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
Advocates for Children of New York, Inc., attorney for respondent, Matthew Lenaghan, 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 respondent's daughter and ordered it to fund respondent's daughter's tuition costs at the Cooke Center for Learning and Development (Cooke) for the 2005-06 school year. The appeal must be sustained.
At the commencement of the impartial hearing on January 6, 2006, the student was 14 years old and attending ninth grade at Cooke (Tr. pp. 1, 18, 20, 32). Respondent unilaterally placed her daughter at Cooke in September 2005 for the 2005-06 school year (Parent Ex. B). The Commissioner of Education has not approved Cooke as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).
Administration of the Wechsler Intelligence Scale for Children – Third Edition (WISC-III) in 2004 yielded a full scale IQ score of 69, which is in the deficient range of cognitive functioning, with a significant discrepancy between the student's verbal IQ score (56 – deficient range) and her performance IQ score (87 – low average range) (Parent Ex. U at pp. 1-2). Relative weaknesses were identified on language-based tasks that measured knowledge acquired over time, verbal fluency for word meanings, mental arithmetic reasoning and practical judgment (id.). The student has a diagnosis of a mixed receptive/expressive language disorder characterized by severe receptive and expressive language delays (Parent Ex. J at p. 3) which affects her ability to follow complex multi-step directions, recall and repeat complex sentences, comprehend nonliteral language and interpret meaning from context (Parent Ex. S at p. 3). Oral-motor weaknesses affect her articulation of spoken language and her overall intelligibility is also affected by reduced vocal intensity (id.). Although she is able to initiate conversation, the student has delays in pragmatic language skills and ability to maintain eye contact, and is described as having a limited vocabulary, lacking attention to conversation, and having immature social skills, all of which affect her ability to use language in social settings (Parent Exs. S at pp. 1-2, U at p. 3). The student receives speech-language therapy, and also receives occupational therapy (OT) to address identified deficits in sensory processing which affect her ability to maintain attention to task, as well as delays in upper body strength, fine motor ability, visual motor and visual perceptual skills which affect her handwriting and her ability to copy designs (Parent Ex. T). The student's eligibility for special education programs and services as a student with a speech impairment is not in dispute (see Tr. p. 18; 8 NYCRR 200.1[zz]).
For the 2004-05 school year, which is not the subject of this appeal, petitioner's Committee on Special Education (CSE) recommended for the student a twelve-month program at a New York State approved non-public school in a 12:2+2 setting with related services of speech and occupational therapy (Parent Ex. C). The student's individualized education program (IEP) dated May 7, 2004 specifically named the School for Language and Communication Development (SLCD) (Parent Ex. C at p. 1), which is a non-public school that has been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]). The student attended SLCD for her eighth grade 2004-05 school year until the time of her graduation from the program in June 2005 (Tr. pp. 33-34, 42).
On or about February 16, 2005, respondent contacted petitioner's CSE to inform them that her daughter would be aging out of her placement at SLCD in June 2005 and to advise the CSE that she planned to have private evaluations conducted of the student by the Kennedy Child Study Center (Kennedy Center) (Tr. pp. 317-18, 334-35). The record indicates that the Kennedy Center conducted an intake evaluation on April 20, 2005 (see Parent Exs. J at p. 1, Z at p. 1); a psychological evaluation of the student on May 9, 2005 (Parent Exs. N at p. 1, AA at p. 1); an educational evaluation of the student on May 23, 2005 (Parent Ex. M at p. 1); a psychiatric evaluation of the student on June 9, 2005 (Parent Exs. L at p. 1, CC at p. 1); and a speech and language evaluation of the student on June 22, 2005 (Parent Exs. K at p. 1, BB at p. 1). On June 27, 2005, the Kennedy Center provided respondent with its reports of the student's evaluations (Tr. pp. 53-54; see Parent Exs. K, M, Z, AA, CC). By letter dated July 8, 2005 to the Kennedy Center, respondent expressed her concerns that the reports contained inaccuracies and contradictions, and requested that the Kennedy Center revise the reports (Parent Ex. O; see Tr. pp. 43-45, 55-58, 192-93).1 Specifically, respondent's letter stated that the speech evaluation referred to the student by the incorrect gender or name in two instances; that the psychological evaluation misstated the reason the student was seen by a psychiatrist and identified a behavior that the student did not exhibit; that the psychiatric evaluation misstated the reason for the student's referral, misstated the parents' "chief complaint" and listed an incorrect medication in the student's past psychiatric history; and that the clinical summary contained contradictory statements about the student's attentiveness (Parent Ex. O at p. 2). Respondent's letter stated that she found no errors in the student's educational evaluation (id.).
The Kennedy Center held a "quality assurance meeting" on July 27, 2005 to review respondent's concerns (Tr. p. 58). Respondent was not invited to participate in this internal meeting and the psychiatrist who evaluated the student was not present (Tr. pp. 70, 72-73). On August 3, 2005, a social worker from the Kennedy Center met with respondent and the student's father to discuss the corrections that the Kennedy Center had made and to provide them with revised evaluations (Tr. pp. 47-49, 58-60, 195-96; see Parent Exs. J, N, BB). At this August 3, 2005 meeting, the record indicates that respondent expressed concern only with the psychiatric evaluation and requested that it be revised (Tr. pp. 47-49, 59-60, 195-96). On August 15, 2005, the Kennedy Center provided respondent with a second psychiatric evaluation, which contained a revision under the section heading "reason for referral" (Tr. pp. 49-50, 60, 62, 158-59, 221-22; see Parent Ex. L). Respondent maintains that the second set of Kennedy Center evaluations, including the psychiatric evaluation, did not meet her satisfaction and continued to contain errors (Tr. pp. 159-60, 358).
Petitioner's CSE convened on August 26, 2005 (Tr. pp. 165, 312). The record indicates that petitioner attempted to schedule a CSE meeting sometime in June 2005 and at an earlier date in August 2005; however, respondent was not available on both those dates and petitioner failed to provide respondent with five days notice of those earlier dates (Tr. pp. 38-41). Respondent attended the August 26, 2005 CSE meeting, along with a non-attorney advocate and the student's father (Tr. pp. 165, 313-14, 372). At the meeting, respondent advised the CSE that the Kennedy Center evaluations contained errors and were in the process of being corrected (Tr. pp. 166-67, 373). The CSE then asked a district placement officer to participate in the meeting and the parents advised the placement officer about the status of the Kennedy Center evaluations (Tr. pp. 166, 169, 255-56, 373-74; see Parent Ex. EE). The placement officer recommended to the CSE that they postpone the meeting (Tr. pp. 167, 258). Respondent submitted a handwritten note to the CSE stating "I would like to postpone today's meeting due to the Kennedy Report are [sic] in the process of being edited for continuation of a non public school for 2005-06 placement." (Tr. pp. 168, 315; Dist. Ex. 3). Respondent contends that she only wrote this letter at the request of the placement officer (Tr. pp. 167-69, 244). It is undisputed that the August 26, 2005 CSE meeting was postponed, and that the CSE did not develop an IEP for the student or recommend an educational placement for the student at the August 26, 2005 CSE meeting.
Respondent testified that after the postponed August 26, 2005 CSE meeting, she focused her efforts on finding a school for the student's 2005-06 school year (Tr. pp. 169-70). Respondent testified that she had been previously looking at both public and private school placements for her daughter's 2005-06 school year (Tr. pp. 160-62). The Hallen Center for Education (Hallen) declined admission to the student by letter dated August 31, 2005 and the Lorge School declined admission to the student by letter dated September 8, 2005 (Tr. pp. 171-72; see Parent Ex. W at pp. 1-2). Both Hallen and the Lorge School are non-public schools that have been approved by the Commissioner to contract with school districts to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).
Cooke accepted the student sometime around September 8, 2005 (Tr. p. 170). On September 15, 2005, respondent entered into a contract with Cooke for the student's enrollment for the 2005-06 school year (Tr. pp. 173-74; Parent Ex. D). By letter dated September 16, 2005, respondent notified petitioner through her attorney that she would be unilaterally placing the student at Cooke for the 2005-06 school year due to petitioner's alleged failure to offer an appropriate program for the student (Parent Ex. B; see Tr. p. 174). The September 16, 2005 letter also advised petitioner that respondent intended to seek tuition payment for the student's placement at Cooke (Parent Ex. B). The student began attending Cooke on September 19, 2006 (Tr. p. 174; Parent Ex. E).
Respondent formally requested an impartial hearing through her attorney by letter dated October 18, 2005 (Parent Ex. A). Respondent's hearing request alleged that petitioner failed to offer the student a free appropriate public education (FAPE) for the 2005-06 school year (id.). Respondent sought funding for her daughter's tuition costs at Cooke for the 2005-06 school year and sought reimbursement for her transportation expenses (id.).
An impartial hearing was held on January 6, 2006 and March 14, 2006 (Tr. pp. 1, 250). At the hearing, respondent maintained that the second set of evaluations from the Kennedy Center were not complete because the psychiatric and psychological evaluations contained errors (Tr. pp. 159-60, 201, 203-04, 217-18, 358). Although she conceded at the hearing that some of her concerns were corrected (see Tr. pp. 47-48, 203-04), she testified that the evaluations were supposed to be viewed together as a complete packet (Tr. pp. 358-59). Respondent also testified that she "reluctantly" provided the Kennedy Center evaluations to all the schools that she applied to on behalf of the student for admission, including Hallen and Cooke (Tr. pp. 180-81, 234-35). Respondent testified that during the summer of 2005, petitioner did not seek permission from respondent to perform its own evaluations of the student (Tr. pp. 164-65); did not reschedule the August 26, 2005 CSE meeting (Tr. pp. 169, 362); and did not request that respondent provide the Kennedy Center evaluations to the CSE (Tr. pp. 235, 360).
Petitioner presented the testimony of a district teacher who participated at the August 26, 2005 CSE meeting (Tr. pp. 124-25). The district's teacher testified that the CSE did not consider any evaluations because "they [the parents] wouldn't let us. They didn't want us to. They had their own coming." (Tr. p. 149). The placement officer testified on behalf of petitioner that respondent told him that the Kennedy Center reports would be available in a few days (Tr. p. 261), and that respondent and her advocate indicated to him that they would only accept a non-public school placement for the student and that they had been in contact with Hallen (Tr. pp. 256-58; see Parent Ex. EE). He testified that he recommended that the CSE meeting be postponed because the parents indicated that they would not accept any type of recommendation in a public high school (Tr. pp. 258-59) and the parents "insisted" that they had updated evaluations from the Kennedy Center that would support a non-public school placement (Tr. p. 259). It is undisputed that respondent did not provide petitioner with the Kennedy Center evaluations until the time of the hearing (see Tr. p. 229).
In a decision dated May 1, 2006, the impartial hearing officer concluded that petitioner's CSE failed to offer the student a FAPE for the 2005-06 school year (IHO Decision, p. 6), that Cooke was an appropriate placement (id. at p. 7), and that the equities favored respondent's claim for an award of the student's tuition costs because the district did not develop an IEP nor begin the evaluation process (id.). The impartial hearing officer found it reasonable under the circumstances for respondent to not provide petitioner with the Kennedy Center reports, given her concerns about the psychiatric report and testimony that the reports were intended to be viewed together as a complete package (id. at pp. 4-5). The impartial hearing officer found "no evidence of any attempt by the parent to sabotage the efforts of the CSE" (id. at p. 6). He rejected petitioner's request that tuition be denied because respondent failed to provide ten days notice of the student's unilateral placement (id. at pp. 6-7). He found that petitioner had notice of respondent's preference for a non-public school because respondent asked for a Nickerson letter2 at the August 26, 2005 CSE meeting (id. at p. 6). The impartial hearing officer ordered petitioner to fund the student's tuition at Cooke for the 2005-06 school year and reimburse respondent for transportation expenses (id. at p. 8).
On appeal, petitioner contends that the impartial hearing officer erred in ordering petitioner to fund the student's tuition for her 2005-06 school year at Cooke. Specifically, petitioner argues that tuition should have been denied or reduced because respondent did not provide the district with ten days notice as required by the Individuals with Disabilities Education Act (IDEA) before unilaterally placing the student at Cooke. Petitioner asserts that it was error for the hearing officer to find that petitioner had notice of respondent's intention to place her daughter at a private school because respondent requested a Nickerson Letter at the August 26, 2006 CSE meeting. Petitioner also argues that respondent's failure to provide the CSE with the Kennedy Center evaluations impeded petitioner from offering a FAPE.
Respondent contends that the impartial hearing officer's decision should be upheld in its entirety, and argues that petitioner failed to offer the student a FAPE for the 2005-06 school year and did not offer the student any placement after she had aged out of SLCD in June 2005. Respondent asserts that Cooke is an appropriate educational environment. Respondent argues that equitable considerations support her claim because she contacted the CSE about the student's need for a placement and cooperated with the CSE. Respondent also rejects petitioner's argument that respondent did not comply with the statutory ten-day notice requirement, asserting that the intent of the ten-day notice provision was met and respondent was not removing the student from an existing placement, but rather placing the student in the only program that had offered the student a placement.
One of the main purposes of the IDEA (20 U.S.C. §§ 1400 - 1482)3 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, 531 ). 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]; 34 C.F.R. § 300.347).4 "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532).
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 parents' 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 (Burlington, 471 U.S. at 370-71). "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" (id. at pp. 370-71).
The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies 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, 206-07 ). 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]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 536-37 [finding it improper to assume that every IEP is invalid until the school district demonstrates that it is not]).
In the instant case, it is undisputed that petitioner did not offer the student an educational placement, secure evaluations or complete the student's IEP review prior to the commencement of the 2005-06 school year. Part of a district's obligation in complying with the requirements of the IDEA is the preparation and provision of an IEP for each child with a disability in its jurisdiction (see generally 20 U.S.C. § 1414[d]). By definition, the IEP must be a written statement (20 U.S.C. § 1414[d][A][i]), and must be in effect at the beginning of each school year (20 U.S.C. § 1414[d][A]; see also 34 C.F.R. § 300.342[a]; Cerra, 427 F.3d at 194 [". . . the District fulfilled its legal obligations by providing the IEP before the first day of school."]). A district's failure to provide a child's parents with a timely IEP may afford a basis for concluding that the district did not offer an appropriate placement to the child (Application of a Child with a Disability, Appeal No. 06-030; Applications of the Board of Educ. and a Child with a Disability, Appeal Nos. 00-091 and 01-018; Application of a Child with a Disability, Appeal No. 99-81).
Petitioner argues that it relied on respondent's representation that she was in the process of having private evaluations conducted of the student and that she would provide the evaluations to the CSE team. While the CSE is required to review evaluations and information provided by the parent (20 U.S.C. §§ 1414[c][A][i]; 1414[d][A][ii],[iii]), I decline to find that this requirement required petitioner to refrain from fulfilling its obligation to develop an IEP offering respondent's daughter an appropriate educational program for the 2005-06 school year. I also note that there is no evidence in the record that petitioner sought consent from respondent to perform its own evaluations of the student or that respondent affirmatively withheld her consent for petitioner to evaluate the student (see Tr. pp. 164-65). Whether respondent's alleged failure to provide the Kennedy Center evaluations impeded the district from offering a FAPE is an issue that I discuss below under the third Burlington/Carter criterion of equitable considerations. Here, I am troubled that petitioner did not take any action to comply with its obligation to offer the student a FAPE until after respondent requested an impartial hearing, which was well into the 2005-06 school year (see Tr. p. 26). Accordingly, I concur with the impartial hearing officer that petitioner did not offer the student a FAPE for the 2005-06 school year.
I must now consider whether respondent met her burden of proving the appropriateness of her placement of the student at Cooke (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, respondent 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. 01-010). A 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). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
A January 2005 classroom report prepared for the student's annual review indicates that the student learned best from a multi-modality approach in which visual and auditory cues are paired (Parent Ex. R at p. 1). The student was reportedly able to decode using both a phonetic and sight word approach and required "minimal assistance" with comprehension (id.). She could write a complete paragraph but required assistance with proofreading and revision (id.). She experienced difficulty with math word problems and required one-to-one assistance to complete them (id.). The report indicated that the student was participating in a program offering a "hands-on approach" to social studies and science that followed the New York State Standards for the eighth grade curriculum (id. at p. 2). The student's performance on the Stanford Achievement Test administered in December 2004 yielded grade equivalency scores at the third grade level in reading and at the fourth grade level in math and spelling (id. at p. 3). Socially, the student was described as an "active participant within the social context of the class" who was well liked by her classmates (id. at p. 1).
The Kennedy Center clinical summary report, which respondent did not provide to petitioner's CSE, recommended that the student be placed in a small structured classroom offering individualized instruction in an environment addressing the needs of students who have speech impairments and learning disorders and where all related services can be provided on site (Parent Ex. J at pp. 3-4). Because of identified "emotional vulnerability" coupled with the student's cognitive and language delays, it was suggested that the student not be placed in a class with students who have behavior problems (id.). Additional recommendations included individual psychotherapy for the student and support and counseling for her parents, as well as a psychopharmacology consultation, individual tutoring at a community learning center, and enrollment in structured recreational activities (id.).
The student was placed at Cooke in the school's Cooke Center Academy program for the 2005-06 school year. The Head of School for Cooke testified that Cooke's Academy program primarily serves students with some form of communication impairment (Tr. pp. 76, 80). There are 23 students in the Academy program, most of whom are 15 or 16 years of age (Tr. pp. 80-81). The program uses a multi-sensory curriculum that consists of a modified academic program, which is content based, and an applied learning program, which enables students to apply skills to a real life setting (Tr. pp. 78-80, 97). The program also emphasizes social skills development (Tr. p. 79). The Head of School described the program's "woman's forum" and "men's forum", where students are divided by gender into small groups that are led by a social worker and school psychologist to participate in a weekly discussion about social skills and peer relationships (Tr. pp. 85-86). A speech pathologist and school counselor assist the students in developing skills needed to be successful in the community (Tr. p. 87). There is also a "transition to life program", which provides students with community service opportunities and teaches students about potential careers (Tr. pp. 79, 84-85). The Head of School testified that Cooke provides related services on site, including occupational therapy, speech therapy and counseling (Tr. pp. 79, 92).
In the applied learning program there are 13 students and in the modified academic program there are 10 students (Tr. p. 81). The students receive small group instruction based on their ability level for reading, writing, and math (id.). The Head of School testified that there are three special education teachers, two assistant teachers, and three paraprofessionals, and there are related service providers on staff (Tr. pp. 90-92). She testified that there could potentially be as many as six adults with 13 students (Tr. p. 92), which I find meets the student's 12:2+2 staffing ratio on her May 7, 2004 IEP and the recommendation made by the student's prior school, SLCD, on or about January 18, 2005 for a 6:1+1 or 12:2+2 teacher-student ratio (see Tr. p. 95; Parent Exs. C at p. 1, P at p. 1).
The record indicates that during the time from the student's enrollment at Cooke in September 2005 to the time of the impartial hearing in January 2006, the student has made academic progress and has improved in her social skills. The Head of School testified that the student made "pretty moderate" academic growth and "marked" social progress (Tr. pp. 100-01, 113). The data folio maintained by Cooke indicates that the student has learned to work cooperatively in a group (Tr. p. 100). The student's father testified that his daughter made an oral presentation at a school assembly (Tr. pp. 381-82). Respondent testified that the student has made progress in writing, by learning how to create rough drafts and categorize her writing (Tr. p. 176).
Based on the foregoing, I agree with the impartial hearing officer that Cooke was an appropriate placement for respondent's daughter for the 2005-06 school year.
The final criterion for an award of tuition reimbursement is that respondent's claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C., 226 F.3d at 68; see Carter, 510 U.S. at 16 [noting that "Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citingTown of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 ). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct impeded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).
Tuition reimbursement may also be reduced or denied under the IDEA if parents fail to provide the school district with timely notice of their intent to place their child in a private school at public expense (see 20 U.S.C. § 1412[a][C][iii], see also 34 C.F.R. § 300.403[d]). Pursuant to the IDEA, parents may provide notice at the most recent CSE meeting prior to their removal of the child from public school, or by written notice ten business days before such removal (see 20 U.S.C. § 1412[a][C][iii][I]). There are enumerated exceptions to this statutory notice provision, that when present, prohibit the reduction or denial of tuition reimbursement (see 20 U.S.C. § 1412[a][C][iv][I]; 34 C.F.R. § 300.403[e]). Under this statutory provision, a reduction or denial in tuition reimbursement is discretionary (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 01-054; Application of a Child with a Disability, Appeal No. 00-027); however, at least one circuit court of appeals has denied tuition reimbursement for lack of prior notice, noting that the provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]; see also Ms. M. v. Portland Sch. Committee, 360 F.3d 267 [1st Cir. 2004]). Even before the codification of this provision by the 1997 Amendments to IDEA, "courts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with the child’s IEP" (Mrs. C., 226 F.3d at 68; see also Frank G. v. Bd. of Educ. of Hyde Park, 2006 WL 2077009 at *18 [2d Cir. 2006]; Application of a Child with a Disability, Appeal No. 06-014).
Petitioner argues that respondent failed to cooperate with the CSE because respondent did not provide the Kennedy Center evaluations to the CSE at any point. In general, parents also run the risk of not being awarded tuition reimbursement on equitable grounds if they do not timely share evaluative material (Application of a Child with a Disability, Appeal No. 04-029; seeS.M. v. Weast, 240 F. Supp. 2d 426, 437 [D. Md. 2003]), however, a failure to do so is less egregious if a district knows of the evaluation but does not request it or seek to review it (Application of the Bd. of Educ., Appeal No. 04-045). I have carefully reviewed the record, and compared the first set of evaluations with the second set, along with respondent's concerns about the evaluations as stated in her letter dated July 8, 2005 to the Kennedy Center.
I agree with petitioner's assertion that at the time of the CSE meeting on August 26, 2005, respondent had revised evaluations that she failed to make available to the CSE (see Tr. pp. 420-28). In her July 8, 2005 letter, respondent stated she found no errors in the educational evaluation (see Parent Ex. O at p. 2). The revised clinic summary added a provision about the student's attentiveness during the evaluations presumably to address respondent's concern that the document contained contradictory statements about the student's attention levels (compare Parent Ex. J at p. 2, with, Parent Ex. Z at p. 2). The revised speech and language evaluation corrected the references to the student by the incorrect name and gender (see Parent Ex. BB at pp. 1, 5). The revised psychological evaluation indicates that the Kennedy Center made changes to the reason for referral (compare Parent Ex. N at p. 1, with, Parent Ex. AA at p. 1). The revised psychiatric evaluation indicates that the Kennedy Center changed the reason for referral and corrected a past medication taken by the student (compare Parent Ex. L at p. 1, with, Parent Ex. CC at p. 1). The record also indicates that as of August 15, 2005, respondent only expressed concern to the Kennedy Center about the psychiatric evaluation (see Tr. pp. 47-49, 59-60, 158-59, 195-97, 221-22). At the August 26, 2005 CSE meeting, respondent advised the CSE that the evaluations were not complete because they contained errors (see Tr. pp. 166-67, 373). There is no indication in the record that she advised the CSE that some of the evaluations were available. I am not persuaded by respondent's assertion that the reports had to be reviewed as a complete package (see Tr. pp. 358-59). Although I note that some of the evaluations referenced other evaluations, (see Parent Ex. M at p. 4 [the educational evaluation referred the reader to the clinic summary for recommendations]; Parent Ex. N at p. 7 [the psychological evaluation referred the reader to the educational evaluation for the recommendations on classroom placement]), I find that each of these evaluations can be understood independent from the others and are not so intertwined that they need to be reviewed as one report. It is also apparent form the record that respondent advised the CSE that she was in the process of obtaining evaluations of the student and the CSE anticipated receipt of respondent's private evaluations (see Tr. pp. 257-62, 313-14, 334-35).
I am also troubled by the fact that respondent provided the evaluations to non-public schools (see Tr. pp. 180-81, 234-35), but did not provide the evaluations to petitioner's CSE. I am not persuaded by respondent's contention that the fact that Hallen denied admission to the student indicated that the evaluations had a damaging effect (see Tr. p. 235). I note that the record indicates that Hallen had also denied admission to the student the previous year (see Parent Ex. W at p. 3). Overall, under the circumstances of this case, I find that respondent's discontent with some of the conclusions in the reports did not excuse her from providing the Kennedy Center evaluations to the CSE after she had indicated that she would make them available and the CSE relied on that indication and the record supports petitioner's assertion that respondent did not cooperate with the CSE.
Finally, I address petitioner's assertion that respondent failed to provide timely notice of the student's unilateral placement. The record indicates that respondent notified petitioner through her attorney by letter dated September 16, 2005 that she would be unilaterally placing the student at Cooke for the 2005-06 school year at public expense due to petitioner's alleged failure to offer an appropriate program for the student (Parent Ex. B; see Tr. p. 174). The student began attending Cooke on September 19, 2005 (Tr. p. 174; Parent Ex. E). I find that respondent's notice of three days does not comply with 20 U.S.C. § 1412[a][C][iii].5 I am not persuaded by respondent's argument that the intent of the statute was served, as I note that the statute expressly states how notice can be provided and sets forth enumerated exceptions that are not at issue on this appeal.
In sum, I find that respondent's failure to provide petitioner with timely notice of the student's unilateral placement consistent with statutory requirements, along with her failure to provide the Kennedy Center evaluations which impeded the development of an appropriate IEP, precludes an award of tuition.
I have considered the parties' remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it ordered petitioner to fund respondent's daughter's tuition costs at the Cooke Center for Learning and Development (Cooke) for the 2005-06 school year and reimburse respondent for transportation expenses; and
IT IS FURTHER ORDERED, if it has not done so already, that petitioner shall convene a CSE within thirty calendar days from the date of this decision and shall recommend and secure an appropriate program and placement in the least restrictive environment for the student for the 2006-07 school year.
1 I note that the record contains multiple duplicative exhibits. For purposes of this decision, only Parent exhibits were cited in instances where both a District and Parent exhibit were identical. I remind the impartial hearing officer that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][xii][c]).
2 A Nickerson letter is a letter from the Department of Education (DOE) to a parent authorizing the parent to place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy of a Nickerson letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
3 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since the underlying events in this appeal occurred subsequent to that date, all references to the IDEA refer to the newly amended provisions of the IDEA, unless otherwise specified.
4 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.
20 U.S.C. § 1401(9).
5 The record indicates that respondent's letter advising of the unilateral placement of the student at public expense was faxed to petitioner after business hours on the same date that it was dated, September 16, 2005, which was a Friday (Parent Ex. B at p. 2). The student began attending Cooke that following Monday, September 19, 2005 (Tr. p. 174; Parent Ex. E), thus indicating that petitioner in actuality received notice of the unilateral placement on the day that the student began her private placement.
20 U.S.C. § 1401(9)