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 City School District of the City of Poughkeepsie
Family Advocates, Inc., attorneys for petitioners, RosaLee Charpentier, Esq., of counsel
Shaw & Perelson, LLP, attorneys for respondent, Beth L. Sims, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer denying their request for tuition reimbursement for the unilateral placement of their daughter at the Kildonan School (Kildonan) during the 2001-02 school year on the grounds that Kildonan's program was not appropriate for her. The appeal must be sustained.
At the time of the hearing on October 28, 2002, the student was 12 years old and in her fourth year at Kildonan (Transcript p. 70). A full history of the student's educational background can be found in Application of the Bd. of Educ. of the City Sch. Dist. of the City of Poughkeepsie, Appeal No. 02-101, which involved petitioners' claim for tuition reimbursement at Kildonan for the 1999-2000 and 2000-01 school years.
A meeting of respondent's Committee on Special Education (CSE) was held on August 16, 2001 to develop a program for the student's sixth grade year. The 2001-02 individualized education program (IEP) listed her scores on the Woodcock Johnson-Revised (WJ-R) achievement test, noting that she had "minimal academic deficits" (Parent Exhibits B, M). The CSE recommended regular education classes and resource room one period a day with test modifications (Parent Exhibit B). The student's parents informed the CSE at the meeting that they were going to keep their daughter at Kildonan for a third year, because they believed she continued to require a full-day of Orton-Gillingham (O-G) instruction with like peers (Parent Exhibit L). By letter dated that same day, the parents informed the district that they would be enrolling their daughter in Kildonan and requesting tuition reimbursement (Parent Exhibit A).
The record does not contain any evidence regarding the next year's CSE meeting held to develop a program for the 2002-03 school. However, the record reflects that the parents informed the district by letter dated August 26, 2002 that they would be placing their daughter at Kildonan and requesting tuition reimbursement (Exhibit IHO-1A). By a second letter dated August 26, 2002, the parents stated that they were rejecting the 2002-03 IEP and requesting an impartial hearing (Exhibit IHO 5). In the meantime, the hearing officer presiding over the first impartial hearing rendered a decision on September 23, 2002, which awarded tuition reimbursement for the 1999-2000 and 2000-01 school years at Kildonan, but declined to consider claims involving 2001-02 school year.
As a result, the parents asked the hearing officer in the instant case to consolidate the 2001-02 school year with their request regarding the 2002-03 school year. The district did not object to that request (Transcript p. 18). In addition, the district partially settled the hearing request by agreeing to pay for the student's tuition and transportation to Kildonan for the 2002-03 school year (Transcript pp. 9-13). The district conceded that its IEP for the 2001-02 school year was not appropriate because it failed to meet the procedural requirements of the Individuals with Disabilities Education Act (IDEA) (Transcript pp. 26-27, 58). This left two issues for the hearing on the 2001-02 school year: the appropriateness of Kildonan's program in 2001-02 and whether equitable considerations supported the parents' claim.
In an interim decision issued on December 7, 2002, the hearing officer determined that the pendency placement for the 2001-02 school year was the district's recommended program (Transcript p. 57). In a final decision dated April 24, 2003, the hearing officer denied tuition reimbursement. He concluded that, based on test scores and progress reports, there was insufficient evidence that the student made sufficient progress at the Kildonan School during the 2001-02 school year. Having so determined, he did not discuss whether the equities favored an award of tuition reimbursement.
A board of education may be required to pay for educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 ). In this case, the district has conceded that its program for the 2001-02 school year was not appropriate because it failed to meet the procedural requirements under the IDEA (Transcript pp. 26-27, 58).
Thus, petitioners must demonstrate that the services provided to their daughter by Kildonan during the 2001-02 school year were appropriate (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, they 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. 02-027; Application of a Child with a Disability, Appeal No. 94-29). The parent need not select a program that is approved by the state (Florence County Sch. 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. 02-027; Application of a Child with a Disability, Appeal No. 94-20). Standardized test scores may be considered in determining whether the student made progress during the academic year spent at a private school (Application of a Child with a Disability, Appeal No. 97-63).
I find that the program at Kildonan met the student's educational needs during the 2001-02 school year. The academic dean of Kildonan testified that Kildonan is a private school for students with average to above average intelligence, who have language-based disabilities, specifically dyslexia. The school was founded based on the Orton-Gillingham (O-G) approach, a multi-sensory approach to teaching students with dyslexia (Transcript p. 67). Its class size averages approximately six students per class (Transcript p. 66). Kildonan offers a language tutorial, in which a teacher meets with the student one-on-one every day for 45 minutes (Transcript p. 69).
The Dean testified that petitioners' daughter still had significant weaknesses in spelling and writing, and that she continued to benefit from her instruction. He explained that her first two years at Kildonan were devoted to learning the basics of phonics and decoding, so that by the third year she could finally read to learn (Transcript pp. 69-74). In addition, he testified that she had made a significant amount of progress at Kildonan in connection with her self-esteem. He also testified that she progressed with her writing, which had become more legible, longer, and somewhat more organized (Transcript pp. 75-76).
The student's progress reports indicate that she had improved in grammar, reading, and cursive handwriting. Her written work was longer and more detailed (Parent Exhibits G, I). While her handwriting was still somewhat illegible in October and November 2001, she had begun to write in small neat handwriting in January 2002 (Parent Exhibits F, G, H). Her language tutorial teacher reported that at the end of her sixth grade year, in June 2002, the student had a positive attitude toward learning. Her literature teacher reported that she took pride in her journal work, responded at length to questions, and that poetry became her distinguishing talent (Parent Exhibit I). The student's mother's testimony was consistent with the progress reports and the Dean's testimony regarding her daughter's progress in handwriting, reading and literature (Transcript p. 156).
In addition, the student's standardized test scores show progress during the 2001-02 school year (Parent Exhibit J). Between November 2001 and June 2002, on the Wide Range Achievement Test (WRAT-3), her standard score in word identification increased from 93 to 100. Her scores on the Gray Oral Reading Test (GORT) increased from the 16th percentile to the 25th percentile in rate and accuracy and from the ninth to the 25th percentile in passage comprehension. On the Gates-McGinitie Reading test, her scores increased from the 70th to the 76th percentile in total reading and from the 60th to the 76th percentile in vocabulary between November 2001 and May 2002. On the Stanford Diagnostic test, her total math skills increased from the 35th to the 62nd percentile (Parent Exhibit J). On the WRAT-3 spelling subtest, her standard score of 88 in May 2001 remained the same in May 2002, indicating one year's growth in one year's time (Exhibit J; Transcript p. 461). Based upon the evidence before me, I cannot agree with the hearing officer that there was insufficient evidence of the student's progress. I find that the student made adequate progress at Kildonan in 2001-02. Accordingly, petitioners have met their burden of proving that she derived an educational benefit from the program in which they placed her at Kildonan.
As for the third criterion for tuition reimbursement, whether or not equitable considerations support the parents' claim, I find no evidence that the parents failed to cooperate with the CSE. To the contrary, I find that petitioners cooperated with the CSE in making their daughter available for an evaluation on the day of the CSE meeting (Parent Exhibit M; Transcript p. 153) and promptly communicated their disagreement with the proposed program. I find no reason to reduce or deny their request for tuition reimbursement for 2001-02.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their daughter's tuition at Kildonan during the 2001-02 school year, upon petitioners' submission to respondent of proof of such payment.
Albany, New York
December 11, 2003
PAUL F. KELLY