06-114

          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 in the least restrictive environment to respondents' daughter and ordered it to reimburse respondents for their daughter's tuition costs at the Francis School (Francis) for the 2005-06 school year.  The appeal must be sustained. 

          Respondents' daughter was 14 years old and in the ninth grade at Francis at the commencement of the hearing on January 25, 2006 (May 3, 2006 Tr. p. 251; see Dist. Ex. 15 at p. 1).  Francis has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7]).  At the time of the hearing, in addition to attending Francis, respondents' daughter was receiving private mental health services including individual therapy by a licensed clinical social worker and group therapy through a social skills therapy program (May 3, 2006 Tr. pp. 330-31).  The student's eligibility for special education as a student with an emotional disturbance (see 34 C.F.R. § 300.8[c][4][i]¹; 8 NYCRR 200.1[zz][4]) is not in dispute in this appeal.   The student also has a diagnosis of scoliosis (Parent Ex. G at p. 1; Dist. Ex. 14 at p. 2), for which she has been wearing a body brace since June 2004 (May 3, 2006 Tr. p. 290; Parent Ex. G at p. 1; Dist. Ex. 14 at p. 2).

          The student was initially evaluated in pre-school and received speech and language therapy as well as occupational therapy (Dist. Ex. 18 at p. 1; May 3, 2006 Tr. pp. 281-82; Dist. Ex. 14 at p. 2).  The student continued to receive services in kindergarten, made progress and was "decertified from all services" by the end of the second or third grade (Dist. Ex. 18 at pp. 1, 5; Dist. Ex. 14 at p. 1; May 3, 2006 Tr. pp. 282-83). Between that time and 2001, the student's mother had requested reevaluations on a number of occasions, none of which determined her daughter to be eligible for special education services (Dist. Ex. 18 at pp. 1, 5).

          Reportedly, in December 2003 a serious incident occurred which threatened the student's safety (District Exs. 30, 39).  Subsequently, petitioner began to provide educationally related support services (ERSSA) counseling to the student (March 31, 2006 Tr. pp. 10-11; Dist. Ex. 16 at p. 1).

          On January 16, 2004, a private psychiatric evaluation was conducted at the George A. Jervis Clinic at the New York State Institute for Basic Research in Developmental Disabilities (Jervis Clinic) in Staten Island.  The evaluating psychiatrist offered diagnoses of social phobia (anxiety) generalized and major depression, moderate, chronic (Parent Ex. E at pp. 3, 4).  At the time of the evaluation the student was taking medication for depression and anxiety (Parent Ex. E at p. 1) and the evaluating psychiatrist recommended adjustments to the student's medications (Parent Ex. E at p. 4).   The psychiatrist noted that the student had been treated with individual psychotherapy for three and one-half years (Parent Ex. E at p. 2).  A July 2004 follow-up report from the Jervis Clinic prepared by the same psychiatrist who prepared the January 2004 evaluation indicated that the student's overall behavior and mood had improved and that her anxiety level had decreased subsequent to changes in her medication (Parent Ex. F at p. 1).  The July report described the student as "alert, friendly, with normal mood and affect and cooperative" with no suicidal ideation (id.).  The psychiatrist offered diagnoses of social phobia, generalized and major depression, in remission (id.). 

          The student's mother referred her daughter to petitioner's Committee on Special Education (CSE) in June 2004 (May 3, 2006 Tr. p. 293).  A psychoeducational evaluation was conducted by petitioner's school psychologist in August 2004 (Dist. Ex. 33). Administration of the Stanford-Binet Intelligence Scale - Fifth Edition yielded an "abbreviated battery IQ score" of 109, which is in the average range of cognitive functioning (Dist. Ex. 33 at p. 2).  On the Woodcock-Johnson III Tests of Achievement, the student achieved standard (and percentile) scores of 112 (78) in letter-word identification, 98 (45) in calculation, 92 (31) in passage comprehension, and 90 (26) in applied problems (Dist. Ex. 33 at p. 6).  The evaluator reported that "mild weaknesses" identified in reading comprehension and applied problem solving "appeared to be mostly due to attention/concentration issues related to emotional interference" and recommended psychiatric follow-up (Dist. Ex. 33 at p. 5).

          A private neuropsychological evaluation conducted on August 13 and September 8, 2004 at the Jervis Clinic diagnosed the student with social phobia and major depression (Parent Ex. J at p. 5).  Administration of the Wechsler Intelligence Scale for Children - Third Edition yielded a full scale IQ Score of 112 (79th percentile), a verbal IQ score of 105 (66th percentile), and a performance IQ score of 116 (86th percentile) (Parent Ex. J at p. 2).  The evaluation report noted that the student's "performance on measures assessing verbal fluency would suggest that [she] does not always have the ability to use language as she needs to, and thus can have trouble communicating with others" (Parent Ex. J at p. 5).  The report indicated that the student had a lack of age appropriate social skills and that she had been teased at school and was unable to defend herself  (Parent Ex. J at pp. 4, 5, 6.).  The evaluator recommended that the student continue to receive individual therapy and social skills training.  He also advised that a program be instituted at school to address bullying and that this program teach "adaptive ways to take back control and not being teased/bullied" (Parent Ex. J at p. 6).

          The student attended petitioner's Intermediate School (I.S.) 2 for the 2004-05 school year when she was in the eighth grade.  On October 1, 2004, petitioner's CSE met in response to respondent mother's June 2004 referral of her daughter and classified the student as a student with an other health-impairment (Dist. Ex. 32 at p. 1).  The October 1, 2004 CSE recommended that the student continue to attend an eighth grade regular education classroom and receive one period a day of special education teacher support services (SETSS) push-in instruction to address the student's "specific academic delays as well as problems with attention and organization" (Dist. Ex. 32 at pp. 1, 3, 11).  The  CSE also recommended that the student continue to receive ERSSA counseling as needed and at least three times a week "to assist [the student] with social interaction and organizational skills" (Dist. Ex. 32 at pp. 5, 8; March 31, 2006 Tr. pp. 25-26, 113, 117-19, 150-51).  The October 1, 2004  CSE also considered a recommendation by one of the student's counselors that she be placed in a day treatment program, but the student's mother, who had visited the program, did not believe it was appropriate for her daughter and the CSE determined that this recommendation was not the least restrictive environment for the student (March 31, 2006 Tr. pp. 21, 68, 115-122; May 3, 2006 Tr. pp. 290-92; see also Dist. Ex. 3).

          The school social worker, who was the student's ERSSA counselor, reported that over the course of the 2004-05 school year, the student was "the victim of relentless taunting, teasing and bullying both verbal and physical" "by classmates and peers" (Dist. Ex. 14 at pp. 2, 3; see also Dist. Ex. 29 at p. 4).  Episodes of teasing included  vulgar language directed at the student, items reportedly thrown at her, and an episode of assault on a bus after school which resulted in the suspension of the student who had assaulted respondents' daughter (Parent Exs. M, N, P; Dist. Ex. 28 at p. 1).  The student's SETSS teacher reported that the episodes of teasing she had witnessed in the classroom were "quite typical of a Junior High School setting," and opined that the episodes she witnessed were "nothing out of the ordinary" and that the student "would make more of it than it was and perceived it differently than her peers would have perceived it" (February, 17, 2006 Tr. pp. 156, 158, 159, 161, 162, 163).  When asked how the student responded to the teasing the SETSS teacher indicated "she would either withdraw and read, put her head down and sleep…or retaliate [by] throwing things…little things [such as] a pen, push them or whisper under her breath  (February 17, 2006 Tr. pp. 135-36). The SETSS teacher acknowledged that she did not have information about incidents of bullying that took place outside of classes she visited and which were significantly more serious (February 17, 2006 Tr. pp. 156-65).

          According to petitioner's school psychologist and the student's school counselor the student's emotional condition deteriorated during the 2004-05 school year (March 31, 2006 Tr. pp. 71, 163).  By the middle of the 2004-05 school year, the student "was becoming more withdrawn, more socially isolated, and more distressed" (March 31, 2006 Tr. p. 71).  In class, the student's behavior included putting her head down and sleeping, reading a book, drawing, and "tuning out," and there were many classes in which she "was not able to function" (February 17, 2006 Tr. pp. 135, 152-53).  The school psychologist indicated that by the end of the spring of that year, school staff concluded that the student should not be in the public school program (March 31, 2006 Tr. p. 163).  By letter dated May 5, 2005, respondents requested a review by the CSE "in order to make an appropriate high school recommendation" (May 3, 2006 Tr. p. 315; Dist. Ex. 2).

          A May 31, 2005 letter from the student's private counselor reported that the student presented with "increased anxiety, stress, and fear in reference to being targeted and bullied at school on a daily basis" (Dist. Ex. 19 at p. 2). The student's counselor indicated that the student "presents as emotionally frail and depressed with an underlying anger and frustration at the inability to predict or protect herself from a hostile environment" and noted that "the thought of entering a larger high school environment and graduation" had "only increased [the student's] panic and anxiety" (id.).  The counselor advised that the student was "in need of a small supportive high school that can provide [the student] with structure, safety, and nurturance in the context of a mainstream curriculum" (id.).

          A June 10, 2005 letter from the counselor who counseled the student in a social skills training group reported that respondents' daughter remained socially anxious with significant attentional difficulties (Dist. Ex. 19 at p. 3). The letter advised that the student required "a small and structured general education setting to meet her needs," that "[a] low student/teacher ratio is necessary to afford her frequent academic and behavioral support," that the student's school "should also employ clearly established rules and expectations, with safeguards in place to protect students from harassment," and that a small student population was preferred to minimize distractions and anxieties (id.).

          A June 11, 2005 letter from the student's private psychiatrist reported a diagnosis of social anxiety disorder and  indicated that the student had been teased and needed to be protected from bullies (Dist. Ex. 19 at p. 1).  The psychiatrist advised that the student "be educated in a small nurturing high school" (id). 

          A report from a June 11, 2005 psychoeducational evaluation conducted by petitioner's school psychologist noted that projective testing, interview and self-report surveys reflected that the student felt "significant emotional distress, both in terms of depression as well as at times being overwhelmed by feelings of anxiety," but that she denied suicidal ideation (Dist. Ex. 15 at pp. 3, 4).  On the Woodcock-Johnson III Tests of Achievement, the student achieved standard (and percentile) scores of 118 (88) in spelling, 104 (59) in letter word identification, 100 (50) in passage comprehension, 93 (32) in applied problems, and 91 (28) in calculation (Dist. Ex. 15 at p. 5).  The evaluator suggested that the student "would benefit from placement in a small, highly structured educational setting with small class size and a strong therapeutic focus in order to meet her social-emotional as well as her academic needs"  (Dist. Ex. 15 at p. 4).

          A June 13, 2005 report from the school social worker who was the student's ERSSA counselor during the 2004-05 school year stated that the student "need[ed] continued outside therapeutic intervention to augment her social skills, self-esteem, and coping strategies," that "[a]ttendance at a large public high school would … present too great an emotional threat and challenge to her," and that the student "would do well in a small structured supportive environment where the smaller student to teacher ratio would allow for closer supervision of her academic work and better training of staff to meet her emotional needs" (Dist. Ex. 20 at p. 2).

          The student received year-end grades of 95 in Science, 85 in English, 84 in Math, 83 in Spanish, and 76 in Social Studies (Dist. Ex. 21).  She also received year-end grades of 94 in Physical Education, 93 in Art, and 90 in Music (id.).

          The CSE met on June 27, 2005 and changed the student's classification to "emotional disturbance" (see Dist. Ex. 5 at p. 1).  The CSE recommended related services of weekly counseling in a group of three once a week for 30 minutes to address the student's peer relationships and her anxiety in school (Dist. Ex. 5 at pp. 8, 13).  The June 27, 2005 CSE recommended  central based support team (CBST) screening for placement in a 12-month special class program with a 12:1+1 staffing ratio and a projected September 8, 2005 initiation date (Dist. Ex. 5 at pp. 1, 2, 11).  The individualized education program (IEP) prepared as a result of the June 27, 2005 CSE meeting stated that the student was unable to participate in a general education setting and noted that based on her then current psychoeducational and psychiatric evaluations, which reflected underlying emotional issues, that she "would benefit from placement in a highly structured, intensely supervised educational setting with a therapeutic focus to address her specific academic as well as her social-emotional needs" (Dist. Ex. 5 at pp. 4, 11, 12).

          The student's mother attended the June 27, 2005 CSE meeting (Dist. Ex. 5 at p. 2).  She agreed to the change in the student's classification (May 3, 2006 Tr. p. 316).  There is nothing in the record to suggest that respondents objected to the matter being deferred for CBST screening.

          The CBST referred information about the student to a number of state approved private schools, including Martin De Porres High School in Brooklyn (MDP).  At the impartial hearing, the CBST case manager indicated that she had a number of conversations with the student's mother, that she was cooperative, and that until her last conversation she felt that they had a good working relationship (April 7, 2006 Tr. pp. 6-7, 45-46, 72-73).  The student and her mother visited MDP and met with an MDP representative on or about August 17, 2005 (May 3, 2005 Tr. p. 339).  By letter dated August 17, 2005, MDP advised the CBST that it "ha[d] accepted" the student (Dist. Ex. 26 at p. 2).  During the visit, the student's mother was described as "cooperative" and "a little apprehensive," (April 7, 2006 Tr. p. 162).   When the MDP representative called her the next day the student's mother rejected placement of her daughter at MDP (April 7, 2006 Tr. pp. 109, 110, 117, 158-59; May 3, 2006 Tr. pp. 327-28). 

          By letter to petitioner's CSE chairperson from their attorney dated August 16, 2005, respondents requested an impartial hearing (Parent Ex. A).  The letter stated that the district failed to offer the student a free appropriate public education (FAPE) "on procedural and substantive bases" and that "[a]s a result [respondents] have unilaterally placed [the student] at the Francis School and are seeking tuition reimbursement for this placement" (Dist. Ex. 1 at p. 1).  The letter recited incidents of teasing and bullying at I.S. 2 during the course of the 2004-05 school year (Dist. Ex. 1 at p. 2).  It asserted that I.S. 2 did little to control the situation and that it could not assure the student's basic safety and her academic and social/emotional needs (id.).  The letter set forth that "to date, there has been no appropriate school secured for [the student]" (id.).

          The CSE reconvened on September 13, 2005 and added MDP to the student's IEP as its recommended services (Dist. Ex. 4 at p. 1). A representative from MDP was not in attendance at the meeting (see Dist. Ex. 4 at p. 2).  The IEP resulting from that meeting states that the student's mother attended the CSE meeting by telephone (id.).  The mother testified at the hearing that she did not attend this CSE meeting and that she was not advised of it (May 3, 2006 Tr. pp. 328-29; May 10, 2006 Tr. pp. 353-55, 460, 461).  Petitioner provided no testimony that the mother attended or was advised of the date and time of the meeting.

          The impartial hearing commenced on January 26, 2006 and continued on February 17, March 31, April 7, May 3, and May 10, 2006.  Issues addressed at the hearing included the student's educational experiences during the 2004-05 school year; whether the student's mother and a representative of MDP attended the September 13, 2005 CSE meeting; the appropriateness of MDP for the student, including whether the student would be appropriately grouped for instructional purposes; the extent to which MDP provided the student with mainstreaming opportunities; the appropriateness of Francis for the student; parental cooperation during the CSE process; when respondents notified petitioner that the student would attend Francis; and whether respondents had made up their minds that the student would attend Francis without regard to any recommendation of the CSE.

          The impartial hearing officer rendered an impartial hearing decision on August 28, 2006 and issued a "corrected decision" on September 13, 2006 (IHO Decision, p. 18).  The impartial hearing officer concluded that the CSE's recommended program - with a 12:1+1 ratio - was "too restrictive" and "too drastic a step in view of her grades." (IHO Decision, p. 15).  He also concluded that while the CSE's program was recommended at least in part because the student would not do well in a large high school, from the record it was "not clear to what extent the District considered placing [the student] in a small 'general education' high school" (id).  The IHO concluded that petitioner "should have endeavored to find [the student] a smaller, more nurturing general education environment before resorting to a more restrictive self-contained placement like the [MDP] school" (id.).  He also found that "compounding this" petitioner did not invite the representative of MDP to the September 13, 2005 CSE meeting and that additionally, "the [student's mother] testified credibly that she was not at the September 13, 2006 (sic) CSE review and was not invited to such review notwithstanding paperwork to the contrary" (IHO Decision, p. 16).

          The impartial hearing officer also concluded that Francis was an appropriate placement for the 2005-06 school year (id.). He concluded that the record showed that the school "was appropriately small and that students who bully in the school are told to leave;" that "[t]he school has a strict policy against bullying, and there has accordingly been virtually no bullying or teasing of [the student] at the [school]" (id.).  He further noted that "while there was no counseling available at the school, and while counseling might have been helpful to [the student] during this time, the parent supplemented the program at Francis with private counseling" and that "the therapists that serviced [the student] during this time confirmed that [the student] was experiencing progress in social and emotional areas" (id.). The impartial hearing officer also concluded that the student's grades at Francis were "consistently good" (id.).

          With respect to equities the impartial hearing officer found that while respondents made a commitment to Francis in April 2005, the student was not enrolled in that school until September 2005 (IHO Decision, p. 17).  The impartial hearing officer also found that respondents needed to make a commitment in April in order "to secure a spot in the school for the upcoming year" (id).  The impartial hearing officer also concluded that the record showed that the student's mother visited and considered the MDP School in good faith in August 2005 and found that she "was open to the District's placement in August 2005, and generally did everything asked of her in connection to this placement and program" (id.). The impartial hearing officer ordered tuition reimbursement for the 2005-06 school year at the Francis school (id.).

          This appeal ensued. Petitioner asserts that it complied with the procedural mandates of IDEA in that the IEP resulting from the June 27, 2005 meeting was developed by a duly constituted team, that it considered evaluations and other information, that the results of the evaluations guided the goals and recommendation in the IEP, that a functional behavioral assessment and behavioral intervention plan were appropriately developed, and that it suggested that the student would benefit from placement in a small, highly structured program with a therapeutic focus, where she would be academically challenged and receive a great deal of individualized attention, and that intensive counseling services should be provided as well.  Petitioner also asserts that the June 27, 2005 IEP was reasonably calculated to confer educational benefit to the student and that the recommended program was an appropriate placement in the least restrictive environment.  Petitioner asserts that the September 13, 2005 CSE meeting occurred "solely to add the recommended placement to the IEP and not to make any clinical or academic determinations" (Pet. ¶ 57 fn. 1).

          Petitioner further asserts that respondents have not shown that Francis is an appropriate placement for the student. In particular, petitioner states that Francis was a small private high school located in Staten Island with no special education component whatsoever, that none of its teachers are certified in special education, that it employs no mental health professionals, that its class size is higher than that on the student's IEP, that it provides less classroom support than is recommended on the student's IEP, and that the student received no counseling at the school. 

          Petitioner also asserts on appeal that the equities favor petitioner and that respondents' actions were contrary to the provisions of 20 U.S.C. § 1412(a)(10)(C)(iii) and 34 C.F.R. § 300.403.  Petitioner claims that respondents enrolled the student in Francis without proper notice and before it even had an opportunity to offer the student a FAPE for the 2005-06 school year and that respondents never intended to send the student to a school recommended by the CBST. 

          At the impartial hearing, the student's mother testified that she was not advised of the September 13, 2005 CSE meeting, that she was never called during the meeting, and that respondents would have attended that meeting had they received any type of notice of it (May 3, 2006 Tr. pp. 328-29).  Consistent with the impartial hearing officer's decision, respondents also argue that the MDP representative was not notified of the September 13, 2005 CSE meeting, was not called to participate in it, and that the CSE's action in recommending MDP was premature.  Respondents also assert that the June 27, 2005 and September 13, 2005 IEPs are invalid as they do not include how the student's annual goals are to be measured. 

          Respondents further argue, among other things, that a placement at MDP did not meet the student's needs.  More specifically, they assert that petitioner did not provide a class profile of the student's proposed class even after being requested and agreeing to do so at the hearing, and that a placement at MDP did not provide the student with a suitable and functional peer group.  Respondents agree with the impartial hearing officer's conclusion that Francis was an appropriate school for the student and with the impartial hearing officer's conclusion that equitable considerations support their claim for tuition reimbursement.

          The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)² is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).³  An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]).  At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005]  (finding the district fulfilled its legal obligations by providing the IEP before the first day of school).  The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).

          A FAPE is offered to a student when the board of education (a) complied 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. at 176, 206, 207 [1982]).  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][3][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][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).

          The Second Circuit has determined that "a school district fulfills it 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 burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

          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 parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192).  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]; 34 C.F.R. § 300.148).  The IDEA allows that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agencyhad not made a [FAPE] available to the child in a timely manner prior to that enrollment"(20 U.S.C. § 1412 [a][10][C][ii])(emphasis added).

          Here, respondents have not demonstrated that their daughter had not been offered a FAPE for the 2005-06 school year prior to the enrollment of her daughter in the private placement in mid-August 2005.  By letter dated August 16, 2006 respondents advised petitioner that respondents enrolled their daughter in Francis.  The June 27, 2005 IEP had a September 8, 2005 implementation date.  Respondents withdrew their daughter from public school prior to the beginning of the 2005-06 school year and prior to the determination of the school in which her 12:1+1 special class program would be implemented.  Respondents withdrew their daughter while the development and determination of an appropriate program and placement were still in progress.  As it turned out, shortly after the unilateral private placement occurred, and prior to the beginning of the 2005-06 school year, respondents' daughter was accepted at a state-approved private school (MDP) that offered appropriate services.⁴ 

              Petitioner presented significant evidence at the impartial hearing to support its assertion that MDP offered respondents' daughter appropriate educational services.  At the time of the student's visit to MDP, the school provided services to 74 students and 104 students were enrolled at the time of the impartial hearing (April 7, 2006 Tr.  pp. 82, 119).  MDP provides educational services to students classified as emotionally disturbed and offers Regents diplomas and advanced Regents diplomas as well as regular high school diplomas (April 7, 2006 Tr. pp. 83, 84).  During the 2004-05 school year, 12 of the graduating students from MDP went on to college and three received academic scholarships (April 7, 2006 Tr. pp. 107, 108).  The director of transitional and placement services at MDP testified that MDP provides a therapeutic environment to its students and the status of every student is monitored through individualized "bi-weekly case conferencing" (April 7, 2006 Tr. pp. 95, 123). MDP provides counseling services to every student, and the program to which the student had been accepted has three licensed clinical social workers, guidance counselors, an on site school psychologist, a registered nurse, and a crisis intervention team to provide therapeutic services (April 7, 2006 Tr. pp. 85, 86, 87-88, 95, 159-61).  Class size is 12 students and every class has a special education teacher as well as a paraprofessional (April 7, 2006 Tr. p. 87), consistent with the 12:1+1 class size recommended by the CSE (Dist. Exs. 4 at p. 1, 5 at p. 1).  The director of transitional and placement services testified that the MDP program addressed teasing and bullying through procedures that included a mediation strategy which allowed students to work together (see April 7, 2006 Tr. pp. 97-100).  She described how MDP would have implemented the student's IEP goals, and provided examples of how various counseling staff work with the school's certified special education teachers to ensure implementation of goals (April 7, 2006 Tr. pp. 147-52).  She also testified that if it were determined that the student needed additional counseling beyond that recommended in her IEP in order to transition successfully into the MDP program, additional services would be provided (April 7, 2006 Tr. p. 160).  The director of transitional and placement services testified that MDP had successfully provided services to students with social and emotional needs and opined that the school was an appropriate placement for respondents' daughter, and that the student would have made "measurable progress" (April 7, 2006 Tr. pp. 102-03).  The instruction and services offered at MDP were consistent with the recommendations contained in evaluations considered by the June 27, 2005 CSE discussed above (e.g., the student "would benefit from placement in a small, highly structured educational setting with small class size and a strong therapeutic focus in order to meet her social-emotional as well as her academic needs" Dist. Ex. 15 at p. 4; see also Dist. Exs. 16, 17, 18, 19, and 20).  Given the identified needs of the student as the time of the June 27, 2005 CSE meeting and at the time that she was accepted at MDP, placement at MDP would have been consistent with her educational needs and LRE requirements (see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]).

            Although respondents did not demonstrate that their daughter was not offered a FAPE prior to the unilateral enrollment, I have considered whether the placement selected for the student by respondents for that school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement 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).  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).  It must "address the student's special education needs" (Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660 [S.D.N.Y. 2005]).

            Francis is a small, private "comprehensive academic high school" in Staten Island, with an enrollment of approximately 170 students in grades nine through twelve (May 3, 2006 Tr. pp. 250, 271).  It has nine classrooms and average class size of approximately 18 students (May 3, 2006 Tr. pp. 253, 271).  The school grants Regents diplomas and approximately 80 per cent of its graduates go on to college (May 3, 2006 Tr. p. 251).  The educational director at Francis testified that the school offers "many of the same classes that are offered in public schools," and it "follows the same guidelines given by the … State Education Department" (May 3, 2006 Tr. p. 250).  She testified that classes at Francis were "academically rigorous" (May 3, 2006 Tr. p. 272).  The educational director indicated that Francis "is not considered a special education school" (id.).  She testified that she was not familiar with the student's IEP and that Francis does not offer IEP services (May 3, 2006 Tr. pp. 274-75).  Francis does not employ mental health professionals (May 3, 2006 Tr. p. 263).

            The student's IEP for the 2004-05 school year indicated that SETSS services were provided to the student to address her "specific academic delays as well as problems with attention and organization" (Dist. Ex. 32 at pp. 3, 11).  Respondents presented no evidence that this identified need was addressed at Francis.  The educational director at Francis was not familiar with the student's IEP (May 3, 2006 Tr. pp. 249, 264).  Respondents presented no evidence that any of the student's teachers at Francis provided their daughter with any "specially designed instruction…to meet [her] unique needs" (see 20 U.S.C. § 1401[29]; Frank G., 459 F.3d at 365). Nor did respondents provide any evidence that any of their daughter's teachers at Francis adapted their instruction or their instructional methodology to meet the student's needs (Frank G., 459 F.3d at 365-66). 

            The student's private psychiatrist recommended that the student be placed in a program with a small class size (Dist. Ex. 15 at p. 4) and the student's ERSSA counselor during the 2004-05 school year recommended a smaller student to teacher ratio to provide for closer supervision of her academic work (Dist. Ex. 20 at p. 2).  The student's IEP for the 2005-06 school year recommended a staff to student ratio of 12:1+1 (Dist. Ex. 5 at p. 1; Dist. Ex. 4 at p. 1).  The student's classes at Francis had only one instructor (May 3, 2006 Tr. p. 253) and the average class at Francis is approximately 18 students  (May 3, 2006 Tr. p. 253).  Further, the student's ERSSA counselor suggested that a smaller student to teacher ratio would allow for better training of staff to address the student's emotional needs and respondents did not provide any evidence that staff at Francis received such training (Dist. Ex. 20 at p. 2).

            Respondents' daughter received ERSSA counseling during the 2004-05 school year (see Dist. Ex. 32 at p. 5) and her IEP for the 2005-06 school year recommended counseling in a group of three for 30 minutes once a week (see Dist. Ex. 5 at p. 13; Dist. Ex. 4 at p. 13).  While Francis has counseling available for its students (May 3, 2006 Tr. p. 263), the student did not receive any counseling there (May 3, 2006 Tr. pp. 263-64).

            The impartial hearing officer concluded that Francis is able to address this student's social and emotional needs in conjunction with the counseling and social skills training that respondents' daughter receives from private therapists. The student's social/emotional needs within an academic setting were identified in her 2005-06 IEP, which described needs based upon her ability to function effectively within the school environment (Dist Ex. 5 at pp.8-9, 12, 16-17). The student's SETSS teacher testified that, while she did not have information about more serious incidents of bullying (February 17, 2006 Tr. pp. 156-65), the less severe episodes she did witness during the 2004-05 school year affected the student in part because of the student's perception of and reactions to these incidents (February 17, 2006 Tr. pp. 135-136, 156, 158, 159, 161, 162, 163).  The evaluator who conducted the 2004 private neuropsychological evaluation noted that respondents' daughter was unable to defend herself when teased (Parent Ex. J at pp. 4, 6).  This evaluator recommended that the student be placed in a program which would address bullying and that this program teach "adaptive ways to take back control and not being teased/bullied" (Parent Ex. J at p. 6). 

            Respondents' daughter receives no counseling at Francis (May 3, 2006 Tr. p. 263).  The school provides no social skills training within the school environment and has no mental health staff available to provide clinical intervention.  I find that the program at Francis provides the student with a more secure and nurturing environment than she had in 2004-05, but Francis does not address the student's ability to develop social skills.  The record does not support reimbursement for the general education services provided at Francis (Application of a Child with A Disability, Appeal No 05-008).  Moreover, supplementation of the general education services at Francis by private therapy obtained elsewhere does not support a finding here that the services at Francis were appropriate to provide or meet the student's emotional and therapeutic needs (see Application of a Child with a Disability, Appeal No. 06-094).

            With the above circumstances in mind, I am compelled to conclude that respondents have not met their burden to prove that Francis was an appropriate placement for their daughter (seeApplication of a Child with a Disability, Appeal No. 06-012; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 05-039; Application of a Child with a Disability, Appeal No. 05-008; Application of the Bd. of Educ., Appeal No. 04-070; Application of a Child with a Disability, Appeal No. 03-106; Application of a Child with a Disability, Appeal No. 02-092; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 99-028).

            THE APPEAL IS SUSTAINED.

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it ordered petitioner to reimburse respondents for the tuition costs at the Francis School for the 2005-06 school year.