02-059

        Petitioners appeal from an impartial hearing officer's determination that equitable considerations do not support their request for reimbursement for the cost of their son's tuition at the Robert Louis Stevenson School (RLS) for the 2001-02 school year. Respondent cross-appeals from the hearing officer's determination that it failed to offer to provide an appropriate educational program to the student. The appeal must be sustained. The cross-appeal must be dismissed.

        When the hearing began on March 13, 2002, the student was 14 years old and in the ninth grade at RLS. RLS has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. In November 2001, the student was classified by respondent's Committee on Special Education (CSE) as learning disabled (LD), and there is no dispute about his classification. His measured intelligence is in the average range, but there is a significant discrepancy between his verbal and his performance IQ scores (Exhibit 5). He has identified deficits in math, reading comprehension and writing, in addition to emotional difficulties that interfere with his learning.

        From pre-kindergarten through eighth grade, the student attended the Brooklyn Friends School (BFS), a private Quaker school with small classes (Transcript April19, 2002 pp. 98, 113, 157). In second grade, he experienced social and academic difficulties in school, was oppositional at home, and began seeing a psychotherapist (Exhibit 2; Transcript April 19, 2002 pp. 98-99). A psychological evaluation in third grade revealed that he had a verbal IQ of 129 and performance IQ of 110. He was found to have deficits in math and reading comprehension and poor writing skills. The evaluator concluded that the student's emotional concerns interfered with his ability to pay attention and undermined his performance (Exhibit 2). The student continued with psychotherapy and was treated with psychostimulant and antidepressant medication, which did not prove helpful (Exhibit 5; Transcript pp. 100, 102).

        By fifth grade, the student reportedly refused to do homework, lied about his work and was caught shoplifting (Exhibit 5). By letter dated April 4, 2001, toward the end of the student's eighth grade year, BFS informed his parents that it would not invite him back for high school because his behavior did not meet expectations (Exhibits 3, 4; Transcript April19, 2002 pp. 101, 103). After receiving the letter from BFS, the student's parents began to search for an appropriate program for their son (Transcript April 19, 2002 pp. 103-05). His father testified that he visited at least three public schools, but that some were already full and others were too large for his son (Transcript April 19, 2002 pp. 105-06, 116).

        Upon a recommendation from the student's psychotherapist, his parents obtained an evaluation by a neuropsychologist. Her June 12, 2001 report indicated a verbal IQ score of 113, a performance IQ score of 90 and a full scale IQ score of 102 on the Weschler Intelligence Scale for Children – III (WISC-III). The student's most significant identified weakness was in arithmetic, and he had extremely poor handwriting. Further, the neuropsychologist noted that the student was depressed and angry, and seemed tired, pale and listless. She described him as "profoundly disengaged and resigned to a … chronic, empty state." She stated that his examination revealed "difficulties consonant with mild involvement of the parietal lobes" (Exhibit 5). The neuropsychologist opined that the student required a challenging program that would address his academic weaknesses and his emotional needs while providing a firm structure that would hold him accountable for his school behavior "[with] support and confrontation integrated into all aspects of the program…." She specifically recommended RLS as an appropriate school (Exhibit 5; Transcript April 19, 2002 pp. 102, 113).

        The record indicates that the parents requested information from RLS in May or June 2001 and later went to visit the school (Transcript April 19, 2002 p. 114). The parents made a tuition payment to RLS on September 4, and their son started school there on or about September 5, 2001 (Exhibit 31). On September 20, 2001, the parents retained an educational advocate, and on September 21, 2001, they requested that respondent's CSE conduct an evaluation of their son to determine whether he might need special education services (Exhibit 7; Transcript April 19, 2002 pp. 147-48).

        Respondent's CSE scheduled its initial review for November 8, but the meeting was rescheduled at the parents' request to November 19, 2001 (Exhibits 18, 19). At the meeting, the CSE reviewed a physical examination, a social history, an educational evaluation, a vocational assessment, a psychological evaluation, and a classroom observation of the child (Exhibits 10-14, 17). The student's parents made the June 12, 2001 independent neuropsychological exam available as well (Exhibit 22). There was also a note submitted by the headmaster from RLS, stating that the student was making a good adjustment (Exhibit 20). The CSE classified the student as learning disabled and developed an individualized education program (IEP) that provided for general education with five periods per week of direct special education teacher support services (SETSS) and one period of indirect SETSS (Exhibits 23, 24, 29; Transcript March 13, 2002 pp. 94-95). Of the five periods a week of direct SETSS, two periods would be in the classroom, and three periods a week would be held in a separate location with a maximum of eight students (Transcript March 13, 2002 pp. 89-90, 94). The IEP also provided that he would receive group counseling once per week for 30 minutes and certain academic modifications (Exhibits 23, 24; Transcript March 13, 2002 pp. 96-97). The parents visited the proposed school, Lafayette High School, on December 11, 2001 and requested an impartial hearing on December 17, 2001 (Exhibit 1A; Transcript April 19, 2002 pp. 149, 153).

        The hearing was held on March 13, April 11 and April 19, 2002. In her May 8, 2002 decision, the hearing officer ruled that the district failed to offer an appropriate program to the student, because its recommendation regarding the direct and indirect SETSS services was "unclear and confusing." She did not address whether the parents' unilateral placement of the child at RLS was appropriate, but concluded that equitable considerations did not support the parents' claim for tuition reimbursement because their actions in bringing the claim were unfair. She found that the parents never had an intention of placing their child in the public school recommended by the CSE, that they unduly delayed contacting the CSE until after they had enrolled their son at RLS and met with their attorneys, and that their agreement to forego tuition repayment from RLS should their son leave the school indicated they meant to keep their son in the private school for the entire academic year, regardless of the CSE's recommendation.

        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 (Burlington Sch. Comm. v. Dep't. of Educ., 471 U.S. 359 [1985]). The parent's failure to select a program approved by the state in favor of an unapproved option 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 with a Disability, Appeal No. 95-57; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]).

        To meet its burden of demonstrating that it offered to provide a free appropriate public education (FAPE) to a student, the board of education must show that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and that the IEP its CSE developed is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). 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 Suspected of Having a Disability, Appeal No. 93-9).

        The hearing officer ruled that respondent's program was inappropriate because the SETSS program it offered to provide was confusing and unclear and, therefore, the parents were unable to make a reasoned decision regarding their agreement or disagreement with the program. Respondent's assistant principal testified that there was indeed a conflict on the IEP, and that the two periods of direct SETTS to take place in the classroom should have been counted as indirect services because direct services had to take place in a separate location (Transcript April 11, 2002 p. 80). I do not agree that the 2001-02 IEP was confusing with respect to the SETSS services, because the evidence provided an adequate description of the manner in which the direct and indirect services would be provided (Exhibit 29). However, I find that the IEP failed to adequately identify the student's emotional and behavioral needs, and failed to provide an appropriate program to address those needs (Exhibit 23).

        The June 12, 2001 neuropsychological evaluation provided comprehensive information regarding the student's emotional needs and the manner in which they interfered with his academic performance (Exhibit 5). Respondent's school psychologist had reviewed the earlier psychological evaluation from third grade, which also documented the adverse effect of the student's emotional needs on his performance (Exhibits 14, 2). Yet the 2001-02 IEP contained no discussion of emotional factors in the "present performance" section of the IEP (Exhibit 23) (see 8 NYCRR 200.4[d][2][i] and 200.1[ww][3][i]). Under a special heading designated "social/emotional performance," the IEP mentioned the student's acting-out and oppositional behavior, but the same section indicated that his "behavior does not seriously interfere with instruction" and noted that his behavior could be addressed by the general education and special education teacher. This information was inconsistent with the testimony of respondent's educational evaluator who stated she did not know how a general education teacher would find the time to address interfering behaviors of the student (Transcript March 13, 2002 p. 88).

        The CSE did not provide a program that adequately addressed the student's emotional/behavioral needs. The neuropsychologist who evaluated the student maintained that the student needed to be held accountable for his behavior in a continuous, ongoing way, with both support and confrontation integrated into every aspect of his program. She opined that, without the benefit of a therapeutic program, the student was at serious risk of substance abuse and dropping out. She recommended a small self-contained special education setting for adolescents with emotional difficulties and mild learning disabilities. She testified that she did not think the student could receive an adequate education in a mainstream setting of 2500 students and a classroom of 34 students, even with services like the SETSS program respondent's CSE had recommended (Exhibit 5; Transcript April 19, 2002 pp. 131-35).

        Further, respondent's assistant principal testified that general education teachers are asked not to slow the delivery of instruction because all the students need to be prepared to take Regents examinations (Transcript April 11, 2002 p. 58). Given that policy, the teachers would not have been able to address the student's tendency to "space out" and work slowly in math and reading comprehension (Exhibit 17; Transcript March 13, 2002 p. 105). My review of the record leads me to agree that a therapeutic environment with small class size was vital to the student's psychological well being and academic success. In any event, the student's emotional needs warranted more than the related service of group counseling once a week for 30 minutes that was provided in the 2001-02 IEP (Exhibit 23).

        Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the student during the 2001-02 school year, the burden shifts to petitioners to prove that the services provided to the student by RLS during that year were appropriate (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). The private school need not employ certified special education teachers or 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). Additionally, students with disabilities must be educated in the LRE (Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. § 1412[a][5]). 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. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]).

        The hearing officer did not decide whether the program at RLS was appropriate, but it is clear that the program at RLS was meeting the student's needs. The record indicates that the student had what were suspected to be neurologically driven problems in math, reading comprehension and writing, in addition to emotional concerns that needed to be addressed in a smaller setting in a therapeutic environment (Transcript April 19, 2002 pp. 127-131). The neuropsychologist testified that the student needed to be in a program where teachers and staff are skilled in managing adolescents who are, as she described him, "expert at identifying cracks [to] slip through," and where each teacher would confront him in a firm manner "in the context of an ongoing fairly intense relationship with him" (Transcript April 19, 2002 p. 129).

        The headmaster of RLS testified that it is a college preparatory school for bright adolescents who have not succeeded in regular schools. Most of the students have emotional problems, and many have mild cognitive difficulties as well (Transcript April 19, 2002 p. 181-82). Approximately half of the students are classified as students with disabilities, and an average class contains nine students (Transcript April 19, 2002 pp. 182, 190-91). The teachers, some of whom are certified special education teachers, are trained to intervene every time a student behaves in a way that is not constructive (Transcript April 19, 2002 pp. 183, 192). The headmaster explained that the student received a great deal of attention during the 2001-02 school year in math because he was in a class with only eight students, and he also received individual tutoring during a period called student prep (Transcript April 19, 2002 p. 185). In addition, the student met two or three times a day with an advisor (Transcript April 19, 2002 p. 198). While the advisors are not therapists, there are two clinical psychologists on the school staff (Transcript April 19, 2002 pp. 200-01).

        The student's father testified that his son seemed to be happier at RLS and had begun to take pride in his appearance. He stated that his son received help with his homework every day at RLS, which relieved the parents of struggling with him at home in the evening (Transcript April 19, 2002 pp. 109-110). His mother also testified that her son's attitude had changed for the better, since he could grasp the material, finish most of his homework at school and did not feel overwhelmed (Transcript April 19, 2002 pp. 167-68). A comparison of the student's report cards from BFS (Exhibit 6) and RLS (Exhibit D) indicates that the student was successful at RLS. He was reported to have made the honor roll on November 10, 2001 (Exhibit 23).

        Respondent argues that petitioners have not met their burden of demonstrating that the program at RLS addressed the student's needs in the LRE. While the record indicted that one half of the students were classified as students with disabilities, the remainder of the students were general education students. In addition, it was well documented that the student needed individualized attention from adults who were trained in behavior interventions. Given the student's deficits in math and writing and the nature of his emotional needs, I conclude that the program at RLS was appropriate. It provided math instruction in a small group and additional tutoring in math, as well and three sessions a day with an advisor to help him with organization and to hold him accountable for his behavior. Under the circumstances, I find that respondent has satisfied the LRE requirement and petitioners have met their burden of proving that the services provided by RLS met the student's educational needs during the 2001-02 school year.

        The third criterion for an award of tuition reimbursement is that the parents' claim is supported by equitable considerations. Such considerations may include the reasonableness of the parties' positions, and their compliance with state and federal regulations (Burlington, 471 U.S. at 369; 20 U.S.C. §1412[a][10][C]). There is no indication in the record that petitioners failed to cooperate with the CSE. The parents consented to evaluations and made their independent evaluation available to respondent. While the testimony indicated that the student never attended public school or received public services (Transcript April 11, 2002 p. 21, Transcript April 19, 2002 p. 115), this does not preclude reimbursement of tuition (Application of a Child with a Disability, Appeal No. 01-079).

        An additional consideration in determining parents' entitlement to reimbursement is the extent of their efforts to seek other alternatives before placing their child at a private school (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F. 2d 1153 [5th Cir. 1986]). Here, the hearing officer found the parents had no intention of enrolling their child in a public school. However, I find credible the student's mother's testimony that she was willing to consider a smaller public school and that she had worked with a consultant who knew the public schools (Exhibit 11; Transcript April 19, 2002 pp. 160-61). She testified that her son spent one day visiting a public school in the spring of 2001 and that she had applied for admission to that school before deciding against sending him there (Transcript April 19, 2002 pp. 164, 179). The father testified that he was not opposed to his son attending a public school (Transcript April 19, 2002 p. 154).

        Respondent argues that petitioners should not have waited until after enrolling their son in private school before requesting a CSE evaluation. The student's parents had only learned that their son was learning disabled in the June 12, 2001 report of the neuropsychologist, and were only informed about the possibility of tuition reimbursement in May or June by the headmaster of RLS (Exhibit 5; Transcript April 19, 2002 pp. 102, 107, 113-14). When questioned as to why he waited until September to request an evaluation of his son, the student's father responded that he did not know (Transcript April 19, 2002 pp. 118, 120, 154).

        While it would have been preferable for the parents to contact the CSE over the summer rather than waiting to request a CSE evaluation three or four months later in September, I note that a parent's failure to refer a child to the CSE before entering into a contract with the private school does not necessarily form the basis for a denial of reimbursement, especially when the parents initiated the contact with the district (Application of a Child with a Disability, Appeal No. 97-44; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 271 [N.D.N.Y. 2001]).¹ Moreover, a parent's preference for a private school placement is not dispositive of a claim for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 01-068; Application of the Bd. of Educ., Appeal No. 00-025). Additionally, the parents should not be penalized for the public school's failure to identify the student as having a disability, in light of the respondent's "child-find" responsibilities (20 U.S.C. § 1412[a][3][A] and [B]; Wolfe, 167 F.Supp.2d 271 [N.D.N.Y. 2001]).

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that equitable considerations did not support petitioners' claim for tuition reimbursement; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at RLS for the 2001-02 school year.