The State Education Department
State Review Officer
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
Education Advocacy Service, attorney for petitioner, Anton Papakin, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Hilary S. Steuer, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for the costs of her daughter's tuition at the Academy at Ivy Ridge (Ivy Ridge) for the 2005-06 school year. Respondent cross-appeals from the decision and contends that the impartial hearing officer erred in finding that equitable considerations favored petitioner. The appeal must be dismissed. The cross-appeal must also be dismissed.
At the commencement of the impartial hearing on June 23, 2006, the student was 16 years old and attending Ivy Ridge for the 2005-06 school year (Tr. p. 8). Ivy Ridge is a private "behavior modification" facility for "at-risk" students between the ages of 13 and 18 located 20 miles from the Canada and New York border (Tr. pp. 37, 131-32; Dist. Ex. 11 at p. 2). The Commissioner of Education has not approved Ivy Ridge as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). Respondent's Committee on Special Education (CSE) classified petitioner's daughter as a student with an emotional disturbance (ED) at the student's initial referral review on March 23, 2006 (Parent Ex. B at p. 1). The record indicates that the student met the criteria for the diagnoses of dysthymic disorder; disruptive behavior disorder, not otherwise specified (NOS); and polysubstance abuse (Parent Ex. E at p. 7; Parent Ex. G at p. 3). 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]).
Petitioner first referred her daughter to respondent's CSE by letter dated August 8, 2005 (Dist. Ex. 1). In the letter, petitioner advised respondent that her daughter attended Ivy Ridge during the 2004-05 school year and she believed her daughter required special education services (id.). Petitioner requested an expedited review and for respondent to provide a Russian interpreter (id.). By letter dated August 11, 2005, respondent confirmed receipt of petitioner's referral to the CSE and explained the evaluations that may be used to determine her daughter's educational needs (Parent Ex. C). At that time, petitioner's daughter attended Ivy Ridge, and due to its location near the Canadian border, petitioner arranged for the psychological evaluation to be conducted by a psychologist at the Pathways Lifecounseling Center (Pathways) (see Tr. pp. 131-32, 156-60; Parent Ex. E at p. 1; Dist. Ex. 3 at pp. 1-3). The record reveals that the student received both individual and group counseling services from Pathways' providers during her attendance at Ivy Ridge (Tr. pp. 18-25). Respondent contacted petitioner on October 3, 21, and 25, 2005, regarding the status of the evaluation (Dist. Ex. 3 at pp. 1-2).
The Pathways psychologist conducted the psychological evaluation of the student on September 21 and October 11, 2005, and issued his report on October 12, 2005 (Parent Ex. E at p. 1; see Dist. Ex. 3 at p. 1). The psychologist administered the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), which yielded the following standard scores (SS): verbal comprehension, SS of 110 (75th percentile); perceptual reasoning, SS of 90 (25th percentile); working memory, SS of 104 (61st percentile); processing speed, SS of 100(50th percentile); and a full scale IQ score of 102 (55th percentile) (Parent Ex. E at p. 2). The psychologist assessed the student's academic skills using the Wechsler Individual Achievement Test-Second Edition (WIAT-II), which revealed the following results: reading composite, SS of 114 (82nd percentile); mathematics composite, SS of 108 (70th percentile); written language, SS of 130 (98th percentile); oral language, SS of 115 (84th percentile); and her total composite, SS of 119 (90th percentile) (Parent Ex. E at p. 4). The psychologist opined that the student's test results indicated that she had "average" to "high average" academic skills, "with the exception of her skills in the area of written expression, which fell into the high average to superior range" (Parent Ex. E at p. 4).
The psychologist also administered the Conners' Parent Rating Scale-Revised: Long Version (CPRS-R:L) and the Conners' Teacher Rating Scale-Revised: Long Version (CTRS-R:L) to assess the student's behavior (Parent Ex. E at pp. 4-6). Petitioner, the student's mother, completed the parent rating scale, and one of the student's teachers at Ivy Ridge completed the teacher rating scale (Parent Ex. E at p. 5). Petitioner's responses revealed significantly elevated scores in the areas of oppositional, hyperactive, and restless-impulsive behaviors, and significant difficulties in the areas of anxiety and emotional coping ability (Parent Ex. E at p. 5). In contrast, however, the Ivy Ridge teacher's responses revealed few behavioral concerns with no identified behavior reported in the statistically significant range (Parent Ex. E at pp. 5-6). The evaluator opined that although he asked petitioner to rate her daughter's behavior "in the last month," petitioner's responses "may be somewhat reflective of past behaviors" since the student had resided at Ivy Ridge for the past 16 months (Parent Ex. E at p. 5).
To measure the student's personality functioning, the Pathways psychologist administered the Minnesota Multiphasic Personality Inventory-Adolescent (MMPI-A) (Parent Ex. E at p. 6). The evaluator reported the student's resultant scores as typical of "rebellious" teenagers with a history of difficulties with interpersonal relationships, who tend to harbor intense anger and may engage in asocial and antisocial acts, including lying, stealing, sexual "acting out," and substance abuse (Parent Ex. E at p. 6). The evaluator opined that the student's profile "suggested" that she experienced a significant amount of psychological distress and struggled with low self-esteem and poor coping skills (Parent Ex. E at p. 6). The evaluator reported the student's diagnoses as dysthymic disorder, early onset; disruptive behavior disorder, NOS; and polysubstance abuse, and he recommended the student continue her placement at Ivy Ridge (Parent Ex. E at p. 7).
On November 10, 2005, petitioner, the student's mother, completed a social history report with the assistance of a Russian-speaking social worker (Tr. pp. 132-33; see Dist. Ex. 3 at p. 1; Dist. Ex. 7 at p. 1). Petitioner also signed a consent form to conduct the initial evaluation of her daughter on November 10, 2005 (Dist. Ex. 2; Dist. Ex. 3 at pp. 1-2, 7). She reported that her daughter's difficulties began in eighth grade during the 2003-04 school year at the age of 12 while she attended respondent's I.S. 34 (see Dist. Ex. 7 at p. 2). Petitioner's social history notes that the student started cutting classes, sleeping during classes, and failing to complete her schoolwork (Tr. 126; Dist. Ex. 7 at p. 2). The social history notes that the student became rude and offensive to school staff, had numerous conflicts with teachers and other students, and ran away from home several times (Dist. Ex. 7 at pp. 2-3). Petitioner's social history described the student as aggressive, explosive and physically confrontational with her younger brother, her school peers, and with petitioner (Dist. Ex. 7 at p. 5). The social history notes that the student's guidance counselor at I.S. 34 engaged her in counseling, but noted no improvement (Dist. Ex. 7 at p. 3).
Petitioner also noted that the student's academic performance began to decline in eighth grade (Dist. Ex. 7 at p. 1). A 2003-04 progress report card indicated that the student's grades ranged from 70 to 93, with an overall average of 81.14 in the first marking period (Dist Ex. 16). At that time, the report card documented her conduct as "satisfactory" in all classes except science, which was rated as "needs improvement" (Dist. Ex. 16 at p. 1). In the second marking period, the student's grades ranged from 55 to 73, with an overall average of 61.46 (id.). In three out of seven classes, the report card noted the student's conduct as "unsatisfactory" or "needs improvement" (Dist Ex. 16 at p. 1). In the third marking period, the student's grades ranged from 60 to 84, with an overall average of 77.9 (id.). The report card rated the student's conduct as "satisfactory" in all classes (Dist. Ex. 16 at p. 1). The report card noted the student as absent on three occasions and late on one occasion for the year to date (id.).
Prior to these difficulties in eighth grade, petitioner reported that her daughter did not demonstrate any academic or behavioral difficulties, with the exception of extreme shyness and social withdrawal in elementary school, and that she was an "A" student (Tr. p. 148; Dist. Ex. 7 at p. 2). Petitioner reported that as a result of her daughter's escalating academic, behavioral and emotional problems, she placed her at Ivy Ridge on an "emergency basis" in May 2004 (Dist. Ex. 7 at pp. 1, 3). Petitioner noted that she wanted her daughter transferred to a state-approved residential program (Dist. Ex. 7 at p. 1). Petitioner provided the psychological evaluation report to the social worker when she met for the social history on November 10, 2005 (Tr. p. 134; see Dist. Ex. 3 at pp. 1-2; Dist. Ex. 6). Respondent contacted petitioner on or about December 7, 2005, and scheduled a "conference" for January 10, 2006 (Dist. Ex. 3 at p. 2).
By letter dated December 28, 2005, the Director of Pathways provided a summary of a psychiatric evaluation conducted by a psychiatrist at Pathways on December 23, 2005 (Tr. p. 20; Dist. Ex. 6). The summary indicated that the student denied inpatient psychiatric treatment, denied suicide attempts, and denied substance abuse and substance abuse treatment (Dist. Ex. 6 at p. 1). The summary reported that the student was pleasant, she demonstrated coherent thoughts and did not demonstrate any suicidal or homicidal intentions, and she showed average intelligence with good attention and an intact memory (id.). The evaluator determined the student's symptoms met the criteria for diagnoses of disruptive behavior disorder, NOS; cannabis abuse; and alcohol abuse and recommended individual therapy, as well as substance abuse/sobriety group therapy (Dist. Ex. 6). The evaluator agreed the student would likely benefit from a controlled environment with 24-hour a day structure that is drug free and "education focused" (Dist. Ex. 6).
After receiving this summary report, respondent deferred the "conference" scheduled for January 10, 2006, in order to address the inconsistent information contained in the psychological evaluation report, the social history report, and the newly obtained psychiatric summary report (Dist. Ex. 4 at p. 1). The conference report recommended that a detailed psychiatric evaluation be obtained to enable the CSE to determine whether the student might need a day or residential placement (id.; see Dist. Ex. 3 at p. 3; Dist. Ex. 6). The conference was deferred until February 1, 2006 (Dist. Ex. 6).
Respondent contacted petitioner on January 27, 2006 to inquire about the status of the psychiatric evaluation and offered to conduct the evaluation through the Board of Education (Dist. Ex. 3 at p. 3). Respondent followed up with petitioner on January 30 and 31, 2006, regarding the evaluation; petitioner's attorney notified respondent that the evaluation would be conducted and the report faxed as soon as it was available (id.). On February 16, 2006, respondent called petitioner's attorney, who advised that the evaluation occurred the day before and he would send the report when it was ready (id.).
According to the record, the psychiatric evaluation occurred on February 16, 2006, and the psychiatrist completed a report on February 28, 2006 (Tr. pp. 135-36; Parent Ex. G at p. 1). The student reported that her troubles began in sixth grade when she was 11 years old (Parent Ex. G at p. 1). She felt she "didn't belong" and she endured ethnic slurs from her peers (id.). In an attempt to be accepted, she began using illegal drugs and alcohol and giving money to older friends (id.). Although she was referred to her guidance counselor and a therapist, she noted no improvement (id.). The student reported becoming progressively "more depressed," which led to suicide attempts and cutting her arms (id.).
During the interview, the student described herself as happy, and the psychiatrist noted her affect was "full range, appropriate and euthymic" without any suicidal or homicidal ideations (Parent Ex. G at p. 2). He noted that she made "very good progress since her arrival" at Ivy Ridge (Parent Ex. G at p. 3). The psychiatrist opined that she suffered "primarily from depression and substance abuse secondarily as a coping mechanism for these intense emotional feelings of rejection" (Parent Ex. G at p. 3). He further opined that she met the criteria as a student with an emotional disturbance under the Individuals with Disabilities Education Act (IDEA) (id.). The psychiatrist believed she required a highly structured residential placement with a "psychologically supportive milieu" (Parent Ex. G at p. 3).
Respondent's CSE convened for the student's initial review on March 23, 2006 to determine the student's eligibility for special education programs and to prepare the student's individualized education program (IEP) (Parent Ex. B at p. 1). With regard to academic performance and learning characteristics, the CSE noted the student's WIAT-II test results indicated that she presently performed at the tenth grade instructional level in reading comprehension, written expression, math calculation, and oral expression (Parent Ex. B at p. 3). The IEP documented that the student suffered from low self-esteem, shyness, and withdrawal, and due to her history of defiant behavior, emotional problems, suicide attempts, and school failure, she required "nonstop" supervision in a structured residential facility (Parent Ex. B at p. 4).
The CSE classified the student as a student with an emotional disturbance and recommended she be placed in a full-time residential treatment program in a twelve-month program and receive individual counseling one time per week for 60 minutes (Dist. Ex. B at pp. 1, 7-9). The IEP also contained goals and objectives related to the student's math skills (Dist. Ex. B at p. 6). The CSE deferred the case to respondent's Central Based Support Team (CBST) for residential placement (Dist. Ex. B at p. 1). Respondent explained the CBST process to petitioner (Tr. p. 138).
By letter dated March 23, 2006, petitioner requested an impartial hearing alleging that respondent failed to meet its "child find" responsibilities under the IDEA; that respondent failed to complete the required evaluations of the student and develop an IEP in a timely fashion; and that respondent failed to offer an appropriate program/placement for the student for the 2005-06 school year (Parent Ex. A at pp. 1-2). Petitioner advised that Ivy Ridge was an appropriate placement for her daughter, that she cooperated with respondent's CSE, and that she was entitled to tuition reimbursement for her daughter's attendance at Ivy Ridge for the 2005-06 school year (id.).
The CSE continued to pursue an appropriate residential placement for the student and referred the student's information to eight potential placements on April 12, 2006 (Tr. pp. 140-44; see Dist. Ex. 8 at p. 1-2). By May 17, 2006, respondent received rejections from four of the potential placements for various reasons, and one rejection based upon petitioner's refusal of the placement at Summit School at Nyack (Summit) (Dist. Ex. 8 at p. 1; Dist. Ex. 9). Although petitioner did not think that Summit was an appropriate placement at that time, she later began to reconsider Summit as a possible placement and contacted the school (Tr. pp. 143-46).
On June 20, 2006 petitioner visited Summit with her daughter (Tr. 145-46). Although petitioner had initially rejected Summit because it was not a "locked down" facility, she determined it was an appropriate placement for her daughter following the visit (Tr. 145-46). By facsimile dated June 21, 2006, the CBST notified respondent of the student's acceptance for enrollment at Summit with a projected start date of July 1, 2006 (Dist Ex. 14). Respondent's CSE reconvened on June 21, 2006, to amend the student's IEP to indicate Summit as the student's recommended placement (Dist. Ex. 15 at p. 1). Petitioner participated in the meeting by telephone (Dist. Ex. 15 at p. 2). The CSE also amended the IEP to include goals and objectives related to the student's social/emotional needs to be addressed through counseling and transition planning that were not included in the student's proposed IEP dated March 23, 2006 (compare Parent Ex. B, with Dist. Ex. 15 at pp. 7, 11).
The impartial hearing in this matter occurred on June 23, 2006 (Tr. p. 1). At the impartial hearing, petitioner presented testimonial and documentary evidence (Tr. pp. 14-27, 35-47, 66-78, 103-121, 124, 125-47; Parent Exs. A-O). Respondent conceded that it failed to provide the student with a free appropriate public education (FAPE) for the 2005-06 school year, but contested that Ivy Ridge was an appropriate placement for the student during the 2005-06 school year through cross-examination of petitioner's witnesses and documentary evidence (Tr. pp. 10-13, 27-35, 47-66, 78-102, 122-25, 147-65; Dist. Exs. 1-16; IHO Decision, p. 5).
At the impartial hearing, a psychologist who was the Director of Pathways testified that his counseling group rented space from Ivy Ridge and contracted with the facility to provide psychological and psychiatric services to the students through individual, group, and family counseling (Tr. pp. 16-17; see Tr. pp. 45, 99-100). He described the typical student at Ivy Ridge as one with "behavioral difficulties" (Tr. p. 17). He stated that the student received individual, group and family counseling at Pathways and she also participated in the Self-Esteem Group for Girls, which she completed in the spring of 2005 (Tr. pp. 17, 23). She had also been evaluated by a Pathways psychologist and psychiatrist when she entered Ivy Ridge in 2004 (Tr. p. 17). The psychologist testified that the student currently received individual and family therapy at Pathways (Tr. p. 23). He further testified that he believed the student made "good strides in her ability to manager (sic) her emotions" (Tr. p. 29). With respect to the student's academics when she attended public school, he testified that he received information that she had "poor peer and family relationships" and she either did not like or did not want to go to school due to the "problems with her peers" (Tr. p. 34). The psychologist testified that although he had never seen the student's public school report card, it did not surprise him to learn that she was passing all of her public school classes since her testing demonstrated that she had a "solid I.Q." (Tr. pp. 34-35).
The Director of Family Communications at Ivy Ridge testified that the students are assigned to "families," which consist of 18-24 students who are led by "family representatives" (Tr. p. 38). The students are not grouped according to age or grade, nor are they grouped by similar levels of academic functioning (Tr. pp. 42, 53). "Family meetings" occur two times per day for an hour each session for students (Tr. p. 42). A "family rep" supervises the morning group and a "dorm parent" handles the evening group (Tr. p. 43). Students discuss the following five questions on a computer every day: (1) "What emotions did you have today and how did you deal with them?"; (2) "What corrections did you receive today?"; (3) "Did you have any health issues today and if you're on any sort of medication did you take your medication today?"; (4) "Educationally what did you work on today?"; and (5) "Anything that they think we should be aware of that's going on with them?" (Tr. pp. 43-44). These questions are discussed at the morning meeting; the evening group discusses a more generic "how was your day today" question (Tr. pp. 43-44).
The Director specifically testified that Ivy Ridge itself does not provide any other formal clinical or psychological services to the students (Tr. p. 45). If a parent wants a student to receive counseling, the parent directly arranges for those services to be provided by Pathways (id.). Moreover, information about students may be shared between the two facilities, but only to the extent allowable by the Health Insurance Portability and Accountability Act (HIPAA) (Tr. p. 45-46). Ivy Ridge staff may be aware of a student's clinical services, but only if the student or parents choose to provide that information (Tr. p. 46).
The Academic Coordinator at Ivy Ridge (Coordinator) testified that Ivy Ridge is a school for students "who are experiencing social maladjustment disorders" or who have "emotional problems" (Tr. pp. 69-70). She indicated that students typically enroll in Ivy Ridge as a result of substance abuse, constant fighting with peers, and "basically just general disrespect to authority and parents," and further testified that Ivy Ridge was "a way to save a child from ending up in a juvenile detention center" (Tr. p. 82). She testified that Ivy Ridge is currently in the process of adopting the New York State Curriculum and that all of the teachers are certified in the areas they teach (Tr. pp. 70-71). However, she testified that Ivy Ridge is not licensed to issue diplomas (Tr. pp. 76-77).
The Coordinator further testified that she understood that petitioner's daughter was "not here because she's not capable of doing the work, it is because of her behavioral problems" (Tr. p. 74). She noted that the student was currently passing all of her subjects and maintained an overall GPA of 3.23 out of a possible 4.0 (Tr. p. 75). When asked to describe the special education programs at Ivy Ridge, the Coordinator testified that it consists basically of the student following a "self-paced, self-learning" environment that the student advances through "as they want" (Tr. pp. 87, 89). She noted that students who arrive at Ivy Ridge with IEPs are not "our specialty" (Tr. p. 88).
In addition, the Coordinator testified that a teacher comes into a class for about one hour per day to present the lesson of the day (Tr. p 95). The students receive the teacher's email, so if they have a question they can email it to the teacher (id.). The students then work on the computer at their own pace for six hours per day, six days per week (Tr. p 96). Students can sign up for extra help from teachers; however, the Coordinator testified that if students wish to sign up for extra help they are encouraged to obtain an outside tutor through Pathways or another agency (Tr. pp. 88, 95). Tutors assist students on the premises of Ivy Ridge, but are obtained privately through a separate contract between the parent and tutoring agency (Tr. p. 91).
The student also testified at the impartial hearing (Tr. pp. 103-25). The student's program at Ivy Ridge is structured throughout the day and begins at seven o'clock in the morning (Tr. p. 106). Following morning group sessions, students participate in classes for the remainder of the morning and again in the afternoon (Tr. 108). Petitioner's daughter described the classes, noting that the students go to the computer lab as a unit, are seated, and complete lessons independently on the computer (id.). Petitioner's daughter testified that she had a personal tutor for geometry who sat with her at the computer to provide assistance (Tr. pp. 110-11). Students also attend "labs," which are available nearly every day for 1 to 1 1/2 hours (Tr. p. 109). The students watch an "educational video" daily (Tr. p. 112). Petitioner's daughter testified that these videos provide examples of real life situations and individuals' negative reactions to those situations, as well as examples of the other choices available (Tr. 112). In particular, the student testified that the teachers at Ivy Ridge sit at their own computers during a lesson and only assist students when students request help (Tr. pp. 122-23). She noted that the teachers do not give presentations for instruction in front of the class (Tr. p. 123).
During closing arguments, respondent's attorney reiterated that respondent conceded that it failed to provide the student with a FAPE for 2005-06 and then added that respondent was not going to argue that petitioner was "uncooperative because she was not" (Tr. pp. 170-71). Respondent's attorney further stated that after hearing the testimony, she understood "why the parent wouldn't produce [the student] for evaluation," but nonetheless that remained as the reason behind the delays in obtaining the evaluations (Tr. p. 171).
By decision dated July 13, 2006, the impartial hearing officer denied petitioner's request to be reimbursed for the costs of her daughter's tuition at Ivy Ridge during the 2005-06 school year because she found that petitioner did not sustain her burden to prove that Ivy Ridge was an appropriate placement for her daughter and that Ivy Ridge met the student's special education needs (IHO Decision, pp. 5-7).
On appeal, petitioner contends that the impartial hearing officer erred when she determined that Ivy Ridge was not appropriate to meet her daughter's special education needs because the record does not support the impartial hearing officer's findings. Petitioner argues that the impartial hearing officer ignored the undisputed evidence that the student progressed both academically and emotionally while attending Ivy Ridge. Petitioner further alleges that the impartial hearing officer erred as a matter of law in the analysis of whether Ivy Ridge was an appropriate placement. Petitioner seeks nullification of that portion of the impartial hearing officer's decision, which held that Ivy Ridge was not appropriate to meet the student's educational needs and denied petitioner's request to be reimbursed for the costs of her daughter's tuition at Ivy Ridge for the 2005-06 school year.
Respondent requests that the impartial hearing officer's decision be upheld in its entirety and that petitioner's appeal be dismissed. On its cross-appeal, respondent alleges that the impartial hearing officer erred in her determination that equitable considerations favored petitioner and contends that the record supports a conclusion that petitioner failed to cooperate in the evaluation process, which ultimately resulted in a failure to provide a timely FAPE. In addition, respondent argues on cross-appeal that the impartial hearing officer erred when she determined that although petitioner did not provide the appropriate ten-day notice prior to unilaterally withdrawing her daughter from respondent's school in May 2004, the lack of notice was not a bar to tuition reimbursement.
A central purpose of the IDEA (20 U.S.C. §§ 1400-1482)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 ; 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[D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).2, 3 The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A]).
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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; 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][C][ii]; 34 C.F.R. § 300.148). 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 affords 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. 10-13, 170-71). 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. 06-085; 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 petitioner met her burden of proving that Ivy Ridge was appropriate to meet her daughter's special education needs for the 2005-06 school year (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]).
Upon review of the record, I concur with the impartial hearing officer's decision and find no reason to disturb her determination that petitioner failed to sustain her burden to prove that Ivy Ridge was appropriate to meet the student's special education needs. The record indicates that the student was not appropriately grouped, she was not provided with specially designed instruction or programs, and she was not provided with any clinical or psychological services to address her social and emotional needs through Ivy Ridge.
Based upon the record, Ivy Ridge provided the student with a drug-free "locked down" environment located nine to ten hours from her home environment. Ivy Ridge did not provide the student with math assistance or counseling services. Petitioner chose to obtain these services directly with outside agencies, as is the standard of practice for students placed at Ivy Ridge. Petitioner's argument that the student made progress at Ivy Ridge in her academics and in her social/ emotional needs is unpersuasive, especially since the student's progress would be directly attributable to the Pathways' counselors and the student's geometry tutor--not to any specially designed programs or counseling at Ivy Ridge, because Ivy Ridge does not offer these services.
The record documents that the student received weekly individual therapy from the counselors at Pathways beginning on August 12, 2004 (Parent Ex. N at p. 1). The therapy sessions focused on emotional processing and expressivity, confidence building and decision-making, and self-esteem problems (id.). Role-playing, brainstorming, and cognitive behavioral therapy (CBT) techniques were also used (id.). The student's self-esteem and social skills reportedly improved (id.). She also received family therapy with her mother (Parent Ex. N at p. 3).
Based upon the information before me, I find that the record does not establish that Ivy Ridge was appropriate to meet the student's special education needs for the 2005-06 school year, and thus, petitioner is not entitled to tuition reimbursement. Having decided that petitioner failed to meet the second criterion for an award of tuition reimbursement, the necessary inquiry is at an end and I need not reach the issue of whether equitable considerations supported petitioner's claim (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
With respect to respondent's cross-appeal regarding the impartial hearing officer's decision on equitable considerations, "[t]he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]). A party aggrieved by an impartial hearing officer's decision may appeal to a State Review Officer (see 34 C.F.R. § 300.514[b]; see 8 NYCRR 200.5[j]; Mackey v. Bd. of Educ., 386 F. 3d 158, 160 [2d Cir. 2004]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of the Bd. of Educ., Appeal No. 04-016; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, Appeal No. 99-029). "Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal" (Parochial Bus Sys., Inc. v. Bd. of Educ., 60 N.Y.2d 539, 544 ).
In the instant case, because the impartial hearing officer's decision ultimately denied petitioner's request to be reimbursed for the costs of her daughter's tuition at Ivy Ridge for the 2005-06 school year, respondent received complete relief and therefore, is not aggrieved by the decision (see Parochial Bus Sys., Inc. at p. 544-45; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of the Bd. of Educ., Appeal No. 05-023; Application of the Bd. of Educ., Appeal No. 04-016). With that said, I have reviewed respondent's arguments and found them not persuasive.
I have considered petitioner's and respondent's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
October 27, 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 the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
2 The term "free appropriate public education" means special education and related services that-
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
(20 U.S.C. § 1401).
3 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 the 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.