06-124

          Petitioners appeal from that part of the decision of an impartial hearing officer which reduced the amount of reimbursement for the private special education teacher services¹ and "related services" for their son for the 2005-06 school year and summer 2006.  Petitioners also appeal from that part of the impartial hearing officer's decision that denied their request to be reimbursed for the costs of privately obtained occupational therapy services.  Respondent, the New York City Department of Education, cross-appeals from the impartial hearing officer's decision which found that the services selected by petitioners were appropriate for their son.  The appeal must be sustained in part.  The cross-appeal must be sustained in part.

            At the commencement of the impartial hearing on August 7, 2006, petitioners' son was almost nine years old.  He had completed second grade at the Park East Day School (Park East) for the 2005-06 school year and was attending a summer program at the Asphalt Green Day Camp (Asphalt Green).  Park East and Asphalt Green have not been approved by the Commissioner of Education as schools with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The child exhibits deficits in expressive language skills, gross and fine motor skills, and in his sensory modulation abilities that affect his communication, activities of daily living, play, socialization and learning (Parent Exs. F at pp. 1-2; G at pp. 1-2; H at pp. 1-2; I at pp. 1-2; Dist. Ex. 1 at pp. 4, 6, 7, 11, 12).  The child reportedly meets the criteria for a diagnosis of a pervasive developmental disorder, not otherwise specified (PDD-NOS) (Parent Ex. F at p. 1).  The child's eligibility for special education programs and classification as a student with autism are not in dispute (Dist. Ex. 1 at p. 1; Tr. p. 27; see 8 NYCRR 200.1[zz][1]).

            The record is sparse regarding the child's educational history.  During the 2003-04 school year petitioners' son attended the McCarton Center for Developmental Pediatrics (McCarton Center) full time where he received one-to-one instruction (Tr. p. 20).  In August 2004, prior to the child entering the first grade, respondent's Committee on Special Education (CSE) convened and developed an individualized education program (IEP) for September 2004 through September 1, 2005 (Parent Ex. C at p. 2). The child's August 2004 IEP provided that the child would participate in a 12-month school year program consisting of a 6:1+1 special class in a specialized school with related services of speech-language therapy and occupational therapy (Parent Ex. C at pp. 1, 11, 13).

            Petitioners rejected the August 2004 proposed IEP on procedural and substantive grounds, unilaterally enrolled their son in a half-day program at the McCarton Center and in a half-day program at Park East, and requested tuition reimbursement for the two schools as well as reimbursement for extended day services provided to their son (Parent Ex. B at p. 4).  An impartial hearing on that matter was held on December 16, 2004, at which time respondent conceded there were procedural errors regarding the proposed IEP and did not contest the substantive issues raised (id.).  In a decision dated January 31, 2005, the impartial hearing officer in that matter ordered respondent to reimburse petitioners for their expenditures for the 2004-05 school year for their son at the McCarton Center, at Park East, and for eight to ten hours per week of extended day services (Parent Ex. B at pp. 8-9).

            Respondent's CSE convened on May 18, 2005 to develop the child's IEP with a September 1, 2005 projected date of initiation, when he would be in the second grade (Dist. Ex. 1 at pp. 1-2).  The CSE recommended that petitioners' son attend a 12-month school year program consisting of a 6:1+1 special class with related services of individual speech-language therapy five times per week for 30 minutes and individual occupational therapy five times per week for 30 minutes (Dist. Ex. 1 at pp. 8, 10).  The child's academic performance and learning characteristics indicated he had made significant progress in his ability to use and understand language; however, he continued to require a high degree of structure to demonstrate his learned skills (Dist. Ex. 1 at p. 3).  The child was in the "top reading group" in his class and received math instruction in subtraction, addition, problem solving, and money skills (id.).  By teacher estimate, the child's instructional level in the areas of reading comprehension, decoding, written expression, math computation, and math problem solving was estimated to be at the first grade or above (id.).  The child continued to exhibit difficulty processing social situations and required a high level of prompting to participate in one-step interactions with others (Dist. Ex. 1 at p. 4).  The CSE determined that the child's behavior interfered with instruction and that he required a small, structured, supervised, supportive educational environment with appropriate related services (id.).  The proposed May 18, 2005 IEP contained goals and corresponding short-term objectives related to the child's problem solving, fine motor, handwriting, gross motor, sensory modulation, pragmatic, and oral motor needs (Dist. Ex. 1 at pp. 6-7).  Respondent's CSE, on May 18, 2005, referred the case to its Central Based Support Team (CBST) for placement (Dist. Ex. 1 at p. 1).

            By letter dated August 16, 2005, petitioners advised respondent's CSE that, as of the date of the letter, they had not received an IEP recommending a program and placement for their son for the 2005-06 school year and summer 2006 (Parent Ex. D).  Petitioners indicated that they would be sending their son to Park East with private special education teacher support in and out of the classroom, private occupational therapy and speech-language therapy, instruction and support in pragmatic language, and "social skills-related teaching and opportunities," and to Asphalt Green with private special education teacher support for summer 2006 (id.).  Petitioners further informed respondent that they would be seeking reimbursement from respondent for these services (id.).

            The child attended Park East for the 2005-06 school year (Parent Ex. H).  By due process complaint notice dated June 22, 2006, petitioners requested an impartial hearing for the purpose of seeking tuition reimbursement for Park East for the 2005-06 school year and Asphalt Green for summer 2006 from June 30, 2006 through August 13, 2006, and reimbursement for costs associated with "extended day" services, private special education teacher services, social integration therapy, private consultation services, speech-language therapy, and occupational therapy (Parent Ex. A at p. 2).  The impartial hearing commenced on August 7, 2006 and concluded on August 18, 2006, after two days of testimony. 

            At the impartial hearing petitioners contended that respondent failed to offer a placement (Tr. p. 22), that they obtained appropriate educational services, and that there were no equitable considerations that would preclude or diminish their request for reimbursement (Tr. p. 368).  At the impartial hearing respondent contended that petitioners lacked standing to bring their reimbursement claims because the child's grandfather, not petitioners, provided payments for the private services (Tr. pp. 204-05; IHO Decision, p. 3).  In addition, respondent contended that Park East was not in the least restrictive environment (LRE) (Tr. pp. 51-52; 53-54, 59; IHO Decision, p. 4). 

            The impartial hearing officer rendered a "corrected" decision on September 22, 2006.  He determined that petitioners had standing to seek reimbursement for the services that were privately obtained for their son (IHO Decision, p. 10).  The impartial hearing officer noted that respondent conceded that it failed to offer an appropriate placement (IHO Decision, p. 6).  The impartial hearing officer found that Park East and Asphalt Green met the LRE criterion with respect to the child's "educational integration with non-handicapped peers" (id.).  The impartial hearing officer determined that the services selected by petitioners were appropriate and that equitable considerations supported their reimbursement claims (IHO Decision, p. 8).  The impartial hearing officer ordered respondent to reimburse petitioners for the cost of their son's tuition at Park East for the 2005-06 school year and at Asphalt Green for summer 2006 (IHO Decision, p. 6).  However, relying on a rate schedule that was not admitted at the hearing, the impartial hearing officer ordered that petitioners be reimbursed at a reduced rate for private special education teacher services, social integration therapy, private consultant services and speech-language therapy (IHO Decision, pp. 8-9).  In addition, the impartial hearing officer found that he could not make a determination as to petitioners' claim for reimbursement for the cost of occupational therapy services because, although there was documentary evidence listing occupational therapy as having been provided, there was no testimony regarding the appropriateness of these services (IHO Decision, p. 9).

            Petitioners contend on appeal that the impartial hearing officer erred in reducing the amount of reimbursement for private special education teacher services, social integration therapy,²  private consultant services,³ and speech-language therapy.  Petitioners also contend that the impartial hearing officer erred in not awarding reimbursement for the cost of the occupational therapy services that were provided to their son.

            Respondent cross-appeals, contending that petitioners failed to demonstrate that the services they selected were appropriate.  Respondent contends in the alternative that the impartial hearing officer's decision should be reversed to the extent that it ordered tuition reimbursement for Park East for the 2005-06 school year and for Asphalt Green for summer 2006.  `Respondent does not appeal from the impartial hearing officer's determination that petitioners had standing to seek reimbursement for the services they obtained for their son (see IHO Decision, p. 10).

            The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487)⁴ is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)⁵ (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 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 written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. §§ 300.22, 320).⁶  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a][1]).

            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 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

            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; Cerra, 427 F.3d at 192).  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 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 Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  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, petitioners, as the party seeking relief at the impartial hearing, have the burden of persuasion.

            As noted in the impartial hearing officer's decision, respondent conceded the first criterion of the Burlington/Carter analysis at the impartial hearing (IHO Decision, p. 6; see Tr. p. 27).  Respondent does not appeal from this part of the decision.  An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[k]).  Consequently, this part of the decision is final and binding (Application of a Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child with a Disability, Appeal No. 06-085; Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).   Having addressed the first criterion, I now move on to the second criterion of the Burlington/Carteranalysis.

            With respect to the second criterion of the Burlington/Carter analysis, I must consider whether petitioners met their burden of proving that the services they selected for their son were appropriate to meet his special education needs.  As noted above, the child exhibits deficits in expressive language skills, gross and fine motor skills, and in his sensory modulation abilities that affect his communication, activities of daily living, play, socialization and learning (Parent Exs. F at pp. 1-2; G at pp. 1-2; H at pp. 1-2; I at pp. 1-2; Dist. Ex. 1 at pp. 4, 6, 7, 11, 12).  For the 2005-06 school year the child attended Park East accompanied by a private special education teacher.  The private special education teacher testified that he functioned as the child's "behaviorally trained classroom support" (Tr. pp. 71-72).  The private special education teacher redirected the child when he became unfocused, scripted, or exhibited self-stimulatory behavior by providing the child with verbal and nonverbal cues such as whispering in his ear or gesturing to the child's paper or book being read (Tr. pp. 68, 134).  He helped the child have reciprocal conversations, take turns, and follow directions (Tr. p. 75).  The private special education teacher testified that he was a "shadow" and let the child be as independent as he could be in the classroom, and that he continuously made efforts to withdraw support from the child, stating that the child could "make it through an hour" without support (Tr. pp. 132-33).  The private special education teacher further testified that he had regular communication with the child's general education teacher and provided suggestions to her, such as how to word things so the child could more easily understand, and on seat placement to reduce distractions for the child (Tr. pp. 73, 78).  He indicated that the child had demonstrated progress with his pragmatic language skills and was exhibiting more appropriate classroom behavior such as raising his hand, waiting for the teacher to call on him, and participating in all class activities (Tr. pp. 84-86).  Based on the foregoing, I find that petitioners have demonstrated that Park East with individual classroom support is appropriate to meet their child's special education needs for the 2005-06 school year.

            I will now turn to the appropriateness of the speech-language therapy services.  The record shows that petitioners' son exhibits deficits in auditory processing as well as in his receptive, expressive, and pragmatic language skills (Tr. p. 363; Parent Exs. G at p. 1; I at pp. 1-2).  The record further shows that for the 2005-06 school year the child received individual speech-language therapy three to four times per week, delivered by two speech-language pathologists (Tr. p. 327).  The child's speech-language therapy sessions focused on the child's narrative skills including development of his ability to speak on non-contextual topics without use of visual references or pictures, auditory processing and recall, answering "Wh" questions, cause and effect, understanding of hypothetical situations, and use of appropriate stress and intonation patterns in bi-syllabic and multi-syllabic words (Tr. pp. 329-331, 363; Parent Ex. G at p. 2).  Based on the foregoing, I find that petitioners have demonstrated that the speech-language therapy services were appropriate.

            Regarding the appropriateness of parent counseling and training, petitioners allege that the private special education teacher provided them with such services (Pet. ¶ 28).  However, there is insufficient information in the record describing the parent counseling and training services provided by the private special education teacher.  Petitioners also allege that the private consultant provided "parent training" (Pet. ¶ 41).  The private consultant testified that during the 2005-06 school year she provided petitioners with parent "consultation and communication" (Tr. p. 287).  Petitioners allege that both the private special education teacher and the private consultant provided parent counseling and training (compare Pet. ¶ 28, with Pet. ¶ 41).  While the private consultant testified to the services she provided (see Tr. pp. 302-03, 305-07, 312), I am unable to determine whether those services were also being provided by the private special education teacher.  The record does not establish petitioners' need for parent training and counseling from two service providers.  Under the circumstances, I am not persuaded that the services of the private consultant were appropriate.

            I will now address the appropriateness of the occupational therapy services.  Petitioners contend that the impartial hearing officer arbitrarily denied reimbursement for occupational therapy services provided to the child.  The impartial hearing officer found that he could not make a determination as to petitioners' claim for reimbursement for the cost of occupational therapy services because, although there was documentary evidence indicating occupational therapy services had been provided, there was no testimony or documentary evidence regarding the nature of the services (IHO Decision, p. 9).  I concur with the finding of the impartial hearing officer (Dist. Ex. 1 at pp. 6-7).  I therefore find no need to modify the impartial hearing officer's decision regarding occupational therapy services.

            Regarding the appropriateness of the "extended day" services, the record shows that during the 2005-06 school year the child received services after school from the private special education teacher and the social integration therapist.  However, there is insufficient information in the record to support the child's need for services after school given that he was receiving related services and special education services were being provided during the school day.  Moreover, there are inconsistencies in the record such that it is not clear what services were being provided by whom and the frequency and duration of such services (see Tr. pp. 90, 107, 120, 170, 228, 262; Parent Exs. K; O at pp. 2, 4, 6, 8, 10, 12, 14, 16).  Under the circumstances, I am unable to determine that the "extended day" services were appropriate.

            As for the appropriateness of Asphalt Green for summer 2006, the child attended Asphalt Green accompanied by the private special education teacher that summer (Tr. p. 96).  Asphalt Green is described as a regular day camp that "typical" children attended (id.).  The record reflects that Asphalt Green offers a variety of programs including swimming, gymnastics, basketball, soccer, and summer programs for adults and children; however, the facility does not provide services specifically designed for children with special needs (Tr. pp. 253-55).  At Asphalt Green the child participated in sports, team play, group play, drama, and karate (Tr. pp. 97, 150-51).  Based on the foregoing, I find that the Asphalt Green program was inadequate to meet this child's special education needs.  I therefore find that petitioners have not demonstrated the appropriateness of their son's placement at Asphalt Green for summer 2006.  However, I find that the services provided by the private special education teacher during summer 2006 met some of the child's special education needs.  The special education teacher assisted the child in following directions from the camp instructors, staying in line, following the group, getting his lunch, using utensils and a napkin, and throwing his lunch away (Tr. p. 151).  Based on the foregoing, I find that the services provided by the private special education teacher during summer 2006 were appropriate.

            The final criterion for an award of tuition reimbursement is that petitioners' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 416 [S.D.N.Y. 2005], aff'd, 2006 WL 2334140 [2d Cir. 2006]; Frank G., 459 F.3d at 363-64).  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 [noting that "[c]ourts 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 [1985]).

            In addition, the reasonableness of the cost of services that a parent has obtained is to be considered in determining whether equitable considerations support the parent's claim for tuition reimbursement (Carter, 510 U.S. at 15-16).  Where the costs of private services are excessive, an impartial hearing officer may limit a parent's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 06-004; Application of a Child with a Disability, Appeal No. 00-060; Application of a Child with a Disability, Appeal No. 97-10; Application of a Child with a Disability, Appeal No. 96-8).

            The impartial hearing officer did not make a specific finding that the cost of the privately obtained special education services were unreasonable (see Carter, 510 U.S. at 15-16).  Moreover, the record was not sufficiently developed to provide a basis to support the impartial hearing officer's reduction in the reimbursement rate.  It appears from a reading of the impartial hearing officer's decision that he relied upon documentary evidence (i.e., a "schedule") that was not part of the hearing record to support his determination.  In doing so, under the circumstances of this case, he erred.  Upon the record before me, I find the impartial hearing officer's decision to limit the amount of reimbursement for the private special education teacher services, social integration therapy, private consultant services, and speech-language therapy provided to petitioners' son was not supported by the record (see Application of a Child with a Disability, Appeal No. 06-085).  I note also that the record contains invoices and cancelled checks documenting proof of payment by petitioners for the private special education teacher services, social integration therapy, private consultant services, and speech-language therapy provided to petitioners' son (Parent Ex. O).

            In the absence of any other equitable factor I find that petitioners' claim for reimbursement for private special education teacher services and speech-language therapy is supported by equitable considerations.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-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 tuition reimbursement for Asphalt Green and reimbursement for social integration therapy and private consultant services.

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's privately obtained private special education teacher expenses for the 2005-06 school year and summer 2006, excluding any after school "extended day" services; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the full cost of the child's privately obtained speech-language therapy for the 2005-06 school year in accordance with the documentation in Parent Exhibit O.