The State Education Department
State Review Officer
Application of the MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Guercio & Guercio, attorney for petitioner, Christine LaPlace Esq., of counsel
Frank X. Kilgannon, Esq., attorney for respondents
Petitioner, the Board of Education of the Middle Country Central School District (district), appeals from a decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' daughter and ordered it to reimburse respondents for their daughter's tuition costs at the Vincent Smith School (Vincent Smith) for the 2005-06 school year. Respondents cross-appeal from the impartial hearing officer's determination which denied their request for reimbursement of educational services for the 2004-05 school year. The appeal must be dismissed. The cross-appeal must be dismissed.
Preliminarily, I will address procedural issues raised by petitioner in its reply to respondents' answer, and in its answer to respondents' cross-appeal. In its reply, petitioner asserts that respondents served an answer that was untimely and failed to admit or deny certain allegations raised in the petition. In its answer to respondents' cross-appeal, petitioner alleges, inter alia, that respondents failed to serve a timely cross-appeal. Respondents have not alleged good cause for untimely service (see 8 NYCRR 279.13), nor have they replied to petitioner's answer to respondents' cross-appeal (see 8 NYCRR 279.6).
An answer to a petition shall be served within 10 days after the date of service of a copy of the petition (8 NYCRR 279.5). A cross-appeal shall be deemed timely if it is included in an answer which is served within the time permitted by 8 NYCRR 279.5 (8 NYCRR 279.4[b]; Application of a Child with a Disability, Appeal No. 05-078). Here, respondents' answer and cross-appeal were served in an untimely manner. No good cause has been asserted by respondents to justify the untimely service (see 8 NYCRR 279.13). There is nothing in the record to suggest that petitioner consented to late service. Service of the cross-appeal should have been made by November 2, 2006; service was made by mail on November 3, 2006 (see Resp't Aff. of Service sworn to Nov. 3, 2006). Moreover, respondents have not responded to petitioner's assertions that respondents' answer and cross-appeal were untimely (see 8 NYCRR 279.6; Application of a Child with a Disability, Appeal No. 05-066; Application of a Child with a Disability, Appeal No. 04-067 [noting that petitioner failed to set forth good cause in the petition and did not serve a reply to respondent's affirmative defense raised in its answer alleging the petition for review was served in an untimely manner, and that "[t]herefore I have no basis upon which to excuse the delay…"]). In the absence of good cause stated, I will dismiss respondents' cross-appeal and answer (Application of a Child with a Disability, Appeal No. 06-097; Application of a Child with a Disability, Appeal No. 04-067).1 Although I will not consider respondents' answer I am still required to examine the entire record (34 C.F.R. § 300.514[b][i]) and to make an independent decision (20 U.S.C. § 1415[g]; 34 C.F.R. § 300.514[b][v]) based solely on the record (8 NYCRR 279.3), notwithstanding respondents' failure to properly answer (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dep't 2002]).
At the commencement of the impartial hearing on November 2, 2005, the student was 11 years old (Aug. 5, 2005 Tr. p. 18; Dist. Ex. 18 at p. 1) and attending fifth grade at Vincent Smith (Nov. 4, 2005 Tr. p. 191, Nov. 29, 2005 Tr. p. 537, May 25, 2006 Tr. p. 2545), a small private school in Port Washington, New York (Parent Ex. N at p. 2). The Commissioner of Education has not approved Vincent Smith as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). In addition to demonstrating reading deficits, the student exhibits weaknesses in the areas of written language and math skills (Dist. Ex. 2 at p. 2). She also has speech-language delays (Dist. Ex. 3 at p. 5) and social-emotional deficits (Dist. Ex. 20). The student's eligibility for special education as a student having a learning disability (8 NYCRR 200.1[zz]) is not in dispute in this appeal.
The student entered first grade during the 2000-01 school year (Dist. Ex. 50). The student's first trimester progress report indicated that she had difficulty attending to lessons and working independently (Dist. Ex. 50 at p. 1). The teacher indicated that the student needed to strengthen her awareness of letters and sounds and develop a "number sense" (id.).
In a Student Support Team Meeting Student Action Plan (Plan) dated November 8, 2000, the student was identified as struggling with the "demands" of first grade (Dist. Ex. 48 at p. 1). She experienced difficulty in decoding, comprehension, listening, speaking, attention, and letter/sound recognition. In addition, the student demonstrated a low frustration level with writing and had difficulty in letter formation and tracking. Her math deficits included difficulties with basic number concepts, and reversals. She exhibited a very low frustration level and was easily off task. The student's teacher reported that the student had difficulty following directions, but was eager to please and demonstrated effort. The Plan recommended educational testing and the continuation of accommodations and modifications that were already in place.
In a follow-up Student Support Team meeting on January 22, 2001, the teacher reported that the student had made some progress in identifying letters and sounds, but that she still experienced difficulty in class (Dist. Ex. 48 at p. 2). The student's mother indicated that her daughter had begun working with a tutor at home (id.). Results of the Test of Early Reading Ability and the Test of Early Mathematics Ability were reviewed. The student received a reading age equivalent of three years, ten months, which was within the first percentile, and a mathematics age equivalent of four years, three months, which was in the second percentile (id.). The special education referral process was reviewed with the student's mother (id.).
On January 29, 2001, the student's father contacted a Student Support Team member by telephone and informed the member that he would not be pursuing special education testing for his daughter (Dist. Ex. 48 at p. 1; see also April 24, 2006 Tr. p. 2059).
The student was initially referred for an evaluation on April 25, 2001 by her teacher (Dist. Ex. 47), who indicated that the student struggled with all first grade curricula (Dist. Exs. 8 at p. 1; 47). The referring teacher noted that the student was an auditory learner, but had difficulty with recall (Dist. Ex. 47 at p. 2). Stating that the student could express herself, the teacher also noted that the student needed assistance to complete any modified classroom activity (id.). The student was provided with academic intervention services, in addition to individual assistance and a modified curriculum (Dist. Ex. 48). Also on April 25, 2001, the student's father provided consent to petitioner to evaluate his daughter for the purpose of determining if she had an "educational disability" (Dist. Ex. 52).
Petitioner conducted a psychological evaluation on May 7, 2001 (Dist. Ex. 8). As a result of the administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III), the student was found to be of average intellectual ability, with a full scale IQ score of 92 (Dist. Ex. 8 at pp. 2-3). Her perceptual-motor performance on the Bender Visual Motor Gestalt Test (Bender Gestalt) was within normal limits and her visual memory was assessed to be adequate (Dist. Ex. 8 at p. 3). Teacher reports indicated that the student performed on pre-kindergarten level in all academic areas (id.). The evaluator concluded by recommending that a Committee on Special Education (CSE) meeting be held upon completion of educational testing (id.).
Petitioner's CSE met on May 30, 2001 as a result of the initial referral (Dist. Ex. 45 at p. 1). The May 30, 2001 CSE recommended that respondents' daughter be classified as a student having a learning disability (Dist. Ex. 45 at p. 1). To address the student's lack of number sense and other "readiness gaps" (Dist. Ex. 45 at p. 2), the May 30, 2001 IEP provided for 60-minute sessions of resource room services for academic support in English/language arts and math, five times a week, in a 5:1 group setting (Dist. Ex. 45 at pp. 1, 2). Although the minutes of the meeting note that respondents did not agree with the recommendation, the student's father consented to the classification and provision of educational services to his daughter and signed a placement form received by petitioner's CSE on June 5, 2001 (Dist. Ex. 45 at pp. 2, 11). By letter dated June 11, 2001, the student's mother consented to petitioner's recommendation that her daughter be retained in first grade for the 2000-01 school year (Dist. Ex. 51).
Petitioner's CSE reconvened on May 20, 2002 to hold an annual review for the student (Dist. Ex. 38). The May 20, 2002 CSE minutes note that the student was repeating first grade, and that her report card and work samples indicated difficulty in all subject areas (Dist. Ex. 38 at p. 2). While her behavior was reported as having improved, it was not always appropriate, and she sometimes refused to attempt tasks in class (id.). The May 20, 2002 CSE recommended the continuation of her classification as a student having a learning disability, and that she be moved to a 12:1+1 self-contained special class, with "specials" and physical education in the mainstream setting (Dist. Ex. 38 at pp. 1, 2, 7). Placement in a particular school building was not guaranteed (Dist. Ex. 38 at p. 6).
Petitioner's CSE reconvened on July 23, 2002, at respondents' request (Dist. Ex. 24 at p. 1). The student's father had not agreed with the prior CSE's 12:1+1 placement recommendation because it required a change in the school the student would have attended (Dist. Exs. 24 at p. 3; 39, 40). The July 23, 2002 CSE repeated its recommendation to continue the student's classification as a student with a learning disability, and to promote her to second grade (Dist. Ex. 24 at p. 2). A full inclusion program at North Coleman, the student's home school (Nov. 2, 2005 Tr. p. 92), was recommended for 2002-03 (Dist. Ex. 24 at pp. 1, 2; Nov. 14, 2005 Tr. pp. 240-43). The student's father agreed with this recommendation (Dist. Ex. 24 at p. 3).
Respondents' daughter attended North Coleman for approximately 18 days (Nov. 22, 2005 Tr. p. 138) during her second grade year (April 4, 2006 Tr. p. 1861). By letter dated October 20, 2002, respondents informed petitioner of their intent to withdraw their daughter from North Coleman and to home school her (Parent Ex. M at p. 31). On November 19, 2002, petitioner's CSE met at respondents' request (Dist. Ex. 27 at p.1). The November 19, 2002 CSE minutes indicate that respondents informed the CSE that they would be home schooling their daughter (Dist. Ex. 27 at p. 2). In the placement information section, the November 19, 2002 IEP listed "home schooled by parent" (Dist. Ex. 27 at p. 1). The November 19, 2002 CSE agreed to provide the student with resource room services for five hours per week on a 1:1 basis (Dist. Ex. 27 at pp. 1, 2).
In December 2002, the student received private psychotherapy (June 6, 2006 Tr. pp. 1951-52; Parent Ex. C). She also received resource room services at her home provided by petitioner (Nov. 14, 2005 Tr. pp. 252-53, Feb. 10, 2006 Tr. pp. 1056-57, 1061-62; Dist. Exs. 27 at p.1; 32). The resource room services were subsequently discontinued, allegedly at both the resource room teacher's and respondents' request (Feb. 10, 2006 Tr. pp. 1062-64, 1066, 1068-69, April 6, 2006 Tr. p. 1978). At that time, respondents requested that that no other service providers be assigned by petitioner to their daughter (Feb. 10, 2006 Tr. p. 1068).
Petitioner's CSE met on April 29, 2003 for the student's annual review (Dist. Ex. 29 at pp. 1-2). The student's father participated by telephone and informed the CSE that he declined all special education services for his daughter and would continue to home school his daughter (Dist. Ex. 2 at p. 2). The April 29, 2003 CSE indicated that the student remained eligible for special education services, but that the CSE would defer to respondents' request (id.).
By letter dated April 30, 2003, respondents notified petitioner that they no longer wanted their daughter to receive special education services or to be classified as a special education student, because the benefits resulting from the special education status and services were negligible in comparison to the awareness of social stigma it produced in their daughter (Dist. Ex. 31). Respondents requested that the classification of learning disability be expunged immediately from their daughter's records (id.). Petitioner closed the student's special education record and deactivated her from its special education system (Nov. 14, 2005 Tr. p. 270). All special education services provided by petitioner to respondents' daughter ceased (Feb. 17, 2006 Tr. pp. 1270-71). Respondents obtained private services for their daughter during her second and third grade school years (Nov. 29, 2005 Tr. pp. 495-96).
By letter dated July 21, 2003, respondents reiterated their intent to home school their daughter (Parent Ex. M at p. 16). In or about October 2003, the student's home schooling began for the 2003-04 school year (Dist. Ex. 10 at p. 4). Respondents' daughter also began to attend a private "learning center" in November 2003 (Parent Ex. DD). A private speech-language pathologist from the learning center stated that standardized testing identified weaknesses in the student's auditory decoding and phonological awareness (id.). To address these deficits, the student received private speech-language therapy and academic intervention focusing on reading and phonics skills (id.). She continued to be home schooled for her fourth grade school year in the 2004-05 school year (Nov. 29, 2005 Tr. pp. 498-99; Dist. Ex. 14 at p. 3).
In December 2004, respondents requested that petitioner reimburse them for the educational and related expenses they incurred while they home schooled their daughter (Feb. 17, 2006 Tr. p. 1271). Petitioner declined respondents' request for reimbursement (Nov. 2, 2005 Tr. pp. 45-46). On March 7, 2005, during the student’s fourth grade year, respondents referred her to petitioner's CSE (Dist. Ex. 1). The basis for this referral included the student’s difficulties with respect to reading, retaining knowledge, and "grasping concepts," as well as with social and behavioral development (Dist. Ex. 1 at p. 1).
Petitioner conducted an elementary educational evaluation of the student on March 22, 2005 (Dist. Ex. 2). Administration of the Woodcock-Johnson Tests of Achievement yielded a broad reading standard score of 56 (grade equivalent 1.9) and a broad math standard score of 45 (grade equivalent 1.8), both of which ranked below the first percentile (Dist. Ex. 2). The results of the Test of Written Language - Third Edition indicated an overall written language standard score of 66, which was in the first percentile (Dist. Ex. 2 at p. 1). The evaluator noted that the student struggled with decoding, did not have a phonetic foundation, and was unable to differentiate short, long, and variant sounds (Dist. Ex. 2 at p. 2). Her weak decoding ability negatively affected her ability to read and understand short passages (id.). The evaluator stated that the student was only able to write two sentences for a story, and the sentences contained errors in spelling, usage, and punctuation (id.). Her "specific skills" assessment for vocabulary, spelling, style, logical sentences, and sentence combining was equally deficient (id.). The evaluator also reported that the student had a weak foundation in basic math facts, had difficulty with subtractions, and could not "add money" (id.).
As a result of respondents' referral, a speech-language evaluation was also conducted on March 22, 2005 (Dist. Ex. 3). Administration of the Clinical Evaluation of Language Fundamentals - Fourth Edition (CELF-4) yielded a core language standard score of 81, placing the student in the borderline range of functioning in overall language performance (Dist. Ex. 3 at p. 2). She received a receptive language index standard score of 76, which placed her in the low range of functioning for following multistep directives containing linguistic concepts, identifying associations among word pairs, and answering questions following the oral reading of short paragraphs (Dist. Ex. 3 at pp. 2, 5). The student received an expressive language index standard score of 87, which placed her in the average range of functioning (Dist. Ex. 3 at p. 2). She demonstrated significant difficulty formulating organized and semantically appropriate sentences, given picture stimuli, and explaining associations among word pairs (Dist. Ex. 3 at p. 5). In the areas of language content and language memory, the student received index standard scores of 80, which were in the borderline range of functioning in both areas (Dist. Ex. 3 at pp. 2-3). The evaluator noted that throughout the evaluation the student demonstrated difficulty remaining focused on tasks and required verbal cuing to attend (Dist. Ex. 3 at p. 5). She reported that the student's speech and language delays may affect her ability to understand and follow directives, formulate oral and written sentences, and answer questions appropriately (id.). Areas of strength included repeating single sentences verbatim and defining vocabulary (id.).
Petitioner conducted a psychological evaluation on April 21, 2005 (Dist. Ex. 4). Administration of the WISC-IV yielded a full scale IQ score of 78, which is in the borderline range of cognitive functioning (Dist. Ex. 4 pp. 2-3). The evaluator noted that at the time of the student’s last psychological evaluation in May 2001, the WISC-III yielded a verbal IQ score of 100, a performance IQ score of 83, and a full-scale IQ score of 92 (Dist. Ex. 4 at p. 1). She also reported that the student's verbal comprehension index score, which was in the average range, was significantly stronger than all other indices (Dist. Ex. 4 at p. 3). Results of the Bender Gestalt indicated that the student's visual motor integration skills were about one year below age norms (id.).
In May 2005, respondents' daughter stopped attending the private learning center (June 23, 2006 Tr. p. 2883). Petitioner's CSE met on June 3, 2005 as a result of respondents' March 7, 2005 referral (Dist. Exs. 1; 14 at pp. 1, 3). The June 3, 2005 CSE minutes indicate that the student was being home schooled at the time of the meeting (Dist. Ex. 14 at p. 3). Based on evaluations presented at its June 3, 2005 meeting, petitioner's CSE proposed that respondents' daughter be classified as a student having a learning disability (id.). The June 3, 2005 CSE Chairperson proposed that the CSE recommend a 12:1+1 special class placement at North Coleman with 30-minute small group speech-language sessions two times a week and 30-minute individual counseling services once a week (Nov. 22, 2005 Tr. p. 138; Dist. Ex. 14 at pp. 1, 3). Respondents' counsel informed the June 3, 2005 CSE that respondents were requesting that their daughter be placed at Vincent Smith and be provided with transportation and speech-language services at district expense (Nov. 4, 2005 Tr. pp. 151-52; Dist. Ex. 14 at p. 3). Reimbursement for the cost of educational services provided by respondents during the 2004-05 school year was also requested (Dist. Ex. 14 at p. 3). Petitioner responded that the 12:1+1 program would have to be considered prior to the CSE's consideration of a more restrictive placement, and all public school options would need to be exhausted prior to its consideration of a private out-of-district placement (id.). The CSE Chairperson testified that respondents requested an impartial hearing at the June 3, 2005 CSE meeting (Nov. 4, 2005 Tr. pp. 164, 186-87).
In unsigned letters to petitioner dated June 7 and June 8, 2005, the student's father requested mediation and an impartial hearing (Dist. Ex. 20; Parent Ex. N). The student's father stated that his daughter had begun home schooling on or about October 2002 because she had been unable to make progress at petitioner's school and, as a consequence, had chronic depression, hated school, and, at times, had to be physically forced into the school building (id.). Respondents reportedly provided private tutors, psychological, physical, and cognitive therapies, as well as nutritional assistance, physical examinations, and various analyses (id.). Alleging that public school was not able to provide the type of individual support the student needed, respondents requested a private school placement in a school such as Vincent Smith, at public expense (id.). Respondents additionally requested reimbursement for costs they incurred to educate their daughter through private resources because petitioner was "unable to provide the attention she needed" (id.). Respondents reiterated their request for mediation by facsimile dated June 14, 2005 (Dist. Ex. 21).
On June 16, 2005, petitioner's CSE reconvened to develop the student's individualized education program (IEP) (Dist. Ex. 18 at p. 3). The June 16, 2005 CSE finalized the recommendations initially proposed at the June 3, 2005 CSE meeting (Dist. Ex. 14) in addition to the goals and objectives developed at the June 16, 2005 meeting, and recommended that the student be placed in a 12:1+1 special class with the provision of related services, as discussed above (Nov. 4, 2005 Tr. pp. 175-76; Dist. Exs. 18 at p. 1; 19).
By letter dated June 16, 2005, the student's father rescinded his request for an impartial hearing and agreed to mediation (Dist. Ex. 22). Mediation was scheduled for July 5, 2005 (Parent Ex. Q), and was not successful (Nov. 4, 2005 Tr. p. 188). Respondents reinstated their request for an impartial hearing (Nov. 4, 2005 Tr. p. 189).
An impartial hearing convened on November 2, 2005 and ended on June 23, 2006, after 25 days of hearings. By decision dated September 18, 2006, the impartial hearing officer found that respondents' request for reimbursement for educational expenses incurred during the 2002-03 school year was time barred based upon the application of a two-year statute of limitations (IHO Decision, p. 15). In addition, the impartial hearing officer found that, but for respondents' refusal to accept special educational services from petitioner during the 2003-04 and 2004-05 school years, petitioner recommended appropriate educational services during this time (IHO Decision, p. 17).
For the 2005-06 school year, the impartial hearing officer found that the June 16, 2005 CSE should have recommended individual reading instruction and "carefully drafted" goals and objectives reflective of "some methodology" reasonably calculated to provide educational benefits with respect to reading (IHO Decision, p. 20). The impartial hearing officer found that the June 16, 2005 CSE was improperly composed, and that the IEP which resulted from its meeting failed to address the student's reading deficits and identify the multisensory methodology for the student's reading instruction (IHO Decision, pp. 18-20). The impartial hearing officer also found that petitioner's recommended program did not address the results of petitioner's evaluations and failed to provide for the educational needs of the student (IHO Decision, p. 20). As such, the impartial hearing officer found that petitioner failed to provide the student with a free appropriate public education (FAPE)2 for the 2005-06 school year (id.).
Based on testimony from Vincent School educators, the impartial hearing officer found that the student's unilateral placement at Vincent Smith was appropriate (IHO Decision, p. 21). He acknowledged that respondents disagreed with petitioner but, based on the record, found them to be cooperative with the June 16, 2005 CSE (id.). As such, the impartial hearing officer found that equitable considerations weighed in favor of respondents and awarded tuition reimbursement and transportation costs to respondents for their daughter's attendance at Vincent Smith for the 2005-06 school year (id.). The impartial hearing officer concluded by denying respondents' second request for petitioner to pay for private neuropsychological and educational evaluations, and by finding that the schedule maintained by respondents' counsel did not cause undue delay in the proceedings (IHO Decision, p. 22).
On appeal, petitioner asserts that the June 3, 2005 and June 16, 2005 CSE meetings were properly composed and that the impartial hearing officer erred when he disregarded credible testimony and evidence which demonstrated that it offered a FAPE to respondents' daughter for the 2005-06 school year. Petitioner also argues that respondents failed to establish the appropriateness of the services and placement of their daughter at Vincent Smith. In addition, petitioner claims that equitable considerations warrant denial or reduction of respondents' request for tuition reimbursement at Vincent Smith, based on their insistence on private school placement, their failure to provide relevant information and/or materials to petitioner, and their failure to comply with notice requirements. Finally, petitioner requests that the State Review Officer issue a finding regarding the undue delay of the proceedings allegedly caused by respondents' counsel.
By answer and cross appeal, respondents argue that in addition to establishing that their daughter was denied a FAPE for the 2005-06 school year and that their daughter's private placement at Vincent Smith was appropriate, equitable considerations warrant an award of tuition reimbursement for the 2005-06 school year. Respondents also assert that the impartial hearing officer erred when he failed to award reimbursement of tuition, tutoring, and related educational expenses from providers other than Vincent Smith and failed to order comprehensive psychiatric, psychological, neuropsychiatric, and educational evaluations of the student. Respondents seek reimbursement of the tuition, fees, education, and transportation expenses incurred for their daughter from October 20, 2004 to June 2005.
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; 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 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, 320).4 The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 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 parents 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 first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).
The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). Accordingly, petitioner, as the party seeking relief at the impartial hearing, has the burden of persuasion.
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Petitioner first asserts that respondents have failed to establish that their daughter was not offered a FAPE for the 2005-06 school year. I disagree. Respondents have established that the June 16, 2005 IEP was inadequate, resulting in the denial of a FAPE for their daughter for the 2005-06 school year.
Petitioner's CSE met on June 3, 2005 to develop an IEP for respondents' daughter (Dist. Ex. 14). At the June 3, 2005 meeting, the CSE reviewed evaluations conducted by petitioner (Nov. 2, 2005 Tr. pp. 67-68, 72-73, 74-75, Nov. 4, 2005 Tr. pp. 117-18) and discussed a 12:1+1 special class program for the student (Dist. Ex. 14 at p. 1; Parent Ex. K at p. 2) at petitioner's North Coleman Elementary School (Nov. 2, 2005 Tr. p. 90). The CSE Chairperson testified that the June 3, 2005 CSE did not discuss the student's social, physical, academic, and management needs, goals, program modifications, or classroom accommodations (Nov. 2, 2005 Tr. p. 96). He further testified that the June 3, 2005 CSE was unable to complete its meeting and did not generate an IEP which finalized its proposed recommendations (Nov. 4, 2005 Tr. pp. 163-65). The parties disagree as to why an IEP was not generated. The CSE Chairperson testified that the parent was "not cooperative" at the June 3, 2005 CSE meeting and "would not sit and allow us to develop an IEP" (Nov. 4, 2005 Tr. p. 165; see also April 4, 2006 Tr. p. 1908). The meeting reportedly concluded with the attorney for the parents articulating what the parents wanted from the district, followed by the CSE Chairperson putting forth his recommendations (Nov. 2, 2005 Tr. p. 94). The student's father testified that he thought that the meeting had ended and denied walking out of the meeting (Nov. 30, 2005 Tr. p. 589). Petitioner's CSE reconvened on June 16, 2005 to complete its meeting and finalize the student's IEP for the 2005-06 school year (Nov. 4, 2005 Tr. p. 159).
The impartial hearing officer found that petitioner's recommended program did not adequately address the results of its own evaluations and failed to provide for the student's educational needs. I concur.
The June 16, 2005 CSE meeting participants discussed the student's management, academic, physical, and social/emotional needs (Nov. 4, 2005 Tr. pp. 179-85). However, the June 16, 2005 IEP developed for the student for the 2005-06 school year failed to describe in sufficient detail the student's academic needs as reflected in petitioner's evaluations. Although decoding and comprehension deficits were identified by petitioner's March 22, 2005 educational evaluation (see Dist. Ex. 2 at pp. 1, 2), the June 16, 2005 IEP only generally described the student's reading needs as having "a learning disability in the area(s) of reading" (Dist. Ex. 19 at p. 3). Similarly, while the evaluations identified deficits in spelling, usage, and punctuation, the IEP only generally indicated that the student had a "learning disability in the area of written expression" (Dist. Ex. 19 at p. 3).
Moreover, respondents were concerned that petitioner was unable to meet their daughter's reading needs, among others (Feb. 17, 2006 Tr. pp. 1333, 1365). The record shows that the student had previously received additional reading instruction from the petitioner twice weekly (Dist. Ex. 45 at p. 2; April 24, 2006 Tr. pp. 2119-21), and later received daily resource room services to address her reading deficits (Dist. Ex. 24; April 24, 2006 Tr. pp. 2122-23). Petitioner's staff confirmed that the student made minimal progress with each of these interventions (April 24, 2006 Tr. pp. 2124, 2172). The school psychologist, who evaluated the student in April 2005, reported that when "provided reading in a typical way [the student] is not learning the reading" (March 23, 2006 Tr. p. 1618). She further indicated that the student needed a multisensory approach to reading (March 23, 2006 Tr. p. 1618). Although the student's IEP indicated she would be provided a multisensory approach for all academic classes (Dist. Ex. 19 at p. 8), there is no discussion in the record as to how this approach would be incorporated into petitioner's balanced literacy program, which was identified as the program that would be used to instruct the student in reading (Nov. 18, 2005 Tr. p. 81). I note that the CSE Chairperson could not confirm whether petitioner's reading program was based on a multisensory approach (Nov. 18, 2005 Tr. pp. 82-83). Based on the foregoing, I agree with the impartial hearing officer's conclusion that petitioner failed to offer the student a FAPE for the 2005-06 school year.
Respondents have sustained their burden of proving that petitioner did not offer their daughter an appropriate program for the 2005-06 school year (Rowley, 458 U.S. at 206-07). Having found so, I will not address the parties' remaining contentions regarding the first criterion of the Burlington test.
With respect to the second criterion of the Burlington analysis, I must consider whether respondents met their burden of proving that Vincent Smith was appropriate to meet their 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.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ, 231 F.3d at 105).
Petitioner asserts that respondents have failed to establish the appropriateness of their daughter's unilateral placement at Vincent Smith during the 2005-06 school year. Petitioner alleges that Vincent Smith is not a state approved school and is not the student's LRE.
The student exhibits deficits in the areas of reading, written language and math skills (Dist. Ex. 2 at p. 2). She also has speech-language delays which may affect her ability to understand and follow directives, formulate oral and written sentences, and answer questions appropriately (Dist. Ex. 3 at p. 5). The student's lack of academic progress has reportedly had a negative impact on her self-esteem and emotional well being (Dist. Ex. 20).
The director of special education at Vincent Smith testified that Vincent Smith is a small private school for "reluctant learners" (May 25, 2006 Tr. p. 2523). The student population consists of approximately 85-90 students in grades five through twelve (May 25, 2006 Tr. pp. 2523-25). Approximately 95 percent of the students at Vincent Smith have IEPs (May 25, 2006 Tr. pp. 2524-25, 2552). For the 2005-06 school year, the student was enrolled in a class of six students (May 25, 2006 Tr. p. 2529, June 19, 2006 Tr. p. 2786). The student's teacher at Vincent Smith testified that within the first two weeks of school she informally assesses her students through reading with them, math work, and writing assignments (June 19, 2006 Tr. p. 2840). The student's reading skills were formally assessed at the beginning of the school year (May 25, 2006 Tr. p. 2493, June 19, 2006 Tr. p. 2788). Based on the student's scores, staff at Vincent Smith determined that the student would be instructed using the Wilson Method reading program (Wilson) (May 25, 2006 Tr. p. 2496).
The student's academic program included instruction in reading, written expression, spelling (May 25, 2006 Tr. p. 2528), math, English, social studies, and science (June 19, 2006 Tr. p. 2805). The student's classroom teacher at Vincent Smith characterized her class as very structured and very "individualized in curriculum" (June 19, 2006 Tr. p. 2806). She testified regarding numerous strategies which she employs to address the students' needs in subject areas, including: reading together as a class, highlighting important information in text, creating index cards for vocabulary words, using maps and graphic organizers, condensing material, summarizing material, and questioning students after reading short passages (June 19, 2006 Tr. p. 2806). The classroom teacher also uses social studies textbooks (June 19, 2006 Tr. p. 2818) which reportedly parallel the regular fifth and sixth grade curriculum, but were developed to accommodate lower reading levels (May 25, 2006 Tr. p. 2538).
The classroom teacher testified that if the student had difficulty comprehending information presented orally, she was given additional assistance to help her understand the information (June 19, 2006 Tr. p. 2797). When the student had difficulty following directions, the classroom teacher reported that she would break the directions down for the student (June 19, 2006 Tr. p. 2813). The classroom teacher also described strategies used to assist the student with writing skills (June 19, 2006 Tr. pp. 2816-18).
The reading teacher testified that, in addition to the reading instruction the student received in the classroom, she also received individualized instruction (June 19, 2006 Tr. pp. 2794, 2807). The reading teacher testified that the student did not have a basic foundation for reading when she entered Vincent Smith and that the Wilson program addresses the foundations of reading using a sequential, multisensory approach (May 25, 2006 Tr. pp. 2498-99). The reading teacher noted that the student did not have a "great memory" and that she needed the repetitiveness that was built into the Wilson program (May 25, 2006 Tr. p. 2497), which is a multisensory and prescriptive program (May 25, 2006 Tr. p. 2496). The reading teacher provided the student with individual reading instruction three times per week for 42-minute sessions (May 25, 2006 Tr. pp. 2500-01) using the Wilson Method (May 25, 2006 Tr. pp. 2496, 2536).
While attending Vincent Smith, the student also received speech-language services twice a week and counseling once a week (June 19, 2006 Tr. p. 2812). The speech-language therapy and counseling services were provided by petitioner (Nov. 4, 2005 Tr. p. 143). The director of special education at Vincent Smith testified that copies of student IEPs were made for the teachers and therapists to use (May 25, 2006 Tr. p. 2553).
Petitioner next argues that the student's placement is not appropriate because it is not the LRE. I am not persuaded by petitioner's argument. The record shows that the student has significant academic needs (Nov. 30, 2005 Tr. pp. 611-13, Feb. 24, 2006 Tr. p. 1100, May 31, 2006 Tr. pp. 2654-55) and requires intensive services to meet those needs (Dist. Ex. 19 at pp. 3, 8; Feb. 17, 2006 Tr. p. 1365). I note that had the June 16, 2005 IEP been implemented, the student would have received primary special education instruction in all subject areas (Dist. Ex. 18 at p. 1). Although Vincent Smith does not present the same opportunity for mainstreaming as a placement in petitioner's schools, I cannot conclude on that fact alone that it is inappropriate for the student. Based upon the information before me, I find that Vincent Smith offered an educational program which met the student's special education needs. Accordingly, I find that respondents have met their burden of proving that Vincent Smith was appropriate to meet their daughter's special education needs for the 2005-06 school year.
The final criterion for an award of tuition reimbursement is that respondents' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 416 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. August 9, 2006]; Frank G., 459 F.3d at 371). 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, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).
Additionally, reimbursement may be reduced or denied if parents fail to give appropriate notice of their removal of the child (20 U.S.C. § 1412[a]). Specifically, reimbursement may be reduced or denied if 1) at the most recent IEP meeting prior to removal of the child from public school, parents failed to inform the IEP team that they were rejecting the placement proposed, and stated their concerns and their intent to enroll the child in private school at public expense; or 2) 10 business days prior to the removal of the child from public school, parents failed to give written notice to the public agency informing it of their rejection of the placement proposed, and stating their concerns and intent to enroll the child in private school at public expense (id.; see e.g., Application of a Child with a Disability, Appeal No. 06-014). IDEA's statutory provision requiring parental notice prior to unilaterally placing their child in private school "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).
Petitioner asserts that equitable considerations do not weigh in favor of respondents because of their failure to comply with notice requirements or provide relevant information5 to petitioner's CSE, and their insistence on a private school placement. I have reviewed petitioner's arguments and uphold the impartial hearing officer's determination regarding equitable considerations. Petitioner's central argument is based on petitioner's assertion that respondents provided untimely notice of their intent to privately place their daughter at public expense. In light of respondents' communications of June 3, 7, and 8, 2005 regarding their intent to place their daughter at Vincent Smith at public expense (Dist. Exs. 14 at p. 3; 20; Parent Ex. N) (see Frank G., 459 F.3d at 376), as discussed herein, and the July 5, 2005 mediation (Parent Ex. Q), I see no reason to disturb the impartial hearing officer's decision.
Finally, the record does not afford me an adequate basis to make a determination regarding the cause(s) of various delays in the proceedings. I caution the impartial hearing officer to ensure that the reason for each adjournment is documented in the record (8 NYCRR 200.5[j][i] and [ii]). The impartial hearing officer determined that the length of the proceedings was not caused exclusively by respondents, but by the number of witnesses called by the parties. I need not modify the impartial hearing officer's determination in this regard; however, I remind the impartial hearing officer to limit unduly repetitious testimony to avoid unnecessarily lengthy impartial hearings (8 NYCRR 200.5[j][xii][d]).
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
December 13, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 In addition, respondents' pleadings do not conform with other requirements of the Regulations of the Commissioner of Education in the following ways: 1) the cross-appeal and answer do not reference the record on appeal (8 NYCRR 279.8[b]); 2) answer does not specifically deny the allegations of the petition (8 NYCRR 275.12); and 3) the cross-appeal does not clearly indicate the reasons for challenging the impartial hearing officer's decision, identifying the findings, conclusions and orders to which exceptions are taken nor does it briefly indicate what relief should be granted by the State Review Officer to the respondent (8 NYCRR 279.4[a]; Application of a Child with a Disability, Appeal No. 06-097).
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(8).
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 , Pub. L. No. 108-446, 118 Stat. 2647). The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA. Therefore, the provisions of the IDEA 2004 do not apply.
4 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, and unless otherwise specified, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
5 With regard to petitioner's allegation that respondents failed to provide it with relevant information, the record shows that respondents provided quarterly home schooling reports, voluntarily supplemented with private tutoring reports (Dec. 15, 2005 Tr. pp. 589, 669, 686-93, Dec. 16, 2005 Tr. p. 822). The record does not show that respondents withheld relevant information requested by petitioner. Further, at respondents' request, petitioner conducted educational, speech-language, and psychological evaluations in spring 2005, prior to the June 16, 2005 CSE meeting (Dist. Exs. 1, 2, 3, 4). Therefore, petitioner was in possession of the student's most current evaluative information at the time of the June 16, 2005 CSE meeting. Petitioner's argument is without merit.