Application of the BOARD OF EDUCATION OF THE CARMEL 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
Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel
Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel
Petitioner, the Board of Education of the Carmel Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' daughter and ordered it to reimburse respondents for their daughter's tuition costs for a residential program at the Darrington Academy (Darrington) from May 2005 and continuing for the duration of the 2005-06 school year. The appeal must be sustained.
At the time of the impartial hearing, which was conducted on multiple dates in July and August 2005, the student was 15 years old. During the 2004-05 school year, she was in the tenth grade in the PACE life skills special education program at petitioner's Carmel High School (Carmel) until her unilateral placement at Darrington in May 2005 (Tr. pp. 138, 235-36, 581, 584; Dist. Exs. 3, 10). Darrington is located in Blue Ridge, Georgia and has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7). The student has cognitive delays that impede her academic progress and she needs teacher direction to stay focused on academic tasks (Dist. Ex. 10 at p. 4). She also has difficulties with distractibility and impulsivity that impede her school progress and affect her relationships with peers and adults (id.). The student was classified as other health impaired (OHI) until the 2003-04 school year, when her classification was changed to a student with an emotional disturbance (ED) (Dist. Ex. 17 at p. 4). The student's classification is not in dispute (see 8 NYCRR 200.1[zz]).
The student has lived with respondents since she was three years old (Tr. p. 209; Dist. Ex. 20 at p. 1). Respondent mother1 reported that the student encountered difficulties in kindergarten and was recommended for special education services in first grade (Tr. p. 211). A psychiatric evaluation report dated September 25, 1998 included results of administration of cognitive testing which yielded a verbal IQ score of 91, a performance IQ score of 73 and a full scale IQ score of 81 (Dist. Ex. 20 at p. 1). The psychiatrist who completed the report noted that the student had a past history of "significant difficulties with controlling her temper" (id.). At some point during the 1997-98 school year the student had been placed in a psychiatric hospital, where she was prescribed medication to assist in control of her behavior (Dist. Ex. 20 at pp. 1-2).
The student attended a general education program and received part-time special education services until November 1999, when the student was in fifth grade, at which time she was placed in a full-time special education program (Tr. pp. 216-18; Parent Ex. F). In February 2000, the student was placed on home instruction while arrangements were made for an intake interview at the Devereux-Glenholme School (Devereux), a special education program that provides a structured therapeutic environment (Parent Exs. C, F). In March 2000, the student's mother advised petitioner's Committee on Special Education (CSE) that the student was having difficulties at home, and requested that the CSE convene to recommend that her daughter be placed in Devereux's residential program (Tr. pp. 218-19; Parent Exs. D, E, G). The student was accepted into the Devereux residential program and the CSE convened on March 10, 2000 to recommend residential placement for the student at Devereux (Parent Ex. B).
The student completed the 1999-2000 school year at Devereux and remained there in 2000-01, 2001-02 and 2002-03 (Tr. p. 220). In March 2002, when the student was 12 years, four months old, and in the seventh grade at Devereux, a psychoeducational evaluation was conducted (Dist. Ex. 9, Parent Ex. O). Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ score of 78, a performance IQ score of 74, and a full scale IQ score of 74, indicating cognitive ability in the borderline range (Dist. Ex. 9 at p. 1, Parent Ex. O at p. 1). Administration of the Wechsler Individual Achievement Test (WIAT) yielded composite standard scores of 88 in reading, 72 in math and 85 in writing (Parent Ex. O at p. 1). A speech-language evaluation report completed that same month recommended speech-language services to address the student's deficits in auditory processing, memory, and comprehension of abstract language (Parent Ex. P at pp. 1, 3).
The CSE convened on March 26, 2003 for the student's annual review (Dist. Ex. 19). A social worker from Devereux participated in the meeting, and a written progress report from the student's planning team at Devereux was reviewed by the CSE (Dist. Exs. 18, 19). Notes from the CSE meeting indicated that the student had made progress in listening comprehension, had learned strategies to apply in the classroom, and had made progress in a small, structured environment (Dist. Ex. 19 at p. 4). Notes also indicated that the student was not progressing as anticipated and exhibited oppositional behaviors at home and in the classroom (id.). The CSE recommended that the student remain at Devereux's residential program to address her "significant therapeutic needs" and that the student and her mother begin to attend classes to prepare for eventual transition home (id.). The student's mother indicated that, although the student's behavior was problematic when she came home for visits, the problems were becoming less severe, and after her daughter had been at Devereux for four years, respondent requested that the student be returned home (Tr. pp. 221-22). In September 2003, when the student was in the ninth grade in the Devereux residential program, Devereux staff indicated that the student was ready to return to a less restrictive environment (Dist. Exs. 17, 18).
The CSE convened on September 10, 2003 to discuss the student's return and recommended placement in an "out of district special education therapeutic program" with related services of counseling and speech-language therapy (Dist. Ex. 17 at pp. 1, 4).
The student was discharged from Devereux on October 31, 2003 and on November 3, 2003, she was placed at Green Chimneys, a therapeutic day program (Parent Ex. S, Dist. Ex. 14 at p. 1; Tr. p. 95). On November 24, 2003, the student's mother requested that the CSE convene and recommend transitioning her daughter from Green Chimneys to petitioner's PACE program, a 12:1+1 special education program at Carmel (Dist. Ex. 13; Tr. pp. 57-58). Petitioner arranged for an observation of the student at Green Chimneys, after which the CSE convened on December 19, 2003 for a program review of the student and recommended that she begin the second semester of the 2003-04 school year at the PACE program with special class reading once per day for forty minutes, and that she receive related services of speech-language therapy twice per week for one hour in a small group and counseling once per week individually for one hour (Dist. Ex. 11A). The student's individualized education program (IEP) also included supports of refocusing and redirection, a positive reinforcement plan, modified grading and a modified curriculum, feedback for on-task behavior, and employment of multisensory learning strategies and attentional strategies in the classroom (Dist. Ex. 11A at pp. 1- 2).
The student transferred from Green Chimneys to the PACE program in February 2004 (Tr. p. 222) and reportedly made a good transition to the PACE program, was attending regularly and made progress toward her IEP goals (Tr. pp. 103-04). Although she continued to evidence behavior problems in the PACE program, her behaviors were considered to be related to her disability, and were managed effectively with the support of her counselor (id.). In a progress report dated April 15, 2004, one of the student's PACE teachers noted that the student was functioning on the same behavioral and social level as her classmates, but was struggling academically, due in part to her tendency to socialize with her friends in the classroom and also her failure to do homework (Dist. Ex. 11 at p. 1). Her other teachers also reported excessive socialization as well as inconsistent performance, failure to complete homework, and coming to class unprepared (Dist. Ex. 11). One teacher noted that the student made progress when focused but that her attention was erratic, and also noted that the student often did not eat breakfast before coming to class and was distracted by her focus on food (Dist. Ex. 11 at p. 3).
The CSE convened on April 15, 2004 for the student's annual review to develop the student's 2004-05 IEP for the student's tenth grade year (Dist. Ex. 10). Meeting notes indicate that the student's teachers and her counselor reported that the student's work had deteriorated during the year as she became more distracted by social matters (Dist. Ex. 10 at p. 4). For the 2004-05 school year, the CSE recommended continuation in the PACE program for tenth grade as well as continuation in special class reading, counseling and speech-language therapy (Dist. Ex. 10 at p. 1). The student's IEP also included continuation of the supports of refocusing and redirection, a positive reinforcement plan, modified grading and a modified curriculum, feedback for on-task behavior, and employment of multisensory learning strategies and attentional strategies in the classroom (Dist. Ex. 11A at pp. 1-2). References to a residential setting recommendation on the student's 2004-05 and 2005-06 IEPs (Dist. Exs. 10, 4) were clerical errors and the recommended placement on both was Carmel (Tr. pp. 117-19).
The student reportedly completed the first quarter of the 2004-05 school year with no difficulties, and was described as being less social and concentrating on her school work (Tr. pp. 143-44). On October 6, 2004, a psychological reevaluation of the student was conducted in preparation for her triennial review (Dist. Ex. 9). The evaluator reviewed the report of the March 2, 2002 evaluation conducted at Devereux and determined that the WISC-III conducted at that time was a valid measure of the student's cognitive ability, and re-administration of the WISC-III was not necessary at that time (id.).
The record reveals that the student began to exhibit increased difficulty maintaining focus at the end of the second marking period (Tr. pp. 143-44). Teachers in the PACE program addressed the student's off-task behavior through a progressive system of strategies developed for the PACE program, which involved coordination with the social worker who provided counseling services to the student (Tr. pp. 145-47).
During the third quarter of the 2004-05 school year, the student's behavior difficulties increased, primarily due to failure to complete homework and episodes of tardiness due to socialization (Tr. p. 562). Her teachers monitored her behavior and attempted various intervention strategies (Tr. pp. 146-47). In mid-January 2005, the student was reportedly involved in an episode of inappropriate activity with a boy in her class (Tr. pp. 363-64, 401-03, 458-59). The episode was investigated and could not be substantiated, although the student later admitted to her mother that the incident had occurred (Tr. pp. 401-03, 440, 602). Staff in the PACE program regarded this episode as typical for a student her age and reportedly the matter was handled as it would have been for any student at Carmel, as it was not considered to be directly related to the student's special education needs (Tr. pp. 106-07, 110-11). Respondent later expressed her concern about this incident, suggesting that her daughter felt scared and harassed in the classroom (Tr. p. 233; Parent Ex. L). The special education teacher, who provided instruction in reading, writing and math to the student, did not recall the student requesting to transfer out of his classes because of this boy (Tr. pp. 194-95). The social worker, who provided counseling services to the student in the PACE program, reported that the student never indicated that she did not feel safe (Tr. pp. 560, 605) and stated that, if the student had felt threatened "I would have known about it and I think the teachers would have been aware of it" (Tr. p. 563). Respondent reported harassment by this boy to the police (Parent Exs. N at p. 10, X). The record reveals that, at the time, the student was experiencing difficulties at home related to disagreement with her mother about a boyfriend from Devereux (Tr. p. 561).
On January 24, 2005, the student was assigned to Carmel's Alternative Learning Center (ALC) for a one day in-school suspension because she "reacted physically to a degrading comment of a fellow student" (Parent Ex. N at p. 4). Her PACE reading and math teacher indicated that it was not atypical for students to be sent to the ALC, but that respondent's daughter's episodes of suspension were "on the high end" (Tr. pp. 180-81).
On the day of the student's assignment to ALC, her mother requested an emergency CSE meeting, indicating that the student was having difficulties at home and was beginning to have difficulties at school (Parent Ex. M). Respondent requested that the CSE convene and recommend that the student be returned to a "therapeutic setting," stating that "I feel I cannot provide her with the individual and structured environment she desperately requires" (id.). The social worker indicated that she had learned from the student that respondent had involved the police in the student's escalating behavior at home (Tr. pp. 551-53).
The CSE convened on January 27, 2005 for a program review (Dist. Ex. 7, Parent Ex. Z). Notes from the review indicate that the student's mother expressed her concern regarding her daughter's "verbal abuse" at home and asked the CSE to remove her from the home (id.). Notes also indicate that the CSE reviewed the student's current level of educational performance and determined that her present placement was appropriate (id.). No changes to her educational program were recommended, but the CSE recommended that a psychiatric evaluation be conducted to assess the student's current emotional status (id.). Respondent stated that she no longer wanted her daughter in her home (id.). The record reveals that at this time the student's school counselor made arrangements for the student to be placed temporarily at Arbor House, a respite center from which she would continue to attend the PACE program (id.; see also Tr. pp. 549-50, 553). Respondent was reportedly "very much in agreement" to placement of the student at Arbor House and brought clothing to the school on the day of the referral to Arbor House so the student could be removed from the home immediately (Tr. pp. 549-50, 553). The student remained at Arbor House for the three weeks following the January 27, 2005 meeting, and then returned to respondent's home (Tr. pp. 231, 594).
Discipline reports completed in January, February and March 2005 indicate that the student was suspended from the library for approximately two weeks in January due to "improper behavior" (Parent Ex. N at p. 6), served eighth and ninth period detentions on January 31, February 1 and February 2 for "improper behavior" (Parent Ex. N at p. 7), and served an in-school suspension at the ALC on February 11, 2005 for "excessive tardiness to several of her classes" (Parent Ex. N at p. 1). A March 8, 2005 progress report from one of her PACE teachers noted the student's frequent tardiness and excessive socialization and indicated that she frequently did not complete her homework (Dist. Ex. 5). The progress report also noted that the student was able to finish her class work within time allotted and that her peer relationships were "very good" (id.).
On March 14, 2005, the student served an in-school suspension in the ALC for disrupting the class with "continual outbursts" (Parent Ex. N at pp. 9, 12). Anger management classes were recommended (id.) and were available at Carmel (Tr. p. 428), but the student only attended two sessions because she did not like participating in the sessions and she preferred to spend the time socializing with her friends (Tr. pp. 367, 650, 656).
In a letter dated March 23, 2005, a private counselor who provided therapy to the student approximately once every three weeks (Tr. p. 376) opined that the student's recent behavior problems should be addressed in a smaller classroom and recommended placement in a "therapeutic setting" (Parent Ex. H). On March 29, 2005, the student's mother requested an emergency CSE meeting, indicating that petitioner was unable to provide sufficient structure and that her daughter required a "therapeutic setting" (Parent Ex. L).
The CSE convened on April 4, 2005 for a program review and an annual review to develop her IEP for the 2005-06 school year (Dist. Ex. 4). The committee reviewed the student's current performance, noting that the student was making good progress toward her goals and fit well in the PACE program (Dist. Ex. 4 at p. 4). The CSE did not recommend a program change at the time, but considered making changes to the student's schedule to reduce the amount of unstructured time during her school day (id.). The student's family advocate from Arbor House was present at the meeting and agreed with this recommendation (Tr. pp. 564-65, 608-09). For the 2005-06 school year, the CSE recommended that the student continue in the PACE program for 11th grade and continue to receive counseling and speech therapy (id.). Specialized reading was not recommended for 2005-06 because of the progress the student had made in reading in 2004-05 (Tr. p. 81).
An April 22, 2005 IEP progress report indicated that the student had mastered seven of her IEP objectives, was progressing satisfactorily on 29 objectives, had made some progress on two objectives, and had not started two objectives (Dist. Ex. 2). The student's third quarter report card listed grades of 74 in math, 91 in science, 68 in social studies, 49 in writing, 82 in reading, 65 in health, 94 in chorus, 68 in a PACE transition class, 70 in music, and 60 in physical education (Dist. Ex. 3).
On May 13, 2005, the student served an in-school suspension in the ALC for frequent tardiness to her physical education class and for refusal to participate in the class (Parent Ex. N at p. 12). At the time, the student's teachers in the PACE program implemented one of PACE's behavioral strategies, referred to as "daily reports" (Tr. p. 147), which required the student to have each teacher sign a sheet verifying her attendance, with loss of free periods as a consequence for tardiness (Parent Ex. N at pp. 15-17; Tr. p. 545). The student's teachers reported that this system appeared to be effective because the student's behaviors improved and in May 2005 her physical education teacher believed they were "progressing in the right direction" (Tr. pp. 147-50, 494). In May 2005, the student came to school and announced that she was leaving Carmel in two days to attend Darrington (Tr. pp. 138, 569-70, 581, 584). The student thereafter attended Darrington beginning in May 2005 pursuant to respondents' unilateral placement (Tr. pp. 235-36).
In a letter dated June 2, 2005, respondents objected to the CSE's recommendation and requested an impartial hearing to seek a therapeutic placement for their daughter (Parent Ex. K). Tuition reimbursement for Darrington was requested at a preliminary conference on June 16, 2005 (IHO Decision, p.1 n.1).
The impartial hearing commenced on July 12, 2005 and concluded on August 17, 2005 after four days of testimony. Petitioner argued at the hearing that the IEP in dispute, the April 4, 2005 IEP, recommended a program that was appropriate in light of the student's prior progress in that program, and that the IEP met the procedural and substantive requirements of the Individuals with Disabilities Education Act (IDEA). Additionally, petitioner argued that Darrington was an inappropriate placement because the student was not appropriately grouped, was not provided with appropriate instruction, and was in a program that was not appropriate to meet her needs as a student with an ED classification. Respondents argued that the PACE program at Carmel became inappropriate for the student starting in December 2004 because it failed to address her behavioral and social/emotional needs, which resulted in her absences and placement in in-school suspension. Respondents argued that Darrington was an appropriate placement to address her attendance problems, as well as her behavior related to frustration and her need for anger management, and requested tuition reimbursement for the $36,000 annual cost of the program.
As set forth in more detail below, the impartial hearing officer held that the April 4, 2005 IEP failed to offer respondents' daughter a free appropriate public education (FAPE), that Darrington was an appropriate placement and that equitable considerations favored tuition reimbursement to respondents (IHO Decision, pp. 8-20).
Petitioner appeals and asserts that the impartial hearing officer erred in determining that petitioner failed to offer a FAPE to respondents' daughter, that Darrington is an appropriate placement and that equitable considerations support tuition reimbursement. Specifically, petitioner contends that 1) the IEP for the student was procedurally appropriate because evaluations and observations were reconsidered within the last three years and that a functional behavioral assessment (FBA) was not required; 2) the IEP was substantively appropriate and the student had shown prior progress in the same program; 3) Darrington was inappropriate because the student was not adequately grouped, was given inadequate instruction and her social and emotional needs were not addressed; and 4) the equities do not favor respondents. Petitioner seeks reversal of the impartial hearing officer's award of tuition reimbursement to respondents from May 2005 through the 2005-06 school year, and also appeals the impartial hearing officer's directive to petitioner to reevaluate the student and to forward the results to Darrington.
A purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)2 is to ensure that students with disabilities have available to them a 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]).3 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. 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).
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]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; 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, Notice of Interpretation, Question 1). An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iii]).
A CSE must have adequate and timely evaluative data to prepare an appropriate IEP for a child (Application of the Bd. of Educ., Appeal No. 99-94; Application of a Child with a Disability, Appeal No. 99-05; see Application of a Child with a Handicapping Condition, Appeal No. 91-25). Consistent with this, a CSE must arrange for an appropriate reevaluation of each student with a disability if conditions warrant a reevaluation, or if the student, parent, or teacher requests a reevaluation, but at least once every three years (34 C.F.R 300.536[b]; 8 NYCRR 200.4[b]). The obligation for a reevaluation is not optional (Application of a Child with a Disability, Appeal No. 97-34). A reevaluation must be sufficient to determine the student's individual needs, educational progress and achievement, ability to participate in the regular education program, and continued eligibility for special education (8 NYCRR 200.4[b]; Application of the Bd. of Educ., Appeal No. 99-94; see also Application of a Child with a Disability, Appeal No, 96-3; Application of the Bd. of Educ., Appeal No. 94-43). The results of any reevaluations must be addressed by a CSE in reviewing and revising a student’s IEP (8 NYCRR 200.4[d]). As part of a reevaluation, existing evaluation data shall be reviewed, and on the basis of that review (along with input from the parent), a determination made as to what additional data are needed to determine, inter alia, the present levels of performance and educational needs of the child and whether any additions or modifications to the special education services are needed (8 NYCRR 200.4[b]). If additional data are not needed, the school district must notify the parents of that determination and the reasons for it (8 NYCRR 200.4[b][iv]).
Petitioner asserts that the April 4, 2005 IEP was developed in a manner consistent with IDEA requirements and appropriately reflected the student's current needs. I agree. The impartial hearing officer determined that the CSE that convened on April 4, 2005 to prepare the student's 2005-06 IEP relied upon evaluations and testing that did not reflect the student's present needs (IHO Decision, p. 9). The impartial hearing officer noted in particular that the psychoeducational evaluation of the student relied upon by the CSE was dated March 3, 2002, and that petitioner's reevaluation contained no new testing; that an October 6, 2004 observation of the student was conducted at Green Chimneys during a one-to-one tutoring session and did not provide any information regarding the student's ability to function in a 12:1+1 environment; that a psychiatric report dated September 25, 1998 was too old to be of value in assessing current needs; and that the social history update dated January 13, 2005 was inadequate (IHO Decision, pp. 9-10).
A psychological reevaluation was performed on October 6, 2004 (Dist. Ex. 9). The student's classification, current program and cognitive functioning, as reported from testing on March 3, 2002, were noted (id.). The school psychologist analyzed the student's psychological record and determined that "another cognitive assessment is not deemed necessary at this time" (id.). "Whenever a school psychologist determines that a psychological evaluation is unnecessary, the psychologist shall prepare a written report of such assessment, including a statement of the reasons such evaluation is unnecessary, which shall be reviewed by the committee" (8 NYCRR 200.4[b]). The written report of the psychological reevaluation satisfied petitioner's duties with regard to a psychological evaluation in this case (see 8 NYCRR 200.4[b]).
The IEP developed by the CSE on April 4, 2005 does not list the December 11, 2003 observation or the 1998 psychiatric evaluation among the documents considered by the CSE (Dist. Ex. 4). Regarding the impartial hearing officer's determination that the December 11, 2003 observation of the student was not reflective of the student's performance in a 12:1+1 classroom, I find that the failure to conduct an updated classroom observation for the CSE's review of the student's status at the time the 2005-06 IEP was developed did not render the IEP inappropriate. A new classroom observation was not required for the April 2005 annual review (8 NYCRR 200.4[b]). The CSE had sufficient information regarding the student's current functioning in the 12:1+1 setting of the PACE program, as it had access to recent progress reports from the student's special education teachers and her counselor, containing detailed information about the student's strengths and weaknesses (Dist. Ex. 5). The CSE also reviewed a progress report from the speech-language therapist who was providing speech-language services to the student during the 2004-05 school year (Dist. Ex. 4 at p. 4), and had input from the social worker who provided counseling to the student while she attended classes and who attended the April 4, 2005 annual review (id.). Additionally, one of the student's teachers from the PACE program participated in the April 4, 2005 annual review and was available to provide any needed information regarding the student's current functioning (id.). Although there are no recent standardized test results in the record to update the results in the March 3, 2003 educational evaluation conducted at Devereux, the CSE had access to the student's January 28, 2005 report card, and a special education teacher of the student, as well as petitioner's special education department chairperson, were present at the meeting and available to interpret report card grades within the structure of the modified curriculum of the PACE program (id.).
Regarding the student's need for a psychiatric evaluation, a psychiatric progress report was prepared in October 2003, just prior to the student's discharge from Devereux, at a time when Devereux staff considered the student ready to return to a less restrictive setting, and the reporting psychiatrist described the student as "stable and in no acute distress" (Dist. Ex. 16). This description is consistent with observations of staff in the PACE program, who considered the student's episodes of acting out to be consistent with her age and disability and not indicative of a deteriorating condition which would require the CSE to recommend an updated psychiatric evaluation (Tr. pp. 75, 89, 103-04, 106-07, 410-11, 539-40, 657). Petitioner's director of pupil services testified that the student was "doing well" at Carmel (Tr. p. 89) and that the student "continued to have the same kinds of issues she's exhibited since she became a student but had transitioned nicely into the program and we didn't see any changes" (Tr. p. 75). Although the record reflects social-emotional concerns related to the student's difficulties with her relationship with her mother (Tr. pp. 548-539, 590-94, 614-15, 646), the record does not reveal that the student was exhibiting symptoms at school which warranted a psychiatric evaluation.4
The impartial hearing officer accurately noted that the social history update questionnaire completed by the student's mother was inadequate (IHO Decision, p. 10); however, I do not find that this affected the CSE's determination of the student's needs in this case. The social history update questionnaire is a four-page document (Dist. Ex. 8), completed by the student's mother on January 13, 2005, at a time the record reflects reports of a significant deterioration in the relationship between the student and her mother (Dist. Ex. 7, Parent Exs. L, M, N at p. 10, Z; Tr. pp. 113, 172, 181, 206-07, 548-53, 554, 603, 614-15, 646, 649). In testimony, petitioner's social worker explained that the initial social history is completed in an interview with a parent and updates are completed via a questionnaire (Tr. p. 659). She also explained that a meeting would be arranged if a parent requested an opportunity to discuss specific information (id.). While I concur with the impartial hearing officer's determination that the social history update form contained insufficient information, I do not find that the lack of information on the form hindered the CSE's development of an appropriate IEP under the circumstances presented herein. Testimony by the student's mother indicates that she was in frequent contact with her daughter's special education teachers and with petitioner's social worker (Tr. pp. 378-79) and that they were aware of respondent's concerns. Testimony by the social worker indicates that she had frequent conversations with the student's mother (Tr. p. 570) and that she had developed a rapport with the student (Tr. p. 540), such that she was aware of conflicts between the student and her mother (Tr. p. 548) and that she was, in fact, instrumental in assisting the family during a crisis at home by making arrangements for the student to be placed in a respite program at Arbor House (Tr. pp. 549-50, 553). I do not concur with the impartial hearing officer's observation that the brevity of respondent's written responses on the January 13, 2005 social history update questionnaire indicated that the document "may have been completed with difficulty" (IHO Decision, p. 10), as there are several letters from respondent in the record which clearly demonstrate her ability to articulate her concerns in writing to petitioner (Parent Exs. D, E, F, G, K, L, M, N at p. 10). Further, respondent testified that, in the seven years that her daughter had been classified, whenever she did not understand a document she received from the CSE, "I questioned it, absolutely" (Tr. p. 371). In summary, I find that the formulation of the April 4, 2005 IEP adequately complied with the procedural requirements of the IDEA and that the resulting substantive program reflected the student's needs.
Petitioner also asserts that the IEP developed on April 4, 2005 was substantively appropriate. I agree. The impartial hearing officer determined that the student's 2005-06 IEP was not substantively appropriate, citing "substantial evidence that [the student] was not regularly attending class, completing assignments, and relating appropriately to peers and staff" (IHO Decision, p. 12). A careful examination of the record reveals that, while the student had made a successful transition to Carmel (Tr. pp. 75, 103-04, 540), had positive and appropriate relationships with staff (Tr. pp. 485, 540) and classmates (Tr. pp. 545, 587), and was an "eager participant" in the PACE program (Tr. p. 88), she was frequently tardy to classes (Tr. pp. 541, 180-81). Her late arrival to classes was not due to the inadequacy of her IEP, but was instead the result of her excessive social interactions (Tr. pp. 541-44, 562). The record also reveals that the PACE program had appropriate methods in place within its program structure to address this concern (Tr. pp. 542, 545-46).
The impartial hearing officer's determination that the number of disciplinary actions taken against the student were an indication that the student's 2004-05 IEP was not substantively appropriate is not supported by the record (IHO Decision, p. 12). The record reveals that the student's first disciplinary suspension occurred on December 1, 2005, when she was assigned to the ALC for eighth and ninth period (Dist. Ex. N). In January and early February 2005, she received eighth and ninth period detention for three consecutive days (id.) and also in January she was suspended from the library for two weeks (id.). She received in-school suspension at the ALC for the entire school day on January 24, 2005, February 11, 2005, March 12, 2005, March 14, 2005, and May 12, 2005, and received a fifth period suspension on May 3, 2005 (id.). The record does not indicate how many days per week the student was scheduled to be the library prior to her two-week suspension, but remaining suspensions resulted in a total of five days and nine class periods, all of which coincided with the time staff in the PACE program became aware that the student was experiencing significant difficulties interacting with her mother at home (Dist. Ex. 7, Parent Exs. L, M, N at p. 10, Z; Tr. pp. 113, 172, 181, 206-07, 548-53, 554, 603, 614-15, 646, 649). I further note that, although the impartial hearing officer concluded that the student's removal from class for disciplinary purposes resulted in time away from special education instruction, the record indicates that teachers provided assignments for their students to complete while they were assigned to the ALC (Tr. p. 419).
I also concur with petitioner's assertion that the CSE was not required to conduct an FBA of the student and that the student's behavior did not impede her learning or that of other students. Although there is substantial information in the record indicating that during the second half of the 2004-05 school year, the student's behavior at home was causing significant difficulties for the student and her mother (Dist. Ex. 7, Parent Exs. L, M, N at p. 10, Z; Tr. pp. 113, 172, 181, 206-07, 548-53, 603, 614-15, 646, 649), the record also indicates that the student's behavior at school, while inconsistent, was not considered by staff to rise to the level which required additional behavior intervention beyond what her program already offered (Tr. pp. 75, 89, 103-04, 106-07, 410-11, 539-40, 542, 657). Petitioner's dean of students testified that she did not refer the student to the CSE to address her behavior because other options were available to address the student's behavior before CSE referral would be considered and because the student's behaviors "did not stand out to me in the PACE program" (Tr. pp. 411, 438).
The record reveals that the PACE program included a behavior management component with a progression of strategies that could be implemented as the student's behavior deteriorated (Tr. pp. 145-47, 434-35, 542, 628-29, 631). The social worker who provided counseling services to the student testified that, although the student's behavior was erratic, her teacher was able to address these behaviors within the classroom and at times the student was able to successfully employ strategies she had learned in the PACE program (Tr. p. 598). She also noted that the PACE class consisted of only six or seven students and that there were sometimes two aides in the class instead of one, so that students were closely monitored (Tr. pp. 646-47).
The student's special education teacher for reading, writing and math described how the student's off-task behavior was addressed based on teacher assessment of her current situation, and how the student's counselor was involved in this process (Tr. pp. 145-46). He noted that the student began to experience greater difficulties at the end of the second quarter and in the third quarter of the 2005-06 school year and began refusing to do homework (id.) The special education teacher testified that, on four or five occasions during the third quarter, the student "came in so upset that I knew she couldn't even sit in the class" (Tr. p. 146) and indicated that she had been "fighting with mom last night until 2 o'clock in the morning, 3 o'clock in the morning" (id.). The special education teacher described how PACE program staff monitored the student's deteriorating behavior and implemented strategies to address her increasing need for structure (Tr. pp. 145-47). In March and April 2005, a behavior modification plan was implemented in which the student used daily progress sheets to document her attendance and would lose her free period if she arrived late to a class (Tr. pp. 391, 488-89, 599). The daily reports were effective, and the student's behavior, attendance and academic performance improved (Tr. pp. 147-49, 183, 477-80, 486, 545-46). Petitioner's physical education teacher, who had experienced particular difficulty with the student in his ninth period physical education class, testified that he observed improvement in the student's behavior and performance, and opined that in May 2005, the student was "progressing in the right direction" (Tr. p. 494). Her special education teacher for reading, writing and math testified that the PACE teachers were pleased with the student's response to adjustments in her program and opined that PACE would have been an appropriate placement for the student in 2005-06 (Tr. p. 157). He also testified that, although the student's behavior improved with the implementation of daily report sheets, her behavior deteriorated during her last two weeks in the program, when she began to talk about her mother's threats to send her away (Tr. p. 162). In summary, the PACE program's behavior management component was appropriate to address the student's behaviors and the CSE was not mandated to perform an FBA under the circumstances presented.
Upon review of the record, I find that the IEP developed by the CSE on April 4, 2005 for the 2005-06 school year was developed on the basis of sufficient information to allow the CSE to identify the student's current levels of performance and that it recommended a program that was reasonably calculated to address her unique educational and social-emotional needs in the academic setting. I further find that the PACE program recommended by the IEP provided a small, structured program which allowed for close monitoring of the student's progress, and that despite significant emotional difficulties experienced by the student in her home, the program included sufficient structure and strategies to address her increasing emotional needs in the classroom as they were affected by her home situation. I note that the student's mother did not object to the 2004-05 IEP or to her daughter's placement in the PACE program until January 2005, when she was no longer able to tolerate her daughter's behavior at home. I also note that despite the impact of her home situation on her academic performance, the PACE program allowed the student to make progress toward achieving her IEP goals and objectives and to achieve passing grades in a modified curriculum which would have allowed her to achieve an IEP diploma had she remained in the PACE program.
Having determined that the challenged IEP was appropriate, and that petitioner offered a FAPE to the student for the 2005-06 school year, I need not reach the issue of whether or not Darrington was an appropriate placement (M.C. ex rel. Mrs. 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. 05-038; Application of a Child with a Disability, Appeal No. 03-058). However, in the instant case I have reviewed the record regarding the parents' placement and do find that the unilateral placement was inappropriate. Respondents had the burden of proving that the services to be provided to their daughter at Darrington were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program 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 least restrictive environment (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]).
Even if I had found the student's 2005-06 IEP to be inappropriate, I would be compelled to deny tuition reimbursement for respondents' unilateral placement of their daughter at Darrington. Upon review of the record, I concur with petitioner's assertion that Darrington's program was not appropriate to meet the student's academic, social-emotional and behavioral needs related to her disability.
The academic curriculum employed by Darrington is a commercial teaching program identified by the Darrington representative as the "Alpha Omega" program, which the Darrington representative described as a program for "nationally accredited high school distance learning" which Darrington "adapted …to use here in our school as a server based instructional media" (Tr. p. 285). Academic instruction is "self-paced" and individualized for each student with "no textbook, everything is on the computer" (Tr. p. 248). The amount of direct teacher instruction "depends on the student" (Tr. pp. 285-86) and teachers provided supplemental instruction through tutoring (Tr. pp. 287-88). Instruction is provided in groups of "20 or less" (Tr. p. 251). The student noted that there were approximately 17 other students in her class, while also commenting that "[i]t's not really a class … I do all my work on the computer" (Tr. pp. 359-60).
The student has been diagnosed as having an attention deficit hyperactivity disorder (ADHD) (Dist. Ex. 20) and her IEPs indicate that her distractibility impedes school performance and she requires "teacher direction to stay focused on academic tasks" (Dist. Ex. 4 at p. 3, Dist. Ex. 10 at p. 3). Her IEPs also state that the student was successful when instructed in small groups (id.). The Darrington program as described by the Darrington representative does not meet the student's need for instruction in a small group with teacher direction to assist her with remaining focused.
Regarding the behavior programs established at Darrington, the school's representative testified that "it's more of an in-house program that's kind of a conglomeration of various types of programs" (Tr. p. 281), further stating that "I don’t know who did the research but I know it's been researched a thousand times" (Tr. p. 282). As part of this program, each morning, students participate in a "character building program" (Tr. p. 246) in which students read to one another from "approved reading… material" which includes "motivational books…or just novels for an hour" (Tr. p. 247). I also note that respondents removed their daughter from petitioner's PACE program after asserting repeatedly that, due to difficulties involving the student's behavior at home, she required a "therapeutic setting" (Parent Exs. K, L, M). The Darrington representative testified emphatically that Darrington is "not a therapeutic program" and did not have "staff therapists, psychiatrists or counselors" who could provide therapeutic services to the student (Tr. p. 295). The student's mother testified that she was not aware that Darrington was not a therapeutic program or a special education program when she placed her daughter there, but that she knew Darrington did not have psychologists or psychiatrists on staff (Tr. p. 374). She testified that she was advised by Darrington staff that clinical services would be available for her daughter, stating "they explained to me that they can get someone to come in" (id.). Although the Darrington representative testified that students could be referred for private therapy, he indicated that these services were not part of the school's program (Tr. p. 295). Respondent testified that her daughter was not seeing a social worker at Darrington (Tr. p. 376), and a Darrington staff member who provided oversight to the student's program testified that the student had not been referred for private therapy (Tr. p. 336).
Petitioner asserts that Darrington is also inappropriate because the student is not appropriately grouped with students who have similar needs. I concur. The Darrington representative testified that Darrington received no referrals from public schools (Tr. pp. 269-70), that approximately ten percent of the students at Darrington had been placed there through courts as a result of criminal activity and that several parents had placed their children at the school when they realized that their children had been involved in "criminal activity or vandalism or something like that" (Tr. pp. 270-71). Respondents' daughter was the only student at Darrington who was classified ED (Tr. p. 262).
In summary, testimony from staff in the PACE program supports petitioner's assertion that the student had successfully transitioned from the therapeutic residential program at Devereux (Tr. pp. 75, 103-04), was an "eager participant" in the PACE program (Tr. p. 88) and was appropriately placed there (Tr. pp.156-57). Although the student experienced significant difficulties at home during the second half of the 2004-05 school year, I find that these difficulties were referenced throughout the record as primarily related to issues arising at home, did not affect her academic performance to a degree that the structure of the PACE program could not address any difficulties in the academic environment, and did not warrant placement in a residential program such as Darrington.
Accordingly, based upon my examination of the entire hearing record, I find that the evidence is not in equipoise and that the evidence demonstrates that respondents' daughter was offered a FAPE and that Darrington was not an appropriate placement.
I have considered petitioner's and respondents' remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED.
1 Both of the student's parents are respondents in this matter. All references to a singular respondent refer to the student's mother.
2 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.
3 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; see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].
4 In January 2005, when the CSE convened at respondent's request that the committee address conflicts at home, it recommended a psychiatric evaluation in response to respondent's assertion that her daughter should be placed in a therapeutic setting but determined that the student's educational program continued to meet her needs (Dist. Ex. 7 at p. 4, Parent Exs. M, Z). The CSE did not have an updated psychiatric evaluation at the student's April 4, 2005 annual review because, although the CSE recommended a psychiatric evaluation in January 2005, in response to respondent mother's request for a therapeutic placement, respondent did not provide a signed consent for the evaluation until April 4, 2005, the date of the student's annual review (Dist. Ex. 1).