Application of the NEW YORK CITY DEPARTMENT OF EDUCATION, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary S. Steuer, Esq., of counsel
Petitioner, the New York City Department of Education (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 psychotherapy costs with a private therapist for the 2005-06 school year. The appeal must be sustained.
The impartial hearing occurred on December 19, 2005 (Tr. pp. 1, 7). At that time, the student was 17 years old and attending 12th grade at Bishop Ford Central Catholic High School (Bishop Ford) (Tr. pp. 26, 97, 113). The student's diagnosis of bipolar disorder, mixed, was confirmed when she was 12 years old and she currently takes medication to stabilize her moods (Dist. Ex. 1 at p. 1.2; Dist Ex. 3 at p. 3.1; Parent Ex. P-9). The student's IQ is in the "superior range" (Dist. Ex. 6). Despite relative weaknesses in attention and memory, the student performs within the average range on tests of achievement (id.). The student's eligibility for special education programs as a student with an emotional disturbance is not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
Respondents initially referred the student to petitioner's Committee on Special Education (CSE) in January 2002 (Dist. Ex. 2 at p. 2.0). At that time, the student was 13 years old, attending ninth grade at a parochial school, and hospitalized at an adolescent psychiatric ward following a "suicidal gesture" (Tr. pp. 142-43; Dist. Ex. 2 at p. 2.0). The student had been receiving private psychotherapy from the same clinical social worker (private therapist) since she was eight years old to address emotional problems stemming from traumatic childhood experiences (Dist. Ex. 1 at p. 1.1; Dist. Ex. 3 at pp. 3.0-3.1). Based upon the record, it appears that at some time between February 2002 and November 2004, the student's private therapist became a licensed clinical social worker (compare Dist. Ex. 3 at p. 3.3 with Dist. Ex. 8 at p. 8.4). The student was discharged from the hospital on January 31, 2002 (Parent Ex. P-12 at p. 2).
Although the record contains little information regarding the initial referral to petitioner's CSE in January 2002, the student began attending the Devereux Glenholme School (Glenholme) in Connecticut in April 2002 at district expense (Dist. Ex. 25 at p. 25.1).
On May 10, 2004, petitioner's CSE convened for the student's annual review (Tr. pp. 36-37, 113-14; Dist. Ex. 4). The CSE recommended that the student be classified as a student with an emotional disturbance, be placed in a 12:1+1 special class in a special school, and receive counseling once weekly for 60 minutes (Tr. p. 38; Dist. Ex. 4 at pp. 4.0, 4.7-4.9). The individualized education program (IEP) generated for the 2004-05 school year indicated that the student functioned at grade level, except in math, which was difficult for her (Dist. Ex. 4 at p. 4.2). It further indicated that the student continued to make progress toward her behavioral and social goals, that her peer and adult relations had improved, and that she had made progress in her ability to accept feedback from others (Dist. Ex. 4 at p. 4.3). The IEP contained goals and objectives related to effective class participation and improving writing skills (Dist. Ex. 4 at pp. 4.5, 4.6). The committee recommended that the student receive extended time (double) for assessments (Dist. Ex. 4 at p. 4.9).
The IEP identified the following behaviors as interfering with learning: impulsivity, self-destructive behavior, and non-compliant behavior (Dist. Ex. 4 at pp. 4.3, 4.11). The IEP indicated that due to the student's significant emotional behaviors and management needs, she required highly intensive supervision in a residential setting (Dist. Ex. 4 at pp. 4.3, 4.7, 4.8). Therefore, the CSE recommended that the student remain at Glenholme for the 2004-05 school year (11th grade) (Dist. Ex. 4 at p. 4.0).
The record suggests that at some time after the CSE meeting in May 2004, respondents learned that although the student could remain at Glenholme during the summer 2004, she would exit the school in August 2004 (Tr. p. 106). At respondents' request, the student underwent a psychoeducational reevaluation by a private psychologist on June 1 and 2, 2004, and an evaluation by her private therapist (Dist. Ex. 6; Dist. Ex. 8 at pp. 8.0-8.1). The record reveals that respondents requested the evaluations because they "hop[ed] to transfer [the student] to a less restrictive educational environment, and one that is academically challenging, but able to provide emotional and individualized support" (Dist. Ex. 6 at p. 6.0). Both respondents and the student's private evaluators had expressed concern regarding her readiness to return to a mainstream school, but respondents opted to unilaterally enroll her in the mainstream general education program at Bishop Ford (Tr. pp. 99, 119-20; Dist. Ex. 8 at p. 8.1). The student's mother and private therapist indicated that they feared the student would run away if she were placed in a special education program (Tr. pp. 101, 107). Respondents testified that they attempted to contact petitioner over the 2004 summer to assist with their daughter's placement, but staff was not available (Tr. pp. 106-07, 115). It is unclear from the record when respondents initiated the process of enrolling the student at Bishop Ford (Dist. Ex. 23; Parent Ex. P-2).
It is also not clear from the record when petitioner became aware of respondents' decision to enroll the student at Bishop Ford for the 2004-05 school year, except that petitioner received a letter on November 18, 2004, from respondents requesting a meeting to "discuss services appropriate" for the student's needs (Dist. Ex. 5 at p. 5.0). Respondents testified that they also sought a CSE review in order to obtain financial aid to assist with the cost of the student's privately obtained psychotherapy (Tr. pp. 114-15, 117).
As requested, the CSE met on November 30, 2004 and reviewed current evaluations of the student, as well as her status at Bishop Ford (Tr. pp. 38-46). As part of its review, the CSE considered a letter, dated November 22, 2004, from the student's private therapist in which she indicated that the student had assimilated well to Bishop Ford, but was already showing signs of the work overwhelming her (Dist. Ex. 8 at p. 8.3). Specifically, the private therapist stated in the letter that "I have noticed her commitment wavering as the distractions of teenage life, boys, clothes, friends, cell phones, and her own personal and family issues get in the way" (Dist. Ex. 8 at pp. 8.1-8.2). She stated that the student would require one-to-one tutoring in order to keep her grades up and opined that if the student failed at Bishop Ford, it would be a major set back for her, both emotionally and academically (Dist. Ex. 8 at p. 8.3).
In the November 22, 2004 letter, the private therapist stated that she was the only adult in the student's life that the student trusted and that the possibility of seeing another therapist was "out of the question, if only for the trust issue" (Dist. Ex. 8 at p. 8.3). Among other things, the private therapist opined that it was essential for the student to continue twice weekly psychotherapy sessions (Dist. Ex. 8 at p. 8.4). She noted that the student still met the criteria for a child with special needs and that in the future it might be necessary for the board of education to find a more restrictive "location" for her (Dist. Ex. 8 at p. 8.4). The private therapist further noted that the student had difficulty in Spanish class, which should be addressed, "as it could seriously damage what so far is an excellent academic performance" (Dist. Ex. 8 at p. 8.4). The private therapist suggested the student's academic performance and homework would be improved with the use of a laptop (id.).
With respect to the student's "social/emotional performance," the student's November 30, 2004 IEP indicated that she was performing "exceptionally well" in her school subjects, but also indicated that the student was experiencing "turmoil . . . around issues of identity and her strong desire to be more of her own person" (Tr. pp. 42, 43-44; Dist. Ex. 9 at pp. 9.2, 9.3). The CSE recommended that she be classified as a student with an emotional disturbance and placed in general education classes at George Westinghouse High School (Tr. p. 40; Dist. Ex. 9 at p. 9.0; Dist. Ex. 10). In comparison to the May 2004-05 IEP, however, the November 2004 IEP did not identify behaviors as interfering with the student's learning (compare Dist. Ex. 4 at p. 4.11, with Dist. Ex. 9).
Based upon the student's evaluations and discussions during the November 30, 2004 CSE meeting, the committee recommended that the student's individual counseling be reduced from 60 minutes, once per week, to 30 minutes, once per week (Tr. pp. 38-46, 53-54; compare Dist. Ex 4 at p. 4.9, with Dist. Ex. 9 at 9.8; Dist. Ex. 10). Respondents attended the CSE meeting and did not object to or raise concerns regarding the reduction of counseling services (Tr. pp. 115-18). The CSE recommended the following assessment modifications: extended time (double), separate location, and calculator permitted (Dist. Ex. 9 at p. 9.8).
On December 1, 2004, respondents rejected petitioner's proposed placement as an unacceptable "location" for the student, indicating that they intended to keep the student enrolled in Bishop Ford and that they wanted the counseling services recommended by the CSE to be provided by petitioner (Tr. pp. 118-19; Dist Exs. 11, 12). Respondents did not contact or visit the recommended placement before declining it, as the student's father noted that he had previously worked at the recommended school and was familiar with it (Tr. pp. 150-51). The student's mother confirmed that at the time of the CSE meeting, they did not want a public school setting for the student (Tr. p. 116).1 The student remained at Bishop Ford for the 2004-05 school year.
As of April 2005, the following represented the student's grades in her classes at Bishop Ford: English III 85, Spanish III 55, Math II AB 82, Chemistry 86, US History/Government 86 (Dist. Ex. 13). The student's private therapist referred her for a foreign language aptitude evaluation because she continued to perform poorly in Spanish (Dist. Ex. 14 at p. 14.0). Based on the student's performance on the Modern Language Aptitude Test, the evaluator recommended that the student be exempt from a foreign language requirement (Dist. Ex. 14 at p. 14. 2).
By letter to the CSE dated June 9, 2005, respondents requested a CSE meeting to revise the student's IEP (Tr. pp. 135-36; Parent Ex. P-1). The letter noted that several required items on the student's 2004-05 IEP had not been provided, including extended time provisions for examinations (including the SAT), counseling for 30 minutes once per week, and other related services (Parent Ex. P-1). The letter further indicated that based on the results of recent testing, respondents would be seeking an exemption from the foreign language requirement for the student (Parent Ex. P-1). Finally, respondents stated that they were seeking tuition reimbursement for Bishop Ford, as well as the continuation of reimbursement for privately obtained psychotherapy services (Parent Ex. P-1). The letter did not indicate for which year respondents were seeking tuition reimbursement (id.).
On June 24, 2005, the CSE met with the parents for an "informal" meeting (Tr. p. 149; Dist. Ex. 17). Respondents expressed concern over the student's academic performance in foreign language (Tr. p. 25). Minutes from the meeting reflect that respondents were advised that the extended time provisions for examinations and the counseling were already on the 2004-05 IEP, and that respondents needed to request in writing a speech language evaluation to address the request for a foreign language exemption and an assistive technology evaluation to determine if the student warranted the provision of a laptop computer (Dist. Ex. 17 at p. 2).
The student underwent a speech language evaluation in July 2005, which indicated that the student's language skills were at an appropriate level and there was no indication that the student's difficulty in foreign language was the result of a language disorder (Tr. p. 68; Dist. Ex. 18 at pp. 18.1-18.2).
The CSE met on July 26, 2005 for an annual review of the student's program for the 2005-06 school year (Dist. Ex. 19). The CSE reviewed student evaluation forms completed by the student's teachers at Bishop Ford in June 2005, which examined three areas of school performance: academic functioning, work habits/prevocational skills, and social/emotional skills (Dist. Ex. 15; Parent Ex. P-19). The Bishop Ford teachers rated the student's performance in her core academic classes as "good" to "excellent" on the following measures: keeping pace with instruction, classroom participation, quality of class work, classroom test results, quality of homework, and report card grades (Dist. Ex. 15; Parent Ex. P-19). Exceptions were noted in math, where the student's ability to keep pace with instruction was rated as "fair," and in math and chemistry, where the student's classroom test results were rated as "fair" (Dist. Ex. 15 at pp. 15.2, 15.3; Parent Ex. P-19 at pp. 2, 3).
The Bishop Ford core academic teachers also rated the student as demonstrating "good" to "excellent" work habits/prevocational skills, which encompassed attendance, punctuality, ability to work independently, concentration/attention to task, organization of work, and ability to complete assigned tasks (Dist. Ex. 15 at pp. 15.1-15.4; Parent Ex. P-19 at pp. 1-4). Social/emotional skills rated by the student's teachers included ability to cope with frustration, cooperation with peers, cooperation with authority, reaction to constructive suggestions, and leadership qualities (Dist. Ex. 15; Parent Ex. P-19). The student's social studies and chemistry teachers rated the student as possessing "good" to "excellent" skills in these areas, as did the student's math teacher, with the exception of ability to cope with frustration, which he rated as "fair" (Dist. Ex. 15 at pp. 15.1-15.3; Parent Ex. P-19 at pp. 1-3). The student's English teacher rated all of the student's social/emotional skills as "fair" and indicated that the student seemed to become easily frustrated when she wasn't praised all the time (Dist. Ex. 15 at p. 15.4; Parent Ex. P-19 at p. 4).
The student's chemistry teacher reported that the student's grades decreased as the year (2004-05) went on and, despite acknowledging difficulty, the student did not seek extra help (Dist. Ex. 15 at p. 15.2; Parent Ex. P-19 at p. 2). The student performed poorly in Spanish, leading her teacher to comment that "perhaps [the student] is one of the few who cannot grasp a foreign language" (Dist. Ex. 15 at p. 15.0; Parent Ex. P-19 at p. 5). The student received the following final grades for the 2004-05 school year: Math II AB 81, English III 85, and Spanish 51 (Dist. Ex. 28). Her report card reflected an overall GPA of 81.498 (Dist. Ex. 28).
Based upon the information presented, the July 26, 2005 CSE classified the student as having an emotional disturbance and recommended general education with counseling once weekly for 30 minutes as a supplementary aid and service, with a proposed placement at the School for Research (Dist. Ex. 19 at pp. 19.0, 19.6, 19.8; Dist. Ex. 20). The student's IEP indicated that she was exempt from the foreign language requirement (Dist. Ex. 19 at pp. 19.1, 19.7). Respondents attended this CSE meeting and did not object to or raise concerns regarding the 30 minutes per week of counseling services (Tr. pp. 120-21). The IEP indicated that counseling was recommended by the CSE to ensure support for her in obtaining a diploma given that emotional issues had impacted on her progress in the past (Tr. pp. 61, 63; Dist Ex. 19 at p. 19.7). Her assessment modifications remained the same as in the 2004-05 IEP (compare Dist. Ex. 19 at p. 19. 8 with Dist. Ex. 9 at p. 9.8).
The record reveals that before the CSE meeting on July 26, 2005, respondents signed a contract and paid partial tuition to Bishop Ford for the student's attendance during the 2005-06 school year (Tr. p. 122; Dist. Ex. 33).
Petitioner received the returned Final Notice of Recommendation from respondents on August 12, 2005, with respondents notation stating that placement at the School of Research was not appropriate and that they were requesting a CSE review or an impartial hearing (Tr. p. 121; Dist. Ex. 20). By e-mail dated August 12, 2005, the student's father stated that it was imperative that the student remain at Bishop Ford for her senior year, that the parents would not accept any change of placement, that the IEP did not acknowledge that their daughter was seeing a therapist, that the CSE had previously agreed that Bishop Ford was an appropriate placement, and that they were requesting tuition reimbursement (see Tr. pp. 121-22; Parent Ex. P-5). Respondents requested a review of the IEP "at the least" and mediation of their concerns to discuss the student's needs in school and therapy, or an impartial hearing (Parent Ex. P-5).
The student continued to attend Bishop Ford for the 2005-06 school year (Tr. p. 113). By fax dated October 6, 2005, the student's father sent a copy of the student's 2005-06 IEP to the guidance department at Bishop Ford (Tr. pp. 154-55; Dist. Ex. 29). On November 1, 2005, petitioner issued a related service authorization (RSA) to respondents to obtain the student's individual counseling, as set forth in the 2005-06 IEP, at petitioner's expense (Dist. Ex. 21). The student's father acknowledged receiving the RSA, but stated that he did not know what it was and because the form had been xeroxed so many times, he didn’t feel obligated to continue looking at it (Tr. pp. 149-50). Respondents did not utilize the RSA to obtain counseling services.
The impartial hearing took place on December 19, 2005 (Tr. p. 1). Respondents withdrew their request for tuition reimbursement. The relief sought at the impartial hearing was payment of the private therapist's fees.
The student's private therapist acted as respondents' advocate at the impartial hearing and she also testified on behalf of respondents (Tr. pp. 1, 7). Respondents argued that petitioner failed to provide the student with a free appropriate public education (FAPE) for the 2005-06 school year because 30 minutes of counseling per week was insufficient to meet the student's needs or to "treat such an illness" as bipolar disorder (Tr. p. 30). The student's private therapist testified that during the student's 2004-05 and 2005-06 school years, the student continued to receive private psychotherapy for two 45-minute sessions per week (Tr. p. 96).
Petitioner's special education teacher assigned to the CSE testified that in November 2004, the CSE reduced the student's one-to-one counseling from 60 minutes once per week to 30 minutes once per week, based upon the information from petitioner's school psychologist, the 2004 psycho-educational re-evaluation, the letter from the student's psychiatrist, and the letter from the student's private therapist (Tr. pp. 35, 38, 40-49, 53-54).
Petitioner's school psychologist, who attended the July 26, 2005 CSE meeting, testified that the student evaluations revealed that the student was performing "fairly well" in school and that she was passing all of her subjects, except for Spanish (see Tr. p. 60). The school psychologist also testified that the student's reports from Bishop Ford indicated that she received "very good reports or remarks about her behavior and her cooperation and her work skills" (Tr. p. 60). In addition, she testified that the CSE recommended 30 minutes of counseling per week because although the student continued to perform well academically and the student's "psychiatric problems . . . seem to be impacting considerably less on her at this point," the CSE "wanted her to have some support with counseling because we felt that the emotional issues have impacted her in the past" (Tr. pp. 61, 63).
Petitioner's school psychologist further testified that the 30 minutes per week of counseling in the student's 2005-06 IEP referred to school counseling, not psychotherapy for the student's bipolar disorder (see Tr. pp. 66-67). Specifically, the school psychologist noted that the school counseling was intended to provide someone for the student to meet with in school to "talk about school issues" and to "advocate for her in a school setting" (Tr. p. 67). She distinguished the school counseling from psychotherapy, which the school psychologist understood to mean that the student's therapist would work "with the psychologist or school counselor in school to help her negotiate away [sic] in a way in her school and in the world" (Tr. p. 67).
In her decision, dated February 8, 2006, the impartial hearing officer concluded that petitioner "failed to provide this child with a required service for the 2005-2006 school years" (IHO Decision, p. 4). The impartial hearing officer determined that although respondents received an RSA for counseling services from petitioner to obtain those services set forth in the student's 2005-06 IEP, the student's distrustfulness and need to have a therapist with whom she could communicate justified respondents' failure to use the RSA to obtain services (see IHO Decision, p. 4).
On appeal, petitioner asserts that the 2005-06 IEP offered the student a FAPE, and further, that the student could have received the 30 minutes of counseling per week at the recommended placement. Petitioner contends that respondents chose to place their daughter at Bishop Ford, where she cannot receive the counseling set forth in the 2005-06 IEP, at their own financial risk, and further, that respondents have not met their burden to establish that Bishop Ford is an appropriate placement. Petitioners also allege that respondents failed to cooperate with petitioner when they chose to not use the RSA to obtain counseling services from a qualified Department of Education provider. Petitioner seeks to vacate the impartial hearing officer's decision and order.
Respondents contend that the student's needs, as a person diagnosed with bipolar disorder, could not be sufficiently met with only 30 minutes of counseling per week. Respondents also assert that because the student had an established therapeutic relationship with her current private therapist, the student should not have to change therapists. In addition, respondents allege that although petitioner acknowledges the student's diagnosis of bipolar disorder, they are attempting to remove therapy necessary for her academic success. Respondents also allege that the student requires at least two hours of "intensive" therapy per week in order to succeed academically. Respondents request that the impartial hearing officer's decision be upheld in its entirety.
It should be noted that respondents have not raised procedural objections pertaining to the formulation of the July 26, 2005 IEP at either the impartial hearing level, or on appeal. Respondents raised no concerns at either level of review pertaining to the content of the IEP, but for the substantive appropriateness of the recommended counseling services. The record also reflects that respondents raised no objection to the appropriateness of the recommended counseling services at the July 26, 2005 CSE meeting, that they participated in the formulation of the IEP, and that they were significantly involved in developing their daughter's educational program (Tr. pp. 120-21).
As a preliminary matter, I note that the impartial hearing occurred after the United States Supreme Court issued its Schaffer v. Weast decision in which the Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief" (Schaffer v. Weast, 126 S. Ct. 528, 537 ). The Court rejected the argument that every IEP is invalid until the school district demonstrates that it is not (Schaffer, 126 S. Ct. at 536). Accordingly, respondents, as the party seeking relief at the impartial hearing, have the burden of persuasion to demonstrate that petitioner failed to offer the student a FAPE.
A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer, 126 S. Ct. at 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3 The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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 ). The IDEA directs that, in general, a decision by an impartial hearing officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child's right to a FAPE, (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (III) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 2005[j][ii]). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][E][iii]).
An IEP must include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).
"Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment (8 NYCRR 200.1[bbb]; see also 20 U.S.C. § 1401; 34 C.F.R. § 300.28).
The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). 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, 346 F.3d at 379; Walczak, 142 F.3d at 132).
A board of education may be required to reimburse a parent for his or her 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 the 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]). An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals 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 the instant case, I find that the evidence does not demonstrate that petitioner's 2005-06 IEP failed to offer respondents' daughter a FAPE. The appropriateness of the CSE's recommendation that the student's placement continue in a general education setting with 30 minutes per week of counseling is supported by the evidence. The Bishop Ford student evaluation forms reviewed by the CSE support the conclusion that the student's bipolar disorder had little, if any, impact on her then current academic performance. At the time of the CSE meeting, the student's latest reports and evaluations showed improvement in all areas - academic, personal, social, emotional, and behavioral. The record also reflects that the student had no reported behaviors at the time of the CSE meeting that precluded her ability to receive educational benefit. There is insufficient evidence presented by respondents to adequately support the contention that the offered counseling services were inadequate. Respondents failed to raise concerns or object to the recommended counseling services at the July 2005 CSE meeting, and when provided with an RSA to obtain the 30 minutes of counseling per week, they failed to use it. The hearing record does not demonstrate that the counseling services were inappropriate to meet the student's then current educational needs, or that the IEP was so deficient as a result of the recommended services that the alleged inadequacy rose to the level of a denial of a FAPE.
Further, there is insufficient evidence to support respondents' allegation that the student required two hours of "intensive" counseling to enable her to receive educational benefit. The record does not support respondents' conclusory statements that at the time of the July 26, 2005 CSE meeting that psychotherapy was a necessary service for the student to receive educational benefits from her special education program during the 2005-06 school year. Respondents also failed to show a sufficient nexus between the psychotherapy that the student received and her ability to be educated with nondisabled students to the maximum extent appropriate. During her testimony, the private therapist did not sufficiently show how she addressed the student's educational needs. The therapist's 2004 report indicated her therapy dealt with personal and family issues, noting that the therapy provided structure the student didn't receive at home (Dist Ex 8 at p. 4), and also dealt with issues which might lead to the student falling back into "patterns" that would effect her school work (Dist Ex 8 at p. 3). It is not clear from the record how, or to what extent, the therapy sessions at the time of the July 2005 CSE meeting were related to educational performance issues or to LRE concerns.
Although I am concerned with the therapist serving as both an advocate and witness with a direct financial interest in the outcome of the due process proceedings, I will not disturb the impartial hearing officer's credibility determination regarding her testimony. I do however disagree with the impartial hearing officer's conclusions as to the sufficiency of the therapist's testimony to demonstrate that the student's 2006-06 IEP was not appropriate. The therapist's testimony lacked specificity concerning why the services she provided were appropriate to meet the student's special education needs and why the proffered counseling services would not meet the student's special educational needs.
THE APPEAL IS SUSTAINED.
1 Ultimately, respondents requested reimbursement for the student's private psychotherapy for the 2004-05 school year and an impartial hearing was held on January 11, 2005 (Parent Ex. P-20 at p. 4). In that impartial hearing, respondents contended that petitioner failed to provide the counseling services recommended in the student's 2004-05 (Parent Ex. P-20 at pp. 4-5). In addition, respondents contended that based on her diagnosis of bipolar disorder, the student required counseling with a qualified therapist to address her needs in order for her to succeed academically (Parent. Ex. P-20 at p. 5). The impartial hearing officer found that petitioner failed to offer a free appropriate public education (FAPE) for the 2004-05 school year because petitioner conceded that it did not provide the student with the counseling services recommended in her 2004-05 IEP (Parent Ex. P-20 at p. 5). Petitioner also failed to provide respondents with a related services authorization (RSA) to obtain the counseling services recommended in the student's IEP while she attended Bishop Ford (Tr. p. 27). He ordered petitioner to reimburse respondents for one private psychotherapy session per week for services obtained from September 2004 through the date of the decision and to provide payment for one psychotherapy session per week from the date of the decision through the end of the 2004-05 school year (Parent Ex. P-20 at p. 6). The impartial hearing officer did not set forth an opinion as to whether the 30 minutes of counseling per week, as set forth in the November 2004 IEP, was either sufficient or insufficient to meet the student's academic needs.
2 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
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) meet 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.