Application of the BOARD OF EDUCATION OF THE CHAPPAQUA CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Shaw & Perelson, LLP, attorney for petitioner, Lisa S. Rusk, Esq., of counsel
Barbara J. Ebenstein, Esq., attorney for respondents
Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer, which found that it failed to offer a free appropriate public education (FAPE) to respondent's son and ordered it to pay the fees, tuition and necessary transportation for the child's attendance at the Sterling School (Sterling) for the 2005-06 school year. The appeal must be sustained.
At the commencement of the impartial hearing on May 4, 2005 respondents' son was 16 years old (Tr. pp. 1, 587) and attending tenth grade (Tr. p. 150; Dist. Exs. 15, 21) at SunHawk, where he was unilaterally placed by respondents (Tr. p. 877). SunHawk has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. A Committee on Special Education (CSE) met on September 9, 2004 and initially classified respondents' son as a student with an other health-impairment (OHI) (8 NYCRR 200.1[zz]) (Dist. Ex. 11 at p. 1). At that time, the CSE determined that a significant delay in attentional skills negatively impacted his performance in academic classes (Dist. Ex. 11 at p. 2). He was also found to have difficulty with organizing and remaining apprised of his school assignments (id.). At a CSE meeting held on November 16, 2004, the student's classification was changed to "emotional disability" (Dist. Ex. 12 at p. 1). The student's symptoms were most recently diagnosed as being consistent with psychotic disorder, not otherwise specified and obsessive compulsive disorder (OCD) (Dist. Ex. 19 at p. 3). He also has a history of substance abuse problems (Tr. pp. 178-79, 632; Dist. Ex. 18 at p. 6). The student's history includes parental separation (Dist. Ex. 19 at p. 3), illness in the family (Tr. pp. 634-35; Dist. Ex. 19 at pp. 2, 3), running away (Tr. pp. 534-35), reported suicidal ideations (Tr. pp. 644-45), cutting classes (Dist. Ex. 21) and the assignment of a probation officer as a result of a person in need of supervision (PINS) petition (Tr. p. 295; Dist. Ex. 19 at p. 3). The student's eligibility for special education and classification as a student with an emotional disturbance (ED) (8 NYCRR 200.1[zz]) as determined by the CSE on November 16, 2004 (Dist. Ex. 12 at p. 1) is not in dispute.
At the end of ninth grade, during the 2003-04 school year, the student's report card indicated that most of his grades were between 65 and 69 and in video class he received a grade of between 95 and 100 (Dist. Ex. 23). His cutting of classes peaked at 16 absences in one of his courses (id.). At the end of tenth grade, during the 2004-2005 school year, the student's report card did not indicate that he passed any of his classes (Dist. Ex. 21). It appears that the student did not attend the final quarter of tenth grade at petitioner's high school (see Dist. Ex. 21). His cutting and absences peaked at 58 instances in one subject (id.). The student's mother referred him to petitioner's CSE by letter dated June 10, 2004 (Dist. Ex. 2).
On September 9, 2004 the CSE convened to conduct its initial evaluation of the student (Dist. Ex. 11). At the meeting the CSE reviewed a psychological evaluation conducted on August 13, 2004, which indicated that the student's cognitive functioning was in the average range, with a full scale IQ score of 105 on the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) (Dist. Ex. 8 at p. 2, Dist. Ex. 11 at pp. 2, 4). The CSE also considered an educational evaluation conducted on July 27, 2004, which utilized the Wechsler Individual Achievement Test (WIAT-II), and determined the student's scores to be within the average range on all of the academic subtests including Reading, Math, Written Language and Oral Language (Dist. Ex. 7 at p. 4, Dist. Ex. 11 at pp. 3, 4). The CSE also reviewed a letter from the student's private psychiatrist, dated September 8, 2004, offering a diagnosis of attention deficit disorder (ADD) (Dist. Exs. 10, 11 at p. 4). At the September 9, 2004 meeting, the CSE recommended classification of the student as a student with an other health-impairment (OHI) because he demonstrated a lack of organization and poor time management, which adversely affected his educational performance (Tr. p. 38; Dist. Ex. 11 at p. 4). The CSE recommended goals and objectives to address his study skills (Dist. Ex. 11 at p. 4).
On November 16, 2004, the CSE met to address concerns based on reports of the student's faltering grades and failure to attend class and complete homework assignments (Tr. pp. 208, 40). The student's class attendance was inconsistent (Tr. pp. 139, 487). His counselor reported that the student was having "paranoid thoughts…He thought there was anthrax, he thought, you know, on his skin" (Tr. pp. 418, 432). At the November 16, 2004 meeting, the CSE changed the student's classification to emotional disturbance (ED) and added counseling to his IEP, one session per week to address the emotional concerns the student faced in school, supplementing the services he was receiving from his private psychiatrist (Dist. Ex. 12 at pp. 1, 4).
During the 2004 Thanksgiving holiday, the student underwent an emergency evaluation at the Crisis Center at Westchester Hospital (Dist. Ex. 16 at p. 5). The record indicated that the student was not admitted, but received "intensive psychiatric treatment in an attempt to help him stabilize." A CSE convened on December 2, 2004 and recommended that the student attend a therapeutic day treatment program identified in the record as the STAR program. Pending admission to a therapeutic day treatment program, the CSE recommended increasing services for the student at the learning room center and increasing counseling services from 30 minutes to 90 minutes per week
The student continued to attend petitioner's high school until January 21, 2005 at which time respondents placed him in Four Winds Hospital (Four Winds) for evaluations and recommendations (Dist. Ex. 18 at p. 1). A January 31, 2005 evaluation report from Four Winds concluded that test results were not consistent with the presence of a learning disability or an attention deficit disorder, but did not offer a diagnosis (Dist. Ex. 18 at p. 6). The report noted that the student's "approach to the diagnostic portions of this evaluation was consistently marked by denial and an effort to conceal problems" (id.). His instruction schedule at Four Winds continued from January 21, 2005 until February 4, 2005 (Dist. Ex. 15 at p. 1). On February 14, 2005, respondents placed the student in the outpatient Adolescent Partial Hospitalization Program (APHP) of Four Winds (id.).
As an outpatient at APHP, the student's classroom attendance reflected numerous absences and that he did little work when in class (Dist. Ex. 15). He failed to attend 63 percent of his classes and was in attendance for only 10 of the 27 days of his participation in the APHP program (id.). The student was discharged from APHP on March 11, 2005 (Dist. Ex 15 at p. 1). The student was referred to an Intensive Day Treatment (IDT) program in order to work successfully toward returning to school, with a "back up plan" for a referral to the STAR program at New York Presbyterian Hospital (Tr. p. 221; Dist. Ex. 19 at p. 1).
On March 9, 2005 the student was evaluated at the Psychiatric Evaluation Service of Rockland Children's Psychiatric Center (Dist. Ex. 19 at p.1). He was diagnosed with psychotic disorder not otherwise specified as well as OCD, a diagnosis for which the student had previously been prescribed medication (Tr. pp. 227-28; Dist. Ex.18 at p. 2, Dist. Ex. 19 at p. 3). The student began the IDT program in March 2005 (Tr. pp. 229-30, 437). As part of the IDT program, the student had been enrolled in the Lexington Center, an after school drug support program (Tr. p. 230). He was discharged from the IDT program after testing positive for drugs within a week of starting the program, after which the IDT program indicated that the student needed more support than the IDT program could offer (Tr. pp. 230-31). It suggested that the student attend drug rehabilitation programs at Phelps Hospital or St. Vincent’s Hospital (id.). A CSE convened on March 29, 2005 (Dist. Ex. 16 at p. 1). The student had re-entered the high school for a few days and he was asked to leave prior to the March 29, 2005 CSE meeting (Tr. pp. 232-35, 625). The IEP developed at the March 29, 2005 CSE meeting recommended the student's program as hospital/home instruction pending the completion of intakes for out of district placement (Dist. Ex. 16 at p. 5). On March 31, 2005, respondents placed the student at SunHawk (Dist. Ex. 29 at p. 1).
By letter dated April 8, 2005, respondents requested an impartial hearing (Dist. Ex. 1). In their letter, respondents stated that the student had been involuntarily escorted to SunHawk, a licensed, residential treatment facility in Utah (Dist. Ex. 1 at p. 1). Respondents indicated that petitioner had refused to pay for the costs respondents incurred when they enrolled the student at SunHawk (id.). In addition, respondents asserted that petitioner failed to offer a residential treatment facility to the student (Dist. Ex. 1 at p. 2). The letter stated that at the CSE meeting of the same date, the CSE Chairperson informed respondents of the Summit School residential facility (Summit) (Dist. Ex. 1 at p. 3, Dist. Ex. 17 at p. 6). Respondents were reportedly advised that Summit required its students to be there on a voluntary basis and to be responsible for their actions, in addition to wanting to be free of drugs and to begin the recovery process (Dist. Ex. 1 at p. 3). In their letter, respondents stated that the student would not have gone to Summit willingly or would not have been a willing participant without first having had a more intensive intervention, such as the one offered by SunHawk (id.). Respondents concluded by requesting that petitioner pay for SunHawk costs as if SunHawk were a New York facility, because petitioner either "can't provide this type of facility in New York" or "failed to make such a facility available within the time constraints of the events as they unfold" (id.).
An impartial hearing convened on May 4, 2005 and concluded on July 12, 2005, after five days of hearings (IHO Decision, p. 2). By decision dated August 27, 2005, the impartial hearing officer found that petitioner failed to provide the student with an appropriate educational program in a timely manner (IHO Decision, p. 19). Specifically, the impartial hearing officer determined that the IEPs dated September 9, 2004, November 16, 2004, and March 29, 2005 were inappropriate for the student (IHO Decision, pp. 10, 11, 16). In addition, he found that SunHawk was an "imperfect" but appropriate placement for the student (IHO Decision, p. 21). With respect to notice requirements, the impartial hearing officer determined that respondents had provided both verbal and written notice regarding private school placement and their disagreement with the home schooling placement prior to the unilateral placement (IHO Decision, pp. 22-23). Alternatively, the impartial hearing officer stated that the CSE's "inappropriate decisions at the March 29th meeting forced the parent to act without delay" and found that the circumstances under which respondents removed the student from petitioner's high school fell within the "possible physical or emotional harm to the student" exception to the requirement that prior notice of a unilateral placement be given (IHO Decision, p. 24). The impartial hearing officer concluded that equitable considerations weighed in favor of respondents and ordered petitioner to reimburse respondents for tuition and related costs at SunHawk (id.).
On appeal, petitioner asserts that the impartial hearing officer erred in finding that petitioner did not offer an appropriate program, that SunHawk was an appropriate placement, and that respondents gave requisite notice prior to the unilateral placement.
I agree with the determination of the impartial hearing officer that the student's March 29, 2005 IEP was inappropriate, that respondents' unilateral placement was appropriate, but do not agree that equitable considerations support tuition reimbursement.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). A FAPE includes 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2 A board of education may be required to reimburse parents for their expenditures for private 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]). 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 (Carter, 510 U.S. at 14).
A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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 ). While school districts are required to comply with all IDEA procedures, 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]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; 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 compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). To do this, the record must be examined for "any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan" (Grim, 346 F.3d at 383 [citation and internal quotation omitted]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).
Petitioner asserts that the program and placement for consideration before the impartial hearing officer was the appropriateness of the Summit placement (Tr. p. 977). Petitioner alleges that respondents chose to remove the student from petitioner's placement prior to petitioner making a placement recommendation (id.). Respondents contend that the March 29, 2005 IEP recommending home schooling was the student's last IEP prior to his March 31, 2005 departure for private school and was the IEP in dispute (id.). The relevant IEP for purposes of an award of tuition reimbursement is the IEP which the parents had at the time when they enrolled (or re-enrolled) their child in the private school (Application of a Child with a Disability, Appeal No. 04-046; Application of the Bd. of Educ., Appeal No. 00-053). The record reflects that petitioner developed multiple IEPs for the student during the 2004-05 school year (Dist. Exs. 11-13, 16, 17, 20). The relevant IEP for purposes of an award of tuition reimbursement is the IEP the parents had on March 31, 2005, the date of the student's placement at SunHawk (Tr. p. 442). I find that only the March 29, 2005 IEP is at issue herein concerning the appropriateness of the educational program offered by petitioner and do not determine issues arising from the student's prior IEPs.
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]; see also 8 NYCRR 200.4[d][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]; see 8 NYCRR 200.4[d][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][i]; see 8 NYCRR 200.4[d][iv][a]).
Petitioner alleges that the impartial hearing officer erred in finding that petitioner failed to provide an appropriate educational program in a timely manner. Respondents argue that the March 29, 2005 IEP was substantively deficient because it recommended that the student's placement be home instruction pending placement in a day program, and respondents assert that residential placement was appropriate.
The March 29, 2005 IEP indicated that the student had an attentional disorder and needed to be cued during class and that his self-esteem had been impacted by poor academic performance (Dist. Ex. 16 at pp. 1-2). It stated that the student had difficulty with organization, keeping track of assignments and was emotionally distracted, keeping him from concentrating (Dist. Ex. 16 at pp. 2-3). According to the March IEP, the student needed: 1) to address deficits that impact his learning through learning center services; 2) to address deficits in the areas of attention, distractions, and organization; 3) to concentrate and not disengage during class; and 4) to learn refocusing techniques (Dist. Ex. 16 at p. 3). The March 29, 2005 IEP also recognized the student's deficits in attendance and tardiness and need for a structured class (id.).
The IEP developed as a result of the March 29, 2005 CSE meeting recommended the student's program as home/hospital instruction for 2 1/2 hours per week, learning center for 40 minutes per day for 5 sessions in a 6 day cycle, individual counseling for 45 minutes in a 6 day cycle, and individual counseling for 15 minutes 3 times in a 6 day cycle (Dist. Ex. 16). The CSE indicated that the student was not eligible for extended school year services (Dist. Ex. 16 at p. 1). The IEP reflects that the "student is faced with many thoughts and feelings that are interfering with his learning process" (Dist. Ex. 16 at p. 3). The IEP described the student as having frequent feelings of paranoia, and noted evidence of obsessive thoughts interfering with the ability to stay focused in class (id.). The IEP states that the "student must learn to better advocate for himself when he is unable to focus or participate in classroom activities" (Dist. Ex. 16 at p. 4).
Goals and objectives on the March 29, 2005 IEP address organization, study skills, and making effective plans (Dist. Ex. 16 at p. 6). The CSE addressed the student's behavioral needs by including a goal indicating that the student should improve in socially acceptable behavior through counseling (id.).
The March 29, 2005 IEP comments section indicates that the CSE recommended a program review "to change the current educational plan and reflect new out placement opportunities as intakes become available. In the meantime, the committee has recommended home instruction for two and a half hours per day until such intake appointments take place" (Dist. Ex. 16 at p. 5). I note that the "new outplacement opportunities" cited on the IEP are not expressly identified or defined therein (id.). Nor does the March 29, 2005 IEP list any residential placement as an option considered and/or rejected (Dist. Ex. 16 at pp. 2, 5). Testimony provided by the CSE Chairperson, the learning center teacher, and the father clarified that the intent of the March 29, 2005 IEP was that petitioner would continue to seek an out-of-district intensive day treatment program and that home instruction would be provided during the interim period (Tr. pp. 68, 127, 158-59, 563). In addition, petitioner's school psychologist testified that at the time of the student's placement at SunHawk, the CSE felt that day treatment was the appropriate placement (see Tr. p. 304). Petitioner's school psychologist acknowledged that the father raised the initial question of residential placement in one of the March 2005 CSE meetings, believing it to be the meeting of March 22, 2005 (Tr. pp. 247-48). Day treatment was recommended at that time (Tr. p. 248). According to the testimony of petitioner's school psychologist, in April 2005 it became clearer to the CSE that a "residential placement was the option" (Tr. p. 304).
On April 8, 2005, the CSE convened a program review to consider the student's tenth grade program (Dist. Ex. 17 at p. 6). A representative from Summit was available by telephone to provide an overview of its program (id.). Based on the student's significant academic, management, and emotional needs, and his inability to benefit from a highly structured, individual, academic setting, the CSE recommended that the student attend a residential school (id.). On April 8, 2005, the CSE recommended that the student attend the Summit residential school (id.). Handwritten notes taken by the CSE Chairperson first indicate April 8, 2005 as the date a therapeutic boarding school was recommended (Parent Ex. 5 at p. 10). The Summit recommendation was reviewed and confirmed at a CSE meeting held on April 12, 2005 (Dist. Ex. 17 at p. 6). Testimony from the CSE Chairperson indicates that "prior to Summit," petitioner did not consider the need for residential placement (Tr. p. 91). When asked if she recalled whether the father requested information in the CSE meetings regarding the names of the residential treatment centers, the CSE Chairperson responded, "perhaps towards the very end, but I don't believe that the committee was considering a residential facility" (Tr. p. 92). The CSE Chairperson further stated that she did not recollect any conversations concerning residential placement for emotional reasons as opposed to detoxification (Tr. p. 95). Based on the record, I agree with the impartial hearing officer. I find no evidence to substantiate a claim that the CSE considered residential placement for the student prior to his unilateral placement at SunHawk on March 31, 2005. I concur with the impartial hearing officer that the recommended program of home instruction pending placement in an out-of-district day treatment program was inappropriate (IHO Decision, pp. 16-17). Having made the above determinations, it is not necessary that I further consider respondents' challenges to the impartial hearing officer's decision (Application of a Child with a Disability, Appeal No. 02-100; (Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 00-075). Respondent has, therefore, prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.
I must now consider whether the placement respondents selected for their son for the 2004-05 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). The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., 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). The test for a parental placement is that it is appropriate, not that it is perfect (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).
In testimony, the SunHawk therapist described SunHawk as a therapeutic boarding school that addresses both mental health and substance abuse (Tr. pp. 896-98). It uses a 12-step program of rewards and encouragement, which facilitates the student's advancement in the program (id.). The program tries to integrate the mental health concerns along with the educational needs (id.). The SunHawk therapist further testified that most of the students at SunHawk arrived with emotional problems, low self-esteem, problems in a school setting, struggles with parents, defiance, depression, and substance abuse or dependence, sometimes yielding paranoia and psychotic episodes (Tr. pp. 898-99). When describing students in the program, the therapist indicated that drug abuse or self-medication were usually secondary to depression or low self-esteem, causing students to believe that they could handle their problems and keep them concealed (Tr. p. 911).
The director of education at SunHawk testified that SunHawk is unique in that it is highly structured, starting in the early morning and until late at night, to meet student education and addiction related needs (Tr. pp. 792-93). The average class size is 12 to 14 students per teacher in a classroom, with three "hall staff" available to six classrooms (Tr. p. 793). Each student is assigned to a therapist, with whom they meet both individually and in group sessions 10 to 12 times each week (Parent Ex. 2 at p. 3.) The director of education stated that each student may see his or her therapist on a daily basis, in addition to weekly sessions and being in "family groups" with a therapist (Tr. p. 792). She also testified that SunHawk provides support related to drug addiction and that no drugs are available to the students on or off campus (Tr. p. 794). Additionally, the director of education testified that she is available to the students and often will speak to them regarding "how they're doing," if their needs are being met, and whether they feel that they need supplemental educational support in order to be successful in the program (Tr. p. 793). The impartial hearing officer took note that SunHawk was described as having a psychiatrist, a psychologist, four master level therapists and a nurse on staff (IHO Decision, p. 19). In addition to the evidence demonstrating that SunHawk was appropriate at the time of placement, the SunHawk therapist testified that the student benefited from SunHawk's approach of providing a unified program that incorporates treatment modalities to address both emotional needs and drug dependence (Tr. pp. 897-98). At the time of the therapist's testimony the student was no longer taking anti-psychotic medication, appeared fairly stable, and had not evidenced any episodes of paranoia (Tr. p. 909). He was attending all of his classes and was no longer self-medicating with marijuana (Tr. pp. 912-15).
I concur with the impartial hearing officer and find that the program selected for the student for the 2004-05 school year was appropriate to meet the student’s special education needs (seeWarren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).
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 ). 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).
Petitioner contends that the impartial hearing officer erred in finding that the equities weighed in favor of respondents. Specifically, petitioner asserts that the impartial hearing officer erred in finding that petitioner had provided verbal and written notice more than 10 days before the student was placed at SunHawk, and in finding that the student's placement was necessary to prevent physical or serious emotional harm.
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][C][iii]; seeMrs. C., 226 F.3d at 69 n.9). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (see 20 U.S.C. §§ 1412[a][C][iii][I], 1412[a][C][iv][IV]; see also 34 C.F.R. §§ 300.403[d], 300.403[e]). Under 20 U.S.C. § 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary (Application of a Child with a Disability, Appeal No. 04-071; Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-101; Application of a Child with a Disability, Appeal No. 01-054) (see 20 U.S.C. § 1412[a][C][iv][IV]). The cost of reimbursement may not be reduced or denied for failure to provide notice if compliance with the notice requirements (20 U.S.C. § 1412[a][C][iii][I]; 34 C.F.R. § 300.403[d]) would likely result in physical or serious emotional harm to the child (20 U.S.C. § 1412[a][C][iv][II]; 34 C.F.R. § 300.403[e]).
Respondents received a copy of the procedural safeguards notice on June 10, 2004 (Tr. pp. 429-30; Dist. Exs. 3, 4). Despite the impartial hearing officer's finding that respondents complied with notice requirements, the record fails to reflect that respondents informed the CSE of their disagreement with its proposed placement and their intent to place the student in a private school at public expense at the March 29, 2005 CSE meeting prior to their March 31, 2005 removal of the student from the public school placement. Moreover, the father admitted that respondents failed to provide petitioner with written notice of the student's removal from petitioner's high school ten business days before the student's removal (Tr. p. 611). As such, I find that respondents have failed to meet the mandated notice requirements (20 U.S.C. § 1412[a][C][iii][I]; 34 C.F.R. § 300.403[d]).
The student's father testified that respondents believed that the student required placement in a residential facility and requested this placement multiple times (Tr. pp. 610-11). On March 22, 2005, the student's mother discussed residential placement with the CSE Chairperson and the special education teacher in the hallway, subsequent to a CSE meeting that the student had attended (Tr. pp. 129-30, 474-75). A related discussion took place between the mother and the CSE Chairperson by telephone on the day prior to the student's residential placement (Tr. pp. 129-30). However these conversations, nor requests for records by petitioners, satisfy the statutory notice requirement. The CSE did subsequently recommend, on April 8, 2005, a residential placement at the Summit School program in Nyack, New York, which petitioners did not object to in terms of appropriateness (Tr. p. 88). Summit is approved by the State of New York and offers a New York State Regents curriculum (Tr. pp. 330-31, 344). All teachers are certified in both special education and their subject area (Tr. 336) and have ten staff members who do full-time psychotherapy, a full-time psychiatrist, a full-time drug counselor and nursing staff (Tr. pp. 332-33). Testimony was given that the student’s special education needs and goals and objectives for the 2004-05 school year could have been met at the recommended program and placement at Summit (Tr. pp. 86-87, 237-39, 997-98).
Although the mother attempted to comply with petitioner's March 29, 2005 home instruction placement recommendation, the tutoring service reportedly required time to provide the student with a tutor, and further required the student's supervision by an adult (Tr. pp. 626-27). The student remained home on psychiatric medication (Tr. p. 626). Testimony indicates that petitioner attempted to schedule the provision of home instruction at petitioner's educational center (Tr. pp. 129, 441). However, the home instruction recommended in the March 29, 2005 IEP never took place (Tr. p. 442; Dist. Ex. 16 at p. 1). Had respondents timely notified petitioners of the difficulties in implementing the home instruction program and of their intent to seek residential placement at public expense, the parties would have likely, given the responsiveness of petitioners, been able to pursue interim programming pending placement at Summit to address educational needs and concerns pertaining to physical or emotional harm.
Under these circumstances, I do not agree with the impartial hearing officer's decision that the exception to the notice provision applies and I find that the equities do not weigh in favor of respondents.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent that he determined that equities favored respondents and ordered petitioner to reimburse respondents for their son's tuition and related costs at SunHawk Academy in Utah for the 2004-05 school year.
1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.
2 The term "free appropriate public education" means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meets the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8); see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].