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
Neal H. Rosenberg, Esq., attorney for respondents
Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son for the 2005-06 school year and ordered it to reimburse respondents for the costs of their son's learning resource center (LRC) program at the Columbia Grammar and Preparatory School (Columbia Grammar). Petitioner also appeals from the impartial hearing officer's decision which ordered it to pay for the costs associated with the delivery of private speech therapy, occupational therapy (OT) and after-school tutoring. The appeal must be sustained in part.
At the time of the impartial hearing on May 30, 2006, respondents' son was nine years old and attending third grade at Columbia Grammar (Tr. p. 76). The child also was participating in Columbia Grammar's LRC program, which provides remedial assistance to Columbia Grammar students (Tr. p. 77). Columbia Grammar has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). Respondents' son presents with significant deficits in all aspects of language processing, as well as in receptive and expressive skills (Dist. Ex. 3 at p. 1). His diagnoses include: reading disorder; developmental coordination disorder; and an attention deficit hyperactivity disorder (ADHD), inattentive type (Dist. Ex. 6 at p. 10). The child's eligibility for special education programs and services as a student with a learning disability is not in dispute (see 8 NYCRR 200.1[zz]).
Respondents' son attended three years of preschool at a private school (Dist. Ex. 10 at p. 2). He began attending Columbia Grammar in kindergarten (Dist. Ex. 6 at p. 2). A private neuropsychological and educational evaluation of respondents' son was conducted over five days in December 2003 when he was in the first grade because he was having problems with reading due to difficulties with phonetic awareness, and was at the bottom of his class academically (Dist. Ex. 6 at pp. 1-2). Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension index score (and percentile) of 99 (47th), a perceptual reasoning index score of 90 (25th), a working memory index score of 94 (34th), a processing speed index score of 118 (88th), and a full scale IQ score of 99 (47th), indicating overall intellectual functioning found to be in the average range (Dist. Ex. 6 at p. 3). The psychologists who conducted the evaluation noted in their neuropsychological and educational evaluation report (report) that results of the WISC-IV were an accurate assessment of current functioning, but thatthere was a high degree of intra-test scatter observed throughout the subtests suggesting that the child's scores may be an underestimate of his full cognitive potential (Dist. Ex. 6 at pp. 3, 8).
The Wechsler Individual Achievement Test-Second Edition (WIAT-II) was also administered to respondents' son as part of the December 2003 evaluation (Dist. Ex. 6 at p. 4). He achieved standard (and percentile) scores of 115 (84th) on the subtest measuring mathematical reasoning and 95 (37th) on mathematical computation (id.). He achieved standard (and percentile) scores of 62 (1st) on reading comprehension (Dist. Ex. 6 at p. 5) and 80 (9th) as a reading composite score (Dist. Ex. 6 at p. 13).
When presented with a phonological processing component of the Woodcock Diagnostic Reading Battery, the child achieved standard (and percentile) scores of 96 (40th) in sound blending, a test requiring the child to blend phonemes into words, and 104 (59th) in incomplete words, a test measuring auditory closure (Dist. Ex. 6 at p. 5). The evaluators noted that the child's performance suggested that he was learning the phonetic rules of reading and that he did not appear to have significant problems in phonological processing (id.). The evaluators opined that this was likely the result of prior interventions (id.). The evaluators also noted, however, that despite achieving average scores on the above testing, the child's performance on a measure of reading comprehension was poor, having achieved a standard (and percentile) score of 62 (1st), suggesting that the process of decoding remained extremely "effortful" for him, leaving him less resources to attend to the meaning of what he was reading (id.). The evaluators described the child as having reading difficulties, due to vulnerabilities with both language and visual perception, which interfere with his ability to learn and perform at a level commensurate with his intellectual development (Dist. Ex. 6 at p. 10). The report reflected that the child had difficulties comprehending language that was more complex (Dist. Ex. 6 at p. 9) and that he had problems learning sound-symbol links, which is a skill utilized in developing reading ability (id.). The evaluators also found that the child presented with immature motor skill development (Dist. Ex. 6 at p. 10).
In their report the evaluators also noted that during the evaluation process the child was unable to sustain focus consistently without redirection (Dist. Ex. 6 at p. 9). The evaluators indicated that respondents' son presented with attention deficit disorder (ADD), and also presented with vulnerabilities in language and visual processing which have resulted in a reading disorder (id.). The evaluators noted that the child's attention deficits and vulnerabilities with language interfered with his ability to rapidly retrieve language, as well as with language formulation, sequencing, making and retaining sound-symbol links, visual motor integration, and motor skill development (id.).
In their report, the evaluators recommended that the child receive speech-language therapy to address his difficulties with both expressive and receptive language and OT to address problems with fine motor and visual motor skills (Dist. Ex. 6 at p. 10). In addition, the evaluators recommended that respondents' son receive reading instruction using a multisensory approach to learning to read and that he learn keyboarding to minimize fine motor demands (id.). To address the child's difficulty remaining focused, the evaluators recommended preferential seating away from peers with whom he was most likely to chat, and the establishment of a cue to be used by his teacher to redirect the child's attention (id.). Breaking down of complex tasks and instructions into more manageable components was also recommended, as was placement in a structured and routine environment and participation in extracurricular activities (id.).
Petitioner's school social worker conducted two classroom observations in April 2004 when the child was in first grade at Columbia Grammar (Dist. Exs. 11, 12). The first classroom observation was conducted in the child's math class, which consisted of 18 students and two teachers (Dist. Ex. 11). The child was observed sitting in the front row (id.). The child's math class was divided into two groups of nine students for each teacher (id.). During the observation period, the child requested and received assistance with his math problems, which were broken down by the teacher so the child would understand the problems in his assignments (id.). The child lost focus whenever the teacher was not working with him directly, but regained focus when the teacher called out his name (id.). For the second observation conducted in April 2004, the child was observed in a classroom participating in a reading group, which consisted of four children and a teacher (Dist. Ex. 12 at p. 1). Petitioner's social worker noted that the child needed to be refocused numerous times during the lesson (Dist. Ex. 12 at pp. 1-2).
A social history update was conducted on May 5, 2004 (Dist. Ex. 10 at p. 1). The child's mother reported that at that time her son was one of the weakest readers in his class; that he spent a lot of time decoding, which affected his comprehension; that he was attending the LRC three times a week; and that he struggled with his homework and was unable to do it independently (Dist. Ex. 10 at p. 2).
Petitioner's Committee on Special Education (CSE) convened on August 27, 2004 (Dist. Ex. 2). For the 2004-05 school year, the CSE recommended that the child be classified as a student with a learning disability and that he be placed in a second grade general education class and receive special education teacher support services (SETSS) five times per week with an 8:1 student to staff ratio (Dist. Ex. 2 at p. 1). In addition, the CSE recommended that the child receive 30 minutes of group speech-language therapy twice a week, 30 minutes of individual physical therapy twice a week, and 30 minutes of individual OT twice a week (Dist. Ex. 2 at p. 16). The student remained at Columbia Grammar for the 2004-05 school year (Dist. Ex. 5).
A private speech-language progress report dated July 1, 2005 indicated that respondents' son was receiving private speech-language therapy, but continued to struggle with basic linguistic and syntactical concepts such as the production of irregular verb tenses and irregular plurals (Dist. Ex. 3 at p. 1). Continuation of speech-language therapy was recommended (Dist. Ex. 3 at p. 2). In a letter dated July 11, 2005, the private occupational therapist recommended that the child continue to receive OT because he had an immature pencil grip, his visual-motor integration was significantly below age expectations, and he was unable to produce neat and legible manuscript writing (Dist. Ex. 4).
Petitioner's CSE convened on July 20, 2005 (Dist. Ex. 1). Respondents participated at the CSE meeting by telephone (Tr. p. 132; Dist. Ex. 1 at p. 2). For the 2005-06 school year, the CSE recommended that respondents' son be classified as a student with a learning disability and recommended that he be placed in a third grade general education class and receive SETSS five times per week with an 8:1 student to staff ratio (Dist. Ex. 1 at p. 1). In addition, the CSE recommended that the child receive 30 minutes of group speech-language therapy twice a week, 30 minutes of individual physical therapy twice a week, and 30 minutes of individual OT twice a week (Dist. Ex. 1 at p. 13).
By letter dated October 27, 2005, respondents rejected the CSE's recommended placement, which prompted an impartial hearing concerning their son's educational program for the 2005-06 school year (Parent Ex. A). On November 4, 2005, the school social worker conducted a classroom observation in the child's writing workshop class (Dist. Ex. 13). The writing workshop class contained eight children and two teachers (id.). The child picked a picture book to read, which his classroom teacher indicated that he had previously read, and was given questions about the book to answer (id.). He was able to answer the questions asked of him, but the school social worker reported that this was not easy for him (id.).
An impartial hearing was held on May 30, 2006. During the course of the impartial hearing, respondents' attorney stated that respondents waived any tuition reimbursement claim regarding the general education program at Columbia Grammar and limited their claim to reimbursement for the LRC and related services as provided in the child's July 20, 2005 individualized education program (IEP), as well as for after-school private tutoring in reading and language (Tr. p. 147).
The impartial hearing officer rendered her decision on June 26, 2006. She found that respondents sustained their burden of demonstrating that the CSE's recommended program in the child's July 20, 2005 IEP was not appropriate (IHO Decision, p. 7). More specifically, the impartial hearing officer found that although the CSE had classroom observations conducted by its school social worker available which indicated that the child lacked focus and was unable to concentrate, the CSE did not address the child's attention difficulties (id.). The impartial hearing officer further found that respondents demonstrated that the services provided at Columbia Grammar, including the 1:1 special services provided by the LRC, were appropriate (IHO Decision, pp. 7-8), and that equitable considerations favored respondents' reimbursement claims (IHO Decision, p. 8). The impartial hearing officer ordered that petitioner reimburse respondents for the cost of the LRC program and reimburse costs associated with after-school tutoring, speech therapy and OT (IHO Decision, pp. 8-9).
Petitioner contends on appeal that the impartial hearing officer erred in determining that its recommended program was inappropriate and that the services selected by respondents were appropriate. Petitioner further contends that equitable considerations preclude respondents' claims for reimbursement.
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 (Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]; see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 ; 20 U.S.C. § 1400[d][A]). 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).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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents 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.).
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 (Rowley, 458 U.S. at 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 537).
The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (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 to the child (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 2005[j][ii]).
Both the Supreme Court and the Second Circuit have noted that the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189). Thus, a state satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). 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]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).
Petitioner contends that it offered the child an appropriate educational program for the 2005-06 school year. Respondents, however, contend that the recommended program was not appropriate because it lacked necessary classroom support services for the recommended general education setting. The impartial hearing officer found that the July 20, 2005 CSE "seemed to ignore" the child's attention difficulties (IHO Decision, p. 7). She noted that the classroom observations conducted at Columbia Grammar "provided dramatic and unmistakable proof" of the child's lack of focus and inability to concentrate, even in settings with a relatively small student to staff ratio (id.).
I concur with the impartial hearing officer and find that the July 20, 2005 IEP does not adequately identify or address the child's attention difficulties. As noted above, the neuropsychological and educational evaluation conducted in December 2003 indicated that the child has ADHD, inattentive type (Dist. Ex. 6 at p. 10). The classroom observations conducted by petitioner's school social worker at Columbia Grammar in spring 2004 when the child was in the second grade indicated that he has attention difficulties (Dist. Exs. 11, 12). Comments from the child's second semester second grade report card at Columbia Grammar indicated that the child's focus during class had improved, but he still required reminders to stay involved in class lessons and discussions from time to time (Dist. Ex. 5 at p. 3). Marks on the child's second grade report card indicated that he "needs strengthening" with organization, following written directions, working independently, and participating in large groups (id.). The description of the "needs strengthening" category on the report card includes "often has difficulty working independently" (Dist. Ex. 5 at p. 2). Marks in other areas, including participating in small groups and attentiveness, indicated "some progress noted" (Dist. Ex. 5 at p. 3). The description of the "some progress noted" category includes "teacher support is usually still needed to complete a task" (Dist. Ex. 5 at p. 2). While the child's July 20, 2005 IEP notes that he is receiving medication during the school day to address his attention difficulties (Dist. Ex. 1 at pp. 1, 5), it does not specifically identify his attention difficulties and related needs as set forth in the evaluations (Dist. Ex. 1).
Nor does the July 20, 2005 IEP establish goals and objectives or benchmarks to address the child's attention difficulties (id.). Petitioner contends that the July 20, 2005 IEP addresses the child's attention difficulties by allowing for double time on testing in a separate location and directions read and re-read aloud (Pet ¶ 8; Tr. p. 42). I am not persuaded by petitioner's contention that testing accommodations alone address the child's attention difficulties. The record shows that the child also exhibited off-task behavior in the classroom; however, the July 20, 2005 IEP does not include appropriate recommendations to address that behavior such as preferential seating, frequent redirection, or teacher cueing to ensure focus as recommended by the private evaluators (Dist. Ex. 1 at p. 9).
Petitioner also contends that the impartial hearing officer erred in determining that the general education program with SETSS was not an appropriate placement to meet the child's needs for the 2005-06 school year. The impartial hearing officer found the CSE should have considered that respondents' son was experiencing academic delays in his private school setting, where he received instruction in a classroom with two teachers, in making its recommendation (IHO Decision, p. 7). The record shows that in addition to offering a classroom setting where the child received refocusing and teacher support, Columbia Grammar provided individual services to the child through its LRC. The record further shows that the child requires much review and practice, explicit instruction and repetition to solidify the skills to which he is introduced (Dist. Ex. 5 at pp. 7, 9). I note that the child's reading LRC teacher testified that the level of services and support provided to the child were required to address his deficits and to help him remain focused in order to acquire needed skills and strategies (Tr. pp. 111-12, 115, 122). Yet, the July 20, 2005 CSE recommended that the child participate in its third grade general education program and receive SETSS five times per week with an 8:1 student to staff ratio (Dist. Ex. 1 at p. 1). The CSE's recommended program does not address the child's need for refocusing and teacher support in the classroom such as considering the use of a classroom or individual aide. Nor does the recommended program address the child's need for intensive support in reading and language such as breaking down complex tasks and instructions into more manageable components as recommended by the private evaluators. I concur with the impartial hearing officer that the July 20, 2005 IEP did not offer a FAPE. Respondents, therefore, have prevailed with respect to the first Burlington criterion for an award of tuition reimbursement. Having found that respondents prevailed with respect to the first Burlington criterion for an award of tuition reimbursement, I need not address petitioner's remaining challenges to the impartial hearing officer's determination that the program recommended by its CSE was not appropriate.
I must now consider whether respondents have met their burden of demonstrating that the services selected for their son for the 2005-06 school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). The private school program must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). 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. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
Petitioner contends that Columbia Grammar did not offer appropriate educational services and is not an appropriate placement for the child. The impartial hearing officer found that respondents' son received educational benefit at Columbia Grammar in a general education class with two teachers in conjunction with 1:1 special services provided by its LRC (IHO Decision, p. 7).
The record shows that in addition to attention difficulties, respondents' son has a reading disorder (Dist. Ex. 6 at pp. 9, 10), deficits in receptive and expressive language processing (Dist. Ex. 3 at p. 1), and gross and fine motor deficits (see Dist. Ex. 6 at pp. 9, 10).
Columbia Grammar is described as a college preparatory school with a competitive curriculum (Tr. p. 76). It has an LRC, which is a program designed for children with learning disabilities (Tr. p. 104). During the 2004-05 school year, when the child was in the second grade at Columbia Grammar, he received various services from the LRC (Dist. Ex. 5). The child received individual reading instruction five times per week where he was introduced to phonemes using manipulatives and verbalized the spelling of words before writing them (Dist. Ex. 5 at p. 6). To limit confusion, only one phonetic pattern was presented to the child per week (id.). To foster reading fluency, the child read lists of phrases that incorporated phonemes and identified them in words (id.). In addition to reading instruction, the child received language therapy from a speech pathologist twice a week (Dist. Ex. 5 at p. 8). To address his expressive language deficits, the child continued to work on word retrieval (id.). Rhymes and associations facilitated his word recall (id.). Naming charts were used to assist the child in correcting his errors (id.). Games were utilized to improve the child's ability to provide descriptions of objects and scenes, and charts cued him as to attributes he should include (Dist. Ex. 5 at p. 9). The child also worked on receptive language skills in the LRC, including new vocabulary words, verbal reasoning and syntax, and inferencing skills (id.). The LRC also provided additional teacher support to the child in a writer's workshop, where the child was assisted with thinking of, organizing, and writing down his ideas on paper (Dist. Ex. 5 at p. 4).
I note that for the 2005-06 school year, the child's third grade year, the LRC provided him with reading, writing, and language instruction. He attended the LRC for primary direct reading instruction four times per week for individual sessions lasting 45 minutes for two of the weekly sessions and over an hour for the other two weekly sessions (Tr. p. 135). The child's LRC reading teacher was certified in Orton-Gillingham techniques of instruction and she utilized Orton-Gillingham methods as well as other reading techniques when instructing him (Tr. p. 113). Another LRC teacher "pushed" into the child's general education class twice a week during a writer's workshop to provide the child with 1:1 assistance (Tr. p. 136). I note that the child was sometimes removed from the general education classroom to receive assistance during the writer's workshop (Tr. p. 106). In addition, respondents' son had two 45-minute individual speech therapy sessions per week with a speech-language pathologist (Tr. pp. 135-36), who primarily focused on oral language skills, but was also beginning to focus more on written expression (Tr. pp. 108-110). In total, the child received eight sessions per week of 1:1 support from the LRC for the 2005-06 school year (Tr. p. 136).
I also note that the child began the 2005-06 school year in the lowest 25th percentile of his class, but by the time of the impartial hearing on May 30, 2006, he was reading and decoding at the third grade level (Tr. pp. 110-11). I further note that the child reportedly made considerable progress with his ability to think about a story, retell a story and process more sounds (Tr. p. 117). I find that the record demonstrates the impartial hearing officer was correct in determining that services provided at Columbia Grammar were appropriate to meet the child's special education needs.
In addition to the services provided through the LRC, respondents provided their son with related services after school, which included speech therapy individually for one hour (Tr. p. 147-48) and OT individually for one hour (Tr. p. 148). Respondents also arranged for reading and language tutoring services for their son after school individually for two hours per week (see Tr. p. 148; see also IHO Decision, pp. 8-9). As there is no dispute that respondents' son needed OT (Dist. Ex. 4), I decline to disturb the impartial hearing officer's reimbursement award with respect to OT. However, with respect to speech therapy, respondents have not demonstrated that their son required individual speech therapy beyond that provided by the LRC (Tr. pp. 147-48). Nor is there any specific information about the services provided by the private speech pathologist. As a result, I have no information to determine whether such services were appropriate to meet the child's special education needs. Similarly, respondents' have not demonstrated that their son required reading and language tutoring beyond the services provided by the LRC. Under the circumstances, I find that respondents have not met their burden of showing that the private speech therapy and tutoring services met their son's special education needs.
The final criterion for an award of tuition reimbursement is that respondents' claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Voluntown, 226 F.3d at 68; see Carter, 510 U.S. at 16 ["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], citing Town 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, 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][C][iii]; see Frank G., 459 F.3d at 376; Mrs. C., 226 F.3d at n. 9).
With respect to equitable considerations, petitioner's sole contention is that the equities do not favor reimbursement because respondents "pieced together an a la carte program" in order to address their son's special education needs. Petitioner argues that it would be inequitable to hold it financially responsible for a piecemeal program when a comprehensive program had been offered to the child. I am not persuaded by petitioner's argument in the circumstances herein I have already determined that the program recommended by the July 20, 2005 CSE was not appropriate. The impartial hearing officer concluded that respondents were cooperative with the CSE, shared documents and participated in CSE meetings. In the absence of any other contention that would preclude reimbursement, or evidence demonstrating that respondents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, I find no need to modify the impartial hearing officer's determination that respondents' claims for reimbursement for the costs of the LRC program and OT are supported by equitable considerations.
I have considered the parties' remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it ordered petitioner to reimburse respondents for the cost of after-school tutoring in reading and language at Columbia Grammar and to the extent that it ordered petitioner to reimburse respondents for the cost of after-school speech therapy.
1 On December, 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
2 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).