04-102

          Petitioner, the Board of Education of the Eastport-South Manor Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son for the 2003-04 school year and which ordered it to reimburse respondents for their son's tuition at the West Hills Montessori School (West Hills) for that school year.  Respondents cross-appeal, asserting that the impartial hearing officer erred in permitting certain testimony and in refusing to receive certain documents into evidence.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

            Preliminarily, I will address a procedural issue raised in this appeal.  In their answer, respondents, the student's mother and father, assert that the notice of petition and petition were not personally served upon the student's mother in a timely manner as required by the Regulations of the Commissioner of Education, and that the appeal should be dismissed (see 8 NYCRR 279.1[a], 279.2, 275.8[a]).  Petitioner asserts that the student's father was served with multiple copies of the notice of petition and petition at respondents' home and that the student's mother was aware of the appeal as evidenced by her December 3, 2004 affidavit and her December 5, 2004 affidavit of verification both of which were annexed to respondents' verified answer and cross-appeal.  An appeal from a decision of an impartial hearing officer is generally not dismissed for service irregularities (Application the Bd. of Educ., Appeal No. 02-070; Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-2).  I note that respondents filed a timely response to the petition despite the student's mother's claim that she had not been personally served.  Under the circumstances, I decline to dismiss the petition.

            The student was 11 years old and in the fourth grade in the "I Am I Can" program at West Hills when the hearing began in September 2003.  West Hills has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  The student's eligibility for special education and his classification as a student with autism are not in dispute in this appeal (see 8 NYCRR 200.1[zz][1]).

            The student reportedly has been diagnosed as having a Pervasive Developmental Disorder-Not Otherwise Specified (PDD-NOS).  The record does not indicate when or by whom this diagnosis was made, however, subsequent psychological evaluations confirmed that the student displayed characteristics consistent with a PDD-NOS diagnosis, including behavioral rigidly and perseverative interests, delayed social development and pragmatic language deficits (Parent Ex. 1).  Additionally, the student has difficulty attending (Dist. Exs. D, E, F, H).  Results of standardized testing conducted during the 2002-03 school year indicated that reading, writing and spelling were areas of weakness for the student (Dist. Ex. D; Tr. p. 65).  Specifically, he had difficulty with reading decoding, reading comprehension and transferring his thoughts to paper (Tr. pp. 65, 1806, 1811).  Additionally, the student required support to solve mathematical problems (Dist. Ex. H; Tr. p. 1810).  The student also exhibited expressive and receptive language delays (Dist. Ex. F).

            The student began attending a third grade class in Eastport Elementary School in February 2002 after transferring from a Board of Cooperative Educational Services (BOCES) placement (Parent Ex. 2; Tr. p. 56).  During the summer of 2002, the student attended petitioner's remedial reading and math program with the assistance of an individual aide.  He also received individual and group speech-language therapy.  In September 2002, the student continued to attend Eastport Elementary School where he was placed in a 12:1+1 self-contained third and fourth grade classroom with an individual aide.  Additionally, the student received individual and group speech-language therapy, and was mainstreamed for physical education, lunch, assemblies and specials, such as music and art.  He was also scheduled to participate in general education science.

            In an October 2002 reevaluation report, the student's speech-language therapist indicated that therapy sessions focused on improving the student's grammar, vocabulary, pragmatic and auditory skills (Dist. Ex. F).  She noted that the student had difficulty attending to task and remaining focused, which, she opined, negatively impacted his progress.  On standardized testing administered as part of the student's reevaluation, the student's overall receptive and expressive language/vocabulary and auditory skills were below average.  His articulation skills fell in the second percentile, although intelligibility of his connected speech was considered good.

            An educational assessment also was conducted in October 2002 (Dist. Ex. D).  The student's teacher who administered the standardized testing noted that the student was easily distracted throughout the testing, but after being refocused, appeared comfortable and confident and persisted with tasks that he found difficult.  On the Woodcock-Johnson III Tests of Achievement (WJ III), the student scored in the 25th percentile (2.3 grade equivalent) for total reading and the 39th percentile for total math (2.7 grade equivalent).  The student's teacher indicated that reading was an area of weakness for the student particularly decoding commonly used words, applying phonic and structural analysis, and comprehending information.  The teacher noted that the student made careless errors on the math calculation subtest which required that he solve equations involving addition, subtraction, multiplication and division.  She indicated that with the exception of the math calculation subtest, the results of the standardized testing provided an accurate representation of the student's level of functioning in the classroom.

            Speech-language progress reports dated November 2002 and January 2003 continued to note the student's high level of distractibility (Dist. Ex. E).

            In March 2003, the student's teacher conducted updated testing using the WJ III (Dist. Exs. D, CC).  The student scored in the 30th percentile (2.7 grade equivalent) on the passage comprehension subtest, representing three months’ growth in five months’ time and resulting in a one point decrease in the percentile score obtained in October 2002.  The teacher noted that the student's weak word attack skills affected his ability to answer reading comprehension questions.  The student scored in the 45th percentile (3.5 grade equivalent) on the math calculation subtest, representing growth of nearly one year in five months’ time.

            In April 2003, the student was evaluated by a private psychologist (Parent Ex. 1).  According to her report, the psychologist observed and interviewed the student, reviewed educational reports, considered the support systems provided to the student at school and interviewed the student's parents.  She reported that the student was diagnosed as having a PDD-NOS, which was believed to be accurate and not in dispute.  The psychologist observed that while the student responded to her small talk, he did not initiate conversation or expand upon topics.  She noted that the student's expressive speech was marked by articulation errors and odd intonation which marginally affected intelligibility.  She indicated that the student's social skills were severely delayed, describing several instances of the student's lack of social awareness.  The psychologist recommended psychiatric intervention to address the student's attention deficit and intensive support in all aspects of language comprehension and pragmatic speech.  She also recommended a highly structured extended school year (ESY) program with intensive language support and an individual aide to facilitate social interaction and insure safety.  The psychologist noted that the student's social development had not kept pace with his academic progress and recommended that he receive social skills training.

            Petitioner's Committee on Special Education (CSE) met on May 6, 2003 to develop the student's program for the 2003-04 school year (Dist. Ex. B).  The CSE recommended that the student continue to be classified as having autism and that he be placed in a fourth grade 12:1+1 self-contained class at Eastport Elementary School with an individual aide.  The CSE further recommended that the student receive individual and group speech-language therapy.  It also recommended that the student be mainstreamed in an inclusion classroom for hands-on science activities as well as for physical education, lunch, assemblies and specials, such as music and art.

            At the meeting, the school psychologist recommended that a current psychological evaluation be conducted (Dist. Exs. C, V).  He indicated that with respondents' approval, the evaluation would be conducted in the fall of 2003 (Dist. Ex. C).  Discussions at the meeting included whether the student should receive social skills training (id.).  In his written psychological reevaluation assessment dated May 6, 2003, the school psychologist noted that the student had recently begun taking medication as a result of a private psychological and psychiatric consultation (id.).  He reported that the medication was observed to help the student "quiet his body."  On May 9, 2003, the student's mother consented to the psychological evaluation (Dist. Ex. Q).

            In the student's final progress report for the third grade, his teacher indicated that he had completed all of his academic goals and recommended a fourth grade placement for the 2003-04 school year (Dist. Ex. H).  The teacher rated the student as a developing reader, a beginning writer, a developing speaker and a developing listener.  She noted that the student required support with writing, math problem solving, working independently, organizational skills, attending and focusing, and demonstrating self-control.

            On July 3, 2003, respondents requested an impartial hearing regarding the provision of a free appropriate public education (FAPE) to their son (Parent Ex. 3).  Respondents alleged that the CSE failed to comply with relevant state regulations including that it failed to recommend an appropriate program for their son for the 2003-04.  In their request for an impartial hearing, respondents also indicated their intent to enroll their son in West Hills for the 2003-04 school year commencing July 2003.  Respondents’ son began attending West Hills in July 2003 (Dist. Ex. Z).

            Petitioner's CSE met again in August 2003 as a follow-up to the meeting held in May 2003 (Dist. Ex. A).  The CSE revised the student's speech-language services and added parent training to his individualized education program (IEP).  The goals and objectives on the August 2003 IEP were essentially the same as those on the May 2003 IEP.

            In an August 2003 progress report from West Hills, the student's teacher estimated that the student was functioning at the third grade level in reading and math, and noted that he required prompting to initiate assignments (Dist. Ex. Z).  She indicated that the student's attention would wane after 10 to 15 minutes of working, but that having a teacher or teacher assistant sit next to him helped maintain his focus.  The teacher also noted that the student resisted group activities at times and could be antisocial.

            The student continued to attend West Hills in September 2003 and remained there for the 2003-04 school year.  Counseling goals established at West Hills for the student commencing in September 2003 included developing appropriate behavior for learning and interacting, accepting responsibility for behavior, maintaining eye contact, developing skills for getting along well with others, using problems solving skills, handling conflict and acting with social maturity (Dist. Ex. BB).  A functional behavioral assessment also was conducted in September 2003 and a behavioral intervention plan was developed (Parent Ex. 11).

            By letter dated September 18, 2003, respondents were advised that petitioner had reviewed the May and August IEPs that the CSE had recommended for their son (Dist. Ex. U).

            The impartial hearing began in September 2003 with two hearing sessions.  In early October 2003, one of petitioner's school psychologists conducted a psychological evaluation of the student at West Hills (Dist. Ex. V).  Prior to the administration of testing, the psychologist observed the student in his 6:1+1 classroom at West Hills.  He indicated that the student either followed his own agenda or did school work with an aide sitting next to him.  The student was narrowly focused on work to complete or objects of interest.  He moved comfortably around the room, but did not interact with other children and did not exhibit much eye contact.  Little variability was noted in the student's generally serious affect and he did not generally exhibit disruptive or stereotypic behaviors.

            Administration of the Weschler Intelligence Scale for Children – Third Edition (WISC-III) yielded a verbal IQ score of 92, a performance IQ scale of 113 and a full scale IQ sore of 102 (id.).  Although the psychologist indicated that the testing conditions were adequate and considered results of the evaluation to provide a generally accurate estimate of the student's current functioning, he noted that the abnormal degree of scatter within the verbal and performance scales reflected inconsistencies in functioning, and indicated that the student's full scale IQ score should be viewed cautiously.  The student exhibited relative weaknesses in his ability to encode information for processing, to demonstrate an understanding of practical information and to display knowledge of conventional standards of behavior.  He was better able to process and organize visual stimuli than to quickly perform rote paper and pencil tasks.  Performance on the Bender Visual Motor Gestalt Test reflected inconsistencies in the student's visual motor integration skills.  Projective testing indicated that the student struggled with understanding nuances of social interaction, choosing instead to focus on interests where he felt more a sense of control.

            The psychologist confirmed that the student displayed characteristics consistent with a PDD-NOS diagnosis (id.).  He indicated that the student would benefit from visual cues.  Noting that the student would benefit from increased opportunities to socialize with peers and involvement in a socialization group, the psychologist recommended social skills training to help improve the student's sense of belonging and to assist him in comprehending how to more effectively interact with others.

            In December 2003, a consultant for petitioner conducted an observation of the student at West Hills (Parent Ex. 12).  The consultant opined that the classroom was set up like a preschool class or a class for severely disabled students.  She noted that there was a schedule written on the blackboard, but that the class did not follow the schedule in the order it was written.  She commented that there was no clear beginning or end to activities. She further commented that there did not appear to be any opportunity for independence. 

            The hearing resumed in January 2004 and continued eight more days, concluding on August 11, 2004.  The impartial hearing officer rendered his decision on October 14, 2004.  Finding several inadequacies in the student's May and August IEPs, including that the goals and objectives lacked evaluative criteria, the impartial hearing officer concluded that the student was denied a FAPE for the 2003-04 school year.  Additionally, the impartial hearing officer found that West Hills was appropriate in that it addressed the student's behavioral difficulties, allowed him to progress academically and provided him with meaningful educational benefit.  He further found that equitable considerations supported the parents' claim for reimbursement.  The impartial hearing officer also found that the student was entitled to ESY services for the 2003-04 school year.  Accordingly, the impartial hearing officer awarded respondents tuition reimbursement for the 2003-04 school year for the period from July 2003 through the end of the 2003-04 school year.

            Petitioner appeals from the impartial hearing officer's decision.  It asserts that the impartial hearing officer erred in finding that the program it developed for the student for the 2003-04 school year was inappropriate.  It also asserts that the impartial hearing officer incorrectly found that respondents met their burden of demonstrating the appropriateness of West Hills, that he incorrectly found that equitable considerations supported respondents' claim for reimbursement and that he incorrectly awarded such reimbursement.  Respondents cross-appeal asserting that the impartial hearing officer erred in permitting certain testimony and erred in refusing to receive certain documents into evidence.

            First, I will address petitioner's appeal from the impartial hearing officer's award of tuition reimbursement.  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. 02-092).  In order to meet its burden, 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. 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 WL 31521158 [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]).

            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. 04-029; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  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]).  “Measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planning process used to develop and implement the IEP for each child with a disability” (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1).  Annual goals must also include evaluation criteria, evaluation procedures and schedules to be used to measure progress toward the annuals goals (8 NYCRR 200.4[d][2][iii]).

            In general, annual goals are statements that identify what skills a student can reasonably be expected to demonstrate in his special education program within a 12-month period (see New York State Education Department's Sample Individualized Education Program and Guidance Document – December 2002). Once a CSE has developed measurable annual goals for a child, the committee can develop strategies that will be most effective in realizing those goals and must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1).  Short-term instructional objectives break the skill described in the annual goal down into discrete components whereas benchmarks may be thought of as describing the amount of progress the child is expected to make within specified segments of the year. (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1).  The purpose of including short-term objectives or benchmarks is to enable a child’s teachers, parents and others involved in the process to gauge at intermediate times during the year how well the student is progressing toward achievement of the annual goal, and, if appropriate, to revise the IEP consistent with the student's instructional needs (id.).

            The student's IEP includes 14 goals addressing his reading, math and speech-language needs.  While each goal includes short-term instructional objectives, there is no statement in either the goals or the objectives indicating how progress toward the goals will be measured.  Neither the goals nor the objectives contain evaluation criteria identifying how well and over what period of time the student must perform the identified skill.  For example, how well the student must perform the identified skill could be measured in terms such as frequency, duration, distance or accuracy (see New York State Education Department's Sample Individualized Education Program and Guidance Document – December 2002).  The period of time over which the student must perform the identified skill could be measured in terms such as number of days or weeks, or occasions (see id.).

            I agree with the impartial hearing officer that the goals and objectives developed for the student for the 2003-04 school year are not adequate because they lack evaluation criteria.  I also agree with the impartial hearing officer that the failure of the CSE to develop adequate goals and objectives for the student resulted in a loss of educational benefit.  As noted previously, measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planning process used to develop and implement the IEP for each child with a disability (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1).  Goals and objectives which cannot be measured provide no means for educators or parents to monitor progress during the year and if appropriate revise the IEP consistent with the student's instructional needs.  The failure of the CSE to develop measurable goals and objectives deprived the student of a critical component of his educational program and seriously infringed upon respondents’ ability to participate in the planning and implementation process, and consequently, denied respondents' son a FAPE (see Rowley, 458 U.S. at 206-07).  I find that petitioner did not meet its burden of demonstrating the appropriateness of the program recommended by its CSE and, therefore, respondents have prevailed with respect to the first criterion for an award of tuition reimbursement.  Having so found, it is not necessary that I consider petitioner's other challenges to the impartial hearing officer's findings that the student's IEPs were inappropriate.

            With respect to the second criterion for an award of tuition reimbursement, the student's parents bear the burden of proving the appropriateness of the services provided to their son by the private school (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, respondents must show that West Hills 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 restrictiveness 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; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

            I agree with the impartial hearing officer that respondents met their burden of demonstrating that the program at West Hills met their son's educational needs.  As noted above, the student has been diagnosed as having a PDD-NOS manifested by behavior, social and communication delays (Parent Ex. 1).  The student also has attending difficulties (Dist. Exs. B, D, E, F, H).  Additionally, he had deficits in reading, math and writing (Dist. Ex D).  The student's expressive and receptive language skills are delayed, as are his auditory perceptual skills and his articulation skills (Dist. Ex. F).  The record shows that the student requires a structured environment with a predictable routine, a 1:1 aide, small group instruction, and teacher reinforcement to stay on task (see Dist. Ex. B).  The record further shows that he has a visual learning style, learns best when models and examples are provided and requires continued reinforcement of previously taught materials (id.).

            The "I Am I Can" program at West Hills is for students with neurobiological disorders (Parent Ex. 17).  Designed to foster independence, the program helps students learn how to self-manage their behavior so that they can be independent outside of school (Tr. p. 1241).  Social workers are assigned to classrooms to help students better understand their disability and manage their symptoms (Tr. pp. 1271-72).  The program changes the classroom environment and faculty perspective to meet the student's needs (Parent Ex. 17).  A team approach consisting of a special education teacher, a resource room teacher, a speech pathologist, an occupational therapist, a social worker and a school psychologist is employed (id.).  Students' needs are discussed at weekly staffing meetings and programs are adjusted based on such discussions (Tr. p. 1017).  Classrooms are configured to allow for individualized and self-guided learning (Tr. p. 1241).  Behavior management techniques include prioritizing behaviors and collaborative problem solving allowing the student input in the problem solving process (Tr. pp. 1157-65).  The program's philosophy also includes acknowledging the student's feelings in an effort to build a sense of trust which enables the student to take risks academically and socially, and "spend less time thinking about their disability, spend that energy on self-management, academics and social relationships" (id.).  The "I Am I Can" program includes a life skills component (Tr. p. 1258), and parent training is available at the school (Tr. pp. 1272, 1716).  Opportunities for mainstreaming exist with the Montessori programs located at the same site (Tr. p. 1019).

            The director of special education at West Hills whose major responsibility was for the "I Am I Can" program (Tr. p. 1003) testified that during the 2003-04 school year, there were 32 students enrolled in the program, three-quarters of whom had autism spectrum disorders and at least one-third of whom had an individual aide (Tr. pp. 1004-05, 1011).  He indicated that the student was placed in a 6:1:1 combined fourth, fifth, sixth grade classroom (Tr. pp. 1037, 1460-62).  He further indicated that the program obtained fourth grade textbooks from the student's home district which were used to develop an individualized academic program for the student (Tr. pp. 1114-21).  To address gaps in the student's knowledge in science, a third grade science text also was used (Tr. p. 1119-20).  The director of special education at West Hills testified that the student received individual and group counseling, including social skills training (Tr. p. 1169).  He explained that the program addressed the student's attending difficulties by using a visual cue, such as a clock, to let the student know how long he had to attend, by scheduling frequent breaks for the student and by trying to increase his attention span using highly motivating materials or activities (Tr. pp. 1166-67).  He also explained the role of the student's individual aide (Tr. p. 1261).

            The director of special education at West Hills opined that the 6:1:1 class addressed the student's need for individual academic support, decreased the student’s frustration, and provided the student with an environment to address his social skill deficits (Tr. pp. 1124-25).

            The student's teacher at West Hills testified that she prepared lesson plans for each individual student (Tr. p. 1676).  Students' programs were individualized and students worked at their own pace (Tr. p. 1539).  The student's teacher further testified that she worked on the student's decoding deficits by taking turns reading aloud (Tr. p. 1493).  She also worked individually with the student on certain math skills (Tr. p. 1521).  She explained how personalized visual cues were used throughout the day (Tr. p. 1466).  She also explained how she would encourage independence by giving the student additional responsibilities like running an errand (Tr. p. 1552).

            I note that reports from West Hills throughout the 2003-04 school year show the student's progress.  In October 2003, the student's teacher reported that the student's frequency of socialization was increasing and that he had shown consistent progress in math and language arts (Dist. Ex. AA).  In March 2004, the student's speech-language therapist reported that the student continued to show steady progress with the most significant improvement in the student's social language skills and ability to express himself effectively (Parent Ex. 9, pp. 24-28).  She indicated that the student had recently become more verbal and expressive of his wants (id.).  In April 2004, the social worker at West Hills reported that the student had slowly continued to make both social and emotional progress.  His communication skills and group participation had improved and he was making small gains in handling disappointment and frustration.  Based upon the information before me, I find that respondents have met their burden of proving the appropriateness of the services provided to their son by West Hills.  It offered the student a structured environment with a predictable routine, an individual aide, small group instruction with teacher reinforcement and visual cues as well as counseling and speech-language therapy.

            The third criterion for an award of tuition reimbursement is whether respondents' claim is supported by equitable considerations.  Petitioner asserts that respondents failed to cooperate with the CSE and did not provide notice of their intent to seek reimbursement until after they had enrolled their son in West Hills, and, therefore, they should not be awarded tuition reimbursement.  I am unable to find that respondents failed to cooperate with the CSE.  Respondents explained that they did not consent to psychological testing of their son because of concerns regarding the accuracy of the testing given their son's language deficits.  There is nothing in the record to show that petitioner attempted to address those concerns or that it requested a hearing to obtain such consent.  I note that the student's mother did provide consent in May 2003 and that petitioner conducted a psychological evaluation in October 2003.

            With respect to petitioner's claim that respondents did not advise petitioner of their intent to seek reimbursement for West Hills until after they had enrolled their son in West Hills, I find that respondents notified petitioner and placed in issue the appropriateness of their son's program for the 2003-04 school year in a time frame that allowed petitioner to address respondents' concerns (Application of the Bd. of Educ., Appeal No. 04-022).  In fact, the record shows that the CSE met in August and made revisions to the student's IEP to address some of respondents' concerns.  In the absence of evidence demonstrating that respondent failed to cooperate in the development of the IEP or otherwise engaged in conduct which precluded the development of an appropriate IEP, I concur with the impartial hearing officer's finding that equitable considerations support respondents' claim for tuition reimbursement.  Accordingly, I find that respondents are entitled to an award of reimbursement for the tuition at West Hills for the 2003-04 school year commencing September 2003.  However, I am constrained to find that the record does not support their claim for reimbursement for the services they obtained for their son for summer 2003.  Students shall be considered for ESY services in accordance with their need to prevent substantial regression (8 NYCRR 200.6[j]).  Substantial regression is the inability of a student to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year (8 NYCRR 200.1[aaa]).  There is no factual evidence in the record demonstrating a need to prevent substantial regression. 

            Having found that respondents have prevailed with respect to their tuition reimbursement claim from September 2003 through June 2004, it is not necessary that I address that portion of their cross-appeal challenging the impartial hearing officer's ruling permitting testimony regarding the summer 2004 observation of the student.  With respect to respondents' cross-appeal asserting that the impartial hearing officer erred in not admitting into the record recommendations for the student for the 2004-05 school year, I agree with the impartial hearing officer's ruling.  Such information was beyond the scope of the hearing which concerned issues relating to the 2003-04 school year.

            I have considered petitioner's 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, to the extent that it awarded tuition reimbursement for the summer 2003 program at West Hills, is hereby annulled.