03-107

          Petitioner appeals from the decision of an impartial hearing officer which denied her request for reimbursement of her daughter's tuition at the Family Foundation School (Family School) for the 2002-03 and 2003-04 school years because the Family School was not an appropriate placement.  Respondent cross-appeals the impartial hearing officer's determination that it did not provide petitioner's child with an appropriate placement during the 2002-03 and 2003-04 school years.  Respondent also cross-appeals the order that it continue to pay for tutoring.  The appeal must be sustained.  The cross-appeal must be sustained in part. 

            At the time of the hearing, petitioner's daughter was 14 years old and classified emotionally disturbed (Exhibit F).  In April 2001, the Orange County Department of Social Services (DSS) filed a neglect petition against petitioner and ultimately obtained custody of her daughter (Exhibit 2).  From April 2001 through April 2002, the student resided at St. Dominic's Home (St. Dominic's), a temporary emergency care facility for adolescents (Exhibit U2).  During that time, she attended school in the South Orangetown Central School District (South Orangetown).  In April 2001, the South Orangetown Committee on Special Education (CSE) recommended placement in a special class with a student to staff ratio of 8:1+2 and group counseling once a week (Exhibits AA and L).  While the student was residing at St. Dominic's, petitioner explored the possibility of placing her daughter in the Family School.  In a letter dated March 8, 2002, a Family School official indicated that petitioner's daughter was an appropriate candidate for the school (Exhibit Q).  In April 2002, the student was removed to the McQuade Shelter (McQuade) after a serious allegation at St. Dominic's (id.). 

            Effective June 4, 2002, a Family Court judge found that the DSS failed to sufficiently investigate the serious allegation at St. Dominic's and failed to investigate placement in a foster home (Exhibit 4).  The judge ordered that nonphysical custody of the student be returned to petitioner and that the student be enrolled at the Family School (Exhibit 3).  The judge denied petitioner physical custody because of serious concerns about the appropriateness of her returning home (Transcript pp. 154-55, 161).  The Family School is not approved by the State Education Department as a school that a board of education may contract with to provide special education services.  On June 13, 2002, the Middletown CSE convened and recommended that the student be classified emotionally disturbed (Exhibit L).  It recommended placement in a special class at the Board of Cooperative Educational Services (BOCES) with a student to staff ratio of 8:1:1 and group counseling once a week for 30 minutes (id.).  The CSE convened on June 13, 2003 and recommended that same program for the 2003-04 school year (Exhibit F).   

            The student entered the Family School in June 2002, and on July 15, 2003, petitioner requested an impartial hearing to obtain tuition reimbursement for both the 2002-03 and 2003-04 school years (Exhibit C).  The hearing took place over the course of six days, beginning on July 28, 2003 and concluding on September 22, 2003.  During the first two days, the hearing officer received evidence pertaining to the student's pendency placement.  Petitioner asserted that the Family School was her daughter's pendency placement.  Respondent claimed that the student's pendency placement was the special class recommended by the South Orangetown CSE for the 2001-02 school year.  Alternatively, respondent asserted that the student should have been regarded as an initial entrant in the public school system, with general education being her pendency placement.  The hearing officer concluded that petitioner could determine her daughter's pendency placement by choosing between the special class recommended by the CSE or a general education placement (Interim Decision of Hearing Officer, August 27, 2003).  The hearing officer also ordered the district to continue to pay for 10 hours per week of tutoring (id.).  

            The hearing officer issued her final decision on October 15, 2003.  She found that the school district did not recommend an appropriate placement for either the 2002-03 school year or the 2003-04 school year.  The hearing officer further found that the Family School was an inappropriate placement for the student, and she denied petitioner's request for tuition reimbursement for both the 2002-03 and 2003-04 school years.  She ordered the district to perform a psychological evaluation and a psychiatric evaluation if recommended by the psychologist.  Finally, she ordered the CSE to reconvene within 15 days of the order to review the evaluation and recommend an appropriate, state-approved residential placement for the student.  

            Petitioner appeals asserting that the Family School was an appropriate placement.  She seeks a determination that the Family School is her daughter's pendency placement and requests tuition reimbursement for the 2002-03 and 2003-04 school years.  Respondent cross-appeals, asserting that the placements it recommended for the 2002-03 and 2003-04 school years were appropriate and that the hearing officer did not have jurisdiction to order payment for tutoring pursuant to section 3202(6) of the Education Law. 

            The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) requires that children with disabilities be provided a free appropriate public education (FAPE) (20 U.S.C. § 1412[a][1]).  A FAPE includes special education and related services provided in conformity with an individualized education program (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. § 1400[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 v. Dept. of Educ., 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 (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

            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 IDEA, and (b) that the 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. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  The Second Circuit has observed that "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [internal quotation marks and citations omitted]; see Walczak, 142 F.3d at 130).  The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            An appropriate educational 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). 

            When the CSE convened in June 2002, it reviewed a psychiatric screening report, a social/medical update, an educational evaluation and a psychological evaluation (Exhibits U1, II, FF, 1, GG).  The evaluations revealed that the student's intellectual functioning was in the low average range, however the psychologist opined that her potential was likely higher (Exhibit GG).  The social/medical evaluation considered by the CSE indicated that the South Orangetown School District had conducted an educational evaluation and that the student underwent a psychological evaluation and a psychiatric evaluation while at St. Dominic's (Exhibit II).  The educational evaluation from South Orangetown revealed scores in the average range for reading and math and the high average range for written expression (Exhibit AA).  The psychological evaluation conducted while the student was at St. Dominic's yielded IQ scores in the average range.  The psychologist also reported that the student exhibited feelings of isolation, rejection and anger.  He recommended a residential placement and individual psychotherapy (Exhibit U2).  The psychiatrist diagnosed the student with disruptive behavior disorder, not otherwise specified and recommended a group home or residential placement (Exhibit CC). 

            The CSE recommended placing the student in a special class at BOCES with group counseling once a week for 30 minutes (Exhibit L).  The IEP does not address the student's need to be educated in a residential setting, as the psychiatrist and psychologist from St. Dominic's had both recommended (Exhibits CC and U2).  In addition, the IEP goals and objectives are inconsistent with the student's needs.  The Supreme Court has defined the IEP as the centerpiece of the IDEA's educational delivery system (Honig v. Doe, 484 US 305, 311 [1988]).  "The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 [2d Cir. 2002]).  The IEP is not just a description of the services to be provided to a child; it also must include "measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs" (34 C.F.R. Part 300, Appendix A, Question 1). Hence, service providers must refer to the IEP continuously throughout the year in order to gauge its effectiveness in meeting short-term goals and benchmarks and make appropriate revisions where necessary. 

            Four of the five English/language arts goals focus on improvement of decoding skills, reading comprehension and written communication, even though the IEP indicates that the student demonstrates strength in decoding, reading comprehension and written communication.  The behavioral goals and objectives are not clearly defined and are not measurable.  The behavioral goals focus on improvement of social interaction skills and self-control.  The corresponding objectives, however, do not constitute measurable steps or milestones.  The student's IEP includes a goal to improve social interaction skills.  The one corresponding objective indicates that the student would participate in positive adult and peer interactions.  Another goal emphasizes age appropriate self-control.  The corresponding objectives indicate that the student would identify stressful situations, refrain from inappropriate behaviors and demonstrate a positive alternative to present behaviors.  The IEP does not indicate how a teacher or service provider would measure the student's success with the objectives (Exhibit L).  The defects in the child's IEP were of such a nature and number to compel me to conclude that respondent has failed to meet its burden of proving the appropriateness of the CSE's recommendation.

           The program recommended for the 2003-04 school year was also inappropriate.  The CSE acknowledged that the student had been placed by her mother in a residential school and that the student had severe emotional needs that required counseling.  The CSE did not, however, consider placement in a residential facility even after petitioner requested a list of state-approved residential placements (Transcript pp. 503-04).  The CSE also continued to recommend group counseling once a week for 30 minutes (Transcript p. 511; Exhibit F).  Although the CSE performed updated educational testing (Exhibit 15), it did not conduct an updated psychological evaluation.  Formal administration of subtests of the Weschler Individual Achievement Test-II (WIAT-II) on May 15, 2003 yielded reading composite and written language composite scores in the average range.  The IEP does not indicate that the student has reading and writing needs, yet the IEP includes reading and writing goals and objectives (Exhibit F).  Finally, the gender distribution of the class was inappropriate given the allegations at St. Dominic's (Transcript p. 307; Exhibit DD).  As in the previous year, the program recommended for the 2003-04 school year contained inadequacies in the child's IEP that were of such a nature and number to compel me to conclude that respondent has failed to meet its burden of proving that the CSE's recommendation was reasonably calculated to meet the student's intense social and emotional needs. 

            Petitioner bears the burden of proof with regard to the appropriateness of the educational program for which she seeks reimbursement during the 2002-03 and 2003-04 school years (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 the Family School offered an educational program which met her daughter'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 her needs were during the 2002-03 and 2003-04 school years.  The student has reportedly been diagnosed with oppositional defiant disorder, impulse control disorder not otherwise specified, depressive disorder not otherwise specified, and parent-child relational problem.  Projective testing suggested insecurity, impulsivity, suspiciousness, anger, antisocial attitudes and emotional impoverishment (Exhibit U1).  The student reported feelings of isolation and rejection (Exhibit U2).  The psychiatrist from St. Dominic's opined that the student had suffered from excessive corporal punishment (Exhibit CC).  The district's psychologist described the student as "highly insecure" and "struggling with self esteem" (Exhibit GG).    Although the student's most recent I.Q. scores fell into the low average range, the psychologist opined that her cognitive potential was higher (Exhibit GG). 

            At the Family School, the student participates in weekly group counseling and a weekly social skills group for students who have difficulty with anger and social control.  She also meets in a small group with a counselor once or twice per week (Transcript pp. 653-54).  All the students in the Family School are placed in subgroups called "families."  The families eat meals together and after the evening meal, members of each family are free to discuss problems they may be experiencing.  The student's family consists of 30 students and 12 staff members.  The family leader testified that the student appropriately seeks attention and positive encouragement from adults in her family (Transcript p. 651). 

            After the student was returned to the custody of her mother in June 2002, she was not allowed to return to her mother's home because in the past she had allegedly physically threatened her younger sister (Transcript pp. 154-55, 161).  At the time of the hearing, the student had not threatened violence or had outbursts for two months (Transcript p. 660).  When the student arrived at the Family School, she began to have incidents of bed wetting (Transcript p. 526).  During the winter of 2002-03 she carved the word "dad" on her arm with her fingernail (Transcript pp. 716-17).  No other such instances of self-abusive behavior were reported and incidents of bed wetting ceased sometime after March 2003 (Transcript pp 659-60).  While at the Family School, the student's personal hygiene had improved and she had started to make friends (Transcript p. 525). 

            The student's class at Family School has four girls and four boys.  If a need for educational evaluations is identified after his or her behavior is stabilized, a staff special education teacher conducts the evaluations (Transcript pp. 661-62).  Low attention span and low frustration tolerance are addressed by adjusting the number of people in the classroom, and the number and intensity of the teachers working with the student.  Within the environment, extraneous noise is reduced and redirection to task at hand is provided.  In addition, there is flexibility in the amount of content provided within manageable amounts of time to work on that content, allowing the student's frustration to be kept to a minimum and her feeling of success to increase (Transcript p. 540).  The student's grades were erratic prior to entering the Family School (Exhibits 16, JJ) as well as during her first year in the Family School's program (Exhibit 12).  In May 2003, the student achieved passing grades in three of five of her core academic courses.  In June and July 2003, the student failed all of her core courses, but her counselor attributed the student's failing grades at that time to an emotionally upsetting incident involving the student's father.  The Family School representative testified that she had considered having the student evaluated by the staff special education teacher subsequent to that marking period, but the student's grades had begun to improve at the time of the hearing in September 2003 (Transcript pp. 667-68). 

            Based upon my review of the record I find that the Family School adequately addressed the student's immediate emotional needs, and she benefited educationally to some degree from the stable and predictable residential environment which the Family School offered.  Testimony also indicates that the Family School provided the student with a living situation composed of a group of caring individuals who ensured that consistency was maintained.  However, I am concerned that the Family School did not provide the student with access to staff with the clinical expertise to address the student's identified mental health concerns and psychiatric diagnoses.  The student has, in her brief history, experienced significant changes, inconsistencies and trauma.   The Family School offers the services of a licensed psychiatrist and psychologist in the community to those students who are identified as requiring those services, but staff at the school did not arrange for these services when the student engaged in self abusive behavior or at any other time.  The student had episodes of enuresis for over nine months, but there is no indication in the record that either psychological or medical assessments were initiated to determine if the cause was emotional or physical.  Although her immediate needs for consistency and physical safety were adequately addressed, the record indicates that the student has serious emotional needs which require significant clinical intervention.  With these clinical services in mind, I will direct respondent’s CSE to convene to fully reevaluate the student's social and emotional needs, and to consider the recommendations made in the psychological and psychiatric evaluations performed while the student was a resident of St. Dominic's Home, which the CSE should have considered in June 2002 and June 2003.

         Respondent appeals the hearing officer's order to continue payments for tutoring in accordance with section 3202(6) of the Education Law.  I agree with respondent that the hearing officer was without jurisdiction to issue such an order because the issue was not adequately raised at the hearing.

         I need not address the issue of pendency because I have found the parent's placement appropriate.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent shall reimburse petitioner for her expenditures of her daughter's tuition at the Family School for the 2002-03 and 2003-04 school years, upon presentation to respondent of proof of such expenditures; and

IT IS FURTHER ORDERED that the CSE immediately reevaluate the student’s social and emotional needs and conduct additional evaluations as appropriate; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that the CSE reconvene within 30 days to recommend a therapeutic residential placement for the student consistent with the psychological and psychiatric evaluations performed while the student was a resident of St. Dominic's Home and consistent with any subsequent reevaluation assessments.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.