03-106

          Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at the Family Foundation School (Family Foundation) for the 2002-03 school year. The appeal must be dismissed.

        At the outset, I will address two procedural issues. Respondent seeks dismissal asserting that petitioners violated the requirements of 8 NYCRR 275.10 by failing to have a clear and concise statement of claim in the petition. Respondent further asserts that petitioners did not comply with 8 NYCRR 279.4 which requires the identification of the challenged sections of the hearing officer's decision and a brief description of the relief requested from the State Review Officer.¹ I have reviewed the petition, and I find that it sufficiently states petitioners' claim to enable respondent to prepare its answer to the petition and adequately states its request for relief. I find respondent's assertions unpersuasive, and will address the merits of the petition.

        At the time of the hearing, petitioners' son was 17 years old and in the 11th grade, beginning his second year at Family Foundation, a 12-month, nonpublic, residential school located in Hancock, New York. Family Foundation has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. The student’s current classification of emotionally disturbed (ED) is not at issue on appeal.

        A review of the record reveals that the student has a significant history of clinical depression and substance abuse and was referred to the Committee on Special Education (CSE) for evaluation on December 17, 2002 (Joint Exhibit 41). This parent-initiated referral was made subsequent to the student's refusal to accept services offered in a proposal to develop an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504) (Transcript p. 879; Joint Exhibit 86) as discussed by district evaluation and pupil service teams in March and April of 2002 (Transcript p. 326; Joint Exhibits 27, 30, 78). In September 2002, petitioners also declined respondent's counselor's referral to the Phoenix School, a Board of Cooperative Educational Services (BOCES) service delivery program for students with drug and alcohol dependence (Transcript p. 70; Joint Exhibits 37, 38, 57).

        In response to the parent referral, the CSE met on January 30, 2003 and March 13, 2003 to determine the student's eligibility for special education programs and services pursuant to Part 200 of the Regulations of the Commissioner of Education (Transcript pp. 43, 48-49; Joint Exhibits 45, 48, 55, 56, 57, 86). After conducting evaluations and reviewing the psychological, neuropsychological, and teacher reports (Joint Exhibit 55), the CSE determined that the student was ineligible for special education (Transcript p. 96). At the CSE meeting on January 30, 2003 the parents had requested ED classification for their son and his placement at Family Foundation. Instead, the CSE recommended conducting further evaluations and reconvening in March 2003 to review evaluation results (Joint Exhibit 86). By letter dated January 23, 2003, subsequent to the student's placement at Family Foundation, but prior to the scheduled CSE meeting, petitioners' attorney requested an impartial hearing for the purposes of determining classification and placement, as well as obtaining an award of tuition reimbursement for the student's 2002-03 enrollment at Family Foundation (District Exhibit 2).

        The hearing commenced on April 28, 2003 and concluded on July 16, 2003. In a decision dated October 20, 2003, the hearing officer found that respondent violated its child find obligation,² and failed to sustain its burden to show that the student did not meet the criteria for classification as ED. The hearing officer determined that the student experienced a marked degree of depression over a long period of time that adversely affected his educational performance and directed that the student be classified as ED. The hearing officer's finding with respect to classification has not been appealed and is therefore final. The hearing officer ordered respondent’s CSE to promptly review the student’s needs and to develop an appropriate program to address them. The hearing officer also determined that because respondent improperly found the student ineligible for special education services, it could not establish that it offered the student a free appropriate public education (FAPE). That determination also has not been appealed and is final. The central issue before me, therefore, is whether the private services obtained by the parents for their son were appropriate to meet his educational needs and, if so, whether equitable considerations support the parents’ claim for tuition reimbursement. In reviewing the appropriateness of the parental placement, the hearing officer determined that placement at the Family Foundation did not meet the student’s educational needs and that residential placement was overly restrictive. I agree. Further, I adopt the findings of facts as determined by the hearing officer in his thorough and well-reasoned decision.

        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 (Sch. Comm. of Burlington v. Dep't 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]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 02-006; Application of a Child with a Disability, Appeal No. 01-096; Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487).

        To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the individualized education program (IEP) that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

        The student's first treatment for depression was during the 1996-97 school year, when he was in fifth grade (Exhibit 18). This was followed by diagnoses of depression provided by three psychologists, supported by examples of the manner in which this disability adversely impacted upon his studies (Transcript pp. 672, 762, 772, 1176, 1181-82, 1235-36, 1250, 1258; Joint Exhibits 18, 31). Two of these psychologists testified that the student's drug abuse was related to his depression (Transcript pp. 632, 671, 1192, 1235-36). A fourth psychological assessment relying on patient and teacher generated information, without consideration of the student's therapy and medication history, focused on the student's lack of depression at the time of evaluation (Transcript p. 993). I agree with the hearing officer and find this particular assessment to be unpersuasive.

        Two independent psychologists who provided therapeutic services to the student offered diagnoses of depression preceding and then concurrent with his substance abuse (Transcript pp. 632, 634, 1186). Although there was limited testimony regarding the possibility that the severity of the student's depression may have varied over the years (Transcript pp. 1193-94), the results of the February 2003 Minnesota Multiphasic Personality Inventory (MMPI) indicated that symptoms of depression were prominent while he was attending Family Foundation (Transcript pp. 1206-08; Exhibit 91).

        Despite the availability of psychological evaluations supporting a well- established diagnosis, the Family Foundation family leader, responsible for the simulated family unit to which the student belonged, testified that she did not know that the student had a diagnosis of depression (Transcript p. 1341). Although the family leader concurred with the two psychologists regarding the need to address the underlying reasons for the student's substance abuse (Transcript pp. 1033, 1329), she did not acknowledge depression as the underlying cause, concluding instead that the student's behavior was the result of "[l]aziness, dishonesty . . . [and] deceitfulness" (Transcript p. 1349).

        Both psychologists who testified for the parents recommended that the student receive an intensive therapeutic program that included both professional counseling and psychiatric services (Transcript pp. 756, 766-67, 1238, 1240-42, 1252-53). However, the student did not receive counseling services from the Family Foundation's psychiatrist, psychologist or social workers (Transcript pp. 1330, 1341, 1441, 1446). In point of fact, group therapy rather than individual therapy was provided at Family Foundation (Transcript p. 1290).

        Counseling services at Family Foundation consisted of approximately one hour per week of group counseling provided by an unlicensed counselor whose expertise was based on a lifestyle committed to 12-step program principles (Transcript p. 1330). Although the 12-step program was reasonably calculated to meet the student's need for substance abuse counseling, the 12-step program, as articulated by the family leader, did not meet the student's need for professional therapy and counseling to address the depression affecting his educational progress.

        In addition, the student was still having difficulty meeting his academic responsibilities at Family Foundation, notwithstanding his above average cognitive skills.³ As of April and May of 2003, he would have received incompletes in all of his academic subjects had he been graded (Transcript p. 1462) although he ultimately passed all of his courses. The family leader testified that the student had the ability to learn, but that his poor emotional attitude hindered his progress (Transcript p. 1327). I note that the student's cognitive ability has never been in question.

        The student had a history of failing to complete homework assignments while attending public school (Transcript pp. 854-57; Joint Exhibits 7A, 31, 54). At Family Foundation he was also unable to complete assignments in a timely manner; this was due, in part, to his two-month period removal from class based on his resistance to the program rather than on academic grounds (Transcript pp. 1122-23, 1331-32, 1462). Despite his need for tutoring, as evidenced by the incompletes (Transcript p. 1462) and erratic grades on report cards (Transcript p. 1115-17) at Family Foundation, as well as tutoring recommendations from his former psychologist (Joint Exhibit 31) and respondent's instructional support team (Joint Exhibit 7A), the family leader could not testify as to whether the student received tutoring at Family Foundation (Transcript p. 1327).

        In addition to appropriate counseling and academic needs not being adequately addressed, I agree with the hearing officer's determination that petitioners did not show that a residential setting was necessary to provide their child with an appropriate education. The student's recommended program must be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). 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 (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000], cert. den., 532 U.S. 942, 121 S. Ct. 1403 [2001]). In deciding whether a school district must fund a residential placement, a determination must be made as to whether the child requires the residential program to receive educational benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 95-19).

        Based upon the record before me, the student did not demonstrate a need for a residential program and did not receive the recommended professional counseling for his depression or adequate academic assistance from Family Foundation. Accordingly, I find that petitioners have not sustained their burden to show that Family Foundation provided an educational program which met the student's special education needs during the 2002-03 school year and are not entitled to tuition reimbursement. Because petitioners have not established the merits of their claim for tuition reimbursement, I need not address the issue of whether equitable considerations support their claim (Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 03-088).

        Because I have sustained the hearing officer’s determination that the private school placement did not meet the student’s educational needs, I need not address his determination regarding the district’s referral and evaluation procedures. I have considered petitioners' other claims and I find them to be without merit.

        THE APPEAL IS DISMISSED.