03-012

        Petitioner, the Board of Education of the Penfield Central School District, appeals from an impartial hearing officer’s decision which ordered petitioner to reimburse respondents for the cost of their son’s tuition at the Norman Howard School for the 2002-2003 school year. The appeal must be sustained in part.

        Respondents’ son was a sixth grader during the 2002-2003 school year. He was classified as multiply handicapped, and there was no dispute as to the classification. During the 2001-2002 school year, the child attended petitioner’s special education class in a 12:1:1 classroom. For the 2002-2003 school year, the child’s parents unilaterally placed him in the Norman Howard School, a private school, and seek reimbursement for tuition at this school.

        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 School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School 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 Committee on Special Education (CSE) (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 that the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        A hearing was held in this matter on November 12, 13 and 14, 2002. The impartial hearing officer issued a decision dated January 8, 2003 in which she determined that petitioner’s recommended program for the 2002-2003 school year was not appropriate, that the Norman Howard School chosen by respondents was appropriate, and that the equities favor the respondents. She therefore ordered tuition reimbursement, and ordered that the child remain at the Norman Howard School for the balance of the 2002-2003 school year.

        Petitioner requests that the impartial hearing officer’s decision be annulled, and that it not be obligated to reimburse respondents for the tuition expense incurred during the 2002-2003 school year, and that it not be required to place the student at this school for the balance of the 2002-2003 school year.

        Respondents request that the decision of the impartial hearing officer be affirmed, that petitioner be ordered to reimburse respondents for tuition, and for costs and attorneys fees, as appropriate.

        Following the child’s attendance in petitioner school district’s special education program during the 2001-2002 school year, petitioner issued an Individual Education Program (IEP) dated July 17, 2002, which addressed the child’s placement for the 2002-2003 school year. The IEP recommended placement in petitioner’s Monroe BOCES I District-Based Brighton Middle School special education program with a 12:1:1 ratio, and mainstreaming in art, gym, music and cafeteria. In my analysis, I am referring specifically to the document identified on the record as JT10.

        I find that the child’s learning disability as well as emotional overtones and attention deficit have seriously impacted his academic achievement. The IEP which recommends public school placement is inadequate in addressing the nature and level of service for the child’s anxiety and associated behaviors. As was made clear from the record, a substantial impediment to the child’s progress in school is the manifestation of his emotional difficulties. The IEP addresses behavior as a modification, and the focus of the social/behavioral piece is isolated, and has not been woven into the instructional areas. The IEP addresses three broad goals in the area of peer relationships, dealing with small group participation, bullying, and friendship skills, and each has two or three objectives. However, there is no true ownership of the responsibility of achieving these goals, except an evaluation of them by "Mental Health." in relation to two of the goals, and a list of professionals, along with "Mental Health" as to the third. Given the severity of the behavioral issues the child has experienced, I do not find that the IEP sufficiently addresses them. Specifically, the three goals in the area of peer relationships were not sufficient to address his behavioral needs and anxiety, and the evaluation of the progress the child is making towards these goals is not sufficiently described in the IEP. In addition, the IEP does not address what supports are needed for this child to be successful in the regular education activities it is proposed he participate in. For these reasons, I find that the 2002-2003 program recommended by the July 17, 2002 IEP is not appropriate for the child.

        The child’s experience in the school district’s program during the 2001-2002 school year reinforces my view that the program offered for 2002-2003 is not appropriate. I find respondents’ depiction of the emotional difficulty suffered by the child during his time in the public school placement to be compelling, particularly the difficulty the child experienced in interaction with other students in regular education classes.

        Turning to the private school placement chosen for the student by the respondents, they bear the burden of proof with regard to the appropriateness of the services they selected during the 2002-2003 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 94-34). In order to meet that burden, they must show that the private school offered an educational program which met the student’s special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29).

        I find that the program chosen by the respondents at the Norman Howard School is appropriate for the student. The school is state approved and provided the child a 12:1:1 classroom setting during 2002-2003, with smaller ratios for reading classes. The academic program offered at Norman Howard correlates well with the child’s academic needs, as identified in the IEP. Specifically, the small group setting instruction and specialized reading program as described on the record by the Director of Education of Norman Howard address the child’s needs as reflected in the IEP. In addition, the smaller setting and support offered by Norman Howard is better suited to address the child’s emotional/behavioral needs as described by the Director as well as the child’s parents and district personnel.

        Petitioner asserts that placement in its program would comply with the least restrictive environment requirement set forth in 8 NYCRR§200.6(a)(1). While parents are 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 parents are 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). The requirement of instruction in the least restrictive environment must, however, be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). Given the emotional difficulties experienced by the child in the petitioner’s setting during the 2001-2002 school year, I find that placement in the Norman Howard School would not violate the least restrictive environment requirement. Accordingly, I find that respondents have met their burden of proof with respect to the appropriateness of the Norman Howard School for their son during the 2002-2003 school year.   

        The third and final criterion for tuition reimbursement is whether equitable considerations support the parent’s claim for reimbursement. There is ample evidence throughout the record of respondent’s zealous regard for their son’s educational progress, and therefore I have determined that equitable considerations support their claim.

        Respondents seek attorney’s fees and costs in their answer. The IDEA authorizes a court to award to a prevailing party attorney’s fees and related costs (20 U.S.C. § 1415[i][3][B]). However, it is well established that the State Review Officer lacks the authority to award attorneys’ fees and costs (Application of a Child with a Disability, Appeal No. 01-011, Application of a Child with a Disability, Appeal No. 01-086).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner’s CSE shall reconvene to provide a recommendation for an appropriate placement for the 2003-2004 school year, if it has not already done so.