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

No. 06-084

 

Application of the BOARD OF EDUCATION OF THE PENFIELD 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:
Harris Beach PLLC, attorney for petitioner, David W. Oakes, Esq., of counsel

Joyce B. Berkowitz, Esq., attorney for respondent

DECISION

            Petitioner, the Board of Education of the Penfield Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's daughter and ordered it to reimburse respondent for her daughter's tuition costs at the Logan River Academy (Logan River) for the 2005-06 school year.  Petitioner also appeals from that portion of the impartial hearing officer's decision ordering it to reimburse respondent for the cost of an independent educational evaluation (IEE).  The appeal must be sustained in part.

            At the commencement of the impartial hearing on March 22, 2006, the student was almost 14 years old and attending Logan River, where she had been unilaterally placed by respondent on February 9, 2006 (Tr. pp. 287-88, 847) for latter part of the 2005-06 school year.  Logan River has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The student has a diagnosis of an Attention Deficit-Hyperactivity Disorder (ADHD) and a mood disorder for which medications have been administered (Dist. Ex. 28 at p. 1).  Cognitive testing indicates that the student's intellectual ability is in the average range (Dist. Exs. 32 at p. 2, 47 at p. 5; see Dist. Ex. 3 at p. 3).  However, the student's emotions reportedly cause her to be easily stressed and overwhelmed by academics (Dist. Ex. 3 at p. 3).  She has difficulty following directions and completing work, and engages in negative attention getting behaviors which are disruptive to her own learning and to the class (id.).  The student's eligibility for special education services as a student with an emotional disturbance is not in dispute in this appeal (see 8 NYCRR 200.1[zz][4]).

            Respondent's daughter began kindergarten in petitioner's district in September 1997 (Dist. Ex. 47 at p. 1).  During the student's first grade year in the 1998-99 school year, her teacher characterized her as creative but as having difficulty with reading and remaining focused (id.).  The student's first grade teacher also indicated that the student exhibited signs of avoidance and defiance (id.).  The student participated in the early intervention reading program in first grade, where her progress was noted to be inconsistent (id.).

            At the end of first grade, in April 1999, respondent's daughter began a course of medication for ADHD (Dist. Ex. 40 at p. 1).  That same month, petitioner's school psychologist described the student as less distracted and less impulsive, but noted that her social interactions and lack of compliance remained areas of concern (id.). 

            Petitioner's Committee of Special Education (CSE) initially classified respondent's daughter as a student with a learning disability (LD) in October 1999 and recommended placement in a second grade inclusion class where she received counseling and behavioral support from petitioner's school counselor (Dist. Ex. 40 at pp. 1-2).  When the student was in third and fourth grades during the 2000-01 and 2001-02 school years, she attended a school lunch group twice a month with petitioner's school social worker (Dist. Ex. 40 at p. 2).  The student was described as resistant to meeting individually for counseling, but in fifth grade during the 2002-03 school years, her counseling services were increased to weekly, with two group and two individual sessions per month (id.).

            Team meetings were held throughout the fall of 2002 to assess the student and to determine how to modify her program to keep her engaged in learning (Dist. Ex. 40 at p. 2).  The team noted that because the student was classified as LD and appeared at times to be able to meet academic demands, her resistant and disrespectful behavior appeared to teachers as manipulative and under her control (id.).  Respondent reported being concerned that her daughter felt misunderstood and not cared about or liked by adults (id.).  During the 2002-03 school year, petitioner's school social worker met with the student's parents on a regular basis to develop more effective approaches for addressing their daughter's difficulties at home (see Dist. Ex. 40 at pp. 2-3).  Despite various accommodations, the student's functioning in the classroom continued to deteriorate (Dist. Ex. 40 at p. 3).  The student found it increasingly difficult to engage in academic work in the classroom (id.).  She reported that she was feeling overwhelmed, stressed and humiliated in the classroom setting and her behavior was described as becoming more obstinate, resistant and disrespectful (id.).  The social worker opined that the student's classification should be changed to a student with an emotional disturbance to give "a more accurate picture of her needs" (id.).

            The CSE met on March 25, 2003 (Dist. Ex. 21 at p. 1).  Review of the student's Woodcock Johnson III Achievement Test scores revealed that all of her standard scores were greater than 100, except in Spelling, Writing Fluency and Passage Comprehension, in which the student received respective scores of 90, 94, and 93 (Dist. Ex. 21 at p. 2).  The CSE indicated that respondent's daughter was easily stressed and overwhelmed by academics, especially in writing, with increasing concerns in Math (Dist. Ex. 21 at p. 1).  When stressed, the student would engage in negative attention seeking behaviors that were disruptive, such as calling out and making faces, gestures and inappropriate comments (id.).  The CSE recommended that the student be classified as a student with an emotional disturbance (Dist. Ex. 22 at p. 1; see Dist. Ex. 21 at p. 1).  The CSE further recommended consultant teacher services to support Language Arts, Math, Social Studies and Science (id.).  In addition, the CSE recommended that the student receive resource room services daily and counseling, both group and individual, on a weekly basis (id.).

            A functional behavioral assessment (FBA) of the student was conducted in November 2003 (Dist. Ex. 69; see Dist. Ex. 68 at p. 1).  The student's FBA noted that while the student was academically capable, her emotions interfered with her productivity (Dist. Ex. 69 at p. 1).  When faced with academic tasks that she perceived as overwhelming within a large group setting and within the context of the classroom, she displayed negative off-task behaviors, including rolling her eyes, lying across her desk, making noises and inappropriate remarks, and refusing to do her work (id.).  A behavioral intervention plan (BIP) was developed in conjunction with the November 2003 FBA (Dist. Ex. 69 at p. 2).  Counseling was recommended to be continued for the student on a weekly basis to explore self-esteem concerns, problem solving strategies and to address school related anxiety, such as allowing the student to take small breaks and stand up and move about the classroom at an appropriate time during class (id.).  The student's FBA and BIP were reviewed on May 2004, reviewed and revised on October 6, 2004, and again reviewed and revised on November 3, 2004 (Dist. Ex. 68 at p. 2; see Dist. Ex. 66).

            The CSE met on March 23, 2004 and recommended that the student be placed in a 12:1+1 special class for Science and Social Studies for 2.5 sessions per week during the 2004-05 school year (Dist. Ex. 17 at p. 1).  The CSE also recommended that the student receive 24 minutes of integrated consultant teacher services on a daily basis to support her with Language Arts and Math (id.).  The CSE further recommended that the student receive 40 minutes of daily resource room and 30 minutes of individual counseling once a week (id.). 

            The CSE obtained a counseling update from petitioner's school social worker on October 7, 2004, when the student was in seventh grade (Dist. Ex. 37).  The school social worker indicated that the student was working with her on concerns involving work completion and classroom behavior (id.).  The school social worker reported that the student found that it was difficult to complete assignments, that she was easily distracted by classmates, that she had difficulty with organization, and that she was often preoccupied with her own thoughts, which were upsetting to her (id.).  The school social worker noted that if the student was preoccupied by events and her emotions, it was a precursor to a difficult day for the student (id.).

            A psychological evaluation was conducted by petitioner's school psychologist on November 1, 2004 as part of a reevaluation of the student (Dist. Ex. 32 at p. 1).  The school psychologist noted that the student was apprehensive and reserved about the assessment, was not motivated by her performance, and rushed through many of the questions (id.).  On the Kaufman Brief Intelligence Test (KBIT), the student's performance yielded  standard scores of 94 in Vocabulary, 75 in Matrices and a KBIT IQ composite score of 83 (id.).  The school psychologist indicated that these results were an underestimate of the student's abilities and that the student's motivation and emotions affected her performance (Dist. Ex. 32 at p. 2).  As part of the November 2004 evaluation, the student was also administered selected subtests of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) to evaluate her processing speed (id.).  The school psychologist indicated that the student's focus was much better on this evaluation, which yielded results in the average range (id.).  The school psychologist compared these results to the scattered scores on the KBIT where her scores were in the borderline to average range (id.).  The school psychologist reported that results of ratings by the student's classroom teachers revealed that the teachers were concerned about the student's hyperactivity, aggression, attention problems, learning problems, somatization and adaptive skills, and  indicated that most of the student's needs emanated from emotional and behavioral problems, for which she required a significant amount of support (id.).

            On November 23, 2004, the CSE met and recommended that the student be placed in a 12:1+1 special class for Math and Language Arts, as well as for Science and Social Studies and receive 30 minutes of individual counseling once a week (Dist. Ex. 13 at p. 1; compare Dist. Ex 17 at p. 1).  Subsequent to the CSE recommendation, the student was resistant to the fact that she was placed in a 12:1+1 special class and became angry about being placed in the special class and concerned about the stigma attached to being in that class (Tr. pp. 718-19).  Thereafter she refused to participate in the 12:1+1 special class (Tr. p. 728).  Respondent testified that she felt caught "between a rock and a hard place," and requested a regular education program for her daughter (Tr. p. 729).

            A CSE subcommittee met on June 22, 2005 to revise the student's IEP in response to respondent's request for general education placement for her daughter (Dist. Ex. 11 at p. 1; Tr. p. 51; see Tr. pp. 149-51).  The student's June 22, 2005 IEP notes that she was "extremely aware of and interested in the perceived 'level' of class [that] she's in" (Dist. Ex. 11 at p. 3).  The CSE subcommittee recommended that, for the 2005-06 school year, the student participate in an eighth grade regular education program with 40 minutes of resource room daily and 30 minutes of individual counseling weekly (Dist. Ex. 11 at p. 1).  The student's BIP was revised again in September 2005 (Dist. Ex. 25 at p. 8).  The student's program was scheduled to be reviewed by November 23, 2005 (Dist. Ex. 11 at p. 1).

            A CSE subcommittee meeting was held on October 20, 2005 at which respondent requested a full CSE meeting to consider placing the student in a residential treatment facility (Dist. Ex. 7 at p. 5; Tr. p. 69).  On November 4, 2005, respondent unilaterally enrolled her daughter in the Second Nature Wilderness Program (Second Nature) in Utah (Tr. pp. 768, 874).

            A CSE meeting was held on November 21, 2005 (Dist. Ex. 3 at p. 1).  The CSE recommended that the student attend a 6:1+1 special class day treatment program and continue to receive 30 minutes of individual counseling once a week (id.).  Petitioner's middle school special education administrator testified that in recognition of the "extraordinary step" that the student's mother made in placing the student in Second Nature, the CSE attempted to offer a day treatment program as a transition back to its public school (Tr. pp. 170-72). 

            Respondent obtained a private psychological assessment on December 4, 2005 (Dist. Ex. 23).  Cognitive testing at that time revealed that the student was functioning in the low average range of cognitive abilities (id.).  The evaluator noted that the student displayed difficulty with achievement in reading, mathematics, writing and language skills (Dist. Ex. 23 at p. 13).  He further noted that the student scored much lower than expected based upon her general cognitive ability and indicated that the lower scores appeared to be related the student's emotional problems, rather than her underlying learning deficits (id.).  The evaluator noted that the student's responses on the Minnesota Multiphasic Personality Inventory- Adolescent (MMPI-A), a personality measure for adolescents, suggested a response style indicative of an adolescent who attempts to "exaggerate her degree of psychopathology" and could be interpreted as a "cry for help", suggesting that she was overwhelmed with her life, and indicating poor self-concept and limited resources for coping with stress (Dist. Ex. 23 at p. 14).  The evaluator noted that the student's responses indicated significant maladjustment (id.).  He also identified "considerable family conflict and discord" as well as poor communication and a feeling expressed by the student that she was not loved by her parents (Dist. Ex. 23 at p. 15).

The private evaluator described respondent's daughter as a student who presented with a variety of emotional, behavioral and substance abuse concerns (Dist. Ex. 20 at p. 20).  The student was also described as apathetic, flat and disconnected (id.).  The evaluator indicated that when things in the student's life become too stressful or when she faces a challenging situation, the student is likely to become frustrated easily, angry, defiant and demonstrate impulsivity (id.).  The evaluator opined that the student's problems would become worse over time if she did not receive additional support (Dist. Ex. 23 at p. 22).  He recommended that the student receive services in a structured, clinical, and residential therapeutic placement (id.).

            Respondent did not accept the CSE's November 21, 2005 recommended educational program.  By letter dated January 13, 2006, respondent informed petitioner that she intended to unilaterally place her daughter in a therapeutic residential facility after her daughter's discharge from Second Nature, which was at that time anticipated to be mid-February 2006 (Dist. Ex. 1 at p. 1).  In addition, she requested an impartial hearing for the purpose of, among other things, obtaining tuition reimbursement for the student's residential placement for the remainder of the 2005-06 school year and reimbursement for the cost of an IEE (Dist. Ex. 1 at p. 9).  Respondent unilaterally enrolled her daughter in Logan River on February 9, 2006 (Tr. pp. 287-88, 847).

            The impartial hearing commenced on March 22, 2006 and concluded on April 10, 2006, after four days of testimony.  On June 26, 2006, the impartial hearing officer rendered his decision finding that petitioner failed to offer a free appropriate public education (FAPE) to respondent's daughter for the 2005-06 school year.  More specifically, the impartial hearing officer found that petitioner: 1) failed to conduct an updated functional behavioral assessment (FBA) and behavioral intervention plan (BIP) (IHO Decision, p. 28); 2) failed to have sufficient evaluative information at the time of its review (IHO Decision, p. 29); 3) failed to provide respondent with notice that no additional data was needed by the CSE as part of its reevaluation (IHO Decision, p. 30); 4) the student's November 21, 2005 IEP did not contain math goals despite her having weaknesses in math and the CSE should have conducted additional testing in Math to rule out a need for specialized instruction (id.); 5) the student's November 21, 2005 IEP did not incorporate the Board of Cooperative Educational Services (BOCES) auditory processing assessment from April and May 2005 (id.); 6) petitioner failed to select a particular day treatment program at the time of its review as it would have been a premature placement because the placement in the non-district facility would have been prior to the facility accepting the student (IHO Decision, p. 31); 7) it was not clear from the record that a day treatment program would result in an appropriate education for the student (id.);  and 8) petitioner failed to create an IEP that met the student's needs for the 2005-06 school year (IHO Decision, p. 32).  Upon balancing the least restrictive environment (LRE) requirement with whether the private school met the student's needs, the impartial hearing officer determined that Logan River met the student's needs (IHO Decision, p. 34).  The impartial hearing officer further found that equitable considerations favored respondent's reimbursement claim (IHO Decision, p. 35).  He found that respondent's actions in deciding to request that her daughter attend regular education classes after seventh grade, and then switch to requesting a residential placement a few months later was a reaction to the student's failure to perform well in seventh grade and then a reaction to a suggestion by a school employee (id.).  The impartial hearing officer found that respondent cooperated and went to every meeting that was required of her and allowed any evaluation that was necessary (id.).  The impartial hearing officer also found that respondent's private psychological assessment report was more thorough than petitioner's school psychological report (IHO Decision, p. 36; compare Dist. Exs. 23; 32).  Accordingly, the impartial hearing officer ordered reimbursement for the cost of the residential tuition at Logan River for the 2005-06 school year and reimbursement for the cost of the IEE (IHO Decision, p. 37).

            Petitioner contends on appeal that the impartial hearing officer erred in finding that respondent prevailed on the first Burlington/Carter criterion for an award of reimbursement for private educational expenditures.  Petitioner further contends that Logan River did not meet the student's needs in the LRE and that equitable considerations do not favor respondent's reimbursement claim.

            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][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[9][D]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]; 34 C.F.R. 300.347).2  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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id.).

            The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).  The student's recommended program must also be provided in the LRE (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 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).

            Petitioner contends that the impartial hearing officer erred in finding that its evaluation of the student was not sufficiently thorough.  The impartial hearing officer found that petitioner failed to have sufficient evaluative information including a thorough assessment of the student's emotional state, an updated FBA, and additional testing in Math (IHO Decision, p. 29).  In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (Application of the Bd. of Educ., Appeal No. 05-118; Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044).  In evaluating each child with a disability, the evaluation must be sufficiently comprehensive to identify all of the child's special education and related service needs (34 C.F.R. 300.532[h]; 8 NYCRR 200.4[b][6][ix]).  The November 21, 2005 IEP indicates that, when the CSE convened to recommend referral to a day treatment program, it reviewed two formal evaluations, a November 1, 2004 psychological evaluation report (see Dist. Ex. 32) and a November 1, 2004 achievement test report (see Dist. Ex. 33; see also Dist. Ex. 3 at p. 5).  In addition, the CSE reviewed a September 7, 2005 BIP, a November 8, 2005 attendance report, November 8, 2005 discipline reports, a November 8, 2005 draft IEP, and November 8, 2005 teacher reports (Dist. Ex. 3 at p. 5).  The November 2004 psychological report indicates that updated testing was conducted (Dist. Ex. 32 at p. 1).  The school psychologist who conducted the evaluation concluded that the student's needs continued to stem from emotional and behavioral difficulties (Dist. Ex. 32 at p. 2).

            With respect to assessing the student's behavior, as noted above, at the November 21, 2005 CSE meeting, the CSE reviewed the updated September 7, 2005 BIP (Dist. Ex. 25 at p. 8).  In the case of a child whose behavior impedes his or her learning or that of others, the CSE shall consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior (20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. 300.346[a][2][i]; see 8 NYCRR 200.4[d][3][i]).  The official commentary to the federal regulations specifies that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38).  Where behavior impedes a child's learning, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060).  The student's November 21, 2005 IEP lists supports such as refocusing and redirecting the student for off-task behaviors, utilizing a BIP (see Dist. Ex. 25 at p. 8) for consistent intervention of targeted behaviors, and utilizing parent/team meetings (Dist. Ex. 3 at pp. 1-2).  The September 2005 BIP indicates that the student displays a range of disruptive behaviors in her classes and in some unsupervised settings (Dist. Ex. 25 at p. 8; Tr. p. 376).

            The impartial hearing officer further found that the CSE should have conducted additional testing in math to rule out a need for specialized instruction or there should have been math goals on the student's November 21, 2005 IEP (IHO Decision, p. 30).  The student's performance on math subtests of the Woodcock-Johnson Tests of Achievement -- III in October 2004 yielded standard (and percentile) scores of 66 in calculation and 86 (18) in applied problems (Dist. Ex. 33 at p. 1; see Dist. Ex. 3 at p. 3).  However, on the same test in March 2003, the student's standard score in calculation was 104 (61) and her score in applied problems was 108 (70) (Dist. Ex. 21 at p. 2).  This drop in math scores is consistent with the student's current performance levels in other areas, which describe the student as academically capable but currently unable to perform consistently in the classroom because of her deteriorated emotional state (Dist. Ex. 3 at pp. 3, 4).  The evaluator reported that the student achieved lower scores than expected based upon previous results and that was more reflective of the inconsistent manner in which she functions within classes and her fragile emotional status (Dist. Ex. 32 at p. 2).  Based on the foregoing, I find that the CSE had sufficient evaluative information to identify the student's needs.

            Petitioner also contends that the impartial hearing officer incorrectly found that the student's November 21, 2005 IEP was required to specifically mention the BOCES auditory processing assessment conducted April and May 2005 (see Dist. Ex. 28).  I agree with petitioner that the IEP was not required to specifically mention the BOCES auditory processing assessment.  While the November 21, 2005 IEP does not specifically list the BOCES auditory processing assessment or identify difficulties with short-term memory, I note that this deficit was described as "mild" and only a possible cause of the student's academic difficulties when related to her emotional status (Dist. Ex. 28 at p. 7).  The most significant outcome of this identified concern, namely the student's feelings of frustration when she is overwhelmed, are thoroughly described in the student's November 21, 2005 IEP, and recommendations from the report related to the student's need for frequent checks for understanding and for positive reinforcement are included in the IEP (compare Dist. Exs. 3 at p. 3, 28 at p. 7).  I note that petitioner's special education administrator testified that the student's IEP was addressing concerns raised in the BOCES auditory processing assessment before that evaluation occurred (Tr. pp. 142-43).

            Petitioner further contends that the impartial hearing officer erred in finding that it failed to select a particular day treatment program at the time of the November 21, 2005 CSE review.  The impartial hearing officer found that petitioner failed to select a particular day treatment program at the time of its review because a non-district facility had not yet accepted the student (IHO Decision, p. 31).  I agree with the impartial hearing officer.  A CSE cannot recommend a placement in a non-district facility prior to a decision by the facility to accept the student, and that any such recommendation by a CSE is by nature premature (Application of the Bd. of Educ., Appeal No. 05-116; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 04-044; Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078; Application of a Child with a Disability, Appeal No. 00-020; Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 96-73; Application of a Child with a Disability, Appeal No. 93-38; Application of a Child with a Disability, Appeal No. 93-15).  Here, a CSE subcommittee was held on October 20, 2005 (Dist. Ex. 7 at p. 1) at which respondent requested a full CSE meeting to consider placing her daughter in a residential treatment facility (Dist. Ex. 7 at p. 5; Tr. p. 69).  Petitioner's CSE convened on November 21, 2005 (Dist. Ex. 3 at p. 1).  The CSE recommended that the student be placed in a 6:1+1 special class day treatment program (id.).  The student's November 21, 2005 IEP lists options that it considered, but rejected, such as placement in a special class at its middle school, a Board of Cooperative Educational Services (BOCES) special school program placement, and respondent's request for placement in a residential facility (Dist. Ex. 3 at pp. 2-3).  No referrals to day treatment were sent until after the student's November 21, 2005 IEP was formulated (Tr. p. 644) and there is no indication in the record that petitioner's CSE subsequently met to discuss the student's placement.  Respondent, therefore, has prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.

            Having found that respondent prevailed with respect to the first Burlington criterion for an award of tuition reimbursement, I need not address petitioner's remaining contentions regarding the appropriateness of its recommended program. I must now consider whether respondent has met her burden of demonstrating that the placement selected for the student for the 2005-06 school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  A parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

            Petitioner contends that the impartial hearing officer incorrectly found that respondent demonstrated that Logan River offered an educational program which met the student's special education needs.  As noted above, the student's emotions cause her to be easily stressed and overwhelmed by academics (Dist. Ex. 3 at p. 3).  She has difficulty following directions and completing work, and engages in negative attention getting behaviors which are disruptive to her own learning and to the class (id.).  The student's needs stem from emotional and behavioral difficulties and she needs support regarding her social/emotional functioning (Dist. Ex. 32 at p. 2).

            The student was unilaterally enrolled by respondent at Logan River on February 9, 2006 (Tr. p. 288).  Logan River is a licensed residential treatment facility in Utah for 90 adolescents ranging in age from 13 to 17 years of age (Tr. pp. 276-77).  Each unit where the students live contains between eight to 14 students (id.).  The school has two full-time special education teachers on staff (Tr. pp. 280, 298).

            All components of the Logan River program including, educational, clinical and residential components, follow the "Boundary Model," which is the foundation of the Logan River program, and which holds all students to strict accountability with both positive and negative consequences for all actions (Tr. pp. 281-84).  All staff meet weekly to note each student's progress on his or her goals and to adjust the program as needed (Tr. pp. 293-94).  All staff strive to have a consistent approach with the students that they are assigned and breaking the rules has immediate and predictable consequences for the students (Tr. pp. 294-96).  Students are never unsupervised (Tr. p. 300).

            Logan River has developed a treatment plan for the student that focuses on her main problems for which the treatment team develops goals and objectives to address these concerns (Tr. p. 289).  Her main concerns include: defiance; her unwillingness to follow rules in school, the community and home; attention deficit problems; school concerns; family concerns and learning how to deal with conflict; mood and depression concerns; anger management; adoption concerns; and substance abuse concerns (Tr. pp. 291-92).  The student's participates in six hours per week of therapy to address these problems at Logan River consisting of individual therapy one time per week, family therapy on the phone one time per week, group therapy in her living unit one time per week, and theme groups once each week for anger management, adoption, and substance abuse concerns, totaling six hours of formal therapy per week (Tr. pp. 292, 328).

            Educationally, respondent's daughter attends school from 9:00 a.m. to 3:30 p.m.  She has a tutorial one hour per day where she meets with teachers for extra help and/or support (Tr. p. 297).  She also has access to an assisted study hall every day from 4:00 p.m. to 5:00 p.m. where students can receive help (Tr. p. 298).  Two of the student's courses, study skills class and Pre-algebra, are taught by special education teachers (Tr. pp. 298, 324).  Her other classes include Art, Earth Science, English and Geography (Tr. p. 322).  Students are given mini-report cards every two weeks so they can view their progress and not fall behind (id.).  At the time of the hearing, two report cards had been issued, her grades went from a C to a C+ in Art, an F to a B+ in Earth Science, an F to a B- in Pre-algebra, and a B- to a B+ in Study Skills, with English remained at an F and Geography remaining at a D+ (Tr. pp. 322-23).

            Petitioner also contends that the impartial hearing officer incorrectly found that respondent satisfied the LRE requirement simply on the basis that parents are not held as strictly as school districts without the impartial hearing officer actually making an analysis.

The determination of LRE includes consideration of placement of a student as close as possible to the student's home (8 NYCRR 200.1[cc]).  Parents are not held as strictly to the standard of placement in the LRE as school districts are; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]).  This must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).  The test for a parental placement is that it is appropriate, not that it is perfect (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).

            While the record demonstrates that the services at Logan River are appropriate to meet the student's special education needs, the record does not demonstrate that she requires a residential program to enable her to receive educational benefit.  The record reveals that the CSE chairperson, who is a school psychologist, and petitioner's middle school special education administrator testified that appropriate programming could be provided to the student in a less restrictive setting than a residential placement (Tr. pp. 170-77, 343, 362-64, 373, 484-85, 567-69).  The CSE chairperson also noted that the school district recommendations pertaining to the student were based on many evaluations, over several years, from various professional within the district, including teachers who had directly worked with the student (Tr. p. 493).  Moreover, petitioner's CSE chairperson testified that the geographic location of the residential placement was problematic in that it limited the student's ability to integrate with her nondisabled peers at her home school and have some connection to general education programming and exposure to extracurricular activities (Tr. pp. 365, 485).  In addition to limiting her socialization opportunities with her nondisabled peers in her home school district, the CSE chairperson also noted that placement in an out-of-state program would have a negative impact on the student's ability to associate with her family and address family therapy needs (Tr. pp. 45, 491-92).  Respondent also did not demonstrate why placement in a residential setting in Utah was necessary to meet the student's needs as opposed to placement in a residential setting in closer proximity to her home (Tr. pp. 492-93).  It is well-settled that a residential placement is not appropriate unless it is required for the 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 the Bd. of Educ., Appeal No. 06-017; Application of a of a Child with a Disability, Appeal No. 05-075; 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).  Given that the private school placement selected by respondent is not in the LRE, respondent is not entitled to tuition reimbursement.

            Although I have concluded that the parent's placement is not appropriate, I have also considered the equities in this case.  The final criterion for an award of tuition reimbursement is that respondent's claim be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. 1412[a][10][C][iii]; see Mrs. C., 226 F.3d at n. 9).

            In the instant case, respondent's unilateral placement of the student in an out-of-state facility, prior to the convening of a CSE meeting, requested by respondent, to determine an appropriate placement, impeded petitioner's ability to make an appropriate program recommendation and obstructed the petitioner's ability to finalize the student's IEP.  Testimony indicated that the day treatment program referral process could not be completed without the student being available as part of the intake process (Tr. pp. 564-65).  By taking the student out of state, respondent failed to make her daughter available for an intake interview at petitioner's recommended placement. A parent has an obligation to reasonably cooperate with the district in finding an appropriate placement for his or her child and may not thwart the district's attempt to locate such a placement (Application of a Child with a Disability, Appeal No. 03-025).  Respondent deprived petitioner of the ability to make an appropriate program recommendation and finalize the IEP placement (20 U.S.C. 1412 [a][10][C][iii]; see Application of a Child with a Disability, 05-075).  I find that in this instance equities do not support an award of tuition reimbursement (see Application of a Child with a Disability, Appeal No. 03-025).

            Petitioner also requests that I reverse the impartial hearing officer's decision with respect to reimbursing respondent for the cost of the private psychological assessment as an IEE.  Federal and State regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district.  If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.  If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. 300.502; 8 NYCRR 200.5[g]; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027).

            The impartial hearing officer found that respondent's private psychological assessment went "well beyond" petitioner's school psychological report and that petitioner's school psychological report contained "very little in the way of substantive reporting on the BASC [(Behavior Assessment System for Children)] scale" (IHO Decision, p. 36).  Petitioner's school psychological report sufficiently identified the student's emotional and behavioral difficulties and that she continues to need support regarding her behavioral, social and emotional needs (Dist. Ex. 32 at p. 2).  Hence, I conclude that petitioner's school psychological report is appropriate and respondent is not entitled to reimbursement for the cost of the IEE (Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 03-053; Application of a Child with a Disability, Appeal No. 02-092).

            I have considered the parties' other contentions and I find them to be without merit.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED, that the impartial hearing officer's decision is annulled to the extent that it ordered petitioner to reimburse respondent for her daughters' tuition costs at Logan River for the 2005-06 school year and to the extent that it ordered petitioner to reimburse respondent for the cost of an independent educational evaluation (IEE).

Dated:

Albany, New York

 

__________________________

 

September 18, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

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