06-088

           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 respondent's son and awarded respondent funding for her son's tuition costs for the Legacy program at Xaverian High School (Xaverian) for the 2006-07 school year.  The appeal must be sustained.

            At the time of respondent's request for a due process hearing on April 28, 2006 (Dist. Ex. 1), her son was 13 years old and attending a 12:1+1 class at petitioner's I.S. 78 (Dist. Ex. 6 at p. 1; Tr. pp. 160, 200).  During the 2005-06 school year, petitioner's Committee on Special Education (CSE) changed the student's classification from a student with an emotional disturbance to a student with an other health impairment (Tr. pp. 55, 253; see also Tr. p. 86).  The student's eligibility for special education programs and services as a student with an other health impairment (see8 NYCRR 200.1 [zz][10]), is not in dispute (Tr. pp. 55-56).

           The student was born three months premature (Tr. p. 29).  According to parent report, at approximately four years of age the student was diagnosed with attention deficit hyperactivity disorder (ADHD) (id.).  The student was later evaluated by petitioner and reportedly found to have developmental delays (Tr. p. 30).  Respondent testified that petitioner classified the student in kindergarten and that the student has received special education services since that time (Tr. pp. 32-44).  During elementary school, the student attended a variety of placements, including community schools, specialized schools, and an approved non-public school (id.).  While in fifth grade, the student received home instruction for part of the year (Tr. pp. 38-39).  The record does not indicate the type of special education instruction or related services the student received during these years.  Although respondent reported that he was "picked on" in many settings (Tr. pp. 36-38), it is not clear if that formed the basis for the student's frequent changes in placement.

            For seventh grade the student attended a 12:1+1 class at I.S. 78 (Tr. pp. 42-43).  The student reportedly did poorly academically and had no friends (Tr. pp. 44-45).  However, respondent reported that her son played hockey outside of school and was a "gifted athlete" (Tr. p. 44).  She opined that the student's hockey teammates were the first group that ever accepted the student and that her son idolized them (Tr. pp. 48-49).

            The student began the 2005-06 school year (eighth grade) in a 12:1+1 class at I.S. 78 (Tr. pp. 160, 200).  He was classified as a student with an emotional disturbance and received related services of speech therapy and counseling (Dist. Ex. 7 at p. 1).  Between September and December 2005, the student exhibited numerous behavior problems including disrupting class, talking out of turn, and refusing to participate in class (Dist. Ex. 10; see also Tr. p. 47).  In addition, the student used foul language (Dist. Ex. 10 at pp. 1, 2, 3, 4), made strange noises (Dist. Ex. 10 at pp. 1, 3, 5), initiated loud conversations of an inappropriate nature (Dist. Ex. 10 at pp. 2, 3), and engaged in other inappropriate behavior (Dist. Ex. 10 at pp. 1, 5).  In November 2005, the student was assigned a behavior management paraprofessional (Tr. pp. 61, 135, 172, 178, 205-06; see also Dist. Exs. 7 at p. 1, 8 at p. 1).

            On or about December 1, 2005, the student's special education teacher submitted a "Type 3 Recommendation," suggesting that the student's program/service category be changed (Dist. Ex. 9).  The teacher noted that the student's behavior had deteriorated over the last four to six weeks and that his behavior was now interfering with instruction (id.).  The student received the following first quarter grades: English 70; Social Studies 65; Math 65; and Science 65 (Parent Ex. F).  The student's conduct was rated as needing improvement in English, Social Studies, and Math; and as unsatisfactory in Science (id.).  The student's performance level was "approaching standards" in English, Social Studies, and Math, while his performance level in Science was "far below standards" (id.).

            During this same time period in Autumn 2005, the student expressed to his mother a desire to attend Xaverian, a non-public school in Brooklyn, for ninth grade (Tr. pp. 45-46, 70-72).  The student's interest apparently stemmed from the fact that members of his hockey team planned to attend Xaverian (Tr. pp. 46, 71-72).  Although respondent initially thought that the student would be unable to attend Xaverian because he required special education, she later learned that the school had a special education program (Tr. pp. 46, 73).  The record indicates that Xaverian housed two special education programs: the Ryken Education Center (Ryken) and the Legacy Program (Legacy).  Ryken is a 12:1+1 New York State approved program (Dist. Ex. 4 at p. 1; Tr. pp. 101, 107-08; see also 8 NYCRR 200.7, 200.1[d]).  The record indicates that students in Ryken generally have multiple learning disabilities such as speech impairments, as well as dyslexia (Tr. p. 102). Legacy is a 15:1 program designed for students with learning disabilities with minor emotional problems (Dist. Ex. 4 at p. 1; Tr. pp. 101, 107).  Legacy is not a New York State approved program (Tr. p. 107).  In November 2005, respondent contacted the admissions director for special education services at Xaverian (Tr. pp. 49-50, 84).  The director later met with the student and informed him that his conduct was unacceptable; however, if his next report card indicated an improvement in his behavior, she would offer him a place in Ryken (Tr. pp. 50, 84-85, 96, 98, 108).

           The student was referred for a reevalution based on behavioral problems in school (Dist. Exs. 7 at p. 1, 8 at p. 1; Tr. pp. 173, 174).¹  A social history completed on January 12, 2006 indicated that the student had a great deal of difficulty adhering to school rules and regulations (Dist. Ex. 7 at p. 1).  In addition, the student's teacher reported that the student made minimal effort in the classroom and displayed inappropriate behavior (id.).  The student was described as highly impulsive and extremely offensive to others, and as using verbal assaults, insults, and highly inappropriate remarks and comments (id.).  The social history noted that school personnel thought that the student could not function in a community school and that he might benefit from placement in a specialized school program (id.).  Respondent reported that the student also exhibited behavior problems at home (Dist. Ex. 7 at p. 2; see also Tr. p. 180 [school psychologist testified that respondent reported that she was having "tremendous problems" with the student at home]; but see also Tr. p. 78 [respondent testified that student was "good at home"]).  The social history also noted that the student participated on a hockey team with reportedly no behavioral issues (Dist. Ex. 7 at p. 2; see also Tr. pp. 162-65).

          A psychoeducational evaluation of the student was conducted on January 12, 2006 (Dist. Ex. 8).  The resulting report indicated that previous administration of the Wechsler Intelligence Scales for Children -- Fourth Edition, in May 2005, yielded a full scale IQ score of 89 (23rd percentile), placing the student in the low average range of intelligence (Dist. Ex. 8 at p. 2).  The student's standard scores (SS) on the verbal comprehension (SS 91), perceptual reasoning (SS 92) and working memory (SS 102) indices were in the average range, while his score on the processing speed index (SS 85) was in the low average range (id.).

          Administration of the Woodcock-Johnson III Tests of Achievement yielded the following subtest standard scores (and percentile ranks): letter-word identification 89 (22nd percentile); passage comprehension 93 (33rd percentile); calculation 87 (20th percentile); and applied problems 93 (33rd percentile) (id.).  The evaluating psychologist reported that the student was generally delayed academically, but noted that he did very little class work or homework (id.).  The psychologist reported that the student's word identification skills were delayed and that the student could not read many multi-syllable words close to his grade level (id.).  The student's reading comprehension skills were described as a relative strength; however, they were noted to be below age/grade level expectancies (id.).  Mathematical calculation skills and problem solving skills were both described as somewhat below age/grade level expectancies (Dist. Ex. 8 at p. 3).  The student could not solve any fractional operations and he had difficulty solving multi-digit division problems and problems involving time/measurement conversions (id.).

          The psychologist reported that the student was highly distractible with a limited attention span and that he had been diagnosed with ADHD (id.).  The student was described as somewhat immature (Dist. Ex. 8 at p. 2).  The psychologist noted that the student had difficulty obeying school rules and regulations, as well as authority figures in school (Dist. Ex. 8 at p. 3).  As described by the psychologist, the student's behavior was extremely disruptive and the student was extremely provocative with offensive comments toward adults and peers (id.).  The student reportedly did little class work or homework and his academic performance was hurt by his behavior in school (id.).  The student's responses on the Conners-Wells' Adolescent Self-Report Scale (S) resulted in a mildly atypical score on the Oppositional scale, indicating a possible significant problem (id.).  The student scored in the average range in the other domains, indicating no problems (id.).  The student's answers were reported to be in sharp contrast to those of his teacher, particularly in areas regarding attention and hyperactivity (id.).

          The CSE met on January 31, 2006 for a requested review of the student's individualized education program (IEP) (Dist. Ex. 6 at p. 1).  The student's classification was changed from a student with an emotional disturbance to a student with an other health impairment (Tr. pp. 55, 253; see also Tr. p. 86).  The CSE also recommended a program change from a 12:1+1 special class in a community school to a 12:1+1 special class in a specialized school (Dist. Ex. 6 at p. 2; Tr. p. 179).  The resultant IEP included related service recommendations for once weekly individual counseling and once weekly group counseling, twice weekly group speech language therapy, and an individual behavior management paraprofessional for 100 minutes per day (Dist. Ex. 6 at p. 10); however, it also indicated that the student's individual speech therapy services and 1:1 paraprofessional were to be terminated (Dist. Ex. 6 at p. 2; see also Tr. p. 56).  Although the projected initiation date stated on the IEP was February 15, 2006 (Dist. Ex. 6 at p. 2), testimony adduced at the impartial hearing indicated that the IEP was not to take effect until September 2006, when the student would be entering high school (ninth grade) (Tr. pp. 245-47).  The IEP indicated that the student's academics were generally delayed, and that his reading comprehension and mathematical problem solving abilities were in the average range (Dist. Ex. 6 at p. 3).  The IEP also noted that the student was highly impulsive and disruptive in school and that his behavior affected his academic performance (Dist. Ex. 6 at p. 4).  According to the IEP the student's behavior seriously interfered with classroom instruction and required additional adult support (id.).  The IEP noted that the student required a small class environment in a specialized school to address his social/emotional/behavioral problems (id.).  It contained goals and objectives related to the student controlling impulsivity and developing self-control, improving math skills to a seventh grade level, demonstrating an appreciation of literature, improving reading vocabulary skills to a seventh grade level, and demonstrating phonetic and structural analysis skills to a sixth grade level (Dist. Ex. 6 at pp. 6-7).  Test accommodations included time limits extended to double time, exams administered in a separate location, and authorization for the student to use a calculator during examinations (Dist. Ex. 6 at p. 10).

           In February 2006, respondent approached a secretary for the CSE and indicated that she was not in agreement with the CSE's recommendation for a specialized school in petitioner's District 75 for her son (Tr. p. 240).  Respondent indicated that she had visited a non-public school program (Ryken), which had expressed an interest in her son and intended to accept him (id.).  The CSE secretary recalled consulting with her superiors regarding the family's financial situation and issuing a "Nickerson letter" to cover the funding of the private school (Dist. Ex. 3; Tr. pp. 240, 241; see also Tr. pp. 51-52, 88, 131).²  In addition, the secretary contacted Ryken and verbally confirmed that it was interested in accepting the student (Tr. pp. 89, 131, 240, 250-51).  The secretary testified that the Nickerson letter, dated February 6, 2006, was issued prior to petitioner's deadline for finding a program for the student (Tr. pp. 241-42).  Respondent brought the Nickerson letter, possibly as soon as the next day, to Ryken (Tr. p. 89).  At that time, Ryken deferred acceptance of the student due to behavior concerns and indicated that it would make a decision after receipt of the student's next report card (Tr. pp. 52, 89).  A staff member of Ryken also informed respondent that she was not sure if the school accepted Nickerson letters (Tr. p. 130; see also Tr. pp. 105-07).

           A progress report card dated February 8, 2006 indicated that the student received the following second quarter grades: English 65; Social Studies 65; Science 70 (Parent Ex. F).  The student's conduct was rated satisfactory in each of these classes (Parent Ex. F; see also Tr. p. 111).  The student's performance level in Social Studies and Science was rated as "approaching standards," while the student's performance level for English and Math was "far below standards" (Parent Ex. F).  Respondent reportedly became ill and did not return to Xaverian with the student's report card for several weeks (Tr. pp. 52-53, 89; see also 250-51).  By that time, there were no seats available in the Ryken program (Tr. pp. 89-91, 242).  The director of Xaverian suggested that respondent consider the Legacy program (Tr. pp. 53, 101).

           By letter dated April 28, 2006, respondent, through her attorney, requested an impartial hearing "to appeal from the failure of [the] Committee on Special Education of Region 6 to approve [the student's] attendance at The Legacy Program in Xaverian High School" (Dist. Ex. 1).  Respondent alleged that petitioner could not provide the special education services recommended for the student as evidenced by its issuance of a Nickerson letter authorizing the student's placement in an approved private school (id.).  Respondent's letter indicated that the student was initially told by Xaverian that he could attend the New York State approved Ryken program, but because Ryken has no seats available for the student, respondent now seeks authorization for her son to attend the non-approved Legacy program (id.).

           By letter dated May 18, 2006, petitioner offered the student a placement in a 12:1+1 class in a special school with related services of individual and group counseling services (Dist. Ex. 2; Tr. p. 251).  Also on May 18, 2006, the student's parents completed a registration form for Xaverian (Parent Ex. C) and respondent entered into a contract with Xaverian for the student's enrollment in Legacy for the 2006-07 school year (Parent Ex. B).  The student received an acceptance letter from Legacy dated that same day (Parent Ex. A; Tr. p. 124).

           The impartial hearing commenced on May 24, 2006 (Tr. p. 3).  At the start of the hearing, the impartial hearing officer stated that she could not order the student's placement at a non-approved school like Legacy as requested by respondent because by definition a Nickerson letter was for placement in an approved special education school (Tr. p. 9).  Over petitioner's objection, the impartial hearing officer granted respondent's request to amend her hearing request to seek tuition funding for her son's tuition costs at Legacy under a Burlington/Carter analysis (Tr. p. 12; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).³  By letter dated May 25, 2006, respondent submitted an amended hearing request (Parent Ex. E).  The amended request challenged petitioner's recommended placement for the student in a specialized school and petitioner's recommendation of a 12:1+1 class ratio for the student (id.).  It also alleged, "[b]ased on [the student's] improved behavior when in the company of Xaverian students, we believe that he will flourish in the Legacy Program despite the class size of 15:1, and therefore should be allowed to attend that program" (id.).

            The impartial hearing continued on June 9 and 15, 2006 (Tr. pp. 20, 149).  In a decision dated July 7, 2006, the impartial hearing officer ordered petitioner to fund the student's tuition costs for the Legacy program for the 2006-07 school year (IHO Decision, p. 12).  Although noting that petitioner's CSE was not "to be faulted for its placement recommendation as the 12:1:1 program on paper looks appropriate for students with [the student's] type of behavior"; the impartial hearing officer found petitioner's recommended placement to be inappropriate because it did not meet the least restrictive environment requirement (IHO Decision, pp. 10-11).  She determined the Legacy program was appropriate, finding that the opportunity for the student to play hockey at Xaverian if his school work and behavior were acceptable would serve as a powerful incentive to the student (IHO Decision, p. 11).  In her decision, the impartial hearing officer urged the parent to obtain outside counseling for the student "to help him meet the stresses of this less supportive and demanding placement" (id.). 

            On appeal, petitioner requests that the impartial hearing officer's decision be overturned in its entirety.  Specifically, petitioner asserts that respondent failed to meet her burden of proving that petitioner's recommended program for the student for the 2006-07 school year was inappropriate and that she also failed to prove that the Legacy program was appropriate for the student.

            A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S.Ct. 528, 531 [2005]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. July 27, 2006]).  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).  "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., 459 F.3d at 376; 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 200.5[i]).  Also, an impartial hearing officer is not precluded from ordering a school district 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 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).  Accordingly, respondent, as the party seeking relief at the impartial hearing, has the burden of persuasion.

              In the instant case, petitioner asserts on appeal that respondent did not meet her burden of demonstrating that petitioner failed to offer the student a FAPE for the 2006-07 school year.  I concur.  A review of the record reveals that respondent does not allege any procedural violations on the part of petitioner, nor does she argue that she was denied an opportunity to meaningfully participate in the formulation of the January 2006 IEP (see Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 [2d Cir. 2005]; see also Viola v. Arlington Cent. Sch. Dist., 2006 WL 300449 [S.D.N.Y. 2006]).  The record also reveals that respondent took an active role in the development of her son's IEP and attended the January 2006 CSE meeting (Dist. Ex. 6 at p. 2). During the impartial hearing, respondent did not present any evidence that she was denied an opportunity to review and contribute to the formulation of the IEP. 

             On May 18, 2006, prior to the commencement of the impartial hearing, petitioner issued a "Final Notice of Recommendation" designating a 12:1+1 class at its P.S. 370 as the student's recommended placement (Dist. Ex. 2).  Respondent's amended request for an impartial hearing indicated that she planned to challenge the appropriateness of the specialized school placement and class ratio of the proposed class (Parent Ex. E); however, respondent did not articulate a basis for such a challenge in her hearing request.  Moreover, respondent's amended hearing request states "we believe that [the student] will flourish in the Legacy program despite the class size of 15:1" (Parent Ex. E [emphasis added]), suggesting that a 15:1 student to teacher ratio might not be an appropriate ratio for this student.

             At the impartial hearing, respondent failed to sustain her burden of demonstrating the inappropriateness of petitioner's recommended placement.  Notably, respondent failed to allege or prove that petitioner's recommended program was not designed to confer educational benefit.  Respondent's testimony at the impartial hearing suggesting that the student tends to imitate the behavior of those around him (Tr. pp. 47-49, 79, 80-81), that he would not be motivated in a District 75 school like P.S. 370 (Tr. p. 79), and that he had been picked on in previous specialized school placements (Tr. p. 36), was insufficient to establish by a preponderance of the evidence that petitioner's recommended program was inadequate to meet the student's special education needs.  Testimony also revealed that respondent wanted her son to attend Xaverian because she felt the school would provide the student with appropriate peer models (see Tr. pp. 48-49) and the opportunity to be "part of something" (Tr. p. 85).  In addition, the student's father asserted that the opportunity to play on the school's hockey team would provide the student with the incentive he needed to improve his behavior and academic performance (Tr. pp. 155-56). Evidence of the alleged appropriateness of a private school placement does not establish that the program offered by a school district is inappropriate (see, e.g., M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *8 [S.D.N.Y. 2002]; Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1037 [3d Cir. 1993]; Application of a Child with a Disability, Appeal No. 06-062; Application of a Child with a Disability, Appeal No. 06-054).

            Accordingly, I find that the evidence in the hearing record does not establish that petitioner failed to offer the student an appropriate program for the 2006-07 school year.⁴  Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Legacy was an appropriate placement (Burlington, 471 U.S. at 370).

            As a final matter, I note that petitioner was remiss in not filing the record of the proceeding before the impartial hearing officer together with the petition for review as required by Section 279.9(b) of the Regulations of the Commissioner of Education.  I caution petitioner's counsel to comply with Part 279 of the state regulations.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision dated July 7, 2006 is hereby annulled.