04-070

            Petitioner, the Board of Education of the New Hartford Central School District (district), appeals from the decision of an impartial hearing officer which ordered it to reimburse respondents for 80 percent of their son’s tuition costs at the Family Foundation School for the 2003-04 school year and to reimburse respondents for two independent psychological evaluations. Respondents cross-appeal from the impartial hearing officer’s determination which limits reimbursement of their son’s tuition costs to 80 percent.   The appeal must be sustained in part.  The cross-appeal must be dismissed. 

            Before addressing the merits of this appeal, I must address a procedural issue.  Petitioner objects to the introduction of Exhibits A and B in respondents’ cross-appeal, which were not made part of the hearing record and are now offered for submission.  Petitioner contends that Exhibit A to the cross-appeal, a billing statement for a psychological evaluation dated September 4, 2001, was available at the time of the hearing.  Petitioner also contends that Exhibit B to the cross-appeal, a copy of the student’s grades at the Family Foundation School for the spring 2004 and fall 2004 semesters, which has a run date of June 30, 2004, was not submitted at the time of the hearing and was not subject to inquiry as to its contents.  Petitioner further contends that neither Exhibits A nor B is necessary to render a decision in this case.

           Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020).

            Exhibit A was available at the time of the hearing and is not necessary for my review; therefore, I decline to accept it.  As to Exhibit B, while the document was not available at the time of the hearing, it is of little probative value pertaining to the issues on appeal because it has not been reviewed by the impartial hearing officer, or subjected to examination at the hearing below (8 NYCRR 200.5 [i] [3][xii]).  It is not necessary for my review and, therefore, I will not accept it. 

            At the time of the hearing, the student was 15 years old.  He is eligible for special education as a student with an emotional disturbance who requires special services and programs (Tr. p. 77; see 8 NYCRR 200.1[zz][4]).  This classification is not in dispute. 

            The results of psychological testing conducted in August 2003 revealed that the student was functioning cognitively in the high average range (Joint Ex. 75). Administration of the Wechsler Intelligence Scale for Children- III (WISC-III) yielded a verbal IQ score of 105 (63rd percentile), a performance IQ score of 116 (86th percentile), and a full scale IQ score of 111 (77th percentile).  Achievement testing utilizing the Woodcock-Johnson III (W-J III) yielded scores in the average range for all subtests (Tr. p. 1143).  The student’s writing sample score was his lowest subtest score on the W-J III, reportedly affected by his carelessness in following directions.  Behaviorally, the student indicated that he had difficulty concentrating and focusing, often felt depressed, and had difficulty controlling his anger and emotions.  Symptoms of an attention deficit hyperactivity disorder (ADHD), depression and anxiety were evident in the student, as indicated by results of the Connors-Wells Self-Report Scale (Connors), the Reynolds’ Adolescent Depression Scale and the Behavior Assessment System for Children (BASC), including the BASC Self-Report of Personality and the BASC Teacher Rating Scale.  The psychologist recommended a psychiatric consultation or evaluation to differentiate the student’s emotional and behavioral difficulties, as it was difficult to determine “whether many of the student’s behaviors are the result of ADHD or symptoms of his mood disorder.”   The evaluator recommended that the student be placed in a program with intense structure and with behavioral management systems, which provided immediate consequences for negative behaviors.  Counseling was also recommended (Joint Ex. 75).

            The student’s history is rife with emotional and behavioral difficulties.  When the student was seven years old, he was diagnosed with congenital adrenal hyperplasia, a biological condition for which he received steroid treatment under the care of an endocrinologist (Tr. p. 1225, Joint Exs. 3, 9).  In March 2001, a neurology report described the student as appearing to have a "rather large habitus" (large physical appearance) with significant behavior problems and macrocephaly (Joint Ex. 3).   The student’s bone age when he was 12 years old was equivalent to the bone age of a 17 year old (Joint Ex. 21).  The record reflects additional diagnoses of obesity, mood disorder not otherwise specified (NOS) with depressive, manic and intermittent psychotic features, attention deficit/hyperactive disorder (AD/HD); combined type, and oppositional defiant disorder (ODD); as well as obsessive-compulsive disorder (OCD) characteristics and impulsivity (Joint Ex. 5). Various medications were prescribed over time to address the student's behavior, attention, and OCD (Joint Exs. 3, 5, 11, 17, 29).

            The student reportedly had difficulty adjusting upon entering junior high school (Tr. p. 1221).  Specifically, the student was not getting to classes on time, was disorganized, and had trouble sitting still (Tr. pp. 1221-23).  The student’s mother reported that the student would come home from school angry, upset, loud and verbally abusive (Tr. pp. 1228-30). Respondents met with the school guidance counselor, the dean of students, and the student's English, math, science and social studies teachers in October 2000, at which time respondents stated that the stress of school and the discontinuation of medication by the student’s endocrinologist were resulting in the student's display of anger and frustration at school (Tr. pp. 1225-26).  In November 2000, the school guidance counselor informed respondents that the student was associating with  substance abusers (Tr. pp. 1231-35).

             Respondents engaged a tutor to assist the student with math and organizational skills (Tr. pp. 1222-23).  Although respondents enrolled the student in the Sylvan Learning Center (Sylvan) to improve the student’s writing skills (Tr. pp. 1227-28), the student frequently avoided attending instruction at Sylvan, instead taking the bus to the downtown area (Tr. p. 1229).

             In the spring of 2001, during the seventh grade school year, the school social worker contacted respondents and suggested a psychiatric examination to determine if there were any medications to assist the student  (Tr. pp. 1231-33).  At this time, the student was displaying problematic behaviors in and out of school and was becoming more violent at home, both physically and verbally (Tr. p. 1233).  At school, the student exhibited insubordinate behavior with staff, refusing to comply with academic requests (Parent Exs. 2, 3).  He was failing all academic courses and was frequently involved in disciplinary actions (id.).  He also displayed poor judgment, limited internal behavioral controls, low self-esteem and poor anger management (id.). On March 19, 2001, the school’s instructional support team met and devised a plan that included a daily log, a psychosocial evaluation, a PINS diversion referral, access to a mentor two times per week, restricted hallway privileges and weekly contact with the school guidance counselor (Parents Ex. 3, p. 2; Tr. p. 797).  A joint referral for PINS diversion services at Youth Empowerment Project, a community based services agency, was made on March 22, 2001 (Tr. pp. 472, 772, 803; Parent Ex. 3).  The psychiatrist at Youth Empowerment Project offered a diagnosis of ODD and recommended a treatment plan that included individual therapy with focus on anger management, family therapy, and parental therapy (Joint Exs. 2, 3).  Respondents followed through on the recommendations for family therapy and drug counseling, as well as employing the Youth Empowerment Project (Tr. pp. 1257-58).

            On April 26, 2001, during the student’s seventh grade year (Joint Ex. 9), the student was referred by his father to the Committee on Special Education (CSE) (Joint Ex. 4).  A psychological evaluation was conducted on May 7, 2001 (Joint Ex. 8).  Administration of the WISC-III yielded a verbal IQ score of 110, a performance IQ score of 100, and full scale IQ score of 106, indicating cognitive functioning in the average range.  The Wechsler Individual Achievement Test (WIAT) indicated that the student's performance in reading, math and writing were also in the average range.  Projective testing revealed that the student may have difficulties related to body image and to authority figures in the home.  The student was recommended for a functional behavioral assessment (FBA), counseling, family therapy and psychotherapy, an eye examination, sleep habits examination and classification as a student with an emotional disturbance (ED). In addition, consideration of a program of diet and exercise was suggested to improve the student's perception of himself.

           On May 11, 2001, as a part of the CSE evaluation process, the school social worker created a social history based on school records wherein the student was described as insubordinate, a user of cigarettes and marijuana in school, verbally defiant of authority, truant, and as making threatening gestures towards adults in school (Tr. p. 821; Joint Ex. 9).  The social worker stated that the student could benefit from supportive or educational school-based counseling and found that aggression reduction training would be useful (Joint Ex. 9).

            In addition, an educational report in May 2001, developed by the student's English 7 classroom teacher indicated that the student lacked motivation and "needs a lot more structure." The teacher noted that academic intervention via study halls had not been successful (Joint Ex. 7).  A medical examination completed on May 8, 2001 noted depression, anger, and soft signs of ADHD. Medication therapy was recommended (Joint Ex. 15).

            The student received 37 disciplinary reports and several suspensions over the 2000-01 school year; including an out-of-school suspension for five days on April 30, 2001, four days after his referral to the CSE (Tr. pp. 1267-70, 1278; Parent Ex. 10). On May 8, 2001 the student was again suspended for five days.  On May 16, 2001, the district social worker attended (Tr. pp. 818-19) a meeting resulting in the aforementioned PINS adjustment services evaluation report (Parent Ex. 8). The evaluator recommended probation to "monitor and to impress upon [the student] the seriousness of his truancy, incorrigibility and potential substance abuse behaviors," as well as provision of a community based mentor, continuation of school-based counseling to monitor and assist the student with the necessary insight for alteration of noncompliant and socially unacceptable behaviors within the school setting, academic support, psychiatric consultation (including use and monitoring of psychotropic medications), and follow-up services to monitor behavioral changes that encourage school attendance, performance, and behavioral functioning in all domains. The report states, "Although both [the student] and his parents have noted very recent improvements, the school is reporting continual difficulty, serious in nature. Academic failure is of serious concern, and the school's ability to continue educating this student within the structure of their programs [is] uncertain" (id.).

            The initial CSE review occurred on May 14, 2001, during which the student was classified ED and an individualized education program (IEP) was developed (Joint Ex. 13).  The IEP provided for a 10-month placement in a 12:1+1 Board of Cooperative Educational Services (BOCES) program adjustment class, and assignment of a 1:1 aide for the student at the junior high school until the 12:1+1 special class placement was in effect (Parent Ex. 11; Joint Ex. 12).  Counseling once a week for 30 minutes per 6-day cycle was recommended as a related service (Joint Ex. 12).  Supplementary services recommended to support the counseling goals included ongoing psychiatric treatment, anger management training, PINS/PREPINS services, and continued assessment of health concerns (Joint Ex. 13).  The parents rejected the recommended BOCES adjustment class placement (Tr. p. 1279; Joint Ex. 16) and requested an independent psychological evaluation at public expense (Joint Ex. 16). 

            On May 16, 2001, a behavioral intervention plan (BIP) was developed which required the student to meet with the school social worker two to three times per week after school.  Goals were to increase the student's self-control, reduce disciplinary actions, engage in new and positive social activities and reduce the time the student spent in the village on school nights (Joint Ex. 18). 

            Subsequent to the CSE's development of an IEP for the student, the student was hospitalized for nine days in May and June 2001 (Parent Ex. 13; Tr. pp. 1280-81, 1285).  The student reportedly benefited from the small group hospital setting, which provided a great deal of structure.  During hospitalization, the student was diagnosed with a conduct disorder and a mood disorder NOS.  Judgment and insight were described as impaired. The recommendation was medication therapy for anger and mood, continuation in psychotherapy, a monitored diet for obesity and continuation of the PINS process. The discharge summary from the hospital indicated that there would be a need for a structured setting and instruction in a small group (Parent Exs. 12, 13; Dist. Exs. 17, 20).

            On June 12 and June 25, 2001, an independent psychological evaluation of the student was conducted (Joint Ex. 16).  This evaluation contained the recommendation that the student be placed in an intensive, comprehensive residential treatment facility that could provide a sophisticated, multidisciplinary diagnostic work-up and an integrated treatment program to address emotional, behavior, attention and psychological needs (Joint Ex. 21).  The CSE was provided with a copy of this evaluation (Tr. p. 1307).   

            The CSE met again on June 26, 2001, reviewed this report, and changed its recommended BOCES program adjustment class placement to 12-month programming at Pinefield Day Treatment Program (Pinefield), in an 8:1+1 eighth grade special education class (Joint Ex. 24).  Respondents consented to the placement at Pinefield (Tr. p. 1310; Joint Ex. 23). The student started at Pinefield on July 2, 2001 and only attended Pinefield for 12 days in July of that year.  During his tenure at Pinefield, the student was reportedly tardy, lethargic and resistant to going to the program (Joint Exs.  23, 30; Tr. p. 1317).

           In July and August 2001, respondents made two unilateral private residential school placements of their son within a short period of time. The first placement was at the Devereux Foundation on July 23, 2001, where the student attended for two weeks (Tr. p. 1325).  The second unilateral placement was at the Kids Peace National Center for Kids in Crisis (Kids Peace) program.  Evaluations and interviews were conducted at Kids Peace prior to the student’s acceptance into the program (Tr. p. 1327).  The adolescent psychiatrist at Kids Peace who evaluated the student described the student as being in denial and as tending to minimize his problems at school, at home, and in the community.  The student was further described as being too self-focused, as displaying explosive tantrums and aggression, and as a marijuana user.  Behavior problems were considered to be unrelated to the student's previously diagnosed adrenal cortical hyperplasia. The adolescent psychiatrist recommended "residential treatment with individualized educational programming to prevent acute hospitalization because [the student] was unable to benefit from outpatient treatment, and was aggressive to people." Individual and group therapy, family therapy, medication, and dietary consult were also recommended (Joint Ex. 32). The student entered Kids Peace on August 9, 2001 (Joint Ex. 35).  A subsequent psychological evaluation at Kids Peace indicated that the student exhibited despair, hopelessness and emotional immaturity. Therapeutic intervention was recommended to address depression and poor self-esteem. Family therapy was recommended to address family stressors (Joint Ex. 37).

          The CSE met on August 28, 2001 and agreed to place the student at Kids Peace for the 2001-02 school year (Joint Ex. 39; Tr. p. 346).

          The student's 2001-02 IEP recommends a classification of ED and a residential placement at Kids Peace (Joint Ex. 39).  The recommended class placement was in a full day 12:1+1 program, with related services of counseling two times per week individually for 60 minutes per session and five times per week in a group for 60 minutes per session.  Supplementary aids and services included daily monitoring of homework and a behavior contract.  Skilled nursing care for medications was to be provided in school.  Tests would be administered in a location with minimal distractions.  Only two goals were incorporated into the IEP indicating “[The student] will demonstrate appropriate classroom behavior,” and “[The student] will complete work on time.”

           The psychological evaluation conducted at Kids Peace on August 21, 2001 indicated that the student’s maladaptive behavior tends to be associated with a high degree of impulsivity and corresponding low frustration tolerance (Joint Ex. 37).   He was described as hypersensitive and hyperactive to set limits and criticisms.  Difficulties were noted in the student’s ability to profit from and learn from his own experiences, and he reportedly exhibited denial and externalization. The student used intimidating behaviors to attempt to have his needs met. The evaluator concluded that the student lacked the fundamentals of trust and used his power to secure his needs. The student had few viable channels for release of these frustrations. He displayed anger about a lack of acceptance and validation of his feelings and needs. Underlying this anger was depression, despair, hopelessness and emotional immaturity.  When under stress, the student tended to become disorganized, impulsive, and rigid. His low self-esteem matched his low achievement and avoidance of responsibility.

           The Kids Peace treatment plan identified the student’s strengths as his sense of humor, his good response to individual attention and a structured environment, his recognition of personal strengths and weaknesses, and the active involvement of the student’s parents in his treatment (Joint Ex. 36).  The treatment plan further identified the student’s weaknesses as his tendency to have conflict with peers, difficulty making friends, poor problem solving and social skills, poor anger management, and a lack of motivation to change his own behavior. Recommendations included individual counseling and recreation therapy.

            Initially, the student entered Kids Peace in the seventh grade (Tr. p. 651).  By December 2001, the student was placed in the eighth grade due to his age and academic performance (Tr. p. 652).  By June 2002, the student completed the eighth grade (Tr. p. 656).  The student benefited from the very small, structured environment (Tr. pp. 684-85). Behaviorally, the student progressed in taking ownership of his past and present emotions and behaviors (Tr. p. 618). The student's Kids Peace report card for eighth grade indicated that he had earned all B’s in his core subjects (Joint Ex. 51).  Kids Peace staff opined that the student no longer required residential placement and with support and intervention, would likely be successful in a less structured setting (Tr. pp. 633-34).  They proposed goals and objectives for inclusion in the student’s IEP in English, writing lab, math, global history, earth science, art, music, health, physical education, and behavioral areas (Tr. p. 688; Joint Ex. 46).  Returning home was an incentive for the student when he was at Kids Peace (Tr. p. 706).

           Respondents asserted that their son was not ready to return to his home school, and researched schools that would accept students with an attention deficit hyperactivity disorder (ADHD) (Tr. pp. 1336-38, 1348-49).

           The CSE convened on June 3 and June 12, 2002.  Its recommendations for the 2002-03 school year included an unspecified 12:1+1 school-based program with mainstreaming opportunities and the related service of counseling two times per week (Tr. pp. 370-73; Joint Ex. 50).  The IEP contained the same two goals as prior IEP documents but did not incorporate the suggested goals proposed by Kids Peace (Tr. pp. 373, 400).   Respondents did not consent to the 12:1+1 placement and advised petitioner that the student would be attending The Storm King Preparatory School (Storm King) for 2002-03 (Tr. pp. 1348-49; Joint Ex. 53).

           The student began attending Storm King in September 2002 (Tr. pp. 1347-48).  Storm King did not provide special education services (Tr. p. 1076). In the beginning of 2003, the student received outside psychological counseling for depression, and medical services from a nurse practitioner in psychiatry for depressed mood and difficulties with concentration and impulsivity (Tr. p. 1359; Joint Ex. 58).  In February 2003, the parents received notice from Storm King that the student’s re-admission to the school for 2003-04 was in jeopardy because of disciplinary problems (Tr. pp. 1087-88, 1356-61; Joint Ex. 58, p. 7).  The student was smoking, getting into physical and verbal altercations and not taking care of personal needs.  In April 2003, the student was expelled from Storm King because the school was not able to supply sufficient structure for him (Tr. pp. 1097-99).  A disciplinary committee at Storm King raised doubts about school staff’s ability to supervise the student’s daily activities in order to ensure the student could be compliant and a successful student.  Storm King’s dean recommended that the parents look for a school that offered more structured supervision (Tr. p. 1099).

           On April 8, 2003, respondents unilaterally placed the student in the Family Foundation School, a residential facility (Tr. p. 1362).  On June 1, 2003 and June 12, 2003, petitioner requested that respondents provide information from the student's current educational placement (Joint Exs. 55, 56).  A CSE meeting scheduled for June 24, 2003, was postponed to July 16, 2003 after respondents did not respond to petitioner’s requests for information (Tr. pp. 155-57; Joint Exs. 55, 56). 

           On July 15, 2003, one day before the CSE convened, respondents furnished educational records to petitioner and advised petitioner of the student’s placement at the Family Foundation School in April 2003 (Tr. p. 1447; Joint Ex. 58). 

            The CSE convened on July 16, 2003 (Joint Exs. 61, 62).  The CSE recommended that the student attend a 12:1+1 special class for all unscheduled periods, push-in support services for social studies, math, foreign language, English, and science, as well as one group session and one individual session of counseling per week as a related service.  Modifications and goals were similar to those listed on the IEP created in June 2002 (Joint Ex. 50).  Respondents advised petitioner at the CSE meeting that they were rejecting the IEP and intended to seek tuition reimbursement for the Family Foundation School (Joint Ex. 61).

           On July 30, 2003, petitioner wrote to the Family Foundation School, seeking information about the student (Joint Ex. 65).  Petitioner requested that the student be brought to the district for an evaluation prior to the next CSE meeting on August 25, 2003 (Joint Exs. 76, 77, 78, 79).   Since the student was not permitted to leave the Family Foundation School, petitioner and respondents agreed to permit a psychologist from a school district adjacent to the location of the Family Foundation School, to perform an evaluation.  Petitioner accepted this report in lieu of conducting its own evaluation (Tr. pp. 167-71, 282, 1376-77; District Exs. 69, 70).  Petitioner rejected a bill submitted for this evaluation and respondents paid the bill themselves (Tr. pp. 438-39).  This evaluation was completed on August 20, 2003 (Joint Ex. 75).

          On August 25, 2003, the CSE made its recommendation for the 2003-04 school year (Joint Ex. 78).  The recommendations included a self-contained 12:1+1 special class placement in a BOCES program located within Westmoreland Central School for six hours daily, five times per week. Group and individual counseling were each offered once per week for 30 minutes. Supplemental aids and services and program modifications and supports included: monitoring of homework completion; extended time for homework (1.5); weekly agenda-assignments given one week in advance; parent training two times a month for consistent carryover of behavioral interventions; preferential seating near instructor; access to word processor with spell check and grammar check and review of behavior plan and case management two times per month (Joint Ex. 78).  During the August 25, 2003 CSE meeting, respondents disagreed with the placement recommendation and advised petitioner that the student would remain in the Family Foundation School (Tr. pp. 1382, 1383).

           Respondents requested an impartial hearing on October 31, 2003 seeking tuition reimbursement at the Family Foundation School for the 2003-04 school year and reimbursement for the independent psychological evaluation conducted on June 6 and June 25, 2001 and for the evaluation conducted on August 20, 2003 (Joint Ex. 83).  The impartial hearing began on December 16, 2003 and concluded on March 5, 2004 after seven days of testimony.  The impartial hearing officer rendered his decision on August 7, 2004.  This decision ordered petitioner to reimburse respondents 80 percent of their out of pocket tuition costs for the Family Foundation School for the 2003-04 school year beginning on July 16, 2003 and further ordered petitioner to reimburse respondents for both evaluations (IHO Dec. p. 17). 

           On appeal, petitioner claims that the impartial hearing officer misapplied the law and requests that the impartial hearing officer’s decision be annulled with respect to the award of 80 percent tuition reimbursement and the award of reimbursement of the payment for the evaluation of August 20, 2003.  On cross-appeal, respondents request that the portion of the impartial hearing officer’s decision awarding 80 percent tuition reimbursement be annulled and that they be granted “100 percent of expenses” related to the student’s “educational cost” at the Family Foundation School.

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't 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. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043). 

            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 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]).  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).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett 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 WL31521158 [S.D.N.Y. Nov. 14, 2002]). The student's recommended program 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]).

           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]; see 8 NYCRR 200.4[d][2][i]).  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]).  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]).

          With respect to the first criterion for an award of tuition reimbursement, petitioner bears the burden of demonstrating that it offered an appropriate program.  I concur with the impartial hearing officer’s determination that petitioner failed to meet its burden of demonstrating that it offered to provide an appropriate program to the student for the 2003-04 school year that met the student’s behavioral and emotional needs (IHO Dec. p. 15).

           The District's IEP for the 2003-04 school did not offer the student a FAPE.  As the impartial hearing officer found, the IEP developed by petitioner for the 2003-04 school year did not take into account the severity of the student’s documented behavioral and emotional needs and the student’s need for a highly supportive and structured learning and living environment (IHO Dec. p. 15).  As further found by the impartial hearing officer, the IEP fails to include goals that address the student’s documented needs in the areas of written expression and following directions and does not address the student's obesity, which affects his self-esteem and physical education.

            In part, the inadequacy of the 2003-04 IEP stems from being based on an inadequate 2002-03 IEP.  In May 2002, Kids Peace proposed specific goals and objectives for inclusion in the student’s IEP in the areas of English, writing lab, math, global history, earth science, art, music, health, physical education, and behavioral areas (Joint Ex. 46, Tr. p. 688).  The CSE convened on June 3 and June 12, 2002 (Tr. pp. 370-373). CSE recommendations (Joint Ex. 50) for the 2002-03 school year included an unspecified 12:1+1 school-based program with mainstream opportunities and counseling two times per week.  Even after the student demonstrated success in Kids Peace’s structured environment, petitioner retained the same two goals in the student’s IEP (Joint Ex. 46, Tr. pp. 373, 400, 688), without incorporating the suggestions offered by Kids Peace.

            Moreover, the 2002-03 IEP did not include specific academic goals and objectives in the writing and math areas highlighted by the Kids Peace recommendations. While other goals and objectives recommended by Kids Peace may be part of the generic curriculum for all ninth graders as asserted by petitioner (Memorandum of Law In Opposition to the Cross-Appeal, p. 5), their inclusion in the IEP would have provided defined expectations for teachers, defined targets towards which the student might have aimed his efforts, and provided reasonably defined areas of content to enable the parents to gauge the student's progress.  In addition, although the IEP lists individual counseling twice weekly, there are no goals and objectives for this related service.

            There are also serious inadequacies in the 2003-04 IEP that the CSE devised that impact adversely on the student's substantive program. Consistent with the 2002-03 IEP for the previous school year (Joint Ex. 50), the IEP for 2003-04 (Joint Ex. 78) does not reflect the requisite correspondence and alignment between the student's needs and the goals and objectives that is required for the provision of an appropriate program. The goals and objectives lack substantive content. They do not adequately address how the student will be involved in and progress in the general curriculum as recommended, and how the IEP will meet the student's management needs (34 C.F.R. Part 300, Appendix A Notice of Interpretation, Question 1). An appropriate 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. 02-059; Application of a Child with a Disability, Appeal No. 01-105).  In the instant case, I find the 2003-04 IEP goals and objectives to be inadequate.  For example, one of the two IEP goals is vague and states that the student’s behavior will be appropriate in the classroom.  The goal does not specifically identify the targeted appropriate behaviors, nor are his management needs within the general school setting addressed.  An IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student's needs arising from his or her disability (34 C.F.R. § 300.347[2]). Goals must be specific in order to provide sufficient guidance to a student's teachers and parents with respect to the CSE's expectations for the student's performance (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 98-14), and they must be measurable (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]). An IEP is inadequate where the goals and objectives lack specificity (Application of a Child with a Disability, Appeal No. 00-058). For these reasons, I find that the resultant 2003-04 IEP was not reasonably calculated to ensure educational benefits to the student, and the district has failed to meet its burden of showing that it offered the student a FAPE for the 2003-04 school year.

          Having determined that petitioner did not provide respondents’ son a FAPE in 2003-04, I must now consider whether respondents have met the second criterion for tuition reimbursement.  Respondents bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled the student for the 2003-04 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29).  In order to meet that burden, respondents must show that the Family Foundation School offered an educational program that met the student’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29).  The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7, 14-15 [1993]).  The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20). 

         The Family Foundation School is a private residential school with a therapeutic component  (Tr. p. 988).  The school utilizes a 12-step approach, aimed at bringing families back together (Tr. p. 991). The school is organized in eight family units (Tr. p. 994) with staff who serve in a pseudo-parental role and approximately 30 students in each unit who are encouraged to act as brothers and sisters.  Each unit provides family counseling at which attendance is mandatory, as well as group counseling sessions and seminars for parents (Tr. pp. 990-91).  Students range in age from 12 to 19 years, and the education component of the school provides instruction for grades seven through twelve (Tr. p. 992).  Students remain at the Family Foundation School for a minimum of 18 months, but the average stay is two to two-and-one-half years (Tr. p. 994).  Students are responsible for the cooking, cleaning, and all aspects of daily living (Tr. p. 995).  Students with academic difficulties are provided with peer tutors, staff tutors, and individualized attention in class as well as extra time, extra notes and opportunities to retake tests (Tr. p. 999).  If the aforementioned modifications are not successful for any given student, that student may have access to a special education teacher who may conduct a formal educational evaluation (Tr. p. 993).  Family Foundation has not been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities.

          I find that the Family Foundation School’s program does not meet the student's identified behavioral and emotional needs.  This school does not provide the special education services needed by this student. 

          The record reflects a significant history of emotional problems for this student, resulting in an undisputed classification as a student with an emotional disturbance.  Emotional disturbance is defined as “a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a generally pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems” (34 C.F.R. § 300.7[c][4]; 8 NYCRR 200.1[zz][4]).

           As early as 2001, the record reflects diagnoses of obesity, mood disorder NOS with depressive, manic and intermittent psychotic features, ADHD, combined type, ODD; characteristic of OCD, and impulsivity (Joint Exs. 5, 21). Various medications were prescribed over time to address the student's various disorders (Joint Exs. 3, 11, 17, 29). A stay at a hospital resulted in an evaluation that recommended continued follow-up by the hospital staff after discharge.  The student’s judgment and insight were both found to be impaired.  The recommendation was medication therapy for anger and mood and continuation in psychotherapy (Joint Ex. 17).

          When at the Storm King School, in the winter and spring of 2003, the student received outside counseling for depression (Joint Ex. 58, Tr. p. 1359) and medical services from a nurse practitioner in psychiatry, for depressed mood and difficulties with concentration and impulsivity (Joint Ex. 58, Tr. p. 1360).

            The student’s most recent psychological evaluation stated that "counseling is warranted to treat [the student's] mood disorder and low self-esteem. Behavioral issues should also be addressed" (Joint Ex. 75).  This psychologist recommended that the student receive counseling to address his mood disorder and low self-esteem (Tr. pp 1191-93). He affirmed that counseling is a generally recommended related service for students diagnosed with depression and that the qualifications of someone delivering the counseling service should be a degree in either social work, counseling, or psychology.

            Although the social worker at Family Foundation School does not provide counseling to the student, she testified that the student is making some progress academically (Tr. pp. 1008, 1024-25).  However, in a letter dated February 14, 2004, she stated that the student “continues to struggle with anger issues, academic achievement, and the desire to return to negative and destructive behaviors” (Parent Ex. 54).  The social worker further testified that the student continues to slack off occasionally, may become sullen and feel like he is drowning in self-pity.  The social worker stated that the student does not handle his anger well, as he has a tendency to shut down and close off.  She characterized his anger as being "a flip side of his depression" (Tr. p. 1025).

           Interaction between the Family Foundation School social worker and the student is on an as-needed basis (Tr. pp. 1026-27).  The bulk of the student’s therapies are conducted by the family unit and through his peer counseling sessions, (Tr. p. 1027).  The record does not indicate that these therapeutic services are delivered by professionally trained staff.  A Minnesota Multiphasic Personality Inventory (MMPI) was administered to the student and was reviewed and interpreted by the Family School's consulting psychologist.  However, the social worker testified that she probably did not specifically discuss the results of the student's MMPI with the psychologist (Tr. pp. 1027-30, 1035; Parent Ex. 62).

           Comments made on a Family Foundation School teacher's summary of behaviors sheet include, "[The student] is lazy and prefers others do the work for him," academic performance was "not to potential," "[The student] missed a couple of weeks of classes due to a work sanction," and [The student] is fairly manipulative [with adults] and uses self-pity to get what he wants." (Joint Ex. 59).  Such descriptions are indicative of the ongoing emotional needs that have been identified in the record (Joint Ex. 75). The record also reflects judgmental comments of questionable therapeutic value in the student’s Family Foundation School records, such as the student being identified as a “major brat” (Tr. pp. 1036-37; Parent Ex. 52). 

            I find that the Family Foundation School does not provide the student with access to personnel with the qualifications necessary to address his needs.  The staff member at the Family Foundation School that has the most contact with the student on a daily basis is an athletics instructor who has no formal education beyond high school (Tr. pp. 924-28, 953-57).  The school’s social worker does not provide individual counseling services to the student, nor does it appear from the record that the student receives any individual counseling at all related to his behavioral and emotional needs.

           The Family Foundation School’s 12-step program is calculated to meet the student's need for substance abuse counseling.  However, it does not meet the student's need for professional therapy and counseling to address the emotional and behavioral needs that affect his educational progress.

            Given that the student’s counseling and academic needs are not being adequately addressed at the Family Foundation School, I find the student’s placement there inappropriate under the IDEA.  Accordingly, I find the award of tuition reimbursement to respondents for the Family Foundation School for the 2003-04 school year to be inappropriate.

             Having determined that petitioner has not met their burden of proof as to the appropriateness of the student’s placement at the Family Foundation School for the 2003-04 school year, I need not address equitable considerations (Application of a Child with a Disability, Appeal No. 04-028; Application of the Bd. of Educ., Appeal No. 01-014).            

             With respect to petitioner’s appeal of the impartial hearing officer’s decision ordering reimbursement of the cost of the August 2003 psychological evaluation (Joint Ex. 75), the record reflects that this evaluation request was initiated by petitioner (Tr. p. 437).  When the student was unable to leave the Family Foundation School for the evaluation, petitioner did not send anyone to evaluate the student (Tr. pp. 437-38, 1377).  Petitioner agreed to accept and use the psychological evaluation conducted in August 2003, in lieu of conducting an evaluation by their own staff (Tr. pp. 167-71, 282, 1376-77; District Exs. 69, 70). 

             I find no basis in the law supporting the proposition that respondents be required to pay for an evaluation requested by petitioner under the IDEA when the student was made available to petitioner to the extent possible under the circumstances.  Therefore, I am not persuaded by petitioner’s arguments that the impartial hearing officer’s decision should be annulled with respect to reimbursement for the August 2003 evaluation (Joint Ex. 75).  

            I have considered petitioner’s and respondents’ remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the impartial hearing officer’s decision is hereby annulled to the extent that he found that respondents demonstrated that the services they obtained for the student were appropriate and to the extent that he ordered reimbursement to respondents for the cost of the student’s tuition at the Family Foundation School for the 2003-04 school year; and

IT IS FURTHER ORDERED that, upon respondents’ submission of proof to petitioner of the cost of the evaluation conducted in August 2003, petitioner shall reimburse respondents for such expenditure.