The State Education Department
State Review Officer

No. 00-072

 

 

 

 

Application of the BOARD OF EDUCATION OF THE PINE PLAINS CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Shaw and Perelson, L.L.P., attorneys for petitioner, Lisa S. Rusk, Esq., of counsel

Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel

 

DECISION

        Petitioner, the Board of Education of the Pine Plains Central School District, appeals from an impartial hearing officer's decision finding that petitioner's committee on special education (CSE) had made procedural and substantive errors in preparing an individualized education program (IEP) for respondents' daughter for the 1998-99 school year. The hearing officer ordered the Board of Education to reimburse the girl's parents for their expenditures for tuition at the Kildonan School, in which they had unilaterally enrolled the child in January, 1999. The appeal must be sustained in part.

        Respondents not only ask that the hearing officer's decision be affirmed, but that I expand the relief granted by the hearing officer to include an award of tuition reimbursement for the 1999-2000 school year. The resolution of their claim for tuition reimbursement for the 1998-99 school year was extensively delayed because the hearing officer who was initially appointed to decide the matter failed to complete her duties, requiring the appointment of a second hearing officer to review the record and render a decision. While that is highly regrettable, I find that it does not afford a basis for extending my jurisdiction to determining respondents' claim for tuition reimbursement for the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 98-14).

        Respondents' daughter is 18 years old. During the 1998-99 school year, she was in the tenth grade at petitioner’s Stissing Mountain Junior/Senior High School, until respondents unilaterally enrolled her in the Kildonan School in January, 1999. The child reportedly had academic and behavioral problems in kindergarten, and remained in kindergarten for an additional year. A school psychologist who had evaluated her in June, 1989 reported that the child was of average intelligence, and had attained at least average scores on standardized achievement tests. Nevertheless, he reported that the girl had difficulty with memory sequencing and retaining facts on a short-term basis. She also exhibited a short attention span, and had difficulty with her social relationships (Exhibit 10). In August, 1989, the child was evaluated by a neurologist, who opined that she appeared to have a mild developmental language disorder with expressive speech, in conjunction with an attention deficit disorder (ADD) of moderate severity (Exhibit 14).

        The child was classified as learning disabled by the CSE after she completed kindergarten for the second time. She has retained that classification, which is not at issue in this proceeding. The child reportedly received special education instruction in reading and math while in the first, second, and third grades. In April, 1993, when she was in the fourth grade, she achieved grade equivalent (and percentile) scores of 2.4 for reading, 3.9 (22) for math, 2.2 (5) for writing, and 4.7 (54) for knowledge on the Woodcock Johnson Achievement Test (Exhibit 9). That month, a school psychologist reported that the girl had achieved a verbal IQ score of 90, a performance IQ score of 107, and a full-scale IQ score of 97. He also noted that the child was taking Ritalin to overcome her attention difficulties.

        The child reportedly continued to receive resource room and consultant teacher assistance while in the fifth grade during the 1993-94 school year. She apparently attended petitioner’s summer school program at the end of that year. The record does not clearly reveal the nature of the child’s educational program for the sixth grade during the 1994-95 school year. She was reportedly placed in a self-contained special education class (Exhibit 12), and she allegedly attended summer school (Transcript, page 491). In the Spring of that school year, she achieved grade equivalent (and percentile) scores of 4.5 (17) for reading, 3.1 (16) for language, and 5.5 (29) for math on the California Achievement Test (Exhibit 30). I note that she scored slightly below the statewide reference point on the Regents Pupil Evaluation Program sixth grade reading test, and well above that point on the sixth grade math test.

        Respondents’ daughter was allegedly mainstreamed for all seventh grade subjects, but received consultant teacher and resource room services, during the 1995-96 school year. She also received regular education remedial reading and writing instruction on alternating days (Transcript, p. 369). A school psychologist who evaluated her in February, 1996 reported that some of the child’s teachers had indicated that the girl looked upon school as a social event, and had difficulty focusing upon academics. The psychologist recommended that the child continue to receive counseling to encourage productive school experiences (Exhibit 8).

        The girl was reportedly placed in "inclusion" classes for instruction in eighth grade English, math, social studies and science during the 1996-97 school year. She was also enrolled in mainstream remedial reading and writing courses during that school year. She reportedly received 30 minutes of individual counseling per week during the school year. In April, 1997, she attained grade equivalent scores of 5.8 for total reading and for total math, and 4.7 for total language on the California Achievement Test (Exhibit 7).

        In May, 1997, she was evaluated by a private psychologist at her parents’ request. The private psychologist noted that the child was taking Cylert and Depakote at the time of the evaluation. She reported that the child had achieved a verbal IQ score of 83, a performance IQ score of 96, and a full scale IQ score of 88, but opined that those scores did not reflect the child’s true ability. The psychologist believed that the girl’s response to test questions was hampered by difficulties in paying attention and processing auditory information. She asserted that the child had a marked deficit in auditory processing, and a weakness in verbal abstract reasoning. The child also manifested weakness in her visual motor integration skills. On the Wechsler Individual Achievement Test, the girl achieved grade equivalent (and percentile) scores of 5.2 (10) for basic reading, 4.5 (12) for reading comprehension, 5.8 (19) for mathematics reasoning, 5.9 (8) for numerical operations, 4.4 (14) for listening comprehension, >12.9 (70) for oral expression, <k.0 (o.2) for written expression, and 5.0 (9) for spelling. The psychologist opined that the child’s current educational program was inadequate, and recommended a "total immersion remedial program" with small classes and individual instruction, including multimodal instruction in reading using computer technology, in a learning environment free from distractions (Exhibit 12).

        For the 1997-98 school year, the CSE recommended that respondents’ daughter be placed in a 15:1 "modified" special class for instruction in English, math, social studies, and science, but again be mainstreamed for remedial reading and writing (Exhibit 7). At the hearing, the girl’s reading and writing teacher testified that she provided "multisensory" instruction in both subjects on a daily basis. She explained that she employed the Orton-Gillingham technique to teach reading to the child, who made incredible progress during that school year (Transcript, p. 375). The CSE also recommended that the child continue to receive 30 minutes of individual counseling per week.

        In November, 1997, the girl's mother expressed concern that the private psychologist's recommendations had not been implemented (Exhibit E). At the request of the girl's mother, the CSE met on December, 1997 (Exhibit 28). The CSE reviewed the results of the girl's performance on Form B of the Woodcock Reading Mastery Tests which had been administered to her earlier that month. She reportedly achieved grade equivalent scores of 6.4 for word identification, 12.9 for word attack, 7.7 for word comprehension, and 8.1 for passage comprehension. The CSE agreed to modification of the child's schedule to include a regular education computer (keyboarding) class, and to the mother's request for an assistive technology evaluation. It also discussed her request for a program for the girl during the summer of 1998, but it did not approve that request (Transcript, p. 157). The CSE did not prepare an amended IEP for the girl.

        The CSE did refer the child to the Dutchess County BOCES for an assistive technology evaluation (Exhibit 17). The CSE chairperson testified that a BOCES evaluator observed the child in her classes, and advised the chairperson that the child did not require any assistive technology (transcript, p. 60). Consequently, the evaluator did not complete the evaluation.

        On April 6 and 7, 1998, Form A of the Woodcock Reading Mastery Tests was "informally" administered to the girl by her reading teacher. The reading teacher advised respondents that their daughter had achieved independent grade equivalent scores of 8.8 for vocabulary, 12.9 for word attack, 10.6 for word comprehension, and 8.4 for passage comprehension (Exhibit 16). When the CSE met on April 9, 1998 to prepare the girl’s IEP for the 1998-99 school year, the reading teacher recommended that the girl not receive reading instruction during that school year because she had "tested out of the program" (Exhibit 6). The CSE accepted the teacher’s recommendation, but agreed to have the child’s reading skills reassessed by an independent evaluator.

        The girl’s IEP for the 1998-99 school year provided that she would continue to receive instruction in tenth grade English, math, social studies, and science in a 15:1 modified special education class on a 10-month basis, and that she be enrolled in a mainstream remedial writing class. The IEP also provided that the girl receive 30 minutes of individual counseling per week. The child’s recommended testing modifications included extended time, flexible small group setting, revised test formats, having test directions simplified and read to her, and the use of a calculator when appropriate.

        By letter dated September 18, 1998 to the CSE chairperson, the girl’s mother questioned the accuracy of the reading scores on which the CSE had relied in preparing her daughter’s IEP, and challenged the chairperson’s refusal to allow the girl to attend the district’s summer program which the CSE had allegedly authorized. She indicated that she would be seeking a private school placement for her child, and asked that her letter be accepted as a request for an impartial hearing (Exhibit 3). I note that at the hearing, the CSE chairperson testified that the CSE had not recommended a 12-month educational program for the child, but that her parents were erroneously given a notice which implied that the girl had been recommended for such a program (Exhibits 17 and 20). In any event, the hearing officer indicated on the record that the parties agreed that the child did not meet the criteria for a 12-month program set forth in the Regulations of the Commissioner of Education (Transcript, p. 40).

        The CSE reconvened on October 14, 1998. Neither of the child’s parents attended the meeting, nor did a regular education teacher (Exhibit 26). The CSE adhered to its previous recommendation for special education services for the child. It did remove an apparent error from the April, 1998 IEP which indicated that the girl would benefit from resource room service which the CSE had not recommended for her. At the October meeting, the CSE extensively revised the girl’s annual goals to provide more specificity about the levels of performance which she was expected to achieve. However, there were no short-term objectives to support those goals.

        As noted above, the CSE had agreed to an independent evaluation of the girl’s reading skills at its April meeting. The evaluation was performed on September 26, 1998. However, the evaluator did not complete her report until December 8, 1998 (Exhibit 36). She noted that Forms A and B of the Woodcock Reading Mastery Tests used by the school district were out of date. The evaluator used Form H of the Woodcock to test the girl. She reported that the child had achieved grade equivalent (and percentile) scores of 5.2 (15) for word identification, 4.4 (17) for word attack, 7.5 (28) for word comprehension, and 7.4 (30) for passage comprehension. Although acknowledging that she had not performed a complete evaluation, the independent evaluator nevertheless opined that the girl had dyslexia, and required the assistance of a "certified academic language therapist."

        The CSE chairperson testified that upon receipt of the independent evaluator’s report, he arranged for the girl to resume receiving multisensory reading instruction from her reading teacher during the preceding school year. On December 22, 1998, the CSE reviewed the girl’s IEP, as well as profiles of the classes in which the girl received her academic instruction (Exhibit 38). It approved the restoration of the girl’s reading program, and revised the IEP to remove counseling as a related service. The child’s mother, who participated in the meeting by telephone, asked the CSE if it would recommend that the school district pay for her child’s tuition at a private school. She was advised that it would not make that recommendation. She removed her child from petitioner’s schools, and placed her at the Kildonan School.

        The Board of Education appointed a hearing officer on October 7, 1998 (Exhibit 1). The hearing began on November 10, 1998. It continued on December 17, 1998, and January 19, 1999. On the latter date, petitioner asked the hearing officer to order that the girl’s reading skills be independently evaluated. The independent evaluation was performed on March 22, 1999. The evaluator reported that the child achieved grade equivalent scores of 5.3 for word identification, 4.6 for word attack, and 6.4 for passage comprehension on Form G of the Woodcock Reading Mastery Test. On the Gray Oral Reading Test, the girl achieved grade equivalent scores of 6 for oral reading, and 7 for comprehension. The girl’s writing skills were also assessed. On the Oral and Written Language Scales, she achieved a grade equivalent of 6.0. The independent evaluator recommended that the girl be further evaluated to ascertain if she had a central auditory processing deficit. She suggested that a technique aimed at developing the girl’s "language imaging" be used to improve her reading comprehension (Exhibit 34).

        The hearing resumed on April 21, 1999, and continued on June 21, 1999, August 4, 1999, and August 5, 1999. It concluded on August 9, 1999. The hearing officer indicated that she would render her decision within two weeks after receiving the parties’ memoranda of law. However, she failed to do so. In May, 2000, petitioner commenced an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law for an order compelling the hearing officer to render a decision.

        On June 12, 2000, the Commissioner ordered the hearing officer to render a decision within 10 days (Appeal of the Board of Education of the Pine Plains Central School District , 39 Ed. Dept. Rep. __ , Decision No. 14385). The hearing officer did not comply with the Commissioner’s order, and subsequently had her certification as a hearing officer annulled. The child’s parents had filed an action in the United States District Court for the Southern District of New York. Pursuant to an order of that court, petitioner appointed a second hearing officer to replace the first hearing officer. The new hearing officer received the almost 1000-page transcript, exhibits, and legal memoranda on August 8, 2000. He rendered his decision on August 28, 2000.

        The hearing officer found that the CSE chairperson had provided misleading information to respondents about their due process rights in response to their request for a hearing (Exhibit 21). He further found that the CSE should not have held a meeting in October, 1998 to review respondents’ complaints, and that the CSE was invalidly composed at its October 14, 1998 meeting because it did not include a regular education teacher. The hearing officer also found that petitioner had violated respondents’ rights by reinstituting the girl’s remedial reading instruction in early December, 1998 prior to the CSE meeting on December 22, 1998. In any event, he found that the IEP prepared at that meeting was invalid because there was no regular education teacher on the CSE.

        The hearing officer also found that the girl’s IEP for the 1998-99 school year was inappropriate, and had not been fully implemented with respect to the related service of counseling. He found that the IEP lacked a long-term outcome statement with regard to transition services, and that the CSE had failed to develop measurable annual goals and short-term objectives so that the child’s progress could be ascertained during the 1998-99 school years. The hearing officer also found that the IEP lacked an adequate statement of how the girl would participate in regular education classes. He further found that the CSE had failed to address the girl’s behavioral needs, and that it should have performed a functional behavioral assessment. He noted that an assistive technology evaluation had not been completed, notwithstanding the CSE’s recommendation for an evaluation. The hearing officer also opined that the role of the parent as an equal participant in the decision-making process regarding the child’s education had not been accepted by the school district.

        The hearing officer concluded that the Board of Education had not demonstrated that the educational program which it provided to respondents’ daughter during the 1998-99 school year was appropriate, and that the girl’s placement in the Kildonan School appeared to be appropriate for her. He found that respondents’ claim for an award of tuition reimbursement was supported by equitable considerations, and he directed petitioner to reimburse them for the cost of the girl’s placement at Kildonan from January through June, 1999. The hearing officer also ordered the CSE to revise the girl’s IEP in accordance with Federal and State mandates.

        The Board of Education challenges a number of the hearing officer's findings, as well as his conclusion that respondents were entitled to an award of tuition reimbursement. I will first consider petitioner's arguments with respect to the hearing officer's findings that it had violated respondents' due process rights. Initially, I must point out that this proceeding concerns the girl's educational program during the 1998-99 school year. Although evidence about her educational program during the preceding school years was adduced to establish a frame of reference for the hearing officer's determination, there was no issue before him with respect to those school years. The child's mother acknowledged at the hearing that she had not asked for an impartial hearing during those school years (Transcript, p. 532). In his decision, the hearing officer indicated that the child had been placed on homebound instruction for three months "without documentation," and he went on to find that the district had violated the Individuals with Disabilities Education Act (IDEA) by failing to ascertain if the child's misconduct was a manifestation of her disability. The record reveals that the child was placed on home instruction during the spring of 1996, when she was in the seventh grade, for reasons which the record does not reveal (Transcript, pp.534-536). I find that the hearing officer's finding with regard to that matter should be annulled because it lacks adequate support in the record, and it relates to a matter which was beyond his jurisdiction.

        The hearing officer also found that a functional behavioral assessment would have been a meaningful tool to improve the services provided to this child, and that the CSE had failed to obtain such an assessment. The term "functional behavioral assessment" has a specific meaning under the IDEA, as an assessment which must be performed prior to placing a child in an alternative educational setting for disciplinary reasons (20 USC 1415 [k][1]). I fail to see the relevance of that requirement to the facts of this case, and I will annul that part of the hearing officer’s decision.

        Petitioner challenges the hearing officer’s finding that the CSE chairperson provided false and misleading information to the child’s mother in his letter of September 23, 1998 (Exhibit 21) responding to her request for an impartial hearing. Although the hearing officer did not identify a specific statement by the chairperson, he was apparently referring to the chairperson’s statement that respondents could not obtain an award of tuition reimbursement because they had failed to object to their child’s IEP within 10 days after receipt of a copy of the IEP, as allegedly required by Federal regulation. Petitioner acknowledges that the chairperson erred, but it asserts that a correct statement of respondents' rights was subsequently sent to them by letter dated October 5, 1998. Respondents concede that they received subsequent notice of their due process rights, but they assert that the later versions of the due process notices they received did not adequately correct the misinformation they received from the chairperson. I am unable to resolve that claim on the record before me, but I find that there is no basis to annul the hearing officer's determination with regard to the chairperson's September 23 letter.

        The Board of Education argues that the hearing officer erred by finding that the CSE should not have attempted to schedule and hold a meeting with the child's parents after they had requested an impartial hearing. The hearing officer found that it was illegal for the CSE to attempt to review respondent's complaints, but did not explain his reason for that conclusion. I agree with petitioner that a school district is not precluded from holding a CSE meeting simply because a child's parents have requested a hearing. I must note that the CSE meeting may not be employed to delay the impartial hearing, and that the required members must attend the CSE meeting. Although there is no evidence that the CSE meeting was scheduled to delay the hearing, I agree with the hearing officer's finding that the October 14, 1998 CSE meeting was invalid because there was no regular education teacher at the meeting.

        Pursuant to the IDEA, as amended effective July 1, 1998, at least one of a child's regular education teachers must participate in a CSE meeting at which the child's IEP is prepared, if the child is or may be participating in a regular education program (20 USC 1414 [d][1][B][ii]). This child's IEP for the 1998-99 school year was initially prepared in April, 1998, but the CSE extensively amended the IEP goals at its October 14, 1998 meeting. I find that the amended IDEA requirement of a regular education teacher member of the CSE applied to the October 14, 1998 CSE meeting. Although the Board of Education asserts that the girl's remedial writing teacher attended the October 14, 1998 CSE meeting, I must note the teacher was not listed as having participated in the meeting on the October 14 IEP meeting (Exhibit 26). She testified at the hearing, but was not asked about her participation in the meeting. Under the circumstances, I have no basis for setting aside the hearing officer's finding, and I dismiss petitioner's appeal from that part of the hearing officer's decision.

        The hearing officer also found that the CSE which met on December "12", 1998 was invalidly composed because it did not include one of the girl's regular education teachers. I note that the CSE did not meet on that date. The hearing officer was apparently referring to the December 22, 1998 meeting. The record reveals that the remedial writing teacher was present at that meeting (Exhibit 38; Transcript, p. 409). Respondents contend that the remedial writing teacher was a special education teacher. However, the teacher is not certified as a special education teacher, and there is no evidence that her class was limited to children who had been classified by the CSE. I note that the class was listed on the girl's IEP as "mainstream", i.e., a regular education class. I find that the hearing officer's finding is not supported by the record, and must be annulled.

        The composition of the CSE on December 22, 1998 is especially significant in view of petitioner’s claim that the hearing officer failed to adequately consider the IEP which was prepared at that meeting (Exhibit 37). If the CSE had been invalidly composed, the IEP which it prepared would be invalid (Application of a Child with a Disability, Appeal No. 99-54). Respondents contend that the appropriateness of the educational program offered by petitioner for the 1998-99 school year must be ascertained by considering the IEP which was in effect at the beginning of the school year, i.e., the April 9, 1998 IEP (Exhibit 6). A CSE may revise a child’s IEP from time to time. The amended IEP supersedes the initial IEP (Application of a Child with a Disability, Appeal No. 96-78). As a result, a dispute about the initial IEP may be rendered moot (Robbins v. Maine School Admin. Dist. No. 56, 807 F. Supp 11 [D. Maine, 1992]). However, the relevant IEP in tuition reimbursement award cases is the IEP which the parent had at the time when the parent removed the child from the public school and unilaterally enrolled the child in a private school (Application of a Child with a Disability, Appeal No. 98-14). There is no proof in the record that petitioner had sent a copy of the December 22, 1998 IEP amendments to respondents before their child entered the Kildonan School in early January, 1999. Under the circumstances, I find that the relevant IEP is the IEP which was drafted on April 9, 1998.

        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).

        The April 9, 1998 IEP listed the results of the child's performance on the April, 1998 Woodcock Reading Mastery Test, the February, 1998 Stanford Achievement Test, the April, 1997 California Achievement Tests, an April, 1997 Test of Cognitive Ability (part of the Woodcock Johnson Achievement Test), and achievement scores from the Woodcock Johnson. It did not, however, specifically identify her cognitive ability, or reflect the fact that she had been diagnosed as having ADD. There were seven annual goals for reading and seven annual goals for writing. There were no short-term objectives for any goal. Each goal was a short general statement, e.g., "...will develop decoding skills," which did not identify the level of performance which the child was to attain during the 1998-99 school year. Annual goals are statements of what a child can be expected to accomplish within a twelve-month period in the child's special education program. They must be sufficiently specific to provide direction to the child's teachers about the CSE's expectations (Application of a Child with a Disability, Appeal No. 94-8). I find that this child's annual goals did not meet that standard. I also agree with the hearing officer's finding that the IEP was deficient because it did not include any goal for the counseling which the CSE had recommended.

        At the hearing, the CSE chairperson testified that the CSE had recommended basically the same educational program for respondents' daughter during the 1998-99 school year as the girl had during the 1997-98 school year, except for multi-sensory remedial reading. The CSE discontinued the girl's remedial reading program because she had "tested out" of the program by virtue of the score she achieved on the Woodcock Reading Mastery Tests in April, 1998 (Exhibit 16). The record shows that the particular form of the test which had been used was out of date, and that the child had been given more time to complete the test than was allowed by the test protocol. Although it is not possible to equate the child's scores on one standardized test with those which she achieved on another such test, I must note that the results of the April, 1998 Woodcock Reading Mastery Test substantially varied from those which the girl had achieved on the Wechsler Individual Achievement Test in May, 1997 (Exhibit 12). This child has had a history of reading difficulty, and as subsequent tests revealed, continues to have difficulty with reading. I find that the CSE failed to recommend appropriate special education services for the child, and I sustain the hearing officer's finding that the Board of Education failed to meet its burden of proving that it had offered an appropriate educational program to the child.

        A board of education may be required to pay for the educational services which a child's parents have obtained for her, if the services offered by the board were inadequate or inappropriate, the services obtained 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]). In view of my finding that petitioner has failed to meet its burden of proof with regard to the appropriateness of its educational program, I now turn to petitioner's appeal from the hearing officer's finding that the Kildonan School appeared to be an appropriate placement for the girl.

        Respondents bear the burden of proving the appropriateness of their daughter's unilateral placement in the Kildonan School (M.S. on behalf of S.S. v. Bd. of Ed. of the City Sch. Dist. of the City of Yonkers, _____ F. 3d _____, [2d. Cir., 2000]; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, respondents must show that the services provided by the Kildonan School were "proper under the act" [IDEA] (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, supra). The Kildonan School has not been approved by the State Education Department to provide instruction to children with disabilities. That fact is not dispositive of respondent's claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). In order to prevail, respondents need not show that the private school employed certified special education teachers, or that it had its own IEP for their child (Application of a Child with a Disability, Appeal No. 94-20).

        The Associate Head of the Kildonan School testified that there were approximately 130 students, 90 percent of whom were dyslexic, i.e., had reading difficulties, enrolled in grades 2-12 at the private school. Instruction was provided using the Orton-Gillingham technique in classes of 8 to 10 children. Orton-Gillingham is a highly structured, phonetically based technique which is used for children who have language based disabilities. Respondents' daughter was enrolled in 10th grade literature, biology and history classes, and the school's "most remedial" high school math class. She also had a daily individual tutorial with a language teacher. The Associate Head testified that respondents' daughter needed to be taught with the Orton-Gillingham, or similar, technique. She also testified that the girl had easily adjusted to the school, and had worked hard to earn good grades. The Kildonan School's progress reports (Exhibits N, O, P, and Q) supported the Associate Head's testimony. I have considered petitioner's assertion about the manner in which the girl's grades were derived at the private school (Transcript pp. 683-686), but I find that the progress reports do provide some support for respondents' position.

        Respondents also offered a "student profile" (Exhibit R), which included the girl's results on parts of the Wide Range Achievement Test-3 (WRAT-3) administered to her in October, 1998 and May, 1999. On the word identification subtest, the girl's performance improved from a grade equivalent of 6.2 to a grade equivalent of 8.5. Her performance in spelling improved from a grade equivalent of 4.5 to 4.9. As with petitioner's administration of the Woodcock Reading Mastery Tests in April, 1998, there is a question about the school's adherence to the rules for the test. The independent evaluator who tested the child in September, 1998 (Exhibit 36) also administered the word attack subtest of the Woodcock Reading Mastery Test to her in August, 1999 (Exhibit X). She testified that the girl's word attack skills had gone from a grade equivalent of 4.4 in October, 1998 to a grade equivalent of 10.0 in August, 1999. In view of the foregoing, I find that respondents have met their burden of proving that the Kildonan School provided appropriate educational services to their daughter.

        The third and final criterion for an award of tuition reimbursement is whether the parents' claim is supported by equitable considerations. In reviewing the record, I have considered respondents' apparent reluctance to meet with the CSE in the Fall of 1998, as well as the hearing officer's finding that the CSE allegedly failed to treat the girl's parents as equal participants in the educational decision making process. A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP (Application of a Child with a Disability, Appeal No. 96-31). In order to meet that standard, a CSE need not agree with every parental request. Having reviewed the same record as the hearing officer, I cannot agree with his finding (Application of a Child with a Disability, Appeal No. 98-6). I note that the child's mother did participate in December 22, 1998 CSE meeting, and I find that equitable considerations do support respondents' claim for tuition reimbursement. Therefore, I find that they are entitled to be reimbursed for their expenditures, as ordered by the hearing officer.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that certain of the hearing officer's findings are hereby annulled in accordance with the tenor of this decision.

 

 

Dated:

Albany, New York

__________________________

November 6, 2000

FRANK MUŅOZ