pp. 13- 15; 31 at pp. 1-11).

 

I note that many of the issues regarding the adequacy of the IEP raised by respondents in their answer were addressed in the development of the 2005-06 IEP at its May 10, 2005 meeting when the CSE determined that, due to the severity of the student's behavioral needs at that time, the BOCES 12:1+1 program would not be appropriate (Tr. pp. 104, 106).  The IEP developed at that meeting contains a description of the student, which accurately reflects reports of progress provided by Family Foundation staff who participated in the May 10, 2005 CSE meeting.  The present performance levels described on the 2005-06 IEP include information about the student's limited and superficial peer relationships, his oppositional behavior, and his need to develop strategies for anger management (Parent Ex. 31 at p. 5).  Goals and objectives continue to describe needs identified in previous IEPs, but were expanded and clarified, and are reflective of the description of the student's needs as articulated in his present performance levels (Parent Ex. 31 at pp. 9-11).  Additionally, I note that a number of objectives were added and that these objectives are more specific and include more detailed criteria by which progress can be monitored.

 

Having determined that petitioner adequately offered a FAPE to respondents' son for the 2005-06 school year, I need not reach the issue of whether or not Family Foundation was an appropriate placement; respondents are not entitled to tuition expenses, and the necessary inquiry is at an end (Voluntown, 226 F.3d at 66; Walczak., 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 06-018; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).

 

            I have considered petitioner's and respondents' remaining contentions and find them to be without merit. I also note that respondents were significantly involved in the formulation of the IEPs in dispute and attended CSE meetings accompanied by counsel (see Cerra, 427 F.3d at 192).  Most of the IEP inadequacies alleged by respondents on appeal were either concerns not raised by respondents at CSE meetings, or were addressed by the resulting IEP, or were concerns that did not rise to the level of denying the student a FAPE.  

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

THE CROSS-APPEAL IS DISMISSED.  

 

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that he granted respondents' request for reimbursement of their son's tuition costs at Family Foundation from January 10, 2005 through the end of the 2005-06 school year; and

 

IT IS FURTHER ORDERED that the impartial hearing officer's determination that the student was not offered a FAPE for the 2005-06 school year is also annulled.

 

 

Dated:

Albany, New York

 

__________________________

 

July 3, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 A decision involving the same student, Application of a Child with a Disability, Appeal No. 04-070, was issued on December 3, 2004,,  That decision found that Family Foundation was not an appropriate placement for the student for the 2003-04 school year, because it did not appropriately address the student's emotional needs in the school, it did not provide individual counseling for the student, and it did not have staff who were able to provide the counseling that the student required (Application of a Child with a Disability, Appeal No. 04-070; Parent Ex. 3 at p. 14).  Respondents appealed this decision, and it is now pending in the United States District Court for the Northern District of New York   (IHO Decision, p. 9).

 

2 Family Foundation's guidance counselor testified that in addition to her position as guidance counselor, she also holds the title of assistant principal (Tr. p. 310).  The record reflects that although she has an MBA in management information systems, she holds no New York State certifications for guidance counseling or for being a principal (Tr. pp. 309-10).  She testified that her primary responsibilities involve keeping track of students' credits, teacher and student scheduling, discussing anticipated graduation dates with parents, and scheduling CSE meetings with districts (Tr. p. 310).

 

3 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647).  As the relevant events in the instant appeal took place before the effective date of the 2004 amendments, the provisions of the IDEA 2004 do not apply.

 

4 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]; see also 34 C.F.R. §300.13; 20 U.S.C. §1414[d].

 

5 This determination would remain the same if during the impartial hearing the burden of persuasion had been placed on the parents as the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S.Ct. 528, 537 (2005).  Based upon the record in the present case, regardless of whether petitioner or respondents were deemed to have the burden of persuasion, I would find that the evidence amply demonstrates that respondents prevail on the first Burlington criterion.