05-027

             Petitioner, the Board of Education of the Mattituck-Cutchogue Union Free School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate program to respondents’ son and ordered it to reimburse respondents for their son’s tuition costs at Red Rock Canyon School (Red Rock) for the 2003-04 school year.  The appeal must be dismissed.

             Respondents’ son was 16 years old at the time of the hearing and attending petitioner’s public school. The student was determined eligible for special education by petitioner’s Committee on Special Education (CSE) on April 29, 2004.  His classification as a student with an other health-impairment (OHI) is not in dispute in this proceeding (see 8 NYCRR 200.1[zz][10]).

             According to the record, the student experienced difficulty with classroom behavior as early as kindergarten (Joint Ex. 21).  His kindergarten teacher commented that the student needed to slow down his work pace and think things through.  His first grade teacher commented that the student had difficulty listening and following directions.  The student’s second grade teacher reported that the student was bright but that he needed to put more effort into his work and slow down.  The fourth grade teacher stated that the student needed to focus and refrain from attention seeking through negative behavior (id.). 

Respondents requested an evaluation due to the difficulties the student had increasingly experienced from kindergarten through fourth grade (Joint Ex. 19).  The school psychologist conducted a psychoeducational evaluation on March 23, 1998 during the student’s fourth grade year. The school psychologist stated that former teachers of the student reported concerns with self-control, attitude, and under achievement.  The student’s work habits were reported as needing improvement in areas including: following directions, completing assignments on time, paying attention, exhibiting self-control and organizational skills (id.).  On the Wechsler Intelligence Scale for Children–Third Edition (WISC–III), the student’s verbal IQ score was 121 placing him in the 92^ndpercentile (id.). The student’s performance IQ score was 117 placing him in the 87^th percentile. His full scale IQ score was 121 placing him in the 92^nd percentile and the superior range of intellectual functioning.  The Wechsler Individual Achievement Test (WIAT) was also administered.  The student achieved a standard score of 121 for word recognition placing him in the 92^ndpercentile.  In reading comprehension, the student’s standard score was 110 placing him in the 75^th percentile.  In math reasoning, the student’s standard score was 111 placing him in the 77^thpercentile (id.).    

The school psychologist also administered the Connors Rating Scale to determine if classroom behaviors were interfering with the student’s ability to learn.  Of the seven index areas assessed, conduct problem was assessed at very much above average.  The hyperactivity indices were rated as much above average and the indices of asocial and daydreaming-attention were rated as above average.  The evaluator, however, only found  the index related to conduct problem as significant.  Classroom behaviors reported to occur much of the time included impulsivity, disturbing other children, mood changes, stealing, lying, temper outbursts, explosive and unpredictable behavior, teasing other children, no sense of fair play, uncooperative attitude and defiance (id.).   

The school psychologist concluded that the student was sensitive and aware of current family issues.  She described the student as remorseful about his own behavior but not always able to control his impulses to act out in anger and seek negative attention.   The school psychologist opined that there was no indication of any learning difficulties that could contribute to behavior problems and recommended that the family seek private counseling (id.).  According to the testimony of the parent the evaluator believed there was no need for further testing and did not feel attention deficit hyperactivity disorder (ADHD) was present (Tr. p. 172). 

When the student was in eighth grade, he was again evaluated by petitioner upon respondents request on March 3, 2002 due to management difficulties the student presented in the academic setting.  The student’s disruptive behavior in and out of the classroom setting resulted in both in school and out of school suspensions (Joint Ex. 20).  On the Wide Range Achievement Test–Revision Three (WRAT–3) subtest in arithmetic, the student’s standard score of 103 was reported correlating to the 58th percentile.  On the Gates-MacGinite Reading Test, the student’s standard score on the vocabulary subtest was reported in the 93rd percentile.  According to the school psychologist, these scores suggested that the student was capable of at least grade level performance and had the potential to do superior work.

As part of the March 2002 evaluation, the school psychologist administered the Adolescent Psychopathology Scale (APS) and the Behavior Assessment System for Children (BASC).  According to the psychologist, neither evaluation revealed any clinically relevant levels of symptoms, however, the evaluator was concerned that the student was expressing some emotional difficulties in relation to the student’s expression of feelings of an inability to control his behavior and feelings of indifference.  The psychologist stated that the student’s oppositional, argumentative and at times, risk-taking behavior seemed to be an expression of the student’s displeasure with his familial situation.   The psychologist strongly suggested family therapy (id.).  

The school psychologist testified that at the time of this assessment, he felt that the student’s difficulties were a result of family, not school, issues and recommended private counseling (Tr. p. 126).  He told respondents that they needed to work on their parenting skills (Tr. p. 179).  The psychologist stated in testimony that he had made a determination not to refer the student to the CSE because he did not feel the student was eligible for classification (Tr. p. 126).   The psychologist testified, however, that the teacher information provided indicated the possibility of ADHD (Tr. p. 135).  The psychologist noted having access to at least four different teacher reports suggesting that there were emotional and behavioral concerns prior to the 2002 evaluation (Tr. p. 156).  He further testified that he felt the student was at risk at this time but did not consider making a “504” referral (Tr. p.158).  He testified the student was working at or above academic level and that the student’s problems did not significantly impact him (id.). 

The student’s mother testified that after the 2002 evaluation and recommendation of family counseling by the school psychologist, she requested counseling services from petitioner due to the family’s financial restraints (Tr. p. 179).  Petitioner did not accommodate respondent's request for counseling due to scheduling issues with the school psychologist.  Instead, petitioner recommended the Persons in Need of Supervision (PINS) program because, according to petitioner, they would provide counseling free of charge (Tr. p. 180).  According to the student’s mother, petitioner initiated a referral to the PINS program without parental consent (Tr. p. 181).  The student participated in the PINS program from March of the student’s eighth grade year to September of the student’s ninth grade year (Tr. p. 183).  The student’s mother testified that this program had been very damaging to her son for various reasons (Tr. pp. 182-183).  She testified appointments were not kept by the PINS program director, appointments were double-booked, and appointments were brief.  The mother further testified that the director threateningly told her son there would be family court involvement and placement in a home if his behavior did not improve (see Tr. p. 183).

The student began seeing a private psychiatrist shortly after the beginning of his ninth grade year in October 2002 (Tr. pp. 185; 262).  In testimony, the psychiatrist described the student in October 2002 as depressed and having ADHD and Oppositional Defiant Disorder (ODD) (Tr. pp. 262-263).  He further testified that the student exhibited a lack of motivation and lack of interest (Tr. p. 264).  He testified that these characteristics affected school functioning.  The psychiatrist also stated that the student’s inability to sit still and his impulsivity affected his learning and behavior in school (id.).  He opined that ADHD is a neuropsychiatric disorder that interferes with education (Tr. p. 266). 

The student’s mother testified that the psychiatrist had serious concerns about the comorbid presence of ADHD with ODD (Tr. p.185).  The psychiatrist testified that when he informed respondents about his suspicion of ADHD, they were upset and surprised because they said that the school had told them that it did not exist based on the two previous psychological evaluations (Tr. p. 280).  The student’s mother testified that because petitioner had already evaluated the student twice and determined her son did not have ADHD, they felt that that was not the problem (Tr. p. 185).  She stated that she provided the information from the private psychiatrist and encouraged petitioner’s staff to contact him, but they declined to do so (Tr. pp. 187-88).  The student's mother  also testified that she requested help from petitioner pertaining to the student’ s diagnosis of ODD (id.).    

The student was described by his mother as becoming increasingly depressed and acting out more frequently (Tr. p. 188).  After a superintendent’s disciplinary hearing for bringing a toy gun lighter to school, petitioner imposed suspension on the student from February 2003 through the end of the school year in June 2003 (id.).  According to the student’s mother, petitioner indicated that it intended to file another PINS petition, but agreed to provide home instruction to the student during the suspension period (id.).  She reported that from February 26, 2003 through March 12, 2003 she waited to hear from petitioner regarding home tutoring (Tr. p. 211).  She expressed concern that an extended period at home in an unsupervised setting would prove to be a problem for the student (Tr. p. 213).  On March 13, 2003, the student's mother withdrew her son from petitioner’s school (Tr. pp. 192, 212).

The student began attending Red Rock in Utah on March 18, 2003 and graduated   from the program on January 15, 2004 (Joint Ex. 5).  During the student’s enrollment at Red Rock, he was diagnosed with ODD and, although a written diagnosis of ADHD was not included in his record, the medication logs indicated that the student was prescribed and was taking medications specifically used for the treatment of ADHD symptoms (Joint Ex. 5, p. 27).  After successful completion of the program at Red Rock (Joint Ex. 5, p.1), the student returned to the district on March 15, 2004 (Joint Ex. 9).  Prior to his re-enrollment in the district, student's mother formally requested an evaluation from petitioner on January 20, 2004 to determine her son’s eligibility for special education (Joint Ex. 1).  Pending the referral and evaluation process, petitioner and respondents agreed to home instruction for the student (Tr. p. 218). 

On March 15, 2004, respondents filed a request for a due process hearing (Joint Ex. 14).  They claimed that the CSE did not appropriately identify the student’s disability during the 2002-03 school year.  Respondents also requested classification for the 2003-04 school year and reimbursement for the student’s private placement at Red Rock.  On May 5, 2004 the CSE denied respondent's  request for tuition reimbursement (Joint Ex. 14, p. 3).

A psychological report dated March 30, 2004 was submitted after  respondent's request for evaluation (Joint Ex. 9).  The school psychologist stated in his report that the student was taking a number of prescription medications  The student was administered the Wechsler Intelligence Scale for Children–4^th Edition.  The student’s verbal comprehension, perceptual reasoning, processing speed and fullscale composite score were all in the average range.  A significant weakness was found in his working memory where he scored in the 6^th percentile.  Selected subtests of the WIAT were also administered.  The student scored in the average or above range on all subtests, suggesting he is capable of at least grade level performance in reading and has the potential to do superior work in the area of math.  According to the evaluation report, the student’s responses on the Adolescent Psychopathology Scale (APS) supported the presence of ADHD and depression.  The student reported that he rarely felt happy or cheerful and did not seek opportunities for pleasure.  The student reported that his energy level was extremely low and that he experienced indecisiveness, forgetfulness, irritability and distractibility. He reported feeling that his actions were meaningless and he was convinced that nothing he did mattered.  Recommendations from the school psychologist included referral to the CSE for possible classification, continuation of medication, and outside counseling (id.).

The CSE convened on April 29, 2004 to develop the student’s individualized education program (IEP) for the remainder of the 2003-04 school year and for the 2004-05 school year (Joint Exs. 12, 13).  The CSE determined the student was eligible for classification as OHI based on an outside diagnosis, student input, and district evaluation.  Services recommended to support the areas of the student’s disability included direct consultant teacher services three times per week in 42-minute sessions and 1:1 counseling, one time per week in 30-minute sessions.  These recommendations were made for the time period of April 30, 2004 through the remainder of the 2003-04 school year (Joint Ex. 12). Program modifications included additional time to complete tasks and preferential seating (id.).  Present cognitive abilities and academic levels were reported within age appropriate expectations, but it was noted that the student did not demonstrate grade appropriate organizational skills.  In social development, the student’s classroom behavior was described as mildly interfering with instruction and was a concern in the areas of self-control and self-management.  The student was described as having difficulty accepting criticism from adults.  In physical development, the student was described as exhibiting symptoms of inattention, cognitive impulsivity and distractibility.  Management needs were noted as learning to stay on task without assistance.  The CSE met on the same day to develop the student’s IEP for the 2004-05 school year (Joint Ex. 13).  Programs and services remained unchanged.  Goals and objectives were the same as well. 

Ultimately, petitioner and respondents agreed to provide home instruction to the student for the remainder of the 2003-04 school year.  Petitioner received a note from the student’s private psychiatrist indicating that the student should be allowed to receive home tutoring instead of attending school for the remainder of the school year (Joint Ex. 16).  The student’s IEP was amended on May 17, 2004 to change the student’s placement to home instruction from May 17, 2004 until June 11, 2004 (Joint Ex. 17).  The amended IEP indicated that the student would return to school from June 14, 2004 through June 25, 2004 for final exams.  The recommendations for the 2004-05 school year remained unchanged (Joint Ex. 13).

The hearing took place over the course of three days, concluding on November 1, 2004. The impartial hearing officer found that petitioner did not meet its child find obligations  to locate, identify, and evaluate the student, and as a result, classification of the student was delayed.  The impartial hearing officer found that respondents were entitled to tuition reimbursement for their costs at Red Rock for the 2003-04 school year.  She determined that Red Rock was appropriate and that the respondents cooperated with petitioner. 

On appeal, petitioner contends the impartial hearing officer erred in finding the student eligible for tuition reimbursement.  Petitioner contends that since respondents’ son has never previously received special education services from petitioner, that he is barred from seeking tuition reimbursement under the Individuals with Disabilities Education Act (IDEA).  Petitioner further contends that Red Rock was not an appropriate placement and not in the least restrictive environment (LRE).  Lastly, petitioner contends the impartial hearing officer erred in determining that it violated the child find provisions of the IDEA and failed to provide the student an appropriate program. 

IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp.2d 394, 400, n.13 [N.D.N.Y. 2004]). This duty applies to "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125[a][2][ii]). To satisfy the requirement, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41). 

Petitioner’s child find obligation is an affirmative one. The child find duty is triggered when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (St. Pierre, 307 F. Supp. 2d 394; Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; Application of a Child with a Disability, Appeal No. 03-043; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). 

The record reveals that the student had problems with classroom behavior and attention beginning as early as kindergarten (Joint Ex. 21).  The student’s private psychiatrist opined that the history in the 1998 and the 2002 evaluations clearly showed that the symptoms of ADHD previously existed (Tr. p. 279).  He testified that the information from the student’s first evaluation in March 1998 supported a diagnosis of ADHD (Tr. p. 270).  He further stated that under the Connors Rating Scale, hyperactivity indices were much above average and daydreaming and attentional problems were above average.  The psychiatrist pointed out that the evaluator noted in the March 1998 evaluation (Joint Ex. 19) that the Connors is a survey of classroom behavior problems that may interfere with the ability to learn (Tr. p. 270).  The student’s private psychiatrist further testified that the school psychologist had enough information at that time to determine that the student had both ADHD as well as ODD (Tr. p. 280). 

In addition to behavior problems, the student’s grades began declining.  The student’s grades during the 2001-02 school year included an 82 in math, 67 in Social Studies, 56 in English, and 68 in Science (Joint Ex. 4).  Teachers commented that the student needed to pay attention and take work seriously.  Other comments indicated that the student needed to be more consistent, work independently, and be less disruptive.  By ninth grade, the student was receiving Academic Intervention Services (AIS) in Social Studies and English.  He was reportedly failing math, German and English classes (Joint Ex. 22).  Teacher comments included the need for the student to complete his work, pay attention, take work seriously, and be less disruptive.  Teacher comments also indicated that the student   created unnecessary distractions and needed to complete his work.  In addition to the student’s declining grades, he was suspended numerous times, including a four-week suspension during the 2001-02 school year, and for the remainder of the school year in February 2003 (Tr. pp. 138, 159, 177, 188; Joint Ex. 20). Based upon the information before me, I conclude that petitioner had sufficient information to suspect the student of having a disability warranting a referral to a CSE for an evaluation and determination of eligibility for special education programs and services by at least by March 2002 (8 NYCRR 200.4[a]).

The purpose behind the 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., 346.3d 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. 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]).  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 F3d 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).

With respect to the first criterion for an award of tuition reimbursement, petitioner bears the burden of demonstrating that it offered to provide an appropriate educational program to the student.  I concur with the impartial hearing officer’s determination that petitioner failed in its child find obligations, failed to properly refer and evaluate the student, and by 2003, following the student’s suspension and placement on home instruction, and failed to offer an appropriate program to address the student’s needs (IHO Decision pp. 15-16). Moreover, I concur with the impartial hearing officer’s factual findings and conclusions regarding petitioners failure to demonstrate that they had offered an appropriate program (IHO Decision pp. 17).

The impartial hearing officer determined that the referral process was inconsistent with 8 NYCRR 200.4(a)(4) and 8 NYCRR 200.4(a)(9).  I concur.  At petitioner’s school, the psychologist maintained responsibility for CSE referrals.  The school psychologist testified that the child find process at petitioner’s school in 2002 was informal (Tr. p. 164).  He further testified that he had not had the proper child find training in the past (Tr. p. 165).  This same school psychologist testified that in 2002 it was the building psychologist’s responsibility for determining if the student should be referred to the CSE (see Tr. p. 164).  If a student is suspected of having a disability, he shall be referred to the chairperson of the CSE or building administrator (8 NYCRR 200.4[a]).  It is the responsibility of the building administrator to forward the referral to the Chairperson immediately (8 NYCRR 200.4[a][4]).  In this instance, there is no evidence that a referral and evaluation were properly done.  I agree that petitioner’s failure to classify the student until the CSE meeting on April 29, 2004 was a violation of child find and a denial of FAPE. 

Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year, I must now consider whether respondents have met their burden of proving that the services provided to the student by Red Rock 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 parents 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).

I concur with the impartial hearing officer’s determination that respondents have established the appropriateness of the student’s unilateral placement at Red Rock for the 2003-04 school year and that such placement was in the LRE.

Red Rock offered an educational program that met the needs of the student.  Staff members from Red Rock described the school as accredited through Utah just as any other public school in the state (Tr. p. 326).  The school accommodates grades 7 through 12 and has an 8:1 student to teacher ratio with a teacher and full time teacher aide in each classroom and an individual tutor when necessary (Tr. p. 327; Joint Ex. 28).   The school uses a “positive discipline” philosophy that creates an atmosphere of caring based on kindness, firmness, dignity and mutual respect (Joint Ex. 28).  The curriculum at Red Rock included instruction in core academic subjects such as English, Mathematics, Science and Social Studies, as well as instruction in special classes such as art and music.  The students were grouped by academic levels and ages (Tr. p. 370).  The instructional systems include self-paced competency cabinets, tutorial instruction, and independent study (id.).  Individual and group counseling were also offered (Joint Exs. 5, 28).

In a discharge summary from Red Rock, the student was described as having experienced difficulty in adjusting to the school environment for the first four months (Joint Ex. 5, p.1).  The student’s teacher at Red Rock testified that when the student began attending the school, he was disruptive, had a hard time sitting in his seat and was very argumentative (Tr. p. 333). The student was described as very oppositional and defiant and was noted to have spent much of his time apart from his peers due to his inability to follow the structure (Joint Ex. 5, p.1). 

In June 2004, the student’s attitude and behavior were reported to be improving.  (Joint Ex. 29).  The student began to change his behavior, make an effort to follow the rules and began to experience success.  The student’s teacher testified that she noted a progressive improvement in the student’s behavior and academics once his ADHD was identified and addressed (Tr. pp. 334-35).  His academic performance was rated as good in all areas and his behavior was rated as good in punctuality and fair in all other areas.  Frustration management and his ability to identify his needs were rated at the low end of fair.  While attending Red Rock, teachers employed role playing techniques with the student to address his distortion behaviors (Tr. p. 380).  They specifically worked on goals addressing how to function in society and function independently (Tr. pp. 383-84). 

In July and August 2004, the student was described by staff as working hard in all of his subjects.  His attitude and behavior were described as “usually good” (Joint Ex. 29).  He was further rated as “good” in all areas of academic performance.  In the 14 areas of behavior, the student was rated as “good” in punctuality, preparedness, assignment completion, relation to authority, impulse control, frustration management, class participation, and on task behavior.  All other areas were rated as fair.  In September 2004, the student was described as having made great improvement.  His attitude and behavior were reported as good.  His academic performance was rated as good in all areas and his behavior was rated as good to fair  (id.).

In October 2004, the student was described again as greatly improved.  Teacher comments indicated that the student had a problem with authority but had been working on solutions.  The student was rated as excellent in academic performance in the areas of English, Mathematics and Science.  He was rated as good in Social Studies and fair in vocational.   The student’s behavior was rated as good in all areas (id.).

During the time the student attended Red Rock, he successfully completed courses in World Anthology, English One, Algebra One, Geography One and Two, Earth Science One and Two, Biology One and Two and four semesters of Physical Education (Tr. p. 335).  Official school transcripts were included in the discharge summary.  Final grades were reported as either A or B in all subject areas (Joint Ex. 5, p. 3).   The student’s counselor at Red Rock testified that the student made significant improvements in maturity, self-control and self-discipline (Tr. p. 412).  The student also improved in his ability to communicate and interact appropriately with peers, authority and with his family. 

I find that Red Rock appropriately addressed the student’s needs including his negative behavior, lack of self-control, inconsistent work quality, conduct problems, as well as his issues with ADHD and ODD.

With respect to the third criterion for an award of tuition reimbursement, I concur with the impartial hearing officer’s determination that respondents’ claim is supported by equitable considerations (IHO Decision, p. 17).  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). 

Respondents have demonstrated a long history of involvement and cooperation with petitioner.  They have initiated evaluations, sought private counseling when it was recommended, and shared information with petitioner.  I find that respondents' claim for tuition reimbursement is supported by equitable considerations.

Lastly, petitioner, relying on a recent Memorandum and Order from the Southern District of New York (Tom. F. v. Bd. of Educ., __ F. Supp. 2d __ , 2005 WL 22866 [S.D.N.Y. Jan. 4, 2005]), raises the argument (Pet. ¶ 16) that a strict reading of 20 U.S.C.§ 1412(a)(10)(C)(ii) requires that tuition reimbursement be denied for any student, such as respondents' son, who has not previously received special education and related services under the authority of a public school agency. This, however, is not a new argument. The statutory provision in question provides that                                       

Reimbursement for private school placement.  If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court of hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(20 U.S.C. § 1412[a][10][C][ii]).

The official commentary to the federal regulations implementing this provision of the IDEA directs that

[H]earing officers and courts retain their authority, recognized in Burlington and Florence County School District Four v. Carter, 510 U.S. 7 (1993) (Carter), to award "appropriate" relief if a public agency has failed to provide FAPE, including reimbursement and compensatory services, under section 615(i)(2)(B)(iii) in instances in which the child has not yet received special education and related services.  This authority is independent of their authority under section 612(a)(10)(C)(ii) to award reimbursement for private placements of children who previously were receiving special education and related services from a public agency.

(Placement of Children by Parent if FAPE is at Issue, 34 C.F.R. § 300.403, 64 Fed. Reg. 12601 at 12602 [Mar. 12, 1999]).

State Review Officers have consistently declined to construe section 1412 of the IDEA as limiting the authority of an impartial hearing officer, review officer, or court under section 1415 of the IDEA to grant an award of tuition reimbursement to the parents of a child who has not previously attended a public school, absent convincing evidence to the contrary of Congressional intent to do so (Application of a Child with a Disability, Appeal No. 02-052; Application of a Child with a Disability, Appeal No. 00-012; Application of  a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 99-35;  Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-41; Application of a Child with a Disability, Appeal No. 98-25). I note that the New York district court case that petitioner relies on is currently on appeal (see Freston v. Bd of Educ., No. 05-0566 CV [2d Cir. Feb. 3, 2005]), and not settled law at the time of this decision; therefore, I must respectfully decline to follow it, pending its final resolution (see generally Application of a Child with a Disability, Appeal No. 01-052; Application of a Child with a Disability, Appeal No. 01-049; Application of a Child with a Disability, Appeal No. 01-044). Absent a final decision from a controlling court to the contrary, I continue to adhere to the State Review Officers' well-settled position and decline to construe section 1412(a)(10)(C)(ii) of the IDEA as limiting the authority of an impartial hearing officer, review officer, or court under section 1415 of the IDEA to grant an award of tuition reimbursement to the parent of a child who has not previously received special education or related services under the authority of the public school district in which the child resides.                                                       

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

THE APPEAL IS DISMISSED.