The State Education Department
State Review Officer

No. 01-085




Application of the BOARD OF EDUCATION OF THE WAPPINGERS 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

Raymond G. Kuntz, PC, attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel



        Petitioner, the Board of Education of the Wappingers Central School District, appeals from an impartial hearing officer's decision which found that the district had failed to offer an appropriate educational program to respondentsí son for the 2001-02 school year. The hearing officer ordered the district to reimburse the parents for the expenses they had incurred in unilaterally enrolling their son in the Maplebrook School (Maplebrook). The appeal must be dismissed.

        Respondentsí son was 16 years old when the hearing in this proceeding was held in the summer of 2001. He had just completed the ninth grade in a program operated by the Board of Cooperative Educational Services of Dutchess County (BOCES). The student has been classified as a student with a learning disability since the first grade, and there is no dispute about his classification. His cognitive skills are in the average range. He is reported to be a visual learner, with weak auditory memory skills and deficits in long term memory. The student also has deficits in critical thinking and organizational skills, and in his ability to generalize concepts and apply them to new situations. He has reportedly been diagnosed as having an attention deficit hyperactivity disorder (ADHD), and takes medication for that condition. The student also has a congenital heart defect, and has undergone a number of medical surgeries to correct the condition. He has reportedly been able to participate in regular physical education classes, with modifications (Transcript p. 84).

        During the 2000-01 school year, respondentsí son was reportedly instructed in 8:1+1 special education classes for science and mathematics and received one period of resource room services per day (Exhibit 18). In March 2001, BOCES reported that the student had achieved grade equivalents of 7.0 for reading vocabulary, 6.6 for reading comprehension, and 6.2 for mathematics (Exhibit 3 to answer). By the end of the school year, he had reportedly not earned any credit towards his Regents diploma. Petitioner provided tutoring in English and mathematics during the summer of 2001, but it was anticipated that the student would have to repeat the ninth grade (Transcript p. 66).

        Petitionerís Committee on Special Education (CSE) met with respondents at their request in April 2001, because respondents believed that their son was not making progress in the BOCES program. The CSE agreed to perform additional assessments and to reconvene on June 4, 2001. A school psychologist evaluated the student on April 26, 2001 (Exhibit 4). On June 4, 2001, the CSE discussed various placement options, and recommended that alternative day programs be explored. I note that respondents assert in their answer that their son was referred to state approved private schools, but was not accepted by any of them.

        On June 5, 2001, the parents requested an impartial hearing. The hearing began on June 27, 2001. Petitionerís attorney asserted that the proceeding was premature because the CSE had not yet recommended a specific placement for the 2001-02 school year. The hearing officer adjourned the hearing until July 18, 2001, in order to give the school district time to prepare an individualized education program (IEP) for the student. The CSE met on July 11, 2001 to consider the matter, but an IEP was not prepared. On July 18, 2002, the hearing officer again adjourned the hearing until August 2, 2001, with the direction that he would consider the school districtís recommended placement if it had one by that date, or he would accept evidence from the parents concerning an alternative placement.

        At the beginning of the hearing on August 2, 2001, the hearing officer noted that petitionerís CSE had still not recommended a specific placement for respondentsí son, but it intended to reconvene on August 8, 2001. He allowed the studentís mother to testify about her dissatisfaction with the educational programs that petitioner had provided to her son. The studentís mother further testified that she and her son had visited Maplebrook, and that representatives of the school had advised her that the school could provide a multisensory individualized instructional program for her son (Transcript pp. 92-93). The hearing officer advised the district to have the IEP prepared by the next hearing date on August 13, 2001. The districtís representative indicated that the Board of Education would have a completed IEP for the 2001-02 school year by the next hearing date (Transcript p. 106).

        On August 8, 2001, the CSE met with the studentís mother, and it recommended that the student be enrolled in a departmentalized special education program at petitionerís John Jay Senior High School for the 2001-02 school year. The CSE also recommended that the student receive individual as well as group counseling, and that he have the use of a calculator and have test questions read to him. The recommended program was to include 12:1+1 classes for Regents track English, global studies, math, earth science, and earth science laboratory, as well as a "support class" with the same pupil:teacher ratio. At the conclusion of the meeting, the studentís mother received a "cover sheet" summarizing what the CSE had recommended (Exhibit 32).

        On August 10, 2001, the parties participated in a conference call with the hearing officer, during which Maplebrookís dean of academics testified about the schoolís program. The dean testified that Maplebrook was not approved by the New York State Education Department to provide instruction to students with disabilities, but that it was a registered high school for students who were considered to be slow learners or learning disabled. The majority of students attending the school have a language based disability (Transcript p. 130). The dean indicated that multisensory, i.e., auditory, visual, kinesthetic, and tactile, instruction was provided at the school to students in classes of no more than eight, and he described the schoolís math and reading programs. He indicated that if the student enrolled at Maplebrook, annual goals would be developed for his performance in each of his classes. He also described the schoolís Responsibility Increases Self-Esteem (RISE) program that helps students improve their self-esteem. The witness indicated that individual and group counseling were included in the schoolís program, and he described the schoolís program for transitioning students at the end of school. The dean of academics opined that Maplebrook could meet the studentís needs (Transcript pp. 119, 138).

        The hearing reconvened on August 13, 2001. The hearing officer was advised that the parents had received the summary of the August 8, 2001 CSE recommendations, but that the studentís IEP had not yet been prepared (Transcript pp. 147-148). He was also informed that a district employee who was to testify about the CSEís recommendations was unavailable. The hearing was adjourned until August 16, 2001.

        On August 16, 2001, a copy of an IEP without any goals or objectives was submitted by petitioner. The hearing officer accepted the IEP into evidence, while noting that it was incomplete (Exhibit 33). The Board of Educationís attorney requested that the hearing be adjourned for two weeks because his witnesses were participating in an administrative retreat and were not available to testify about the district's proposed program. The hearing officer denied the request, noting the CSEís annual review process had been going on since April 2001 and that it had failed to produce a complete IEP. He concluded that the Board of Education could not meet its burden of demonstrating that it had offered on a timely basis to provide an appropriate educational program for the 2001-02 school year. He indicated that he would consider the appropriateness of Maplebrookís education program for respondentsí son, and afforded the parties an opportunity to submit written argument to him by August 31, 2001.

        The hearing officer rendered his decision on September 13, 2001. He found that the incomplete version of the IEP entered into evidence on August 16, 2001 did not constitute an educational program because it was not completed and there was no evidence that petitioner had acted upon the recommendation of its CSE. He noted that a board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The hearing officer found that the Board of Education had failed to meet its burden of establishing the appropriateness of the program it had offered. He further found that the parents had met their burden of showing the program to be provided by Maplebrook was designed to meet their sonís educational, emotional and transitional needs. The hearing officer ordered that the district reimburse the parents for the cost of tuition and for any additional fees or expenses that the parents would incur in sending their son to Maplebrook.

        The Board of Education contends that the studentís IEP was drafted in a timely manner and that the district offered an appropriate program tailored to meet the childís needs in the least restrictive environment. It asserts that a final copy of the studentís IEP was mailed to his parents on or about August 23, 2001, two weeks before the beginning of school on September 5, 2001. Respondents acknowledge that they received the IEP on August 27, 2001. Petitioner relies upon the decisions of the State Review Officer rejecting parental claims of untimely IEPs on the grounds that the parents had received the IEPs prior to the beginning of the school year (Application of a Child with a Disability, Appeal No. 00-046; Application of a Child with a Disability, Appeal No. 00-007).

        Pursuant to 34 C.F.R. ß 300.342(a), a student with a disability must have an IEP in effect at the beginning of the school year. The record does not reveal whether the IEP in question has been reviewed by petitioner in accordance with 8 NYCRR 200.4(e). However, I do not decide this appeal on that issue. This proceeding was initiated in early June 2001, approximately two months after the CSE had begun its review of the studentís program. The hearing officer correctly adjourned the hearing to afford petitioner the opportunity to have its CSE complete its review and prepare a new IEP in time for the new school year. Despite two adjournments at petitionerís request, petitioner was not ready to proceed on August 2, 2001. Thereafter, it failed to comply with the hearing officerís direction to have a completed IEP available when the hearing resumed on August 13, 2001. On that date, petitioner was not prepared to go forward with its case and sought another adjournment, which the hearing officer denied.

        I find that the hearing officer did not abuse his discretion in denying petitionerís request for an adjournment. There is nothing in the record to indicate that respondents were in any way responsible for petitionerís delay. While I recognize that it may be difficult to arrange for staff, particularly ten-month employees, to be available for proceedings during the summer, that does not appear to be the issue in this case. Since petitioner was not prepared to present its case, and the parents had already presented their case with respect to the private school, the hearing officer closed the record. On the limited record that was before him, the hearing officer could not find that the Board of Education had met its burden of proof with respect to the appropriateness of any program recommended by its CSE. Therefore, he correctly determined that respondents had prevailed on the first criterion for an award of tuition reimbursement.

        A student's parents bear the burden of proof with regard to the appropriateness of the services they have obtained for the student (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington, 471 U.S. at 370; 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 student (Application of a Child with a Disability, Appeal No. 94-20). The private school selected by the parents to provide special education services to their child need not be approved as a school for children with disabilities by the State Education Department (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1985]).

        Petitioner argues that Maplebrook is not an appropriate placement because its program is not tailored to meet the student's educational needs in the least restrictive environment. However, the least restrictive environment requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688 [2d Cir. 1989]). In addition, I note that the student's last placement was in the BETA program at Dutchess County BOCES where he received academic instruction in special education classes for at least part of the day, and that petitionerís CSE ultimately proposed an essentially full time special class placement for the student in its high school for the 2001-02 school year.

        The record shows that the student functions best in small group settings with adult assistance. Maplebrook offers a structured program of special education in a small setting, with a full academic curriculum and a behavior plan that is designed to increase self esteem. The students who attend Maplebrook are all within the 70 to 90 IQ range. The last full scale IQ score in the student's record was an 81. As noted above, respondentsí son has difficulty acquiring and retaining certain information, in addition to weak organizational skills. The academic dean of Maplebrook described in his testimony how the schoolís program would meet the studentís academic, organizational, and emotional needs, and he also testified that the program would be tailored to meet the studentís specific needs once he began attending classes. At the time the academic dean testified, the student had not yet entered the school. I have considered petitionerís argument that the school had failed to develop an academic program for the student, and I find it to be without merit. I further find that the evidence demonstrates that the studentís special education needs can be met at Maplebrook, and that respondents have met their burden of proof with respect to the second criterion for an award of tuition reimbursement.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parentsí claim. The record shows that the parents participated in all CSE meeting and explored the programs offered by the district. Although petitioner argues that the parentsí claim for reimbursement is not supported by the equities, it has not alleged any specific facts to support that argument. I find that the parents have satisfied the third criterion for an award of tuition reimbursement.





Albany, New York


July 16, 2002