The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Babylon Union Free School District
Wasserman Steen, LLP, attorney for petitioners, Lewis M. Wasserman, Esq., of counsel
Law Offices of Guercio & Guercio, attorney for respondent, Gary L. Steffanetta, Esq., of counsel
Petitioners appeal from the portion of the decision of an impartial hearing officer which denied in part their request to be reimbursed for their son's tuition costs at the Sterling School (Sterling) for the 2005-06 school year. Respondent cross-appeals from the impartial hearing officer's award of tuition reimbursement to petitioners for the 2004-05 and 2005-06 school years and from the hearing officer's limitation of respondent's introduction of evidence at the impartial hearing. The appeal must be sustained in part. The cross-appeal must be sustained in part.
Before addressing the merits of this appeal, I must first address a procedural issue. As an affirmative defense in its answer, respondent asserts that petitioners failed to include a table of contents with the memorandum of law submitted with their petition, and therefore respondent requests that the memorandum of law should be rejected. State regulations provide that a memorandum of law shall contain a table of contents (8 NYCRR 279.8[a]), and specifically state that documents that fail to comply with these requirements may be rejected in the sole discretion of the State Review Officer (8 NYCRR 279.8[a]). Although the original submission did not contain a table of contents, petitioners subsequently provided the State Review Officer with a table of contents. In the exercise of my discretion, I decline respondent's request to reject petitioners' memorandum of law.
At the commencement of the impartial hearing in November 2005, the child was nine years old and in the fourth grade at Sterling (Feb. 6, 2006 Tr. pp. 548-49). The Commissioner of Education has not approved Sterling as a school with which school districts may contract to instruct students with disabilities (Feb. 6, 2006 Tr. pp. 527-28; see 8 NYCRR 200.7). The child is described as friendly, cooperative and interactive (Dist. Exs. 10 at p. 3, 15 at p. 3). Although the record reflects that the child put forth much effort, and despite "maximum remediation" attempts, he made minimal progress in the area of reading while attending respondent's schools (Dist. Ex. 15 at pp. 1, 3). The child also exhibits difficulty in the areas of written expression and math word problems (Dist. Ex. 1 at pp. 2, 4). The child's eligibility for special education services as a student with a learning disability is not in dispute (see 8 NYCRR 200.1[zz]).
The child attended respondent's schools from kindergarten through third grade (Parent Ex. KK). Respondent's elementary school encompassed grades kindergarten through second, and its "grade" school spanned from third through sixth grade (Feb. 27, 2006 Tr. p. 883). In May 2003, when the child was in first grade, his classroom teacher referred him to the building's Instructional Support Team (IST) because, despite a great deal of effort, he was exhibiting minimal progress (Dist. Exs. 15 at p. 3; 20; see Dist. Ex. 19). In July 2003, petitioners obtained private reading intervention sessions for the child for one hour per week, provided by a learning specialist (Parent Ex. C). During the 2003-04 school year, while in second grade, the child was placed in a general education class and received remedial reading services four times per week and also "extra tutoring" in reading and writing one time per week (Dist. Exs. 10 at p. 2; 16).
During fall 2003, respondent's IST met twice about the child (Dist. Exs. 16, 17). By letter dated February 25, 2004, petitioners were notified that the child's teacher referred him to respondents' Committee on Special Education (CSE) (Dist. Ex. 59). On March 4, 2004, respondent received consent to evaluate the child (Dist. Ex. 58).
On March 18, 2004 respondent's school psychologist conducted a psychological evaluation of the child (Dist. Ex. 15). Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension index standard score (SS) of 102 (55th percentile, Average), a perceptual reasoning index SS of 112 (79th percentile, High Average), a working memory index SS of 91 (27th percentile, Average) and a processing speed index SS of 85 (16th percentile, Low Average) (Dist. Ex. 15 at p. 2). A full scale SS of 100 (50th percentile, Average) was also reported (id.). The child demonstrated high average (SS: 110, 75th percentile) skills in copying designs on the Bender Visual-Motor Gestalt Test (Bender-Gestalt II) and his recall of the drawings yielded a SS of 107 (55th percentile) (Dist. Ex. 15 at p. 2). The school psychologist concluded that the rate that the child processed new information was statistically significantly lower than his ability to see patterns, relationships or the whole among diverse pieces of a visual display (Dist. Ex. 15 at p. 6). Based on results of the testing, the school psychologist recommended that the child continue to receive academic support both in and out of the classroom, and her report provided school and home based recommendations (Dist. Ex. 15 at pp. 7-8).
On March 18 and 19, 2004 respondent's speech therapist evaluated the child's language skills (Dist. Exs. 13, 14). Administration of the Clinical Evaluation of Language Fundamentals-Third Edition (CELF-3) yielded a receptive language SS of 92 (30th percentile), an expressive language SS of 104 (61st percentile) and a total language score of 97 (42nd percentile), which was reportedly "within the normal range" (Dist. Exs. 13 at p. 1; 14). Assessment of the child's phonemic awareness skills revealed non-mastery of pre-literacy skills including sound matching, sound blending and segmenting (Dist. Ex. 14). The child's sound/symbol skills were weak for vowels and more difficult consonant sounds (id.). The speech therapist opined that the child's weak phonemic awareness skills appeared to be related to his difficulty in the development of grade level reading and writing skills (id.). She recommended that a reading specialist or speech-language teacher address the child's pre-literacy skills and emphasize rhyming, sound production, sound matching, blending and segmentation abilities (id.).
On March 23, 2004 a pediatric neurodevelopmental evaluation of the child was conducted (Dist. Ex. 12). The evaluation report stated that a neurologist had previously diagnosed the child with an attention deficit disorder (Dist. Ex. 12 at p. 2). The neurodevelopmental specialist reported that the child's fund of information and language skills were "scattered" in that some abilities were at age level and some were below (Dist. Ex. 12 at p. 6). The child's graphomotor and non-verbal skills were characterized as "quite strong" (id.). The evaluation report stated that the child's short-term memory skills were weak and that academically he was below grade level in all areas (id.). The neurodevelopmental specialist concluded that the child's cognitive level appeared to be "at least average," and that his nonverbal reasoning skills were superior to his language abilities (id.). The evaluation report stated that the child did not meet the criteria for an attention deficit hyperactivity disorder (ADHD) by either parent or teacher report (id.).
On April 15, 2004 petitioners obtained an assessment of the child from the Reading and Learning Centers of Long Island (Parent Ex. B). In a diagnostic summary, the evaluators concluded that the child's reading skills were at a second half of first grade instructional level, and his silent reading rate was at a primer level (id.). The child demonstrated weaknesses in word recognition, short-term memory, written expression, silent reading rate and visual-motor integration (id.).
On April 24, 2004 petitioners obtained a private auditory and language processing evaluation of the child conducted by a speech-language pathologist/audiologist (Dist. Ex. 10). Numerous tests and subtests of various evaluations were administered to the child in the areas of auditory processing, auditory comprehension, language processing, word retrieval, metacognition and non-literal language, and written language (Dist. Ex. 10 at pp. 3-9). Petitioners completed a questionnaire pertaining to the frequency of behavioral characteristics that the child exhibited at home, in an attempt to determine whether or not an attention deficit disorder existed (Dist. Ex. 10 at p. 9). The child's language processing skills were reportedly adequate and, with the exception of a mild high frequency hearing loss in one ear, his hearing was within normal limits (id.). Although an attention deficit was not identified on a parent questionnaire, the evaluation report noted that the child was fidgety and had difficulty sustaining attention during testing (Dist. Ex. 10 at p. 10). The speech-language pathologist/audiologist concluded that the child exhibited a learning disability and an auditory processing disorder that compounded his reading disability (Dist. Ex. 10 at pp. 9-10). The evaluator's recommendations included classroom accommodations, a trial of a personal FM system, resource room at school to support reading, continued reading, phonological awareness and tutor services, and a variety of computer software programs (Dist. Ex. 10 at pp. 10-11). Petitioners were also referred to a summer program at the Bridge Academy, held at the School for Language and Communication Development (Dist. Ex. 10 at p. 11).
On April 29, 2004 the Wechsler Individual Achievement Test-Second Edition (WIAT-II) was administered to the child (Dist. Ex. 18). The child achieved a reading composite SS of 77 (6th percentile), a mathematics composite SS of 97 (42nd percentile), a written language composite SS of 98 (45th percentile) and an oral language composite SS of 97 (42nd percentile) (id.). The child's total composite SS was 88 (21st percentile) (id.).
On May 5, 2004 at respondent's request, a teacher of the visually impaired conducted a vision evaluation of the child due to school and parent concerns about his slow progress in reading (Dist. Ex. 9). The teacher of the visually impaired reported that the child exhibited weakness in the areas of visual motor integration, spatial planning, copying, directionality, visual and auditory sequential memory and attention to visual details (Dist. Ex. 9 at p. 2). She opined that due to the child's inconsistent performance on some subtests administered, his academic weaknesses would not be eliminated with vision services (id.). The vision evaluation report recommended twice weekly push-in vision services and suggested that the child receive instruction in the use of an AlphaSmart (id.).
On June 9, 2004 respondent's CSE convened for an initial review of the child (Dist. Ex. 4). The child was classified as learning disabled and the resultant individualized education program (IEP) recommended that for his 2004-05 third grade year the child be placed in a regular class setting and receive visual itinerant services twice weekly for 30 minute sessions and remedial reading instruction, also known as Academic Intervention Services (AIS) (Dec. 14, 2005 Tr. pp. 230-31; Dist. Ex. 4 at pp. 1, 4, 7).1 Testing accommodations offered included flexible test scheduling; extended time; flexible test setting; deletion of spelling, punctuation and paragraph requirements; and tests read to him (Dist. Ex. 4 at p. 5). It was recommended that a speech-language re-evaluation of the child be conducted in fall 2004, after which the building team would meet to determine if additional services were required (Dist. Ex. 4 at p. 7).
In summer 2004 the child attended a private "intensive" six-week summer school program where he received reading instruction that used an Orton-Gillingham method five days per week (Mar. 2, 2006 Tr. pp. 3, 4; Parent Ex. R).
In fall 2004 the child began third grade at respondent's school and received individual visual itinerant services twice weekly and small group AIS reading services two to three times per six-day cycle (Nov. 4, 2005 Tr. pp. 42-43; Dec. 2, 2005 Tr. pp. 23-24, 36; Dist. Exs. 7, 50). In addition, the director of the private summer school that the child had attended provided private tutoring to the child two times per week (Mar. 2, 2006 Tr. pp. 3-4; Parent Ex. R at p. 2). On September 14, 2004 the principal of the child's school convened a meeting composed of petitioners, the child's private summer school director, his third grade general and special education teachers, his vision service provider and respondent's administrator of special education (Feb. 27, 2006 Tr. pp. 883-84). The purpose of the meeting was to discuss what the child had learned over the summer (Feb. 27, 2006 Tr. pp. 885-87). The private summer school director recommended that the child receive individual instruction five days per week for 60 minutes per session, using an Orton-Gillingham based program (Feb. 27, 2006 Tr. pp. 888-89; Mar. 2, 2006 Tr. p. 4). Petitioner mother reported that the child's principal declined to offer that level of service but stated respondent could offer the child what was contained in his IEP (Feb. 27, 2006 Tr. pp. 889-90). The principal testified that petitioners stated at that meeting that they did not want the child's AIS services to continue because he was pulled out of the classroom (Dec. 2, 2005 Tr. pp. 24-25).
Although a specific date is unclear from the record, at some point in September 2004 the child was placed in an inclusion class (see Dec. 2, 2005 Tr. pp. 24-25). The inclusion class consisted of 19 students, four of whom (including the child) received instruction from a special education teacher who pushed into the class for 90 minutes each morning and for 45 minutes three afternoons per week (Dec. 2, 2005 Tr. pp. 47-48). The inclusion classroom also had a general education teacher and teacher assistant (id.). Early in the school year, the special education teacher provided approximately six individual pull-out reading instruction sessions to the child using the Wilson reading "program" (Wilson), which teaches phonics and sound-symbol relationships (Dec. 2, 2005 Tr. pp. 48-49, 51-52). The child's AIS instruction began in late September/early October and consisted of a 35-40 minute session with a group of up to nine students (Dec. 14, 2005 Tr. pp. 181, 183-84, 198). On September 20, 2004 petitioners requested an emergency CSE meeting to "put in place [the child's] placement and supporting goals" (Dist. Ex. 49).
In October 2004 respondent's speech therapist reported that results of a phonemic awareness screening did not indicate that the child qualified for phonemic awareness remediation (Dist. Ex. 5). The speech therapist recommended that the CSE review the "battery of testing" conducted with the child in spring 2004, along with this updated phonemic awareness screening (id.).
On October 7, 2004 the CSE met for a review of the child's program (Dist. Ex. 3). The resultant IEP recommended placement in an inclusion program with 90 minutes per day of special education teacher instruction, individual reading instruction two times per week provided by the inclusion class special education teacher, AIS reading services three times per six-day cycle and visual itinerant services two times per week (Dec. 2, 2005 Tr. pp. 88-89; Dec. 14, 2005 Tr. pp. 238-40; Dist. Ex. 3 at pp. 4, 7). Minutes of the CSE meeting stated that counseling services were recommended by the CSE but were declined (Dist. Ex. 3 at p. 7). The child's special education teacher reported that at a mid-October 2004 "building level meeting" it was discussed that the child's twice weekly private tutor's methodology of reading instruction conflicted with her Wilson instruction (Dec. 2, 2005 Tr. pp. 53-54, 61, 84-85; Mar. 2, 2006 Tr. p. 3). The special education teacher's understanding of the result of that meeting was that she would no longer provide the child with individual Wilson instruction, which she subsequently discontinued, but that his AIS reading services would continue (Dec. 2, 2005 Tr. pp. 53-55). In October 2004 the child's mother was put in touch with a tutor who was willing to provide private five day per week reading instruction for the child at his school (Feb. 27, 2006 Tr. pp. 892-93). The record reflects that the child's individual reading instruction provided by the special education teacher consisted of approximately six sessions from the end of September 2004 through October 2004 (Tr. pp. 52-55).
In November 2004, the child's third grade teacher indicated that the child needed improvement in reading, writing, spelling, working independently, following directions, and with organization (Dist. Ex. 23). In November 2004 petitioner mother requested that respondent allow a private reading tutor, who used the Orton-Gillingham approach, to conduct one-hour daily sessions with the child at his school (Parent Exs. Q, R at p. 2). In mid to late November, the child's AIS reading service was discontinued because of scheduling conflicts with the private reading services the child was to receive (see Dec. 14, 2005 Tr. pp. 203-05, 210-11). The private reading tutor commenced her sessions with the child at respondent's school on December 14, 2004 (Parent Ex. CC). The sessions were held from 8am to 9am and the child missed approximately 30 minutes of his morning class (Feb. 27, 2006 Tr. p. 898).
On February 16, 2005 the CSE convened to amend the child's IEP to reflect the addition of vision goals (Dist. Ex. 43 at pp. 1, 5). The CSE continued to recommend the program that was offered pursuant to the October 7, 2004 IEP (compare Dist. Ex. 2 at p. 4, with Dist. Ex. 3 at p. 4).
In March 2005, due to a personality conflict between the vision service provider and the child, and at petitioners' request, respondent's administrator for special education notified the BOCES assistant principal that the child's vision services should be terminated and that his IEP would be amended to reflect this change (Nov. 4, 2005 Tr. pp. 49-50; Dist. Ex. 39). By the end of the third marking period in April 2005, the child's IEP progress report reflected that all IEP objectives were either "in progress" or "mastered" (Parent Ex. F).
Respondent's CSE met on April 28, 2005 for an annual review of the child (Dist. Ex. 1). At the meeting, respondent's administrator of special education and petitioner mother learned that the child's individual reading service provided by respondent had been discontinued (Dec. 14, 2005 Tr. pp. 242-43; Mar. 27, 2006 Tr. p. 779). The child's mother also learned for the first time that his AIS services had been discontinued (Mar. 27, 2006 Tr. p. 779). The administrator of special education testified that the CSE had "no control" over AIS services because they were provided separate from special education (Dec. 14, 2005 Tr. p. 239). On or about May 6, 2005 petitioners received the child's IEP that recommended placement in an integrated (inclusion) classroom with 40 minutes per day of special education teacher instruction and no reading services (Dec. 2, 2005 Tr. p. 144; Mar. 27, 2006 Tr. pp. 766-67).2 Petitioner mother contacted respondent to inquire about the special education teacher instruction time (Mar. 27, 2006 Tr. pp. 769-70). Respondent's administrator of special education testified that the 40 minutes on the child's IEP was a clerical error, and a new IEP reflecting the correct amount of inclusion special education teacher instruction was subsequently sent to petitioners (Dec. 14, 2005 Tr. pp. 247-50).
The resultant IEP recommended that the child be placed in an inclusion classroom setting and receive special education teacher instruction for at least 90 minutes per day (Dec. 14, 2005 Tr. p. 263; Dist. Ex. 1 at p. 4). In addition to the time spent in the class with the special education teacher, the proposed class included a dually certified general/special education teacher and full time classroom aide, approximately 16 general education students and one to three children eligible for special education (Dec. 14, 2005 Tr. pp. 263-64). The IEP also provided for a variety of testing accommodations (Dist. Ex. 1 at p. 5). The administrator for special education explained that reading was not offered as a related service on the child's IEP because it was respondent's understanding that petitioners were going to continue the child's private reading instruction (Dec. 14, 2005 Tr. p. 256). Similarly, vision services were not offered because they had been discontinued in March 2005 and the CSE had not received a request from petitioners to reinitiate that service (Dec. 14, 2005 Tr. p. 258).
The private reading tutor ended her daily in-school instruction with the child on June 10, 2005 after completing 91 sessions (Parent Ex. CC). The child's final 2004-05 report card reflected designations of "exceptional effort and interest" in Reading, Math, and Science, and "satisfactory" effort in Written/Oral Expression, Spelling and Social Studies (Dist. Ex. 22). He achieved a grade designation of "improving" in Reading, and "satisfactory" in Written/Oral Expression, Spelling, Math, Science and Social Studies (id.).
On August 29, 2005 respondent was informed that petitioners rejected the child's proposed 2005-06 IEP and that they had enrolled him at Sterling for that school year (Dist. Ex. 36). Petitioners requested that respondent provide transportation for the child to and from Sterling (id.).
On August 31, 2005 petitioners signed the Sterling enrollment contract and on September 8, 2005, the child began attending Sterling (Mar. 27, 2006 Tr. p. 726; Parent Ex. T). Information in the record describes Sterling as a school for students with at least average cognitive abilities who exhibit dyslexia and language-based learning disabilities (Feb. 6, 2006 Tr. pp. 532, 534-35; Dist. Ex. 62 at p. 2). Sterling utilizes Orton-Gillingham, a sequential, direct multi-modal methodology to provide instruction in reading, writing, spelling and language arts (Dist. Ex. 62 at p. 2). The enrollment at Sterling is 24 students, all of whom are classified and have IEPs from their home school districts (Feb. 6, 2006 Tr. pp. 525-26; Dist. Ex. 62 at p. 4). Students are instructed in classes of eight students to one teacher, and receive individual and small group instruction (Dist. Ex. 62 at p. 2). In addition to three classroom teachers, Sterling employs three full time remedial teachers, three part time aides, and a full time school counselor (Feb. 6, 2006 Tr. pp. 554, 558, 572, 575, 577). At the time of the impartial hearing, the student's classroom teacher was certified in another state and her New York State teaching certification was pending, and his remedial teacher's New York State teaching certification was also pending (Feb. 6, 2006 Tr. pp. 536-38).
By correspondence dated September 8, 2005, petitioners requested an impartial hearing (Dist. Ex. 35). On or about September 13, 2005, respondent requested that Sterling complete a questionnaire regarding its program in order to compare it to the program respondent offered the child (Dist. Ex. 66). On September 15, 2005, the director of Sterling responded and indicated, among other things, that the child's classes were composed of five to eight children who were nine to ten years of age (Dist. Ex. 67). The child reportedly received individual remediation using Orton-Gillingham instruction daily and the director of Sterling stated that the Orton-Gillingham method was "infused" into all courses, particularly in reading, writing, spelling and language arts (id.).
On September 16, 2005 a resolution session was held (Apr. 20, 2006 Tr. p. 909). Later that month, respondent's administrator for special education wrote to petitioners and offered them the opportunity to have the child's assistive technology needs evaluated (Dec. 14, 2005 Tr. pp. 273-74; Dist. Ex. 65).
The impartial hearing commenced on December 4, 2005 and concluded on April 20, 2006 after nine days of testimony. At the impartial hearing, petitioners asserted that respondent improperly terminated the student's special education services that were listed on his IEP for the 2004-05 school year, and that respondent's recommendation for the student for the 2005-06 school year failed to offer him a free appropriate public education (FAPE). Petitioners requested reimbursement for the private reading tutoring services they had obtained for the 2004-05 school year, as well as for tuition and transportation reimbursement for Sterling for the 2005-06 school year. Respondent asserted that it had tried to meet petitioners' requests during the 2004-05 and 2005-06 school years and also that it offered the child an appropriate program for those years. Respondent also argued that Sterling was not appropriate because it was not the least restrictive environment (LRE) for the child.
By decision dated August 24, 2006, the impartial hearing officer determined that the respondent had improperly terminated the child's special education services during the 2004-05 school year, and then failed to offer the child a FAPE for the 2005-06 school year. He determined that petitioners' unilateral placement of the child at Sterling for the 2005-06 school year was an appropriate placement, but held that equitable considerations required a reduction in the total amount of tuition reimbursement. Regarding equitable considerations, the impartial hearing officer described the child's transportation time to Sterling as substantial, making the placement more restrictive than ideal for the child. He also found that the child did not require the smaller classes offered at Sterling. Therefore, the impartial hearing officer determined that an equitable cap should be placed on the reimbursement amount in an amount totaling the cost of an integrated class with related services. The impartial hearing officer also noted that he precluded respondent from recalling one of its witnesses regarding petitioners' unwillingness to compromise at the resolution session because he found this testimony irrelevant. For the 2004-05 school year, the impartial hearing officer ordered reimbursement for petitioners' private tutoring services. For the 2005-06 school year, he ordered reimbursement in an amount limited to five times respondent's hourly rate for a special education teacher, multiplied by the number of weeks in the 2005-06 school year. He also granted transportation costs for the 2005-06 school year, after concluding that the services at Sterling were similar to what respondent should have offered the child. The impartial hearing officer concluded his decision by noting that the child's pendency placement would be an integrated classroom, with five sessions per week of individual reading services.
Petitioners appeal and assert that the impartial hearing officer erred by reducing their tuition reimbursement for their son's tuition costs at Sterling for the 2005-06 school year based upon equitable considerations. Petitioners assert that Sterling is appropriate and that the travel time should not reduce their tuition reimbursement award. Petitioners also appeal the impartial hearing officer's determination of pendency on the basis that this issue was not placed before him and was therefore not a justiciable issue. Lastly, petitioners argue that, should they prevail, there should be an adjustment to an earlier date for establishing the student's pendency placement at Sterling because the impartial hearing officer's decision was late. Petitioners request that the impartial hearing officer's equitable reduction of tuition reimbursement for the 2005-06 school year be annulled; that respondent be ordered to reimburse full tuition and related expenses for the 2005-06 school year, with interest; and that the impartial hearing officer's pendency determination be annulled, along with a retroactive pendency determination of Sterling to an appropriate date.
Respondent submitted an answer with affirmative defenses and a cross-appeal. Respondent denies petitioners' assertions and submits affirmative defenses arguing that Sterling is overly restrictive, that respondent's reimbursement amount should be commensurate with what respondent was required to provide, that the impartial hearing officer properly determined pendency, and that petitioners' memorandum of law should be rejected for failure to include a table of contents, as detailed above. Respondent cross-appeals from the impartial hearing officer's award of reimbursement for tuition and expenses to petitioners for the 2004-05 and 2005-06 school years, arguing that it offered the student a FAPE for those school years. Regarding the 2005-06 school year, respondent also asserts that Sterling is not an appropriate placement because it is unduly restrictive, and that the equities should compel a finding against petitioners because they delayed informing respondent of their dissatisfaction with the 2005-06 IEP. Lastly, respondent cross-appeals from the impartial hearing officer's determination that respondent could not introduce evidence that it purported would show that petitioners failed to cooperate at the resolution session. Respondent requests dismissal of the petition, an affirmance and annulment of the impartial hearing officer's decision as detailed above, and a remand for respondent to introduce testimony regarding petitioners' failure to cooperate at the resolution session.
The 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][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).4, 5 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 an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]); in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The 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).
First, regarding the 2004-05 school year, respondent cross-appeals from that part of the decision of the impartial hearing officer which found the child's program for the 2004-05 school year was not reasonably calculated to confer an educational benefit in the LRE and awarded reimbursement for the cost of tutoring expenses. I agree with the impartial hearing officer that if respondent had provided what was set forth in the child's October 7, 2004 IEP, specifically, an integrated class with 90 minutes of special education teacher instruction, AIS reading three times per six-day cycle, individual reading instruction two times per week plus visual itinerant services two times per week, and if those reading services were coordinated among the providers, that program might have met the child's undisputedly severe reading needs.
Respondent's 2004-05 program fails in two regards. First, the record reflects that the child's individual reading instruction provided by the special education teacher only consisted of approximately six sessions from the end of September 2004 through October 2004 (Dec. 2, 2005 Tr. pp. 52-55). The child's AIS reading instruction began at the end of September or early October 2004 and concluded at some point in November 2004 after approximately 15-20 sessions (Dec. 14, 2005 Tr. pp. 183-84, 210-11). The visual itinerant services ended in March 2006 (Nov. 4, 2005 Tr. p. 94; Dist. Ex. 39). Although there is a dispute as to why the services were discontinued, it is without question that respondent did not provide reading services to the child pursuant to his IEP after November 2004 through the remainder of the school year, and that his visual itinerant services ended in March 2006 (Nov. 4, 2005 Tr. p. 94; Dec. 2, 2005 Tr. pp. 53-55; Dec. 14, 2005 Tr. pp. 210-12). Therefore, respondent did not provide the full amount of related services mandated pursuant to the child's October 7, 2004 IEP (Dist. Ex. 3 at pp. 4, 7). The record does not indicate that a CSE meeting was held prior to the termination of any of the services listed on the child's IEP.
Second, the manner in which respondent pieced together the child's program also had the effect of failing to meet his severe reading needs because the separate services were not intensive enough, nor were the providers working together to form a cohesive program of services that may have met the child's special education needs. The child's special education teacher testified that she used Wilson to individually instruct the child, which is a reading plan that followed specific steps to teach, among other things, phonetics, decoding and reinforcement of sound and symbol relationships (Dec. 2, 2005 Tr. pp. 48-49). The AIS reading instruction was provided in groups of up to nine children and used a "graded reading approach" (Dec. 14, 2005 Tr. pp. 181-82, 184). This approach used the Developmental Reading Assessment (DRA) to establish a baseline of the child's reading skills by having the child read, recording the miscues, and then calculating the child's reading level (Dec. 14, 2005 Tr. p. 182). Based on the needs of the children in the group, the AIS teacher gave a "mini-lesson" to all the students (id.). She then provided each child with a book at their reading level, listened to them read, documented miscues and discussed the book's contents with them (id.). The DRA addressed word reading and reading comprehension skills (Dec. 14, 2005 Tr. pp. 194, 196). It is unclear from the record how and if the Wilson and graded reading methodologies complemented each other to address the child's needs.
The AIS reading instructor testified that once every six days, she "pushed" into the child's classroom and that the special education teacher was "usually" there (Dec. 14, 2005 Tr. pp. 205-06). She testified that they spoke "a little bit" about how the child was doing, but that she did not know what the special education teacher did with the child during her reading instruction (Dec. 14, 2005 Tr. pp. 206-07). The AIS reading instructor testified that she did not recall ever receiving or reading the child's IEP (Dec. 14, 2005 Tr. p. 190). The teacher of the visually impaired testified that she did not speak to the child's reading teacher or private tutor about the child, but that she did speak to his classroom teacher (Nov. 4, 2005 Tr. p. 62). It is unclear from the record if she was referring to the child's general education or special education teacher. The administrator of special education testified that she was unaware that the child's individual reading instruction was discontinued until the April 2005 CSE meeting (Dec. 14, 2005 Tr. pp. 242-43). The record does not establish coordination between these reading service providers, or oversight of his program, which given the severity of the child's reading disability was necessary to meet his needs. As the impartial hearing officer stated, it appears that respondent grouped existing reading interventions within the district, which individually were not intensive enough to meet the child's needs and together did not provide coordination and collaboration between the service providers (see IHO Decision p. 19).
I also note that the special education teacher who provided the individual reading instruction to the child at the beginning of the 2004-05 school year testified that although she continued to work with the child for the remainder of the school year, she did not discuss the child's progress in reading with his private tutor (Dec. 2, 2005 Tr. pp. 57-58). The special education teacher testified that despite her work with the child, she did not maintain records regarding the acquisition of the child's reading skills throughout the school year because after she stopped providing the individual services she was "no longer responsible for [the child's] reading" (Dec. 2, 2005 Tr. pp. 101-02).
The impartial hearing officer found that petitioners were entitled to reimbursement for their "documented out-of-pocket" costs for the 2004-05 school year (IHO Decision, p. 31). I concur. The record reflects that the child received twice weekly tutoring from the private summer school director from September 2004 until the private reading tutor who provided services at the child's school "took over" (Mar. 2, 2006 Tr. pp. 3-4, 19; Parent Ex. R at p. 2). The private reading tutor then worked with the child from December 2004 through June 2005 (Parent Ex. CC).
The impartial hearing officer did not make a finding as to the appropriateness of the private reading tutor services prior to his decision awarding reimbursement. The record reflects that the child received 91 sessions of reading instruction provided by a retired elementary school teacher with 45 years of classroom experience (Apr. 20, 2006 Tr. pp. 815-16; Parent Ex. CC). The private reading tutor used an Orton-Gillingham approach with the child that included materials from Recipe for Reading and a Science Research Associates (SRA) workbook (Apr. 20, 2006 Tr. pp. 834-35; Parent Ex. QQ). She stated that each lesson began with a review of previously learned skills (Parent Ex. QQ at pp. 1-2). New skills were introduced and accompanied by reading words that contained the new sound or skill, writing words, phrases and sentences from dictation and then reading them (Parent Ex. QQ at p. 2). Each lesson included frequent practice of the new skill and she provided frequent informal tests to determine the child's level of mastery (id.). The record reflects that from December 2004 to June 2005 the private reading tutor provided instruction to the child on approximately 32 skills/sounds (Apr. 20, 2006 Tr. pp. 838-63; Parent Ex. QQ at pp. 3-8). On a scale of one to five, she characterized the child's progress on all skills presented as starting at a two and ending at a three (Apr. 20, 2006 Tr. p. 871). The private reading tutor testified that despite work with her and classroom instruction, the child was still working "below level" (Apr. 20, 2006 Tr. p. 870). The characterization of the child's progress as going from a two to a three was an average of all the skills taught, and she testified that the child demonstrated more significant progress on some specific skills (Apr. 20, 2006 Tr. pp. 846, 849-50). She used a multisensory approach, tailored the program to meet the individual needs of the child and testified she monitored his progress throughout the year (Apr. 20, 2006 Tr. pp. 841-42, 885-86; Parent Ex. QQ at p. 1). I find that the services of the private reading tutor were appropriate to meet the child's needs.
Additionally, with respect to the 2004-05 school year, I find that equitable considerations favor petitioners. Respondent had an obligation to offer the child a FAPE and to provide the services listed on the child's IEP. Respondent undisputedly failed to provide the services on the child's 2004-05 IEP. Based upon these circumstances, I find that it is not necessary to modify the impartial hearing officer's determination awarding reimbursement for private educational services obtained by petitioners during the 2004-05 school year.
Regarding the 2005-06 school year, I concur with the impartial hearing officer's determination that respondent failed to offer the child a FAPE. The child's April 28, 2005 IEP states that the child has a "severe" reading disability and that his reading level affects his ability to perform general education curriculum (Dist. Ex. 1 at p. 2). The IEP contains two annual goals in the area of English Language Arts and includes short-term objectives in the areas of reading and writing (Dist. Ex. 1 at p. 3). A Mathematics annual goal and short-term objectives relate to his reading problem in that they address the reading skills necessary for solving word problems (Dist. Ex. 1 at p. 4). Despite this identified area of need, respondent did not offer any specific reading services on the 2005-06 IEP (Dist. Ex. 1).
The administrator of special education testified that respondent would have added reading services if petitioners did not want to provide private reading services, but that between April and August 2005 she did not receive a request from petitioners to add daily reading services to the child's IEP (Dec. 14, 2005 Tr. pp. 253, 257-58, 266). The child's mother testified that at the April 28, 2005 CSE meeting she asked respondent to provide five day per week reading services to her son and the CSE responded that it could provide two to three days per week (Mar. 27, 2006 Tr. p. 764). At that point, petitioner mother testified that she requested that the CSE put on the IEP "what they could do for [the child]" and that when she received the IEP without specialized reading instruction, she believed that the CSE assumed she would continue the private reading tutoring and it would not offer her son any reading services (Mar. 27, 2006 Tr. pp. 764, 767-69). She testified that the administrator of special education did not ask her whether or not she would obtain private reading services for the 2005-06 school year (Mar. 27, 2006 Tr. p. 790).
Respondent was obligated to offer the child reading services after it identified his severe reading needs and it could not rely on petitioners to privately provide such services. The administrator of special education even testified that at the April 28, 2005 CSE meeting she was not sure if petitioners were going to continue with the private reading tutor or restart school- based services (Dec. 14, 2005 Tr. pp. 244-45). Under the circumstances herein, respondent was required to offer reading services on the IEP, and could not assume that petitioners would privately provide services to meet the child's special education needs that respondent was obligated to provide. In the absence of reading services on the IEP, I concur with the impartial hearing officer's determination that the child was not offered a FAPE for the 2005-06 school year.
Having determined that respondent did not offer a FAPE to the student during the 2005-06 school year, I must now consider whether petitioners have met their burden of proving that placement of their son at Sterling was appropriate (Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 06-030; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). As noted above, in order to meet that burden, petitioners must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the student's special education needs (Frank G., 459 F.3d at 371; Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). 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. 1998]). However, 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]).
Regarding the appropriateness of petitioners' unilateral placement for the 2005-06 school year, I concur with the impartial hearing officer's determination that Sterling was appropriate to meet the child's special education needs. The program at Sterling was designed to provide remediation for children with dyslexia or language-based reading disabilities (Feb. 6, 2006 Tr. p. 507). It is undisputed that the child exhibits a severe reading disability (Dist. Ex. 1 at p. 2). As described above, Sterling uses an Orton-Gillingham approach to reading, writing, spelling and language arts instruction (Dist. Ex. 62 at p. 4). Sterling provided the child's instruction individually, in small groups and in groups of up to 10 students (Mar. 2, 2006 Tr. pp. 31-32; Parent Ex. PP at p. 1). His classes were composed of children who functioned in the average to above average range of cognitive ability and who also exhibited reading deficits (Parent Ex. PP at pp. 2-4). The child's classroom teacher testified that the groups the child was part of were "very coherent" in terms of the cognitive abilities and level of functioning (Mar. 2, 2006 Tr. pp. 48-49). The child's remedial and classroom teacher meet weekly to make sure their instruction is coordinated (Feb. 6, 2006 Tr. pp. 543-44). These staffing meetings help Sterling faculty individualize the child's program to meet his needs (Feb. 6, 2006 Tr. pp. 546-47). For example, faculty concerns regarding the child's progress in writing were raised at a meeting that then resulted in a change to the child's program so that he began receiving individual writing remediation twice per week (Feb. 6, 2006 Tr. p. 547).
The child's daily schedule at Sterling consisted of two remedial language sessions conducted either 1:1 or in a group of two, and an Orton-Gillingham lesson that included reading and writing activities (Feb. 6, 2006 Tr. pp. 565-71; Mar. 2, 2006 Tr. pp. 31-33). One day per week for one period the child participated in a social emotional growth program with his class (Feb. 6, 2006 Tr. p. 572). The child's classroom teacher described in detail the multisensory strategies used with the child during language arts, reading and writing remediation (Mar. 2, 2006 Tr. pp. 28-32; Parent Ex. AA at p. 3). The child's reading program included instruction in long and short vowels, syllabication patterns, digraphs and blends, and the ability to decode and encode one and two syllable words (Parent Ex. AA at pp. 3-4). The remedial language teacher reported that plot development, sequence of events and recall of details were taught using a second to third grade level book (Parent Ex. AA at p. 4).
A comparison of administrations of WRMT-R subtests from September 2005 to January 2006 reveals an increase in the child's word attack skills from the 22nd percentile to the 48th percentile and in passage comprehension skills from the 16th percentile to the 30th percentile (Parent Ex. W at p. 1). The record reflects that the child demonstrated progress in understanding paragraph structure, writing an expanded paragraph, improving phonics skills, learning how words follow patterns for spelling, and improving his use of blends and diagraphs (Mar. 2, 2006 Tr. pp. 39-43). The director of Sterling testified that the child made "significant" progress in language arts and in his remedial class (Feb. 6, 2006 Tr. pp. 672-75).
The child's daily schedule also included Math, Science, Social Studies and Gym (Feb. 6, 2006 Tr. pp. 565-71; Mar. 2, 2006 Tr. pp. 31-33). The child's classroom teacher explained that she taught Social Studies and Science by reading material to the class, discussing it with the students and asking them questions to determine how much they understood (Mar. 2, 2006 Tr. pp. 34-35). The child's fall 2005 Sterling report card, completed in mid-November 2005, reflected grades of A and A- in Science and Social Studies and a designation of "R" in Mathematics and Language Arts, which indicated that the child had not demonstrated the required knowledge and skills at a grade appropriate level and that extensive remediation was required (Mar. 2, 2006 Tr. p. 37; Parent Ex. AA at pp. 1-2). Teacher comments indicated that the child demonstrated excellent class participation, used his class time constructively, was cooperative, and worked well with others (Parent Ex. AA). Other comments included that the child had increased confidence, was eager to do work, listened carefully, asked questions, and understood concepts and integrated new vocabulary (Parent Ex. AA at pp. 5-7).
In addition, the record suggested that at an unspecified time at the end of the 2004-05 school year and summer 2005, the child received private counseling services to address his frustration and to develop a system for homework completion (see Mar. 27, 2006 Tr. p. 771; Parent Ex. KK at p. 6). The director of Sterling testified that the child always appeared to have appropriate social emotional skills and that he made friends at Sterling, appeared comfortable and gained confidence reading in front of people (Feb. 6, 2006 Tr. pp. 691-95). She also indicated that, compared to when he began at Sterling, the child now has more perseverance, is less resistant to work and has increased his frustration tolerance and ability to complete work independently (Feb. 6, 2006 Tr. pp. 696-99).
Sterling's program provided the child with intensive reading and language arts remediation as well as content course instruction in a format that addressed his reading disability throughout the school day. The child did not receive additional or ancillary services outside of the regular program. During the 2005-06 school year, Sterling provided the child with services throughout the school day that met his special education needs. Based upon the above considerations, I concur with the impartial hearing officer's determination that Sterling was appropriate to meet the child's special education needs for the 2005-06 school year.
Under an analysis of equitable considerations, the third prong of the Burlington/Carter criteria, the impartial hearing officer reduced petitioner's tuition reimbursement award in part because he found that the child did not need a small class size and because the length of transportation time to Sterling "must have been" taxing on the child's attention span and homework assignments (IHO Decision at pp. 11-12). I disagree. I also note that restrictiveness of a unilateral placement is properly considered under the second prong of the Burlington/Carter criterion. The classroom teacher stated that the child's class size ranged from 1:1 to 10 students in a class (Mar. 2, 2006 Tr. p. 59). She opined that appropriate class size for the child depended on the subject and that if he had ten students in all his classes all day it would be a "real problem" (Mar. 2, 2006 Tr. p. 61). The classroom teacher further stated that the child benefits from the program at Sterling and that she believed he would not receive the same benefits if he were in a larger classroom (Mar. 2, 2006 Tr. p. 47). She testified that the child's individual tutorials were "absolutely essential" and that in the future his language arts class should continue to contain four students (id.). With regard to the transportation, the record reflects that the trip is 39 miles each way (Mar. 27, 2006 Tr. pp. 732-33; Dist. Ex. 35). The director of Sterling testified that the child appeared focused when he arrived at school, and the only adverse effect on the child she noticed was when he arrived to school late after the school day started (Feb. 27, 2006 Tr. pp. 865-67, 873). The classroom teacher stated that at the beginning of the school year the child was "upset" about having to travel so far for school and discussed this with a Sterling counselor; however, he made a very quick adjustment and no longer needed that service (Mar. 2, 2006 Tr. pp. 56-57). The impartial hearing officer's speculation about the length of transportation time's effect on the child did not have a factual basis in the record.
As noted above, 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, 315 F.3d 21; M.S., 231 F.3d at 105). However, this must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs, 882 F.2d at 692). As explained above, petitioners' son has a severe reading disability and the educational program provided by Sterling was appropriate for the child’s special education needs. Under the circumstances of this case, I also find that LRE considerations do not preclude a finding that Sterling was an appropriate placement.
Although Sterling is a more restrictive placement than respondent's proposed placement, given the circumstances of the present case, I decline to find that it is not appropriate. Accordingly, I find that petitioners have met their burden of demonstrating the appropriateness of the program at Sterling and that they prevailed with respect to the second Burlington/Carter criterion for an award of tuition reimbursement for their son’s attendance at that school for the 2005-06 school year.
The final criterion for an award of tuition reimbursement is that the parent'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 ). With respect to equitable considerations, the IDEA provides 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][C][iii]; see Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir.]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, at n.9).
Respondent asserts that the impartial hearing officer erred in refusing to hear evidence of petitioners' conduct at the resolution session, and asserts that this information was relevant to an analysis of equitable considerations for petitioners' tuition reimbursement claim. I find that the impartial hearing officer appropriately exercised his discretion and I decline to modify his decision on this issue. Although I note that resolution sessions are not confidential absent a confidentiality agreement (18 U.S.C. § 1415[f][B]; 34 C.F.R. § 300.510; Application of a Child with a Disability, Appeal No. 06-109), an impartial hearing officer shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][xii][c]). The impartial hearing officer's decision notes that he found respondent's proffered evidence to be irrelevant to his decision (IHO Decision, pp. 4-5). Under the circumstances of the instant case, I find that the hearing officer did not abuse his discretion in excluding this evidence (see 8 NYCRR 200.5[j][xii][c]).
I also find that equitable considerations are in petitioners' favor regarding tuition reimbursement for the 2005-06 school year. There is no evidence that petitioners withheld information or otherwise failed to cooperate with respondent. Respondent asserts that petitioners should have informed respondent of any objections to the 2005-06 IEP in a more timely fashion. I note however that petitioners' notice of their unilateral placement was made within statutory timelines (20 U.S.C. § 1412[a][C]). I therefore find that the impartial hearing officer erred by reducing petitioners' tuition reimbursement award for the 2005-06 school year.6
Lastly, the impartial hearing officer had awarded petitioners transportation reimbursement related to the 2005-06 school year and respondent cross-appealed petitioners' awarded reimbursement for expenses incurred as a result of the child's unilateral placement.
In the present case, respondent offered to provide suitable transportation to the child for the time period for which petitioners seek reimbursement, and therefore I annul the impartial hearing officer's award of transportation reimbursement. Petitioners seek reimbursement for the costs of a private car service they obtained to transport their son to and from Sterling for the time period from September 26, 2005 to October 6, 2005 (Mar. 27, 2006 Tr. pp. 736-42). Prior to this time, respondent had provided bus service to the child, but the child had been arriving at Sterling late (see Mar. 27, 2006 Tr. pp. 726). In the days prior to petitioners obtaining the car service for which they seek reimbursement, they were in contact with respondent (Mar. 27, 2006 Tr. pp. 730-31). Respondent's representative informed petitioners that the child's bus route would be revised and that he should arrive at Sterling on time from that time forward (Mar. 27, 2006 Tr. pp. 730-32). Petitioners apparently doubted that the child would arrive on time at Sterling and therefore rejected respondent's bus service and arranged for a private car service (Mar. 27, 2006 Tr. pp. 730-33). Subsequently, the child began taking respondent's bus and is now arriving at Sterling on time (Tr. pp. 735-36, 741-42). Under the circumstances present herein, respondent had made an offer of suitable transportation to petitioners' child which was declined by petitioners. Under these circumstances, I annul the impartial hearing officer's award of transportation reimbursement.
Based upon my above determinations, it is not necessary to address the parties' remaining assertions contained in the appeal and cross-appeal.
I am also directing the CSE to reconvene within 30 days and to reassess the child's needs and recommend a program and secure a placement that adequately addresses those needs.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's August 24, 2006 decision is annulled to the extent he reduced petitioners' tuition reimbursement award for the 2005-06 school year;
IT IS FURTHER ORDERED that the impartial hearing officer's August 24, 2006 decision is further annulled to the extent he granted transportation reimbursement to petitioners relating to the time period from September 26, 2005 to October 6, 2005; and
IT IS FURTHER ORDERED unless the parties otherwise agree, that the CSE shall reconvene within 30 days from the date of this decision and reassess the child's needs and recommend a program and secure a placement that adequately addresses those needs.
Albany, New York
November 21, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 This transcript citation refers to "AIS" as "Academic Intervention Support"; however, the remainder of the record refers to "AIS" as "Academic Intervention Services."
2 The Office of State Review did not receive a copy of District Exhibit 1A, referred to in the record as the April 28, 2005 IEP that reflected 40 minutes of special education teacher instruction. This office received only District Exhibit 1, the April 28, 2005 IEP that reflected 90 minutes of special education teacher instruction (see Dec. 14, 2005 Tr. pp. 250-51).
3 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). The citations contained in this decision are to the newly amended statute, unless otherwise noted.
4 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).
5 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.
6 I note that petitioner has sought interest on the 2005-06 tuition reimbursement amount at the "New York judgment rate" and I decline to grant this request. I note that the statutory provision to which petitioner appears to reference only provides that a court may award interest in its discretion in an equitable action (CPLR § 5001). Further, it is well settled that monetary damages are not available under the IDEA (Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 786 n.14 [2d Cir. 2002]; Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2002].