The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her 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
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioners appeal from an impartial hearing officerís decision denying their request for tuition reimbursement for a portion of the 2000-01 school year during which their daughter attended the Kildonan School (Kildonan). Respondent cross-appeals from the hearing officerís award of tuition reimbursement to petitioners for the 1999-2000 school year. The appeal must be sustained. The cross-appeal must be dismissed.
Petitionersí daughter had just turned 18 years old and was in her senior year at Kildonan when the hearing began on November 20, 2000. A more detailed account of her educational history is set forth in a prior decision, Application of the Board of Education of Pine Plains Central School District, Appeal No. 00-072, in which I sustained a hearing officerís award of tuition reimbursement to petitioners for the second half of the 1998-99 school year, when the student first attended Kildonan. The student remained in Kildonan for the 1999-2000 school year, and began the 2000-01 school year in that school. In December 2000, the student left Kildonan, and was not in school during the remainder of the school year. Kildonan has not been approved by the New York State Education Department to provide education to children with disabilities.
Respondentís Committee on Special Education (CSE) first classified the student as learning disabled after she repeated kindergarten in 1989. She had been diagnosed as having a mild developmental language disorder, as well as an attention deficit disorder (ADD) of moderate severity. In 1997, the student achieved a verbal IQ score of 83, a performance IQ score of 96, and a full scale IQ score of 88. A school psychologist opined that the studentís verbal comprehension and language related skills were deficient, which hampered development of her reading and writing skills (Exhibit SD-27). There is no dispute about the studentís classification as learning disabled.
While in elementary school, petitionersí daughter initially received special education instruction in reading and math. She was reportedly mainstreamed for seventh grade, while receiving consultant teacher and resource room services. Near the end of her seventh grade year, she began home instruction due to behavioral concerns (Exhibit SD- 27). In the eighth grade, the student was reportedly placed in inclusion classes, and received remedial reading and writing instruction. For ninth grade during the 1997-98 school year, petitionersí daughter was placed in a "modified class," which was a self-contained special education classroom for all of the academic subjects. She continued to receive counseling from social workers and the school psychologist.
Respondentís CSE recommended a similar educational program for the student during the 1998-99 school year. In December 1998, the CSE recommended that the student receive multisensory reading instruction, and that counseling no longer be provided to her. The studentís parents removed her from respondentís high school and placed her at Kildonan in January 1999, after having requested an impartial hearing related to the 1998-99 individualized education program (IEP).
In March 1999, an independent psychoeducational evaluation indicated that the studentís reading skills were three to four years below grade level and her spelling skills were equal to those of a third grader (Exhibit P-58). Her writing was also significantly below grade expectation. For example, she could not properly write the date, her complete address, or the name of her school. The evaluator reported that the student had deficits in auditory processing, abstract and inferential reasoning, and visual memory, with particular weaknesses in written expression, decoding, and encoding. The independent evaluator recommended intensive practice in encoding and decoding, and suggested that the student produce her written work on a computer with spell check and grammar check.
On June 2, 1999, respondentís CSE met to develop the studentís IEP for the 1999-2000 school year. Based on the independent psychoeducational evaluation and test scores and progress reports from Kildonan received the day before the meeting, the CSE recommended that the student be placed in a 15:1 special education "modified" class for instruction in all academic subjects, and that she receive regular education remedial reading and writing instruction (Exhibit SD-6). The IEP that the CSE prepared for her indicated that the student would be given daily homework assignment sheets, unit summaries, and test study guides for all courses, and that written information would be orally summarized for her.
In July 1999, the school psychologist conducted a triennial evaluation, which set forth the studentís educational and social history, and described her learning disabilities and attention deficits. The psychologist concluded that the student was unable to acquire new information at the same rate as her non-disabled peers or at the rate indicated by her intellectual abilities (Exhibit SD-27). The psychologist recommended that she be offered remedial writing and a modified instructional program. The CSE did not reconvene to discuss or implement any changes to the 1999-2000 IEP based on the triennial evaluation.
By letter dated August 25, 1999, the studentís mother advised the CSE that she objected to her daughterís 1999-2000 IEP. She indicated that petitioners would send their daughter back to Kildonan and requested tuition reimbursement, but did not specifically request an impartial hearing (Exhibit P-28). A new hearing was not initiated at that time. The parties were still awaiting a decision in the hearing on the 1998-99 school year, which had concluded in August 1999. However, the hearing officerís decision was not rendered until August 28, 2000, for the reasons indicated in my prior decision.
The CSE met on June 5, 2000 to develop an IEP for the 2000-01 school year. On the studentís IEP, the CSE indicated that the IEP had been developed without test results or updated transcripts from Kildonan. However, the CSE did receive a written report from the studentís language tutor at Kildonan, the contents of which were included on the IEP (Exhibit SD-7). The CSE recommended that the student be placed in a 15:1 special education modified class for instruction in all academic subjects, and also attend a regular education remedial reading class.
On August 27, 2000, the studentís mother wrote to the CSE objecting to the 2000-01 IEP. She requested an impartial hearing, and noted her concerns about both the 1999-2000 and 2000-01 educational programs that the CSE had recommended for the student (Exhibit P-4). The next day, August 28, 2000, a decision was rendered in the original hearing, awarding tuition reimbursement to petitioners for the portion of the 1998-99 school year that their daughter attended Kildonan, (Exhibit SD-46). On November 6, 2000, the Board of Educationís appeal from that decision was sustained in part, but the hearing officerís order of tuition reimbursement was upheld (Application of the Board of Educ., Appeal No. 00-072).
On November 20, 2000, the first hearing day in this matter, petitioners asked the hearing officer to issue an interim decision finding that Kildonan had become their daughterís pendency placement. Some time before the end of term exams in December 2000, petitionersí daughter left Kildonan. Her mother testified at the hearing in this proceeding that her child had left Kildonan because petitioners could not afford to pay the tuition at the school (Transcript p. 136). In January 2001, the impartial hearing officer ruled that Kildonan was not the studentís pendency placement. His decision was annulled in Application of a Child with a Disability, Appeal No. 01-013, which was decided on March 9, 2001. Respondentís challenge to that determination was rejected by the U.S. District Court for the Southern District of New York on October 19, 2001.
The hearing in this proceeding resumed on July 23, 2001, and continued on August 8, 2001 and August 10, 2001. At the commencement of the hearing, respondentís counsel indicated that he would not attempt to defend the appropriateness of the IEPs that the CSE had prepared for the 1999-2000 and 2000-01 school years. However, he contended that petitionersí claim for tuition reimbursement for the 1999-2000 school year was barred because they had failed to submit a timely request for a hearing with regard to that school year. He further contended that petitionersí claim for tuition reimbursement for both school years should be rejected because they had not cooperated with the CSE in preparing the studentís IEPs for those years.
In her September 26, 2001 decision, the hearing officer in this matter rejected respondentís argument that petitionersí claim for tuition reimbursement for the 1999-2000 school year should be barred on equitable grounds because they did not timely request a hearing. She found that petitioners had provided timely notice of their dissatisfaction with the studentís proposed IEP for that school year and their intention to seek an award of tuition reimbursement in the motherís August 25, 1999 letter (Exhibit P-28), and that both parties were "mutually caught up in the excessive delays in a prior impartial hearing". The hearing officer next considered respondentís claim that petitioners had failed to cooperate with the CSE in producing the IEPs for the 1999-2000 school year. She found that the childís mother had provided what was expected of her in order to develop the 1999-2000 IEP.
The hearing officer found that Kildonanís program in the 1999-2000 school year met the studentís needs, as evidenced by teachersí reports that she worked hard and passed her courses. She further found that the equities favored the parents in that year. She pointed out that, despite their failure to adhere to the districtís timeline for sending test results from Kildonan, they cooperated in having the student independently evaluated in March 1999 and undergoing the triennial evaluation in July 1999. The hearing officer concluded that petitioners were entitled to an award of tuition reimbursement for the 1999-2000 school year.
The hearing officer found that the Kildonanís program did not meet the studentís educational needs during the 2000-01 school year, as evidenced by her lack of motivation and absenteeism during the part of the year she attended school. She further ruled that equitable considerations did not favor the parents in that year, because they withheld information from the CSE regarding their daughterís performance at Kildonan during the 1999-2000 school year. She therefore denied petitionersí request for tuition reimbursement for the 2000-01 school year. The hearing officer ordered the CSE to prepare an IEP for the 2001-02 school year in order to permit the student to graduate from respondentís high school.
Petitioners assert that the hearing officer incorrectly ruled that Kildonanís educational program was not adequate in the 2000-01 school year because of their daughterís alleged lack of progress at the school during the fall of 2000. They contend that Kildonanís program was reasonably calculated to meet her needs. They also maintain that they cooperated with the CSE as best they could, in light of Kildonanís policy of withholding educational records for nonpayment of tuition.
Respondent admits that it did not offer an appropriate educational program in either the 1999-2000 or the 2000-01 school year, because the IEPís goals and objectives did not meet the legal standards for defining an appropriate IEP (Transcript pp. 64-65; 69). However, respondent attributes its failure to develop appropriate IEP goals and objectives to the parentsí lack of cooperation in forwarding test results, evaluations, and progress reports from Kildonan. In addition, respondent reiterates its argument that petitionersí tuition claim for the 1999-2000 school year should be barred on equitable grounds, because they failed to request an impartial hearing for that year in a timely manner. Further, respondent maintains that Kildonanís educational program was not reasonably calculated to result in an educational benefit in either the 1999-2000 or 2000-01 school year.
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 School Comm. v. Dep't of Educ., 471 U.S. 359 ). Respondent has conceded that it cannot meet is burden of proving the educational services it offered in 1999-2000 or 2000-01 were appropriate. Accordingly, petitioners have prevailed with respect to the first of the three criteria for an award of tuition reimbursement for both school years.
Petitioners must demonstrate the appropriateness of the educational program at Kildonan (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent must show the private school offered an educational program that met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ; Application of a Child with a Disability, Appeal No. 94-29). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ). 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 academic dean of Kildonan testified that Kildonan serves exclusively students who exhibit reading and writing disabilities (Transcript p. 237; Exhibit P-63). Average class size is approximately ten students, and the students are instructed using the Orton-Gillingham method, which is a systematic, sequential, and multisensory approach to language skills. During the 1999-2000 school year, petitionersí daughter was placed in 11th grade classes taught by teachers trained in the Orton-Gillingham approach. In addition, she received a one-to-one reading tutorial from the former academic dean (Transcript p. 240). I find that Kildonanís program was consistent with the recommendations made by respondentís school psychologist and the independent evaluator, because it included small group instruction, use of the Orton-Gillingham method for practice with encoding and decoding, a keyboarding course to help with written expression, a remedial writing class, and a modified instructional program.
Moreover, the academic dean testified that the student progressed well during the 1999-2000 school year, and had an overall positive experience. Although her academic performance was inconsistent and her test results sporadic, the teacher narratives show she made good progress (Transcript pp. 241-42; 265-66). She passed all her classes with Bs and Cs, showed good effort, and her tutor felt that the student was learning a lot (Transcript p. 241). A June 7, 2000 progress report from Kildonanís activities director states that petitionersí daughter "interacted well with fellow students and faculty members" (Exhibit P-64). When questioned about whether Kildonan was the least restrictive environment (LRE) for the student, the dean testified that because of her difficulties with self-esteem, it helped her to be in the Kildonan milieu, rather than in public school with her non-disabled peers (Transcript p. 282). I find that Kildonan offered a supportive environment that enabled the student to thrive socially and achieve a degree of academic success. As such, its program was reasonably calculated to provide an educational benefit to the student in 1999-2000.
I also find, as did the hearing officer, that petitioners cooperated with the CSE as best they could in developing their daughterís 1999-2000 IEP. Respondentís CSE chairperson wrote to petitioners in January 1999 and April 1999 to request that their daughter participate in an administration of the Stanford Achievement Test (Stanford) in the spring (Exhibits SD-17, P-55). On April 27, 1999, the academic dean of Kildonan faxed to the district a list of standardized tests, including part of the Stanford, that would be administered on May 3 and 4, 1999 (Exhibit SD-18). The CSE chairperson wrote to the mother on May 21st to remind her that the CSE needed the test results by May 26th (Transcript p. 105; Exhibit SD-20). The studentís mother testified that she assumed the CSE would have any documents she had, because her contract with Kildonan provided that any reports were to be sent to her and to the public school (Transcript p. 197).
The CSE finally received the majority of the test results from Kildonan at 3:00 p.m. the day before its June 5th meeting (Transcript p. 328). That information included current standardized test scores for the student, except for math, which could have been used by the CSE to prepare the studentís IEP goals and objectives (Exhibit SD-22). At the meeting, the CSE reviewed the March 1999 psychoeducational evaluation, and decided to offer the student a remedial writing class (Transcript p. 329). As noted above, the studentís triennial psychological evaluation was performed in July 1999. The CSE apparently did not reconvene to review the results of the July 1999 triennial evaluation, or the results of the studentís performance on the math portion of the Stanford that it received in July 1999 (Transcript p.107; Exhibit SD-27). Although it is unfortunate that there was not better coordination between the parties, I agree with the hearing officerís conclusion that petitioners did not interfere with the work of the CSE in preparing their daughterís IEP for the 1999-2000 school year.
Respondent also asserts that equitable considerations weigh against the parentís claim for tuition reimbursement for 1999-2000 because the parents waited a year before requesting an impartial hearing for that year. While petitioners did not specifically request an impartial hearing in their August 25, 1999 letter, they indicated that they objected to the IEP, and that they were placing their daughter in Kildonan and requesting tuition reimbursement. I agree with the hearing officer that respondent had adequate notice of the parentsí dissatisfaction with the proposed IEP, as well as their plans to enroll the child in a private school and request tuition reimbursement.
The Individuals with Disabilities in Education Act, or IDEA, provides that parents must inform the school at the last IEP meeting that they are rejecting the proposed placement, or state their concerns, and their intent to enroll the child at a private school (20 U.S.C. 1412[a][C][iii]). Both federal and state regulations require that the parent include specific information in requesting due process, but provide that the school district may not deny the parentís right to a due process hearing for failure to provide the specific information (34 CFR 300.507[c]&; 8 NYCRR ß 200.5[i][f]). I will not penalize petitioners for their failure to explicitly request an impartial hearing, when they were clearly seeking an award of tuition reimbursement under the due process provisions of federal and state law. Tuition reimbursement claims must first be determined by an impartial hearing officer under the due process provisions.
With respect to the 2000-01 school year, I also find that Kildonanís program was appropriate to meet the studentís needs. The academic dean testified that the student was responding well to the curriculum in her twelfth grade classes (Transcript p. 242). He explained that the studentís inconsistent test scores did not provide a true picture of her progress. While the student had some trouble handing in assignments and paying attention at the beginning of the year, her teachers noted that there was improvement in her work and her attitude as the year progressed (Transcript pp. 242-43).
A progress report dated October 13, 2000 indicates that the student was displaying tremendous effort in history and had completed all of her assignments on time in literature and science. She was receiving Bs and Cs in all academic subjects at that time (Exhibit SD-43). In a report dated November 24, 2000, the studentís language tutor indicated that she had responded well to tutoring. She was receiving satisfactory grades in literature, government and economics, and psychology classes. Although the psychology teacher noted that on occasion the student would fall asleep in class, she persisted with her work (Exhibit P-51). In an interim progress report dated January 17, 2001, the studentís literature teacher indicated that she had submitting excellent work before leaving school at winter break (Exhibit P-52). Her tutor for language training reported that the student became more focused as that year went on, and that they worked on preparing for the SATs and making college applications (Transcript p. 267; Exhibit P-51).
The hearing officer noted in her decision that both parties relied upon the same test scores to bolster their respective arguments about the appropriateness of Kildonanís educational program to address this studentís needs. The studentís performance on standardized tests was unquestionably variable, which may in part be a reflection of the nature of her disability. In any event, I cannot conclude from the test data that the schoolís educational program was not meeting the studentís needs. The hearing officer appears to have read into the teachersí comments about the student during the 2000-01 school year more than the teachers actually said. She also expressed concern about the teachersí lack of state certification, although it is not required of private school teachers in tuition reimbursement cases.
I have considered respondentís argument that placement at Kildonan is inconsistent with the requirement that students with disabilities be placed in the LRE. Although the restrictiveness of a parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]), the LRE requirement must be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). Both parties appear to agree that the student required primary special education instruction in a small group for her academic subjects. While Kildonan did not offer her the opportunity for mainstreaming in other subjects, I find that her placement there was consistent with the LRE requirement.
I will not find Kildonanís educational program to be inadequate simply because the student failed to complete the school year. While the record left some doubt about the reason for the studentís departure, there was testimony to suggest that she left because her parents could no longer afford the tuition (Transcript p. 206). The academic dean verified that the tuition balance in November 2000, the month before the student left, was $17,000 (Transcript p. 309). He also verified Kildonanís policy not to invite students back for another term if the tuition balance is not up to date, but admitted he did not know the circumstances behind this studentís departure from school (Transcript pp. 309, 289). The parentsí attorney stated that they did not receive a check from respondent for the 1998-99 school year until March 2001, after the student had already left Kildonan (Transcript p. 87). In view of all of the foregoing, I must disagree with the hearing officer, and find that petitioners have met their burden of proof with respect to the appropriateness of Kildonanís educational program for their daughter during the 2000-01 school year.
The last issue to be decided is whether, as respondent suggests, the parentsí lack of cooperation thwarted the CSEís efforts to develop the 2000-01 IEP. The CSE chairperson testified that he acquiesced once again to rely upon Kildonanís standardized testing, but would have preferred that the CSE test the student in February or March (Transcript p. 338). The chairperson sent the parents a letter on March 7, 2000, noting that private school test results had to be received at least three days prior to the CSE meeting scheduled for June 5th (Exhibit SD-32). Unfortunately, the CSE did not receive any records in time for the June 5th meeting (Transcript pp. 338-39).
The studentís mother testified that she asked the CSE chairperson on the morning of June 5, 2000 to reschedule the meeting because she had not received the test results or the progress reports, but he refused (Transcript pp. 184, 120, 122). The chairperson testified that the CSE had "nothing to work from," and, as a result, the system of developing an IEP was "dramatically impaired" (Transcript p. 351). On June 23, 2000, he sent the mother a letter reminding her that she had not sent the Stanford scores, transcripts, or Regents Competency Test (RCT) scores, as agreed upon at the June 5, 2000 meeting, and noting that it had been virtually impossible to develop goals and objectives for the IEP without the information (Exhibit SD-33). A July 8, 2000 response from the studentís mother indicates that Kildonan would not release the information because of the outstanding tuition balance, caused by the delay in due process (Exhibit P-34). Kildonanís academic dean verified that under Kildonanís policy, records are not released if the tuition balance is not up to date (Transcript p. 269). The studentís tuition for the 1999-2000 school year was not paid until September 2000. Nevertheless, there is evidence that petitioners received some 1999-2000 school year reports from Kildonan prior to September (SD-44). However, the record does not reveal the date when they received that information, except for the studentís RCT scores. While I do not condone petitionersí failure to provide that information to the CSE in time for its June 5, 2000 annual review, I find that it does not afford a basis for concluding that their claim for tuition reimbursement should be denied.
The district sent letters to the parents on July 13 and July 27, 2000, asking permission to administer tests to the student (Exhibit SD-35, 36). The motherís August 3, 2000 response indicates that she did not receive those two letters, because she was out of town at that time (Exhibit P-37; Transcript pp. 124-25). While it appears the parents were not cooperating as well with the CSE in that year, I note they were under a financial disadvantage due to delays in receiving the results of the first due process hearing and receiving a check for tuition from respondent. I therefore conclude that equitable considerations do not prevent me from awarding tuition reimbursement to petitioners.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the hearing officerís decision is hereby annulled to the extent that it denied petitioners tuition reimbursement for any portion of the 2000-01 school year; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for their daughterís tuition at Kildonan during the portion of the 2000-01 school year that she attended such school, upon petitionersí submission to respondent of proof of payment of such tuition.
Albany, New York
January 11, 2002