05-074

           Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for her son's tuition costs at Gesher Yehuda (Gesher) for December 2004 through the June 2005.  The appeal must be dismissed.

           At the commencement of the impartial hearing on May 3, 2005 respondent's son was 11 years old, was classified by petitioner's Committee on Special Education (CSE) as a student with a speech or language impairment, and was attending fifth grade at Gesher (Dist. Exs. 1, 5, 6, 9; Parent Ex. K) where he was unilaterally placed by respondent (Parent Exs. A, C).  Gesher is a private school that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities.  The student's eligibility for special education as a student with a speech or language impairment as determined in December 2004 is not in dispute (Parent Ex. B at p. 1; 8 NYCRR 200.1[zz][11]).  The student was described by his teacher at his private placement as friendly and outgoing with deficits related to impulsivity and his ability to perform academically in a large group (Tr. pp. 68, 76).  He also was noted to display language deficits characterized by difficulty attending as language processing demands increased, staying focused and on topic, and conversing appropriately with his teachers  (Dist. Ex. 10 at p. 3; Tr. pp. 73-74).  The student also exhibited delays in reading decoding, comprehension, spelling and visual-motor skills (Dist. Ex. 4; Tr. pp. 69-71). 

            Initially, several procedural matters must be addressed.  Respondent's attorney raises an affirmative defense that the amended verified petition for review served upon him was not signed.  A petition must be properly verified but is not required to be signed (see 8 NYCRR 275.4-5).  The amended verified petition for review was properly verified.  Respondent also asserts as affirmative defenses that the petition for review fails to state a claim and that the petition for review fails to comply with 8 NYCRR 275.10.¹  I disagree and will address the petition for review on the merits. 

            As an infant, the student underwent eye surgery to correct strabismus and later received vision therapy as a child (Tr. pp. 139-41).  He attended Magen David Yeshiva for nursery school and kindergarten (Dist. Ex. 8 at p. 2).  During the 2000-01 school year the student was enrolled in a first grade mainstream program at Yeshiva of Flatbush (Flatbush), a school for children ages three through eighth grade which offered a curriculum in English and Hebrew (Tr. pp. 121-22).  In spring 2001, a screening of the student revealed below average range abilities in language skills and difficulty with "motor free" visual tasks as well as eye hand activities (Tr. pp. 122-24).  Flatbush recommended that the student undergo an outside evaluation to further define the student's needs and a private psychological evaluation was administered (see Tr. pp. 124-25).  Based on the results of the psychological evaluation, Flatbush offered the student an English resource room program four times weekly and twice a week in Hebrew, which he began at the end of his second grade year (Tr. pp. 125-26).  He continued in a general education program with resource room services through his fourth grade year (Tr. p. 127; Dist. Ex. 7 at p. 1).  A report card from the third marking period of the student's fourth grade year indicated that he was at risk for retention in the fourth grade due to below grade level functioning and poor homework/class work (Parent Ex. M; Tr. pp. 128-30).  The student's resource room teacher stated that even with resource room support, he was "struggling", having a "very, very difficult time", was "even failing" in certain subjects, was "becoming more and more frustrated" and would have to repeat fourth grade (Tr. pp. 128-30).  During this time, the student also received private vision therapy, after school tutoring two to four times per week and daily "homework helper" assistance (Tr. pp. 140-42).  The student saw a private psychologist weekly due to low self-esteem related to the additional services that he was receiving (id.). 

             Respondent obtained a private speech-language evaluation in May 2004 (Dist. Ex. 10).  The speech-language pathologist stated that with the exception of a writing task, the student was cooperative and willing to participate in the assessment, however, during the writing task the student exhibited "considerable difficulty" (Dist. Ex. 10 at pp. 1, 3).  The evaluation report indicated that the student experienced the most difficulty with tasks requiring sustained listening with limited visual support (Dist. Ex. 10 at p. 1).  Administration of the Clinical Evaluation of Language Fundamentals-3 (CELF-3) revealed below average receptive (fifth percentile) and expressive (12th percentile) language skills (Dist. Ex. 10 at p. 2).  The student exhibited weaknesses in using working memory to process, store, reorganize, and reformulate information as it increased in length and structural complexity (id.).  The student's performance on the Test of Reading Comprehension-3 revealed a reading comprehension quotient of 73 (fourth percentile), with difficulties noted in categorizing word meanings, judging the relationships between sentence meanings, and processing, sequencing and retrieving information in previously read text (Dist. Ex. 10 at pp. 2-3).  The evaluation report indicated that the student's performance on writing tasks measured by administration of the Written Language Assessment was in the first percentile, and that he had difficulty with formulating subjects to write about, word/grammar usage, as well as text elaboration and cohesion (Dist. Ex. 10 at p. 3). 

           The report noted that the student exhibited behaviors related to attention during the evaluation including his "struggle" to sustain attention as language processing demand increased (id.).  The speech-language pathologist also reported that the student easily became frustrated and was observed to "give-up" on tasks he perceived as difficult without considerable encouragement (Dist. Ex. 10 at pp. 3-4).  The report indicated that the student was receiving services from a psychologist to address low frustration tolerance deficits (Dist. Ex. 10 at p. 4).  Recommendations from the evaluation included speech-language therapy twice weekly to address language weaknesses, with the suggestion that "considerable effort must be made to address [the student's] low frustration tolerance" (Dist. Ex. 10 at p. 5). 

            At the end of the student's fourth grade year his parents decided not to enroll him at Flatbush for the 2004-05 school year, due to his retention in fourth grade and their desire to "find a school that would help with his problems" (Tr. pp. 142-43). 

            Respondent enrolled the student in Gesher for the 2004-05 school year (Parent Ex. G).  Gesher is a special education school for grades one through eight that is comprised of up to 10 students in a class with a teacher and an assistant (Tr. p. 192).  An additional teacher is provided during instruction in reading, math and Hebrew (id.). The academic teachers are certified in special education (id.).  The student was offered an individual education plan comprised of reading, math, social studies, writing, science, spelling and Judaic study goals (Parent Ex. J).  His class was composed of nine students, the majority of whom exhibited below average performance in communication, language and learning skills (Parent Ex. I).  The student received Judaic instruction during a portion of each school day (Tr. pp. 78-82, 114-16; Parent Ex. H).

            In November 2004, at the request of respondent the student's teacher completed an initial referral to the CSE (Tr. pp. 98-99, 144; Dist. Ex. 9), noting that he displayed a short attention span, impulsivity and could not “learn in a large group” (Dist. Ex. 9 at p. 1). The CSE conducted a classroom observation, psychoeducational evaluation, and social history interview in November 2004 (Dist. Exs. 6, 7, 8).  The classroom observation report of the student while at Gesher noted that he read words correctly during a reading lesson utilizing the Orton-Gillingham method of instruction and although he became frustrated when not called on, he raised his hand several times to volunteer an answer in class (Dist. Ex. 6).  The teacher reported to the observer that the student was a very outgoing, helpful child, however, he could be impulsive at times and became frustrated in situations where he was not successful (id.).

            A psychologist from petitioner’s school evaluated the student on November 9, 2004 (Dist. Ex. 7).  In her report she noted that overall the student exhibited difficulty with tasks involving integration of information and replication of block designs (Dist. Ex. 7 at p. 1).  She reported that administration of the Wechsler Intelligence Scale for Children-Fourth Edition yielded a composite full scale score of 92, which is in the average range of cognitive functioning (Dist. Ex. 7 at p. 2).  She further reported that the student's verbal reasoning skills were in the average range (32nd percentile) and that his nonverbal reasoning skills were in the low average range (18th percentile) (id.). In the area of working memory, the student's composite score was "higher than the 55th percentile" (mid-average range) and his composite processing speed score was in the 50th percentile (average range) (id.). 

            On the Woodcock-Johnson III Tests of Achievement the student achieved a broad reading standard score of 90 and a broad math standard score of 98, both scores within the average range (Dist. Ex. 7 at p. 2).  The psychologist stated in her report that the student's reading skills were estimated to be at an upper third grade level with delays in word decoding and comprehension noted (Dist. Ex. 7 at p. 3).  The report stated that the student often "did not pay attention to the words and guessed based on the beginning of the word", and produced vague answers to reading comprehension questions when picture cues were not provided (id.).  The student's math skills were reportedly at the fifth grade level, with weaknesses noted in his ability to solve problems involving mixed fractions and multiplication with regrouping (id.). 

             Results of administration of the Bender Visual-Motor Gestalt Test (Bender Gestalt) suggested an approximate one year delay in the student's fine motor skills (Dist. Ex. 7 at p. 3).  The psychologist reported that the student's erasures and second attempts at some of the drawings were usually associated with anxiety and impulsivity however, concluded that the student presented as a charming, sociable and well-adjusted youngster (id.).  Weaknesses in the student's reading decoding and comprehension resulted in a recommendation for remediation as well as an occupational therapy (OT) evaluation to further assess the student's fine motor delay, impulsivity and attention (Dist. Ex. 7 at p. 4).

              A social history which consisted of an interview with respondent was conducted on November 9, 2004, by a social worker from petitioner’s school (Dist. Ex. 8).  Respondent reported that the student had been experiencing significant delays in all academic areas throughout his school career requiring remediation in reading, writing, word acquisition and math (Dist. Ex. 8 at p. 1).  In addition to academic concerns, respondent reported that the student exhibited a language processing delay characterized by difficulty comprehending information presented to him and answering questions appropriately in a timely manner (Dist. Ex. 8 at p. 2).  Respondent indicated that the student exhibited a visual processing deficit which "negatively impact[ed] his reading and writing" and for which the student had received weekly vision therapy (id.).  Respondent reported to the social worker that while at Flatbush the student was aware of his limitations, felt frustrated and anxious (id.). She further reported that had he stayed there, would have been retained in the fourth grade (id.).  She further indicated that while attending Gesher, the student looked forward to going to school, performed at grade level, formed friendships and benefited from the self-contained class with additional supports (Dist. Ex. 8 at pp. 2-3).

              Petitioner’s CSE convened for an initial review of the student on December 1, 2004 (Parent Ex. B). The student's social history intake, psychoeducational evaluation report and the speech-language evaluation report provided by the parent were used to develop his IEP (Tr. p. 22).  The resultant IEP offered a classification of speech or language impairment and a general education program with direct Special Education Teacher Support Services (SETSS) five periods weekly in a group of eight students (Parent Ex. B at p. 1).  Speech-language therapy was offered twice weekly in a group of three for 30 minute sessions (Parent Ex. B at p. 12).  Respondent observed the recommended placement and rejected petitioner's program and placement recommendation stating that she believed "part time" special education services were inappropriate for her son and that the class size observed was too large to allow the student to acquire new skills (Tr. pp. 146-48; Parent Exs. A, C).  She further notified petitioner that the student would continue at Gesher (Parent Ex. A).  By letter dated December 27, 2004, respondent requested an impartial hearing and sought tuition reimbursement for the student's placement at Gesher (Parent Ex. A). 

             Due to parental concerns regarding the student's handwriting skills and concerns noted in the psychologist's report regarding his fine motor skill delay, impulsivity and attention deficits, an OT evaluation of the student was conducted in late December 2004 (Dist. Ex. 7 at p. 4, Dist. Ex. 4).  The occupational therapist reported that although the student performed in the 70th percentile on the visual perception supplemental test of the Beery VMI, he exhibited difficulty with form constancy, figure ground discrimination and position in space items (Dist. Ex. 4). Results of the OT assessment revealed deficits in the student's pencil grasp, writing and visual motor skills that "affect educational achievement" (Dist. Ex. 4 at pp. 2-3).  The occupational therapist recommended individual OT sessions once a week (Dist. Ex. 4 at p. 3).

            The CSE reconvened on January 19, 2005 for the purpose of adding OT services to the student's IEP (Dist. Ex. 1 at p. 2).  Respondent’s disagreement with the program recommended in the December 2004 IEP and respondent’s subsequent impartial hearing request were not discussed at the CSE meeting (Tr. pp. 148-49).  The only change to the IEP was the addition of OT services (Tr. p. 21; Dist. Ex. 1).

             The impartial hearing commenced on April 4, 2005 and concluded on May 23, 2005 after two days of testimony.²  The impartial hearing officer rendered his decision on June 23, 2005, finding that petitioner had failed to offer a free appropriate public education (FAPE) to the student from December 2004 through June 2005, that respondent's unilateral placement was proper, and that equitable considerations supported granting tuition reimbursement to respondent for December 2004 through June 2005.  Specifically, the impartial hearing officer held as follows:  1) it is not a condition of tuition reimbursement that a student have first received special education services from a public school district; 2) the December 2004 IEP was defective due to the absence of an additional parent member and general education teacher; 3) both the December 2004 and January 2005 IEPs were substantively improper due to the recommendation of a general education environment and the failure to address the student's vision problems; 4)  respondent's unilateral placement was proper; and 5) equitable considerations supported  respondent's claim for tuition reimbursement (IHO Decision, pp. 7-10).   

            On appeal, petitioner seeks to vacate the impartial hearing officer's decision insofar as it found that tuition reimbursement is not contingent upon a showing that the child previously received special education services from a public agency, that the IEP offered to the student by petitioner for the 2004-05 school year was inappropriate, that the placement of the student at Gesher was appropriate and that equitable considerations supported awarding tuition reimbursement to respondent.

             I agree with the determination of the impartial hearing officer that it is not a condition of tuition reimbursement that the child must have previously received special education and related services under the authority of a public agency, that the student's December 2004 and January 2005 IEPs were inappropriate, that respondent's unilateral placement was appropriate and that equitable considerations support tuition reimbursement.

               Petitioner, relying on a recent Memorandum and Order from the United States District Court for the Southern District of New York (Bd. of Educ. v. Tom F., __ F. Supp. 2d __, 2005 WL 22866 [S.D.N.Y. Jan. 4, 2005] [holding that tuition reimbursement for a unilateral placement is precluded if the student has never received special education services from a public school district]), argues that the doctrine of stare decisis, as well as a strict reading of 20 U.S.C. § 1412(a)(10)(C)(ii), require that tuition reimbursement be denied for any student, such as respondent's son, who has not previously received special education and related services under the authority of a public school agency (Tr. pp. 173, 176).

               Respondent argues that Tom F. is not binding authority, that the decision incorrectly interprets the statutory authority in question, and that, in any event, the student has received special education and related services by virtue of the CSE evaluation process and the fact that an IEP was created for him.

               Regarding the well established doctrine of stare decisis, the cases cited by petitioner are inapposite because they involve agency disregard of decisions of the courts of appeals (PPG Indus., Inc. v. Nat'l Labor Relations Bd., 671 F.2d 817, 820-22 [4th Cir. 1982]; Alleghany Gen. Hosp. v. Nat'l Labor Relations Bd., 608 F.2d 965, 968 [3d Cir. 1979], abrogated on unrelated grounds by St. Margaret Memorial Hosp. v. Nat'l Labor Relations Bd., 991 F.2d 1146 [3d Cir. 1993].  In contrast, petitioner is asserting that a district court decision of the Southern District of New York that is presently on appeal to the Second Circuit Court of Appeals constitutes binding precedent.  The District Court for the Southern District of New York has most recently noted that the statute in question is ambiguous (see Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 413-14 [S.D.N.Y. June 9, 2005]).  Both the Tom F. and Carmel decisions noted that the Second Circuit Court of Appeals has not ruled on this issue (Tom F., 2005 WL 22866, at *3; Carmel, 373 F. Supp. 2d at 410).  Under these circumstances, judicial precedent does not displace a conflicting construction on this issue (see Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Svcs., 125 S.Ct. 2688, 2700,  –  U.S. – (2005).

              The statutory provision in question provides as follows:

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]); see also Letter to Luger, 33 IDELR 126 [OSEP 1999] ["We do not view § 612(a)(10)(C) as foreclosing categorically an award of reimbursement in a case in which a child has not yet been enrolled in special education and related services under the authority of the public agency. Reimbursement is an equitable remedy that courts and hearing officers may order in appropriate circumstances."].   

                 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 the Bd. of Educ., Appeal No. 05-015; 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).  As referenced above, 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 is not settled law at the time of this decision; therefore, I 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.

                 The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)³ is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).⁴  A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were 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, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). 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, 32 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 Central School Dist., 346 F.3d 377 at 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]; Briere 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 IEP was developed by petitioner on December 1, 2004 (Parent Ex. B), after which respondent objected and responded that she would be unilaterally placing the student (Parent Ex. A, C).  An amended IEP was developed on January 19, 2005 (Dist. Ex. 1).  Petitioner asserts that the December 2004 IEP may have been technically defective, but that any problems were remedied with the January 2005 IEP.  However, even considering the January IEP, which only added OT sessions, does not change the analysis, as set forth here.

             In New York State, a CSE must include the parent of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1]). 

            The IDEA, its implementing regulations, and New York law require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).  The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

            The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (64 Fed. Reg. No. 48, at p. 12591).  State Review Officers have found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 04-088; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).

              Education Law §4402(1)(b)(1)(b) permits certain members of the CSE to serve in two capacities, but the statute does not authorize a special education administrator or a student’s special education teacher to serve also as the student’s regular education teacher member of the CSE (Application of a Child with a Disability, Appeal No. 01-083).  The regular education teacher participating in the CSE should not only be appropriately certified to teach the student, but should also be a teacher who is, or may be, responsible for implementing a portion of the IEP(Application of the Board of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-080).    

            I concur with the impartial hearing officer in his finding that the December 1, 2004 IEP meeting was improperly composed due to the lack of a proper regular education teacher.  The record does not reflect that a regular education teacher of the student adequately participated in the CSE meeting with respect to the student’s participation in the general curriculum.  In the present case, the teacher present at the CSE meeting testified at the impartial hearing that she was "representing the district as a special education teacher at that meeting" and that she "signed in as the special education teacher" (Tr. p. 32).  Although she is dually certified, there is nothing in the record that suggests that she participated at the meeting in the capacity of a general education teacher, nor that she may have been responsible for implementing a portion of the student's IEP, given that she taught both elementary and junior high school grades and the record does not state which grade[s] she was teaching during the 2004-05 school year (Tr. p. 20). 

            It is well established, however, that the existence of a procedural flaw in the formulation of a student's IEP does not automatically require a finding of a denial of a FAPE (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-015; see also Grim, 346 F.3d at 381; Pawlet Sch. Dist., 224 F.3d at 69; Evans, 930 F.Supp. at 93-94; Pascarella, 153 F. Supp. 2d at 153; Brier, 948 F.Supp. at 1255; Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158.  Rather, a denial of a FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon respondent's opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP. 

             The contribution of an appropriate regular education teacher was essential because petitioner was recommending a general education program with  SETTS   for the student (Parent Ex. B).  The lack of an appropriate regular education teacher at the CSE meeting deprived the student of a regular education teacher’s perspective and input in the development, review and revision of the student’s IEP relating to his instruction in general education courses.  The CSE ultimately recommended a general education program that was strikingly similar to the general education program that the student had been in most recently, and was removed from due to the fact he was going to be retained (Parent Exs. B, M, N; Tr. pp. 125-29).  Despite this, at the December 1, 2004 CSE meeting, there was no input from a regular education teacher of the student about how to modify the general curriculum in the regular classroom to ensure the student's involvement and progress in the general curriculum and participation in the regular education environment (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24).  For example, given the student’s decoding and comprehension weaknesses and problems with visual processing, a regular education teacher on the CSE team would have been aware of the type of general curriculum instruction offered and how best to make the curriculum accessible (see Arlington, 2002 WL 31521158).  Nor was there any input from a regular education teacher of the student in other aspects of the development of the IEP, including the determination of supplementary aids and services, program modifications, and support for school personnel (see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).

               Under the circumstances, I find that the absence of the appropriate regular education teacher from the December 1, 2004 CSE meeting compromised the development of an appropriate IEP, and therefore, denied the student a FAPE (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y.]; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).  It also seriously infringed on respondent’s participation in the creation or formulation of the IEP because respondent had no regular education teacher of the student present at the CSE meeting with whom she could discuss supports for the student’s participation in regular education.   Under the circumstances present in this case, I find that a denial of a FAPE occurred because the procedural violation results in a loss of educational opportunity for the student, seriously infringed upon respondent's opportunity to participate in the process of formulating the IEP, and compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP.⁵ 

            Even if the CSE had been properly constituted, I would be constrained to find that the 2004-05 IEP was inadequate.

            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).   An IEP must 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). 

            An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]).

             In the present case, the impartial hearing officer found that a general education program with one period daily of SETSS, even with the related services, was not appropriate for this student (IHO Decision, p. 8).  The principal of the placement offered to the student at P.S. 99 testified that the mainstream fifth grade classrooms averaged 28 students with a cap of 32 without a teaching assistant (Tr. p. 185).  The "resource room" classes consisted of eight students and one teacher (Tr. p. 184).  The record is replete with evidence that the student was not successful in a mainstream or large group environment (Parent Ex. M; Dist. Exs. 7 at p. 1, 8 at p. 2, 9 at p. 1; Tr. pp. 76, 84-86, 129-31, 133, 136, 141, 198-200) and that he required a smaller learning environment (Tr. pp. 76, 83, 85, 136, 138, 195, 197-98). 

            The student's resource room teacher at Flatbush testified that by the end of his fourth grade year, the student needed a smaller environment with a specialized teacher. (Tr. pp. 136, 138).  In the third marking period of his fourth grade year, the student's comprehension and language usage levels declined and his resource room teacher noted that "[h]e was staying where he was.  There were a couple places where he improved.  He declined in the more significant areas" (Tr. pp. 136-37).  She also noted that any improvements would not be sustained in a general education environment because he was emotionally "shutting down" and was "just so overwhelmed", even with resource room support (Tr. p. 136). 

              The student's special education teacher at Gesher testified that he had problems with visual tracking, had a hard time staying focused, and called out inappropriately in class about unrelated topics (Tr. pp. 69-71, 73-74).  She testified that he was in a class of nine students and that the class split up into smaller groups for reading and math (Tr. p. 75; Parent Ex. I).  The student was initially put into a group of four which did not work because he had a hard time concentrating and following along, and therefore was put into a group consisting of one other student (Tr. pp. 75-76).  She did not think he would be able to follow along in a group of 8 (Tr. pp. 84-86).  The CSE's recommendation was inappropriate given the student's past demonstrated failure in an almost identical setting, where he in fact had the additional supports of vision therapy, counseling, tutors and homework helpers (Tr. pp. 140-41, 198-200).

              In addition, it does not appear that the CSE fully considered the student's progress at Gesher in a small self-contained setting as compared with his difficulties and failure in the mainstream setting.  The student's teacher at Gesher, who participated by telephone at the January 2005 CSE meeting, testified that she was "cut off" during discussions regarding the student's needs (Tr. pp. 87-88, 92), that at the meeting respondent disagreed with the recommended program, and that she agreed with respondent that "resource room" would be inappropriate for the student (Tr. pp. 88-89).  After the first CSE meeting, respondent wrote to the CSE chairperson, expressing her specific concern regarding the program offered:  "I feel that part time special education services are inappropriate for my son" (Parent Ex. C).  However, at the next CSE meeting petitioner did not address this concern, or the impartial hearing request that expressed respondent's disapproval of the recommended program as "too large" (Parent Ex. A).  Petitioner’s special education teacher testified that the CSE used a psychoeducational evaluation dated November 9, 2004, a social history report dated November 9, 2004 and the initial referral request to the CSE dated November 8, 2004 in order to develop the IEPs, all of which stated that the student experienced difficulty in a mainstream or large group setting (Tr. p. 22; Dist. Exs. 7, 8, 9).

              Finally, it does not appear that the CSE was fully aware of or offered services related to the student's needs in the areas of attention, impulsivity, difficulty focusing or his visual processing deficits which negatively impacted his reading and writing (Dist. Exs. 6, 7, 8, 9).  The January IEP contains one statement regarding his "issues of attention and impulsivity" taken from an evaluation report that suggested those factors may have impacted his performance during testing (Dist. Ex. 1 at p. 3, Dist. Ex. 7 at p. 4).  However, this need is not fully developed, there is only one non-specific "refocusing" management strategy noted and there are no goals or objectives related to this need reflected on the IEP (Dist. Ex. 1 at p. 3).  The IEP does not provide suggestions for accommodating or modifying the student's curriculum in the general education environment in light of his noted visual motor deficit, yet the IEP states that this "affect[s] educational achievement" (Dist. Ex. 1 at p. 7). 

              Notably, petitioner in this case references the impartial hearing officer's decision as concluding that a FAPE was denied based upon procedural violations.  While procedural violations are discussed, the impartial hearing officer's decision also based the conclusion that a FAPE was denied upon the IEPs' inappropriate placement of the student in a general education environment and its failure to address vision deficits, which petitioner fails to acknowledge or address.  Under all of the circumstances noted above, I concur with the impartial hearing officer that petitioner failed to offer the student a FAPE with either the December 2004 or January 2005 IEP.

              Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year, I must now consider whether respondent has met her burden of demonstrating that the placement selected for the student for that school year was 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).

             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]). 

            The evidence shows that Gesher is a school that serves children with special education needs  (Parent Ex. F; Tr. p. 192).  The class the student attended at Gesher had nine students who all exhibited below average ability regarding "learning characteristics" (Parent Ex. I).  Six students received OT, five received speech therapy, four received counseling and one received physical therapy (PT) (id.).  All but one of the students had below average ability relating to expressive and receptive language, and all the students had below average ability with writing skills (id.).  All but one of the students were reading at a 3.6 to 4.5 reading level (id.).  I find that the student was suitably grouped for instruction in his class at Gesher.

             Petitioner alleges that the parental placement at Gesher was not the LRE for the student because he received services "in a class with a 2:1 ratio", however this is somewhat misleading.  The student was in a class with eight other students (Parent Ex. I; Tr. p. 74), and for "most of the day" there was one teacher and one teacher assistant in the classroom (Tr. p. 75).  One teacher and three assistants were in the classroom during reading and math instruction, and for reading the student was in a group of two with one teacher (Tr. pp. 75-76).  The teacher testified that she had tried to instruct the student in a larger group (of four students) for reading, however "it didn't work out well. He wasn't able to follow along so well" (id.).  The teacher also noted that while in the larger group the student "needed someone to sit on top of him to help him with the reading and with the comprehension" and "a group of four was hard because he had a hard time concentrating and following along and understanding what the story was talking about" (id.).  Gesher's director testified that the small group environment benefits the student "tremendously" in that the teacher can redirect him when he exhibits visual processing difficulties (Tr. p. 195).   In addition, although the student's performance in math was approaching grade level, his teacher testified that he still required a small group setting for instruction in that subject (Tr. pp. 71-72, 107-108, 117-18).  The record revealed that Gesher met the student's need for individualized attention in a smaller academic environment.

             The student's teacher stated that he exhibited language deficits characterized by difficulty maintaining the topic of a conversation and inappropriately calling out in class (Tr. pp. 73-4).  The teacher testified that she questioned and redirected the student in order to "pinpoint exactly what he want[ed] to say" (Tr. p. 74).  She further stated that due to the small environment at Gesher, she was able to address how his speech-language impairment affected him in school "all the time" (Tr. p. 74).

             The teacher at Gesher testified that she assisted the student with his visual deficits related to reading by covering a portion of a word and pointing to it "until we get it" (Tr. p. 69, 72).  She also followed along and pointed to the text as the student read in order to help him keep his place (Tr. pp. 69-70).  She reported that another visual strategy used in the classroom was to write in large letters on the board (Tr. p. 71).  Overall, the teacher testified that by using these strategies she addressed the student's visual deficits related to his ability to learn in the classroom (Tr. p. 117). 

             In addition, I note that the student had demonstrated progress in reading while at Gesher (Tr. pp. 70, 193-94) and had been observed implementing strategies that the teacher taught him to use while reading (Tr. p. 106).  The teacher testified that the student had made progress in spelling and math during the course of the year (Tr. pp. 70-72). and that his impulsivity  continued to be addressed (Tr. pp. 68, 74).  She further noted that one on one attention addressed the student's tendency to become nervous when learning new material (Tr. pp. 69, 72).  The student's teacher and the director of Gesher testified that the program offered was appropriate to meet his needs (Tr. pp. 83, 197-98, 209). 

           Respondent testified that while attending the mainstream program prior to his enrollment at Gesher, the student was under the care of a psychologist due to the amount of additional services he received (Tr. p. 141).  She indicated that during this time period, the student exhibited low self esteem, and felt frustrated, angry and anxious (Dist. Ex. 8 at p. 2; Tr. p. 142).  The resource room coordinator from the student's mainstream program at Flatbush recalled that while at that school, the student had become increasingly frustrated by his difficulties (Tr. p. 129).  The director of Gesher testified that the student entered the program with low self esteem (Tr. p. 193).  However, respondent reported that since attending Gesher the student is happy, has friends, is progressing academically, and no longer sees a psychologist (Tr. pp. 149-50).  Both the student's current teacher and the director of Gesher indicated that he is outgoing, friendly, and accepted by his peers (Tr. pp. 72, 194). 

             The record reflects that the student did not receive the related services of OT and speech-language therapy (Tr. p. 77).  Although the student's classroom teacher testified that the student would benefit from such services (id.), petitioner does not controvert statements that the student's speech-language deficits were addressed by Gesher (Tr. pp. 68, 74-5, 77), nor does it allege that the special education services Gesher offered the student were inappropriate due to a lack of these related services. The State Review Officer has found in the past that even in situations where "both parties agree that the recommended related services would have been appropriate for the student…the fact that the [related] services were not provided by the private school does not in and of itself establish that the school’s educational program was inappropriate under the IDEA" (Application of a Child with a Disability, Appeal No. 99-78).  Indeed, the State Review Officer has awarded tuition reimbursement to students who would otherwise require related services as part of a FAPE, where they have been enrolled in private schools that offer no such related services, but where the private school nevertheless provided a program that met the student's special education needs (see, e.g., Application of a Child with a Disability, Appeal No. 00-008).  I concur with the impartial hearing officer and find that respondent met her burden of proving that Gesher was an appropriate educational placement for the student.

               The final criterion for an award of tuition reimbursement is that respondent’s claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d 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, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).

               In the absence of evidence demonstrating that respondent failed to cooperate in the development of the IEP or otherwise engage in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

              The record reveals that respondent enrolled her son at Gesher in September 2004 (Tr. p. 165).  She referred her son to the CSE in November 2004 (Dist. Ex. 9). Petitioner alleges that respondent is not entitled to tuition reimbursement because enrollment in the private placement was made prior to the initial referral to the CSE and also because the student had never attended public school or received services.  The fact that the student had not attended public school or received services is not dispositive, as detailed above.  Respondent only sought reimbursement for the period of time from the first deficient IEP through the end of the school year.  Petitioner argues that respondent had no intention of removing her son from his placement in the middle of the school year, however the record contains evidence to the contrary (Tr. pp. 148, 174-75).  While it appears from the record that respondent's initial purpose in seeking an evaluation from petitioner was to obtain speech and language services and busing (Tr. pp. 166-67, 172-74), respondent did assert that she would have moved her son out of Gesher mid-year "if [petitioner] offered the services that he needed . . ." (Tr. p. 175).  The impartial hearing officer found that regardless of respondent's intentions, because petitioner did not offer the student a FAPE, respondent was entitled to tuition reimbursement from the time of the deficient IEP (December 2004) forward (June 2005) (IHO Decision at pp. 9-10).  In concluding that the equities favored respondent, the impartial hearing officer determined that respondent "in no way contributed to the failures of the two IEPs to provide a FAPE" and that respondent acted reasonably by enrolling the student at Gesher (IHO Decision at pp. 9-10).  Respondent was cooperative with the CSE, attended CSE meetings and observed the public school placement promptly in her consideration of that placement.  I concur with the impartial hearing officer that the equities favor respondent.

            Petitioner also contends that even if respondent prevails, the amount of reimbursement should be reduced.  This issue is not properly before me because it was not raised below (see Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060). 

            In light of my determination, I need not consider petitioner’s other challenges to the impartial hearing officer’s decision.

THE APPEAL IS DISMISSED.