The State Education Department
State Review Officer

No. 98-14

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pine Plains Central School District

Appearances:
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel

Shaw and Perelson, L.L.P., attorneys for respondent, David S. Shaw, Esq., and Lisa S. Rusk, Esq., of counsel

 

DECISION

 

        Petitioners appeal from the decision of an impartial hearing officer which found that respondent had offered to provide an appropriate educational program to petitioners' son during the 1996-97 school year, and denied their request for an award of tuition reimbursement to pay for the cost of their unilateral placement of the boy in the Kildonan School. The appeal must be sustained in part.

        At the outset, I will address petitioners' request that this appeal be expanded to include the 1997-98 school year, for which they also seek the relief of an award of tuition reimbursement. Petitioners assert that the hearing officer failed to issue a timely decision with regard to the 1996-97 school year, and that the hearing officer's decision contains gross errors and should be disregarded. They further assert that the " … impartial hearing process here has been so flawed as to render it futile." Pursuant to Section 4404 (2) of the New York State Education Law, a State Review Officer may review and modify, to the extent he deems it necessary, any determination of an impartial hearing officer relating to a child's classification, program or placement. Since there has been no hearing officer's determination with respect to the 1997-98 school year, I have no basis for making any decision with respect to that school year. Although petitioners had made conclusory allegations about the futility of holding another proceeding with respect to the 1997-98 school year, I find that the record which is before me affords no basis for reaching that conclusion. Consequently, I find that this appeal must be limited to the 1996-97 school year, and I will not consider the evidence attached to the petition which relates to a subsequent period of time.

        On or about July 30, 1998, petitioners submitted an amended petition, in which they requested that I accept additional evidence which had been received subsequent to the time lines for this proceeding, in return for their agreement to my request for an extension of time in which to render this decision. I had, however, already obtained respondent's consent to an extension of time (see 34 CFR 300.512 [c]). In addition, it is well established that documentary evidence which was not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without that evidence (Application of a Child with a Disability, Appeal No. 93-14; Application of a Child with a Disability, Appeal No. 93-20; Application of a Child with a Disability, Appeal No. 94-5). Such evidence would of course have to be relevant to the child's education during the 1996-97 school year. Since the additional documents to which petitioners referred in their amended petition were not in fact annexed to that pleading, they have not been considered in this appeal (Application of a Child with a Handicapping Condition, Appeal No. 91-34).

        Petitioners' son, who is eleven years old, was reportedly diagnosed as having a moderate speech articulation delay and a mild expressive language delay while in nursery school. As a result, he received speech therapy from the St. Francis Hospital. He continued to receive speech therapy while enrolled in respondent's Cold Spring Elementary School for kindergarten and pre-first grade during the 1992-93 and 1993-94 school years. At the end of kindergarten, the child's language skills were at the 15th percentile and his mathematics skills were at the 28th percentile. He was privately tutored in reading and mathematics during the summer of 1993. His tutor reported that the child had achieved 100 percent recognition of upper case letters and could successfully decode simple words. She indicated that the child did have difficulty remaining on task at times, and she recommended that he be enrolled in a pre-first grade class to benefit from extra review before entering the first grade.

        In the spring of 1994, the child's mother requested that her son be evaluated by respondent's committee on special education (CSE) because of his low academic achievement and some behavioral problems in school. I note that his report card for the pre-first grade (Exhibit 14) indicated that he made satisfactory academic progress and had satisfactory work habits, but lacked self-confidence. The CSE's social worker reported that the child appeared to lack confidence in his academic ability and easily became frustrated. However, the child appeared to respond well to the extra attention he had received while being counseled on an individual basis. The social worker recommended that the boy be counseled once per week.

        The child was evaluated by respondent's school psychologist on May 10, 1994. The school psychologist, who observed the boy in his classroom, reported that the child was physically active, but generally appeared to be following his teacher's lesson. On the Wechsler Intelligence Test for Children – III, the child achieved a verbal IQ score of 122, a performance IQ score of 125, and a full scale IQ score of 125. His score was below average on a subtest which measured his short-term memory. On the Detroit Tests of Learning Aptitude – 2, the boy's composite scores produced a general mental ability quotient of 107 and an optimal mental ability quotient of 122. The school psychologist noted that the boy's scores were lower when he was asked to perform longer tasks, which the school psychologist attributed to a lack of attention and motivation. His auditory discrimination skills were slightly below age expectancy, which the examiner attributed to his inattention. The child's visual motor integration skills were age-appropriate. On the Woodcock Johnson Achievement Test, the child achieved grade equivalent scores of K.9 for word/letter identification, K.9 for passage comprehension, K.7 for dictation (spelling), 1.2 for mathematical completion, 1.5 for mathematical application, 1.4 for writing sample, 3.8 for science, 3.7 for social studies, and 1.3 for the humanities. The school psychologist concluded that, although there were a number of issues affecting the child's ability to progress in school, there did not appear to be a significant discrepancy between his academic achievement and intellectual ability for the purpose of identifying him as a child with a disability. He noted that the child had trouble recalling letter names and sounds, and he recommended that the child receive remedial reading. The school psychologist also recommended that petitioners' son be placed in a first grade class where he could receive the assistance of a consultant teacher in reading and mathematics, and that he receive individual counseling to help him find ways to express his feelings and frustrations in a more acceptable manner.

        The CSE recommended that the boy not be identified as a child with a disability, and it did not adopt the recommendations by the school social worker and school psychologist for additional services for the boy. However, a behavior modification plan was reportedly implemented for him while in the first grade during the 1994-95 school year, and he was counseled once per week by the school psychologist. By the third quarter of the school year, the child's teacher noted that there was some improvement in the child's behavior, but he was manifesting some signs of dyslexia as his reading assignments became more difficult (Exhibit 14). Although the child was supposed to have received remedial reading instruction during the 1994-95 school year, he did not do so because he was allegedly disdainful of those children who received such instruction, according to his first grade teacher (Transcript, page 227). On his report card, the teacher indicated that he needed to improve his ability to read and work independently. As a result of his teacher's concerns about his reading skills, the child was evaluated by a district reading teacher in June, 1995. The reading teacher reported that the child had attained percentile scores of 33 for vocabulary, 36 for comprehension, and 36 for total reading on the California Achievement test. In May, 1995, the child had achieved grade equivalent scores of 1.4 for math applications, 1.0 for operations, and 2.5 for math concepts on the Key Math – R test.

        During the summer of 1995, the child was tutored by the Academic Dean of the Kildonan School in Amenia, New York. The school serves students with learning problems, but it has not been approved by the State Education Department to provide instruction to children with disabilities pursuant to Article 89 of the Education Law. Therefore, respondent could not have contracted with the Kildonan School to instruct the child (20 USC 1412 [6]; Section 4402 [2][b][2] of the Education Law). I note that on August 7, 1995, the Kildonan School accepted the child for enrollment in the second grade during the 1995-96 school year. However, the child remained in respondent's schools for that school year.

        By letter dated August 13, 1995, the child's mother requested that her son be independently evaluated at public expense. Respondent's Director of Pupil Personnel Services responded to the request on August 23, 1995. He indicated that the request was deemed to be untimely since it was made more than one year after the district's evaluation of the child in May, 1974. However, the Director scheduled a CSE meeting to take place on August 31, 1995 to consider whether the child should be further evaluated. On August 31, 1995, the CSE approved the Director's recommendation that the child be evaluated.

        The child's social history was updated on September 28, 1995. Respondent's social worker noted that the child's mother was very concerned about the education services her son was receiving, and revealed that the child's father could not read or write. On September 14, 1995, respondent's teacher of the speech and hearing handicapped summarized the results of prior evaluations and of an evaluation she had completed on September 11, 1995. She noted that the speech/language therapy which was provided by respondent until September, 1994 had focused upon the boy's articulation of certain phonemes and activities to improve his auditory discrimination skills. When the boy was evaluated again near the end of the pre-first grade, he was found to have some deficits in his ability to follow directions and formulate sentences, as well as his auditory memory span for unrelated words. His overall language skills were in the average range, but were much lower than his cognitive ability. She opined that the disparity between his IQ and language skills could be the source of his frustration in school.

        During the September, 1995 evaluation of his speech/language skills, the child exhibited some nervous behavior which was more noticeable as his tasks became more difficult. On the CELF-R, he achieved scores of 112 for receptive language and 108 for expressive language. Although the child achieved a standard score of 116 on the Peabody Picture Vocabulary Test, which indicated that he had an excellent knowledge of individual words, he experienced difficulty when the words were presented in the context of directions. The teacher indicated that the child's difficulty in formulating sentences could reflect weaknesses in grammar and syntax, i.e., word organization and word order. His auditory memory span was reported to be above average, while his auditory sequential memory was found to be in the average range. The evaluator recommended that the child not receive language therapy, but that he receive speech articulation therapy twice per week during the 1995-96 school year to correct his difficulty producing the "/1/" phoneme, and that he be provided additional assistance for writing.

        The district's reading teacher administered the Brigance Diagnostic Comprehensive Inventory of Basic Skills to the child in September, 1995. She reported that he had difficulty sequencing lower case letter of the alphabet, but could print each of the upper case letters, except "H" and "Q". His auditory discrimination, sentence memory, and ability to follow oral directions were satisfactory. The child could read or sound out 25 of 50 sight words, but made 17 word errors while reading a 33-word pre-primer reading selection. The teacher recommended that the child receive remedial reading in a once per day "pull-out" program, i.e., removal from the classroom to receive a structured phonetic approach to reading.

        On September 12, 1995, the Key Math – R Test was administered to the child. He attained grade equivalent (percentile) scores of 2.5 (61st) for basic concepts, 1.0 (4th) for operations, and 1.4 (14th) for applications. The teacher who administered the test cautioned that the test scores might not be valid, because at times the child was not trying to do his best on the test. She recommended that he be re-assessed, and noted that the child needed to build his confidence in doing mathematics and in school.

        The school psychologist who had evaluated the child in 1994 reviewed the results of that evaluation, and he observed the boy in his second grade classroom on September 17, 1995. He reported that the child needed to be redirected four times during the 40 minutes he observed the boy, and appeared to be involved in the classroom writing activity only about 50 percent of the time. He also reported that the child's second grade teacher had indicated to him that petitioners' son often made inappropriate noises, disturbed other children, and generally did not get along with his classmates. He also described him as easily frustrated in learning and highly distractible. The school psychologist noted that the child had been removed from a portion of his school program because of temper tantrums. He recommended that the child be classified as learning disabled in the area of reading. The school psychologist suggested that the boy continue to receive daily remedial reading in a small group, as well as instruction in a resource room program, to remediate his word attack and writing skills. He also recommended that the boy's vision be tested to ascertain whether his reading problems were vision related. I note that petitioners allege in their petition that their child's vision was tested in the summer of 1995. However, they do not reveal the results of that testing. The school psychologist offered several instructional suggestions.

        On October 11, 1995, the CSE recommended that petitioners' son be classified as learning disabled, and that he receive five 30-minute sessions of resource room services per week. The child was also to have received counseling in a group of no more than five children for 30 minutes per week. At the hearing in this proceeding, the child's second grade teacher testified that the child did not receive counseling during the 1995-96 school year, because he reportedly would have had a difficult time establishing a rapport with the social worker who was assigned to counsel him. In any event, the child's second grade teacher testified that the child's behavior was greatly improved during the 1995-96 school year. The boy was removed from his classroom once per day to receive remedial reading instruction in a group of seven students. His remedial reading teacher testified that she used a multi-sensory approach to teach reading to the child, whose letter identification skills were weak.

        On November 5, 1995, the child's mother notified respondent's Director of Pupil Personnel that she wished to have her son independently evaluated. However, the child was not independently evaluated until June, 1996 because of the independent evaluator's schedule. The child's report card indicated that his reading skills remained below grade level, despite satisfactory effort on his part. His second grade teacher commented on the child's report card that he had shown a great deal of progress, and that he needed to be less down on himself about his reading ability. She also noted that the child had complained about seeing clearly at a distance. The teacher described the child's work habits and social development as satisfactory or good throughout the 1995-96 school year.

        In January, 1996, the child's mother expressed her concern about her son's rate of progress to the Director of Pupil Personnel, who was also chairperson of the CSE. She noted that the child's remedial reading teacher had indicated that the child continued to be frustrated and very challenged when he read, and required prompting to complete his assignments. The child's mother requested that more be done for her son to improve his reading and writing skills.

        On February 28, 1996, the child's academic skills were assessed by his special education teacher, who used the Woodcock-Johnson Revised. She reported that he achieved grade equivalent (percentile) scores of 1.5 (7th) for letter-word identification, 2.6 (56th) for word attack, 1.6 (18th) for passage comprehension, 2.0 (28th) for dictation, 2.5 (47th) for mathematical calculation, 4.0 (94th) for applied problems, 3.3 (74th) for writing samples, 6.0 (99th) for science, 5.4 (98th) for social studies, 2.3 (47th) for the humanities. At the hearing in this proceeding, the special education teacher testified that the child was not functioning at the third grade level in writing, notwithstanding the results of this test. In her report for the second quarter, the child's reading teacher had noted that the child needed reminders and a lot of repetition, but that he could do the work of his reading group which was very repetitive and slow paced. By the next quarter, the child had become more confident and was beginning to work independently for the remedial reading teacher. On the California Achievement Test which was administered in May, 1996, the child achieved grade equivalent scores of 5.4 for reading vocabulary and 12.5 for comprehension. However, I note that the test was apparently read to the child (Transcript, page 328).

        On March 29, 1996, the CSE prepared the child's individualized education program (IEP) for the 1996-97 school year. The CSE recommended that the child receive 30 minutes of resource room services ten times per week. The CSE chairperson testified that the CSE also recommended that the child have a twelve-month program, commencing on July 8, 1996. However, I note that the child's IEP (Exhibit 7) indicated that the program would be initiated on September 4, 1996. The CSE chairperson further testified that the CSE wanted the child to receive remedial reading and writing in a group of no more than two children, although the child's IEP did not reveal the intended size of the child's instructional group. For the 1996-97 school year, the CSE recommended that the child's speech/language therapy be reduced to once per week in a group of no more than five, and that he receive counseling in a similar sized group once per week. The child's IEP provided that he was to have the benefit of various testing modifications, including flexible scheduling, extended time limits, testing in a separate location, having test directions read to him in simplified language, and the use of revised test formats, e.g., more space between test items. His IEP annual goals were to improve his reading decoding skills, develop his sight vocabulary, develop his reading comprehension skills, develop fluency in oral reading, and develop his spelling and handwriting skills. The IEP also included annual goals for him to complete the course requirements in his regular education placement. Although there was a single annual goal for his recommended speech/language therapy, there was none for his recommended counseling. Petitioners did not receive a copy of their son's IEP until September, 1996.

        The boy's independent educational evaluation was completed on June 18, 1996, although the evaluator's report was dated August 26, 1996. She reported that she had never tested a child who was so aware of his deficits and who had built up so many defenses to cope with his school and peer difficulties. On the Woodcock Reading Mastery Test, the child achieved grade equivalent (percentile) scores of 1.9 (7th) for letter identification, 1.7 (3rd) for word-identification, 1.7 (9th) for word attack, 1.6 (3rd) for word comprehension [when the words were read to him, his score improved to 6.3 (96th)], and 1.6 (2d) for passage comprehension. On the Spadafore Diagnostic Reading Test, the child scored at the frustration level while performing various reading tasks such as word recognition, oral reading, and comprehension, which were at the "primer" level, i.e., below the first grade. The evaluator concluded that the child had a language based disability which affected his reading, writing and spelling skills. She recommended that the child be taught to read, write and spell using the Orton-Gillingham Methodology for one hour per day. She also suggested that he be taught keyboarding skills, and recommended a specific mathematics instructional program for him.

        Although the CSE had recommended that the child be enrolled in a summer instructional program, petitioners decided not to enroll him in a summer program because they believed that he needed an emotional break from school (Exhibit 15). On August 2, 1996, the child's mother asked for a CSE meeting to review the results of her son's independent evaluation. However, the CSE reportedly did not receive a copy of the independent evaluator's report until August 23, 1996 (Exhibit 17). On August 26, 1996, the child's mother signed an enrollment agreement with the Kildonan School for her son's instruction during the 1996-97 school year. The boy attended the private school at petitioners' expense during that school year.

        On October 2, 1996, the CSE met with the child's mother to review the results of the child's independent evaluation. According to the minutes of the CSE meeting (Exhibit 17), the CSE chairperson questioned the appropriateness of an evaluation which had not included an observation of the child in his classroom and contact by the evaluator with the child's teachers. In any event, the CSE rejected petitioners' request that the child be placed by respondent in the Kildonan School. The CSE chairperson testified that the CSE did recommend that the child's resource room services be increased to three periods per day, although neither the meeting minutes nor the IEP developed at the meeting (Exhibit 16) reflect that fact. Exhibit 16 does indicate that one period per week of speech pathology was recommended by the CSE at its meeting on October 2, 1996. Petitioners reportedly did not receive a copy of that IEP until December, 1996.

        On January 16, 1997, the child's mother requested that an impartial hearing be held for the purpose of obtaining an award of tuition reimbursement. The hearing was scheduled to begin on February 26, 1997, but was rescheduled by consent to begin on April 7, 1997. In the interim, the CSE met again with the child's mother on February 7, 1997 to review the child's IEP for the 1996-97 school year. The CSE apparently made minor revisions in the child's IEP, but did not significantly alter its prior recommendation that he be educated in respondent's schools. I note that the February 7, 1997 IEP (Exhibit 18) refers to the child's program as being that of the services of a consultant teacher rather than resource room services. However, those terms appear to be used somewhat interchangeably in respondent's district (see Transcript, pages 52-53 and 710-711).

        The hearing was held on six days, ending on August 14, 1997. The hearing officer rendered his decision on January 23, 1998. He reviewed the child's academic progress as reflected by his standardized test scores, and concluded that he had made substantial progress "in almost all areas tested", while attending respondent's schools. The hearing officer found that the child's IEP for the 1996-97 school year accurately reflected his levels of performance and contained appropriate annual goals and objectives. He further found that respondent went to great lengths to provide the child with a teaching methodology which was beneficial to him, citing the fact that respondent had paid for the child's remedial reading teacher to be trained in the Orton-Gillingham methodology at the Kildonan School. He held that respondent had met its burden of proof with respect to demonstrating the appropriateness of the educational program which it had offered to provide to petitioners' son during the 1996-97 school year. Although that holding would be dispositive of petitioners' request for an award of tuition reimbursement, the hearing officer also held that petitioners had failed to meet their burden of proving that the special education services which they obtained for their child at the Kildonan School were appropriate for him.

        As noted above, petitioners assert that the hearing officer failed to render a timely decision. The record reveals that there were two hearing officers with the same last name on respondent's rotational list, and that respondent initially appointed one of the those hearing officers, and subsequently discovered that it should have appointed the other hearing officer. Respondent rectified its error on April 7, 1997. On that date, petitioners' attorney waived any objection to the new hearing officer serving in that capacity and agreed to extend the 45-day time limit for the hearing officer's decision (see 34 CFR 300.512 [a]) until mid-July (Transcript, page 7). On July 16, 1997, the hearing officer discussed the need for an additional extension of time with the parties' attorneys. Neither attorney objected to an additional extension until the conclusion of testimony and receipt of the parties' memorandum of law (Transcript, page 545). At the conclusion of the hearing on August 13, 1997, the attorneys agreed to exchange memoranda of law by September 18, 1998 (Transcript, page 951). However, they apparently failed to set a specific deadline for the hearing officer's decision (cf. 34 CFR 300.512 [c]).

        Petitioners allege that on January 12, 1998, they filed a complaint against the hearing officer with the State Education Department because he had not rendered his decision. Petitioners contend that the hearing officer's decision reflects his bias against them for having filed a complaint with the State Education Department, and they urge that his decision be disregarded. I have reviewed the hearing officer's decision and have been unable to find any evidence to support petitioners' serious allegation of bias.

        Petitioners assert that the hearing officer erred by finding that respondent had demonstrated that it had offered to provide an appropriate educational program to their son for the 1996-97 school year. They contend that their son's IEP for that school year was procedurally and substantively flawed. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        There are three versions of the child’s IEP for the 1996-97 school year in the record (Exhibits 7, 16 and 18). While a CSE may of course revise a child’s IEP from time to time, I must note that none of the three versions had been given to petitioners by August, 1996, when they decided to enroll their son in the Kildonan School. They received the IEP which had been prepared at the March, 1996 CSE meeting (Exhibit 17) in September, 1996 (Transcript, page 32). The IEP which resulted from the October, 1996 CSE meeting (Exhibit 16) was not received by petitioners until December, 1996 (Transcript, pages 689-690). The last version of the IEP was prepared at the February, 1997 CSE meeting (Exhibit 18). For the purpose of determining petitioners’ tuition reimbursement claim, I will consider the adequacy of only the first version of the IEP.

        Petitioners assert that their son’s IEP lacked a sufficient description of his needs and abilities. An IEP must report a child’s present levels of performance and indicate the child’s individual needs in terms of his or her educational achievement and earning characteristics, social development, physical development, and management needs (8NYCRR 200.4 [c][2][I]). This child’s IEP reported the results of his March, 1996 achievement testing and his September, 1995 mathematics testing, and included separate descriptions of his academic development and management needs. It did not describe his social and physical development as required by the regulation. This omission is significant because of the child’s history of difficulty with peer relations, which apparently continued even while attending the Kildonan School, and because the CSE recommended that he receive counseling during the 1996-97 school year. The IEP description of the child’s "academic development" appears to me to be a description of his learning characteristics. In any event, that description, plus those for his management needs and his needs for classwork/homework and testing modifications, do in my judgment provide an adequate description of the child’s academic needs.

        Petitioners also challenge the appropriateness of their son’s IEP annual goals and short-term objectives. The child’s annual goals addressed his need to improve his reading decoding and comprehension skills, his spelling skills, his handwriting skills and his study skills. I note that there was also a speech/language goal. However, there was no annual goal for the counseling which the CSE had recommended. The boy's annual goals were stated in very general terms, e.g. "[the child] will develop decoding skills." Annual goals are statements of what a child can reasonably be expected to accomplish within a twelve-month period in the child's special education program. They must be sufficiently specific to provide the child's teachers with direction about the CSE's expectations (Application of a Child with a Disability, Appeal No. 94-8). I find that this child's annual goals lacked the requisite specificity. I have examined the short-term instructional objectives which supported the annual goals to ascertain whether they would have clarified the CSE's expectations. The objectives were far more specific than the goals, but they did not specify a particular level of performance, e.g. " … with 80 percent accuracy." Indeed, the objective supporting the annual goal relating to developing the child's sight word vocabulary did not specify the number of second grade-level words he would have been expected to learn. An IEP must include appropriate objective criteria and evaluation procedures and schedules for determining whether the short-term instructional objectives were being achieved (34 CFR 300.346 [a][5]). I find that this child's IEP did not comply with the regulatory requirement.

        An IEP must also describe the special education services which are necessary to afford the child a reasonable opportunity to achieve his or her annual goals. The IEP in question indicated that the child would receive ten 30-minute sessions of resource room services per week, as well as remedial reading and writing instruction. However, it did not specify the amount of remedial instruction the child would receive. Although an IEP would not normally describe a child's regular education instruction program, I find that in this instance it was necessary to indicate the amount of recommended remedial reading and writing in the IEP, since that instruction would have been an integral part of respondent's effort to remediate the child's academic deficits in the areas of reading and language arts. The remedial reading teacher testified that she would work with the child for 60 minutes per day. The CSE chairperson testified that remedial reading was typically provided to students four times per week, but that the teacher in this instance planned to work with the child on a daily basis. Although the IEP which is Exhibit 7 indicated that the child would receive resource room services, the third version of the IEP indicated that the boy would receive the services of a consultant teacher. Petitioner testified that she was advised by the CSE that it was merely a change of terminology, rather than a change in her son's program. The program which was described at the hearing by the special education teacher who would have taught the child for ten periods per week if he had attended respondent's schools during the 1996-97 school year would appear to have involved consultant teacher services in a third grade classroom (Transcript, pages 197-201). Ms. Dougherty, the child's prospective special education teacher, testified that the child would have gone from his regular education third grade class to another regular education third grade class for reading and language arts instruction. Ms. Dougherty further testified that she could spend as little as 30 minutes per day with the child in a group of four students in that classroom for language arts, and might use the remaining 30 minutes of her allotted time with him by assisting him in his regular education science and social studies classes. I must agree with petitioners that it was not possible to discern the nature of the recommended special education program from the IEP which was given to them.

        In view of the defects in the child's IEP, as well as the uncertainty about the specific nature of the services which were to have been provided to the child. I am constrained to find that the hearing officer erred by finding that respondent had met its burden of proof with respect to the appropriateness of the educational program which its CSE had recommended.  A board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]). I find that petitioners have prevailed with respect to the first of the three criteria for an award of tuition reimbursement.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Kildonan School during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        Petitioners contend that their son required specialized instruction because he needed to learn language arts in a different way than the traditional methods of instruction used by respondent's staff. They rely upon the written report of the independent evaluator and her testimony at the hearing. The independent evaluator found that the child was dyslexic. She indicated that the most successful approach for dyslexic learners was one which was based upon the Orton-Gillingham methodology. That methodology uses a structured, sequential approach involving visual, auditory and kinesthetic modalities to overcome the dyslexic child's inability to learn to read, write and spell at levels which are consistent with the child's cognitive ability. The independent evaluator reported that a " … complete Orton program includes alphabet skills, reading, comprehension, spelling, handwriting, and grammar, and it should be presented to him [petitioners' son] five days a week, for one hour a day" (Exhibit 6). At the hearing, the independent evaluator testified that the child would need at least 60 minutes of such instruction per day.

        I have also considered the written report and the testimony by a second independent evaluator who evaluated the child in June, 1997, after he had completed the 1996-97 school year at the Kildonan School. The second evaluator concluded that the child should continue in his academic placement, i.e., the Kildonan School, because it appeared that the combination of a multimodal approach to learning and small class instruction helped the child to work on his areas of weakness (Exhibit 72). At the hearing, he testified that the child had difficulty with auditory processing and required highly visual and tactile instruction which would be difficult to provide to him using the regular curriculum in a public school regular education program. I also note that respondent had proposed to address the child’s reading and writing deficits during the 1996-97 school year using the services of a remedial reading teacher who had been trained in the Orton-Gillingham methodology at the Kildonan School. While the Orton-Gillingham methodology may not have been the only effective way to teach the child to read, write and spell at higher levels than he had previously achieved, it does appear from the record that petitioners’ son required specialized instruction in reading and language during the 1996-97 school year to meet his special education needs.

        The Academic Dean of the Kildonan School testified that the Orton-Gillingham methodology was used throughout the school’s curriculum, and that each student received an individual "tutorial" on a daily basis which focused upon developing the child’s language skills. She also described the child’s standardized test results during 1996-97, as reflected by Exhibit 75. On the WRAT-3, the child’s word identification skills improved by one grade level and 15 percentiles between October, 1996 and May, 1997. On the WCJ, his word attack skills improved from a grade equivalent (percentile) of 2.0 (16th) to 2.8 (29th) between January and May, 1997. On the Gates-McGinitie Reading Test, the child showed a slight decrease in his reading vocabulary and a three-month gain in his reading comprehension between January and May, 19997. There was no gain in his spelling skills between October, 1996 and May, 1997, as measured by the WRAT-3. The child was retested in June, 1997 by the independent evaluator who had tested him in June, 1996. The evaluator reported that the child’s word identification skills had improved by eight months, his word attack skills by one year and three months, and his passage comprehension skills by eight months (Exhibit 31). I find that petitioners have established that the Kildonan School addressed their son’s special education needs in the area of reading. Other documentary evidence in the record suggests that there was also some improvement in the child’s writing skills while attending Kildonan.

        Petitioners must also show that their son’s placement in a private school which serves children with disabilities and thus provides no opportunity for instruction with this child’s peers is consistent with the requirement that children with disabilities be placed in the least restrictive environment (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub. nom., Lord v. Bd. Of Ed. Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). However, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. Of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). This child is bright and has been able to use his good cognitive skills to achieve at a satisfactory rate of progress, generally above his grade level, in mathematics, social studies and science, despite his impaired language related skills. However, he has had emotional and behavioral difficulties which have reportedly arisen from his disability. I note that his progress reports from the Kildonan School indicated that he continued to manifest some of the kinds of behaviors while there as he had while in respondent’s school. Although there is some evidence of his distractibility in the record, I am not persuaded by the record which is before me that the child had significant management needs which required that he be instructed in small classes in a private school for children with disabilities. The record demonstrates, in my judgement, that the child did not require specialized instruction in every subject throughout the school day. Therefore, I must find that petitioners have failed to meet their burden of proof with respect to the second criterion for award of tuition reimbursement.

 

        I have considered petitioners’ other arguments, which I find to be without merit.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the decision of the hearing officer is annulled to the extent that it found that respondent had met its burden of proof with respect to the appropriateness of the educational program which it had offered to provide during the 1996-97 school year.

 

Dated: Albany, New York __________________________
January 14, 1999 FRANK MUŅOZ