Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Great Neck Union Free School District
Law Offices of Neal H. Rosenberg, attorneys for petitioner, Lauren A. Baum, Esq., of counsel
Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision, which denied her request for tuition reimbursement for her son's attendance at the Stephen Gaynor School (Gaynor) for the 2001-02 school year. The appeal must be sustained.
At the outset, I will address a procedural issue. Respondent objects to Table A annexed to the petition as evidence that was not offered at the hearing and requests that it not be considered. Table A to the petition is a chart displaying certain standardized test results and related information regarding petitioner's son. The source of the information in the table is testimony, party exhibits, and respondent's post-hearing submission dated December 11, 2002. This is not specifically disputed by respondent. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence were unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024). Since Table A merely displays information that is already a part of the record, there is no reason to exclude it.
Petitioner's son was nine years old and a student at Gaynor in New York City at the commencement of the hearing in May 2002. The Commissioner of Education has not approved this private school as one that a board of education may contract with to instruct children with disabilities.
The child was identified as having a learning disability prior to his enrollment in kindergarten in respondent's school district. He received speech-language therapy in kindergarten. Petitioner's son attended the E.M. Baker Elementary School (Baker) in kindergarten, first, second, and third grade. The record is not clear what services petitioner's son received in first grade. Respondent provided the child with resource room and speech-language therapy as related services in second and third grade during the 1999-2000 and 2000-01 school years, respectively. Petitioner provided the child with private tutoring, speech-language therapy, and occupational therapy when he was enrolled in first, second and third grades. Respondent's Committee on Special Education (CSE) classified petitioner's son as a child with a learning disability subsequent to his enrollment in kindergarten and prior to his beginning the second grade, the exact date of which is not clear. The child remains classified as a child with a learning disability and that classification is not in dispute. Individualized education programs (IEPs) prepared for the child have consistently characterized him as having reading difficulties, memory weakness and a word retrieval problem that interferes with his ability to progress in the regular education curriculum (Exhibit 4; Transcript pp. 112-13).
Respondent conducted a reevaluation of petitioner's son during the 1999-2000 school year when he was in the second grade (see 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b]). As a part of that reevaluation, a school psychologist evaluated the child in November and December 1999 and prepared a psychological report. That evaluator administered the Wechsler Intelligence Scale for Children–Third Edition (WISC-III). Administration of this test yielded a verbal IQ score of 105 (63rd percentile), a performance IQ score of 98 (45th percentile) and a full scale IQ score of 101 (53rd percentile), indicating cognitive functioning in the average range. The child's percentile scores on the verbal subtests ranged from the 25th percentile (in digit span and information) to the 95th percentile (in comprehension). On the performance subtests, percentile scores ranged from the 5th percentile (picture completion) to the 99th percentile (symbol search). The evaluator reported that the scatter among the subtests suggested uneven cognitive abilities and indicated weaknesses in the areas of short-term auditory memory and perceptual discrimination. The evaluator reported that the results of the Bender Visual Motor Gestalt Test suggested impulsivity and acting out and that projective testing indicated that the child was aware of academic difficulties and had feelings of inadequacy. This was consistent with the child's behavior during the evaluation, as the evaluator reported that the child had difficulty with impulse control and managing his activity levels. However, the score that the child received on the Behavior Assessment for Children – Teacher Rating Scales, which was completed by his second grade teacher, did not indicate any concerns regarding attention, focusing, or impulsivity and the child was perceived by that teacher as free of emotional upset. The evaluator concluded that the child's self-esteem may be an issue and recommended modification of his curriculum to increase his opportunities for success. He also recommended that information be broken down to facilitate memory and performance and that the child's academic and speech-language support be continued (Exhibit 1).
The following year, when petitioner's son was in the third grade, his parents requested that respondent conduct additional projective testing as part of an application for a possible private school placement. Respondent's school psychologist who had conducted the earlier psychological evaluation conducted additional projective testing in January 2001 and prepared a "psychological addendum". During the course of that evaluation, the evaluator reported that the child demonstrated a relatively high activity level, often getting out of his seat and fidgeting. He sang a song during part of the evaluation and tried to avoid testing at times, showing annoyance. The evaluator reported that the child appeared somewhat overwhelmed with school-related tasks and that in responses to his questions advised him that people thought he was "stupid", that he was "not good at school", and "not good at anything." As a result of this second evaluation, the psychologist concluded that the child's self-esteem was somewhat compromised and that petitioner's son had negative self-perceptions, particularly related to school topics. The school psychologist also indicated that the child avoided reading and other tasks perceived as academic (Exhibit 3).
The child's speech-language therapist prepared a speech-language annual review in February 2001. Among other things, she noted that petitioner's son was shy, unsure of his skills, needed encouragement, and gave up easily when presented with difficult tasks. The speech-language therapist administered the Clinical Evaluation of Language Fundamentals (CELF-3). On that test, petitioner's son achieved standard scores of 12 (75th percentile) in word structure, 9 (37th percentile) in word association, and 7 (16th percentile) in both recalling sentences and listening to paragraphs. Consistent with these results, the evaluator reported that the child's word retrieval skills were in the low average range and that his ability to comprehend paragraph length information and his short term auditory memory were in the below average range. The evaluator also reported that the child's difficulty in comprehending paragraph information appeared to affect his ability to convey extended explanations and provide detailed descriptions. The child's auditory comprehension abilities were reported to improve when he was more interested in a particular topic as he was more attentive in such circumstances. At the time of the evaluation, respondent was providing petitioner's son with speech-language therapy twice a week in 30-minute sessions in a small group. The evaluator recommended that respondent continue to provide the child with services to address his speech-language needs (Exhibit 6).
The child's resource room teacher, who was a certified special education teacher, administered the Stanford Diagnostic Reading and the Stanford Diagnostic Mathematics tests to the child in March 2001. She subsequently prepared an annual review report. Petitioner's son, who was completing the third grade at the time of the testing, achieved percentile (and grade equivalent) scores of 22 (2.4) in comprehension, 45 (3.3) in vocabulary, and 45 (3.4) in phonetic analysis. In the mathematics test, reflecting his strength in this area, the child achieved percentile (and grade equivalent) scores of 67 (4.5) in concepts and applications and 74 (4.9) in computation. The teacher also reviewed the child's resource room progress and indicated that petitioner's son spent much time on basic decoding skills and that he had difficulty in applying this skill. She further indicated that the child's written expression and applied punctuation skills were weak areas and that he could not independently express his ideas with clarity. Additionally, the teacher reported that the child's spelling remained problematic, that those skills were not evident in his writing, and that his memory in this area was weak. She also noted that persistence was an issue as petitioner's son became easily frustrated and avoided or gave up on challenging material. However, she also indicated that the child could be motivated by teaching relevant skills as a game. The resource room teacher recommended that petitioner's son continue with reading and writing support. She further recommended that his program stress decoding skills and their application in reading; include a writing component to strengthen encoding (or spelling) skills; and that he develop independent writing skills including expanded and varied sentences, correct punctuation, and the ability to edit to correct mistakes (Exhibit 5).
Respondent's CSE, including petitoner, met on April 2, 2001 to review the child's program and to recommend services for the 2001-02 school year when the child would be in the fourth grade. The CSE heard reports by the school psychologist, the child's regular education and resource room teachers, and a speech-language therapist (Transcript p. 87). The psychologist's presentation included information from his 1999 initial psychological report. The January 2001 psychological addendum was neither considered by, nor given to, the CSE (Exhibit 1; Transcript pp. 20-22, 56). Following discussion, the CSE recommended that petitioner's son be placed in a regular education classroom at Baker for the fourth grade and that he continue to receive resource room and speech-language therapy as related services (Transcript pp. 85, 87, 91, 102-03). With respect to these services, it recommended that the child continue to receive group speech-language therapy twice a week and resource room services five times a week (Transcript pp. 48, 85, 102-03). However, with respect to the latter, the CSE recommended that all five of the resource room sessions be provided outside of the child's regular education class instead of four sessions outside the class and one session in the classroom, as provided in the third grade (Transcript pp. 55, 85, 99, 102, 123). Petitioner neither stated her objection nor her agreement to the CSE's recommendation (Transcript pp. 104-06, 135-36, 205, 237). Subsequent to the meeting, and in late April or early May 2001, petitioner determined to withdraw her son from Baker and to enroll him in Gaynor (Transcript pp. 208-09). Consistent with this, by letter dated May 11, 2001, and after consultation with the school psychologist, petitioner advised respondent that her son would be attending Gaynor effective September 2001 (Transcript pp. 63-64, 209-10; Exhibit C). Respondent provided petitioner with a copy of the IEP resulting from the CSE meeting (Exhibit 4) on or about August 24, 2001 (Transcript p. 239).
The child enrolled in Gaynor in September 2001 for the 2001-02 school year. Petitioner, by letter from her attorney dated March 22, 2002, advised respondent that she did not agree with respondent's offer of placement for that school year and believed that it was inappropriate for her son's needs (Exhibit 7). The letter also requested an impartial hearing to obtain reimbursement for the child's attendance at Gaynor. The hearing commenced on May 28, 2002, continued on November 7, 2002, and concluded on December 5, 2002. The hearing officer rendered her decision on March 19, 2003 (Petition ¶ 186). She concluded that respondent had sustained its burden of proof to show that the placement offered to petitioner's son was appropriate and in compliance with the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487). The hearing officer also concluded that Gaynor was not an appropriate placement for the child.
Petitioner appeals on a number of grounds including that respondent provided insufficient information regarding the composition of the recommended resource room class, that the CSE did not consider the psychological addendum (Exhibit 3), that the CSE should have recommended counseling to address her son's social and emotional needs, and that Gaynor was an appropriate placement. Consistent with the hearing officer's decision, respondent contends, among other things, that its recommended program is appropriate, that Gaynor's program is not appropriate for the child, and that such a unilateral placement is contrary to the IDEA requirement that the child be educated in the least restrictive environment (LRE). Respondent also asserts that petitioner's request for tuition reimbursement should be denied because petitioner did not either give respondent a proper ten-day notice that she would remove her son from its public school or state her objection to the recommended program and her intent to enroll her child in a private school at the April 2, 2001 CSE meeting.
The purpose behind the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with an IEP required by the Act (20 U.S.C. § 1401) and it is the IEP that tailors the required FAPE to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 ). A board of education may be required to pay for educational services obtained for a child 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 ). 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 ).
The 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], cert. denied, 532 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the child through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Rowley, 458 U.S. at 206-07 ; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). A denial of FAPE will occur if a procedural violation of the IDEA compromised the development of an appropriate IEP, depriving the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31621158 [S.D.N.Y. 2002]). A denial of FAPE will also occur if the procedural violation of the IDEA seriously infringed on a parent's opportunity to participate in the creation or formulation of the IEP (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]. Accord 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 U.S. 950 ). The recommended program must also be provided in the LRE (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
In order to make an appropriate recommendation, it is necessary to have adequate and sufficient evaluative information (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008). A board of education must assess a student in all areas related to a suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs (8 NYCRR 200.4[b][vii] and [ix]). The evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (8 NYCRR 200.4[b]). A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b]). Importantly, without an appropriate evaluation of a student's special education needs, it is not possible to formulate an IEP to address those needs by providing the individually designed instruction and services necessary for the student to receive educational benefit as required by the IDEA (Monterey Peninsula Unified Sch. Dist. v. Giammanco, 1995 WL 476610 [N.D. Cal. 1995]; Flowers v. Martinez Unified Sch. Dist., 19 IDELR 898 [N.D. Cal. 1993]). Such information must be provided to the CSE in order for it to develop an appropriate IEP (Application of the Bd. of Educ. of the Rocky Point Union Free Sch. Dist., Appeal No. 00-090).
In arriving at its program recommendations, as indicated above, respondent's CSE considered information in the school psychologist's December 1999 psychological report (Exhibit 1; Transcript pp. 21-22); however, it did not consider the psychological addendum (Exhibit 3) that the same psychologist prepared more than a year later (Exhibit 1; Transcript p. 56).1 The psychologist's first evaluation reported that the child's second grade teacher perceived him free of emotional upset but, based on the psychological testing done at that time, concluded that his self-esteem "may" be an issue. In January 2001, more than a year later, the psychological addendum indicated that the child's emotional status had deteriorated. That subsequent evaluation indicated that that the child's self-esteem was somewhat compromised; that petitioner's son felt overwhelmed with school tasks; and that this had led to negative feelings about school and to an avoidance of reading and other academic tasks. Because of the nature and relevance of the information contained in the psychological addendum with respect to the child's emotional needs (see 8 NYCRR 200.1[ww][i][b]), it was important that respondent's CSE review that document as it developed a recommended IEP for petitioner's son.2,3 Because respondent's CSE did not do so, it did not have sufficient evaluative information to assess the child's emotional needs. As a result, the CSE did not have the information it needed to develop an appropriate IEP to meet the child's needs in the LRE (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-044); Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008). The IEP therefore did not adequately identify and address the student's social and emotional needs. Because of this, respondent is not able to show that it had offered to provide petitioner's son with a FAPE for the 2001-02 school year (Application of a Child with a Disability, Appeal No. 02-100).
Even if the CSE had reviewed all appropriate evaluative information in recommending an IEP for petitioner's son for the 2001-02 school year, I would be constrained to find that respondent was not able to meet its burden to show that it had offered to provide the child with an appropriate program for that school year. In particular, as part of its burden of proof, respondent must show that the child would be suitably grouped for instructional purposes, including resource room services, with children having similar individual needs with regard to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children in the classroom (see 8 NYCRR 200.6[a], 200.6[f]; Application of a Child with a Disability, Appeal No. 02-077; Application of a Child with a Disability, Appeal No. 02-045; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 01-073; Application of a Child with a Disability, Appeal No. 00-064; Application of a Child with a Disability, Appeal No. 01-068; Application of a Child with a Disability, Appeal No. 97-05). It may do so by offering a profile of the children in the class, or by having a witness testify about the needs and abilities of the children in the class (Application of a Child with a Disability, Appeal No. 01-068). The record contains no information about the other children who would be in the resource room class proposed for the child. I am therefore unable to conclude that petitioner's son would have been suitably grouped for instructional purposes in that recommended class.
Respondent failed to properly consider available and relevant evaluation material and failed to formulate an IEP adequately addressing the student's social and emotional needs. Respondent also failed to show that the student would be suitably grouped for instructional purposes. I find that respondent has failed to demonstrate that it offered to provide an appropriate program to petitioner's son for the 2001-02 school year. I find that these inadequacies were of a nature and number that denied the student a FAPE (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, 93 [S.D.N.Y. 1996]). Petitioner has therefore prevailed with respect to the first Burlington criterion for an award of tuition reimbursement. In light of this determination, it is unnecessary to address the other issues raised by petitioner with respect to the appropriateness of respondent's recommended program.
Petitioner bears the burden of proof with regard to the appropriateness of the educational program in which they enrolled their son during the 2001-02 school year (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. of the Monroe-Woodbury Cent. Sch. Dist., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioner must show that Gaynor offered an educational program which met her 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 child (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]).
Gaynor is a private school which provides special education to children with learning disabilities (Transcript pp. 147, 170). It accepts students between the ages of five and thirteen years and focuses on learning disabled students who have language difficulties (Transcript p. 147, 182). The school had approximately 120 students during the 2001-02 school year (Transcript p. 147).
Petitioner presented testimony by a head teacher at Gaynor who taught the child reading (Transcript pp. 148, 151). The teacher, who had a master's degree in special education and New York State certification in special education (Transcript pp. 147, 169), testified that as well as herself, her class include a co-teacher and nine children (Transcript p. 148). Speech-language therapists and occupational therapists came into the class several times a week to provide services to the children in the class (Transcript pp. 148, 173). The child's major subject areas included reading, writing, spelling, math, and social studies (Transcript p. 151, Exhibit A). He was part of a small group of four children in reading and part of a small group of four or five in math (Transcript p. 151). The child received speech-language therapy in the classroom three times a week and occupational therapy, also in the classroom, twice a week, both for individual and group programming (Transcript pp. 152, 173-74, 175-77). The child also left the class once a week for individual reading remediation and occupational therapy sessions and once a week for a language remediation session in a group of two (Transcript p. 152). The special education teacher testified that the class had a very structured program and used a behavior management system and that the child's movement through the day was structured (Transcript p. 150, 161-62). Teaching methodologies included hands on and visual programming with consistent repetition, providing information in smaller teachable parts, small group instruction with individual attention, and teaching aids designed for each child's individual interests (including those of petitioner's son) (Transcript pp. 150, 157, 165). The child's teacher testified that a structured class and these methodologies were appropriate for petitioner's son (Transcript pp. 152-53, 156-57, 165, 178).
The child's teacher from Gaynor testified that petitioner's son needed a great deal of work on his self-confidence; that he had a number of language needs; and that the program worked on goals relating to organization, study skills, and learning strategies, reading, writing, language skills, and speech and language (Transcript pp. 156, 158, 160-64). She also testified that he made progress in organization, reading, answering written questions and writing; that he felt comfortable in the educational setting at Gaynor; and that his confidence improved so he was better able to work independently (Transcript pp. 164-66, 178, 179, 184). The teacher testified that she addressed the organizational, reading, writing, and speech-language goals in the IEP prepared by respondent for the 2001-02 school year (Transcript pp. 160-64). Gaynor's comprehensive and detailed 16-page 2001-02 progress report for the child confirms that although his academic skills remained significantly below his grade level, he was making progress in problem areas including oral reading (including decoding and fluency), reading comprehension, spelling, oral language and communication, and listening skills (see Exhibit A; see also Exhibits 4, 5, B, E). Petitioner's son also made progress in perceptual functioning, following directions, and classroom behavior (Exhibit A). Additionally, petitioner testified that the child had a more positive attitude about school, a more positive attitude about himself and his learning abilities, a greater interest in reading, and an increased ability in reading (Transcript pp. 213-14, 218, 220-22).4
The hearing officer and respondent contend that the results of objective testing did not corroborate the reports of the child's progress at Gaynor and that petitioner therefore did not meet her burden to show that Gaynor was an appropriate program for her son. Respondent also argues that since Gaynor did not administer objective tests to the child, petitioner is unable to show that her son made progress at that school. With respect to this latter argument, although the results of standardized testing may provide evidence regarding whether a child has made progress in a private school, there is no requirement that a private school administer standardized testing so that such information will be available when considering that question (see Application of a Child with a Disability, Appeal No. 99-046; Application of a Child with a Disability, Appeal No. 98-07).
I have reviewed the test results relied upon by the hearing officer and respondent for the conclusion that petitioner's son did not make progress at Gaynor. Upon review of the test results and of the entire hearing record, I reach a different conclusion. I am not persuaded that the hearing officer's comparison of "age-equivalent" scores with "instructional level" information was proper and appropriate. Further, the hearing officer referenced a comparison of the child's December 1999 and October 2002 scores on certain subtests of the Wechsler Individual Achievement Test (WIAT) (see Respondent's Post Hearing Submission; Transcript pp. 328-30). The comparison period was inappropriate as it extended across approximately 35 months and included a beginning date approximately 22 months prior to the child's enrollment in Gaynor and an ending date approximately 5 months after the completion of the 2001-02 school year. Further, the testing involved a limited number of subtests and the evidence did not show that respondent used appropriate and comparable editions of the test or that the test results were accurate and reliable indicators of what the child knew on the test dates. Finally, these achievement test results looked only at the child's academic needs and not the extent to which Gaynor met the child's social and emotional needs, which I note were significant considerations here.
The hearing officer also wrongly concluded that Gaynor was inappropriate for petitioner's son because it was not the LRE for him. The LRE concept applies to unilateral parental placements (M.S., 231 F.3d at 105). However, this must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). As explained above, the child had significant educational needs affecting his educational performance and he required a significant amount of educational support. Moreover, as described above, the educational program provided to petitioner's son by Gaynor was appropriate for, and met, his special education needs. Relative to this, unlike the much larger regular education classroom that the child had been in during third grade, and which respondent also proposed for the fourth grade, and which had resulted in feelings of inadequacy, lowered self-esteem, and reduced confidence in his abilities, Gaynor provided petitioner's son with a small class environment. Such an environment was more appropriate for this student's needs. It helped him feel more secure, more comfortable, less out of place, and more trusting and it encouraged him to allow his areas of difficulty to show and thus be addressed. With all of the above in mind, although the child's attendance at Gaynor did not provide him with the same opportunities for mainstreaming as would a less restrictive program, I can not conclude on this fact alone that LRE considerations preclude a finding that Gaynor was not an appropriate placement for petitioner's son (Application of a Child with a Disability, Appeal No. 01-035; Application of a Child with a Disability, Appeal No. 00-095). Accordingly, and on the basis of all the above, I find that petitioner has met her burden of demonstrating the appropriateness of the program at Gaynor and that she has prevailed with respect to the second Burlington criterion for an award of tuition reimbursement for her son's attendance at that school for the 2000-01 school year.
The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. There is no evidence that petitioner did not cooperate with the CSE. Prior to the April 2, 2001 CSE meeting, she communicated with her son's regular education teacher, resource room teacher, and school psychologist, all who were members of the CSE, about how her son was doing and her concerns (Transcript pp. 55, 59, 200-201, 241, 244). Further, prior to the CSE meeting, she discussed her concerns about her son's educational program and the possibility that she would enroll him in a private school with respondent's school psychologist and her son's resource room teacher (Transcript pp. 43-44, 52-53, 200-03). Respondent's school psychologist admitted that prior to the CSE meeting petitioner had made it known that she felt the existing program was inadequate (Transcript pp. 52-53, 55-56). Petitioner attended the April 2, 2001 CSE meeting and raised concerns there (Exhibit 4; Transcript pp. 102, 246).
Respondent claims that petitioner failed to comply with 20 U.S.C. § 1412[a][C][iii] and that her request for tuition reimbursement should therefore be denied. This section of the IDEA provides that an award of tuition reimbursement may be reduced or denied in certain circumstances. In particular, tuition reimbursement may be reduced or denied, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see20 U.S.C. §§ 1412[a][C][iii], 1412[a][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e]). Under this statutory provision, a reduction in reimbursement is discretionary (Application of the Bd. of Educ. of the Northport-East Northport Union Free School District, Appeal No. 03-062; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Poughkeepsie, Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054, Application of a Child with a Disability, Appeal No. 00-027).
Respondent specifically argues that petitioner's request for tuition reimbursement should be denied because at the April 2, 2001 CSE meeting petitioner did not inform it that she disagreed with the proposed placement and intended to place her son at a private school at public expense and further, because petitioner's May 11, 2001 letter to the principal of her son's elementary school neither stated her disagreement with the CSE's April 2, 2001 recommendation nor requested that respondent reimburse her for the private school tuition. The facts cited by respondent are true (Exhibit C; Transcript pp. 104-06, 135, 205, 208-09, 237). However, as indicated above, the statute contains an exception for the otherwise required notice requirements and does not apply when a parent is not notified by the school district of the notice requirement (see 20 U.S.C. § 1412[a][C][iv][IV], 34 C.F.R. § 300.403[e]). In this case, respondent has presented no evidence that it notified petitioner of the applicability of the relevant notice requirement.5 Under these circumstances, I will not reduce or deny petitioner's request for tuition reimbursement on the basis requested by respondent (Application of the Bd. of Educ. of the East Ramapo Cent. Sch. Dist., Appeal No. 99-038; Application of a Child with a Disability, Appeal No. 99-028; Application of a Child with a Disability, Appeal No. 99-013). Further even if the respondent showed it had provided notice consistent with 20 U.S.C. § 1412[a][C][iv][IV] and 34 C.F.R. § 300.403[e], I would still find that petitioner is entitled to tuition reimbursement because she had put respondent on notice prior to the April 2, 2001 CSE meeting of her concerns and that she was considering a unilateral placement, which she confirmed by letter on May 11, 2001. With the above in mind, and in the absence of any other equitable factor, I find that equitable considerations support petitioner's claim for tuition reimbursement.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her son's tuition at Gaynor during the 2001-02 school year, upon petitioner's submission to respondent of proof of such payment.
1 The school psychologist testified that he was "not sure" why he did not provide that evaluation to the CSE (Transcript p. 56).
2 Respondent claims that there was no reason for the CSE to review its school psychologist's addendum report because petitioner did not ask that it be reviewed and because respondent prepared the document at petitioner's request as part of the child's application to a private school. None of these reasons precludes the CSE's review and consideration of this evaluation. The important thing is that respondent's school psychologist possessed the report prior to the date of the CSE meeting and, as explained herein, that it should have been considered by the CSE as it met to review the child's program for the 2001-02 school year. With respect to this, I also note that applicable state regulations provide that at its annual review meeting to develop, review, and revise a child's IEP, the CSE is required to "consider…the results of the…most recent evaluation of the child" (8 NYCRR 200.4[f][i]).
3 The hearing officer noted that the CSE minutes state that the child's self-confidence had increased and referenced the chairperson's testimony that each person who presented at the CSE meeting indicated that the child's self-confidence seemed to be improving. This, however, is inconsistent with the results of the school psychologist's clinical evaluation, and provides additional reason for that report to have been discussed and considered at the CSE meeting. I also note that the record is not clear with respect to assertions of such improvement during the 2000-01 school year. The child's resource room teacher made no claim of that in her end of year educational update, where she reported that petitioner's son had "low self-esteem in academic situations" and was "very aware of his limitations" (Exhibit E). Additionally, I note here that the record contains no written report from the child's third grade regular education teacher, no report card showing the child's performance in the third grade, and that his regular education teacher did not testify at the hearing.
4 Respondent argues that the child's placement at Gaynor during the 2001-02 school year was inappropriate in part on the basis of its school psychologist's conclusion that petitioner's son had negative feelings about himself and his academic abilities when he conducted the psychological portion of the child's triennial evaluation in the fall of 2002, after the child had been at Gaynor for a year. However, I cannot conclude because of this that Gaynor was not an appropriate program for petitioner's son and did not meet his special education needs for the 2001-02 school year. The school psychologist did not testify that the child felt worse about himself or that he had a lower self-esteem than when he was at respondent's school. He did not testify that Gaynor's program was not structured to address the child's problems with self-esteem and self-confidence and he also testified that the child advised him that Gaynor made him feel as good as he could feel. Petitioner questioned the validity of the psychologist's conclusions and she indicated that two of the three days the child met with the psychologist were prior to the beginning of the school year. I note here that respondent's psychologist did not speak to the child during the 2001-02 school year, did not review the child's grades at Gaynor for that year, or did he speak with the child's teachers there about him and his reaction to school during that year.
5 Respondent testified that she wrote her May 11 letter to give the Department "notice" that she was removing her son from respondent's elementary school (Transcript p. 234). She also testified that she did so consistent with instructions contained in the State Education Department's Parent's Guide to Special Education (Parent's Guide) (Transcript pp. 234, 240). There is no information in the record indicating that respondent provided petitioner with a copy of the Parent's Guide. I note here that the edition of the Parent's Guide in effect at the time of the CSE meeting indicated that reimbursement may be denied if a parent does not (a) inform the school district at the CSE meeting that they reject the CSE's proposed placement and state their concerns and that they will be placing their child at a private school at public expense or (b) provide the school district with ten days written notice before removing the child from the public school. But, unlike the relevant IDEA provisions, the Parent's Guide does not advise the parent that the written notice need include a statement of the parent's disagreement with the CSE's placement or of the parent's intent to place the child at a private school at public expense.