02-036

         Petitioner, the Board of Education of the Springville-Griffith Institute Central School District, appeals from an impartial hearing officer's decision ordering it to reimburse respondents for tuition for their son's attendance at the Gow School (Gow) for the 2000-01 and 2001-02 school years. The appeal must be sustained in part.

        Respondents' son was 15 years old and a tenth grade student at Gow in South Wales, New York at the commencement of the hearing in January 2002. Gow is a college prepatory boarding school for boys who have language-based learning disabilities. It has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities.

        Petitioner classified respondents' son as speech impaired prior to his entry into kindergarten, and changed his classification to learning disabled at or about the time he began the fourth grade. He has been diagnosed with attention deficit hyperactivity disorder (ADHD) and Oppositional Defiant Disorder (ODD) and has educational, social, and emotional needs. The student has been described as frustrated, impulsive, distractible, and oppositional (Exhibit C-2). Further, he has had difficulty with certain reading and language skills, and written language (Exhibits F-15, F-17, F-19, F-22, F-28; Transcript pp. 232-33). There is no dispute about his classification.

        Respondents' son attended petitioner's schools through the end of the sixth grade in the 1997-98 school year. He received speech/language therapy, occupational therapy, and consultant teacher or resource room services while attending petitioner's schools. The student has also received private tutoring and psychological counseling to assist with his academic and psychological needs. He has taken Ritalin for ADHD for a number of years.

        A social worker and psychologist affiliated with the University at Buffalo, State University of New York evaluated the student in April 1998. The evaluation team reported that testing on the Wechsler Intelligence Scale for Children-3rd Edition (WISC-III) yielded a verbal IQ score of 88, a performance IQ score of 90, and a full scale IQ score of 87, indicating overall cognitive functioning in the average to low average range. The team reported that subtest scores suggested difficulties with visual attention to detail, impulsivity, auditory attention, and fine motor skills. The team reported that the student scored at least one standard deviation above the mean of children his age in behaviors relating to inattention, impulsivity, and hyperactivity. The team noted parental reports that the student frequently lost his temper, argued with adults, was defiant, easily annoyed, angry and resentful, and blamed others for his own mistakes. Based on parent and teacher responses to scoring instruments, the evaluating team reported that the student met the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria for ADHD, combined type, and ODD (Exhibit C-2).

        Respondents enrolled their son in St. Francis of Assisi Elementary School (St. Francis) for the seventh grade. That school closed and the student then attended St. Mary of the Lake School (St. Mary's) for eighth grade during the 1999-2000 school year. He attended summer programs at Gow in 1999 and 2000. Respondents enrolled him at Gow for the ninth grade at the beginning of the 2000-01 school year and for the tenth grade at the beginning of the 2001-02 school year.

        According to petitioner, respondents' son's record was accidentally made inactive on its computer system after the beginning of the 1998-99 school year (Transcript pp. 81, 102). As a result, petitioner's Committee on Special Education (CSE) did not contact respondents regarding their son's special education needs, schedule CSE meetings or evaluations, develop individualized education programs (IEPs), or provide them with a formal offer of placement for the student for the 1999-2000, 2000-01, and 2001-02 school years (Exhibit 30; Transcript pp. 51-53, 60, 64-65, 81-2, 101, 378, 381-83, 399; Petition at paragraphs 31, 32, 49). Petitioner's last IEP for respondents' son was for the 1998-99 school year when he was in the seventh grade (Exhibit 24). That IEP indicated that he put forth great effort to maintain passing grades but frequently became overwhelmed, and that his written language skills were adversely affected by deficits in the areas of spelling and grammar. The IEP characterized the student as distractible with resulting difficulties remaining on task. It provided for a resource room for one period a day to reinforce skills and to supervise the completion of written work. The IEP included goals and objectives relating to interpersonal and study skills and time and a half for the administration of tests (Exhibit 25).

        Petitioner's director of special education and pupil personnel services testified that she became aware that the student was in need of an annual review, a reevaluation, and a program recommendation for the 2001-02 school year when respondents' counsel contacted her on or about October 1, 2001 (Transcript pp. 58-59, 62, 64-65). In a letter dated October 2, 2001, petitioner sought consent from respondents to proceed with a reevaluation (Exhibit 30). Respondents returned the consent forms on or about November 6, 2001, and interviewing and testing for the triennial evaluations were completed by early January 2002. Petitioner did convene a CSE meeting on either October 30 or 31, 2001. However, the reevaluation had not been completed and the parent and the Gow representative did not attend (Exhibit 47). No recommendations were made at this meeting. At an annual review in February 2002, the CSE reportedly recommended a program for the balance of the 2001-02 school year (Answer paragraph 9). The IEP resulting from that meeting is not a part of the record.

        By letter dated October 10, 2001, respondents' counsel requested an impartial hearing and specified tuition reimbursement for the 1998-99, 1999-2000, 2000-01, and 2001-02 school years as a proposed resolution of the matter (Exhibit 32). The hearing commenced on January 7, 2002 and concluded on January 9, 2002. During the hearing, respondents indicated that they sought reimbursement for tuition for St. Francis, St. Mary's, and Gow during the 1998-99 through 2001-02 school years and for the 1999 and 2000 summer programs at Gow, as well as for the costs of certain counseling, tutoring, evaluations and school-related transportation. The hearing officer rendered her decision on March 18, 2002. She granted the request for tuition reimbursement at Gow for the 2000-01 and 2001-02 school years and denied respondents' other requests. Petitioner appeals from the award of tuition reimbursement for those two school years.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, 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 parent's claim (Sch. Comm. of Burlington v. Dep't. of Educ. of Mass, 471 U.S. 359 [1985]). The failure of a parent to select a program with certified teachers and known to be approved by the state in favor of an unapproved option which includes uncertified teachers is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; Application of a Child with a Disability, Appeal No. 02-025). The recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-008; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Procedural violations of the IDEA or inadequacies in the IEP which individually or cumulatively result in the loss of educational opportunity or which seriously infringe on a parent's participation in the creation or formulation of an IEP clearly constitute a failure by a board of education to comply with its obligation to provide a student with a free appropriate public education (FAPE) (Application of a Child with a Disability, Appeal No. 02-015; Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans v. Bd. of Educ., 930 F.Supp 83, 93 [S.D.N.Y. 1996]; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

        In accordance with the IDEA and Article 89 of the Education Law and their implementing regulations, petitioner was required to conduct an annual review by an IEP team (20 USC § 1414[d][4]; 8 NYCRR 200.4[f]; Application of a Child with a Disability, Appeal No. 01-065; Application of a Child with a Disability, Appeal No. 99-13). Because its last reevaluation was in May 1997, it was also obligated to conduct a reevaluation of the student and to consider the results of such reevaluation when it developed the student's IEP (20 USC § 1414[a][2][A]; 8 NYCRR 200.4[b][4]; Application of a Child with a Disability, Appeal No. 99-079). It was further required to have a written IEP in effect at the beginning of the 2000-01 school year (20 USC § 1414[d][2][A]; Application of the Bd. of Educ., Appeal No. 01-059; Application of a Child with a Disability, Appeal No. 00-095). Moreover, the IDEA emphasizes parent participation in the development and assessment of a child's educational program (Burlington, 471 U.S. at 368). A parent is a required member of the IEP team (20 USC § 1414[d][1][B]; Education Law § 4402[1][b][1][a][i]), and petitioner had an obligation to involve respondents meaningfully in the IEP development process (Application of a Child with a Disability, Appeal No. 00-074; Application of a Child with a Disability, Appeal No. 98-26).

        With respect to the 2000-01 school year, the CSE failed to conduct an annual review or a reevaluation, or to develop an IEP offering respondents' son an appropriate educational program for that school year. As a result, petitioner deprived respondents' son of educational opportunity and benefit for that school year and seriously infringed on respondents' right to participate in the development of an appropriate public school program for their child for the 2000-01 school year. Petitioner acknowledges that it failed to meet its burden of proof with respect to the 2000-01 school year (Petitioner's Brief p. 10).

        Similarly, with respect to the 2001-02 school year, it is undisputed that the CSE failed to do the following: conduct a reevaluation of respondents' son; undertake an annual review; and, with the participation of respondents, develop an IEP for their son prior to the commencement of the school year. These omissions deprived respondents' son of educational opportunity, and deprived respondents of their statutory right to meaningfully participate in the development of an IEP. Relying on a decision of the State Review Officer (SRO), petitioner argues that it had a right to cure the defects in the IEP, and that respondents' lack of cooperation prevented it from doing so for the 2001-02 school year (Petitioner's Brief p. 10). The SRO decision relied on by petitioner, Application of a Child with a Disability, Appeal No. 96-30, is not apposite. There, the SRO found that a board of education could cure an inadequate IEP by amending it at a duly constituted and scheduled subsequent CSE meeting held prior to the commencement of the relevant school year. Here, petitioner did not take any action to comply with its obligations to offer the student a FAPE until October 2001, weeks after the 2001-02 school year had begun (Exhibit 30). Further, an IEP for this school year was apparently not developed until some time in February 2002, or later (Answer paragraph 9). Accordingly, petitioner has failed to establish that it offered to provide an appropriate educational program to respondents' son for the 2001-02 school year.

        Respondents bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled their son during the 2000-01 and 2001-02 school years (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, respondents must show that Gow offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

        Gow is a college preparatory boarding school for boys in grades 9 through 12 who have a language-based learning disability (Transcript pp. 225, 291). Students live at the school during the regular school year (Transcript pp. 226-27, 249-50). At the time of the hearing, the school had 145 students and a teacher to student ratio of one to four (Transcript p. 228). Students attend academic classes six days a week and class sizes range from four to six students (Transcript pp. 228-29). The school day includes a 35-minute study hall as well as a 45-minute tutorial for individual help, homework, and research at the end of the day (Transcript pp. 228-29, 238, 257). Study skills are taught as part of class programming (Transcript p. 236). The program includes a daily reconstructive language class, which is a reading program based on the Orton-Gillingham instructional methodology (Transcript pp. 229-31, 239). The curriculum also includes subject area courses where class specific and generalizable study skills and learning strategies are taught (Transcript pp. 229, 236, 238-39, 241-42). The six day per week program includes daily, two-hour supervised evening study halls which provide students with access to, and assistance from, teachers and also help to keep them on task (Transcript pp. 236-37, 242, 257-58). The students reside in dormitories in small groups (Transcript p. 247). Faculty supervisors reside with them to facilitate compliance with school rules and to ensure appropriate student interaction (Transcript pp. 246-47).

        Respondents' son was a ninth grade student at Gow during the 2000-01 school year. He participated in its reconstructive language program, tutorials, structured study hall and other programs. The assistant headmaster, who was familiar with the student, testified that the school was appropriate for his educational, social, and emotional needs (Transcript p. 248). He also testified that the student's conduct had not interfered with educational or residential expectations (Transcript p. 240). Advisor reports indicate that respondents' son followed dormitory rules, got along well with other residents, and was respectful of dorm supervisors (Exhibits F-14, F-16, F-18, F-20). The assistant headmaster testified that the tutorials, study halls, teaching of study skills and learning strategies, very small classes, consistent scheduling, emphasis on repetition of materials, small group living and enforced dormitory rules helped the student, assisted his study skills, and improved his behavior and interaction with others (Transcript pp. 236, 238, 242-43, 246-47). The witness also testified that the reconstructive language program was appropriate to address the student's delayed reading rate and that he made improvement in that reading skill (Transcript pp. 231-33, 267).

        The student's reconstructive language class also addressed weaknesses in spelling and vocabulary. Narrative reports from that class show that while the student continued to have difficulty in these areas, he made progress over the course of the year, his overall progress was good, and his end of year grade was "C" (Exhibits F-28, F-13 p. 2, F-15 p. 1, F-17 p. 1, F-19 p. 1, F-22 p. 1). The reconstructive language class also included work and practice in oral reading skills, another area of difficulty for the student (Exhibits F-28, F-13 p. 2, F-15 p. 1, F-17 p. 1, F-19 p. 1, F-22 p. 1; Transcript p. 235). The student's English 9 class included work in written language, another area of weakness (Exhibits F-28, F-15 p. 2, F-17 p. 2, F-19 p. 2, F-22 p. 2). In that class, respondents' son showed significant improvement in the quality of his writing during the final marking period and on his final examination (Exhibit F-22 p. 2; Transcript p. 236). The student passed all his classes, which included environmental science, English 9, algebra I, global I, health and computer I. The program offered by Gow to respondents' son addressed the student's psychological and other special education needs including his frustration, impulsiveness, and distractibility, as well as his areas of weakness in oral reading, written language, and certain language skills.

        The student reenrolled at Gow at the beginning of the 2001-02 school year for the tenth grade and he continued to receive the special education instruction and services provided by that school. The hearing concluded in the middle of the school year, but the record does not contain standardized test results with respect to the student's progress. Grade and narrative reports for the first and second marking periods of that year, however, show second quarter improvement in four of the student's five major subjects, including reconstructive language and English, areas of weakness for respondents' son (Exhibits F-31, F-32, F-34, F-35, F-36, F-37, 38, J-31). In reconstructive language, the student showed improvement in spelling and vocabulary. In addition, his teacher helped him with organization and with remembering homework assignments. In English, he improved his grade, worked hard, had good work, worked to be more attentive, and showed improved efforts in doing homework. The student received final first semester grades of C+ in reconstructive language, C in English, D+ in global studies and biology, B in art, and C+ in algebra. Relevant narrative reports indicate that in areas where the student had difficulty, faculty was available to, and did, assist him. The assistant headmaster testified that the student was making slow and steady progress in his language skills at Gow, and that his behavior had improved (Transcript pp. 239-40). The evidence in the record establishes that Gow continued to provide the student with an appropriate program for the 2001-02 school year.

        Petitioner argues that Gow was inappropriate because the student received higher grades in fifth grade when he attended petitioner's schools, and his enrollment was inconsistent with the requirement that students be placed in the LRE appropriate to their needs (34 CFR 300.550[b]; 8 NYCRR 200.6 and 200.1[cc]). There is, however, no evidence that the grading system in the two schools can be meaningfully compared, or that the student should have had the same degree of difficulty with sixth grade material as with that in the ninth and tenth grades. Although the LRE requirement applies to unilateral parental placements (M.S., 231 F.3d at 105), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]). As indicated above, Gow is exclusively a boarding school during the regular school year and its extended day, six days per week, consistent, repetitive, small class program is appropriate for the student's special education needs. The record does not show that there was an alternative day program that would have been appropriate for the student and accessible to respondents. Therefore, the student's placement at Gow was consistent with LRE considerations (Application of a Child with a Disability, Appeal No. 97-20; Application of a Child with a Disability and of the Bd. of Educ., Appeal No. 96-21 & 96-23). Accordingly, respondents have established that Gow provided an appropriate program for their son for the 2000-01 and 2001-02 school years.

        The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. Petitioner challenges the hearing officer's determination that the equities favored respondents. With respect to the 2000-01 school year, it argues that the timing of respondents' request precludes a tuition reimbursement award. Specifically, petitioner asserts that the timing of respondents' October 10, 2001 letter requesting tuition reimbursement (Exhibit 32) precluded it from curing its errors with respect to the 2000-01 school year, and that respondents should have requested a hearing earlier. Petitioner argues that respondents received due process notices with respect to the student's IEP for the 1998-99 school year as well as earlier notices, and that they were therefore aware of their right to a hearing and should have made their tuition reimbursement request prior to the end of the 2000-01 school year. Respondents assert that they did not receive any CSE related correspondence or due process notices from petitioner with respect to the 2000-01 school year, or at any time subsequent to the 1998-99 school year until October 2001. Respondents further argue that the due process notices themselves are not in the record.

        Generally, parents must request a hearing in which they seek tuition reimbursement within the school year for which reimbursement is sought (Application of the Bd. of Educ., Appeal No. 96-17; Application of a Child with a Disability, 95-77; See Phillips v. Bd. of Educ., 949 F. Supp. 1108, 1113-14 [S.D.N.Y. 1990]). With regard to claims for tuition reimbursement for previous school years, parents must promptly invoke the due process procedures of the IDEA and Article 89 of the Education Law so that school authorities have an opportunity to correct mistakes or omissions in providing children with a FAPE (Bernardsville Bd. of Educ. v. J.H., 42 F.3d. 149, 158 [3rd Cir. 1994]; Application of a Child with a Disability, Appeal No. 02-006). Generally, parents will not be reimbursed for educational expenses for previous school years unless the record indicates that they had not received timely notice of their right to a hearing (Application of a Child with a Disability, Appeal No. 02-006; Application of a Child with a Disability, Appeal No. 01-087; Application of a Child with a Disability, 01-019).

        The student's mother testified that respondents had in the past received correspondence from petitioner and/or its CSE regarding her son, and that most of that correspondence had included due process notices (Transcript p. 349). The record includes numerous letters to respondents in 1991, 1996, 1997, and 1998 referencing due process enclosures (Exhibits 18, 24, 28, 29, H-4, B-19). As a result of her admitted receipt of such notices, including one as recently as September 1998, respondent mother testified that she was aware of her right to request a hearing (Transcript pp. 351-52, 387). Petitioner's director of special education also testified that she sent respondents due process notices in April and August of 1998 (Transcript pp. 67-69), and this testimony was unrebutted. Based on the correspondence in the record referencing due process enclosures, respondents' admissions that they had previously received certain due process notices, and the admission that they were aware of their right to a hearing, I conclude that respondents were aware of their right to a hearing when petitioner failed to comply with its obligations under the IDEA with respect to the 2000-01 school year (Application of a Child with a Disability, Appeal No. 01-087; Application of a Child with a Disability, Appeal No. 97-11; Application of the Bd. of Educ., Appeal No. 96-12). Importantly, respondents' failure to request a hearing with respect to that school year until October 2001, months after it was over, precluded petitioner from correcting its errors and omissions for that year. Contrary to the determination of the hearing officer, I therefore find that equitable considerations do not support respondents' claim for tuition reimbursement for the 2000-01 school year.

        The remaining issue is whether equitable considerations support respondents' claim for tuition reimbursement for the 2001-02 school year. Petitioner argues that respondents' claim is not supported by equitable considerations because they allegedly failed to cooperate with its CSE. It asserts that when its director of special education discovered on or about October 1, 2001 that the CSE had failed to conduct an annual review of the student since June 1998, the director sought to have a triennial evaluation performed and to have a CSE meeting with respondents. Respondents allegedly did not cooperate with petitioner in arranging to have the student evaluated, and their attorney advised them not to communicate directly with the school district until after the due process hearing he had requested on October 10, 2001 was completed (Exhibit 35). Petitioner also alleges that respondents thwarted the director of special education's attempt to more promptly schedule a CSE meeting.

        Unlike the situation during the 2000-01 school year, respondents did request a hearing during the 2001-02 school year. Their request was submitted on October 10, 2001, early in the school year. The record contains no information that respondents in any way interfered with petitioner's ability to have an IEP in place at the beginning of the school year, as it was required to do. In the absence of such a showing, I find that respondents are not barred by equitable considerations from an award of tuition reimbursement for the 2001-02 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it awarded tuition reimbursement for the 2000-01 school year.