05-118

             Petitioner, the Board of Education of the Shenendehowa Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer appropriate educational programs to respondents' son for the 2004-05 and 2005-06 school years, and which ordered it to reimburse respondents for their son's tuition costs at The Family Foundation School (Family Foundation) for those school years.  The appeal must be sustained in part.

            At the time of the impartial hearing in August 2005, the student was 17 years old and enrolled at Family Foundation.  Family Foundation, a private residential facility for high-risk adolescents (Parent Ex. 10), is not approved by the Commissioner of Education as a school with which school districts may contract to instruct student's with disabilities (see 8 NYCRR 200.7).

            The student's intellectual functioning is in the average range (Dist. Ex. 49 at p. 4; Tr. p. 93).  He exhibits weaknesses in mathematics, written expression, and reading comprehension, and has difficulty with time management and organizational skills (Dist. Ex. 49 at pp. 4-5).  Prior to entering petitioner's school district in September 2000, the student was diagnosed as having an attention deficit disorder (ADD)¹ (Dist. Ex. 7 at p. 3).  In the fall of 2003, however, the diagnosis was questioned by a private psychiatrist (Dist. Ex. 37).  The private psychiatrist also reported oppositional symptoms, conduct disorder phenomenology and anxiety (id.).  The student admitted that he first began using drugs in 2002 (Parent Ex. 8).  Medical notes from 2004 suggest possible depression (id.).

            When the student entered petitioner's school district in September 2000 for seventh grade, he had been previously classified as having an other health impairment (Dist. Ex. 8; see 8 NYCRR 200.1[zz][10]).  He was placed in an interim special education placement, which was formalized when petitioner's Committee on Special Education (CSE) met in October 2000 (Dist. Ex. 7 at p. 5, Dist. Exs. 8, 9).  The CSE maintained the student's classification as having an other health impairment (Dist. Ex. 9 at p. 1).  It recommended that he receive English and Mathematics instruction in a 15:1 special class and that he attend resource room "7-8x/week" (Dist. Ex. 9 at pp. 1, 5).  The student's individualized education program (IEP) developed as a result of the meeting noted that he was taking medication for an ADD (Dist. Ex. 9 at p. 3).  The student's final report card for seventh grade indicates that he failed Mathematics, Social Studies, and Science that year (Dist. Ex. 17).

            For eighth grade during the 2001-02 school year, in addition to recommending that the student receive English and Mathematics instruction in a special class and resource room services, the CSE recommended consultant teacher services for Earth Science and Social Studies (Dist. Ex. 14 at p. 5).  The student's IEP noted that he was taking medication for an ADD (Dist. Ex. 14 at p. 3).  The student passed all core academic classes that year (Dist. Ex. 23).

             Petitioner's CSE recommended essentially the same program for the student for ninth grade, including special classes for English and Mathematics, daily resource room services and consultant teacher services for Earth Science and Global Studies (Dist. Ex. 20).  The student's IEP noted his ADD diagnosis and indicated that he was not taking medication for focusing (id. at p. 3).

            The student began ninth grade at petitioner's high school in the fall of 2002.  In the middle of September 2002, the student and his mother met with the student's nurse practitioner (Parent Ex. 8 at p. 1; Tr. p. 318).  The student's mother expressed concern about her son's possible experimentation with "street drugs," as well as changes in his sleeping pattern (Parent Ex. 8 at p. 1).  In November 2002, the student's guidance counselor advised respondents that their son's first quarter report card indicated that he was experiencing difficulty in History, Mathematics and Science (Dist. Ex. 25).

            The CSE subcommittee met in March 2003 for the student's annual review (Dist. Ex. 28).  It recommended that for tenth grade, the student attend resource room five times per week for 40 minutes (Dist. Ex. 28 at p. 1).  The IEP developed as a result of the meeting included the student's scores on the Woodcock Reading Mastery Tests – Revised - Normative Update, indicating that the student's basic reading skills were in the average range.  The IEP noted that the student's late arrival to school and frequent absences were hindering his academic achievement.  The IEP further noted that the student was failing Earth Science, Global History and Mathematics.  The IEP also noted the student's ADD diagnosis and indicated that he was not taking medication.

            Also in March 2003, the student received two disciplinary referrals, one for skipping class and the other for failing to report to detention (Parent Ex. 2 at pp. 1-2).  Petitioner's associate principal, who was an administrative dean at the time and functioned as a CSE chairperson as a building level representative, noted that the student was becoming "increasingly disruptive and insubordinate to authority" (Parent Ex. 2 at p. 2; Tr. pp. 144-45).

            In April and May 2003, one of petitioner's school psychologists conducted a psychoeducational evaluation of the student as part of the student's reevaluation (Dist. Ex. 29).  The school psychologist described the student as friendly, with a great sense of humor who reportedly got along well with peers and adults.  The student's performance on the Wechsler Individual Achievement Test – Second Edition (WIAT-II), revealed deficits in mathematics and written expression.  The school psychologist noted that the student exhibited considerable difficulty sustaining attention and focusing in class.  She further noted that the student was struggling in his academic program and was at risk of failing Social Studies, Science, and Mathematics.  The school psychologist opined that the student needed to attend school regularly in order to prevent "missing academic instruction and falling behind."  She noted the importance of providing to the student a supportive environment which offered clear and consistent expectations.  She indicated that further exploration of the student's attention difficulties might be warranted if such difficulties continued to impact his learning.

            In May 2003, petitioner's associate principal, who was an administrative dean at the time, filed a Person in Need of Supervision (PINS) petition in Saratoga County due to the student's excessive absenteeism and tardiness (Dist. Ex. 29 at p. 1).  Also in May 2003, the student and his mother met with the student's nurse practitioner regarding continued changes in the student's behaviors, including going to bed late, getting up early, missing school, not following through with homework, and engaging in physically and verbally aggressive outbursts when corrected (Parent Ex. 8 at p. 2).  The nurse practitioner indicated that there had been some defiant behaviors (id.).

            The student was absent 22 days and tardy 49 days during the 2002-03 school year (Dist. Exs. 30, 41).  He showed some progress toward meeting his IEP goals and objectives (Parent Ex. 5), but failed English, Global History, Mathematics and Science (Dist. Ex. 30).  The student attended summer school for English and Global Studies (Parent Ex. 4), and passed and received credit for Global Studies (id.).

            By letter dated September 3, 2003 to petitioner, the student's father indicated that his son would be attending Peru High School for his sophomore year (Dist. Ex. 32).  Peru Central School District's CSE met on September 23, 2003 (Parent Ex. 6).  It determined that the student should continue to be classified as having an other health impairment and that he continue to receive daily resource room services (id.).  Peru's CSE adopted most of the March 2003 IEP developed by petitioner's CSE for the student for the 2003-04 school year (Dist. Ex. 34 at p. 3).

            In October 2003, the student's father arranged for a private psychiatric evaluation of his son (Dist. Ex. 37).  According to the psychiatrist, the evaluation was "initiated with the patient's father's conviction that the youngster has ADD and the issue was treatment not evaluation."  The psychiatrist opined that the ADD diagnosis was not definitive.  He indicated that the student's mood "appears euthymic but is labile with quick angry reactivity to statements made by father or companion."  The psychiatrist reported that the student expressed no remorse or apparent concern with his immediate situation within the family and school.  He further noted that the student displayed oppositional symptoms, as well as conduct disorder phenomenology, and anxiety.  The psychiatrist suggested that there were some indications of possible cognitive deficits.  The psychiatrist's report listed a diagnosis of "R/O ADHD; Conduct Disorder."  The psychiatrist indicated that neuropsychological testing was necessary.

            During the time that the student was living with his father and attending Peru High School, he continued to experience problems in school (Parent Ex. 12, Parent Ex. 14 at pp. 3, 5; Tr. pp. 183, 223, 321, 338, 342-43, 345-46) and home (Dist. Ex. 52).  In the middle of October 2003, the student received a conduct referral for disruptive behavior and failing to report to a teacher (Parent Ex. 6).  Following the conduct referral, the student's father scheduled a PINS intake appointment in Clinton County (Parent Ex. 13, Parent Ex. 14 at p. 6).  At the end of October 2003, the student was suspended for five days for dangerous behavior (Parent Exs. 6, 12).

            In early November 2003, the student returned to petitioner's school district (Dist. Exs. 33, 34).  The following month, petitioner's CSE met and determined that the student should continue to be classified as having an other health impairment and recommended that he continue to receive resource room services (Dist. Ex. 35).

            By letter dated January 22, 2004 to the Saratoga County Probation Department in connection with his son's PINS proceeding in that county, the student's father documented his position with respect to his son's need for intervention and expressed concern about his son's future (Dist. Ex. 52).  He opined that his son should be in a structured institution to be rehabilitated (id.).  Later that month, the PINS petition in Saratoga County was dismissed (Parent Ex. 3, Parent Ex. 8 at p. 3; Tr. p. 348).

            On March 24, 2004, the CSE subcommittee met for the student's annual review and to develop his program for the 2004-05 school year (Dist. Ex. 38 at p. 5).  The CSE subcommittee determined that the student should continue to be classified as having an other health impairment and recommended that that the student's placement be changed (id.).  It further recommended that the student's expected diploma be changed from a "regular high school" diploma to an IEP diploma (id.).  The student's father did not agree with the recommended change in his son's program (Tr. p. 29).  The IEP developed as a result of the meeting listed the student's reading and achievement test results (Dist. Ex. 38 at p. 5).  It indicated that the student was taking three ninth grade courses and two tenth grade courses, and was in danger of failing the year (Dist. Ex. 38 at p. 7).

            On March 29, 2004, the student received a disciplinary referral for skipping class (Parent Ex. 2 at p. 3).  After receiving notice of his son's disciplinary referral, the student's father forwarded the October 2003 private psychiatric report to petitioner's associate principal, who was an administrative dean at the time, in and effort to get his son the "attention, assistance or intervention required" (Dist. Ex. 37).  The student's father referred to the psychiatrist's findings that his son expressed no remorse or concern with his immediate situation within the family or at school.  He also referred to the psychiatrist's findings of oppositional symptoms and poor conduct, and indicated that the recommended neuropsychological testing was to proceed.

            The student and his mother met with the student's nurse practitioner twice during the spring of 2004 (Parent Ex. 8 at pp. 3-5).  Notes from a March 2004 visit indicated that the student continued to have behavior problems and sleep difficulties.  He tended to go to bed late and had difficulty getting up in the morning.  The nurse practitioner also noted that, emotionally, the student continued to have aggressive or threatening physical outbursts, but that he denied a desire to hurt himself or others.  The nurse practitioner further noted that, academically, the student tended to skip classes, but had not displayed anger management issues at school.  The student acknowledged using alcohol twice a month and smoking marijuana twice a month.  The nurse practitioner described the student as congenial and noted that he seemed to be quite honest.  She reported that the student's self-esteem appeared to be quite good.  According to the nurse practitioner's notes, the student displayed behavioral changes suspect of depression.  The nurse practitioner recommended that the student be evaluated by a psychiatrist who would be able to provide psychotherapy.

            The student returned to the nurse practitioner in April 2004 to discuss medication for possible depression (Parent Ex. 8 at p. 5).  The nurse practitioner's notes indicated that the student had recently met with a psychologist and had an appointment with a psychiatrist in May.  The student admitted to smoking marijuana and drinking alcohol, but not to excess.  The nurse practitioner's notes further indicated that she would consider starting medication with the student only when he agreed to stop using drugs and alcohol.

            On May 7, 2004, the student received a disciplinary referral for tardiness and for failing to report to morning "restrictions" (Parent Ex. 2 at p. 4).  For the 2003-04 school year, the student was absent 30 days, tardy 47 days, and he failed all of his academic courses (Dist. Exs. 39, 41).  He did earn one-half credit for Physical Education (Dist. Ex. 39).

            The student began the 2004-05 school year at petitioner's high school.  On September 27, 2004, he received a disciplinary referral for being tardy and untruthful (Parent Ex. 7 at p. 20).  On September 29, 2004, the student received a disciplinary referral for using inappropriate language, and received one day of in-school suspension (Parent Ex. 2 at p. 5, Parent Ex. 7 at p. 19).  As of October 1, 2004, the student was absent seven days, tardy six days, and had accumulated a total of 3.5 credits toward graduation (Dist. Ex. 41; Parent Ex. 7 at p. 9).  He was legally absent for the month of October 2004 (Dist. Ex. 41; see Tr. p. 254).

            By letter dated October 1, 2004 to the high school guidance department, an educational consultant hired by respondents indicated that respondents were considering a private school program for their son and requested copies of their son's transcripts, IEP and other educational records (Parent Ex. 7 at p. 21).  By letter dated October 12, 2004 to the high school, the student's mother stated that the school district had been unable to meet her son's needs and that she and her son's father were "invoking any and all due process rights that may be permitted by NY Education laws or rules for our son" (Dist. Ex. 42).  She requested "a copy of any printed material that addresses the parents rights on special education" (id.).

            On October 25, 2004, the student's mother completed a parent questionnaire for Family Foundation (Dist. Ex. 51).  She checked the following items as applying to her son:  disobeys rules/orders, verbally/physically aggressive, lies/dishonest, alcohol/substance use/abuse, academic underachievement/failure and destruction of property.  The student's mother elaborated that her son lacked motivation to attend school and that he had very low self-esteem.  She reported that her son had an ADD and weak mathematics and written expression skills.  She indicated that her son felt inadequate in school and that she was uncertain about the cause of his concentration difficulties.  The student's mother noted that her son had recently been diagnosed with narcolepsy, and opined that most of his problem was his inability to wake up for school in the morning.  She described her son's behavior at home, noting that he has lied to her, disregarded rules or consequences, used marijuana and stolen money from her.  He also would shout or destroy property when reprimanded.  The student's mother described her son as generally happy and noted that he could be very polite to family and teachers.  She believed that her son was a "good kid" who made poor choices and opined that he would not be compliant if he lived with her.

            Petitioner's CSE subcommittee met on October 27, 2004 at the request of the student's mother to explore a residential placement, specifically Family Foundation, for her son (Dist. Ex. 43 at p. 7).  The student's mother was advised that the CSE could not place her son at Family Foundation because it was not an approved placement.  The student's mother reported that her son had been diagnosed with narcolepsy, but did not present documentation.  The CSE agreed to conduct updated testing of the student.  In addition, in order to address the student's narcolepsy and his difficulty getting up for school in the morning, the CSE recommended that the student's IEP skills development program be moved to the afternoon, and that the student's electives be eliminated.  The meeting was tabled pending the evaluation and the medical documentation of narcolepsy.

            On November 1, 2004, respondents enrolled their son at Family Foundation (Parent Ex. 10).  Later that month, petitioner's CSE subcommittee reconvened to review the results of testing approved at the October 2004 meeting (Dist. Ex. 44).  Meeting minutes indicate that respondents had placed their son at Family Foundation.  Meeting minutes further indicate that the student's mother did not want the CSE to pursue an out of district placement for her son.  The school psychologist reported that he was unable to conduct an evaluation of the student at Family Foundation because of Family Foundation's policy that no one was allowed to contact the student for the first 30 days of his enrollment.  The CSE determined that the school psychologist would review the student's previous testing and contact the student's mother to determine if additional testing was necessary.

            The student attended Family Foundation for the remainder of the 2004-05 school year (Parent Ex. 10).  A monthly progress report dated February 1, 2005 indicated that the student was putting very little effort into his school work and that he saw his failing grades as a way to manipulate his parents into enrolling him in a less disciplined school (Dist. Ex. 55 at p. 4).  The student's March 1, 2005 progress report indicated that he was being tutored, but put only minimal effort into studying and completing assignments (Dist. Ex. 55 at p. 5).  The student's May 1, 2005 monthly progress report indicated that there was slight improvement in his grades and that he was asking for help and following through with assignments (Dist. Ex. 55 at p. 3).  However, the report also indicated that the student rarely participated in class, rarely completed class assignments, rarely performed to his ability and rarely showed initiative (id.).  In May 2005, the student earned grades of 66 in Earth Science, 79 in English 10, 86 in Global II, and 65 in Math A1 (Parent Ex. 9 at p. 3).  His June 1, 2005 progress report indicated that he had not improved his grades and noted that he had one month to make significant changes before "academic work sanction" and other scholastic rules were incorporated into his schedule (Dist. Ex. 55 at p. 2).  The July 1, 2005 progress report notes significant improvements (Dist. Ex. 55 at p. 1).

            On June 9, 2005, the CSE subcommittee convened for the student's annual review and to develop his IEP for the 2005-06 school year (Parent Ex. 11).  The CSE continued to recommend the IEP skills development program for the student (id.).  Meeting minutes indicate that the student's mother was pleased with her son's progress at Family Foundation (id.).  Following the CSE meeting, respondents requested an impartial hearing (Dist. Ex. 46).  They completed a request for due process proceeding form in which they further explained their disagreement regarding their son's special education indicating that petitioner was unable to correctly identify their son's problems and that he was "lacking the proper education that he deserves" (Dist. Ex. 47).  Respondents opined that petitioner should be held accountable and requested reimbursement for tuition and expenses (id.).

            In July 2005, the beginning of the fall semester at Family Foundation, the student earned grades of 75 in Biology, 89 in Earth Science, 80 in English 11, 75 in Global II, and 75 in Math A1 (Parent Ex. 9).

            By letter dated August 2, 2005, the social worker from Family Foundation outlined the student's program and progress (Parent Ex. 10).  She listed the student's diagnoses as Oppositional Defiant Disorder, Cannabis Abuse, R/O learning disabilities.  She indicated that when the student entered Family Foundation he had a history of multiple serious behavior problems including disobeying rules, verbal and physical aggression, lying, stealing, destruction of property, academic underachievement, alcohol and substance use and truancy.  She opined that the student's inability to deal with his mental health issues, learning problems and emotional stability led to behaviors that put him in dangerous situations, caused a deteriorating relationship with his parents, and compromised his ability to perform academically. 

            According to the social worker, the student attended weekly group counseling meetings using a cognitive behavioral therapy approach, actively engaged in 12 step work, attended Alcoholics Anonymous (AA) meetings weekly, and attended a living skills class twice a week that incorporated daily functioning skills with sober living (id.).  The social worker reported that the student was responding favorably to the discipline and structure of the school, that he attended classes regularly and that his grades had improved.  She noted that the student was making efforts to be obedient, follow rules, establish a familial relationship with his parents, and relate appropriately to authority and peers.  She indicated that the student had been substance free since his enrollment.  The social worker opined that the student required continued, uninterrupted care with 24-hour monitoring, and that he should remain at Family Foundation and continue his residential program until he graduated.

            On August 3, 2005, one of petitioner's school psychologists evaluated the student at Family Foundation (Tr. p. 87).  Administration of the Wechsler Adult Intelligence Scales yielded a verbal IQ score of 98, a performance IQ score of 86 and a full-scale IQ score of 93 (Dist. Ex. 49 at p. 4).  The school psychologist noted that the student's standard score of 84 on the processing speed index was in the low average range and indicated that there was a "direct causation" between that score and the student's low- average performance IQ score (Tr. p. 92).  On the WIAT-II, the student received standard scores of 78 for listening comprehension, 73 for written expression, 96 for spelling, 92 for psuedoword decoding, 102 for word reading, 81 for reading comprehension, 89 for reading composite, 83 for numerical operations, 82 for math reasoning, 81 for math composite, 96 for spelling, and 83 for written language composite (Dist. Ex. 49 at p. 4).  Based on the results of the testing, the school psychologist reported that the student had weaknesses in written expression (Tr. pp. 95-96), reading comprehension (Tr. p. 96) and mathematics (Tr. pp. 96-97).  He recommended that the student be classified as learning disabled (Tr. p. 98).

            On August 4, 2005, the CSE subcommittee met and reviewed the student's progress at Family Foundation, as well as the testing completed by the school psychologist (Dist. Ex. 49).  Staff from Family Foundation participated in the meeting by telephone (Tr. p. 43).  They reported that the student was attending school and passing all of his courses (id.).  The CSE agreed that the student's classification as having an other health impairment was not appropriate, and, after considering the classification of emotional disturbance, determined that the student should be classified as having a learning disability (Dist. Ex. 49 at p. 1).  The student's mother disagreed with the committee's determination (Dist. Ex. 49 at p. 2).  Meeting minutes indicate that the CSE updated the student's present levels of performance and goals and objectives, discussed a range of possible placements, and ultimately recommended that the student attend learning labs for English and Mathematics and receive weekly individual counseling (id.).  The student's expected diploma was changed from IEP to Regents (id.).  The IEP developed as a result of the meeting provides for a graduation date of June 2007 and indicates that the student had 5.5 credits (id.).

            The impartial hearing was held on August 10 and 18, 2005.  The impartial hearing officer rendered her decision on October 17, 2005.  She found that the IEPs developed for the student for the 2004-05 and the 2005-06 school years were inappropriate, that Family Foundation was an appropriate placement for the student for those school years and that equitable considerations supported respondents' claim for tuition reimbursement.  Accordingly, the impartial hearing officer awarded respondents tuition reimbursement for the 2004-05 and 2005-06 school years.

            Petitioner appeals from the hearing officer's decision on numerous grounds.  Initially, petitioner claims that respondents failed to demonstrate that the programs recommended for their son for the 2004-05 and 2005-06 school years were appropriate.

            A purpose behind the Individuals with Disabilities Education Improvement Act (IDEIA) (20 U.S.C. §§ 1400 - 1482)² is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see also Schaffer v. Weast, 126 S. Ct. 528 [2005]).  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[9][D]; former 20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).³

            A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the statute, and (b) the IEP developed by the board of education's 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]).  The student's recommended program also must 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]).

            While school districts are required to comply with all statutory procedures, not all procedural errors render an IEP legally inadequate (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]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]).  School districts, however, are not required to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 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]).

            A board of education may be required to reimburse parents for expenditures for private educational services obtained for their child, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).  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).

            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).

            In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044).  In evaluating each child with a disability, the evaluation must be sufficiently comprehensive to identify all of the child's special education and related service needs (34 C.F.R. § 300.532[h]; 8 NYCRR 200.4[b][6][ix]).

            With respect to the program developed for the student for the 2004-05 school year, I find that the CSE failed to obtain sufficient evaluative information to make an appropriate recommendation for respondents' son.  The record shows that the CSE met to develop the student's program for the 2004-05 school year in March 2004.  The March 2004 IEP lists results of reading and achievement testing conducted in early 2003 confirming that the student had deficits in mathematics, written expression and reading comprehension.  However, there are no test results related to the student's cognitive ability listed on the March 2004 IEP, nor is there any information in the record to show that the student's cognitive abilities were assessed.

            In addition, the March 2004 IEP identifies the student's social development and management needs, including difficulty getting to sleep and waking up for school in the morning, arriving at school late and missing first period, during which time the student had resource room (Dist. Ex. 49).  It further indicates that the student's high absenteeism affected his academic performance.  The March 2004 IEP provides that the student had difficulty staying on task due to his ADD.  It further provides that he sometimes had conflicts with staff because he visited areas of the school without permission.  The March 2004 IEP also notes that the student was in danger of failing the 2003-04 school year.  Despite identifying such needs, there is no indication in the record that any projective testing was administered, that any behavior checklist or rating scale was completed, or that an assessment of the student's attending abilities was performed.  Rather, the student's difficulties "were seen as relating to non-academic, non-school matters" (Pet'r Mem. at p. 11; see Tr. pp. 156, 162-63), and a large part of the student's poor attendance was attributed to a drug problem (Tr. pp. 90-91, 292).  However, there is insufficient evaluative information in the record to support petitioner's conclusion that the student's difficulties were not related to his disability.

            The record further shows that on March 29, 2004, less than one week after the CSE meeting, the student received a disciplinary referral for skipping class.  At the beginning of April 2004, the student's father forwarded the October 2003 private psychiatric report to petitioner to get his son the "attention, assistance or intervention required."  The report indicated that the student's ADD diagnosis was not definitive, that oppositional symptoms and conduct disorder phenomenology were present, that anxiety was significant, and that there were some indications of possible cognitive deficits.  Although further testing was recommended, the CSE did not conduct any evaluations of the student until over one year later.  In May 2004, the student received another disciplinary referral (Parent Ex. 2 at p. 4).  The student was absent 30 days and tardy 47 days during the 2003-04 school year (Dist. Ex. 41), and he failed all of his academic courses (Dist. Ex. 39).

            Given the lack of cognitive and projective testing, the student's tardiness and high rate of absenteeism, the observation by a mental health professional of symptoms requiring further testing, the questionable ADD diagnosis, the disciplinary referrals and the student's failing grades, the CSE should have conducted additional evaluations to identify all of the student's special education and related service needs.  In the absence of a sufficiently comprehensive evaluation, the CSE could not recommend an appropriate program for the student for the 2004-05 school year (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044).  For example, without an assessment of the student's cognitive abilities, the CSE lacked valuable information regarding whether other factors such as attention and concentration, working memory or processing speed were affecting the student's academic functioning.  Further, without projective testing or other assessment, the CSE lacked information to make a determination as to whether the student's attendance and other difficulties were related to his disability. 

            School districts must gather relevant functional and developmental information about the student, including information provided by the parent, that may assist in determining the content of the student's IEP (34 C.F.R. § 300.532[b]).  Because the evaluative information that was considered by petitioner in developing the student's March 2004 IEP did not include an assessment of his cognitive abilities, or evaluations of his social-emotional functioning, his attention and management needs, his attendance difficulties or his defiant behavior, the present levels of performance listed on the student's March 2004 IEP do not necessarily reflect or describe all of the student's special education and related service needs (see 34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[d] [2][i]).  As a result, the program the CSE recommended for the student was based upon limited information despite evidence that the student exhibited difficulties in other areas (see 34 C.F.R. § 300.532 [g]; 8 NYCRR 200.4[b][6][vii]).  I find that respondents' claim that petitioner failed to appropriately identify their son's needs is supported by the record.  Consequently, respondents have prevailed on the first criterion for an award of tuition reimbursement. ⁴

            Having determined that petitioner did not offer to provide a FAPE to the student during the 2004-05 school year, I must now consider whether respondents have met their burden of proving that placement of their son at Family Foundation 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).  As noted above, in order to meet that burden, petitioner 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 student'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. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

            Respondents assert that Family Foundation provides their son an appropriate program in the LRE.  They indicate that Family Foundation offers a supportive environment continuously throughout the day.  They further indicate that students at Family Foundation participate in formal and informal group therapy sessions, and that when they become emotionally healthy, they are able to learn.  To support their position, respondent's point to their son's passing grades and the fact that he is on schedule to earn a Regents diploma by June 2007.

            As noted above, Family Foundation is described as a private residential facility for high-risk adolescents (Parent Ex. 10).  It provides a 24-hour therapeutic environment (Tr. p. 269).  While at Family Foundation, the student participated in weekly group counseling sessions (Tr. pp. 269, 278-79; Parent Ex. 10), and his social worker provided individual counseling as needed (Tr. p. 278).  The student and his family participated in family therapy sessions also on an as-needed basis (Parent Ex. 10).  As noted above, the student worked with a staff mentor and student mentor, engaged in 12 step work, attended weekly AA meetings and attended a twice weekly living skills class that incorporated daily functioning skills with sober living (Parent Ex. 10).

            The school at Family Foundation is a junior and senior high school operating on a 12-month school year (Parent Ex. 10).  Classes at Family Foundation usually have between 10 to 12 students (Tr. p. 266).  The maximum class size is 15 students, and sometimes classes have as few as five students (id.).  Teachers at Family Foundation employ a variety of instructional techniques including hands-on, oral, and written instruction, and they work with students to determine how each student learns best (Tr. p. 267).  Family Foundation offers a lengthened school day allowing students additional time to meet with teachers for extra help (Tr. p. 266).  There is a one and one-half hour study hall at night during which students can receive extra help from other students or staff (Tr. pp. 266-67).  Special education teachers are available for evaluation and assessment, and work with students on an individual basis or in a small group once a week, if necessary (id.).

            Upon the record before me, I am unable to find that respondents have demonstrated that Family Foundation offered an educational program that met their son's special education needs.  The record shows that Family Foundation offered a therapeutic environment and that the student participated in counseling.  However, with the exception of Family Foundation's small classes and the availability of staff for extra help, respondents have not demonstrated how educational services at Family Foundation were appropriate to meet their son's mathematics, written expression, reading comprehension, and organizational deficits.  I note that the special education teachers working with Family Foundation did not assess or provide services to the student (Tr. pp. 280-81).

            Having determined that respondents have not met their burden of proving that placement of their son at Family Foundation was appropriate, the necessary inquiry is at an end and there is no need to determine whether equitable considerations support respondents' claim (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

            With respect to the 2005-06 school year, essentially for the same reasons set forth above, I find that petitioner's CSE has not adequately evaluated the student to ascertain the nature and full extent of his disability.  The record shows that petitioner's school psychologist evaluated the student at Family Foundation the day before the August 2005 CSE meeting (Dist. Ex. 49; Tr. p. 87).  I note that there is no written evaluation report in the record.  The August 2005 IEP lists the test results and the school psychologist testified at the impartial hearing about the evaluation.  He stated that the student's intelligence functioning was in the average range with some isolated weakness in processing speed (Tr. p. 93).  He also stated that he did not observe any evidence of an ADD during the evaluation and that he did not have time to do a behavioral assessment (Tr. pp. 95, 103).  The school psychologist testified that during the evaluation, the student "alluded to the fact that drug use was a contributing factor in his non-attendance" (Tr. pp. 90-91).  He noted the student's frustration with school, but could not conclude that the student's truancy was directly related to his learning disability (Tr. p. 122).  The school psychologist further testified that he could not explain why the student had failing grades when he attended petitioner's high school because he did not know the student at the time (Tr. p. 116).

            While the CSE conducted testing of the student's cognitive abilities and determined that the classification of other health impairment was no longer appropriate because the ADD diagnosis was in question, I find that it failed to fully assess the student's social development and management needs (see 8 NYCRR 200.4 [b][6][vii].  The private psychiatric evaluation that was shared with petitioner's administrative dean in April 2004 identified oppositional symptoms and conduct disorder phenomenology, and recommended additional testing (Dist. Ex. 37).  The August 2005 IEP indicates that the student needed to "work on acceptance with authority and rules" (Dist. Ex. 49).  However, the CSE did not conduct the recommended testing or any other assessments to fully assess such needs.  Again, in the absence of a sufficiently comprehensive evaluation, the CSE could not recommend an appropriate program for the student for the 2005-06 school year.  Consequently, respondents have prevailed on the first criterion for an award of tuition reimbursement for the 2005-06 school year.⁵

            With respect to the second criterion for an award of tuition reimbursement, I am compelled to find that respondents have not demonstrated that placement of their son at Family Foundation for the 2005-06 school year was appropriate.  As set forth above, respondents did not demonstrate how Family Foundation addressed their son's mathematics, written expression, reading comprehension, organizational and processing deficits.

            Having determined that respondents have not met their burden of proving that placement of their son at Family Foundation was appropriate for the 2005-06 school year, the necessary inquiry is at an end and there is no need to determine whether equitable considerations support respondents' claim (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

            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 she found that Family Foundation was an appropriate placement for the student for the 2004-05 and 2005-06 school years, that equitable considerations supported respondents' claim for tuition reimbursement for those school years and to the extent that she awarded respondents tuition reimbursement for the 2004-05 and 2005-06 school years.