06-069

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs and the costs of the Access program at the Knox School (Knox) for the 2005-06 school year.  Petitioners also appeal from the impartial hearing officer's order denying their request to be reimbursed for their son's transportation costs for the 2004-05 school year.  Respondent cross-appeals from the impartial hearing officer's determination that it failed to demonstrate that it had offered to provide an appropriate educational program to the student for the 2005-06 school year and from the decision to award transportation costs to petitioners for that school year.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

            At the time of the impartial hearing in spring 2006, petitioners' son was 18 years old and attending the 11th grade at Knox.  Knox has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7, 200.1[d]).  The student has identified deficits in expressive and written language and the record suggests that he has a history of difficulty with attention (Dist. Ex. 6, at pp. 7-8, 12-13).  His eligibility for special education programs as a student with an other health-impairment is not in dispute in this appeal (see 8 NYCRR 200.1[zz][10]).

            A private neuropsychological evaluation of the student was conducted over four sessions between January 13, 2003 and March 5, 2003, when the student was 15 years old and in the ninth grade (Dist. Ex. 6).  Administration of the Wechsler Intelligence Scale for Children – III (WISC-III) yielded scores indicating cognitive functioning in the average range (Dist. Ex. 6 at p. 12).  The student's scores on performance subtests of the WISC-III identified relative strengths in perceptual organization (perceptual organization index score in the 81st percentile) and the student's score on the freedom from distractibility index of the WISC-III was in the 61st percentile (id.).   Relative weaknesses were revealed in language comprehension, as identified by his score at the second percentile on that subtest (id.).   Administration of the Clinical Evaluation of Language Fundamentals – 3 (CELF-3) also identified weaknesses in language, as evidenced by the student's scores in the ninth percentile on subtests measuring word association and semantic relationships (Dist. Ex. 6 at p. 13).  On the Woodcock Reading Mastery Tests – Revised, the student's subtest score for word identification was at the 61st percentile (10.3 grade equivalent) and his subtest score for word attack was at the 36th percentile (6.9 grade equivalent) (Dist. Ex. 6 at p. 15).  On the Test of Written Language – 3 (TOWL-3), the student's scores on all reported subtests of the TWOL-3 were below age and grade expectations, and his score on the contextual conventions subtest was below the first percentile (Dist. Ex. 6 at p. 16).  The student's performance on standardized tests measuring achievement in math, reading and spelling yielded scores above the 50th percentile in these areas (Dist. Ex. 6 at pp. 15-16).

            The evaluator reported that the student exhibited slight inattention and distractibility during evaluation sessions, but did not demonstrate motor restlessness or impulsivity  (Dist. Ex. 6 at p. 2).   To further assess the student's attending skills, the evaluator administered a computerized, continuous performance task, on which petitioners' son demonstrated adequate skill and "did not evidence a significant, impulsive response style" but demonstrated "a significantly slow response speed to both auditory and visual stimuli" (Dist. Ex. 6 at p. 5). 

            The evaluator further reported that "information provided by the parents and teacher were sufficient to suggest that [the student] met the criteria for an attention deficit hyperactivity disorder [ADHD] of the inattentive type" (Dist. Ex. 6 at p. 8).  The evaluator's report notes that the Behavior Assessment System for Children  (BASC) Parent Rating Scale and Teacher Reporting Scale were completed, but results of these scales are not included in the evaluator's report (Dist. Ex. 6 at p. 16).  In his recommendations, the evaluator suggested that petitioners may wish to discuss medical intervention for ADHD, and noted that he had made referrals to pediatric neurologists (Dist. Ex. 6 at p. 11).  The record does not reveal whether petitioners pursued this recommendation or sought a formal diagnosis of ADHD.

            The evaluator opined that the student's then current public placement in general education was appropriate, but recommended that the foreign language requirement be suspended indefinitely, due to his language difficulties (id. at p. 8).  He further concluded that the student would benefit from accommodations pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l]) (id.).  Petitioners did not immediately share this report with respondent, but did provide it on March 29, 2004, as set forth below (see Tr. pp. 150-54).

            On March 16, 2004, the student was referred to respondent's Committee on Special Education (CSE) for classification (Dist. Ex. 1).  The CSE chairperson sought petitioners' consent to proceed with further evaluations (Dist. Ex. 4).  Respondent asserts that on March 23, 2004, petitioners refused to consent to further evaluations for the student, indicating that they conducted private testing (Dist. Ex. 4 at p. 2).  Petitioners contend that they did not refuse further evaluations, but indicated that they already had a private neuropsychological evaluation (Tr. pp. 55-57).  On March 23, 2004, the CSE chairperson invited petitioners to a CSE meeting, scheduled to take place on March 29, 2004 (Dist. Ex. 5).

            The CSE convened on March 29, 2004  to discuss the student's eligibility for special education services for the 2003-2004 school year (Dist. Ex. 7). The student was determined eligible for special education services and an individualized education program (IEP) was generated as a result of this meeting (id.).  The only evaluation report reviewed by the CSE was petitioners' private neuropsychological evaluation (Dist. Ex. 6).  The CSE recommended classification of the student as a student with an other health-impairment and recommended placement in respondent's district in a general education class, with resource room five times per week (Dist. Ex. 7 at p. 7).  Testing modifications included extended time and a special location (id.).  The IEP also contained goals and objectives addressing writing, reading and study skills (Dist. Ex. 7 at pp. 8-10).  A second set of books was also to be provided to the student (Dist. Ex. 7 at p. 7).  Petitioners approved the proposed program during the meeting (Dist. Ex. 8; Tr. pp. 31, 144). 

            Pursuant to petitioners' request, the March 2004 IEP was later amended on May 4, 2004, by written consent of petitioners without a CSE meeting, to include provision of copies of class notes (Parent Ex. J).  In light of petitioners' request, respondent's CSE had attempted to convene, however, petitioners said they were unable to attend another CSE meeting at that time (Tr. p. 32). 

            The student received resource room services during the period of April 2004 through June 2004 (see Tr. pp. 31-32).  A July 2004 report card indicates that the student received final grades of one B (Band), three Cs (Earth Science, Studio Art and PE), and three Ds (English, Global History, Math) (Dist. Ex. 23).  He achieved passing scores of 80 on the Global History Regents Examination and 79 on the Earth Science Regents Examination (id.).  Testimony from the student's Earth Science teacher revealed that the student's performance in class was not consistent and that his completion of assignments was sporadic (Tr. p. 234). 

            In approximately July 2004, petitioners received a summary of a private evaluation dated May 13, 2004, from Student Success Centers (Dist. Ex. 24; Tr. p. 342).  The evaluation report notes the reason for referral was concern about the student's "math skills, written output, homework, and study skills" (Dist. Ex. 24 at p. 1).  The report notes that the student exhibits weak attention; strong memory; weak expressive language at complex levels, which is affected by his weak attention; strong decoding and reading skills; weak writing ability which "does not reflect the sophistication of his thinking"; and difficulty with math which was attributed to his  frustration and lack of interest (id. at pp. 1-10).  The summary reflected two main weaknesses:  attention and expressive language (id. at p. 11).

            In September 2004, petitioners placed their son at Knox, where he repeated his tenth grade year (Tr. pp. 31-32, 160).  The record is unclear as to why the student repeated tenth grade at Knox, although it appears that he had the choice to do so (Dist. Ex. 26 at p. 10).  The record reflects that Knox is an "independent, college preparatory, coeducational day and boarding school" (Dist. Ex. 27 at p. 19).  Knox is a general education school, and offers a supplemental program called the Access program, which is a non-credit program offered at an additional cost in conjunction with the Knox liberal arts program (Dist. Ex. 27; Tr. pp. 306-07).  The Access program consists of two different programs, Access I and Access II (Dist. Ex. 27).  Students may enroll in either or both programs at any time depending on their needs, and the two programs are not necessarily taken in a sequential manner (id.).  Access I is described in Knox literature as a language-based skills development program that provides specialized instruction for students who require added support to achieve academic success (Dist. Ex. 27).  It is intended as a remedial program for students who have been diagnosed with a language deficit (Tr. p. 401).  In contrast, Access II is described as providing general tutorial support to assist students in meeting their coursework goals (Dist. Ex. 27).  The record does not indicate that the student was initially enrolled in the Access program when he began the school year at Knox in 2004 (Dist. Ex. 26). 

             In late September 2004, petitioners contacted respondent to obtain testing modifications for the student at Knox (Dist. Ex. 12).  On September 30, 2004, petitioners signed written consent to modify the student's IEP to include testing modifications such as double time for testing, separate location, alternate ways to respond, written work to be done on the computer, split testing, language exempt, and oral responding (Parent Ex. N).  The revised IEP with testing accommodations was forwarded to Knox by respondent on September 30, 2004 (Dist. Ex. 13).

            An October 26, 2004 first mid-trimester report card from Knox shows that the student received an F in Geometry, a D+ in English II and an A-, B and B- respectively in Studio Art, Acting, and Current Issues (Dist. Ex. 26 at pp. 10-11).  The teacher comments for English II reflect the student's lack of participation in class and failure to complete homework, and she notes her hope that the student will "continue to organize his focus and motivation" (id. at p. 10).  The student's Geometry teacher similarly commented that he failed to complete any homework and he noted his similar hope that the student "will become more focused and change his attitude" (id.).  No strategies for assisting the student are discussed and the report card does not reflect the student's enrollment in the Access program (id. at pp. 10-11).

            The record reflects that the student first met with an Access I teacher at some point in October 2004 (Dist. Ex. 26 at p. 8).  Additionally, he received Access II tutoring in Geometry in November 2004, which continued throughout the rest of the school year, and also received some English tutoring (Parent Ex. R). 

            A November 2004 advisor comment report from Knox reveals that the student's first term at Knox was "tumultuous" (Parent Ex. Q).  He was failing some of his classes and, not trying in class or on his assignments or tests (id.).  The student's advisor, who is not part of the Access program (Tr. pp. 348-49), stated that he was missing many assignments and not seeking help (id.).  She further indicated that he was not enthused about the upcoming term, but she planned to meet with him on an individual basis once a week, in order to address his concerns and help him organize and complete his assignments (id.).  In contrast, the student's Access II instructor reported in November 2004 that he was a good student and that he should do well (Parent Ex. R at p. 1).

            A December 7, 2004 first trimester report card from Knox reflects that the student received a D in Geometry, an F in English II and 2 Bs and a C for Current Issues, Studio Art, and Acting, respectively (Dist. Ex. 26 at p. 9).  The student's English teacher reports talking to the student and his advisor multiple times in order to solicit a paper assignment from the student that he had failed to complete.  The student ultimately submitted the assignment but received an F due to its inadequacy.  The teacher notes her hope that the student gains "confidence and motivation" (Dist. Ex. 26 at p. 9).  The student's Geometry teacher notes "some improvement," but also that the student continues to fail to complete assignments yet "seems to have sufficient knowledge to get by" (id.).  There is no reference in the report card to the student's enrollment in the Access program.

            A January 2005 report from the student's Access II English tutor indicates that the student was not forthcoming in their tutorial sessions (Parent Ex. R. at p. 2).  The instructor further reported that despite his ability to understand and analyze the work, the student did not seem interested in any aspect of his English assignments (id.).  Also in January 2005, his Access II Geometry tutor reported that the student knew his math and further described him as "very bright" (Parent Ex. R at p. 3).  She further noted that he was completing his homework (id.). 

            A January 27, 2005 second mid-trimester report card from Knox reflects that the student received grades of D in Geometry, C in Acting, B- in English, and As in Health, Russian History, and Access I (Dist. Ex. 26 at pp. 7-8).  The classroom teachers' comments noted the student's improvement in that he began participating somewhat in his classes and also that he was completing the majority of his assignments and homework (id.).  The report card also contained comments from an Access I teacher who noted how the student's classroom participation had increased since she first met him in October 2004 (id.).  She remarked that the student was working on "improving his work ethics" (id.). 

             A March 16, 2005 second trimester report card from Knox reflects that the student received grades of C and C- in English II and Geometry, respectively (Dist. Ex. 26 at pp. 4-5).  He also received grades of A+, A, B+ and D+ in Access I, Health, Russian History and Acting, respectively (id.).  His English II teacher reported a "successful trend of work," but noted that his class participation was still limited (id.).  His Geometry teacher reported that he was completing most of his assignments (id.).  The report card also contains comments from the student's Access I teacher, summarizing their work over the trimester (id.).  The teacher notes that they discussed the difference between "intelligence" and "high grades," and she also comments on the student's argumentative nature and desire to "assert his own individuality" which she opined has hindered his academic performance (id.). 

             On April 15, 2005, the student's Access II Geometry tutor reported that the student's low test scores were the result of his failure to complete and turn in his homework assignments (Parent Ex. R at p. 5).  She noted that the student knew and understood the material and that he could be at the top of his class (id.). 

             An April 25, 2005 third mid-trimester report card from Knox indicated that the student received Fs in English II and Geometry (Dist. Ex. 26 at pp. 2-3).  The teacher comments reflect that he was not participating in class, even when called on directly, and was failing to complete most of his assignments and homework (id.).  In contrast, the student received an A+ from his Access I teacher, who opined that the student's main academic weakness was a lack of motivation stemming from his stubbornness, and also from his "desire to be individual" and his sensitivity to feedback (id.). 

            On May 18, 2005, the student's Access II Geometry tutor described the student as a good math student with a good math background (Parent Ex. R at p. 6).

            A June 9, 2005 final report card for the 2004-05 school year from Knox revealed that the student received final year-end grades of a C- in English II, a C- in Geometry, a B+ in Health, an A- in Evolution, and D in Acting (Dist. Ex. 26 at p. 1).  Overall, his teachers reported that he failed to participate in most of his classes and he still had some problems turning in homework (id.).  There is no reference on this report card to the student being enrolled in Access I and there is no comment from an Access I teacher (id.).

             By letter dated March 31, 2005, respondent's CSE invited petitioners and their son to participate in a CSE annual review for the student for the 2005-06 school year, to take place on April 13, 2005 (Dist. Ex. 14).  This meeting never occurred and the record is unclear as to the circumstances regarding its adjournment (Tr. pp. 82-85). 

              In July 2005, respondent rescheduled the CSE annual review for August 11, 2005 and notified Knox of the date and time by letter (Dist. Exs. 15, 16).  Petitioners sent a facsimile on August 11, 2005 "cancelling my annual review" (Dist. Ex. 17).  Petitioners referenced generally that their son's IEP was "not legally sound," and that the student would continue to attend Knox for the 2005-06 school year, further informing respondent to "[c]onsider this your ten day notice of our unilateral educational placement" (id.).  The notice did not indicate that petitioners intended the unilateral placement to be at public expense. It is undisputed that the CSE had not been able to prepare an IEP because the it had not yet convened, as detailed above. 

              On August 17, 2005, petitioners faxed respondent a letter requesting an annual review and rescheduling of the CSE meeting:  "Having now learned that an annual CSE meeting is necessary to obtain an IEP for [the student] for 2005-06, we would like to request such a meeting take place as soon as possible."  (Dist. Ex. 18).  In their August 17, 2005 letter, petitioners asserted confusion over the CSE process and also in particular their concern about obtaining testing modifications from the College Board for the student (id.).  The August 17, 2005 letter also did not indicate that petitioners would be seeking reimbursement for costs at the private school (id.).

              On August 24, 2005, respondent scheduled a CSE meeting for September 2, 2005 (Dist. Exs. 19, 20).     The CSE convened on September 2, 2005, and the IEP prepared as a result of that meeting is the IEP in dispute in the present appeal (Dist. Ex. 22).  Notes on the IEP indicate that petitioners, the CSE chairperson, a school psychologist, a special education teacher, a regular education teacher and an additional parent member were in attendance (Dist. Ex. 22 at p. 5).  At the meeting, respondent inquired about the student's general progress at Knox (Tr. pp. 37, 255-56).  Respondent's CSE chairperson recalls petitioners "being extremely pleased with his progress" at Knox (Tr. p. 37).  Petitioners report that they informed respondent that the student was progressing, still had to progress more, and that "hopefully it's going to get better" (Tr. pp. 256).  Pursuant to petitioners' request, the CSE continued its recommendations that the student be provided with resource room and testing accommodations (Dist. Ex. 22 at p. 3).  The IEP reflects that the CSE recommended resource room services be provided at respondent's public school (id.at p. 1).  Respondent asserts that petitioners were offered a resource room at a public school closer to Knox, or directly at Knox, but that petitioners were not interested in either form of resource room because they stated they were happy with the support program at Knox (Tr. p. 37).  Petitioners assert that respondent never offered resource room at a public school closer to Knox, or directly at Knox (Tr. pp. 276-78).  Petitioners did not sign the "Parent Reply Statement" indicating their affirmative consent to the September 2, 2005 IEP at the CSE meeting (Parent Ex. P). 

            On October 17, 2005, petitioners mailed a request for an impartial hearing to respondent regarding the September 2, 2005 IEP (IHO Ex. 1).  The seven page request asserts numerous problems with the IEP, including that the CSE failed to consider adequate current functional, developmental and academic information; that the CSE failed to determine the student's present levels of performance in multiple areas, including academic or educational achievement; and that the IEP fails to state any academic, social, physical or management needs, despite continuing his classification.  The impartial hearing request asserts that respondent failed to provide transportation to Knox for the 2004-05 and 2005-06 school years and failed to provide resource room from September 2005 to date.  Petitioners' requests for relief include inter alia a request for transportation reimbursement for 2004-05 and 2005-06 school years, and a request for tuition reimbursement and related expenses reimbursement for Knox for 2005-06.

            The student's report cards from Knox for the first and second trimesters of the 2005-06 school year reflect better grades overall than the 2004-05 school year (Parent Exs. T, U).  However, the student's grades still fluctuated greatly, along with his class participation and completion of homework assignments (id.).  An October 24, 2005 first mid-trimester report card from Knox revealed that the student received As in English and Environmental Science, Bs in U.S. History, Photography and Access I, and an F in Algebra II (Parent Ex. T at p. 1).  This report card also notes that the student is working on "skill sets related to language" in Access I (id.).  Access I is not referenced on the subsequent report cards for the 2005-06 school year (Parent Exs. T, U).  A November 29, 2005 first trimester report card from Knox reflects that the student received an A- in Environmental Science, Bs in English Composition III, U.S. History, and Photography, and a C+ in Algebra II (Parent Ex. T at p. 2).  A March 10, 2006 second trimester report card from Knox reflects that the student received an A+ in Photography I, Bs in Modern American Poetry, Environmental Science, and U.S. History, and a D in Algebra II (Parent Ex. U).  The record does not contain standardized test score results from Knox related to the student's 2004-05 or 2005-06 school years. 

            An impartial hearing commenced on March 30, 2006 and concluded on April 3, 2006, after two days of testimony.  At the impartial hearing, petitioners contended that the IEP developed in September 2005 was procedurally and substantively defective, and resulted in a denial of a free appropriate public education (FAPE) for the 2005-06 school year.  They claimed that, despite the fact that Knox did not hold itself out as a special education school, it offered their son an appropriate education and met their son's needs (Tr. p. 9).  Petitioners sought tuition reimbursement for the 2005-06 school year.  In the alternative, petitioners sought tuition reimbursement for the Access program at Knox during the 2005-06 school year, pursuant to Education Law § 3602-c, arguing that respondent refused to provide resource room services at Knox (Tr. p. 12).  Lastly, petitioners demanded reimbursement for transportation expenses pursuant to Education Law § 4402 for the 2004-05 and 2005-06 school years (Tr. pp. 15-17). 

            Respondent contended that it offered the student an appropriate program, and that petitioners never expressed any dissatisfaction with the proposed program (see Tr. pp. 5-7).  Respondent also argued that it had accommodated each of petitioners' requests, and that petitioners' primary concern was that their son receive testing accommodations (Tr. pp. 5-6).   Furthermore, respondent asserted that, in light of petitioners' failure to voice their dissatisfaction with the September 2005 IEP, equitable considerations weighed against their claim for tuition reimbursement (Tr. pp. 7-8). 

            By decision dated May 31, 2006, the impartial hearing officer held that, given a number of procedural violations, respondent failed to offer the student a FAPE during the 2005-06 school year (IHO Decision, pp. 11-13).  He concluded that respondent did not have sufficient information to appropriately consider the student's needs and present levels of performance.  Next, he found that petitioners failed to establish that Knox was appropriate to meet their son's special education needs, concluding both that there was insufficient information to determine the student's needs and that there was insufficient evidence of the student's progress at Knox (IHO Decision, p. 13).  Based on the foregoing, the impartial hearing officer stated that there was no reason to determine if equitable considerations weighed against an award of tuition reimbursement.  Accordingly, he denied petitioners' claim for tuition reimbursement for the 2005-06 school year. 

            Next, the impartial hearing officer addressed petitioners' state law claims.  The impartial hearing officer concluded that petitioners' request for reimbursement for transportation for the 2004-05 school was time-barred; however, he awarded out-of-pocket transportation costs for the 2005-06 school year, because he found, for purposes of his state law analysis only, that petitioners had the intent of sending the student to a private school special education program (IHO Decision, pp. 16-17).  He found that although petitioners missed the statutory deadline of April 1 for asserting their transportation claim, they had a reasonable explanation for the delay, which is a statutory exception to the deadline (IHO Decision, pp. 17-18).  In finding a reasonable explanation, he noted the legal complexities of this case, the failure of respondent to meet its own federal procedural and substantive obligations and the purpose of the state notice provision (IHO Decision, p. 18).  With respect to petitioners' claim for reimbursement for resource room services pursuant to state law, the impartial hearing officer denied their claim, finding that they were precluded from seeking reimbursement under the state law when they were asserting an Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)¹ claim for the same services (IHO Decision, p. 15).

            On appeal, petitioners assert that the impartial hearing officer erred in denying petitioners' request for reimbursement of tuition, Access I and II services, and transportation expenses that they incurred during the 2005-06 school year regarding their unilateral placement of the student at Knox.  Petitioners seek reimbursement of the above expenses under the Burlington/Cartertuition reimbursement analysis.  Petitioners also seek relief in the alternative under state law:  petitioners seek reimbursement for Access I and II services for the 2005-06 school year pursuant to New York Education Law § 3602-c; and also seek "out-of-pocket and other transportation related relief" retroactive to October 17, 2004 pursuant to New York Education Law § 4402(4)(d).

            Respondent cross-appeals, asserting that the impartial hearing officer erred in awarding petitioners reimbursement for transportation expenses to Knox, erred in finding that respondent failed to offer the student a FAPE, and erred in requiring respondent to put on its case first at the impartial hearing.  Regarding the transportation expenses, respondent asserts that the claim is time-barred, that petitioners failed to meet the statutory April 1 deadline, and that Knox is more than 15 miles from petitioners' residence and is not providing special education programs or services similar to the resource room program offered by respondent.  Regarding the denial of FAPE, respondent asserts that the student's IEP provided the program requested by petitioners.

            Petitioners also submitted a subsequent pleading labeled a "Reply," which in fact replied to respondent's answer, and also answered respondent's cross-appeal and submitted two affirmative defenses to the cross-appeal.  I must note that pursuant to section 279.6 of the Regulations of the Commissioner of Education, the reply is limited to any procedural defenses interposed by respondent or to any additional documentary evidence included with the answer. Consequently, because the allegations raised by petitioners in their reply do not respond either to procedural defenses interposed by respondent or to additional documentary evidence included with the answer, they have not been considered (Application of a Child with a Disability, Appeal No. 04-064; Application of a Child with a Disability, Appeal No. 02-009).

             Regarding petitioners' affirmative defenses raised in their answer, petitioners first assert upon information and belief, that respondent's cross-appeal was not authorized by the board of education because no resolution was annexed to respondent's pleading, and next assert that respondent's answer failed to reference the record in compliance with 8 NYCRR 279.8(b).  Respondent submitted a reply to petitioners' procedural defenses, first asserting that the cross-appeal was authorized and attaching a resolution of the board of education.  I note that as a general rule it is not necessary for a school district to annex resolutions of the board of education to their pleadings.  Second, respondent asserted that it complied with 8 NYCRR 279.8(b) and asserted that petitioners failed to fully comply with that regulation.  Both parties' filings on appeal extensively cite to the record, in compliance with 8 NYCRR 279.8(b), and I will therefore consider the papers submitted by each side as set forth above.

            One of the main purposes of the IDEA¹ 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 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  "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 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993].  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; see 20 U.S.C. § 1412 [a] [10][C][ii]). With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Frank G. v. Bd. of Educ. of Hyde Park, -- F.3d --, 2006 WL 2077009 [2d Cir.]; Mrs. C. v. Voluntown, 226 F.3d 60, 66 n. 9 [2d Cir. 2000]).

            The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C., 226 F.3d at 66.  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]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  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 (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][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][3][E][iii]). 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, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], 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).  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).

            Respondent has cross-appealed the impartial hearing officer's finding that respondent failed to offer the student a FAPE for the 2005-06 school year.  I concur with the impartial hearing officer's conclusion on this issue for the reasons set forth herein.  Specifically, the impartial hearing officer found inter alia in reference to the September 2, 2005 IEP, that respondent had failed to meet its obligation to have adequate evaluations for the student and failed to conduct a proper CSE meeting by focusing exclusively on testing accommodations in an apparent attempt to accommodate petitioners.  The impartial hearing officer found that "the procedural violations amount to a near-total dereliction of the district's mandated responsibilities, admittedly in a context in which it appears to have believed that it was simply accommodating the parents' wishes" (IHO Decision, p. 11).  Respondent was required to comply with IDEA requirements in terms of formulating an appropriate IEP based upon adequate evaluations and as the impartial hearing officer found, the record establishes that this did not occur relating to the September 2, 2005 IEP.  The insufficiency of evaluative data, combined with the inadequacy of the IEP contents, requires the conclusion that respondent failed to offer the student a FAPE for the 2005-06 school year (Dist. Ex. 22). 

             Respondent asserts that some of the issues raised by petitioners at the impartial hearing and on appeal were not raised in their impartial hearing request.  Respondent also asserts that any procedural violations were de minimis, and relies heavily on the assertion that it provided what petitioners requested.  Even after excluding issues that respondent asserts petitioners failed to raise in their hearing request, the lack of adequate evaluative data was more than de minimis and resulted in an insufficient IEP.  As of the September 2, 2005 CSE meeting, respondent had no additional evaluative information beyond what had been considered at the initial March 24, 2004 CSE meeting, which consisted solely of petitioners' private evaluation report obtained in March 2003.  Under the circumstances of this case, I find the evaluative information before the CSE was not sufficient, nor was the evaluative information that was before the CSE sufficiently considered, and this deficiency compromised the appropriateness of the student's substantive educational program as detailed below.

              The record reflects that the CSE failed to adequately consider the evaluative data that it did possess.  The private evaluation report clearly references the student's language difficulties, including difficulties with pragmatic language skills, along with organizational difficulties, and problems with decoding and written expression (Dist. Ex. 6).  Notably, the September 2, 2005 IEP states that the student has no needs in the academic, social, physical or management domains, and also fails to specify any areas of deficit (Dist. Ex. 22).  On the IEP, under "present levels" for the category of "academic/educational achievement and learning characteristics," it is noted that the student "performs consistently in the classroom" (id. at p. 2).  The student's "deficit areas" are referred to in a conclusory manner under least restrictive environment considerations, without any explanation (id. at p. 3).  Only one goal is listed on the IEP, for the student to "improve organization and study skills," with four corresponding objectives or benchmarks (id. at p. 6).  The IEP did not adequately address the student's special education needs.

             Respondent asserts that petitioners were clear at the CSE meeting on September 2, 2005 that they intended to keep their son at Knox and that they did not indicate dissatisfaction with respondent's recommendation (Tr. pp. 38-39, 140-41).  However, prior to the September 2, 2005 CSE meeting, respondent had received a letter from petitioners referencing their "unilateral educational placement" of their son for the 2005-06 school year (Dist. Ex. 17) and petitioner father testified at the hearing that at that time they were willing to consider placement in public school (Tr. pp. 296-97).  Under the circumstances of this case, I find that respondent had a duty to offer the student a FAPE for the 2005-06 school year and I concur with the impartial hearing officer for the reasons stated above that petitioners met their burden in establishing that respondent failed to meet this obligation.  Respondent raises multiple issues regarding the conduct of petitioners that are more appropriately raised under consideration of the equities, the third Burlington/Carter criterion.³ 

            Having determined that respondent did not offer a FAPE to the student during the 2005-06 school year, I must now consider whether petitioners have met their burden of proving that placement of their son at Knox was appropriate (Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 06-030; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  As noted above, in order to meet that burden, petitioners 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 (Frank G., 2006 WL 2077009 [2d Cir.]; Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

             The impartial hearing officer concluded that petitioners failed to sustain their burden of establishing that Knox was appropriate to meet their son's special education needs.    Specifically, the impartial hearing officer held that a lack of evaluative data and information concerning the student's needs in the record precluded petitioners from establishing what the student's special education needs were, and therefore whether Knox offered an educational program to meet those needs.  The impartial hearing officer also questioned whether the student had shown academic progress because his grades were similar to those he achieved while attending school in respondent's district (compare Parent Ex. C, with, Parent Exs. T, U). 

             On appeal, petitioners assert that their unilateral placement for 2005-06 should be analyzed for appropriateness only at the time when the placement was made, and yet they also assert that the impartial hearing officer erred in failing to give sufficient weight to the fact that the student's grades improved over the course of the 2005-06 school year at Knox.  Petitioners also assert that they proved that Knox was appropriate by establishing that Knox met the student's special education needs as established by the goals for the student set forth in the IEPs that respondent had prepared for the student for the 2004-05 and 2005-06 school years.  Respondent asserts that Knox failed to provide any special education services to the student and also that the student failed to progress at Knox. 

              Based upon my review of the record in its entirety, I find that the evidence does not demonstrate that Knox was appropriate to meet the student's special education needs at the time of placement or that the placement was appropriate at the time of the impartial hearing.  

              I concur with the impartial hearing officer's conclusion that the student's special education needs for the 2005-06 school year were not clearly established.  Petitioners' own private evaluations from 2003 and 2004 are the only evaluations in the record (Dist. Exs. 6, 24).  To the extent that the student's special education needs were set forth in these evaluations, petitioners established that in 2003 the student had language difficulties, organizational difficulties, and problems with decoding and written expression.  Petitioners further established based upon the 2004 Student Success Centers evaluation that the student continued to have needs relating to expressive language and written expression.  Both evaluations clearly emphasized the student's language and attention deficits.  Further, although the 2003 private evaluation report noted that the student's math skills were at or above age and grade expectations (Dist. Ex. 6 at p. 7), the student's inattention and impulsivity were affecting his math work (Dist. Ex. 26 at p. 15). 

              Based on the evidence in the record regarding the student's needs in 2004-05, the record does not demonstrate that Knox was appropriate to meet the student's special education needs at the time of the placement for the 2005-06 school year.  The record fails to establish that Knox was addressing the student's special education needs during the 2004-05 school year and there was no evidence presented by petitioners that Knox was planning on providing any different services to the student for the following school year. 

               It is undisputed that Knox is a general education college preparatory school.  Petitioners assert that the small class size at Knox, which ranged from 4 to 11 students for the student's classes during the 2005-06 school year (Tr. p. 347), constitutes one component of the specialized instruction that meets the student's needs.  Notably, neither of petitioners' private evaluators recommends small class size for the student, and the 2003 evaluation specifically notes that his general education public school ninth grade placement was appropriate (Dist. Exs. 6, 26).  Petitioners failed to establish that small class size at Knox was required to meet any of the student's established special education needs.

               Further, at the time of the unilateral placement in fall 2005, the student had just completed the 2004-05 school year at Knox and had received both Access I and II services at points throughout that school year, as detailed above.  The record fails to establish how Access I or II was meeting any of the student's special education needs and fails to establish that the student was receiving any specialized instruction in the classroom, through the Access program, or through his advisor.  The student's advisor, who began teaching at Knox in fall 2004 and who had her educational background in science and marketing, testified that she provided the student with organizational assistance throughout the 2004-05 school year (Tr. p. 351).  The record also fails to establish that the student received any language-based assistance through Access I or II during the 2004-05 school year.  His Access I teacher attributed his academic problems to a lack of motivation, stubbornness, his attitude and argumentative nature, as well as a desire to be individual.  The record does not reflect that she ever investigated or addressed language, attention or organization deficits of the student, despite the classroom teachers' comments throughout the 2004-05 school year that the student failed to participate in class, was unorganized, and failed to complete assignments and homework (Dist. Ex. 26).  The classroom teachers' comments also reflected that the student had the ability to do the work.  The student was receiving failing grades in English and math at different points throughout the year, despite his participation in the Access program and any assistance he was receiving from his advisor.  Based upon the evidence in the record, which includes multiple tutor reports and report cards, the student's success or failure in his classes during the 2004-05 school year did not correlate in any observable manner to the Access I or II services that he was receiving.  In summary, the record suggests that the student may have deficits in language and attention which continued to exist at the commencement of the 2005-06 school year, which is when petitioners made the unilateral placement of the student that is at issue on this appeal.  Based on a review of the record, I find that at the time that petitioners continued the student's placement at Knox for another year, the program was not appropriately designed and implemented so as to offer an educational program that met their son's special education needs (see, generally, Application of a Child with a Disability, Appeal No. 06-030).

                Second, petitioners also assert that the student progressed over the course of the 2005-06 school year and that this demonstrates the appropriateness of petitioners' unilateral placement.  Respondent asserts that the student failed to progress in his areas of need.  I concur. 

                The record establishes that the student received Access I services initially in the 2005-06 school year, but at some point early in the 2005-06 school year, he stopped receiving Access I services and continued receiving only Access II services (Tr. pp. 412-14).  Respondent's supervisor of the Access program noted that the student felt stigmatized by Access I, and therefore the services were dropped (Tr. pp. 412-13).  The supervisor opined that respondent continued to provide the same Access I services to the student under the auspices of the Access II program, although she did not work with the student (Tr. p. 407).  She further noted that the student's Access I services at the start of the 2005-06 school year had focused on his expressive language difficulties, but that this work was soon halted after the student was "very resistant" and "did not want to be told to do something, that he didn't feel was important" (Tr. p. 411).  The time that had been briefly spent on language work was then spent on math and other subject matter tutoring (Tr. pp. 411-12).  The Access II program provides only general subject matter tutoring and the evidence in the record does not establish that the student received specialized instruction to meet his special education needs, to the extent they were established.

                Respondent provided evidence that general subject matter tutoring is distinguishable from resource room (Tr. pp. 29-30).  For example, the resource room teacher would be able to provide compensatory strategies for language acquisition (id.).  In contrast, subject matter tutoring would only focus on the content of the curriculum (id.).  The Access II tutors who worked with the student during the 2005-06 school year were college graduates but had no special education training (Tr. p. 427).

                The record fails to establish that Access II provided the student with any individualized instruction that addressed his problems with math.  Further, the student's Algebra II grade at Knox for the first mid-trimester of 2005-06 was an F (Parent Ex. T).  His Algebra II teacher noted that he had "many incomplete and missing assignments" and that "he should plan on being more attentive in class" (id.).  The record does not demonstrate that either the small classes or the tutoring at Knox was addressing the student's special education needs in this area.  Subsequent report cards show that the student's first trimester grade in Algebra II was a C+ (id.), and his second trimester grade declined to a D (Parent Ex. U).  His Algebra II teacher noted that although he had received an A+ on the second trimester exam, he still struggled with completing homework, resulting in his final grade of a D, and the teacher recommended that the student "should plan on tutoring in all course work" (id.).

                The teachers at Knox reported sporadic progress and setbacks throughout the student's classes during the 2005-06 school year, but did not attribute his failure to participate in class or lack of interest in his classes to any special education needs that he may have.  Beyond encouraging him to complete assignments and homework, the classroom teachers and Access tutors did not employ any individualized strategies to address his language and attentional problems.  His teachers noted that he had the ability to complete his assignments and homework.  Therefore, while Access II tutoring services may have helped to ensure that the student completed some of his assignments, the record does not demonstrate that these services were addressing his special education needs.  The record does not establish that the student needed assistance with the substantive nature of the homework or assignments, but rather that he needed his language and attention deficits addressed.  Beyond briefly attempting to address the student's expressive language difficulties at the beginning of the 2005-06 school year, before halting those services suddenly when met with the student's resistance, the record fails to demonstrate that Knox was even cognizant of special education needs of the student.  It reflects that his teachers and tutors at Knox, including his Access I teacher during 2004-05, felt he had the ability to succeed but merely lacked motivation. 

                 Based upon the foregoing, the program that petitioners' unilaterally selected for the student for the 2005-06 school year at Knox was not appropriate to address the student's special education needs as established by the record.  I find that petitioners have not met their burden of proof with regard to the second criterion for an award of tuition reimbursement (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 06-055; Application of a Child with a Disability, Appeal No. 06-014).  Therefore, I need not reach the question of whether equitable considerations support petitioners' claim for reimbursement, the third prong of the Burlington/Carter analysis (Application of a Child with a Disability, Appeal No. 06-055; Application of a Child with a Disability, Appeal No. 05-119).  Accordingly, I concur with the impartial hearing officer's denial of tuition reimbursement, including reimbursement for Access, and transportation expenses for the student's 2005-06 school year under a Burlington/Carter analysis.

            Next, I will consider petitioners' state law claims for reimbursement for the Access program for the 2005-06 school year, and for out-of-pocket and other transportation relief back to October 17, 2004.

            First, petitioners appeal the impartial hearing officer's denial of their claim pursuant to Education Law 3602-c for reimbursement for the Access program at Knox for the 2005-06 school year.  Respondent asserts that petitioners' Section 3602-c claim should be dismissed because petitioners missed the June 1 deadline for their request and because the Access II services provided to the student during the 2005-06 school year did not constitute special education.

              In contrast to the IDEA, New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools.  Education for students with disabilities means special education programs "designed to serve" students with disabilities (N.Y. Educ. Law § 3602-c[1][d]). Subdivision 2 of section 3602-c of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools.  The impartial hearing officer determined that petitioners did not file a request for services until August 30, 2004, well after the June 1, 2004 deadline.  There was neither a timely request for dual enrollment services, nor a waiver by respondent of such a requirement. 

              Although boards of education are required by the IDEA to provide some special education services to some children enrolled privately by their parents in nonpublic schools, no such children are individually entitled under the IDEA to any or all of the services they would receive if enrolled in a public school (34 CFR § 300.454).  In contrast to the IDEA, New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools.  Section 3602-c of the Education Law requires the provision of special education services to children with disabilities who are enrolled by their parents in nonpublic schools, when FAPE is not at issue, provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made (N.Y. Educ. Law § 3602-c[2]).  Dual enrollment services can be provided to children with disabilities "according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends" (Bd. of Educ. v. Wieder, 72 N.Y. 2d 174, 186 [1988]; see Bay Shore Union Free Sch. Dist. v. T.,  405 F. Supp. 2d 230 [E.D.N.Y. 2005]; Application of the Bd. of Educ., Appeal No. 04-079). 

            I concur with the impartial hearing officer's denial of reimbursement to petitioners relating to the Access program at Knox for the student's 2005-06 school year pursuant to section 3602-c of the New York Education Law.  First, petitioners failed to timely make a request pursuant to section 3602-c prior to the June 1 statutory deadline (Educ. Law § 3602-c[2]) and respondent did not waive the requirement.  Second, the services provided at Knox for the 2005-06 school year through the Access program did not constitute "resource room" or a "special educational program," as detailed above (Educ. Law §§ 3602-c[1][a], [1][d], [2]; 4401[2][a]).  Lastly, respondent had in fact offered resource room services at the public school to petitioners' son for the 2005-06 school year and therefore petitioners cannot now assert that they should be reimbursed for obtaining what they assert to be similar services.  Respondent asserts that resource room was offered to petitioners' son directly at the private school for the 2005-06 school year at the September 2, 2005 CSE meeting.  Petitioners dispute this and assert that resource room was only offered at the public school.  In any event, respondent was not required to offer resource room services at the private school because the record reflects that the services could have been provided separately and the services are severable from the student's participation in the classroom (Wieder, 72 N.Y.2d at 186).  I therefore concur with the impartial hearing officer's determination on this issue for the reasons set forth above.

            Petitioners' last request is a claim for reimbursement for out-of-pocket and other transportation-related relief from October 17, 2004 through the end of the 2004-05 school year.  Respondents' cross-appeal and claim that the impartial hearing officer erred in awarding petitioners reimbursement for out-of-pocket and other transportation-related expenses related to the 2005-06 school year.  The impartial hearing officer held that a one year statute of limitations applied to petitioners' transportation claim under N.Y. Education Law 4402(4)(d).  He further held that although petitioners had missed the April 1 deadline for making such a request, they had a reasonable explanation for their delay based upon the facts of this legally and procedurally complex case.

             Education Law § 3635[1][b][ii] states that a board of education may provide transportation for students to a nonpublic school located no more than 15 miles from the student's home.  Parents must also submit a written request for this service by April 1 preceding the next school year and late requests will not be denied if the parent has a reasonable explanation for the delay (Educ. Law § 3635[2]).  The Education Law also provides an exception to the 15 mile limit, stating that a board of education will provide transportation up to 50 miles if the student is classified as eligible to receive special education services by the district and is attending a nonpublic school "for the purpose of receiving services or programs similar to special educational programs" recommended for the student by the CSE (Educ. Law § 4402[4][d]). 

            I need not address the impartial hearing officer's statute of limitations finding or his conclusion that petitioners had a reasonable excuse for their delay in submitting a request for transportation.  The transportation claim asserted by petitioners required that they be sending their son to a private school for the purpose of receiving services or programs similar to special education programs recommended by the CSE (Educ. Law § 4402[4][d]).  The impartial hearing officer found that the services or programs were "similar."  However, as set forth in detail above, I do not find that the services or programs that were provided to the student at Knox for the 2005-06 school year were similar to the resource room services recommended by the CSE for petitioners and therefore I do not find this statutory requirement is established.  On this basis, I find that the impartial hearing officer erred as a matter of law in awarding transportation reimbursement to petitioners.

            I have considered petitioners' and respondent's remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it awarded reimbursement to petitioners for out-of-pocket and other transportation expenses for the 2005-06 school year.