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
Law Offices of George Zelma, attorney for petitioners, George Zelma, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's residential tuition costs at the Elan School (Elan) for the 2005-06 school year. The parent further appeals from the impartial hearing officer's decision to deny the parent reimbursement for a privately obtained psychiatric evaluation. The appeal must be sustained in part.
The impartial hearing below was held on January 9, 2006 and March 2, 2006. At the conclusion of the hearing, petitioner's son was 15 years old and attending Elan. The Commissioner of Education has not approved Elan as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7, 200.1[d]). The student's eligibility for special education services as a student with a learning disability is not in dispute (see 8 NYCRR 200.1[zz]).
The student has a history of attention and organizational difficulties going back to first grade (Dist. Exs. 11 at p. 3, 12 at p. 1; Tr. p. 113). In third grade, the student was reportedly diagnosed with attention deficit hyperactivity disorder (ADHD) (Dist. Exs. 8 at p. 2, 11 at p. 3). He was classified as learning disabled (Dist. Exs. 8 at p. 3, 11 at p. 3, 12 at pp. 1-2; Tr. p. 115) and recommended for "push-in" services to support him as he worked to complete school assignments (Dist. Ex. 12 at p. 2). The student also received individual "therapy" at school (Tr. p. 116). In January of fourth grade, the student's mother was told that the student was at risk of being held over (Dist. Ex. 11 at p. 3). The school principal recommended that the student attend summer school (Dist. Ex. 11 at p. 3; Tr. p. 117), which the student did (Dist. Ex. 8 at p. 1; Tr. p. 117).
As the student transitioned to sixth grade, he reportedly became more somatic (Tr. p. 118). Administration of the Wechsler Intelligence Scale-Third Edition (WISC-III) in June 2003 yielded a full scale IQ score of 95 (37th percentile), a verbal IQ score of 101 (53rd percentile) and a performance IQ of 90 (25th percentile) all in the average range (Dist. Ex. 12 at pp. 3, 6). According to the evaluating psychologist, the eleven-point difference between the student's verbal and performance IQ scores was statistically significant and indicated a potential for learning disabilities (Dist. Ex. 12 at pp. 3, 4). The results of the evaluation revealed student weaknesses in perceptual organization, described as how to use visual information quickly and efficiently as dictated by circumstances, and processing speed, described as rapid assimilation and recall of visual information (id.). Concerns expressed by the student's mother regarding the student's lack of motivation and self-esteem were validated by the evaluating psychologist (Dist. Ex. 12 at pp. 2, 4). The psychologist suggested that the student appeared depressed and angry (Dist. Ex. 12 at p. 4). Among other things the psychologist opined that the student would benefit from continued support at school, suggesting the student might need daily resource room services that emphasized the completion of class assignments and homework in a timely manner (Dist. Ex. 11 at p. 5). A social history conducted in May 2003 detailed the student's difficulty completing homework, despite the daily assistance of a tutor (Dist. Ex. 11 at p. 2). The social history also revealed that the student was oppositional with his mother regarding school work and that by her own admission the mother tended to be indulgent with her son and had trouble setting limits (Dist. Ex. 11 at p. 3). According to the student's mother, the psychologist recommended that the student be sent to a "boot camp" based on his opposition to being tested (Tr. p. 120; see Dist. Ex. 12 at p. 5).
A progress report completed by the student's sixth grade special education teacher support services (SETSS) teacher indicated that the student had shown progress in math, his ability to attend and focus, and in some organizational skills (Dist. Ex. 6). The student continued to require services to address his expressive writing weaknesses and to help him focus during reading (id.).
A Committee on Special Education (CSE) convened for the student's triennial review on October 3, 2003 (Dist. Ex. 3 at p. 1). At the time, the student was 13 years old and in the seventh grade (Dist. Ex. 3 at p. 1). The CSE recommended that the student be classified as having a learning disability (Dist. Ex. 3 at p. 1) and receive five periods per week of SETSS within the general education classroom (Dist. Ex. 3 at p. 8). In addition, the student was recommended for individual counseling one time per week (Dist. Ex. 3 at p. 10). The student's individualized education program (IEP) indicated that the student functioned in the average range of intellectual development with some difficulty noted in the speed of processing visual information (Dist. Ex. 3 at p. 3). The student performed in the average range on subtests of the Kaufman Test of Educational Achievement (KTEA) measuring decoding, reading comprehension, and computation skills. The student scored above average on measures of math applications (Dist. Ex. 3 at p. 3). According to the IEP, all of the student's classroom teachers described him as very socially appropriate and indicated that he interacted well with others and presented with few behavior problems (Dist. Ex. 3 at p. 4). The IEP noted that when the student was distracted he responded well to redirection (Dist. 3 at p. 4). Counseling goals and objectives targeted the student's need to improve his self-concept, increase his responsibility in daily functions and his ability to accept consequences (Dist. Ex. 3 at p. 6). SETSS goals and objectives targeted the student's writing skills including organization and writing mechanics (Dist. Ex. 3 at p. 7). Although discontinuation of special education services was considered, the CSE ultimately recommended that the student continue to receive support to consolidate gains made (Dist. Ex. 3 at p. 9; Tr. p. 120).
The student's somatic complaints reportedly increased in seventh grade and the student complained that he could not go to school due to stomach problems (Tr. pp. 119-20). School progress reports from January 2004 noted that although the student was bright he was not performing up to his potential (Dist. Ex. 8 at p. 3). The student reportedly failed to hand in many assignments and did not come to class prepared (id.). The student's effort was described as poor (id.). The student's academic grades consisted of Bs and Cs (id.). A screening of the student's academic skills, conducted later that school year, in March 2004, indicated that the student's reading, decoding, spelling, and arithmetic skills were all solidly in the average range (id.).
In May 2004, the student's mother sought a neuropsychological evaluation of her son due to concerns regarding the student's attention, motivation, and lack of interest in school (Dist. Ex. 8 at p. 1; Tr. pp. 20-21). The student was overtly refusing to do homework and on occasion refused to go to school (Dist. Ex. 8 at p. 2; Tr. pp. 20, 23). The neuropsychologist administered a battery of tests, the results of which indicated the student's academic skills were within the average range with relative weaknesses in math fluency and written expression (Dist. Ex. 8 at pp. 4, 5, 10). Data from rating scales, along with testing conducted by the evaluator, revealed deficits in executive functioning, particularly skills that involved planning and inhibition of impulsive responding, shifting flexibility from one line of thinking or behavior pattern to another, regulating emotional responses, initiating goal directed behaviors, organization, and self monitoring (Dist. Ex. 8 at pp. 6-7; see Tr. pp. 21-23). The neuropsychologist noted that a significant weakness in information processing and task execution was a consistent find among previous evaluators (Dist. Ex. 8 at p. 6). Citing the student's teacher, the neuropsychologist reported that the student appeared unfocused in the classroom, became less engaged in doing his work as the year progressed, and at the time of the interview appeared to be doing no work (Dist. Ex. 8 at p. 2). The teacher reported that the student had difficulty completing assignments unless a considerable amount of support was provided and his teachers monitored him (id.). The evaluator expressed concern regarding the student's ability to progress academically, particularly as the demands for independence increased in the latter grades (Dist. Ex. 8 at p. 7; Tr. pp. 28-29).
Relative to the student's emotional and behavioral functioning, the neuropsychologist opined that the student's chief concerns involved his relationship with his mother and the frequent arguments they had, which primarily revolved around school (Dist. Ex. 8 at p. 7). Although oppositional behaviors and frequent arguing occurred with the student's mother, these behaviors did not occur at school (Dist. Ex. 8 at p. 4). The neuropsychologist suggested that the student would tend to avoid confrontation at school rather than being oppositional (Dist. Ex. 8 at p. 4; Tr. p. 27). The neuropsychologist concluded that the student's ability to meet school demands had not improved despite significant interventions and opined that the student would require a school environment that provided more support within the classroom throughout the day to address attention, motivational factors affecting school performance, the impact of poor organizational skills on writing and study skills, and other behaviors important to success in school (Dist. Ex. 8 at p. 7). He suggested that if the student continued in his current setting that problems would increase, leading to an increased risk for academic failure or complete school refusal (Dist. Ex. 8 at p. 8). The neuropsychologist recommended psychotherapy to address parent-child relationship issues (id.). He opined that if the student's needs were better managed within the school environment then less stress would be created at home (id.). In September 2004, the neuropsychologist began providing private psychotherapy in the student's home (Dist. Ex. 4; Parent Ex. E at p. 1; Parent Ex. F at p. 3; Tr. pp. 31, 33, 34, 36, 48, 51, 121).
The student entered eighth grade in September 2005. Sometime after Halloween, the student "cut" class for the first time (Tr. p. 121). As the school year progressed, the student began to skip school more frequently (Tr. p. 121). According to the student's mother, the student was participating less and less in his classes (Tr. p. 123). On January 6, 2005, the CSE met for the student's annual review (Dist. Ex. 2 at p. 1). Although the student's mother reported that the IEP meeting was tabled (Tr. pp. 128-29), an IEP recommending the same classification and services as the student's previous IEP was generated (Dist. Ex. 2 at pp. 1, 7). The IEP indicated that the student's overall academic performance was above average when he was monitored and provided with additional supports (Dist. Ex. 2 at p. 3). It was noted that the student had difficulty making inferences, possibly due to weak attention and processing controls (id.). According to the IEP, the student responded well to occasional redirection when he was off task and had significantly improved his organizational skills (id.). The IEP further indicated that the student's behavior was age appropriate, and that the student benefited from immediate feedback and was highly responsive to positive reinforcement (Dist. Ex. 2 at p. 4). The student was described as being respectful to authority figures (id.).
Home psychotherapy sessions were terminated in March 2005 due to the student's refusal to attend (Dist. Ex. 4 at p. 1; Parent Ex. E at p. 1; Tr. pp. 124-25). According to the student's mother, his behavior continued to deteriorate (Tr. pp 124-25). According to the student's private therapist, emotionally and behaviorally the student's behavior had deteriorated significantly over the course of the year (Tr. p. 33). The student was skipping school more frequently and did not care about his assignments (Tr. pp. 32-33, 124-25). In addition, the student was staying out past his curfew, physically threatening his mother (Tr. pp. 33-34), would not get up in the morning, neglected his hygiene, took money from his mother, and started using marijuana (Tr. pp. 124-25). The student's mother reported that his behavior was escalating and she felt that he was going to get arrested (Tr. p. 140). She filed a person in need of supervision (PINS) complaint against the student (Parent Ex. D), but did not pursue it because she was afraid the student would not meet the requirements of the PINS diversion and would end up in a punitive residential setting (Tr. p. 124; see also Tr. p. 140). On April 11, 2005, the student's mother signed an enrollment agreement with Elan (Parent Ex. H) and on April 12, 2005, she unilaterally placed him at the school (Dist. Ex. 16 at p. 1; see also Parent Ex. G at p. 2). The student's mother subsequently informed the district of the student's placement and requested a CSE evaluation of the student (Parent Ex. B).
A May 27, 2005 letter to the student's mother summarized the student's progress at Elan as of that date (Parent Ex. G at p. 2). According to the letter the student's initial involvement in the program was adequate; he followed directions and integrated with his peers respectfully and appropriately (id.). However, after several weeks the student began to be dishonest with peers (id.). As a result, the student had lost privileges and was demoted to the bottom level of the school's hierarchy (id.). A subsequent June 10, 2005 report from the school indicated that the student was doing well academically (Parent Exs. A at pp. 5-9) and improving on weaknesses in math and writing (Parent Ex. G at pp. 5, 7, 8). The student received the following fourth quarter grades: English II 88, Intermediate Math 94, and Writing Basics 90 (Parent Ex. G at p. 1).
In response to petitioner's request for a CSE evaluation, the student's social history was updated on June 2, 2005 (Dist. Exs. 16, 18). The social history was obtained by interviewing petitioner. The social history revealed that petitioner sought an evaluation so that the CSE might consider residential placement for her son (Dist. Ex. 16 at p. 1). According to petitioner, the student was officially absent approximately 16 to 18 times and was also late to school (Dist. Ex. 16 at p. 1). Petitioner reported that it was difficult setting limits for the student because of his physical size and oppositional behavior (Dist. Ex. 16 at p. 2). She indicated that the student did not display behavioral difficulties in public school and that he was passing his academic subjects with satisfactory grades (Cs) (Dist. Ex. 16 at p. 1). Petitioner opined that the student required a nurturing environment with structure and that without structure, limits, and a high level of accountability, the student would flounder and not comply with academic demands (Dist. Ex. 16 at p. 2).
An August 8, 2005 letter from the student's neuropsychologist offered a summary of psychotherapy services provided to the student in his home (Dist. Ex. 4 at p. 1). The neuropsychologist indicated that treatment targets related to school involved school refusal and truancy, homework completion, and effort toward completing work (Dist. Ex. 4 at p. 1). The neuropsychologist reported some success during therapy relative to homework completion, but noted that the student became less and less engaged in therapy, ultimately refusing to attend (Dist. Ex. 4 at p. 1; Parent Ex. E at p. 1). According to the neuropsychologist other treatment targets included communication skills between the student and his mother and behavioral issues that emerged at home, including substance abuse, physically threatening behavior, verbal aggression, and failing to come home (Dist. Ex. 4 at p. 1; Parent Ex. E at p. 1). The neuropsychologist reported that in the spring of 2005 cannabis use emerged and the student's behavior at home and relating to school deteriorated (Dist. Ex. 4 at p. 1). The neuropsychologist concluded that he believed the student's placement at Elan was necessary to address the student's behavioral and emotional needs, as well as to address the impact of these factors and other longstanding aspects of his functioning (e.g., ADHD) on his academic functioning (Dist. Ex. 4 at p. 2). The neuropsychologist's report indicated that his opinion was not based on an in person assessment of the student subsequent to the student's placement at Elan and was based upon information provided by petitioner's mother and a review of a written communication from her son (id.).
On August 9, 2005, the CSE met to review the student's program (Dist. Ex. 1). Although the social history reviewed by the CSE indicated that the student was truant and not complying with academic requirements, (Tr. pp. 103-05, 107) CSE members did not inquire as to the extent of the student's truancy (Tr. p. 107). The psychologist participating in the CSE indicated that she attributed the student's truancy to problems between the student and his mother (Tr. pp. 103-04, 105). The student's mother reportedly informed the CSE that she had filed a PINS petition (Tr. p. 42). At the time of the CSE meeting (end of eighth grade) the student's reading level was reported to be 9.4 and mathematic level 7.8 (Dist. Ex. 15). The student's present levels of performance from his January 2005 IEP were carried over to the August 2005 IEP (compare Dist. Ex. 2 with Dist. Ex. 1). The student's goals and objectives remained the same (see also Tr. pp. 96-97) except for the addition of a counseling goal aimed at improving the student's self-concept and self-awareness, and another counseling goal targeting the improvement of socially acceptable behaviors in school (Dist. Ex. 1 at p. 10). The CSE continued to classify the student as having a learning disability and recommended general education with SETSS five periods per week (Dist. Ex. 1 at p. 1; Tr. pp. 97-98). The student's counseling was increased to two periods per week, one individual, one group (Dist. Ex. 1 at pp. 2, 11, 12). At the request of the student's mother, residential placement was considered but the request was rejected by the CSE because the committee concluded there was insufficient evaluative data to substantiate such a restrictive setting (Dist. Ex. 15; Tr. pp. 98-99; see also Tr. p. 106). The parties dispute whether the CSE requested a psychiatric evaluation of the student (Tr. pp. 101, 134-35; see also Tr. pp. 42, 34). The mother's advocate testified that the CSE team suggested the mother request psychiatric evaluation in writing (Tr. pp. 42-34). Although both a regular education and special education teacher participated in the CSE meeting, neither professional was likely to be a teacher of the student (Tr. pp. 42, 99-100). In addition, none of the student's teachers from Elan participated, whether in person or by telephone, in the CSE meeting (Tr. p. 95) nor were they invited to participate (Tr. p. 100). The school psychologist testified that the CSE did not invite the student's current teachers at Elan to participate in the CSE meeting because the CSE had for its review current written progress reports submitted by the student's teachers from Elan (Tr. pp.100-01). By letter dated August 30, 2005, the student's mother was informed that the student's recommended placement was I044 (Dist. Ex. K), an intermediate public school (Tr. p. 139). It is not clear whether the neuropsychologist's August 8, 2005 report was reviewed by the CSE (Tr. pp. 111, 112, 134).
A September 2, 2005 report from Elan indicated that the student had transitioned well into the academic portion of the program (Parent Ex. G at p. 14). The report also indicated that the summer reporting period had been difficult for the student due to his dishonesty and willingness to accept second best from himself (id.).
By letter dated September 10, 2005, petitioner requested an impartial hearing stating that she did not agree with the recommendations made by the August 9, 2005 CSE (Parent Ex. L). A subsequent letter dated September 20, 2005, indicated that she had retained counsel (Parent Ex. A at p. 1). In the letter, petitioner's counsel asserted that the August 9, 2005 IEP was substantively and procedurally flawed, that no representative from the student's current placement participated in the review, and there was no general education teacher who would or could be responsible for implementing the IEP (Parent Ex. A at p. 2). The letter further asserted that the August 9, 2005 CSE team stated that a psychiatric evaluation was necessary in order to make an appropriate recommendation for the student and no psychiatric evaluation had been ordered or conducted by the CSE as of September 20, 2005 (id.). The September 20, 2005 letter indicates for the first time that petitioner was seeking tuition reimbursement for the unilateral placement at Elan (id.).
In October 2005, the student underwent an independent psychiatric evaluation at the request of his mother and her advocate (Parent Ex. F at p. 1). The stated purpose of the evaluation was to assess the "appropriateness" and "medical necessity" for the student's placement at the "restrictive" and "highly structured residential program" at Elan (Parent Ex. F at p. 1; Tr. p. 47). The psychiatrist testified that he has an ongoing relationship with Elan to conduct evaluations when requested by Elan staff for "purposes of determining whether the placement there has been appropriate and meets criteria for medical necessity" (Tr. p. 47). According to the psychiatrist, the student's mother believed that placement at Elan was necessary due to the student's "increasingly out-of-control behavior" and escalating drug abuse (Parent Ex. F at p. 1; Tr. p. 47). The psychiatrist further noted that although the student had several encounters with the police, he had not been arrested and was not on probation (Parent Ex. F at p. 1; Tr. pp. 51, 56-57).
The psychiatrist's interview of the student revealed that the student's family situation was a source of embarrassment for the student and that the student had powerful, ambivalent feelings about his mother (Parent Ex. F at p. 4). The student reported that prior to Elan his mother was "weak" with him (id.). He indicated that although he and his mother were affectionate he resented the long hours that she spent at work (id.). The psychiatrist opined that the student's early relationship with his mother might have been characterized by overdependence on her (id.). The student's relationship with his mother escalated over the past year when the student developed a friendship with a boy who was apparently a gang member, heavy drug user, and father of an out-of-wedlock child (id.). Although the student indicated that he enjoyed the companionship of gang members, he reported that they pushed him to steal money from his mother (Parent Ex. F at p. 5). The student indicated that he got into fights in order to prove something to older gang members whom he admired (id.).
During the interview, the student admitted that he remained at the introductory level in the Elan system of ranks because he had lost rank and privileges due to lying, stealing, or other irresponsible behavior (Parent Ex. F at p. 5). The psychiatrist concurred with the clinical impressions of the student's private therapist that included the presence of ADHD with the comorbid presence of conduct disorder, cannabis and alcohol abuse, and some passive aggressive and avoidant personality traits despite friendliness and a desire to please others (Parent Ex. F at pp. 7, 8). He noted that the student's pre-existing ADHD had been a "handicap" to the extent that it contributed to the student's impulsivity, lack of clear planning or recognition of consequences of his actions, and made it more difficult for him to follow through on tasks or assignments (Parent Ex. F at p. 8). In his report, the psychiatrist recounted the student's educational history and concluded that issues of avoidance and refusal to do homework, and outright refusal to even attend school many days by the end of eighth grade, indicated that the student would probably have dropped out entirely in the future (Parent Ex. F at p. 3). The psychiatrist opined that the student's conflicted and ambivalent intense relationship with his mother has been at the root of many of his difficulties (Dist. Ex. F at p. 8). He concluded that the student's placement in a secure residential treatment program on a full-time basis was medically necessary to prevent clinical deterioration (Parent Ex. F at p. 8).
Elan is a residential school that serves the needs of students with "just" emotional, behavioral and adjustment problems (Tr. p. 72). The students who attend Elan are mostly between 14 and 20 years old and generally stay at Elan for two to two and one-half years (id.). The program at Elan is very highly structured and contains a "life skills" component in which students are given simple tasks as a means of teaching them how to follow directions and interact appropriately with peers and adults (Tr. p. 72). The student's daily schedule consists of completing assigned chores and attending counseling sessions (Tr. pp. 73-74). The student attends school from 6:30 p.m. until 10:00 p.m. (Tr. p. 75). In a typical week, the student has 8-10 hours of group therapy, in addition to the life skills program and, as needed, individual therapy (Tr. p. 82). Most of the teachers at Elan are certified in special education (Tr. p. 91).
The student received the following first quarter grades for the 2005-06 school year: Grammar and Composition 91, US History 90, and Spanish 94 (Parent Ex. G at p. 16). Testimony elicited during the hearing indicated that the student had received some promotions (Tr. p. 78), that he had become quite invested in both the school and the life skills program (Tr. p. 79), and that he was eligible to go off campus with other students unsupervised by staff (id.). According to the social worker from Elan, the student had not been stealing, had been telling the truth and was following directions (Tr. p. 80). The student had reached the point where he was able to ask other students for help (Tr. p. 81).
An impartial hearing was held on January 9, 2006 and March 2, 2006. The impartial hearing officer's decision dated April 21, 2006, concluded that respondent provided petitioner's son with a free appropriate public education (FAPE) in the least restrictive environment (LRE) (IHO Decision at p. 9). The impartial hearing officer determined that the procedural violation of not having a special education teacher and regular education teacher of the student present at the CSE meeting did not deprive the student of educational benefits because progress reports from his current teachers had been made available (IHO Decision at p. 8) She further concluded that the recommendation for a general education class, with SETTS services was reasonably calculated to confer educational benefit in the least restrictive environment (id.) She also denied petitioner's request for reimbursement of the psychiatric evaluation conducted at Elan, finding the school psychologist credible in her testimony that the CSE did not ask that a psychiatric evaluation be conducted. The impartial hearing officer concluded, that based on the psychiatrist's testimony, it was Elan staff that requested that the evaluation take place (IHO Decision at p. 8).
This appeal ensued. On appeal, petitioner asserts that the August 9, 2005 IEP was invalid because of improper composition of the CSE that formulated the IEP, and because of the failure to include the parent in the formulation of the IEP goals. Petitioner also summarily asserts, without citing any statutory or regulatory provisions or case law for her argument that the impartial hearing officer erred in denying reimbursement for the psychiatric evaluation. Respondent asserts that the offered IEP was procedurally and substantively appropriate and that the private school placement is substantively inappropriate and overly restrictive.
One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§ 1400 - 1482)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).2 "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 536-37 [finding it improper to assume that every IEP is invalid until the school district demonstrates that it is not]).
A FAPE is offered to a student when (a) the board of education 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 ). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 2005[j][ii]). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][E][iii]).
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).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71). Although parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in LRE, it is nevertheless a factor to be considered in determining whether to award tuition reimbursement (M.S. v. Board of Educ., 231 F. 3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate, not less than one special education provider of such child (20 U.S.C. § 1414[d][B]).
The first step in determining whether tuition reimbursement is appropriate is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). Upon my review of the record, I find that petitioner's son was not offered a FAPE. By letter dated August 30, 2005, petitioner was informed that the student's recommended placement for the 2005-06 school year was I044 (Dist. Ex. K), a junior high school (Tr. p. 139). Petitioner testified that even though the student was on grade level, he was recommended for a middle school placement, meaning he would have been held back a grade (Tr. p. 139). At the time of the June 2005 social history, the student's mother reported that the student was passing his eighth grade academic subjects with satisfactory grades (Cs) (Dist. Ex. 16 at p. 1). The district representative testified that at the time of the CSE meeting the student was entering ninth grade (Tr. pp. 94-95). In addition, the student's August 9, 2005 IEP reflected an expected high school completion date of June 2009 (Dist. Ex. 1 at p. 14). Based on the record, it appears that the student should have been recommended for a ninth grade class. Respondent acknowledges in its Answer (¶ 33) that the student's recommended placement was a junior high school that served students from sixth to eighth grade. However, respondent offered no explanation at the hearing or in its pleadings as to why the student, who was reportedly satisfactorily passing eighth grade, would be held back. Given the lack of a grade appropriate placement recommendation, the student was not offered a program that was tailored to meet his individual special education needs; he was therefore not offered a FAPE for the 2005-06 school year.
In light of the above determination, I need not address petitioner's allegation that the impartial hearing officer erred in finding that although the CSE membership was improper the student was not denied educational benefits as a result of the improper CSE composition. I do note however that the record demonstrates that petitioner participated in the CSE meeting and was accompanied by an advocate, who was associated with her counsel's firm and had special education expertise, and that petitioner was offered a meaningful opportunity to participate in the formulation of the IEP (see Cerra 427 F. 3d at 193). Moreover, the record does not demonstrate that petitioner raised her concern at the CSE meeting regarding composition and there is nothing in the record to suggest that had this concern, or other procedural concerns, been raised at the CSE meeting that the CSE could not have considered them and addressed them appropriately. I will further note that respondent erred in its judgment, in the circumstance presented herein, that a review of progress reports from the student's current teachers, rather than participation by a regular education and special education teacher of the child, was sufficient to meet the procedural requirements of 20 U.S.C. § 1414[d][B] pertaining to required IEP team membership.
I now turn to a determination of whether petitioner's private placement was appropriate to meet the student's special education needs. I find that it was not. The student was classified as learning disabled and identified as having educational needs related to executive functioning, math fluency, and written expression. According to the Elan social worker, the student's special education needs were met at Elan through the program's emphasis on honesty, which would discourage cheating; and through the emphasis on accountability which would require the student to attend his class, complete his class work, complete his homework, be respectful of the teacher and mindful of the way his behavior effects other students (Tr. pp. 80-81). While at Elan, the student did receive instruction in math and writing, two areas in which he demonstrated academic weaknesses. However, there is no indication that the student was enrolled in a class other than a regular education class nor is there any indication that he received specially designed instruction or that he required small class instruction. The student was only taking three academic courses at a time at Elan: English, math, and writing during the fourth quarter of 2004-05 (Parent Ex. G at p. 1) and grammar and composition, history, and Spanish during the first quarter of the 2005-06 school year (Parent Ex. G at p. 16). Although math was an area of weakness for the student, he only received math instruction for one quarter. Given this schedule, it is not clear how the student, who was passing from grade to grade in the public school, would meet the academic requirements necessary to advance to the next grade. The record does not adequately demonstrate how the school program at Elan addressed the student's learning disability or his deficits in executive functioning. The record does not reveal that the student's educational needs were evaluated at Elan or indicate what grade level work the student was being provided. Furthermore, there is insufficient evidence in the record to suggest that the student's truancy, drug abuse and antisocial behavior were related to his educational disability. I find that the preponderance of evidence does not demonstrate that special education services provided at Elan were reasonably calculated to enable the student to receive educational benefit (see Frank G. v. Bd. of Educ. of Hyde Park, 2006 WL 2077009 at *6 [2d Cir. 2006]).
The student's placement at Elan is overly restrictive given the severity of his educational needs. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d at 105; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]). 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). A residential placement is one of the most restrictive educational placements available for a student (Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 03-066; Application of the Bd. of Educ., Appeal No. 01-091), and it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (Walczak, 142 F.3d at 122; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal, No. 03-066; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-051; Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 98-2; Application of a Child with a Disability, Appeal No. 95-33). A child with a disability is not entitled to residential placement merely because it would more nearly enable the child to reach his or her full potential (Walczak, 142 F.3d at 132 [reimbursement limited to non-residential portion of program]; Application of the Bd. of Educ., Appeal No. 03-062).
The record demonstrates that the student was able to receive educational benefit in a less restrictive setting prior to placement in the residential setting. Petitioner argues that the student required a therapeutic residential placement in order to benefit from instruction (Parent Ex. A at p. 2). A reading of the entire record does not support this claim. The social history indicates that at the time petitioner decided to unilaterally place the student at Elan the student was passing his academic subjects with satisfactory grades (Cs) in a general education environment despite reports of increasing truancy (Dist. Ex. 16 at p. 1; see also Dist. Ex. 15). In addition, the social history noted that the student did not display behavioral difficulties at school, that he was much liked by his teachers and peers and that he had an extensive social network (Dist. Ex. 16 at p. 1). The record suggests that the decision to place the student residentially was related to primarily to his increasing truancy and inappropriate behavior outside of school, rather than his performance in school. The student was engaged in socially maladjusted behavior, however, there is not a preponderance of evidence in the record demonstrating that the student required a residential placement to address his educational disability or the weaknesses stemming from it, those being deficits in attending, executive functioning, math fluency, and written expression. Other than restricting the student due to his maladaptive behavior, Elan did not provide the student with specialized instruction to address the student's identified needs related to his educational disability. It appears that petitioner's impetus for placing the student residentially was her fear that her son would end up being arrested (Tr. p. 140) or placed in a punitive residential setting (Tr. p. 124). Just prior to the student’s placement his mother had filed a PINS complaint against him (Parent Ex. D). At this time the student’s behavior outside of school included staying out past his curfew, physically threatening his mother (Tr. pp. 33-34), refusing to get up in the morning, neglecting his hygiene, taking money from his mother, and using marijuana (Tr. pp. 124-25). There is no indication in the record that any professionally licensed person, including his therapist, had recommended residential placement for educational purposes for the student prior to the unilateral placement. Subsequent to the residential placement, petitioner's son's therapist and the psychiatrist who provides evaluations for Elan did recommend continued placement of the student at Elan, however I find that neither of their evaluations sufficiently addressed whether the student's needs could be met in a less restrictive setting. Behavioral problems at home do not afford a basis for concluding that the student requires a residential placement, absent evidence that the student was otherwise regressing educationally in a day program as a result of those problems (see Walczak, 142 F.3d at 131-132 [residential placement not appropriate where student made meaningful social and academic progress in a day program]; compare Mrs. B., 103 F.3d at 1121 [residential placement necessary where behavioral problems at home resulted in the student failing all of her classes, and not advancing more than one grade level in any subject in three years while in a day special education program with a therapeutic component]; Application of a Child with a Disability, Appeal No. 04-021; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-093; Application of a Child with a Disability, Appeal No. 01-084).
Based upon the foregoing, I find petitioner failed to meet their burden of proof under the second Burlington criterion for an award of tuition reimbursement. As such, the necessary inquiry is at an end (Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-039) and petitioner is not entitled to an award of tuition reimbursement.
I have considered petitioners argument pertaining to her request for reimbursement for the psychiatric evaluation. As petitioner frames the claim, to the extent she does at all, she does not seek reimbursement for the evaluation because of a disagreement with an evaluation obtained by respondent (see 8 NYCRR 200.5[g]). Rather, her argument appears to be based upon an assertion that the CSE team asked that a psychiatric evaluation be performed. Regarding this matter the impartial hearing officer found respondent's witness credible that such a request did not occur and declined to award reimbursement to petitioner for the cost of the evaluation. I see no reason to modify the impartial hearing officer's determination on this issue.
I have considered petitioner's remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that respondent had offered petitioner's son an appropriate educational program for the 2005-06 school year.
Dated: Albany, New York __________________________
August 9, 2006 PAUL F. KELLY
STATE REVIEW OFFICER
1 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 after the effective date of the 2004 amendments, the provisions of the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(9)