06-061

           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 son for the 2005-06 school year and ordered petitioner to reimburse respondent for his son's tuition costs at York Preparatory School (York Prep).  The appeal must be sustained.

             At the commencement of the impartial hearing on April 12, 2006, the student was 16 years old and attending a residential school, which is not the subject of this appeal (Tr. pp. 1, 9).  Prior to the impartial hearing, the student last attended York Prep during the 2005-06 school year between September 2005 and November 2005 (see Dist. Ex. 3).  York Prep is a non-public school, and the Commissioner of Education has not approved York Prep as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The student's eligibility for special education as a student with a learning disability is not in dispute in this appeal (see Tr. p. 10; 8 NYCRR 200.1[zz][6]).

            On July 5, 2005, petitioner's Committee on Special Education (CSE) convened for the student's annual review and to develop his 2005-06 individualized education plan (IEP) (Dist. Ex. 1 at p. 1).  At that time, the student had completed ninth grade at York Prep and had participated in York Prep's Jump Start Program (Jump Start) (see Tr. pp. 23, 26).  York Prep is described as a "traditional, co-educational college preparatory day school for grades 6-12" (Parent Ex. D at p. D1).  The record reflects that Jump Start "enables students with different learning styles or specific learning disabilities to function successfully in an academically challenging mainstream setting" (Parent Ex. D at p. D3).  Students enrolled in Jump Start attend two 40-minute, one-to-one "tutorial sessions" per week (Parent Ex. D at p. D3).  The Jump Start Program addresses students' academic difficulties in areas of "language processing, reading, writing, math, and organizational skills" (Parent Ex. D at p. D3).  The Jump Start teachers and students "work together on developing the appropriate strategies to address the students' academic difficulties" and the teachers implement individual tutoring to "meet the academic needs of each student" (Parent Ex. D at p. D3).  In addition, the students meet with an assigned teacher at the beginning of each day to organize and prepare for the day; the students can also attend a "small group study hall" after school to receive help with homework (Parent Ex. D at p. D3).  The group study hall contains ten to eleven students (Tr. pp. 18-19).

            Respondent attended the July 5, 2005 CSE meeting accompanied by an educational advocate, and a York Prep administrator, who is a licensed psychologist, attended by telephone (Tr. pp. 14, 33, 69, 70-71, 72; Parent Ex. B at p. B2).

            Petitioner's school psychologist attended the CSE meeting and testified that the committee reviewed "reports and evaluations that had been conducted during the prior school year, reports from York Prep, the school the [student] was attending" (Tr. p. 35).  The student's 2005-06 IEP summarized those materials (id.).  The student's IEP indicates that the student had the ability to work at or near grade level when he focused on his school work and performed above grade level in mathematics; that he had adequate interactions with peers and adults; and that there were no behavioral problems noted in school (Parent Ex. B at pp. B3-B4).  The 2005-06 IEP also notes that the student has an attention deficit hyperactivity disorder (ADHD), and includes a goal to address time management and organization of school assignments as well as a goal to address the student's need to increase his ability to tolerate and express frustration during academic and social situations (Parent Ex. B at pp. 1, 6B, 6E).  The IEP also noted a diagnosis of Oppositional Defiant Disorder (ODD), but that the student's behaviors did not interfere with instruction (Parent Ex. B at p. B4).  The IEP documented that individual and small group counseling was recommended to meet the student's social/emotional needs (id.). 

            Based upon the information presented and reviewed, the CSE recommended general education with special education teacher support services (SETSS) in an 8:1 setting for eight periods per week; individual, one-to-one counseling one session per week for 30 minutes; and group counseling, one session per week for 30 minutes, in a 3:1 setting (Parent Ex. B at pp. B1, B10-B12).  After the meeting, the CSE recommended Brandeis High School as the student's proposed placement (see Parent Ex. Q).

           By letter dated August 5, 2005, respondent advised petitioner's CSE that the recommended placement at Brandeis High School was not appropriate and that the student would attend York Prep during the 2005-06 school year (Parent Ex. Q).  Respondent's letter noted that he did not visit the proposed placement because he was unable to make contact with school personnel, despite repeated calls (id.).  Respondent testified that he believed that the public school classes contained too many students and were not appropriate for his son based upon information he had obtained from educational evaluators, psychologists and/or psychiatrists (Tr. p. 73).  The record indicates that respondent paid York Prep's tuition in full, including tuition for Jump Start for the 2005-06 school year, by March 20, 2005 (Parent Ex. I at pp. I1-I2; see Parent Exs. L, M, N).

          By letter dated October 23, 2005, respondent requested an impartial hearing, alleging that petitioner failed to provide his son with a free appropriate public education (FAPE) for 2005-06 because the IEP was "procedurally and substantively defective," the CSE failed to consider "substantial evidence," the CSE's recommended program did not confer educational benefit, and the IEP did not meet the student's needs (Parent Ex. A at p. A2).  Respondent sought tuition reimbursement for his son's full tuition costs at York Prep for the 2005-06 school year (id.).

          At the impartial hearing, respondent testified that the CSE failed to fully consider the student's 2004 diagnostic evaluation and that his son needed a "highly structured and small educational environment" (Tr. pp. 70, 72-73; Parent Ex. A at p. A2).  He further testified about his son's history of academic, social/emotional, and behavioral struggles, which began in or around third grade (Tr. pp. 65-68).  The student first attended York Prep in seventh grade and remained there through November 2005 (Tr. p. 67).  Respondent also testified that he decided to reenroll his son at York Prep in 2005-06 because, although his son continued to struggle academically, he was passing all of his courses and in his opinion, York Prep represented the "least restrictive environment that could meet his educational needs" (Tr. pp. 73-75, 77).  The record demonstrates that respondent also reenrolled his son in Jump Start for the 2005-06 school year, and further, that he had participated in Jump Start since at least ninth grade (Parent Exs. G, H).  The record also shows that the student's quarterly grade averages during the 2004-05 school year ranged from 72 to 80 percent and that his fourth quarter grades ranged from 74 to 90 percent (Parent Ex. K).

         York Prep's administrator testified that the typical class size for the "upper school" ranged from 15 to 16 students (Tr. p. 15).  He also testified that students with IEPs are educated in the same classes as those students without IEPs (Tr. pp. 15-16).  The record reflects that the teachers involved in the Jump Start program had backgrounds in special education (Parent Ex. D at p. D3).  The York Prep administrator could not testify, however, regarding what services the student received through Jump Start and he could not identify the student's actual special education needs (Tr. pp. 17, 19).  He further testified that York Prep did not have any other mental health professionals on staff, other than himself, and when questioned about specialized instructional strategies used at York Prep, the administrator responded that he "didn't have that information" in front of him (Tr. pp. 24, 26).

         With regard to the tuition reimbursement sought, respondent testified that he paid York Prep's and Jump Start's tuition charges for the 2005-06 school year in full, totaling $37,408.00 (Tr. pp. 78-80).  In particular, respondent testified that the Jump Start portion of the total tuition paid was $11,600.00 for the 2005-06 school year (Tr. p. 79; Parent Ex. M).  In addition, after the student left York Prep in November 2005, the school refunded $16,135.00 to respondent and therefore, respondent sought tuition reimbursement from petitioner for the difference between the amount he paid and the amount he received in refund (Tr. pp. 79-80; Parent Ex. P).

         The impartial hearing officer determined that petitioner's 2005-06 IEP failed to offer the student a FAPE, that York Prep was an appropriate placement, and ordered petitioner to reimburse respondent in the amount of $21,273.00, which reflected the difference between the total amount of tuition paid by respondent less the amount already refunded by York Prep (IHO Decision, pp. 10-12).  The impartial hearing officer concluded that respondent's son showed strong academic progress at York Prep and that respondent's son required a "highly structured and small educational environment in order to benefit from instruction" (IHO Decision, p. 10).

         On appeal, petitioner contends that the impartial hearing officer erred in awarding tuition reimbursement in the amount of $21,273.00 to respondent and argues that tuition reimbursement should be limited to a pro-rated portion of the Jump Start tuition ($11,600.00) for the student's actual period of attendance from September 2005 through November 2005.  Petitioner alleges that Jump Start was the only special education component of the student's day at York Prep, and therefore, respondent is only entitled to reimbursement for the Jump Start portion of the student's enrollment at York Prep.  Petitioner also alleges that it is inequitable to award full tuition reimbursement because respondent has filed another request for tuition reimbursement for the student's current placement in a residential school, which overlaps a period of time covered by the current impartial hearing officer's decision.

         Respondent contends that York Prep was an appropriate placement for the student in 2005-06 and that the impartial hearing officer's decision regarding the amount of tuition reimbursement to be paid by petitioner should be upheld in its entirety.

        One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)¹ is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).²  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (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 [1982]).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

       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 the Bd. of Educ., Appeal No. 06-029; 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 appeal, petitioner does not challenge the impartial hearing officer's determination that it failed to offer respondent's son a FAPE for the 2005-06 school year.³    Inasmuch as petitioner has not appealed that portion of the decision, it is final and not subject to review (34 C.F.R. §300.510 [a]; 8 NYCRR 200.5[i][4][ii]; see also Application of a Child with a Disability, Appeal No. 06-008; Application of a Child with a Disability, Appeal No. 06-001; Application of a Child with a Disability, Appeal No. 03-105; Application of a Child with a Disability, Appeal No. 03-024; Application of a Child with a Disability, Appeal No. 03-002; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-001).  Respondent, therefore, has prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.

        Having determined that petitioner did not offer to provide a FAPE to the student during the 2005-06 school year, I must now consider whether respondent met his burden of proving that placement of his son at York Prep was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  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. 04-108; 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).

        With respect to the second Burlington criterion for an award of tuition reimbursement, the impartial hearing officer determined that respondent sustained his burden of proving the appropriateness of his unilateral placement at York Prep for the 2005-06 school year. I disagree, in part, with the impartial hearing officer's determination to the extent that he determined that general educational services at York Prep met the student's special education needs.

         Petitioner argues that respondent is only entitled to the Jump Start tuition, primarily based upon a previous decision by the State Review Officer involving tuition reimbursement for York Prep and Jump Start, in Application of a Child with a Disability, Appeal No. 05-008.  In that appeal, the record did not support tuition reimbursement for the general education portion of the student's enrollment at York Prep because there was insufficient evidence that "York Prep provide[d] a program of specialized instruction to the student that [met] the student's special education needs as identified in the record" (Application of a Child with a Disability, Appeal No. 05-008 at p. 7).  Similarly, in the instant appeal, the record is devoid of the same evidence with respect to the general educational services provided to the student at York Prep.

         I do concur, however, in part with the impartial hearing officer that the Jump Start services adequately met the student's special educational needs, to the extent that those needs were set forth at the hearing and in the record.  Jump Start addressed the student's needs for organizational skills and provided individualized tutoring to remediate the student's reading and writing needs.  As such, respondent's request for tuition reimbursement should be limited to the Jump Start Program for 2005-06.

         Accordingly, based upon my review of the hearing record, I find that respondent has prevailed with respect to the second Burlington criterion for an award of tuition reimbursement, but that the amount of reimbursement should be limited to the Jump Start Program at York Prep.

        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 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

         In addition, the reasonableness of the cost of services that a parent has obtained is to be considered in determining whether equitable considerations support the parent's claim for tuition reimbursement (see Carter, 510 U.S. 7).  Where the costs of private services are excessive, an impartial hearing officer may limit a parent's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 00-060; Application of a Child with a Disability, Appeal No. 97-10; Application of a Child with a Disability, Appeal No. 96-8).  It is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk (Burlington, 471 U.S. at 373-74).

         Upon the record before me, I find that the impartial hearing officer's determination regarding the amount of tuition reimbursement to be paid by petitioner is unreasonable and excessive given the length of time the student attended the Jump Start Program at York Prep during the 2005-06 school year.  Respondent's son attended Jump Start for approximately 2 and 1/2 months.  York Prep refunded a portion of the tuition paid by respondent despite the fact that York Prep's contract with respondent for the 2005-06 school year did not obligate the school to refund any portion of the tuition paid upon the student's withdrawal, absence or dismissal from York Prep prior to the end of the school year (Parent Ex. L at p. L1).  According to the record, respondent chose to unilaterally place his son at York Prep and understood the nature of the financial risk when he signed the contract with York Prep (id.).  Thus, equitable considerations favor a reduction for tuition reimbursement to a pro-rated portion of the Jump Start tuition, commensurate with the student's attendance in Jump Start during the 2005-06 school year.

           I have considered petitioner's and respondent's 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 held that the general educational services at York Prep were appropriate to meet the student's needs and ordered petitioner to reimburse respondent for the costs of his son's tuition at York Prep and the Jump Start Program in the amount of $21,273.00 for the 2005-06 school year; and

IT IS FURTHER ORDERED, that within 60 days from the date of this decision, petitioner shall reimburse respondent for the costs of his son's tuition in the Jump Start Program in an amount commensurate with the student's 2 ½ month period of attendance in the Jump Start Program during the 2005-06 school year.