02-092

       Petitioner appeals from an impartial hearing officer's decision denying his request to be reimbursed for the cost of his son's tuition at the Family Foundation School for the 2001-02 and 2002-03 school years and the cost of an independent educational evaluation (IEE). The appeal must be sustained in part.

        At the time of the hearing, petitioner's son was 15 years old, and was in the ninth grade at the Family Foundation School (Family School) located in Hancock, New York. The Family School is a residential program for students who have difficulty with substance abuse. It is not approved by the New York State Education Department to contract with school districts for the education of students with disabilities (Transcript p. 18).

        The student has been classified as having an emotional disturbance by respondent's Committee on Special Education (CSE). His classification is not in dispute. He has a psychiatric history, which was first documented in May 1999 through an emergency admission to a hospital psychiatric unit (Exhibit 18). The student was diagnosed as having major depression on June 1, 1999 (Exhibit JJJ). He received counseling and underwent a series of trial medications, and was treated at Four Winds Hospital in June 1999 and again in May 2001 (Exhibits 18, A). Clinical diagnoses of depressive disorder not otherwise specified (NOS), anxiety disorder NOS, mixed disturbance of emotion and conduct, and mood disorder NOS were suggested as a result of these admissions (Exhibits 18, A).

        During the 2000-01 school year when he was in the ninth grade at respondent's Brewster High School, the student experienced a significant number of absences related to physical symptoms which were believed to be manifestations of anxiety and depression (Exhibits 18, B, C, F). He was suspended for truancy in May 2001 and June 2001 (Exhibits 18, E, G). In the fall of 2001, the student's high rate of nonattendance continued, and he was suspended from school for smoking, inappropriate language, cutting classes and truancy (Exhibits 18, I, J, K, L, M, N). The student's grades began to deteriorate as a result of his many absences. In January 2002, the student participated in an outpatient program for substance abuse, but left the program after three weeks (Exhibits 14, 18). The student's excessive absences resulted in both petitioner and respondent seeking a Family Court order adjudicating the student a person in need of supervision (PINS) (Family Court Act § 732). Petitioner's son was ultimately adjudicated a PINS by order of the Putnam County Family Court entered March 12, 2002 (Exhibit EE). The student did not return to Brewster High School following his suspension in November 2001 (Exhibit EE).

        Petitioner referred his son to respondent's CSE on November 29, 2001 (Exhibits 18, EEE). The CSE conducted its initial review on February 13, 2002, when it deferred making a recommendation as to classification pending receipt of information from the student's psychiatrist. It did recommend that the student receive ten hours per week of home instruction to reduce the loss of school time (Exhibits 1, X). On February 27, 2002, the CSE recommended classification as emotionally disturbed. It also recommended that the student be placed in a special education program with an 8:1+1 pupil to adult ratio and that he receive 30 minutes of individual and 30 minutes of group counseling each week. The CSE did not recommend a specific placement, but noted that packets of information about the student had been sent to the appropriate Board of Cooperative Educational Services (BOCES) programs (Exhibits 2, BB).

        Prior to the next CSE meeting on March 21, 2002, respondent's Special Education Administrator discussed the student with an administrator of West Prep, a day treatment program located at Westchester Medical Center. West Prep is a combination of a high school and a clinical treatment program for high school students who have a combination of drug and alcohol dependence and mental health problems that interfere with their ability to attend regular schools (Transcript p. 378). West Prep maintains a census of 18 to 24 students ranging in age from 14 to 19 (Transcript p. 378). The educational component of West Prep is provided by the Southern Western BOCES (Transcript p. 378). The medical director of West Prep testified that the average class size is five to six students and the combined clinical and BOCES teaching staff resulted in a student to staff ratio of approximately 2:1 (Transcript pp. 385-86).

        Respondent's special education administrator was advised that West Prep could have a program available to help petitioner's son (Transcript pp. 357-58). On March 21, 2002, the CSE again recommended an 8:1+1 self-contained program, with 30 minutes each of individual and group counseling, and proposed West Prep as an appropriate placement. It noted on the student's individualized education program (IEP) that the student should continue to receive home instruction pending his acceptance into West Prep (Exhibit 3). On or about March 26, 2002, petitioner and his son went to West Prep for an intake interview (Transcript p. 1050). By letter dated March 28, 2002, respondent's special education administrator notified petitioner that his son had been accepted for admission at West Prep effective April 4, 2002 (Exhibit 11).

        Petitioner did not accept the CSE's recommended educational placement. Indeed, in a letter dated March 14, 2002, one week before the CSE recommended placement at West Prep, petitioner requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for his unilateral placement of his son in the Family School. He sought tuition reimbursement for both the 2001-02 and 2002-03 school years, as well as reimbursement for an IEE (Exhibit IHO 2). On June 12, 2002, the CSE recommended that the student attend West Prep for the 2002-03 school year (Exhibit 16).

        The hearing commenced on April 24, 2002, and concluded on June 25, 2002. In a decision dated August 20, 2002, the hearing officer found that respondent had provided the student with a free appropriate public education (FAPE), and therefore denied petitioner's request for tuition reimbursement. The hearing officer further found that petitioner was not entitled to reimbursement for the IEE, and she denied petitioner's request for compensatory education for his son.

        Petitioner contends that respondent violated its child find obligations under the Individuals with Disabilities Education Act (IDEA). The IDEA requires states to identify, locate and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412 [a][3]; 34 C.F.R. § 300.125 [a][1][i]). The child find provision applies to "children who are suspected of being a child with a disability … and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125 [a][2][ii]). "[T]he child-find duty 'is triggered when the [state or LEA] has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability' " (Department of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp.2d 1190, 1194 [D. Hawaii 2001] quoting Corpus Christi Indep. Sch. Dist., 31 IDELR ¶ 41, at 158, No. 105-SE-1298 [Jan. 19, 1999]).

        Compensatory education, i.e., special education services provided to a student after he or she is no longer eligible because of age to receive such services, is a permissible remedy under the IDEA when the student has been excluded from school or denied appropriate educational services for an extended period of time (Mrs. C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749 [8th Cir. 1986]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

        The record reveals that this student was successful in school through the eighth grade (Exhibit 9). The student's attendance and grades began to decline in the spring of 2001 (Exhibits 9, 10, B, C, D, F, H, U; Transcript p. 217). During the period of decline in attendance, respondent's social worker was in contact with petitioner. Petitioner indicated that the student's emotional difficulties were manifested by physical complaints, and he advised the social worker that he was taking his son to a medical doctor to rule out any medical problems that may have been causing his frequent absences (Transcript p. 257). A student's failure to perform academically because of absence from school does not per se afford a basis to suspect that the student has a disability (Application of a Child Suspected of Having a Disability, Appeal No. 01-082). Given the student's prior academic history and petitioner's provision of medical excuses for the student's frequent absences, I find respondent did not have sufficient reason to suspect that special education services were needed and did not deny petitioner's son appropriate educational services for an extended period of time. Because petitioner's son is still eligible for services under the IDEA and respondent did not violate the child find provision of the IDEA, petitioner is not entitled to an award of compensatory education.

        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 (School Comm. of Burlington v. Department of Educ. of Mass., 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. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        The purpose behind the IDEA is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400 [d][1][A]; see, Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). 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 student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see, Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]).

        The student's recommended program must also be provided in the least restrictive environment (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 (20 U.S.C. § 1414 [d]; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        The initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Heather S. v. State Of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; Pascarella, 153 F. Supp.2d at 153; see also, Pawlet Sch. Dist., 224 F.3d at 69-70 [holding relief warranted only when the procedural violation resulted in a denial of FAPE]).

        Petitioner first asserts that respondent failed to timely recommend an IEP for his son because his son allegedly should have been evaluated by the CSE pursuant to 8 NYCRR 201.5 and 201.6 when he was the subject of disciplinary action on December 19 and December 20, 2001. Petitioner claims that his son should have been a student presumed to have a disability for discipline purposes pursuant to 8 NYCRR 201.5, and therefore respondent was required to initiate an expedited evaluation (8 NYCRR 201.6). In the alternative, petitioner contends the IEP was still untimely pursuant to 8 NYCRR 200.4 (d). Petitioner also asserts that respondent failed to include a special education teacher from respondent's recommended placement in accordance with state regulations (8 NYCRR 200.14 [d]). The issues of respondent's alleged failure to timely recommend an IEP for petitioner's son and the absence of a special education teacher from West Prep were not raised at the hearing, and are therefore not properly raised in this appeal. Moreover, there is no record upon which these issues could be decided (Application of a Child with a Disability, Appeal No. 01-038).

        Petitioner further asserts that the CSE violated his procedural rights under federal and state law by improperly delegating its responsibility to recommend an appropriate educational placement decision to West Prep. The record does not support petitioner's assertion of a procedural violation. At its March 21, 2002 meeting, the CSE determined that West Prep was an appropriate placement, but it acknowledged that the student would need home instruction pending his intake interview at West Prep. Petitioner participated in the March 21, 2002 CSE meeting wherein placement at West Prep was discussed. In this instance, petitioner had already decided to place his son in the Family School and seek an award of tuition reimbursement before the CSE met on March 21, 2002. West Prep promptly indicated that it would in fact accept the student. Assuming arguendo that petitioner has raised a meritorious procedural violation, I find that petitioner's claim of improper delegation of authority cannot rise to the level of either a loss of educational opportunity or infringement upon petitioner's right to participate in the IEP process.

        Finally, petitioner contends that the additional parent member of respondent's CSE required by section 4402 (b)(1)(a)(viii) of the Education Law was not present at the CSE meetings held February 13, February 27, and March 21, 2002 (Exhibits 1, 2, 3). I note the hearing officer did not address this issue, although it was raised at the hearing (Transcript p. 33). It is undisputed that the additional parent member was not present at those meetings (Exhibits 1, 2, 3). When petitioner arrived at the CSE meeting, he was informed by respondent that there would not be an additional parent member in attendance. He was asked to sign a form acknowledging that the member was not present and that he still wished to proceed with the meeting, retaining all his due process rights (Exhibit AAA).

        The IDEA sets forth minimum procedural safeguards each school district must provide to eligible students with disabilities (20 U.S.C. § 1415). The New York State Legislature, in Article 89 of the Education Law, provides for special education in a manner consistent with the IDEA and confers additional procedural protections. One of those procedural protections is the requirement of an additional parent member of the CSE (Education Law § 4402 [1][b][1][a][viii]; see also, 8 NYCRR 200.3 [a][1][viii]). The statute and accompanying regulation require that the additional parent member be present at the CSE meeting. This section was amended in 1999 to provide a single scenario by which the additional parent member may be excluded: "such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting" (Education Law § 4402 [1][b][1][a][viii]; 8 NYCRR 200.3 [a][1][viii]).

        The additional parent member is not a required member of the IEP Team under the IDEA (20 U.S.C. § 1414 [d][1][B]). The New York State Legislature could have amended Article 89 to eliminate the requirement of the parent member when it amended the relevant statutory provision in 1999. Instead, the Legislature in 1999 reaffirmed its mandate to have the additional parent member participate in the CSE process, by delineating the limited circumstance when the additional parent member need not participate. As is the case in other states, New York "lawmakers have built upon the federal floor created by the [IDEA] and have decided to provide the [disabled] children, within the state, with a level of educational services that surpasses the national minimum" (In Re Conklin, 946 F.2d 306, 318 [4th Cir. 1991][recognizing the distinction between federal and state education standards]; see also, Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982-83 [4th Cir. 1990][holding North Carolina statute created a broader definition of related services than that required by [the IDEA]).

        At each of the three CSE meetings, respondent did not have an additional parent member present and gave petitioner a form to sign waiving the non-participation of the additional parent member. Each time, petitioner altered respondent's form to indicate that he had not affirmatively requested the absence of the required member (Exhibit AAA). Petitioner's decision to participate in each CSE meeting with the knowledge that the additional parent member would not be in attendance does not constitute an affirmative request to exclude the additional parent member within the meaning of the regulation (Application of a Child with a Disability, Appeal No. 01-096). Accordingly, the CSE was improperly composed and respondent violated petitioner's procedural rights under Article 89 of the Education Law.

        An IEP must meet "the requirements of state law if the state requires a level of substantive benefit greater than that required under federal law" (Burke County Bd. of Educ., 895 F.2d at 982-83). Although the lack of the additional parent member may not have violated the IDEA, the failure to include the additional parent member in the instant case is a clear violation of New York State law. It is well settled under previous decisions of the State Review Officer that an IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of proving that its recommended program was appropriate (Application of a Child with a Disability, Appeal No. 02-013; Application of a Child with a Disability, Appeal No. 01-096).

        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, I must now consider whether petitioner has met his burden of proving that the services provided to the student by the Family School during that school year were appropriate (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent must show that the private school provided services that were proper under the IDEA to the student (Burlington, 471 U.S. at 370). 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. 94-20).

        The record shows that during the 2001-02 school year, petitioner's son manifested some weakness in processing speed, planning and organization (Exhibits 5, T). However, his major difficulties were emotional in nature, and involved the following: poor relationships with peers and adults, lack of control of his emotions, lack of a good self-concept, and substance abuse as a coping mechanism (Exhibit 15). Since May 1999, the student had been admitted to psychiatric facilities on three occasions, had been diagnosed with a number of psychiatric disorders, and had undergone a series of medication trials to address his anxiety and depression (Exhibits 18, A, HHH, JJJ). He had been under the care of a psychotherapist, and he required continued individual, group and family therapy, as well as psychiatric oversight of his medication.

        At the hearing, the representative of the Family School testified that a psychologist comes to the school for approximately one week each month to evaluate new students. If the psychologist determines that a student is not appropriate for the Family School because of serious psychiatric problems, referral to another program is considered (Transcript p. 905). The student was evaluated by this psychologist approximately one month after enrollment and was diagnosed as having oppositional defiant disorder, opiate use, and substance abuse (Transcript p. 906). It was the Family School's position that the student did not have serious psychiatric problems (Transcript pp. 959-60).

        Students at the Family School are seen by a consulting psychiatrist who comes to the school one day per month to monitor medication (Exhibit UU; Transcript p. 905). The Family School representative indicated that staff monitored student behavior very closely and worked with the psychiatrist to teach alternative coping skills to assist students in dealing with their depression without the use of medication. When progress is observed, the psychiatrist meets with the student and determines if medications can be reduced very slowly until discontinued. When asked how the program addressed the student's psychiatric needs, the witness stated that the psychiatrist had "seen" the student and that, after approximately ten weeks at the Family School, he was no longer taking medication because the psychiatrist believed that the student was "coping without it" (Transcript pp. 910, 942). Two therapy techniques, behavior modification and cognitive reconstruction, are used to help students deal with those emotions which necessitated the use of medication in the first place (Transcript p. 909).

        The Family School does not offer individual counseling because it is believed to be ineffective with adolescents at the school (Transcript p. 952). Group therapy with the consulting psychologist is provided once per week to groups of ten to twelve students. Weekly therapy is supplemented by evening and weekend in-house meetings, considered "important therapeutic events" and often led by other students, plus table discussions at mealtimes for discussing the Family School's principles, usually led by students. In addition, each student has a staff sponsor who assists him or her in advancing through the 12-step principles which are the core of the Family School's philosophy (Exhibit UU).

        During a student's enrollment at the Family School, which is an average tenure of two to two and one-half years, family therapy consists of a one-day parent seminar held approximately four to six weeks after a student is admitted. Family group counseling is offered approximately one month after the initial parent seminar. Once parents have attended two or three family group counseling sessions, they return for parent group counseling, which consists of two-hour sessions designed to improve parenting skills. A final family group counseling session is held prior to departure in order to assist with the student's transition (Exhibit UU).

        The Family School addresses student substance abuse through attendance at Alcoholics Anonymous meetings in the Hancock, New York area, and through the school's 12-step philosophy (Transcript p. 909). The Family School representative testified that the student did not yet seem open to working on his substance abuse, but she indicated that he was "listening" and that progress was evaluated daily (Transcript pp. 929-30).

        Petitioner's independent psychiatrist expressed her agreement with the CSE recommendation of a full time special class, and opined that the test accommodations on the student's IEP were appropriate for him (Transcript p. 605, 648). However, the Family School representative testified that the student's IEP test modifications were not implemented at the school, and that there were no special education teachers at the school (Transcript pp. 947-48, 957-58). The average class size of 15 to 20 students at the Family School exceeds the 8:1+1 student to adult ratio recommended by the school psychologist to address the student's learning needs through intensive teacher intervention in a highly structured environment (Exhibit UU).

        The Family School's program is provided on a 12-month basis. Twelve-month programming is warranted for educational purposes when a student exhibits severe management needs, is multiply disabled, requires home/hospital instruction, exhibits needs requiring placement in a seven-day residential facility, or when necessary to prevent substantial regression (8 NYCRR 200.1 [j]). Substantial regression is the "inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1 [aaa]). There is nothing in the record to indicate that he showed evidence of regression at the beginning of each school year.

        While a parent is not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent is entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm, 315 F.3d 21, 26-27; M.S. v. Bd. of Educ., 231 F.3d at 105). Petitioner seeks reimbursement for a unilateral residential placement. A residential placement is appropriate only when it is required for a student to benefit from his educational program (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]; Kerkam v. Superintendent of D.C. Pub. Sch., 931 F.2d 84 [D.C. Cir. 1991]; Abrahamson v. Hershman, 701 F.2d 223 [1st Cir. 1980]; Application of a Child with a Disability, Appeal No. 95-33). There has been no showing that this student required a residential placement in order to benefit from his educational program.

        Based upon the foregoing, I find that petitioner has not met his burden of proof with respect to the second criterion for an award of tuition reimbursement. Having determined that petitioner has not met his burden of proving that the Family School provided an appropriate program for the student during the 2001-02 school year, I do not determine whether petitioner has shown that equitable considerations warrant an award of tuition reimbursement.

        Petitioner also contends that respondent failed to appropriately evaluate the student and to appropriately respond to petitioner's request for a psychiatric evaluation. By letter dated January 28, 2002, petitioner requested that respondent provide him with information regarding providers and reimbursement rates for independent psychiatric evaluations (Exhibit KKK). Petitioner asserts that this letter constituted a request for an IEE pursuant to 34 C.F.R. § 300.502 (b)(1) and 8 NYCRR 200.5 (g). Petitioner's request was made prior to the first CSE meeting and prior to the completion of respondent's evaluations.

        Federal and state regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. Nevertheless, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If the hearing officer finds that a school district's evaluation is appropriate, a parent may obtain an IEE, but not at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5 [g]).

        I agree with the hearing officer that respondent's evaluation was appropriate and petitioner is not entitled to an IEE at public expense. The record in this matter fully supports the hearing officer's finding that respondent demonstrated the appropriateness of its evaluation of the student. Moreover, petitioner's independent evaluator agreed with the findings of respondent's school psychologist (Exhibit 7).

        Based upon the foregoing, I find that the hearing officer did not err in denying petitioner's request for tuition reimbursement for the 2001-02 school year and for reimbursement of an independent psychiatric evaluation. I have considered petitioner's remaining contentions, including his request for prospective reimbursement for the 2002-03 school year, and find them to be without merit.

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 found that respondent had met its burden of proving that it had offered to provide a FAPE to the student during the 2001-02 school year.