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

No. 06-085 

  

  

 

Application of a CHILD WITH A DISABILITY, by her 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

 

 

Appearances:

O'Connor & Golder, LLP, attorney for petitioners, Arthur J. Golder, III, Esq., of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Thaddeus Hackworth, Esq., of counsel

 

DECISION

 

            Petitioners appeal from the decision of an impartial hearing officer, which partially granted their request to be reimbursed for the costs of their daughter's tuition at the McCarton School (McCarton) and for the costs of at-home Applied Behavioral Analysis (ABA) services for the 2004-05 and 2005-06 school years.  The appeal must be sustained. 

 

At the commencement of the impartial hearing on April 18, 2006, the child was four years old and attending McCarton for the 2005-06 school year (Tr. p. 1; see Parent Exs. 53-59).  McCarton is a small private school for children diagnosed with an autistic spectrum disorder (Parent Ex. 2.7 at p. 543).  The Commissioner of Education has not approved McCarton as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The child's eligibility for special education as a preschool child with a disability is not in dispute in this appeal (see 8 NYCRR 200.1[mm]).

 

In July 2004, a developmental physician and two neurologists at Boston Children's Hospital first diagnosed petitioners' daughter with an autistic spectrum disorder (Tr. p. 23).

 

Petitioners enrolled their daughter at McCarton in late October 2004 (Tr. pp. 23-25, 37-38; Parent Ex. 34 at pp. 422-30).  On December 2, 2004, the child underwent a psychoeducational evaluation at McCarton (Parent Ex. 6 at p. 56).  The psychoeducational evaluation included a Stanford Binet Intelligence Scale, Fifth Edition (Stanford Binet), which measured the child's cognitive functioning across five areas:  fluid reasoning, knowledge, quantitative reasoning, visual-spatial processing, and working memory (Tr. p. 31; Parent Ex. 6 at pp. 56-60).  The Stanford Binet yielded the following results:  a full scale IQ score of 74 (low functioning range, 4th percentile); a verbal IQ score of 63 (low range, 1st percentile); and a non-verbal IQ score of 87 (low average range, 19th percentile) (Parent Ex. 6 at pp. 57, 60).  The psychoeducational report noted the child's diagnoses as autistic disorder, verbal apraxia, and fine and gross motor deficits (Parent Ex. 6 at p. 59).

 

Based upon the evaluations, the staff at McCarton recommended that the child receive a 12-month program of intervention spread out over a seven day period; continued ABA therapy in a 1:1 discrete trial setting for 40 hours per week (20 hours in school, 20 hours at home); three hours per week of parent training by an ABA therapist or supervisor; community activities; speech language therapy for seven hours per week in a 1:1 setting, with oral-motor therapy, prompts for restructuring oral motor phonetic targets (PROMPT) therapy, and a focus on expressive and receptive skills; occupational therapy (OT) for five hours per week in a 1:1 setting; physical therapy (PT) for three hours per week in a 1:1 setting; and monthly interdisciplinary meetings between the child's therapists and petitioners to review progress and modify the child's program as needed (Tr. pp. 174-75; Parent Ex. 6 at pp. 58-59).

 

The record contains updated speech language therapy and OT progress reports (Parent Ex. 6 at pp. 772-77).  The speech language progress report, dated January 28, 2005, indicated that the child received speech language therapy at McCarton five days per week for 60 minutes per session in a 1:1 setting (Parent Ex. 6 at pp. 56, 72).  In addition, the speech language progress report noted that the child received OT five times per week for 45 minute sessions and behavioral therapy for 20 hours per week (Parent Ex. 6 at pp. 56, 72, 74).  Both the speech language and OT updated progress notes recommended continued speech language therapy and OT at the present levels of service (Parent Ex. 6 at pp. 73, 77).  The record also documents that the child received PT (see Parent Ex. 6 at p. 78; Parent Ex. 59).  Petitioners began providing at-home ABA services through privately hired providers in early 2005 because they had observed regression during the December 2004 school break (Tr. pp. 40-44, 118-29; see Parent Ex. 51).  McCarton staff coordinated the child's at-home services, provided parent training and training for the at-home ABA providers hired by petitioners, and scheduled interdisciplinary meetings to coordinate, manage, monitor, and implement the in-school and at-home services (Tr. pp. 38-45; 118-29).

 

Petitioners privately paid for McCarton's tuition, the at-home ABA services, and at-home related services for the 2004-05 school year (Parent Ex. 34 at pp. 422-29, 431-46; Parent Ex. 49 [detail sheet A]).  The record contains invoices, cancelled checks, and bank account statements documenting proof of payment by petitioners for McCarton's 2004-05 tuition and the at-home ABA provider between April 30, 2005 and August 14, 2005 (Parent Exs. 49 [detail sheet A], 51, 52).

 

            In January 2005, petitioners requested services from respondent's Committee on Preschool Special Education (CPSE) for their daughter (Tr. pp. 22-25).  On February 28, 2005, petitioners signed a consent form to allow respondent to evaluate their daughter (Tr. pp. 27-28; Parent Ex. 6 at p. 41).  Respondent gathered information through evaluations either conducted by, or accepted by, the Manhattan Preschool Assessment Center, including the following:  a speech language evaluation; a psychological assessment; an occupational therapy evaluation; a physical therapy evaluation; a social history; and a health and physical development assessment (Tr. pp. 30-31; Parent Ex. 6 at pp. 40-47, 49-63, 71-80, 85-86).  Respondent's evaluators accepted the speech language evaluation and the psychoeducational evaluation, dated December 2, 2004, previously performed by the staff at McCarton (Tr. pp. 35-37; Parent Ex. 6 at pp. 52-60, 71-80).

 

Respondent's CPSE convened on May 18, 2005 to review the evaluation reports and to prepare an individualized education program (IEP) for the child's 2005-06 school year (Tr. p. 46; Parent Ex. 7 at p. 87).  The CPSE classified the child as a preschool student with a disability and recommended the following special education services:  a 12-month program; a center-based program for five hours per day, five days per week; ten hours per week of at-home special education itinerant teacher services (SEIT); seven sessions of speech language therapy per week, 60 minutes per session, in a 1:1 setting; five sessions of OT per week, 60 minutes per session, in a 1:1 setting; and three sessions of PT per week, 60 minutes per session, in a 1:1 setting (Parent Ex. 7 at pp. 87, 99).  The CPSE incorporated annual goals and short-term objectives created by the staff at McCarton for the child's pre-academic skills, social and leisure skills, and behavior skills (compare Parent Ex. 7 at pp. 92-96, with, Parent Ex. 8 at pp. 102-22).  Petitioners noted directly on the IEP that although they agreed with the recommended services, they requested more services to meet the child's needs and reserved their due process rights (Parent Ex. 7 at p. 88).  Petitioners later summarized in a letter to respondent the reasons for their disagreement with the IEP, including a number of "missing items" from the IEP, and provided respondent with notice that the IEP was not appropriate to meet their daughter's needs (Parent Ex. 8 at pp. 100-01).

 

Following the CPSE meeting, respondent provided petitioners with possible placements, which petitioners visited on June 15, June 21, July 5, and July 12, and September 19, 2005 (Parent Exs. 9-13).  Petitioners spoke to staff and took notes at each placement, then summarized how and why each recommended placement was not appropriate to meet their daughter's needs and sent the summaries to respondent (Parent Ex. 9 at pp. 123-36; Parent Ex. 10 at pp. 142-55; Parent Ex. 11 at pp. 164-79; Parent Ex. 12 at pp. 185-99; Parent Ex. 13 at pp. 205-20).

 

Petitioners similarly documented their efforts to secure at-home SEIT/ABA instructors and related service providers from respondent's list of approved providers following the May 18, 2005 IEP meeting (Tr. pp. 52-62, 134-36; Parent Ex. 36; Parent Ex. 37 at pp. 461-64, 466).  The record documents that two agencies placed the child on a waiting list for SEIT/ABA services in June 2005, and that petitioners' contact with other agencies did not result in acquisition of an at-home SEIT/ABA provider (Parent Ex. 36; Parent Ex. 37 at pp. 461-64).  Petitioners did eventually locate and retain a speech language therapist from respondent's list of approved providers, but could not locate or retain a physical therapist from the list until September 5, 2005 (Parent Ex. 37 at pp. 464-66).

 

By letter dated September 16, 2005, petitioners requested a resolution meeting, as provided for by the Individuals with Disabilities Education Act (IDEA),1 prior to requesting an impartial hearing (Parent Ex. 2 at p. 5).  Petitioners advised respondent that the letter also constituted the required 10 day notice that their daughter would remain at McCarton since no placement had been obtained following the May 18, 2005 IEP meeting, and further, if the resolution session was unsuccessful, petitioners would seek tuition reimbursement as described in the attached request for an impartial hearing (Parent Ex. 2 at pp. 5-6).

 

The request for an impartial hearing alleged that respondent failed to provide petitioners' daughter with a free appropriate public education (FAPE), particularly by failing to provide timely services, failing to provide payment for services obtained, and failing to provide an appropriate placement (see Parent Exs. 1A at p. 2; 1; Parent Ex. 3 at p. 14).

 

Respondent's CPSE reconvened on September 29, 2005 (Tr. p. 77; Parent Ex. 14 at p. 226).  The CPSE recommended the following services:  a 12-month program; a special class, five days per week, five hours per day, in an 8:1:2 setting; 15 hours per week of at-home SEIT services; related services of speech language therapy, OT, and PT; and a recommended placement at P.S. 226 (Parent Ex. 14 at p. 226).  The IEP indicated reductions in both the duration and frequency of the child's related services (Parent Ex. 16 at p. 238; compare Parent Ex. 7 at p. 99, with, Parent Ex. 16 at p. 238).  The September 29, 2005 IEP provided for two sessions of OT per week, 30 minutes per session, in a 1:1 setting; three sessions of PT per week, 60 minutes per session, in a 1:1 setting; two sessions of speech language therapy per week, 30 minutes per session, in a 1:1 setting; and two sessions of speech language therapy per week, 60 minutes per session, in a 1:1 setting (Parent Ex. 16 at p. 238).

 

The record documents that petitioners had already visited the recommended placement at P.S. 226 on September 19, 2005, prior to the September 29, 2005 CPSE meeting, and had provided respondent with a summary of reasons as to how and why P.S. 226 was not an appropriate placement to meet their daughter's needs prior to the CPSE meeting (Parent Ex. 13 at pp. 205-08).  Petitioners, as with other potential placements, used the APQI assessment, spoke to staff, and took notes regarding their observation of the program offered at P.S. 226 (Parent Ex. 13 at pp. 209-25).  At the time of the visit, the teacher at P.S. 226 advised petitioners that the two existing preschool classrooms were full, but the school hoped to be adding a third preschool classroom sometime in the future, and thus, there was no space available for petitioners' daughter (Parent Ex. 13 at p. 208).

 

On respondent's notice of recommendation, dated September 29, 2005, petitioners noted that they disagreed with the frequency and duration of related services on the IEP, consented to the commencement of related services set forth in the IEP, and reserved all of their due process rights regarding the recommended placement (Parent Ex. 16 at p. 240).

 

By letter dated November 15, 2005, petitioners advised respondent that they rejected the September 29, 2005 IEP and the recommended placement at P.S. 226, and sought reimbursement for educational expenses (Parent Ex. 4 at p. 19).

 

The impartial hearing occurred over three days of testimony during April and May 2006 (Tr. pp. 1, 229, 397).  Petitioners presented all of the testimonial and documentary evidence at the impartial hearing (Tr. pp. 1-488; Parent Exs. 1-60, 2.1-2.12).  On the second day of testimony, the parties stipulated to include petitioners' request to be reimbursed for the prorated costs of tuition at McCarton for the 2004-05 school year, as well as petitioners' request to be reimbursed for the costs of privately obtained SEIT/ABA providers for the 2004-05 school year (Tr. pp. 246-49).  The stipulation limited petitioners' reimbursement requests to the period between May 11, 2005 and June 30, 2005 for the 2004-05 school year (Tr. pp. 246-47).

 

At the impartial hearing, respondent conceded that they failed to provide a free appropriate public education (FAPE) to the child (Tr. pp. 65, 75).  Respondent did not offer any testimonial or documentary evidence at the impartial hearing.

 

By decision dated June 22, 2006, the impartial hearing officer determined the following:  respondent conceded that they failed to provide the child with a FAPE; respondent failed to rebut petitioners' evidence that the child's placement at McCarton was appropriate or that the child's programs and services were appropriate to meet the child's needs; and respondent did not raise the issue of the costs of services obtained by petitioners as an equitable consideration (IHO Decision, p. 5).  Based on these findings, the impartial hearing officer directed respondent to reimburse petitioners for the full cost of tuition at McCarton for the 2005-06 school year and to partially reimburse petitioners for the services by the SEIT/ABA providers in 2005-06 (IHO Decision, p. 5).

 

In her decision, the impartial hearing officer noted that she limited the amount of reimbursement for the at-home SEIT/ABA providers for the 2005-06 school year because she found "no basis to give an increase" in their rate from $25 per hour to $55 per hour and because she found no "legal basis" to reimburse petitioners for training the at-home SEIT/ABA providers (id. at p. 5).  The impartial hearing officer also noted in her decision that petitioners' privately obtained providers were not ABA certified (id.).

 

Significantly, the impartial hearing officer's decision failed to address the following issues:  petitioners' request to be reimbursed for the costs of their daughter's prorated tuition at McCarton from May 11, 2005 through June 30, 2005; petitioners' request to be reimbursed for the costs of their child's SEIT/ABA provider from May 11, 2005 through June 30, 2005; and petitioners' request for increased frequency and duration of the child's related services as set forth in the September 29, 2005 IEP (see IHO Decision, pp. 2-5).

 

On appeal, petitioners contend that the impartial hearing officer erred when she failed to address or include any claims for reimbursement for the 2004-05 school year as set forth in the stipulation between the parties, including the prorated tuition at McCarton and the expenses for the at-home SEIT/ABA providers; that she failed to address or include the reimbursement requested for the SEIT/ABA provider who provided at-home services during the summer of the 2005-06 school year (July 1, 2005 through August 14, 2005); that she erred in denying reimbursement to the at-home SEIT/ABA providers at the increased rate of $55 per hour from January 2006 through June 30, 2006; and that she failed to address petitioners' claim for increased frequency and duration of the child's speech therapy, occupational therapy and physical therapy.

 

In its answer, respondent agreed to reimburse petitioners for the cost of tuition at McCarton for the period between May 11, 2005 and June 30, 2005, but limited the amount to $13,047.62, instead of petitioners' request for the prorated tuition in the amount of $13,333.33.  Respondent noted that $13,047.62 represented the difference between the amount of petitioners' total tuition reimbursement request of $97,047.62 and the impartial hearing officer's tuition reimbursement award of $84,000 (Ans. 36-37).  In addition, respondent agreed to reimburse petitioners, upon proof of payment, for the cost of the at-home SEIT/ABA providers for the 2005-06 school year, but limited the amount to 20 hours per week, at a rate of $25 per hour, for services provided to the child after April 30, 2006, which represented the date of the last invoice submitted in evidence (Ans. 68).  Finally, respondent contends that petitioners' claim for increased related services is moot since the 2005-06 school year has ended and a new IEP was created for the child on May 11, 2006.  Based upon the foregoing agreements to reimburse petitioners, respondent argues that petitioners' appeal fails to state a claim for relief and should be dismissed.

 

Preliminarily, I will address respondent's agreements to reimburse petitioners as set forth in the answer to clarify the issues on appeal.  Because respondent agreed to reimburse petitioners for the costs of their daughter's prorated tuition at McCarton from May 11, 2005 through June 30, 2005, in the amount of $13,047.62, I conclude that petitioners' allegation set forth in the appeal regarding the impartial hearing officer's failure to address this issue has now been resolved.  Thus, based upon a review of the pleadings, petitioners' remaining issue on appeal for the 2004-05 school year is their request to be reimbursed for the privately obtained SEIT/ABA services from May 11, 2005 through June 30, 2005.

 

For the 2005-06 school year, respondent agreed to reimburse petitioners, upon proof of payment, for the cost of the at-home SEIT/ABA providers for the 2005-06 school year, but limited the amount to 20 hours per week at $25 per hour for the services provided to the child after April 30, 2006, the date of the last invoice presented in evidence (Ans. 68).  Thus, petitioners' request for reimbursement for all of the SEIT/ABA services during the 2005-06 school year has been partially resolved.  Based upon the pleadings, the remaining issues for the 2005-06 school year involve whether the impartial hearing officer erred in limiting petitioners' request to be reimbursed at the rate of $55 per hour for the at-home SEIT/ABA providers beginning in January 2006; whether the impartial hearing officer erred in failing to address reimbursement for SEIT/ABA services provided during the summer of 2005-06; and whether she failed to address petitioners' claim regarding the frequency and duration of the child's related services in the 2005-06 school year.

 

            A central purpose of the IDEA (20 U.S.C. 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [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. 300.13; see 20 U.S.C. 1414[d]; 34 C.F.R. 300.347).2  The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. 300.550[b]; 8 NYCRR 200.6[A][1]).

 

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 parent 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. at pp. 370-71; see 20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. 300.403).  The Second Circuit has determined that "a school district fulfills it substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP afford the student with a n 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 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 v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; Walczak, 142 F.3d at 132).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

 

As noted above, respondent conceded the first criterion of the Burlington/Carter analysis when it conceded at the impartial hearing that it failed to offer the child a FAPE (Tr. pp. 65, 75).  Respondent does not appeal this determination.  An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. 300.510[a]; 8 NYCRR 200.5[k]).  Consequently, this part of the decision is final and binding (Application of a Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).  Having determined the first criterion for an award of tuition reimbursement, I now move on to the second criterion of the Burlington/Carter analysis.

 

            With respect to the second criterion of the Burlington/Carter analysis, I must consider whether petitioners met their burden of proving that the at-home SEIT/ABA services for which they seek reimbursement were appropriate to meet their daughter's special education needs for the 2004-05 and the 2005-06 school years, including the summer of 2005 (Burlington, 471 U.S. 359; Frank G., 459 F.3d at 363).  In order to meet that burden, the parent 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 education services obtained by the parents were appropriate to the child's needs" (Walczak, 142 F.3d at 129; see also Frank G., 459 F.3d at 363; Cerra, 427 F.3d at 192).  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.2d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]). 

 

            With respect to petitioners' request to be reimbursed for the at-home SEIT/ABA services provided to their daughter from May 11, 2005 through June 30, 2005 in the 2004-05 school year, I agree that the impartial hearing officer's decision failed to address this issue.  Therefore, as to the second Burlington/Carter criterion for the 2004-05 school year, I find that a review of the record supports the conclusion that the private SEIT/ABA services obtained for the child during this time were appropriate to meet her educational needs.  The record demonstrates that the child received at-home SEIT/ABA services from May 11, 2005 through June 30, 2005, and that those services met the child's identified needs in the areas of pre-academic skills, social and leisure skills, and behavior skills.  Respondent failed to present any evidence at the impartial hearing to rebut the appropriateness of the SEIT/ABA services, the qualifications of the SEIT/ABA provider, or the level of services provided to the child from May 11, 2005 through June 30, 2005 at the impartial hearing, despite the opportunity to do so (8 NYCRR 200.5[i][3][xi]).  As such, I find that petitioners' are entitled to reimbursement for their out-of-pocket expenses for the SEIT/ABA provider from May 11, 2005 through June 30, 2005.

 

  As to the second Burlington/Carter criterion and petitioners' claims for the 2005-06 school year, I concur with the impartial hearing officer's determination to direct respondent to reimburse petitioners for the costs of their daughter's SEIT/ABA services during the 2005-06 school year because I find that the record affords a sufficient basis to support the impartial hearing officer's conclusion that the private SEIT/ABA services obtained for the child during the 2005-06 school year were appropriate to meet the child's special education needs.  The impartial hearing officer erred, however, when she failed to address petitioners' request for reimbursement for the SEIT/ABA provider's services during the summer of 2005-06.

 

The record contains undisputed evidence that the child required a 12-month educational program, which included at-home SEIT/ABA services and related services.  The record also contains invoices, proof of payment, cancelled checks, and bank account statements to support petitioners' claim to be reimbursed for their out-of-pocket costs to obtain these services.  At the impartial hearing, respondent did not challenge the provision of the SEIT/ABA services during the summer of 2005-06.  As such, the impartial hearing officer erred when she failed to address this issue in her decision, and I find that based upon the record, petitioners met their burden to prove that the SEIT/ABA services provided to the child during the summer of 2005-06 were appropriate to meet their child's special education needs and therefore, petitioners are entitled to an award of tuition reimbursement for these out-of-pocket expenses.  As noted above, respondent presented no evidence challenging the appropriateness of the services although it had the opportunity to do so (8 NYCRR 200.5[i][3][xi]).

 

Moreover, petitioners' evidence amply supports the conclusion that they privately paid for the at-home SEIT/ABA services for the 2004-05 school year and during the summer of 2005-06 (Parent Ex. 34 at pp. 422-29, 431-46; Parent Ex. 49 [detail sheet A]).  The record contains invoices, cancelled checks, and bank account statements documenting proof of payment by petitioners for McCarton's 2004-05 tuition and the at-home SEIT/ABA provider between April 30, 2005 and August 14, 2005 (Parent Exs. 49 [detail sheet A], 51, 52).

 

Accordingly, based upon my review of the impartial hearing record, I find that petitioners have prevailed with respect to the second Burlington/Carter criterion for an award of tuition reimbursement for their daughter's SEIT/ABA services from May 11, 2005 through June 30, 2005 in the 2004-05 school year and for the summer of the 2005-06 school year.

 

The final criterion for an award of tuition reimbursement is that petitioners' 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 2334140 [2d Cir. 2006]; Frank G., 459 F.3d at 363-64).  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 [noting that "[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the Committee on Special Education (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).

 

In addition, the reasonableness of the cost of services that a parent has obtained is to be considered in determining whether equitable considerations support the parent's claim for tuition reimbursement (Carter, 510 U.S. at 7).  Where the costs of private services are excessive, an impartial hearing officer may limit a parent's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 06-004; Application of a Child with a Disability, Appeal No. 00-060; Application of a Child with a Disability, Appeal No. 97-10; Application of a Child with a Disability, Appeal No. 96-8).

 

Upon the record before me, I find unpersuasive the impartial hearing officer's decision to limit the amount of tuition reimbursement to the rate of $25 per hour during the 2005-06 school year and for failing to address petitioners' request to be reimbursed for the training of the private SEIT/ABA providers and for the costs associated with the interdisciplinary meetings held between therapists to monitor, coordinate and implement the child's in-school and at-home programs during the 2005-06 school year. 

 

The record contains proof of payment for these services as an out-of-pocket expense for petitioners and the record fully documents proof of payment at the rate of $55 per hour beginning January 9, 2006.  Petitioners credibly testified that the rate was reasonable because they had other providers hired away from them in the past, that there was a scarcity of SEIT/ABA providers in the area, and that they wanted to provide continuous services to their daughter.  Significantly, at the impartial hearing respondent offered no testimonial or documentary evidence to rebut petitioners' testimony, nor did respondent present any evidence or raise any concerns regarding the reasonableness of the increased rate as an equitable consideration to reduce or deny petitioners' request to be reimbursed for these expenses.

 

Equally important is the fact that the record contains no evidence to support a conclusion that the increased fees were unreasonable or that petitioners failed to cooperate.  The amounts paid by petitioners were out-of-pocket expenses for services wholly supported by the record.  The record contains invoices, cancelled checks, and bank account statements documenting proof of payment by petitioners for McCarton's 2005-06 tuition, and two at-home SEIT/ABA providers between August 8, 2005 and January 8, 2006 at the rate of $25 per hour, and between January 9, 2006 and April 2, 2006 at the rate of $55 per hour (Parent Exs. 31-33, 35, 38-40, 42, 46-49 [detail sheets B, C], 50-52, 2.2, 2.4; Parent Ex. 34 at pp. 418-22, 430).

 

In the absence of any other equitable factor, I find that, in general, petitioners' claim for reimbursement of the services provided by the SEIT/ABA providers during the 2004-05 and 2005-06 school years, including the summer of 2005, is supported by equitable considerations.

 

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

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that the impartial hearing officer's decision is hereby modified to the extent indicated; and

 

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's privately obtained SEIT/ABA providers' expenses from May 11, 2005 through June 30, 2005; and

 

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's privately obtained SEIT/ABA providers' expenses for the summer of 2005; and

 

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's privately obtained SEIT/ABA providers' expenses at the rate of $55 per hour, for 20 hours per week, from January 9, 2006 through the end of the 2005-06 school year, and for the costs associated with the providers' training and participation in the interdisciplinary meetings for the 2005-06 school year as supported by the evidence.

 

Dated:

Albany, New York

 

__________________________

 

October 12, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 


1 On December 3, 2004, Congress 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]). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the new provisions of IDEA 2004 apply and the citations contained in this decision are to the newly amended statute, unless otherwise specified.

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]).