05-025

            Petitioner appeals from the decision of an impartial hearing officer which denied her request that respondent pay for her son’s tuition costs at P’tach-Yeshiva Rabbi Chaim Berlin Elementary School (P’tach) for the 2004-05 school year.¹ The appeal must be sustained in part.

            Before addressing the merits of this appeal, I must address a procedural issue.  Respondent objects to petitioner’s reply to its answer.  Respondent has raised no procedural defenses nor submitted additional documentary evidence with its answer.  A reply is permitted only when respondent has raised procedural defenses or submitted additional documentary evidence served with the answer (8 NYCRR 279.6; Application of a Child with a Disability, Appeal No. 04-002²).  Consequently, I will not consider petitioner’s reply.

            Petitioner’s son was nine years old and attending a self-contained class at P'tach at the commencement of the hearing in November 2004.  P’tach has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (N.Y. Educ. Law § 4401[2]).  Petitioner’s son has been described as “a very bright boy” with numerous needs including difficulties in the areas of speech and language (involving processing, retrieving and remembering language-based information, spelling, and reading speed), fine motor, and executive functioning (see Parent Exs. D, H).   He also has significant attentional and behavioral issues (see Parent Exs. D, H).  The child’s eligibility for special education as a child with a speech or language impairment is not in dispute in this proceeding (see 8 NYCRR 200.1[zz][11]; see also Parent Ex. G at p. 1).

           The child attended Yeshiva Ruach Chaim, a private school, from August 2000 through June 2004, where he completed kindergarten through third grade. He has never attended public school. He was first determined eligible for special education at a Committee on Special Education (CSE) meeting on May 11, 2001 (Parent Ex. L). At Yeshiva Ruach Chaim he attended a general education classroom and received special education teacher support services (SETSS), speech-language therapy and occupational therapy (Parent Exs. E, L, G, I, J). While at Yeshiva Ruach Chaim, individualized education programs (IEPs) were developed on May 11, 2001,³ March 12, 2002, February 5, 2003, and on April 14, 2004 (Parent Exs. L, G, I, J). Petitioner enrolled her son in P’tach on September 2, 2004 (Parent Exs. T, W; Petitioner Aff. ¶ 2).  Petitioner advised respondent of her intent to unilaterally enroll her son in a private school at public expense by letter dated October 14, 2004, in which an impartial hearing was requested (Parent Ex. A).

          Petitioner’s son had academic, behavioral, and attentional difficulties while a student at Yeshiva Ruach Chaim (Parent Ex. L, Parent Ex. P at p. 4, Parent Ex. O at pp. 2-3, 5, 8, Parent Exs. N, Q, H, Parent Ex. D at p. 2; Tr. pp. 8, 9, 10, 11, 33, 38).  During the 2002-03 school year, when the child was in the second grade at Yeshiva Ruach Chaim, he was acting out, having a hard time and not doing his work, and teaching staff was complaining about him (Tr. pp. 8, 10).  The child was "very angry," and every day he arrived home upset, "hated" school, and felt frustrated (Tr. p. 10).   Petitioner called respondent’s board of education offices mid-year of the 2002-03 school year to find out if her son could be reevaluated (Tr. pp. 8, 9, 19). Although she could not identify with whom she spoke on the telephone, petitioner testified that the person was not very helpful and referred her back to the child’s current teachers (Tr. pp. 8, 9, 19). The record reflects that a CSE meeting took place on February 5, 2003 (Tr. pp. 19-20), but there is no indication that a reevaluation was discussed at that meeting in which petitioner consented to continuation of existing services (Tr. p. 20).  Petitioner testified that in the beginning of her son’s third grade 2003-04 school year, the Yeshiva Ruach Chaim principal advised her that her son should have “a proper evaluation” and that her son may need a different school placement (Tr. p. 9). At the time of the hearing, respondent had not yet reevaluated the child.⁴ 

         A general education teacher progress report dated “4/04” and prepared by the student’s teacher for the 2003-04 school year stated that petitioner’s son, who was then in the third grade, was reading at the second grade level, had trouble decoding new words, and had a low reading comprehension level (Parent Ex. H at p. 1). It also indicated that he added and subtracted using his fingers and that carrying over was not necessary.  Areas of weaknesses included processing complex auditory information, putting a story or thought on paper, punctuation, reading comprehension, and motivation.  The progress report also indicated that the child did not act age appropriately and was not accepted by other children.  The teacher recommended speech services and resource room services, but did not recommend a different classroom placement (id.).

         Petitioner testified that she realized during the middle of the 2003-04 school year that her son was not “doing well” and “had to do something” (Tr. p. 23). She apparently spoke with the principal of P’tach, who in turn recommended a specific clinical psychologist (psychologist) (Tr. p. 47).  Petitioner then had a parent interview with the psychologist in February 2004, and the child was evaluated on three different dates in March, the last being March 11, 2004 (Parent Ex. D).  Petitioner testified that she advised an unnamed Department of Education representative, who telephoned her to schedule an annual review for April 14, 2004, that her son had been “privately tested” (Tr. p. 24). A CSE meeting did take place on April 14, 2004, however, petitioner did not testify, nor does the record reflect that she advised the CSE of the private evaluation or of any problem the child was having at the private school (Parent Ex. G at pp. 1, 2).  The individualized education program (IEP) resulting from the April 14, 2004 meeting indicated that petitioner participated in the meeting by telephone (Parent Ex. G at p. 2;  Tr. pp. 18, 20, 23, 46).  The April 14, 2004 IEP provided that the child receive SETSS services in support of a general education placement five periods a week, individual occupational therapy twice a week for 30 minutes, and speech-language therapy twice a week for 30 minutes in a group of three (Parent Ex. G).  The services, along with the frequency and duration, were the same as the previous three years (Parent Ex. L at pp. 1, 11; Parent Ex. J at pp. 1, 12; Parent Ex. I at pp. 1, 14).  Petitioner testified that, as had been the case in other years, she was asked by respondent whether she wanted her son’s services to continue, that she said that she did, and that she consented to the IEP (Tr. pp. 20, 21, 22-23, 46). 

         Petitioner testified that she received the report of the private psychoeducational evaluation in April or May 2004  (Tr. p. 24). She sent respondent a copy of the report for the first time on September 20, 2004, attached to a letter in which she advised respondent that she believed her son had not been offered a sufficient level of services and that he required more individualized attention and a full time special educational placement (Parent Supp. Ex. A; Tr. p. 24).  In her letter she did not ask for private school placement at public expense (id.).

         The report prepared by the psychologist indicated that she conducted psychoeducational, neuropsychological, and personality evaluations of the child (Parent Ex. D at pp. 1-5, 5-8, 8-10).  Administration of the Wechsler Intelligence Scale for Children–Third Edition (WISC-3) yielded a verbal IQ score of 97, a performance IQ score of 102, and a full-scale IQ score of 99, all of which fell in the average range of tested intellectual functioning (Parent Ex. D at p. 3).  The psychologist noted that the child’s subtest scores were “quite variable” (id.) and that they ranged from the 95th percentile to the fifth percentile (Parent Ex. D at p. 10).  She concluded that as a result, the child’s WISC-3 scores were not representative of his abilities and were weighted down by low processing speed, weak working memory and attention, and variable language skills (Parent Ex. D at p. 3).  She found that the child’s fine motor control was good but that writing letters was a slow and laborious process due to weak visual memory, as well as language difficulties, and that the child’s language difficulties included trouble processing, retrieving and remembering language-based information (Parent Ex. D at p. 10).  The psychologist evaluated the child’s attentional and executive functions through multiple, formal, and informal means.  Testing yielded scores as low as the first percentile to as high as the 25th percentile, including a number of attention and executive function related scores in single digit areas (Parent Ex. D at pp. 7-8, 15). The psychologist concluded that the child demonstrated significant weaknesses with attention, problem solving, planning and with cognitive flexibility (Parent Ex. D at p. 8).  She also found that the child’s attentional difficulties significantly impacted his academic performance, his ability to work independently, and his behavior at school (Parent Ex. D at p. 8).  The psychologist noted that petitioner’s son had a poor frustration tolerance and was quite impulsive (Parent Ex. D at p. 10). 

         The psychologist assessed the child’s academic functioning through administration of the Wechsler Individual Achievement Test–Second Edition (WIAT-2) (Parent Ex. D at p. 4).  He received standard and percentile scores of 100 (50th percentile) in math reasoning, 94 (34th percentile) in numerical operations, 91 (27th percentile) in word reading and pseudoword decoding, 88 (21st percentile) in reading comprehension, and 79 (eighth percentile) in spelling (Parent Ex. D at p. 13). He was unable to complete the written expression subtest (id.).   The evaluator concluded that weaknesses in processing speed, attention, and visual memory impacted his academic development and noted that the child's academic achievement scores were almost uniformly lower than his IQ scores (Parent Ex. D at p. 4).   As a result of his cognitive profile, she indicated that petitioner’s son demonstrated academic delays in reading and writing skills including spelling, punctuation, sentence construction, writing, decoding and reading comprehension (Parent Ex. D at p. 10). 

         The psychologist assessed the child’s personality through formal and informal means (Parent Ex. D at p. 8).  She concluded that the child was open with his feelings, not effective at managing more painful feelings, and unable to consistently judge behavioral appropriateness (Parent Ex. D at p. 10).  She indicated that because he was subject to being overwhelmed, he tried to control his environment by limiting and avoiding situations that he might find provocative including his range of social interactions with peers (id.).  As a result, the child’s limited social skills and avoidant behavior reinforced each other (id.).  The psychologist also pointed out that the child’s persistent struggles and lack of success had affected his self-esteem and that he felt “quite bad” about himself (id.).  Her review of the child also determined that he was not an angry child, that he possessed numerous resources including intelligence, a sense of humor, and interest in the world and that, with proper interventions, he could experience success and become much happier (Parent Ex. D at pp. 10-11).

         The psychologist recommended placement of petitioner’s son in a self-contained classroom with a student to teacher ratio of 10:1:1, with teachers able to work with children with learning disabilities, in particular, children with attention deficits and language limitations (Parent Ex. D at p. 11).  She further recommended that the classroom be highly structured and material be presented at a slow pace with interaction and the use of multisensory techniques (id.).  Among other things, she also recommended twice weekly speech-language therapy, an occupational therapy evaluation, weekly psychotherapy with conjoint family sessions, a psychiatric consultation to determine whether medication would help manage the child’s attention weaknesses, and she made specific recommendations relating to his home environment (Parent Ex. D at pp. 11, 12). 

         The child’s grades for the 2003-04 school year are not in the record.  However, the psychologist reported that with the exception of Hebrew, in which he received modified testing and obtained grades in the 70s and 80s, the child was “failing most classes” and was “falling further and further behind the other students” (Parent Ex. D at p. 2).  Petitioner’s son scored in the fifth percentile in reading composition and the first percentile in science and spelling on the Stanford Achievement Test, which he took in May 2004 (see Parent Ex. F).

          Petitioner testified that she enrolled her son at P’tach at the end of August or the beginning of September for the 2004-05 school year on the basis of the recommendations in the private evaluation report (Tr. pp. 13-14, 27). Petitioner further testified that she indicated to respondent in September 2004 that the child was attending P’tach when she provided enrollment information as part of her authorization for her son to receive occupational therapy (Tr. pp. 26-27, 28). 

           By letter dated October 17, 2004, petitioner, through her counsel, conveyed a request to respondent’s Office of Hearings for an impartial hearing, restated her concern regarding the child’s recommended program, formally gave notice that she had enrolled her child in P’tach, and requested reimbursement for tuition payments to date and for payment of the balance of the 2004-05 tuition (Parent Ex. A).  The hearing was held on November 18, 2004 and December 3, 2004.  At the hearing, petitioner claimed that respondent should have reevaluated the child after her request during the 2002-03 school year and that a triennial reevaluation should have been conducted in the spring of 2004  (Parent Ex. X; Tr. pp. 8, 52).  Petitioner also reduced her tuition request by 20 per cent because that portion of P’tach’s school day involved religious content (Tr. p. 55).  Respondent did not present any documentary evidence or call on witnesses at the hearing.

           The impartial hearing officer (IHO) issued a decision dated January 14, 2005.  She concluded that the IEP developed after the April 14, 2004 meeting was sufficient to identify the child's needs, that respondent’s failure to reevaluate the child did not affect his right to a free appropriate public education (FAPE), that respondent’s IEP offered petitioner’s son a FAPE and was reasonably calculated to enable him to receive educational benefits.  She also concluded that there was insufficient evidence to support the student's “restricted” placement at P’tach and that equitable considerations would probably not support the claim for reimbursement. 

           Petitioner contends on appeal that respondent failed to offer a FAPE because it failed to reevaluate her son when asked to do so during the 2002-03 school year.  In addition, petitioner contends that the child should have been reevaluated during the 2003-04 school year and that respondent had provided her son with an inadequate IEP.  She also claims that her son’s placement at P’tach was appropriate and that equitable considerations are in her favor.  Respondent asserts that a reevaluation was not required since the IEP was developed before the end of the 2003-04 school year, that in any event the CSE had appropriate evaluative information before it at the time of the CSE meeting, and that its IEP was appropriate.  It also asserts that petitioner did not establish that P’tach was an appropriate placement and that the equities do not support an award to petitioner.

           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 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][D]; 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 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]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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 program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 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. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires 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 also 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, Section 1, Question 1).

            A CSE must have adequate and timely evaluative data to prepare an appropriate IEP for a child (Application of the Bd. of Educ., Appeal No. 99-94; Application of a Child with a Disability, Appeal No. 99-05; see Application of a Child with a Handicapping Condition, Appeal No. 91-25).  Consistent with this, a CSE must arrange for an appropriate reevaluation of each student with a disability if conditions warrant a reevaluation, or if the student, parent, or teacher requests a reevaluation, but at least once every three years (34 C.F.R 300.536[b]; 8 NYCRR 200.4[b][4]).  The obligation for a reevaluation is not optional (Application of a Child with a Disability, Appeal No. 97-34).  A reevaluation must be sufficient to determine the student's individual needs, educational progress and achievement, ability to participate in the regular education program, and continued eligibility for special education (8 NYCRR 200.4[b][4]; Application of the Bd. of Educ., Appeal No. 99-94; see also Application of a Child with a Disability, Appeal No, 96-3; Application of the Bd. of Educ., Appeal No. 94-43).  The results of any reevaluations must be addressed by a CSE in reviewing and revising a student’s IEP (8 NYCRR 200.4[d][4]). As part of a reevaluation, existing evaluation data shall be reviewed, and on the basis of that review (along with input from the parent), a determination made as to what additional data are needed to determine, inter alia, the present levels of performance and educational needs of the child and whether any additions or modifications to the special education services are needed (8 NYCRR 200.4[b][5]). If additional data are not needed, the school district must notify the parents of that determination and the reasons for it (8 NYCRR 200.4[b][5][iv]).

           There is nothing in the record to indicate that such reevaluation determinations were made and/or communicated to petitioner.  Respondent has not demonstrated that this IEP, which was developed in the absence of an appropriate reevaluation, is an educational program which was calculated to confer educational benefits (see Application of a Child with a Disability, Appeal No. 93-42; see also Application of a Child with a Disability, Appeal No. 04-020; Application of a Child with a Disability, Appeal No. 99-5; Application of a Child with a Disability, Appeal No. 96-24). Based upon my review of the record, I find that respondent has not met its burden of showing that it offered to provide an educational program that was formulated in compliance with required procedures and reasonably calculated to confer educational benefits.  Respondent failed to follow the procedures required by the IDEA by failing to conduct a timely reevaluation of the child.  Respondent acknowledges that petitioner’s son was due to be reevaluated at the end of the 2004 school year (Memorandum of Law in Support of Respondent's Verified Answer at p. 9), and there is no evidence that a reevaluation has been completed.  Respondent contends that a reevaluation was not necessary because the IEP was developed prior to the end of the 2003-04 school year. Respondent’s argument is not persuasive.  The April 14, 2004 IEP was formulated for a period of time ending April 14, 2005. Under the circumstances here, respondent had an obligation to conduct a reevaluation in a time frame that provided it with an understanding of the child’s current needs in order to develop an appropriate program for the child for the beginning of the child’s 2004-05 school year. They did not do so and thereby denied the child educational benefits and a substantive program reasonably calculated to confer educational benefits.

           Respondent also claims that the CSE had sufficient assessment data at the time the 2003-04 IEP was developed, including an April 2004 annual progress report from the child’s school (see Parent Exs. K, M, N, O, P, Q, R, H).  However, the hearing record does not demonstrate what data the April 14, 2004 CSE considered in formulating the IEP.  There are no evaluative data or standardized test scores listed on the IEP, nor did respondent provide any testimony from a member of the CSE as to what data was relied upon to fashion the child’s IEP. Moreover, there is no documentary evidence suggesting what assessments or evaluations the CSE relied upon.  With respect to the April 2004 progress report, which may have been considered by the CSE (Parent Ex. H), I find that this report was insufficient by itself to determine the student’s individual needs, educational progress and achievement, ability to participate in instructional programs in regular education, and the student’s continuing eligibility for special education (see 8 NYCRR 200.4[b][4]) The lack of evaluative data also did not provide sufficient information to adequately identifypresent levels of performance (Application of a Child with a Disability, Appeal No. 05-010; Application of a Child with a Disability, Appeal No.04-101) which is borne out by the inadequate description of such levels on the IEP. Additionally, some of the instructional goals and objectives are not sufficiently measurable. For example, the expressive writing and spelling objectives are not measurable, and other goals lack identification of evaluation procedures (8 NYCRR 200.4[d][2][iii]; see generally Application of a Child with a Disability, Appeal No. 04-112). Based upon the above, I find that respondent has not demonstrated that it offered petitioner’s son an appropriate program for the 2004-05 school year.

            Petitioner has, therefore, prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.

            Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the child during the 2004-05 school year, I must now consider whether petitioner has met the burden of proving that the services provided to her son by P’tach during that school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

           P’tach is a special education school within the larger Yeshiva Rabbi Chaim Berlin Elementary School (Tr. pp. 6, 14, 30).  P’tach has self-contained classes for children with learning disabilities (Tr. p. 30). Each class has a teacher, at least one assistant and 8 children (Tr. pp. 30, 34, 42).  Petitioner’s son is enrolled in one of the self-contained, special education classes (Tr. pp. 30, 34).  One, if not more, of his teachers are certified in special education (Tr. p. 34).  He receives daily instruction in Language Arts (including reading, writing and spelling), Mathematics, Science, and Social Studies (Parent Ex. S).  In addition to this, P’tach provides petitioner’s son with speech-language therapy from a speech therapist twice a week for 30 minutes, mostly on an individual basis but also in a group of two (Tr. pp. 39, 42-43).  P’tach also provides the child with counseling as necessary from a school-based counselor who is a psychologist (Tr. pp. 39, 40). Occupational therapy as included in his April 14, 2004 IEP is to be provided by respondent (Tr. pp. 32, 39, 72-75).

           P’tach’s educational director, who was familiar with the child’s special education needs and who observed him in class (Tr. pp. 31, 32), testified that the child’s placement at P’tach is appropriate (Tr. p. 33).  She indicated that the size of the classroom group and the two person teaching staff provided the child with the opportunity to obtain attention and helped with his attentional difficulties (Tr. p. 31).  She testified that the classroom environment provides the child with information at a very, very slow, steady rate so that he can process it carefully, that there is constant feedback by the teachers, and that all material given to him is done so with adequate chunking so that he is not overwhelmed (Tr. p. 31).  The child’s instruction is also reinforced by the use of cues and visually oriented stimuli to address his difficulties with auditory processing (Tr. p. 36).  His class also uses multisensory techniques and breaks language down to address the child’s difficulties to process material that is heavily language laden (Tr. p. 37).  Moreover, the speech-language therapist works with the child’s special education teachers to help them manage his language and processing deficits and the school uses programs to help petitioner’s son process language more efficiently (Tr. p. 43).

           The educational director reported that when petitioner’s son began P’tach he was very unhappy, a behavior problem, was very closed and had difficulty cooperating (Tr. p. 33).  He was at least a year and one-half to two years behind academically and more than two years behind in processing classroom language (see Tr. pp. 36-37).  At the hearing, which was approximately two and one-half months later, she reported that petitioner’s son was functioning productively, was confident and happy, did not feel threatened, was beginning to open up emotionally, his skills were improving, and he was making slow but steady progress (Tr. pp. 32, 39).

             I do not agree with the impartial hearing officer that the child’s enrollment in P’tach is inconsistent with LRE considerations (see IHO Decision, p. 8).  Parents are not held as strictly to the standard of placement in the LRE as school districts are; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d at 105).  However, this must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).  As explained above, petitioner’s son has multiple and significant educational needs affecting his educational performance and he requires a significant amount of educational support.  Moreover, the educational program provided by P’tach was appropriate for the child’s special education needs.  I also note that petitioner’s son reportedly was not functioning well in a regular education class during the 2003-04 school year. Further, while the child’s academic classes at P’tach were with special education children, he had access to regular education students.  P’tach is located within a regular education school and provides a “full mainstream parallel program” where the special education classes run along side the mainstream classes and where its students are mainstreamed into the regular classes for their non-academic program (Tr. p. 30, 34).  Because of this, petitioner’s son is among his regular education peers during recess periods, lunch, and other non-academic classes such as gym (Tr. p. 43; see Parent Ex. S).

             Petitioner’s son has numerous needs including difficulties in the areas of speech and language (involving processing, retrieving and remembering language-based information, spelling, and reading speed), fine motor and executive functioning, and significant attentional and behavioral issues (see Parent Exs. D, H).  In light of the record, including the testimony of the educational director of P’tach and the extensive and detailed private evaluation, and for the reasons set out above, I find that P’tach addressed the child's needs.  I also find that LRE considerations do not preclude a finding that P’tach was an appropriate placement.  Accordingly, I find that petitioner has met her burden of demonstrating the appropriateness of the program at P’tach and that she has prevailed with respect to the second Burlington criterion for an award of tuition reimbursement for her son’s attendance at that school for the 2004-05 school year.

            The final criterion for an award of tuition reimbursement is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, at n.9).

            Under 20 U.S.C. § 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary (Application of a Child with a Disability, Appeal No. 04-071; Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054).  Moreover, the provision with respect to the reduction or denial of tuition reimbursement on the basis of a parent’s failure to comply with the notice requirement in 20 U.S.C. § 1412(a)(10)(C)(iii)(I) will not apply if the parent had not received notice of it pursuant to IDEA's procedural safeguards provision (see 20 U.S.C. § 1412[a][10][C][iv][IV]).

            The impartial hearing officer concluded that equitable considerations “probably” would not support petitioner’s claim for reimbursement.  She also found that petitioner was “not unfamiliar” with the procedure for obtaining appropriate services because respondent had provided the child with special education services for many years and petitioner had participated in that process.  She also concluded that petitioner denied respondent the opportunity to work cooperatively with her to reconsider its recommendations and perhaps offer a mutually agreeable FAPE because the parent did not notify respondent of her objections to the recommended program until after she enrolled her son in P’tach. Respondent also argues that petitioner should have objected to the recommended program at the April 14, 2004 CSE meeting, stated an intent to seek tuition reimbursement sooner, and that petitioner should have advised respondent prior to her October request for a hearing that she was seeking reimbursement for a private placement.  Respondent argues that for these reasons equitable considerations with respect to Burlington/Carter as well as the notice provision and the requirement to act “not unreasonably” at 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and (III) preclude an award of tuition reimbursement.

            I find the actions of both parties troubling. Petitioner did not give timely notice of the private placement for which she seeks payment. Moreover, although prior to the April 14, 2004 CSE meeting petitioner advised respondent that she had her son evaluated, she failed to provide a copy of the evaluation report to respondent prior to placing her son at P’tach.  The State Review Officer has denied tuition reimbursement to petitioners who have failed to provide timely notice of a unilateral private placement and failed to provide relevant existing evaluation material to a CSE prior to the placement (Application of a Child with a Disability, Appeal No. 04-029).  On the other hand, respondent failed to adequately evaluate the child (causing the parent to obtain the private evaluation) and failed to offer a FAPE. Respondent has not demonstrated that it provided petitioner with written notice that reimbursement could be denied or reduced without adequate prior notice of the private placement, therefore, a reduction of an award is not appropriate here on that basis (see e.g., Application of the Bd. of Educ., Appeal No. 04-026; Application of a Child with a Disability, Appeal No. 03-037; Application of the Bd. of Educ., Appeal No. 99-038). Also, respondent did not contest petitioner’s assertion that she advised respondent, prior to the April 14, 2004 CSE meeting, that she was having her son evaluated.  The State Review Officer has previously declined to reduce an award where a district was aware of a private evaluation report, not in its possession, but declined to ask for it for consideration by a CSE (see Application of the Bd. of Educ., No. 04-045). Perhaps the most persuasive equitable factor is that the record demonstrates that respondent still has not fulfilled its affirmative obligation to reevaluate the child and, therefore, its denial of FAPE to the child is ongoing. In light of the ongoing violation of both federal and state law, the extent to which a FAPE has been denied, and respondent’s affirmative obligation to provide a FAPE, I find that the equities favor petitioner (see Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d at 535 [N.D.N.Y. 2001]).  However, they favor petitioner only to the extent she is entitled to reimbursement for tuition costs she has incurred.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 30 days after the date of this decision, respondent’s CSE shall have the child reevaluated, if it has not done so already, and the CSE shall meet to review the results of the reevaluation within 45 days after the date of this decision and recommend an appropriate program and placement; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for 80 percent of her expenditures for the cost of her child’s tuition at the P’tach-Yeshiva Rabbi Chaim Berlin Elementary School for the 2004-05 school year upon petitioner’s submission to respondent of proof of payment for such expenses.