04-025

         Petitioners appeal from an impartial hearing officer's decision which denied their request for reimbursement for their son's tuition at the Waldorf School  (Waldorf) for the 2003-04 school year. Respondent cross-appeals the portion of the impartial hearing officer's determination that ordered it to reimburse petitioners for their son's tuition at Waldorf for a portion of the 2002-03 school year.  The appeal must be sustained in part.  The cross-appeal must be sustained in part.

            At the time of the hearing, petitioners' son was 11 years old and attending sixth grade at Waldorf, where his parents had unilaterally placed him for the 2003 spring semester and for the 2003-04 school year.  Waldorf, formerly known as the Spring Hill Waldorf School (Exhibit K), is a private school that has not been approved by the Commissioner of the New York State Education Department as a school with which school districts may contract to serve students with disabilities (Education Law § 4401 [2]).  The student is classified as other health impaired (OHI) and his classification is not in dispute.

            Petitioners' son attended kindergarten in a public school in another district where he received support services as a nonclassified student (Transcript p. 864).  He was classified as OHI in respondent's district while in first grade during the 1998-99 school year (Transcript pp. 38-39, 54, 137).  Classification was based on attentional deficit needs (Transcript pp. 179-80). 

            Psychological evaluations conducted in 1998 and 2001 reflect continuing difficulty with attention and focus (Exhibits 10, 11). A 2001 physical therapy/occupational therapy evaluation revealed attentional and sensory integrative dysfunction as evidenced by the student's poor body kinesthesia and modulation of movement, his difficulty transitioning between classes, and his need to use sensory based strategies to maintain focus (Transcript pp. 312-13, 334, 519; Exhibits F, 3). 

            The student attended general education programs in the district from first grade in the 1998-99 school year (Transcript p. 39) until December 2002, in the middle of his fifth grade year(Transcript pp. 42, 983).  Throughout those years, the student received related services of occupational and physical therapy, remedial reading, and speech therapy on a pull-out basis (Transcript pp. 39-40, 72-73, 544, 942; Exhibits 4, B, Y, CC, KK).  Consultant teacher services and paraprofessional assistance supplemented his program for the student's fourth grade year in 2001-02 and in fifth grade during the first four months of the 2002-03 school year (Exhibits 4, B).  In January 2003, during their son's fifth grade year, petitioners unilaterally placed their son at Waldorf for a six-week trial period (Transcript p. 791) were he remained for the remainder of the 2002-03 school year.  The parents testified that this unilateral placement was based, in part, on their fear for their son's well being in the public school (Transcript pp. 41-42, 63, 703-04, 708, 710-14, 810).  The student continued his education in the sixth grade at Waldorf during the 2003-04 school year.     

            Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) in 2001 yielded a high average range verbal IQ score of 114, an average range performance IQ score of 104, and a high average range full scale IQ score of 110 (Exhibit 11).  Relative weaknesses were identified in arithmetic reasoning, psychomotor speed, and visual matching speed.  The Woodcock Johnson Tests of Achievement-Revised (WJ-R), also administered in 2001, revealed grade norm percentiles of 50 percent in broad reading, 31 percent in broad math, and 38 percent in broad written language, indicating that the student's reading performance was within grade level expectations, but he was experiencing difficulties in math and writing skills. 

            Administration of the Bruininks-Osteretsky Tests of Motor Proficiency (BOT) in October 2001 and April 2003 yielded above average age equivalent scores on subtests measuring the student's running speed and agility, but revealed delays in his balance and bilateral coordination (Exhibit 15).  Decreased balance, proximal stability, coordination and gradation of movement were cited as causing the student to appear impulsive in his motor output and responses (Exhibit 15).  The use of prior demonstration, verbal cues, and task repetition were reported to improve performance, but the evaluator noted that verbal cues could be ineffective and possibly confusing due to the student's demonstrated difficulties with auditory processing.  Although a 1998 WISC-III reported significant delays in visual motor ability (Exhibit 10), above average scores on the Developmental Test of Visual-Motor Integration (VMI) administered in both October 2001 and April 2003 indicated that the student had the visual and motor skills necessary to write and to perform other challenging visual motor and perceptual motor tasks (Exhibit 15).  Evaluators suggested that the student's difficulties in writing were related to his distractibility and lack of attention.     

            According to a Sensory Profile completed in 2001, the student was under-responsive when presented with auditory and vestibular input, but was also “sensory seeking”(Exhibit F). To compensate for this deficiency, respondent’s evaluators recommended a strategy incorporating increased movement opportunities during the day.  Discrepancies were noted between the home and school environments in the student's behavioral and emotional responses.  At home and at school, the student displayed immaturity, sensitivity to criticism, and difficulty perceiving body language and facial expressions.  Teachers reported he was perceived as being emotionally and physically vulnerable and as having difficulty in forming friendships. 

            Additional evidence also indicated that the student demonstrated difficulties in the areas of attention span, impulse control, and self-regulation, as well as deficits in fine and gross motor skills (Transcript pp. 133-34, 196; Exhibits 4, 7), speech (Transcript p. 537; Exhibit 4) and organizational skills (Exhibits 4, 7). 

            The student is almost 6 feet 11 inches tall and he has always been a large child (Transcript pp. 716, 874-75).  Rapid growth and above average height and weight placed him at risk for coordination and sensory integration disorders (Exhibit D).  His difficulty with movement and voice modulation affected the quality of his motor responses (Exhibit 7), as demonstrated by his tripping and bumping into other people and objects (Transcript pp. 187, 197, 442).  Moving safely through the school environment was also a concern because of his size (Transcript pp. 55, 186-87, 703-04; Exhibit 4).  Although the student is much larger than his peers, he reportedly does not perceive this difference in size (Exhibit 11).  He has struggled at times with social skills (Transcript p. 147; Exhibits 4, 7) and has had difficulty forming friendships in the public school (Transcript p. 215; Exhibit 4).  The student's fifth grade public school teacher testified that other children would sometimes ask to be moved away from the student because he was distracting them in class (Transcript p. 205). 

            To address the student's educational needs in the 2002-03 school year, the May 22, 2002 Committee on Special Education (CSE) recommended that he be enrolled in a fifth grade general education program, with a paraprofessional aide assisting multiple students, assigned according to a varied schedule for five hours daily (Exhibit 4).  The aide was to provide services to a small group of students in the classroom (Exhibit 4).  The CSE also recommended individual consultant teacher services in the areas of math and written language for ten hours a week, and small group direct consultant teacher services outside of the general education program for 30 minutes, five times a week.  In addition, the CSE recommended that the student receive group occupational therapy and group physical therapy, each for 30 minutes once a week as pull-out services.  The CSE also recommended program supports that included adult assistance with organization and refocusing, and with transitions throughout the school day.  Recommended test accommodations included assistance with the reading and explanation of directions and repetition of listening comprehension selections, as well as the provision of extended time for test taking in a small group setting, in a location separate from the classroom, with cuing to help the student focus. Provision of a word processor and an arithmetic table during test taking was also recommended, in addition to the accommodation of a large desk for both classroom and test room.

            Petitioners initially accepted the May 22, 2002 CSE's recommended educational program.  Their son attended the district's public school program until December 13, 2002 (Transcript pp. 43, 789).  On December 17 and 18, 2002, the student attended a two-day trial enrollment at Waldorf (Transcript p. 984).  On December 20, 2002, the student's mother cleaned out his school locker (Transcript pp. 984-85).  On January 6, 2003, the student began a six-week trial enrollment at Waldorf (Transcript p. 985).  Approximately one week later, the student's mother spoke to respondent's CSE chairperson regarding her son's removal from public school based upon alleged mistreatment of the student by a special education teacher, and alleged prior public school teacher recommendations that her son be placed in a private school (Transcript p. 986).  Petitioners' son completed the balance of his fifth grade year at Waldorf (Transcript pp. 673-74) and remained there for his sixth grade year in 2003-04 (Transcript p. 50).     

            By letter dated September 19, 2003 directed to respondent's CSE chairperson, petitioners requested reimbursement for their son's tuition at Waldorf for the period commencing December 17, 2002 and terminating August 15, 2003, as well as for remaining tuition unpaid as of the date of the letter.  Petitioners further notified respondent that they planned on initiating due process proceedings, should respondent refuse to reimburse their tuition costs (Exhibit 8).  By letter dated September 30, 2003, respondent notified petitioners that it would not be reimbursing their tuition costs because petitioners had voluntarily removed their son from the district, respondent's CSE had not placed petitioners' son at Waldorf, and special education services, as determined by respondent's CSE at the May 29, 2003 annual review meeting, continued to be provided to the student by the district (Exhibit 9).  Due process proceedings in response to petitioners' September 19, 2003 letter were conducted (Transcript p. 29).  An impartial hearing commenced on November 18, 2003 and concluded on February 23, 2004, after five days of testimony. 

            In a decision dated March 24, 2004, the impartial hearing officer concluded that the student's 2002-03 individualized education program (IEP) for his fifth grade year was inadequate because it lacked a functional behavioral assessment (FBA) and a behavioral improvement plan (BIP), and thereby, failed to provide the student with a free appropriate public education (FAPE) for the fifth grade year (IHO Decision pp. 6-7).  The impartial hearing officer further determined that petitioners did not comply with notice requirements regarding their intent to withdraw their son from the district's schools, but were excused from this requirement pursuant to 34 C.F.R. § 300.403(e), based on petitioners' genuine fear for their son's well being (IHO Decision p. 6).  The impartial hearing officer also determined Waldorf to be an appropriate placement, based on significant physical and social improvements, as well as academic (writing) gains (IHO Decision p. 7), and ordered the district to pay tuition for the student's spring semester of his fifth grade year, calculated as 50 percent (50%) of the Waldorf 2002-03 school year tuition (IHO Decision p. 7).  The impartial hearing officer further determined that petitioners were not entitled to reimbursement for their son's sixth grade year tuition due to their failure to meet notice requirements regarding requests for reimbursement, and were not entitled to reimbursement for future years' tuition unless a future IEP was found to be invalid and proper notice of their rejection of the IEP was provided by petitioners to respondent (IHO Decision p. 7).    

            Petitioners contend on appeal that the impartial hearing officer erred by finding they delayed nine months in requesting tuition reimbursement for the 2003-04 school year and by concluding that such a delay is equitably inexcusable.  Petitioners argue that the delay in requesting reimbursement for the 2003-04 school year was three months and twenty-one days, as calculated from the May 29, 2003 CSE meeting date to the September 19, 2003 date of the letter requesting reimbursement from respondent.  They further argue that the delay was "not unreasonable for parents to find out and understand their rights."  Petitioners assert that the delay caused no prejudice to respondent since respondent had allegedly agreed to place their son at Waldorf, as indicated on the 2003-04 IEP (District Exhibit 7), and never suggested or offered a placement other than Waldorf at the May 29, 2003 CSE meeting. 

            Respondent cross-appeals, asserting that it provided petitioners' son a FAPE during his fifth grade year and that Waldorf was not an appropriate placement.  Respondent further contends that the impartial hearing officer erred in concluding that the equities favored reimbursement to the parents for the one-half school year at Waldorf.  

            The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), which is tailored to meet the student's unique needs.  A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]).  The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

            A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).  To meet its burden of showing that it had offered to 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 developed by its CSE 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]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the substantive program itself, 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 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130).  The program recommended by the CSE must also 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]).

            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, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  State and federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[b][5][ii][b] and [d][2][i][a]).  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, Question 1).

            In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (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).  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 (20 U.S.C. 1414 §§ [a], [b], and [c]; 34 C.F.R. § 300.320[a]; 8 NYCRR 200.4[b][6][vii] and [ix]).  The evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (20 U.S.C. § 1414[b][2][C]; 34 C.F.R. § 300.532[g]; 8 NYCRR 200.4[b][1][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (20 U.S.C. 1414§ [b][2]; 34 C.F.R. § 300.532[b]; 8 NYCRR 200.4[b][1]).  A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (20 U.S.C. § 1414[c][1]; 34 C.F.R. § 300.533[a][2]; 8 NYCRR 200.4[b][3]).  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]).

            An IEP must include measurable annual goals, with benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii][a] and [b]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii] and [x]). 

            I will address the claims on appeal in a chronological fashion, beginning with the student's program for the fifth grade year.  The May 22, 2002 IEP was not reasonably calculated to provide educational benefit.  The May 22, 2002 IEP indicated that the student could not complete work without adult supervision, was not aware of his body in space and had continued difficulty with organization skills, focus, and the ability to articulate intelligibly (Exhibit 4).  He needed a high degree of structure as well as assistance through repetition.  The student was easily frustrated, had difficulty making friends and was in need of assistance in daily school activities.  He continued to exhibit low muscle tone, poor body awareness and visual-motor integration deficiencies, as well as difficulty transitioning between activities.  In addition to needing academic support in written expression (Exhibit 4), the student's level of math competency was due to automatic response rather than based on mathematical knowledge. 

            A review of the relationship between the student's fourth grade report card and related IEPs proves helpful.  The student's fourth grade IEP included several objectives to bolster his math skills through numeration, computation and application at a fourth grade level (Exhibit KK), and he received "below average" grades in math for the second, third and fourth quarters of the 2001-02 school year (Exhibit MM).  The IEP developed at the May 22, 2002 CSE meeting for the student's fifth grade year noted his difficulty in math within the academic domain and his need for academic support.  However, the CSE failed to include necessary math-related educational goals and objectives in the 2002-03 IEP (Exhibit 4).  His math grade for his first quarter 2002-03 report card was "below average" (Exhibit 12). 

           Similarly, transition needs in the therapeutic environment were identified in the 2002-03 IEP (Exhibit 4) and more global transition needs were identified in the hearing record (Transcript pp. 40, 55, 186-87; District 11).  Although paraprofessional services were reduced from full-time hours in 2001-02 to part-time hours in 2002-03 in order to prepare the student for middle school independence (Transcript p. 695), there were no goals and objectives with appropriate benchmarks designed to address his transition needs and movement/navigation within the school setting (Exhibit 4).  The student needed social skill modeling and intervention to form and maintain friendships and developing an awareness of those around him (Transcript pp. 147, 215; Exhibit 4).  He also needed to improve his body awareness (Exhibits 4, 10, 11).  Although the 2002-03 IEP included goals and objectives to address the student's appropriate participation in class activities and his ability to refrain from disturbing others working independently, the IEP does not include goals and objectives to develop appropriate social skills.  The failure to develop goals and objectives to address the student's math, transition, and social skills needs is not consistent with the requirements of state and federal law (20 U.S.C. § 1414[d][1][A][ii]; 34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii][a] and [b]). 

            I have reviewed the evaluative information available at the time of the May 22, 2002 CSE meeting and I find that such information was not adequate to support the CSE's recommendation for the 2002-03 school year.  I agree with the impartial hearing officer that the student's "behavior interfered with his ability both to learn and to generally function in the classroom" (IHO Decision p. 6).  In addition to the student's difficulties with transitioning and social relationships, the student's sensory integration deficits, in particular his poor body spatial awareness (Transcript pp. 147, 186-87, 323, 442; Exhibits 4, 10, 11, C, D, F) caused him to be unsafe in his environment and to create unsafe situations for those in his proximity (Exhibits 4, 10, B, F, W, Y, CC).  For example, the 2001 occupational therapy/physical therapy evaluation reported that the student had trouble "navigating normal everyday obstacles in the classroom including chairs, desks, and peers" (Exhibit F).  In addition to causing classroom accidents (Exhibit 4, B, Y) the student's impulsive behavior interfered with his ability to benefit from instruction and was disruptive to classroom activities (Exhibits 10, D, W). 

            Based upon a review of the record, I find that the student's accommodations and adaptive strategies, such as the use of a proprioceptive vest, a specialized move and sit cushion, and movement breaks consisting of walks to the water fountain (Transcript pp. 546-47), were insufficient to meet the student's occupational therapy and physical therapy needs.  I also question the appropriateness of providing all OT and PT services solely on a pull-out basis (Transcript pp. 544, 740, 942, 949).  Both the parents and therapist believed the pull-out therapy to be more disruptive and less beneficial to the student (Transcript pp. 316-17).  Because the record is unclear regarding the provision of direct therapeutic services in the classroom at the public school, I see little to no assistance from the therapists with the generalization of behavioral skills from the therapeutic site to the classroom.  Further had the student remained at the public school, physical therapy services would have terminated in June 2003 (Transcript p. 427) because, according to the physical therapist, the student had met his safety/navigation goals (Transcript pp. 423, 428-29).  However, there are no safety/navigation goals and objectives on the 2002-03 IEP (Exhibit 4).  Additionally, testimony regarding the student's problems associated with body awareness (Transcript p. 460) and negotiating stairs (Transcript p. 989) upon first entering Waldorf persuades me to believe that these areas needed further attention. 

            I further agree with the impartial hearing officer that physical therapy goals such as performing wall slides, donkey kicks, squat thrusts, mountain climbers, and bear walking, ten times each, for two out of three trials may have comprised an attempt to address the student's physical needs, but could not substitute for an FBA and a BIP (IHO Decision p. 6).  I note here that respondent asserts that the impartial hearing officer did not have the authority to raise, sua sponte, the issue of whether an FBA should have been conducted (Answer ¶ 33).  Because it is the impartial hearing officer's responsibility to obtain an adequate record to support his or her decision (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-039), I find respondent's argument to be without merit.

             Determining that an FBA was not completed because the student made "measurable achievement growth" or progress (Transcript p. 178) is not persuasive given the facts of this case.  Because the student's behavior impeded his learning and that of others, his proper evaluation required an FBA to determine why he was engaging in such behaviors and how those behaviors related to the environment (see U.S.C. § 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; 8 NYCRR 200.1[r], 200.4[b][1], 200.4[b][1][v], 200.4[b][3], 200.4[b][6][vii], and [ix]; Application of a Child with a Disability, Appeal No. 03-099; Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-044; Application of a Child with a Disability, Appeal No. 01-101; Application of a Child with a Disability, Appeal No. 00-040).    

           The record does not include an FBA for the 2002-03 school year.  Had an FBA been conducted, its results could have provided the foundation for respondent's CSE to include in the student's IEP a set of positive behavioral interventions and strategies that would have addressed the student's behaviors (see U.S.C. § 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; 8 NYCRR 200.4[d][3][i]).  Based on the above, I find that the inadequacies in the 2002-03 IEP were of a nature and number that resulted in a program that was not reasonably calculated to provide educational benefit.

           Having determined that respondent has not met its burden of demonstrating that it had offered to provide a FAPE to the student during the 2002-03 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by Waldorf during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57).  In order to meet that burden, petitioners must show that Waldorf 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).

          The student began attending Waldorf in January 2003.  By June 4, 2003, the student had shown progress in all but one IEP homework assignment goal (Exhibit S).  According to the “2002-03 End of Year Report,” the student showed significant improvement in his new academic setting (Exhibit P).  The student matured socially, and showed improvement in his ability to focus and “maneuver about the classroom with fewer incidents.”  The student’s fifth grade teacher at Waldorf testified that after six months at the school, the student’s ability to focus and his organizational skills had improved (Transcript p. 588).  The student’s need for re-direction and supervision had decreased and he was no longer easily frustrated (Transcript pp. 588-89).  He had demonstrated success with multi-step instructions (Transcript p. 596), degree of attentiveness (Transcript p. 598), and writing skills (Transcript p. 603).  The student’s spelling and math skills improved, as did his work habits (Transcript p. 604), although he continued to have math, writing and organization needs (Exhibit P).  The student was socially integrated into the Waldorf class and easily formed friendships (Transcript p. 605).  The district's special education teacher who provided services to the student at Waldorf testified that the student was making progress with organizational skills, focus, completing homework, and writing skills (Transcript p. 670).  Testimony was also given by Waldorf's eurythmy teacher, who provided the student with a structured program, which employed movement and activity within a performing arts curriculum (Exhibit L).  The eurythmy teacher testified that the student had made excellent progress and was “gradually improving in spatial awareness and personal boundaries” (Exhibit P). 

          The May 29, 2003 CSE minutes for the student’s annual review reported that, with support, the student had made good academic progress.  He was performing at grade level in academic core subjects and his ability to remain on task had improved.  Meeting minutes indicated that the student needed limited support to complete work and stay focused (Exhibit A).  The student’s May 29, 2003 IEP developed for sixth grade indicated continued challenges, but noted his progress with social integration, academic achievement and awareness of his body in space (Exhibit 7).  The student's mother testified that by the end of fifth grade, after working with eurythmy, spatial dynamics, directed recess, hand movement and a tremendous amount of writing, the student had a sense of himself in space and that he could work with the other 21 students in his class without frightening and bumping into them (Transcript p. 989).  Accordingly, and on the basis of all the above, I concur with the impartial hearing officer and find that petitioners have met their burden of demonstrating the appropriateness of the program at Waldorf. By doing so they have prevailed with respect to the second criterion for an award of tuition reimbursement for their son's attendance at that school for the spring semester of the 2002-03 school year.

          The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist, 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; Weast v. Schaffer, 240 F. Supp. 2d 396, 406-409 [D. Maryland 2002]).

            The 1997 IDEA amendments also provide that tuition reimbursement may be denied or reduced, 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 (see 20 U.S.C. §§ 1412[a][10][C][iii], 1412[a][10][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e][4]).  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).  Moreover, the provision will not apply if the parents had not received notice of it pursuant to IDEA's procedural safeguards provisions (see 20 U.S.C. 1412[a][10][C][iv][IV]).

            By letter dated September 19, 2003, petitioners requested tuition reimbursement from respondent for the period commencing December 2002 and terminating August 2003, and for “remaining tuition” (Exhibit 8). Petitioners’ notification to respondent of their intent to seek tuition reimbursement was neither at the most recent CSE meeting, nor ten business days prior to their son’s removal from school on December 20, 2002, and does not comport with federal prior notice requirements for tuition reimbursement claims (20 U.S.C. § 1412[a][10][C][iii][I]; 34 C.F.R § 300.403).  However, federal law does provide an exception for noncompliance with Section 1412[a][10][C][iii][I] if non-compliance would likely result in physical or serious harm to the child (20 U.S.C. § 1412[a][10][C][iv][II]; 34 C.F.R. § 300.403[e][2]).  Respondent specifically argues that petitioners' request for tuition reimbursement for spring 2003 should be denied because petitioners had more than ten business days between the November 15, 2002 parent-teacher meeting when petitioners allegedly decided that their son would no longer attend public school, and the December 20, 2002 notification of withdrawal, to apprise the district that they would be seeking tuition reimbursement for private school enrollment (Answer ¶ 67).  They further argue that the impartial hearing officer erred by misconstruing 34 C.F.R. § 300.403(e) as supporting a conclusion that petitioners were excused from giving notice that they would be seeking tuition reimbursement prior to unilateral placement because the parents “genuinely fear[ed] for their son’s well-being” in the public school (IHO Decision, p. 6).  Respondent also asserts that even if the student had been at risk of physical or serious emotional harm, the risk ended on December 13, 2002 when the child was removed and petitioners should not be excused for their subsequent continued failure to notify the school district that they were seeking tuition reimbursement (Answer ¶ 69).  As to this last assertion, I agree.

          Respondent demonstrated that petitioners had received, in August 2002, a New York State Education Department Procedural Safeguards Notice, dated January 2002, informing the parents of the risk of not notifying the district of a unilateral placement at public expense in a timely manner (Transcript pp. 1010-11, 1014; Exhibit 2).  I do not decide whether I concur with the impartial hearing officer’s finding that the removal of the student without prior notice, under these circumstances, does not require denial of equitable relief.  However, respondent also argues that it was prejudiced by the failure to receive notice after the removal, during the remainder of the 2002-03 school year, that petitioner removed their son because FAPE was at issue and petitioner’s would seek tuition reimbursement.  Although petitioner’s claim for tuition reimbursement for a portion of the 2002-03 school year is not barred as untimely (Application of a Child with a Disability, Appeal No. 02-119), I’m persuaded that respondent raises a valid claim of laches.  Respondent argues that the failure to give the district notice after the removal, and prior to the expiration of the school year, precludes an equitable award of tuition reimbursement for the second half of the 2002-03 school year because, as applied to these facts, it limited respondent’s opportunity to remedy the IEP. I agree and find that equitable considerations do not support the award of tuition reimbursement for any portion of the 2002-03 school year.

           I now turn to a discussion of the 2003-04 school year program.  The student remained at Waldorf for the 2003-04 school year.  The CSE meeting for the student's sixth grade year took place on May 29, 2003 (Exhibit 6).  There is conflicting evidence as to why respondent did not offer a public school placement pursuant to an IEP for petitioners' son at the May 2003 CSE meeting.  Petitioners assert that respondent placed their son at Waldorf pursuant to an IEP for the 2003-04 school year (Exhibit 7; Petition ¶¶ 16-18) and that no other alternatives to a private school placement were offered at the May 2003 CSE meeting (Transcript p. 987).   The CSE chairperson testified that the CSE did not place the student at Waldorf, that the CSE offered the opportunity to return to the public school, and that petitioners indicated an interest only in Waldorf (Transcript pp. 64-65, 68-69,72).  The CSE chairperson testified that the CSE did not recommend that the student be placed at Waldorf at public expense; rather the placement recommendation on the 2003-04 IEP indicates Waldorf because it was the parents' choice (Transcript p. 72).  The IEP which respondent believed to be in effect for petitioners' son at the beginning of the 2003-04 school year indicates that respondent would provide the child with consultant teacher services four times a week at Waldorf and physical therapy twice a week at the public school (Exhibit 7).  A review of the record indicates no consensus by the parties that it was understood at the May 2003 CSE meeting that petitioners were placing their son at Waldorf at public expense because of an alleged denial of FAPE.     Further, the CSE minutes (Exhibit A) contains no indication that the parent filed a request for Education Law § 3602-c dual enrollment services for the 2003-04 school year, nor do the minutes indicate that the CSE reviewed a request for dual enrollment from the parents.  Because the record does not clearly demonstrate that petitioners voluntarily placed their son in a private school and FAPE was not an issue, I find that respondent did not demonstrate that it offered a FAPE for the 2003-04 school year.  Although it may not be necessary for a public agency to develop an IEP that assumes a public agency placement for each private school child each year (see generally, Placement of Children by Parents if FAPE is at Issue, 64 Fed. Reg. 12601 [March 12, 1999]), in the absence of a written IEP for public school placement, or more persuasive evidence that FAPE was not at issue, given this record, I find that respondent did not meet its burden to demonstrate that it offered a free appropriate public educational placement for the student (Application of a Child with a Disability, Appeal No. 95-71; Application of a Child with a Disability, Appeal No. 94-13).

            Having determined that respondent has not offered petitioners' son a FAPE in 2003-04, I must now consider whether petitioners have met their burden of proving that the services provided to the student by Waldorf during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57).  Respondent contends that Waldorf is not an appropriate placement for the student because it does not provide special education services for the student; rather, these services were provided to the student at Waldorf by the district (Answer ¶¶ 27-28).  “Neither the statutes, nor the decisions construing them hold, or even suggest, that a school must have a program formally designated a ‘special education’ program in order to constitute a proper placement for a student with special needs” (Mathew J. v. Mass. Dept. of Educ., 989 F.Supp. 380, 390 [D. Mass. 1998]; see, e.g., Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-018; Application of a Child with a Disability, Appeal No. 98-17).

            In the present case, the student's special education needs were less academic than a behavioral response to his sensory integration deficits, as noted above.  Where the student's disabilities are largely behavioral in nature, a unilateral placement has been found to be appropriate if it addresses the student's behavioral disabilities and allows him or her to progress academically (Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 98-17).  The record supports the conclusion that although eurythmy classes and the concept of movement incorporated into the Waldorf curriculum in general (Transcript pp. 598-601) are available to all students at Waldorf, and are not deemed special education services, the Waldorf services involving body movement and spatial dynamics (Exhibit M) addressed the student’s sensory and behavioral difficulties and also allowed him to progress academically.            

             In testimony, the eurythmy teacher at Waldorf testified that she concurred with reports from the student's classroom teacher and the physical education teacher at Waldorf that the student was thriving at the private school (Transcript p. 467).  When asked if there were subjects [other than eurythmy] at Waldorf that would help the student with his coordination or attention, the eurythmy teacher testified that, "Waldorf Schools, in general, worldwide, pay a lot more attention to the body than many other schools" (Transcript. p. 463).  She emphasized that the most remarkable change she had seen in the student was in his ability to take responsibility for his body and how his movements affected others (Transcript p. 460).  She testified that the student was "much more self-controlled and confident" (Transcript p. 460).  This change in his control of his movement was in direct contrast to his initial behavior at Waldorf when his failure to monitor his body in space frightened those near him (Transcript p. 460).  The eurythmy teacher also reported separately that the student had shown improvement in self-control, containment of energy, concentration, attention span, coordination, balance, timing and harmonious movement (Exhibit M).  The student's sixth grade classroom teacher at Waldorf also testified that the student's focus, organizational skills and on-task behaviors continued to improve beyond what she had observed at the end of his fifth grade year and that his need for adult reminders had significantly decreased (Transcript p. 595). 

            Waldorf does not participate in state assessment tests (Transcript p. 633), nor does it provide report cards that indicate alpha or numeric grades; rather, it offers anecdotal comments regarding the student's successes and failures (Transcript pp. 592, 631).  In sixth grade, spelling quizzes are typically given at least once a week, with math quizzes given less regularly (Transcript p. 648).  Parent-teacher conferences are held twice a year to review quizzes to and provide feedback to the parents (Transcript p. 632).  Not all children progress to the next grade (Transcript p. 642).  

            The student's 2003-04 Progress Notes from the district's special education teacher for the first ten weeks at Waldorf report progress in focus and attention, organizational skills and written expression.  He also made progress on one of his two homework objectives (Exhibit T; Transcript p. 686).  The student's September 2003 Lesson Block Report completed by the Waldorf teacher noted that the student was very engaged in his work, able to remain on task, and able to follow complex instructions to create multi-step assignments (Exhibit Q).  The teacher summarized his overall progress in this time period as “very good” (Transcript p. 596).  The student's October 2003 Lesson Block Report noted that the student listened attentively and contributed thoughtfully to discussions of lessons, and was working hard to complete assignments in a timely manner (Exhibit R).

             Testimony from the special education teacher indicates that the student's distractibility was still a concern but had decreased (Transcript pp. 690-92).  The classroom teacher noted that, at the time of her testimony in December 2003, the student exhibited a “huge” improvement in timeliness of assignments, and was now very diligent about completing all of his work (Transcript pp. 649, 660).  She further testified that the student's organizational skills had also progressed since the beginning of the 2003-04 school year (Transcript p. 650) and that he was now able to complete written compositions in class during the allotted time period without the assistance of his special education teacher (Transcript p. 646).  Writing no longer appeared to be a chore for him and he produced “nice work” (Transcript p. 652).  His spelling (Transcript pp. 604, 648-49), writing (Transcript p. 603) and math skills had also improved (Transcript pp. 604, 644-45).  Socially, the student was well integrated into the classroom and he was described as popular among his classmates (Transcript p. 605). 

             I find that the sixth grade program at Waldorf during the 2003-04 school year addressed the student's management, academic, physical, and social needs.  Accordingly, and on the basis of all the above, I find that petitioners have met their burden of demonstrating the appropriateness of the program at Waldorf and that they have prevailed with respect to the second criterion for an award of tuition reimbursement for their son's attendance at that school for the 2003-04 school year.

            Given the facts of the case, I also find that equitable considerations support a portion of petitioners' claim for the 2003-04 school year.  Respondent asserts that petitioners failed to make a timely request for tuition reimbursement and prejudiced the district by the lack of notice (Answer ¶¶ 21, 26).  The holdings in Burlington and Carter stand for the proposition that tuition reimbursement may be awarded as "appropriate relief" if supported by equitable considerations (see generally, Placement of Children by Parent if FAPE is at Issue, 64 Fed. Reg. 12601, at 12602 [Mar. 12 1999]).  In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim tuition reimbursement.

             Petitioners, by letter dated September 19, 2003, put respondents on notice for the 2003-04 school year that they were seeking tuition reimbursement (Exhibit 8). The notice occurred during the 2003-04 school year affording the district an opportunity to convene a CSE and formulate and offer an appropriate program for the remainder of that school year.  In its Answer, respondent asserts that with adequate notice the district “could have corrected its error (if any) and offered the parents an IEP with an appropriate proposed middle school placement” for sixth grade (Answer ¶ 26). The district did not respond in a manner consistent with their assertion in the Answer, nor did they offer to convene a CSE meeting after receipt of the parents' request for tuition reimbursement to develop an appropriate program to offer petitioners' son (Transcript p. 75).  I find that the respondent was prejudiced by late notice as to the 2003-04 school year only to the extent that they received notice after the 2003-04 school year started. I find that respondent is not responsible for tuition costs for that portion of the 2003-04 school year period prior to the September 22, 2003 receipt of the September 19, 2003 tuition request.  I therefore find that petitioner is entitled to tuition reimbursement from respondent for the 2003-04 school year for the period from September 22, 2003 to the end of the 2003-04 school year.  

            I have considered respondent's remaining claims and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer’s decision is hereby annulled to the extent he awarded tuition reimbursement for a portion of the 2002-03 school year; and

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that the impartial hearing officer denied petitioners tuition reimbursement for the 2003-04 school year; and

IT IS FURTHER ORDERED, that respondent shall reimburse petitioners for a portion of their son’s tuition at Waldorf for the 2003-04 school year for the period from September 22, 2003 to the end of the 2003-04 school year upon petitioners’ submission to respondent of proof of such payment.