03-006

         Petitioner appeals from an impartial hearing officer’s decision denying his request for tuition reimbursement for the unilateral placement of his son in a private school for the 2002-2003 school year. The appeal must be dismissed.

        At the beginning of the 2002-2003 school year, petitioner’s son was nine years old and entering the fourth grade at the Randolph School (Randolph), a private school located in Wappingers Falls, New York. Randolph has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.

        On June 17, 1998, respondent’s Committee on Special Education (CSE) classified the student as a student with a disability. The student began Kindergarten at Randolph in the fall of 1998 and has attended Randolph since that time. Respondent’s CSE has continually recommended that the student attend a public school in the district. Although initially classified as speech impaired, the student is now classified as learning disabled. That classification is not in dispute on this appeal.¹

        On July 2, 2002, petitioner requested an impartial hearing seeking tuition reimbursement for the 2002-2003 school year (Exhibit IHO 1). Petitioner asserted that respondent had, among other things, failed to conduct its annual review of the student. Petitioner stated that he was unilaterally placing the student at Randolph for the 2002-2003 school year.

        The CSE met on July 24, 2002 to conduct its annual review and make recommendations for the student’s individualized education program (IEP) for the 2002-2003 school year. The CSE reconvened on September 3, 2002 to finalize its recommendations. As a result of these meetings, the CSE recommended that the student continue to be classified as learning disabled, attend fourth grade at respondent’s North Park Elementary School, receive resource room services for one period a day, and receive direct consultant teacher services for one hour a day. A written IEP reflecting these recommendations was subsequently promulgated (Exhibit SD 1).

        The hearing was conducted on August 6, September 11 and 30, and October 1 and 18, 2002. By decision dated December 6, 2002, the hearing officer concluded that petitioner was not entitled to seek tuition reimbursement for the 2002-2003 school year because, at the time of the hearing, petitioner had not paid tuition for that year. The hearing officer further determined that petitioner could not seek prospective payment of tuition because he failed to establish that he did not have adequate means to pay tuition. However, because the parties had presented the case as a tuition reimbursement case, the hearing officer determined that he would analyze the case under the principles applicable to tuition reimbursement cases.

        The hearing officer next addressed two jurisdictional issues raised by respondent. He rejected respondent’s contention that 34 C.F.R. § 300.457 prohibited petitioner from seeking tuition reimbursement in an impartial due process hearing. However, he agreed with respondent’s contention that 20 U.S.C. § 1412(a)(10)(c) prohibited petitioner from seeking tuition reimbursement because petitioner’s son has never attended a public school. The hearing officer acknowledged that State Review Officers have repeatedly rejected this contention. Accordingly, he proceeded to analyze the case under the tuition reimbursement framework utilized by State Review Officers.

        The hearing officer concluded that respondent failed to meet its burden to prove that the CSE’s recommended placement was appropriate because the IEP developed for the student for the 2002-2003 school year was both procedurally and substantively defective. He further determined that petitioner failed to meet his burden to prove that Randolph was an appropriate placement for the 2002-2003 school year because Randolph did not provide an education designed to meet the student’s special education needs. Because of this disposition, the hearing officer did not address the issue of whether equitable considerations support petitioner’s claims.

        Petitioner agrees with the hearing officer’s determination that respondent failed to meet its burden to prove that the CSE’s recommended placement was appropriate because the IEP developed for the student for the 2002-2003 school year was both procedurally and substantively defective. However, petitioner disagrees with the hearing officer’s determination that petitioner is not entitled to seek tuition reimbursement because he has not yet paid tuition to the private school, and because his son has never attended a public school. Petitioner also disagrees with the hearing officer’s determination that petitioner failed to meet his burden to prove that Randolph was an appropriate placement for the 2002-2003 school year. Petitioner also asserts that equitable considerations support his claims.

        Respondent does not cross-appeal from the hearing officer’s conclusion that respondent failed to meet its burden to prove that the CSE’s recommended placement was appropriate because the IEP developed for the student for the 2002-2003 school year was both procedurally and substantively defective. Respondent does contend, however, that 34 C.F.R. § 300.457 and 20 U.S.C. § 1412(a)(10)(c) prohibit petitioner from seeking tuition reimbursement in an impartial due process hearing. Respondent also contends that petitioner failed to meet his burden to prove that Randolph was an appropriate placement for the 2002-2003 school year, and that equitable considerations do not support petitioner’s claim.

        Respondent asserts that the state complaint procedure (8 NYCRR 200.5[k]), rather than an impartial hearing, is the exclusive process available to petitioner because 34 C.F.R. § 300.457 prohibits a parent from requesting an impartial hearing to seek reimbursement for the expense of placing his or her child at a private school. 34 C.F.R. § 300.457 identifies procedures available to resolve "complaints" and reads as follows:

a.   Due process inapplicable.

The procedures in §§ 300.504-300.515 [including impartial due process hearings] do not apply to complaints that an LEA [local educational agency which includes a board of education] has failed to meet the requirements of §§ 300.452-300.462 [relating to children with disabilities enrolled by their parents in private schools], including the provision of services indicated on the child’s services plan.

b.    Due process applicable.

The procedures in §§ 300.504-300.515 [including impartial due process hearings] do apply to complaints that an LEA has failed to meet the requirements of § 300.451 [child find requirements for private school children], including the requirements of §§ 300.530-300.543 [procedures for evaluation and determination of eligibility].

c.     State complaints.

Complaints that an SEA or LEA has failed to meet the requirements of §§ 300.451-300.462 [relating to children with disabilities enrolled by their parents in private schools] may be filed under the procedures in §§ 300.660-300.662 [state complaint procedures].

        Under this regulation, the IDEA impartial due process hearing procedure is available to parents of private school students with respect to child find, evaluation, and determination of eligibility. On the other hand, when a free appropriate public education (FAPE) is not at issue, parents of private school students who wish to challenge the services provided by a school district to a private school student must file an administrative complaint with the State Education Department. However, as the hearing officer concluded, the requirements relating to exclusive use of the state complaint procedures do not apply when the district’s obligation to offer FAPE is at issue. To the contrary, 34 C.F.R. § 300.403(b), which addresses "[d]isagreements about FAPE", provides that "[d]isagreements between a parent and a public agency [board of education] regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject to the due process procedures of §§ 300.500-300.517 [including impartial due process hearings] (emphasis provided). The evidence shows that petitioner unilaterally placed his child at Randolph, that he asserted the district failed to offer his son an appropriate program, and that he sought public funding for his son's attendance at Randolph. The dispute falls directly within the provisions of 34 C.F.R. § 300.403(b) and was, therefore, a proper subject of an impartial hearing.

        Respondent also contends the hearing officer correctly determined that petitioner may not seek tuition reimbursement because the student never attended, and did not receive special education services from, a public school. Respondent and the hearing officer rely on the provisions of 20 U.S.C. § 1412(a)(10)(c)(ii), which refers to reimbursement for students enrolled in private school who "…previously received special education and related services under the authority of a public agency…." However, State Review Officers have declined to construe this provision as prohibiting the award of tuition reimbursement to the parents of a child who has not previously attended a public school (Application of the Bd. of Educ., Appeal No. 02-052; Application of a Child with a Disability, Appeal No. 98-25). I continue to adhere to that position. Accordingly, the fact that the student never attended respondent’s schools or any other public school does not preclude petitioner from seeking tuition reimbursement.

        The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) requires that children with disabilities be provided a FAPE (20 U.S.C. § 1412[a][1]). A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]). An IEP is a comprehensive written statement of the educational needs of a student with a disability and the specially designed instruction and related services to be employed to meet those needs (20 U.S.C. § 1414[d]). 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]; Application of a Child with a Disability, Appeal No. 02-111). The failure of a parent 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]; Application of Child with a Disability, Appeal No. 02-111).

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Application of a Child Suspected of Having a Disability, Appeal No. 02-111). The following issues are considered in determining whether a board of education met this burden: (a) whether it complied with the IDEA’s procedural requirements, and (b) whether the IEP is reasonably calculated to enable the child to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-111). The recommended program must also be provided in the least restrictive environment (LRE) (Application of a Child with a Disability, Appeal No. 02-111; 20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). 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 (Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; see, M.S., 231 F.3d at 103 [Court analyzed whether IEP calculated to confer educational benefits even though it was undisputed that school board failed to meet several procedural requirements of IDEA]; Application of a Child with a Disability, Appeal No. 02-111).

        Petitioner bears the burden of proof with regard to the appropriateness of the educational program for which he seeks reimbursement during the 2002-03 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111). In order to meet that burden, petitioner must show that the private school offered an educational program which met his son's special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). 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. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictive nature 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; Application of a Child with a Disability, Appeal No. 02-111).

        Respondent does not cross-appeal the hearing officer’s conclusion that respondent failed to meet its burden to prove that the CSE’s recommended placement was appropriate because the IEP developed for the student for the 2002-2003 school year was both procedurally and substantively defective. That portion of the hearing officer's decision is final and binding upon the parties (Application of a Child with a Disability, Appeal No. 02-073). Accordingly, I will proceed to analyze whether petitioner met his burden to prove that Randolph was an appropriate placement for the 2002-2003 school year.

        In order to determine whether Randolph addressed the student’s special education needs, it is necessary to determine what those needs were during the 2002-2003 school year. The student’s learning disability causes him to have difficulty with writing and, to a lesser extent, reading (Transcript pp. 132, 328, 478-479, 555). These issues need to be addressed by a structured multi-sensory approach to learning (Transcript pp. 275, 561). I agree with the hearing officer’s conclusion that Randolph did not address these needs, but rather provided the student with the same general education that it provided to other students. The student did receive tutoring from a speech language pathologist using a multi-sensory approach to learning which resulted in improvements in the student’s reading and writing (Transcript pp. 310, 344, 378, 380, 477, 547, 551, 561-565). However, this tutoring, which was provided at the tutor’s home, was paid for by respondent (Transcript pp. 579-580, 582). Moreover, Randolph’s teachers had infrequent contact with the tutor, and did not coordinate with her to incorporate her methodologies into the student’s academic classes at Randolph (Transcript pp. 440, 448, 487, 519, 581-582). Given the student’s needs and the program offered at Randolph, I agree with the hearing officer’s conclusion that petitioner failed to meet his burden to prove that Randolph offered an educational program which met his son's special education needs.

        Because petitioner has not met his burden to prove that Randolph was an appropriate placement for the 2002-2003 school year, I need not address the issue of whether equitable considerations support petitioner’s claims. I also need not address the hearing officer’s conclusion that petitioner was not entitled to seek tuition reimbursement for the 2002-2003 school year because, at the time of the hearing, petitioner had not paid tuition for that year and did not establish that he was financially unable to do so.

THE APPEAL IS DISMISSED.