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

No. 06-076 




Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability



Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel

Neal Howard Rosenberg, Esq., attorney for respondents


            Petitioner, the New York City Department of Education (district), appeals from the decision of an impartial hearing officer which found that the district failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for their son's tuition and speech-language therapy costs at the Sterling School (Sterling) for the 2005-06 school year.  The appeal must be dismissed. 


            At the commencement of the impartial hearing on May 4, 2006, the student was 11 years old (Parent Ex. M at p. 1) and attending fifth grade at Sterling (Tr. p. 20), a private school for children with "dyslexia" (Tr. p. 135).  The Commissioner of Education has not approved Sterling as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  In addition to having behavioral and emotional needs (Tr. pp. 84, 129, 131, 150; Dist. Ex. 1 at p. 2; Parent Ex. H at p. 2), the student has executive functioning impairments which are demonstrated in the areas of attention, listening comprehension, recall, memory, and impulse control (Tr. p. 78).  He has been diagnosed with Attention Deficit Hyperactivity Disorder, combined type (ADHD) (Tr. p. 77; Dist. Ex. 1 at p. 14), a Developmental Coordination Disorder which affects his handwriting and fine motor control and speed (Tr. p. 79; Dist. Ex. 1 at p. 14), and he continues to have "residual dyslexia," with respect to rapid naming and chronological processing (Tr. pp. 77, 79; Dist. Ex. 1 at p. 14).  The student's eligibility for special education as a student having an other health-impairment (OHI) (8 NYCRR 200.1[zz][10]) (Tr. p. 95; Parent Ex. M at p. 1) is not in dispute in this appeal.


            Respondents initially referred their son to the Committee on Special Education (CSE) for evaluation in March 2001 when he was in first grade (Dist. Ex. 1 at p. 6).  The student was unable to identify all the letters of the alphabet, and he was having difficulty learning phonics.  In contrast to his classmates, the student continued to be a non-reader, could not spell any words, and displayed poor handwriting and letter reversals.  The student's first grade teacher characterized the student as having a very limited attention span, being unable to focus, and requiring one-on-one attention.


            On March 20, 2001, the CSE conducted an evaluation of the student (Dist. Ex. 1 at p. 4).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 104, a performance IQ score of 102, and a full scale IQ score of 104 (Dist. Ex. 1 at p. 4).  Administration of the Woodcock-Johnson Psychoeducational Battery yielded a subtest score at a K.9 grade equivalent in letter-word identification and, as a result, reading comprehension or word attack skills could not be assessed (Dist. Ex. 1 at p. 6). With respect to math skills, the student's scores were at a 1.2 grade equivalent for calculation, 1.5 for applied problems, and 1.3 for broad math (id.). 


            On April 26, 2001, the CSE initially classified the student as Learning Disabled (Dist. Ex. 1 at p. 1; Parent Ex. H at p. 1).  The student was provided with daily resource room services and modifications such as preferential seating.  Respondents initiated private tutoring in June 2001.  The student continued to make poor progress, even with tutoring, and respondents arranged for an evaluation with a pediatric neurologist. Results of the student's evaluation resulted in a diagnosis of "severe dyslexia" and a recommendation that he be placed in a full-time program with children of "normal intelligence" and learning disabilities. Neuropsychological testing was also recommended.


            The student repeated first grade at P.S. 185 for the 2001-02 school year due to his poor academic progress during 2000-01( Dist. Ex. 1 at p. 2; Parent Ex. H at p. 2).  During the 2001-02 school year, the student attended a class consisting of 20 children and received resource room services on a daily basis.  He continued receiving private tutoring with a certified Orton-Gillingham learning disabilities specialist.  The student reportedly made poor progress despite these interventions.  His reading, spelling and writing skills continued to be below grade level.  The student reportedly demonstrated anxiety associated with schoolwork.  His teachers noted that his "lack of self-control and focus" was affecting his learning.


            In November 2001, private psychological testing results indicated that the student's cognitive functioning was highly variable, ranging from low average to superior (Dist. Ex. 1 at pp. 1-2; Parent Ex. H at pp. 1-2).  Reading, spelling and math skills were reported to be significantly below what would be expected for the student's general level of intellectual functioning (id.).  On the Wechsler Abbreviated Scales of Intelligence (WASI), the student's verbal IQ score was 121, performance IQ score was 92, and full scale IQ score was 107 (Dist. Ex. 1 at p. 5).  In contrast, administration of the Wide Range Achievement Test-Third Edition (WRAT-3) resulted in the student achieving standard scores in the borderline range for reading (74), spelling (75), and arithmetic (78) (id.).


            In November 2001, the CSE conducted a reevaluation of the student (Dist. Ex. 1 at p. 5).  The student reportedly had difficulty remaining in his seat, and was described as uncooperative and working in a haphazard manner (id.).  The student made excuses for his difficulty with presented tasks, and reportedly became distraught and cried during the evaluation when the examiner tried to reassure him (id.).  Completion of the Conners' Teacher Rating Scale-Revised (CTRS-R) by the student's teacher reportedly revealed an elevated score for "oppositional behavior" (id.).  The school psychologist described the student as "extremely immature" and as demonstrating "infantile wishes of dependency and symbiosis" (id.).  The student's teacher reported that he was easily distracted and required the teacher's undivided attention to maintain his focus (Dist. Ex. 1 at pp. 5-6).


            At respondents' request, the CSE reevaluated the student in March 2002 (Dist. Ex. 1 at p. 2; Parent Ex. H at p. 2).  Results of the reevaluations indicated that the student's cognitive and academic skills were all in the average range.  At the time, the school psychologist attributed the student's academic problems to behavioral, emotional and social difficulties.  A new individualized education program (IEP) was developed on March 21, 2002.  On March 21, 2002, the CSE reportedly recommended that the student continue to be classified as a student having a learning disability (LD), and that his services and accommodations remained unchanged.  


            In April 2002, a private neuropsychological evaluation was conducted (Dist. Ex. 1).  Respondents were noted to be concerned about their son's distress over his academic difficulties and having to repeat first grade, and reportedly the student's struggles in school were adversely affecting his mood and self-esteem (Dist. Ex. 1 at p. 2; Parent Ex. H at p. 2).  He was described as somewhat anxious and unable to sleep alone (id.). The record reflects that the student had a history of delayed receptive and expressive language, characterized in part by difficulty in the areas of following two-step directions, self-expression, oral-motor control and articulation (id.).


            The private psychologist concluded that the student was a bright child whose academic performance was limited by learning disabilities, as well as by problems with hyperactivity, distractibility, and impulsivity (Dist. Ex. 1 at p. 10).  The private psychologist opined that distress regarding the student's inability to keep up academically led to his increased anxiety, avoidance of academic challenges and poor self-esteem (id.).  The student's strength was noted to be his above average nonverbal reasoning, as demonstrated by his score in the 90th percentile as a result of the administration of Raven's Coloured Progressive Matrices (RCPM) (Dist. Ex. 1 at pp. 11, 18).  Test results confirmed that there were impairments in the student's motor coordination, sequencing of movements and speed (Dist. Ex. 1 at p. 13).  The student's difficulty in processing visual spatial information resulted in his visual recall being significantly poorer than his recall for verbal material (id.).  Once motor demands were eliminated, the student demonstrated above average nonverbal reasoning (id.).  The private psychologist provided the student with a diagnosis of Developmental Coordination Disorder (id.).  In addition, the private psychologist provided the student with diagnoses of Reading Disorder ("dyslexia"), and ADHD (Dist. Ex. 1 at p. 14).   Recommendations included a class with a small student to teacher ratio where the student could receive individual attention, integrated use of a teaching method such as Orton-Gillingham, and direct and indirect related services (id.).


            In September 2002, when the student was in second grade, respondents enrolled their son at Sterling (Dist. Ex. 2 at p. 2; Parent Ex. H at p. 2).  He attended Sterling for third grade during the 2003-04 school year (Dist. Exs. 3, 4, 5), and for fourth grade during the 2004-05 school year (Dist. Exs. 6, 7).  The CSE convened for the student's annual review on March 23, 2005, to develop the student's IEP for the 2005-06 school year, when the student would be in fifth grade (Parent Ex. M).  The March 23, 2005 CSE attendees included respondents, petitioner's district representative, the school psychologist, and the general education teacher, as well as the Sterling principal/special education teacher, and a parent member (Parent Ex. M at p. 2).  The March 23, 2005 CSE classified the student as a student with an OHI and recommended a 12:1 special class in a community school (Parent Ex. M at p. 1), with related services of individual counseling one time per week for 30 minutes in a separate location (Parent Ex. M at p. 13), individual speech- language therapy twice per week for 30 minutes in a separate location, and individual occupational therapy twice per week for 30 minutes in a separate location (id.).  The March 23, 2005 CSE also recommended that the student be exempt from second language requirements due to his language difficulties (Parent Ex. M at p. 12).  Recommended test accommodations included the extension of time limits by fifty percent and the provision of a special location with less than 12 students (Parent Ex. M at p. 13).  Additional accommodations included small group explicit instruction in phonological awareness, frequent refocusing, the breaking down of complex tasks into simple ones with multisensory stimulation and explicit instruction, model math problems using step by step instructions (Parent Ex. M at p. 3), the provision of encouragement, praise, and reinforcement for age appropriate reactive behaviors, and a small number of supervised transitions to new and less restrictive learning environments (Parent Ex. M at p. 4).  The IEP also indicated that the student could benefit from some interaction with typical general education peers in nonacademic subject areas (Parent Ex. M at p. 12).


            Respondents obtained a neuropsychological reevaluation after the March 23, 2005 CSE meeting to assess their son's progress and determine appropriate educational and clinical interventions (Parent Ex. H at p. 1).  The private psychologist who initially tested the student in April 2002 conducted this reevaluation in July 2005 and October 2005 (Tr. p. 70; Parent Ex. H at p. 1).  The private psychologist described the student as having lapses in attention as a result of impairments in executive functioning (Tr. p. 78).  He opined that the student had made improvements that were in part due to the smaller school environment at Sterling where he received more individualized support that had compensated for some of the student's weaknesses in attention (Tr. pp. 78-79).  The private psychologist explained that when the student was more stressed and when there were more distractions in the environment, his ability to stay focused became somewhat compromised (Tr. p. 83).  He stated that the student was aware that he continued to struggle despite some progress, and was aware to some degree that he did not "completely fit in" with his peers (Tr. p. 89). 


            In a Final Notice of Recommendation (FNR) dated June 10, 2005, petitioner's CSE recommended that the student attend a 12:1 class at P.S. 102 for the 2005-06 school year (Dist. Ex. 13).  Respondents were informed that unless they responded otherwise to the FNR before June 23, 2005, the recommendations would be put into effect (id.).  The student's mother testified that she received the FNR on June 15, 2005 (Tr. p. 172).  By letter dated June 20, 2005, respondents stated that the student's mother had observed the recommended class that day and rejected the placement because the class  did not appear to address her son's educational needs or meet the March 23, 2005 IEP recommendations (Tr. pp. 174-75; Parent Ex. K).  The letter noted that the student's mother observed a reading activity and that the class functioned at a level that was inappropriate for her son (Parent Ex. K).  Petitioner's CSE did not contact respondents or reconvene after respondents rejected the placement that the March 23, 2005 CSE recommended for their son (Tr. p. 176).  Respondents re-enrolled their son at Sterling for the 2005-06 school year in September 2005 (Dist. Ex. 18).


             By letter dated November 4, 2005, respondents requested an impartial hearing (Parent Ex. F).  In their impartial hearing request, respondents stated that they found the recommended program to be inappropriate due to the low functioning levels of the students, the lack of multisensory small group teaching, and the  "overwhelming" school environment.  Respondents stated that no placement was offered to their son subsequent to their rejection of the June 10, 2005 FNR.  They also stated that the IEP developed at the annual review on March 23, 2005 contained multiple procedural errors, which affected their son's educational program.  Respondents indicated that their son required a small class in a small school environment, with full-time special education.  Their proposed resolution included tuition reimbursement and the provision of transportation and related services for their son's attendance at Sterling for the 2005-06 school year


            The impartial hearing convened on May 4, 2006.  By decision dated June 13, 2006, the impartial hearing officer stated that it appeared that the March 23, 2005 CSE was not receptive to options beyond the decision that it had reached (IHO Decision, p. 11).  She found that the placement recommended by the March 23, 2005 CSE for the student was not appropriate and stated that the student's needs appeared to require a smaller setting with respect to class size and school size (IHO Decision, p. 12).  The impartial hearing officer noted that Sterling is a small structured environment which offers close emotional support and direction by personnel with expertise in special education (id.).  She stated that it was the very progress that the student made at Sterling that was relied upon by the CSE to determine that he was ready for a different setting, and she found Sterling to be an appropriate educational setting for the student (id.).  The impartial hearing officer did not find any equitable bar to respondents' recovery (id.).  She noted that the mother visited the recommended sites upon receipt of petitioner's FNR, respondents responded immediately by rejecting the placement, and were not offered another placement by petitioner (IHO Decision, p. 12).  The impartial hearing officer ordered the reimbursement of tuition costs for the student's 2005-06 school year at Sterling (IHO Decision, p. 13).  The impartial hearing officer found that a request for reimbursement of speech-language therapy costs was included in the impartial hearing request under respondents' proposed solution to secure related services, and she ordered reimbursement for its cost (IHO Decision, pp. 12, 13). 


            On appeal, petitioner asserts that respondents did not meet their burden of proving that it failed to provide their son with a free appropriate public education (FAPE)1 for the 2005-06 school year.    Petitioner claims that the student's IEP was reasonably calculated to the enable the student to receive educational benefits in the least restrictive environment (LRE) and therefore offered him a FAPE.  Petitioner also contends that Sterling cannot fully implement the student's IEP because Sterling is a special education school, which no regular education students attend, and Sterling does not provide occupational and speech-language therapies.  Rather, speech-language therapy is provided at Sterling by an independent contractor at an additional cost.  Petitioner does not appeal the impartial hearing officer's determination regarding equitable considerations.2


One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 – 1482)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]).  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[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22)4.  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 20 U.S.C. § 1412 [a][10][C]).).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).    "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412 [a][10][C][ii]).  With respect to equitable considerations, the IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Frank G., 459 F.3d at 363-64; Mrs. C. v. Voluntown, 226 F.3d 60, 66 n.9 [2d Cir. 2000]).


            The first step is to determine whether the district offered to provide a FAPE to the student (see Voluntown, 226 F.3d at 66 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  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]).  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][3][E][i]).  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][3][E][ii]; see 8 NYCRR 200.5[i]).  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][3][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, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), 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 student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).


            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. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).


            The central issue in this appeal is whether the student's academic and social-emotional needs are addressed to the extent that he is able to receive educational benefit in the recommended program.  I concur with the impartial hearing officer's conclusion and I am not persuaded by the evidence in the record that the recommended program would have adequately addressed the student's special education needs.  Petitioner supports its program recommendation, in part, by relying on the assistance to be provided to the student by a paraprofessional (Pet. ¶ 97; Tr. pp. 35, 47, 64) who was formally assigned to an identified student in the classroom (Tr. p. 35).  No paraprofessional was assigned to the student's recommended class or to the student himself (Tr. p. 67; Parent Ex. M), and the special education teacher testified that she did not have a paraprofessional in her class every year (Tr. pp. 34-35).  In this regard, I have reviewed the student-teacher ratio, the sufficiency of the additional support provided to the student, as well as the student's transitioning needs in a large public school setting.  As such, I have paid particular attention to the formal and informal duties assigned to the paraprofessional in the student's recommended classroom.  The paraprofessional reportedly interacted with the entire class (Tr. p. 35), worked with one of the small groups when the special education teacher divided the class for academics (id.), and accompanied the 12:1 class to lunch, physical education,  art, computer, and multicultural classes without the special education teacher (Tr. pp. 63-64).    In essence, the recommended class functioned more as a 12:1+1 class than a 12:1 class, and allowed for small group activities within the classroom and supervision of the 12 students during their specials and lunch (Tr. pp. 35, 47, 64). 


            In light of the March 23, 2005 IEP statement that, "[t]he consistency and structure of small group instruction must be provided during the entire school day" (Parent Ex. M at p. 11) and the private psychologist's testimony that the student needs a small class of perhaps 8:1 with opportunities for 1:1 or 2:1 group sessions (Tr. pp. 82-83), the IEP offers no explanation regarding the manner in which the special education teacher or teachers for specials (Tr. p. 24) can meet the student's multiple academic and social-emotional management needs in the classroom (Parent M at p. 4) without additional support.  Moreover, in view of the special education teacher's testimony that the paraprofessional supervised the recommended 12:1 special class at lunch time in the cafeteria (Tr. p. 64), the March 23, 2005 IEP does not address the student's supervision during unstructured parts of the his school day (Tr. pp. 64, 149-51, 154).   Although for different reasons, I agree with the impartial hearing officer's determination that the program recommended by the March 23, 2005 CSE did not address the student's academic and social-emotional needs and was not reasonably calculated to enable the student to receive educational benefits.  Based on the foregoing, I find that respondents have sustained their burden of proving that petitioner did not offer their son an appropriate program for the 2005-06 school year (Rowley, 458 U.S. at 206-07). 


Having determined that petitioner did not offer to provide a FAPE to the student during the 2005-06 school year, I must now consider whether respondents have met their burden of proving that the services provided by Sterling and by the speech-language therapist were appropriate for their son (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).  In order to meet that burden, the parents 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 that met the child’s special education needs (Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 01-010). 


            Respondents enrolled their son at Sterling, a school for children with primary needs resulting from dyslexia (Tr. p. 135), for his second through fifth grade years (Tr. p.  20; Dist. Exs. 2 at pp. 2; 3; 4; 5; 6; 7; Parent Ex. H at p. 2; K; M).   Sterling has nine staff members and a total enrollment of 24 students (Tr. p. 135).  Respondents' son was instructed by a teacher with a Master's degree in special education and certification by the Orton-Gillingham Academy (Tr. p. 151).  With respect to whether the student's special education needs were met at Sterling for the 2005-06 school year, the Sterling principal testified that Sterling addressed the student's needs in the areas of decoding, encoding, reading comprehension, math computation, problem solving skills, written expression, attention, comprehension, and verbally presented information, oral expression skills, self-concept, anger management, and socialization (Tr. pp. 157-58; Dist. Ex. 21 at p. 1).  In addition, she stated that Sterling addressed the student's needs in the areas of rigidity, distractibility, susceptibility to being easily overwhelmed by his environment, lunchroom monitoring, small class size, explicit instruction, and academic management (Tr. pp. 146-50, 152, 154, 166).  The speech therapist stated that the student needed to learn to control his impulsivity, to become sensitive to the social cues of others, and to be able to organize his language to facilitate conversations with others (Tr. p. 127). The private psychologist recommended a smaller, more protective environment than recommended by petitioner, and stated his concerns regarding the risk of the student being bullied or ostracized in a large setting (Tr. pp. 82-84).


            Respondents' son was assigned to a homeroom of seven children and received instruction in social studies and science in a "full group" (Tr. p. 147).  Math class was grouped by skills, and language arts class was divided such that half of the class received remediation, while the remaining half received language arts instruction (Tr. pp. 147-48).  The groups alternated to receive the remaining lesson (id.).  Because the student was so easily overwhelmed, he was allowed to read in the principal's office, when needed (Tr. p. 148).  The Sterling principal testified that this was allowed because the student was on task when reading in the office or in an empty room (id.).


            With respect to the student's social-emotional needs, Sterling's guidance counselor provided individual weekly counseling (Tr. pp. 158, 162).  The speech-language therapist provided speech-language therapy once a week for a one hour session (Tr. p. 126) in a small group setting because the student was extremely sensitive to the amount of stimulation in his environment and the behaviors of his peers (Tr. pp. 128-29).


            The speech-language therapist testified that the student has become an active group participant who can verbalize about how difficult it is for him to control his impulses and express negative thoughts, and he has demonstrated more appropriate manners toward other people (Tr. p. 131).  She observed tremendous improvement in his behavior, including his ability to interact with others, to use language appropriately, and to be more sensitive to his peers (Tr. p. 132).  Likewise, the private psychologist testified that the student's social skills had improved (Tr. p. 84), and that the high degree of individual attention provided at Sterling contributed to the student exhibiting fewer overt behavioral difficulties (Tr. pp. 77-78).  The private psychologist testified that from 2002 to 2005, the student had become a lot calmer and more focused, and needed less intervention to engage him during the assessment process (Tr. p. 75).  The Sterling principal also stated that the student's progress has been "astonishing" (Tr. p. 152). She stated that although there was a tremendous disparity between what the student could read and write about and what he was actually interested in, he was now able to read independently (Tr. p. 146).  Last year he was unable to do so (id.).  Moreover, the student's November 2005 report card from Sterling indicates that the student received grades of A or A- in subcategories within the subject areas of language arts, science, and social studies (Dist. Ex. 21 at pp. 1-2).  The student received a grade of B in language arts in the subcategory of reading comprehension, and a grade of C+ in decoding (Dist. Ex. 21 at p. 1).


            Petitioner asserts that Sterling is a special education school without regular education students in attendance. Sterling provides mainstreaming opportunities by taking community "trips" and through museum activities (Tr. p. 161).  Except for instruction in physical education and in "specials" (Tr. pp. 63-64), if respondents' son had attended petitioner's school during the 2005-06 school year, he would have been enrolled in a special education class for all of his classes (Parent Ex. M at pp. 1, 11).  Both the placements considered appropriate by respondents and petitioner involved educational placements separate from non-disabled peers (Tr. p. 161, Parent Ex. M at pp. 1, 11).


            Petitioner also asserts that Sterling does not provide occupational therapy, but does provide speech-language therapy at an additional expense.  With respect to occupational therapy, during the 2005-06 school year, the student received these services through the provision of a Related Service Authorization (RSA) by petitioner (Tr. pp. 183-84; Dist. Ex. 14; Parent Ex. M at p. 11).  In addition to recommending occupational therapy for the student, the March 23, 2005 IEP also recommended speech-language therapy (Parent Ex. M at p. 11).  As noted by the impartial hearing officer, there was no testimony that supported petitioner's provision of an RSA for speech-language therapy to respondents (IHO Decision, p. 12; Tr. p. 195) to enable them to secure a provider at petitioner's expense.  Without the provision of speech-language therapy or the provision of an RSA for speech-language therapy to respondents, petitioner failed to provide related services required by the March 23, 2005 IEP (Parent Ex. M at p. 11) to respondents' son.  During the 2005-06 school year, respondents hired a licensed speech-language therapist with over 30 years of experience in her field, who had been successfully providing speech-language services to their son since October 2003 at Sterling as an independent provider (Tr. pp. 125, 131-133).  I agree with the impartial hearing officer, and based on the above, I find that the program offered at Sterling, including speech-language therapy through an independent provider, was appropriate to meet the student's needs in the LRE (see Frank G., 459 F. 3d at 364-66).


The final criterion for an award of tuition reimbursement is that respondents' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 416 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. 2006]).  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Voluntown, 226 F.3d at 68; see Carter, 510 U.S. at 16 [noting that "Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).


            Because petitioner did not appeal the impartial hearing officer's determination regarding equitable considerations weighing in favor of respondents, the impartial hearing officer's determination regarding this issue is final and not subject to my review (34 C.F.R. § 300.514[a]; 8 NYCRR 200.5[j][5][v]; see also Application of a Child with a Disability, Appeal No. 06-067; Application of a Child with a Disability, Appeal No. 06-008; Application of a Child with a Disability, Appeal No. 06-001.  Accordingly, based upon my examination of the entire hearing record, I agree with the impartial hearing officer and I find that the evidence demonstrates that respondents' son was not offered a FAPE by petitioner for the 2005-06 school year, and that the Sterling placement was appropriate.  Given the impartial hearing officer's finding that equitable considerations support respondents' claim, I will not disturb her award of tuition reimbursement.

I have considered petitioner's remaining contentions and I find them to be without merit.




Albany, New York




October 18, 2006





1 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).

2 Respondents do not cross-appeal, but argue, inter alia, that the March 23, 2005 CSE failed to develop an appropriate IEP for their son based on a lack of meaningful parental participation and the procedurally and substantively inappropriate development of goals and objectives in the formulation of their son's IEP.    With respect to the LRE, respondents contend that the class and school size were not appropriate for the student to function and progress academically, socially, and emotionally. 

3 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004] [codified as amended at 20 U.S.C. §§ 1400-1482]).  Since the underlying events in this appeal occurred subsequent to that date, all references to the IDEA refer to the newly amended provisions of the IDEA, unless otherwise specified.

4 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations.  However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.