05-039

            Petitioner appeals from the decision of an impartial hearing officer which determined that respondent was not obligated to pay for a private teacher selected by petitioner to provide the student’s Special Education Teacher Support Services (SETSS) for the 2004-05 school year.  The appeal must be dismissed. 

            Petitioner’s daughter was 12 years old and attending sixth grade at Bais Yaakov, a private school in Brooklyn, when the impartial hearing was held on December 14, 2004, and December 23, 2004 (Dec. 14, 2004 Tr. pp. 14, 17, 24; IHO Decision, p. 2; Ans. ¶ 35).  Bais Yaakov has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities.  The student’s eligibility for special education as a student with a learning disability (LD) is not in dispute (Dec. 14, 2004 Tr. p. 4, 15; Parent Ex. C at p. 1; see 8 NYCRR 200.1[zz][6]).   The parties do not dispute the services recommended in the student’s individualized education program (IEP)¹ or the appropriateness of the services set forth in the IEP (Dec. 14, 2004 Tr. p. 15; IHO Decision, p. 3).  The IEP listed the following services for the student:  general education with supplemental aids and services, SETSS (also known as “resource room”) with an 8:1 student to staff ratio, occupational therapy, and speech and language therapy (Parent Ex. C at pp. 1, 7). 

            The record fails to disclose when the student first began attending Bais Yaakov prior to the 2004-05 school year.  Petitioner did testify, however, that the student received SETSS “last year” at Bais Yaakov through a teacher employed by Bais Yaakov (Dec. 14, 2004 Tr. pp. 17-18).  According to petitioner’s testimony, the student was unable to receive SETSS at Bais Yaakov during 2004-05 because the teacher providing that service at Bais Yaakov terminated her employment with the school and no other teacher at Bais Yaakov provided SETSS (id.; see IHO Decision, p. 2). 

             Significantly, the record fails to disclose when respondent learned of the SETSS teacher’s departure from Bais Yaakov or when it came to respondent’s attention that the student was unable to receive SETSS at Bais Yaakov.  However, respondent acknowledged, through a “Nickerson Letter”² dated September 24, 2004, that the student had been “waiting for placement in a resource room for more than sixty days” (Parent Ex. A).  The “Nickerson Letter” advised petitioner that she could “obtain appropriate services, including tutoring, at public expense until a resource room” became available (id.).  If petitioner elected to use a tutor, the tutor selected “must be certified by the State to teach a child with your child’s type of disability”  (id.).  In this case, the “Nickerson Letter” indicated that the student required resource room services for Reading and Math, one period daily (id.).  A list of approved providers accompanied the “Nickerson Letter” from respondent (Dec. 14, 2004 Tr. pp. 10, 13-14, 18; Dec. 23, 2004 Tr. pp. 17-19).

             Petitioner testified that she contacted “a lot” of the providers on the list; however, none of those contacted could accommodate the student (Dec. 14, 2004 Tr. pp. 13-15, 18-19, 21).  Petitioner further testified that some of the providers contacted from the list indicated that they would not accept the “P-3 rate”³ or that they did not have time to provide services to the student (Dec. 14, 2004 Tr. p. 18).  Petitioner admitted that although she did not contact all of the providers on the list, she called “more than five” (Dec. 14, 2004 Tr. p. 21; Pet. ¶ 3).  Petitioner, however, could not recall the names of any of the providers that she contacted (Dec. 23, 2004 Tr. p. 19).  Petitioner also testified that she limited her contact to only female providers on the list, because she believed that a male provider would make her daughter uncomfortable (Dec. 14, 2004 Tr. pp. 20-21).  Petitioner further testified that as of the date of the December 14, 2004 hearing, her daughter had not received any SETSS from any providers for the 2004-05 school year (Dec. 14, 2004 Tr. p. 14).

            Petitioner contacted a private special education teacher known to her (Dec. 14, 2004 Tr. pp. 13-14, 19-20).  It is unclear from the record when petitioner first contacted the private special education teacher, except for petitioner’s testimony that it occurred “shortly after” her attempts to locate a provider from respondent’s list (Dec. 14, 2004 Tr. p. 14).  The private teacher indicated that she would provide SETSS to petitioner’s daughter at a rate of $100 per hour (Dec. 14, 2004 Tr. pp. 14, 21).  Petitioner then filed a request for an impartial hearing on October 15, 2004, to request an order directing respondent to pay for tutoring services provided by the private SETSS teacher selected by petitioner at the higher rate (Dec. 14, 2004 Tr. p. 6; IHO Decision, p. 2).

           At the impartial hearing, petitioner’s counsel claimed that respondent’s Committee on Special Education (CSE) failed to hold an annual review for 2004-05, failed to prepare an IEP for 2004-05, and that respondent failed to provide SETSS (Dec. 14, 2004 Tr. pp. 4-7, 9).  Petitioner, the student’s mother, appeared as a witness on her own behalf (Dec. 14, 2004 Tr. pp. 13-22; Dec. 23, 2004 Tr. pp. 17-19).  Petitioner submitted the “Nickerson Letter,” the student’s IEP dated August 14, 2003, and the private teacher’s certificates of teaching⁴ as documentary evidence (Parent Exs. A, B, C).

          Respondent’s representative arrived at the December 14, 2004 impartial hearing with an offer to immediately provide SETSS to the student at either I.S. 220 or I.S. 223, two public schools located within a few miles from the student’s home (Dec. 14, 2004 Tr. pp. 5-10).  Respondent had representatives from both public schools testify regarding the immediate availability of SETSS at each location (Dec. 14, 2004 Tr. pp. 26-30; Dec. 23, 2004 Tr. pp. 11-15).  Two individuals from Bais Yaakov testified regarding the student’s current academic schedule (Dec. 14, 2004 Tr. pp. 30-34; Dec. 23, 2004 Tr. pp. 4-10).  Petitioner’s counsel rejected respondent’s offer made at the hearing to immediately provide SETSS to the student asserting that the private service provider obtained by petitioner was “ready to go” and respondent’s offer was not made in a timely fashion  (Dec. 14, 2004 Tr. pp. 6-7).

         By decision dated February 17, 2005, the impartial hearing officer denied petitioner’s request to direct respondent to pay $100 per hour for SETSS to the private teacher chosen by petitioner (IHO Decision, p. 4).  In his decision, the impartial hearing officer noted that although petitioner argued for “reimbursement of services” in her post hearing memorandum based upon respondent’s failure to conduct an annual review, petitioner’s request⁵ for an impartial hearing sought only to direct that respondent pay the private teacher at her rate ($100 per hour) because petitioner “could not locate a provider who would accept the P-3 rate” from the list of providers sent by respondent (IHO Decision, pp. 3-4).  The impartial hearing officer concluded that petitioner’s testimony regarding her attempts to secure a provider from respondent’s list was “insufficient to warrant an order for services at a higher rate” (IHO Decision, p. 3).  In particular, the impartial hearing officer determined that petitioner failed to exhaust the list of providers and “excluded others without any clear justification” (id.).  The impartial hearing officer also noted that petitioner had testified that she approved of the student’s current program, that there was no testimony that the student had received any services from the private teacher, or that petitioner had even contracted for services with the private teacher (IHO Decision, p. 4).  Moreover, the impartial hearing officer determined that petitioner failed to produce the proposed service provider to testify as to her  “qualifications, rate and availability” to provide SETSS to the student (IHO Decision, p. 3).

         On appeal, petitioner argues that the impartial hearing officer’s decision was erroneous and that he misinterpreted the law (Pet. ¶ 2).  Petitioner alleges that respondent failed to provide the student with a free appropriate public education (FAPE) for the 2004-05 school year, that the services she secured were appropriate, and that equitable considerations favored granting her request to direct respondent to pay $100 per hour for the private teacher to provide the tutoring services (Pet. ¶¶ 2, 6, 7-11, 14, 20-24, III).

         Respondent admitted in its answer that it failed to convene a CSE to develop an IEP for the student for 2004-05 and thereafter, sent petitioner a “Nickerson Letter” to obtain resource room services for her daughter (Ans. ¶¶ 3, 6, 7, 9, 12, 14, 15, 22, 27, 30, 31).  However, respondent asserted that petitioner failed to meet her burden of proof by failing to demonstrate that the private teacher selected was appropriate for the student, and further, that equitable considerations did not balance in favor of petitioner for an award of tuition reimbursement (Ans. ¶¶ 56-59).

         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]).⁶  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 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  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 child’s IEP must, at a minimum, be reviewed yearly (34 C.F.R. §300.552(b)(1); 8 NYCRR 200.4[f]). The purpose of the minimum annual review requirement is to enable the school district and parent to monitor the child’s progress, and if necessary, make revisions to the student’s program or placement (Application of a Child with a Disability, Appeal No.01-065).

           Respondent admits in its answer that its CSE failed to conduct an annual review of the student’s IEP at the end of the 2003-04 school year and failed to develop an IEP for the 2004-05 school year, that the student’s 2003-04 IEP was the last IEP developed for the student, and that respondent’s CSE sent petitioner a “Nickerson Letter” in September 2004, indicating that a resource room placement was not yet available (Ans. ¶¶ 3, 6, 7, 9, 12, 14, 15, 22, 27, 30, 31).  I find that respondent failed to demonstrate that it offered an appropriate educational program and placement to the student for the 2004-05 school year (20 U.S.C. § 1414[d][1][A], [d][2]; 34 C.F.R. 300.342[a], [b]; 8 NYCRR 200.4[d][2]; see Application of a Child with a Disability, Appeal No. 04-023; Application of a Child with a Disability, Appeal No. 00-095; Applications of the Bd. of Educ. and a Child with a Disability, Appeal Nos. 00-091 and 01-018; Application of a Child with a Disability, Appeal No. 00-084; Application of a Child with a Disability, Appeal No. 99-081).  A placement recommendation that cannot be implemented is not an appropriate placement (Application of a Child with a Disability, Appeal No. 01-033; Application of a Child with a Disability, Appeal No. 99-24; Application of a Child with a Handicapping Condition, Appeal No. 92-33).

          Petitioner has, therefore, prevailed with respect to the first Burlington criterion for an award of tuition reimbursement because respondent did not meet its burden of establishing the appropriateness of its recommended program and placement.

          Having determined that respondent did not offer to provide a FAPE to the student during the 2004-05 school year, I must now consider whether petitioner has met her burden of proving that the private SETSS were appropriate for the student (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 that met the child’s special education needs (Application of a Child with a Disability, Appeal No. 03-108; 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 that there is no evidence in the record that the student received any tutoring services from the private teacher; therefore, there are no services that can be reviewed to determine their appropriateness. Moreover, although the private teacher’s certificates to teach were made part of the record, there is insufficient evidence in the record to establish what services the private teacher intended to provide to the student and insufficient evidence to support petitioner’s assertion that the services that were to be provided by the SETSS teacher were appropriate for her daughter.

          Based upon the foregoing, I find petitioner failed to meet her burden of proof under the second Burlington criterion for an award of tuition reimbursement.   As such, the necessary inquiry is at an end (Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).⁷

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

THE APPEAL IS DISMISSED.