03-088

      Petitioners appeal from an impartial hearing officer's decision that denied their request for tuition reimbursement for the unilateral placement of their son in a private school for the 2002-03 school year. Respondent cross-appeals from the hearing officer's decision that the educational program offered by respondent for the 2002-03 school year was not appropriate. The appeal must be dismissed. The cross-appeal must be dismissed.

        In February 2002, the student was 14 years old and attending ninth grade at respondent's South High School (Transcript pp. 232-33). On February 15, 2002, the student's mother referred the student to respondent's Committee on Special Education (CSE) because she suspected that he had a disability requiring special education services (Exhibit SD 23).

        By letter dated February 28, 2002, the student's psychiatrist recommended that the student attend the BOCES Long Island University Program (BOCES program), a therapeutic day program designed for classified and non-classified students with emotional and psychological problems (Exhibit SD 25; Transcript p. 36). On March 18, 2002, prior to the first CSE meeting, the student began attending the BOCES program (Transcript pp. 250-51).

        On April 11, 2002, the student was admitted to New York Hospital in connection with mental health issues (Transcript pp. 253-54). The student remained hospitalized until on or around April 19, 2002 (Transcript pp. 255-56). On or around April 19, 2002, the student began attending the Ascent wilderness program in Idaho, which was recommended by a social worker employed by New York Hospital (Transcript pp. 255-56, 310).

        On May 2, 2002, while the student was still attending the Ascent program, the CSE held its first meeting (Transcript pp. 43-45; Exhibit SD 4). As a result of this meeting, the student was classified as emotionally disabled (Transcript pp. 43-45; Exhibit SD 4). This classification is not in dispute in this appeal. The CSE also recommended that the student continue to attend the BOCES program (Transcript pp. 43-45; Exhibit SD 4). Two written individualized education programs (IEPs), one for the end of the 2001-02 school year and one for the 2002-03 school year, were promulgated reflecting these recommendations (Transcript pp. 43-45; Exhibit SD 4). At the time, petitioners agreed with these recommendations (Transcript pp. 43-45; Exhibit SD 4).

        The student completed the Ascent program on or around June 5, 2002 (Transcript p. 258). From June 6, 2002 through June 17, 2002, the student attended the BOCES program (Transcript p. 149).

        From approximately July 1, 2002 to approximately August 10, 2002, the student attended the summer challenge program at the Hyde School (Hyde) (Transcript pp. 425-27, 475). Hyde is a private, residential school in Connecticut (Transcript pp. 414, 459), which the State Education Department (SED) has not approved as a school with which school districts may contract to serve students with disabilities (Transcript p. 106). The summer challenge program is a primarily non-academic program that enables students and their families to familiarize themselves with Hyde prior to the beginning of the academic year (Transcript pp. 425-26).

        On August 22, 2002, the student's mother informed respondent's Associate Superintendent for Pupil Services that petitioners were enrolling the student at Hyde for the 2002-03 school year (Transcript p. 81). On that same day, the student's mother delivered to respondent a copy of a report prepared by the student's psychiatrist which was based on an August 6, 2002 evaluation of the student (Transcript p. 49; Exhibit SD 5). In the report, the psychiatrist diagnoses the student as having Attention Deficit Disorder (ADD) and a Major Depressive Disorder, and opines that the student needs a residential setting, such as Hyde, to address his psychiatric disabilities (Exhibit SD 5).

        Upon receiving a copy of the student's psychiatrist's report, respondent arranged to have the student evaluated by a psychologist employed by respondent (respondent's psychologist) and a psychiatrist retained by respondent (respondent's psychiatrist) (Transcript pp. 49-52; Exhibits SD 6, 7). Respondent's psychologist evaluated the student on August 27 and 28, 2002, and respondent's psychiatrist evaluated the student on August 30, 2002 (Transcript pp. 49-52; Exhibits SD 6, 7).

        Respondent's psychologist and psychiatrist both issued reports dated August 30, 2002 (Exhibits SD 6, 7). Respondent's psychologist concluded that the student would benefit from a structured, therapeutic educational program designed to meet his learning and emotional needs (Exhibit SD 7). Respondent's psychiatrist concluded that the student showed signs of a Major Mood Disorder and needed a small therapeutically oriented special education program including psychological intervention (Exhibit SD 6).

        On or around September 4, 2002, the student started the regular school year at Hyde (Transcript p. 265). The CSE met again on September 13, 2002 (Transcript pp. 53-54). As a result of this meeting, the CSE recommended that the school district seek SED approval for a residential placement, and that the student remain in the BOCES program pending selection of an SED-approved residential school (Transcript pp. 54-55; Exhibit SD 11). A written IEP reflecting these recommendations was subsequently promulgated (Exhibit SD 11).

        On September 18, 2002, SED approved residential placement of the student for the 2002-03 school year at a school to be selected by the CSE (Exhibit SD 13). On that same day, respondent sent out letters to seven residential schools inquiring whether the student could be placed at those schools (Exhibit SD 14). On October 15, 2002, respondent received a letter from KidsPeace National Centers ("KidsPeace") notifying respondent that it would accept the student at its therapeutic residential program located in Pennsylvania (Exhibit SD 15).

        The CSE met again on October 31, 2002 (Transcript p. 58). A representative from KidsPeace did not attend the meeting or participate by teleconference (Transcript pp. 96-97). As a result of the meeting, the CSE recommended that the student be placed at KidsPeace (Transcript pp. 58-60). A written IEP reflecting this recommendation was subsequently promulgated (Exhibit SD 18). Petitioners did not agree with this recommendation and decided to keep the student enrolled at Hyde for the remainder of the 2002-03 school year (Exhibit SD 1).

        On January 10, 2003, petitioners requested an impartial hearing seeking tuition reimbursement for the 2002-03 school year (Exhibit SD 1). The hearing was conducted over the course of four days.

        By decision dated August 26, 2003, the hearing officer concluded that "… the facts in this case establish that the District has done everything possible to provide [the student] with a FAPE." He further determined, however, that respondent failed to prove that the CSE's recommended placement was appropriate because it failed to comply with several statutory and regulatory requirements pertaining to the development of an IEP including conducting a classroom observation and a functional behavioral assessment (FBA).

        The hearing officer also determined that petitioners failed to meet their burden of proving that Hyde was an appropriate placement because Hyde did not provide special education and therapeutic services. He also concluded that equitable considerations do not support petitioners' claim because Hyde accepted the student on February 8, 2002 for a two-year term, but petitioners did not notify respondent of their intent to place the student in Hyde until much later in the year.

        Petitioners agree with the hearing officer's conclusion that respondent failed to prove that the CSE's recommended placement was appropriate because it failed to comply with several statutory and regulatory requirements pertaining to the development of an IEP. They allege that such violations include the following: a representative from KidsPeace did not attend or otherwise participate in the October 31, 2002 CSE meeting; the CSE did not conduct a classroom observation prior to the development of the IEPs; the CSE did not conduct an FBA; the CSE did not have a valid IEP in place on the first day of school; and a special education teacher was not present at the October 31, 2002 CSE meeting. Petitioners further contend that Hyde was an appropriate placement for the 2002-03 school year. They emphasize evidence in the record indicating that the student made progress during that school year. They also contend that equitable considerations support their claim.

        Respondent asserts that the educational placement the CSE recommended for the 2002-03 school year was appropriate. It further contends that the alleged statutory and regulatory violations either did not occur or did not result in a denial of a free appropriate public education (FAPE). It agrees with the hearing officer's conclusions that petitioners failed to meet their burden of proving that Hyde was an appropriate placement, and that equitable considerations do not support petitioners' claim.

        I will first address two evidentiary issues. Petitioners request that I consider a June 10, 2003 report by respondent's psychiatrist evaluating the student (Petition Exhibit 2). Petitioners obtained a copy of the report during the course of the hearing, but after respondent's psychiatrist concluded testifying at the hearing (Transcript pp. 353-55). Petitioners attempted to introduce the document at the hearing through the student's psychiatrist (Transcript pp. 353-55). The hearing officer prohibited the introduction of the report on the grounds that it is not relevant and it should be introduced through respondent's psychiatrist (Transcript pp. 353-55). The fact that an individual who prepares a report was not physically present to testify at the hearing is not dispositive of the report's admissibility (see, Application of a Child Suspected of Having a Disability, Appeal No. 93-18). The twin criteria for admission of evidence into the record in impartial hearings are relevance and reliability (Application of the Bd. of Educ. of Avon Cent. Sch. Dist., Appeal No. 02-076). The June 10, 2003 psychiatrist's report meets these criteria. A State Review Officer may consider evidence of a student's progress during a school year in considering whether parents have met their burden of proving the appropriateness of the private school placement during that school year (see, Application of a Child with a Disability, Appeal No. 98-38). The psychiatrist's report includes evidence of the student's progress. Moreover, respondent does not deny the authenticity of the document. Accordingly, I have accepted and reviewed this document.

        Petitioners also attached to their petition a copy of the student's IEP for the 2003-04 school year (Petition Exhibit 1) for my consideration. They did not receive a copy of this document until after the close of the hearing (Petition p. 39, footnote 16). Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable me to render a decision (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024). The IEP for the 2003-04 school year was unavailable at the time of the hearing. It is also relevant to the issues in this case because it includes evidence of the student's progress. Moreover, the school district does not dispute its authenticity. Accordingly, I have accepted and reviewed this document.

        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).

        If a recommended placement is to be in a school other than the school district in which the student would normally attend if the student did not have a disability, the school district must ensure that a representative of that school attend the CSE meeting in which the IEP containing such recommendation is developed (34 C.F.R. § 300.349[a][2]; 8 NYCRR 200.4[d][4][i][a]). If a representative of the school cannot attend, the school district must use other methods to ensure participation by the school including individual or conference telephone calls (id.). The CSE developed a recommendation that the student be placed at KidsPeace for the 2002-03 academic year at its October 31, 2002 meeting, but that a representative of KidsPeace did not attend or otherwise participate in this meeting (Transcript pp. 58-60, 96-97). Accordingly, respondent violated the IDEA's implementing regulations and the regulations of the Commissioner of Education.

        Having found a procedural violation, I must now determine whether this procedural violation resulted in the loss of educational opportunity, or seriously infringed on petitioners' participation in the creation or formulation of the IEP (Knable v. Bexley City Sch. Dist., supra.; Application of a Child with a Disability, Appeal No. 02-111). I find that respondent's failure to arrange to have a representative from KidsPeace participate in the October 31, 2002 CSE meeting did seriously infringe on petitioners' participation in the creation and formulation of the IEP. Because a representative of KidsPeace was not present at that meeting, the student's mother, who participated in that meeting, did not have an opportunity to ask questions or raise concerns about KidsPeace with an individual who would have a greater knowledge of KidsPeace than any of the participants in the meeting. Moreover, no one from KidsPeace contacted petitioners either before or after the CSE meeting (Transcript p. 268). Accordingly, petitioners did not have an opportunity to discuss the recommended school with a representative from that school. This is particularly significant in the present case because the student's mother testified that she did have a number of concerns about KidsPeace (Transcript pp. 268-69). A representative of KidsPeace may have been able to address these concerns if he or she participated in the October 31, 2002 CSE meeting. Because I have determined that respondent did not meet its burden of demonstrating the appropriateness of the program recommended by its CSE because a representative of KidsPeace did not participate in the October 31, 2002 CSE meeting, I need not determine whether respondent committed any other procedural violations or whether any such violations also resulted in the denial of FAPE.

        Turning to the question of whether placement at Hyde was appropriate, petitioners bear the burden of proof with regard to the appropriateness of the educational program for which they seek 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, petitioners must show that Hyde offered an educational program which met their 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).

        In order to determine whether the private school addressed the student's special education needs, it is necessary to determine what those needs were during the 2002-03 school year. I agree with the hearing officer's finding that the student needed a placement at a school with therapeutic services. The school's psychologist and psychiatrist, as well as other witnesses with expertise in special education, all testified that the student needed such services including psychotherapeutic counseling to address his emotional disability (Transcript pp. 62-63, 125-26, 201-03, 212-13). I further agree with the hearing officer's finding that the parents failed to establish that Hyde sufficiently provided such services. On this issue, the only representative from Hyde who testified at the hearing, its director of studies, testified that the school does not consider itself a therapeutic school, and that the school does not provide special education services (Transcript pp. 448, 488-89). Moreover, although the student's psychiatrist recommended that he attend Hyde, he also testified that he does not know whether the school provides therapeutic services (Transcript pp. 382-83).

        I note that I have considered evidence concerning the student's progress during the 2002-03 school year. This evidence is mixed. For example, the IEP developed for the 2003-04 school year, and the school psychiatrist's report dated June 10, 2003, both indicate that the student's Major Depressive Disorder is in remission (Petition Exhibits 1, 2). On the other hand, Hyde's academic year is divided into trimesters, and his academic performance declined significantly in the third trimester (Transcript p. 441). The evidence of his progress is not sufficient to alter the conclusion that his placement at Hyde was not appropriate because the school did not sufficiently provide the special education services required to meet his emotional needs.

        Because petitioners have not met their burden of proving that Hyde was an appropriate placement for the 2002-03 school year, I need not address the issue of whether equitable considerations support petitioners' claim.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.