04-033

          Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for their daughter’s tuition at the Robert Louis Stevenson School (Stevenson) for the 2003-04 school year.  The appeal must be dismissed.

          Before addressing the merits of the case, I must address a procedural issue. Respondent requested, and was granted, two extensions of time in which to serve and file an answer and memorandum of law in response to the petition for review (8 NYCRR 279.10[e]). Upon submission, the answer did not exceed 20 pages, and conformed to the page limitation required by the Regulations of the Commissioner of Education (8 NYCRR 279.8[a][5]). The memorandum of law exceeded the 20-page limitation.  Respondent requests that the length of the memorandum be excused because the tuition reimbursement analysis, the extensive testimony of the witnesses, and the "far-reaching" allegations of petitioners required a substantial response.  Petitioners request that respondent’s memorandum of law be rejected due to its submission in improper form. I am not persuaded by respondent’s reason for submitting a memorandum of law in excess of 20 pages.  To accept the memorandum of law, as is, would not be fair to petitioners who conformed their memorandum to the appropriate page limit. To have returned respondent’s memorandum of law, with a directive to submit an amended version that conformed to the regulations, would have unduly delayed my review of the petition. It would also have been the third delay occasioned by respondent’s counsel. For these reasons, petitioners’ request that I reject respondent’s memorandum of law is granted and I will not consider the document (8 NYCRR 279.8[a]).

            Petitioners' daughter was 17 years old and in the 11th grade at the time of the hearing.  Respondent's Committee on Special Education (CSE) has classified the student as other health impaired (Dist. Exs. 1, 3).  That classification is not in dispute.  The student has an attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD) (Tr. p. 62).  She functions in the low average range of intellectual ability, and she exhibits deficits in mathematical computation, problem solving, and written expression (Dist. Exs. 1, 3).  During ninth grade, the student had difficulty complying with the school attendance policy and teachers frequently referred her for disciplinary infractions (Dist. Exs. 1, 3, Parent Ex. A; Tr. p. 88).  In June 2002, petitioners placed their daughter in the day program at the North Shore University Hospital Program at Glen Cove (Glen Cove) (Dist. Exs. 1, 3; Tr. p. 402).  Glen Cove provides a substance abuse treatment program for adolescents with mental and emotional issues.  The Nassau County Board of Cooperative Educational Services (BOCES) provides an academic program at Glen Cove (Tr. p. 402).

            The student began to transition out of Glen Cove during summer 2003 (Tr. p. 468).  The CSE convened on June 11, 2003 to develop the student's program for the 2003-04 school year (Dist. Ex. 1; Tr. p. 19).  In a letter written prior to the CSE meeting, the Acting Coordinator of the Adolescent Services Unit at Glen Cove opined that the student "would fare much better in a small, supportive academic environment such as ALP, the Village School or similar type of program" (Dist. Ex. 5).  ALP is a BOCES program for students with maladjustment issues.  All the students at ALP have special education classifications (Tr. p. 33).  The Village School is a program located in another school district where approximately half of the students have special education classifications (Tr. p. 32).  Petitioners' daughter participated in the CSE meeting by telephone (Tr. p. 35).  She stated that she did not wish to attend school in the district because she was concerned that it might induce her to revert to negative behavior (Tr. p. 35).  The student's mother also expressed a desire for a placement outside the district (Tr. p. 38).   

            The CSE recommended placement at Castleton Academy (Castleton), the district's alternative high school (Dist. Ex. 1; Tr. p. 17).  Castleton is contained on one floor of a building that is separate from the high school campus (Tr. pp. 46, 85).  It provides a general education curriculum to approximately 60 students of high school age (Tr. pp. 17, 18).  About ten of the students have special education classifications (Tr. p. 17).  The staff includes a full-time social worker, a full-time nurse, a consulting psychiatrist, and a psychologist who spends four days a week at the school (Tr. pp. 47, 96).  The social worker is certified as a drug and alcohol counselor (Tr. p. 47).  All of the classes are limited to 15 students (Tr. p. 50).  The recommended program included resource room for three hours per week, individual counseling one time per week, and group counseling one time per week.  The parent expressed disagreement with the recommendation, and the CSE agreed to reconvene so that the parent could present additional information (Dist. Ex. 1; Tr. pp. 39, 40). 

            In a letter dated June 24, 2003, staff members from Glen Cove reported that the student and her parents had expressed reservations about placement in the district.  The student's concerns reportedly pertained to peers with whom she had previously engaged in negative activity.  Staff wrote that they "support an out-of-district placement in order to avoid any regression" by the student (Parent Ex. A).  The CSE reconvened on July 28, 2003.  Both the parent and the student reportedly articulated a preference for placement in an alternative program outside the district (Dist. Ex. 3; Tr. p. 43).  The student acknowledged that she was in contact with the peers who concerned her, but she did not divulge their names (Tr. pp. 45, 158-60). 

            The CSE again recommended placement at Castleton with resource room for three hours a week, individual counseling once a week, and group counseling once a week (Dist. Ex. 3).  Also, the CSE discussed a plan for the student to transition into Castleton (Dist. Ex. 3; Tr. pp. 52, 53).  Although students at Castleton are generally allowed to leave school for lunch, the CSE discussed the possibility of alternative lunch arrangements for petitioners' daughter (Dist. Ex. 3; Tr. pp. 84, 85).  The student's mother expressed her disagreement with the CSE's recommendation (Dist. Exs. 1, 3).  In a letter dated August 19, 2003, petitioners' attorney informed the district that petitioners disagreed with the proposed placement and that they were placing their daughter in "a private school at public expense" (Parent Ex. K).   

            The impartial hearing began on February 2, 2004, continued over the course of four days, and concluded on March 1, 2004.  In a decision dated April 30, 2004, the impartial hearing officer held that, although the district could have offered the student a free appropriate public education (FAPE), it failed to do so because the student's individualized education program (IEP) did not sufficiently describe the student's mathematical needs and did not include a behavioral intervention plan (BIP).  The impartial hearing officer also found that Stevenson failed to provide an appropriate program because it did not offer the student individualized instruction at her level, and because many students at Stevenson had substance abuse problems.  The impartial hearing officer denied petitioners' request for tuition reimbursement. 

             Petitioners appeal the decision asserting that the impartial hearing officer's finding that the district's placement could have been appropriate was erroneous as a matter of law.  Petitioners also assert that the IEP was inappropriate because the CSE failed to conduct new evaluations, failed to offer a behavioral intervention plan, and failed to provide for "intensive daily support, program modifications, daily individual math instruction and remediation, daily counseling or other supports and services" needed by their daughter.  Petitioners maintain that Stevenson is an appropriate placement, and they seek reimbursement for the cost of their daughter’s tuition for the 2003-04 school year.

             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 F.3d 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 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 that 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. 01-109; Application of a Child with a Disability, Appeal No. 01-095; 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]).  Additionally, an IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student's needs (see34 C.F.R. § 300.347[a][2]; Application of a Child with a Disability, Appeal No. 00-058; 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  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).  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]). 

            Petitioners allege that the IEP is deficient because it does not adequately specify the student's present levels of performance and because it does not provide for a BIP.  Petitioners assert that the CSE was unable to determine the student's present levels of performance because it did not have current evaluative data.  When a student suspected of having a disability is referred to the CSE, the student's initial evaluation must include a physical examination, an individual psychological evaluation or a written report from a psychologist indicating that further evaluation is unnecessary, a social history, an observation of the student in the current educational placement, and such other assessments or evaluations as are necessary to make an appropriate recommendation (8 NYCRR 200.4[b][1]).  If the student is determined to be eligible for special education services, the CSE must meet to develop an IEP for the student within 30 days of that determination (34 C.F.R. § 300.343[b]).  The CSE is required to review each student's IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved (34 C.F.R. § 300.343[c][1]; see 8 NYCRR 200.4[f]).  Reevaluations of each student must take place whenever the CSE, the student’s parent, or the student’s teacher deems it appropriate, but at least once every three years, and must be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education (34 C.F.R. § 300.536; 8 NYCRR 200.4[b][4]).  One component of both an initial evaluation and of any reevaluation is a review of existing evaluation data to determine what additional data, if any, are needed in order for the committee to make appropriate recommendations for the student (34 C.F.R. § 300.533[a]; 8 NYCRR 200.4[b][5]).  

            The CSE originally classified the student when she was in eighth grade (Tr. p. 663).  After classifying the student, the CSE was required to review the student's IEP at least annually and conduct reevaluations upon request of the CSE, the student's parent, or the student's teacher, but at least every three years (34 C.F.R. § 300.536; 8 NYCRR 200.4[b][4]).  Petitioners do not contend that anyone requested a reevaluation or that the evaluations relied upon by the CSE in developing the student's IEP for the 2003-04 school year were more than three years old (Dist. Exs. 1, 3).  On May 1, 2001, the student was administered the Wechsler Individual Achievement Test (WIAT) and the Wechsler Intelligence Scale for Children – III (WISC - III) (Dist. Ex. 3).  Those evaluations revealed that the student functions in the low average range of intellectual ability, and that she has significant delays in math and written expression (Dist. Ex. 3).  The CSE meeting held on June 11, 2003 included two representatives from Glen Cove, and the CSE meeting held on July 28, 2003 included one representative from Glen Cove (Dist. Exs. 1, 3).  The representatives from Glen Cove provided information regarding the student's current levels of functioning to the CSE (Tr. pp. 26, 27).  The CSE also agreed to adjourn and reconvene at a later date so that the parent could submit additional information regarding the student's needs (Dist. Ex. 1, Parent Ex. A).  The CSE reviewed current evaluations and received input from staff at Glen Cove.  I find that the CSE had sufficient evaluative information to appropriately determine the student's present levels of performance in its development of the student’s goals and objectives.

            The impartial hearing officer held that the IEP insufficiently describes the student's mathematical needs.  The student has a history of difficulty with math (Parent Ex. C; Tr. pp. 238-40, 242-43).  When petitioners removed their daughter from the district and placed her in Glen Cove, she was in danger of failing most of her classes (Dist. Ex. 7).  At Glen Cove, the student did fail math (Tr. pp. 682-83, 700).  The IEP indicates that the student "needs to improve her ability to perform computation and problem solving tasks in math" (Dist. Ex. 3).  One math goal and three corresponding objectives are included on the IEP.  The goal focuses on the student's use of mathematical concepts, reasoning and computation to address everyday problems.  The objectives stress multiplication, division and money (Dist. Ex. 3).  Given the student's weaknesses in math, an emphasis on everyday math is appropriate.  The CSE adequately described the student's needs in math and developed an appropriate goal, with corresponding objectives. 

           The impartial hearing officer found that the CSE failed to develop an appropriate behavior plan for the student. An FBA is warranted for students whose behavior impedes their learning or that of others (20 U.S.C. § 1414[d][3][B][i]; 8 NYCRR 200.4[b][1][v]; 8 NYCRR 200.4 [d][3]).  An FBA is

…the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. (8 NYCRR 200.1[r])

            A failure to, if appropriate, consider and address behaviors that impede learning in developing and implementing the child’s IEP would constitute a denial of FAPE to the child (Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38).

           When the student was in ninth grade, she engaged in behavior that impeded her learning.  She received numerous disciplinary referrals.  Among other infractions, the student often left school grounds without permission (Parent Ex. B).  The student entered Glen Cove at the end of the ninth grade and remained there during the tenth grade (Tr. p. 10).  Although the student exhibited resistance when she entered Glen Cove, she ultimately became more cooperative (Tr. pp. 21, 209-10).  While at Glen Cove, the student was described as being "compliant with her treatment plan," "usually cooperative," and willing to participate in scheduled activities (Parent Ex. J; Tr. pp. 459, 466-67). 

            For the 11th grade, the CSE recommended an alternative program, separate from the high school campus, which has a population of about 60 students (Dist. Ex. 3; Tr. pp. 6, 17, 216-17).  A school psychologist, who was involved in the initial development of the Castleton program, testified that students are not allowed to cut classes (Tr. pp. 217-18).  The CSE Chairperson reported that, at the time of the CSE meeting, the student did not exhibit any indications that she needed a BIP.  The CSE Chairperson testified that staff at Glen Cove had reported that the student "had matured, she was cooperative."  In addition, she opined that a behavior plan was not necessary because the recommended program provided structure and support (Tr. p. 107). 

           Given the student's absence from the school district for over a year, the CSE's recommendation of an alternative placement, and her then current placement in a day treatment program, it would have been premature to perform an FBA.  An FBA must include a determination of how a student's behavior relates to his or her environment, and it must address why a student engages in behavior that impedes learning. An integral aspect of an FBA is input from the student's teachers (8 NYCRR 200.1[r]).  The student has not yet entered this environment, she has not yet engaged in behavior in the proposed placement that impeded her learning, and she has not interacted with her new teachers. The record does not demonstrate that an FBA was required at the time the IEP was developed because her behavior improved and was not impeding her learning at Glen Cove (Dist. Exs. 1, 3; Tr. p. 107).  The CSE does not yet know whether, in her new environment, the student will engage in behavior that impedes learning; therefore, it was not a denial of a FAPE to not recommend an FBA as part of the IEP development. I find that the IEP recommendations of the structured Castleton placement and program, along with the recommended individual and group counseling, were appropriate.

            The student and her mother both expressed concern about the student attending school with people who might be a negative influence (Tr. pp. 35, 576, 579, 670, 684-85).  The student knew that the people who were of concern to her were attending Castleton because she had been in contact with them via e-mail over the Internet (Tr. pp. 44, 45).  Because of this concern, the parents desire a placement outside the district (Parents Ex. A, Dist. Ex. 3; Tr. pp. 38, 698).  The acting coordinator at Glen Cove had suggested the programs at ALP or the Village School as examples of the type of placement the student needed (Dist. Ex. 5; Tr. p. 508).  However, at the June 11, 2003 CSE meeting, the acting coordinator agreed that, if the district's alternative program could offer the student a small, supportive academic environment, then it would be appropriate (Dist. Ex. 1).  In addition, the CSE rejected the programs at ALP and the Village School because those programs are more restrictive than Castleton (Tr. pp. 32, 33).  

            The CSE recommended an appropriate program for the student.  The record indicates that the student functions in the low average range of intellectual ability and she has needs in math and written expression (Dist. Exs. 1, 2, 3).  During ninth grade, the student exhibited a history of substance abuse and discipline problems (Parent Exs. B, I, Dist. Exs. 1, 3; Tr. p. 664).  The CSE recommended placement at Castleton, which provides a small, structured environment for students who have had difficulty in the traditional high school setting (Dist. Ex. 6; Tr. pp. 128-29).  The recommended program included individual counseling once a week for 30 minutes, group counseling once a week for 30 minutes, and resource room for three hours per week (Dist. Ex. 3).  The social worker is certified as a drug and alcohol counselor, and she has experience working in a drug and alcohol program (Tr. pp. 139-41).  The parent also testified that the program itself was acceptable.  Her concern pertained to some of the students in the program (Tr. pp. 697-98).     

            The CSE Chairperson expressed confidence that, at Castleton, the student's interactions with others could be supervised (Tr. p. 46).  The program has only eight classrooms and staff members are present whenever students are in the hallway. The staff includes a full-time nurse, full-time social worker and a psychologist who is present four days per week (Tr. pp. 46, 47).  The CSE Chairperson described the program as being very structured and she explained that students are encouraged to connect with the adults on staff so that the students feel as though they have a "safe harbor" at school (Tr. pp. 47-49).  No class includes more than 15 students (Tr. p. 50).  Castleton is a program where the student would not have to interact with peers who might have a negative influence.  I find that the program at Castleton as recommended by the CSE was appropriate and that respondent has met its burden of demonstrating that the student's IEP was reasonably calculated to enable the student to receive educational benefit.

            Having determined that the challenged IEP was appropriate, respondent has met its burden of proving that it offered to provide a FAPE to the student during the 2003-04 school year.  Petitioners are not entitled to reimbursement for the cost of their daughter’s tuition at Stevenson for the 2003-04 school year, and I need not reach the issue of whether or not Stevenson was an appropriate placement. The necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 04-008, Application of a Child with a Disability, Appeal No. 04-003).

            I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.