The State Education Department
State Review Officer

No. 03-101

 

 

 

 

Application of the BOARD OF EDUCATION OF THE CARMEL 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:
Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for petitioner, Leah L. Murphy, Esq., of counsel

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

 

DECISION

        Petitioner, the Board of Education of the Carmel Central School District (district), appeals from an impartial hearing officer's decision which found that petitioner had failed to demonstrate that it had offered to provide an appropriate educational program to respondents' daughter for the 2002-03 school year, and ordered petitioner to reimburse respondents for the nonresidential costs of their daughter's tuition at the Kildonan School (Kildonan) for the months of March 2003 through June 2003. Respondents cross-appeal requesting tuition reimbursement for the entire 2002-03 school year, including residential costs. The appeal must be dismissed. The cross-appeal must be sustained in part.

        Respondents' daughter was home-schooled by her mother in Yonkers until the age of 13 (grades K-6) (Transcript pp. 559, 601; Exhibit SD 12 at p. 3; Exhibit SD 55 at p. 7). At that time, private diagnostic testing performed in May 2001 revealed that respondents' daughter achieved a Verbal IQ score of 95 (Average), a Performance IQ score of 82 (Low Average), and a Full Scale IQ score of 88 (Low Average) on the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) (Exhibit SD 6). The psychologist who administered the tests reported that the student had strengths in reading comprehension, and weaknesses in coding (id.). She concluded that respondents' daughter was a student of at least average intelligence whose work and performance in several areas was interfered with by memory retrieval difficulties, as well as visuo-spatial and visuo-graphic problems, and suggested the latter are consistent with symptoms of dyslexia (id.). She opined that respondents' daughter could benefit from a program that offered her remediation techniques and a multisensory approach to learning to improve her performance in reading, writing, math and other academic areas (id.).

        The following September, when their daughter was 13 years old, respondents enrolled her in the seventh grade as a residential student at Kildonan for the 2001-02 school year (Transcript pp. 601, 718-19; Exhibit P 24 at p. 3; see Exhibit P 10). Kildonan is a private school exclusively for children with learning disabilities (Transcript pp. 821, 899). It has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. In April 2002 respondents moved into petitioner's school district (Transcript p. 608; Exhibit SD 12). On August 5, 2002, respondents contacted petitioner to refer their daughter to petitioner's Committee on Special Education (CSE) for evaluation and placement (Exhibit SD 16). Meanwhile, in September 2002, respondents re-enrolled their daughter at Kildonan (Exhibit P 14; Transcript pp. 622, 804). The CSE met on September 24, 2002 to discuss the student's needs, and determined that additional testing needed to be performed, including an educational assessment, a speech/language evaluation, and an occupational therapy evaluation, before developing an individualized education program (IEP) for the student (Exhibit SD 1; Transcript p. 89). With the agreement of the parents, the CSE decided to reconvene after completion of the evaluations (Transcript p. 103).

        The CSE reconvened on October 29, 2002 to review the results of the evaluations and to develop an IEP for the student for the 2002-03 school year (Exhibit SD 2). At the meeting the CSE considered the results of the recent school district assessments, which included a psycho-social history, a cognitive educational evaluation, a speech/language evaluation, and an occupational therapy evaluation (Exhibit SD 2 at p. 6; see Exhibits SD 12, SD 14, SD 15, SD 13). The cognitive educational assessment revealed that the student's overall intellectual ability was in the average range, as measured by the Woodcock-Johnson III (WJ-III) Tests of Cognitive Abilities and Tests of Achievement (Exhibit SD 14). The district's evaluator noted from the tests that the student had strengths in verbal ability (average) and thinking ability (average), and weaknesses in long-term memory retrieval (low average to average), timed math tests (low average), cognitive efficiency (very low to low range - moderately delayed), written expression (low range), broad reading/decoding (very low range - severely delayed), and broad written language (very low to low range - mildly delayed) (id.). The student ranked in the first percentile in broad reading, the first to third percentile in broad written language skills, and the second to fifth percentile for cognitive efficiency (id. at 2). Although she was 14 when she was tested, her overall reading ability was equivalent to that of an eight year old, and the evaluator noted that reading tasks above the age of eight years and seven months would be very difficult for the student (id.). The evaluator further noted that the student's achievement was significantly lower than predicted in reading and writing skills, and also noted that this suggested age-level tasks in cognitive processing, reading, and written expression would be difficult for her (id. at 2). The evaluator opined that lack of formal instruction until the age of 13 may have played a part in her low achievement scores (id. at 4). The speech/language evaluation revealed that respondents' daughter was in the high average to above average range in language functioning with no deficits in auditory processing or expressive language; therefore the therapist did not recommend speech/language therapy (Exhibit SD 15). The occupational therapist likewise concluded that, based on the student's performance on a battery of tests, occupational therapy services were not recommended (Exhibit SD 13).

        Based on the foregoing evaluations, the CSE determined that the student had a visual motor processing deficit that impeded her acquisition of academic skills needed to progress in the regular education curriculum (Exhibit SD 2). The CSE classified the student as learning disabled, and developed an IEP which placed the student in the eighth grade in petitioner's George Fischer Middle School in 15:1 special education classes for English and reading, and mainstreamed in regular education in all other subjects, including social studies, math and science (id.; see Transcript p. 126). The English and reading courses were taught by both a special education teacher and a teacher's assistant (Transcript pp. 124, 410). Both courses used the Wilson method of instruction, a multisensory approach to learning for students with reading difficulties (Transcript pp. 388-401, 544; Exhibit P 3). In addition, the CSE recommended that she receive 5:1 resource room services for 39 minutes, five times per week (id.). Program modifications on the IEP included reteaching of materials and access to copies of class notes (id.). Testing modifications provided for extended test taking time, spelling waived, and questions and directions read and explained (id.). The IEP prescribed goals and objectives for reading, decoding and word recognition, mechanics of writing, written expression, and organization and study skills (id.). During November 2002, respondents investigated and considered the district's proposed program (Transcript p. 629).

        On December 3, 2002, the district notified respondents by letter that the Board of Education had approved the CSE's recommended program for their daughter (Exhibit SD 39). Shortly after, in mid to late December 2002, after reading the due process notices they had received in previous mailings (Transcript p. 632), respondents made their decision as of December 20, 2002 to reject the IEP (Transcript pp. 631, 803). By letters dated December 20, 2002, respondents informed the district that they were seeking an independent educational evaluation (IEE) of their daughter's needs (Exhibit SD 35), and notified the district that their daughter was enrolled in Kildonan for the 2002-03 school year, and that they "expect[ed] reimbursement of tuition" (Exhibit SD 36). In a subsequent letter dated January 22, 2003, respondents outlined in detail the various reasons why they were rejecting the CSE's recommended program (Exhibit SD 40). In the next several months, the CSE met with respondents on February 27, 2003 and March 4, 2003 to discuss the proposed IEP (Exhibits SD 45, SD 49; see Exhibits SD 51, SD 52). The only change made in the February IEP was to briefly expand upon the descriptions of the student's levels of educational achievement and learning needs (Exhibit SD 51 at p. 2). At the March IEP meeting, the eight points raised by the parents in their letter of January 22, 2003 were discussed by the CSE, but no changes were made to the IEP (Exhibit SD 52 at p. 3).1 Respondents continued to reject the IEP, and by letter to petitioner dated April 4, 2003 requested an impartial hearing seeking tuition reimbursement for all or part of the 2002-03 school year (Exhibit SD 49).

        The hearing commenced on May 20, 2003 and concluded on August 14, 2003. The hearing officer rendered his decision on October 4, 2003 finding that petitioner had failed to offer to provide an appropriate program to the student for the 2002-03 school year, and that Kildonan's program was appropriate, although he found that the residential portion of the Kildonan program was not necessary in order for the student to progress academically. He also found that respondents were not entitled to reimbursement costs prior to when they decided to ask for an impartial hearing. He ordered petitioner to reimburse respondents for tuition costs, but limited reimbursement to the nonresidential costs of tuition for the student at Kildonan for the months of March, April, May and June of 2003.2 Petitioner contends that the hearing officer erred by finding that the district's recommended program failed to offer the student a free appropriate public education (FAPE) for the 2002-03 school year solely because petitioner's program failed to provide 1:1 instruction, and also erred by finding that Kildonan was an appropriate placement for the student after finding that, according to standardized testing, the student did not progress there. Petitioner requests that the hearing officer's decision awarding tuition reimbursement be annulled. Respondents cross-appeal, requesting full residential tuition reimbursement for the entire 2002-03 school year, or, in the alternative, from at least December 2002 until June 2003.

        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 v. Dept. of Educ., 471 U.S. 359 [1985]). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

        To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). The Second Circuit has observed that "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [internal quotation marks and citations omitted]; see Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

        In the instant case, when the CSE met to develop an IEP for the student on October 29, 2002, it had the benefit of at least the following information. First, the CSE knew that the student was 14 years old and had never been in the public school system; she had always been home-schooled until the prior year, when she had attended all special education classes at Kildonan (Exhibits SD 2 at p. 6; SD 12, SD 7, see also Exhibits SD 21, SD 24; Transcript pp. 44, 95-99). Second, recent standardized test scores obtained as part of the district's cognitive evaluation of the child revealed that her present levels of performance were severely delayed in broad reading (1 percentile), broad written expression (1-3 percentile), and cognitive efficiency (2-5 percentile) (Exhibit SD 14). The district's evaluator's report concluded that although the student was 14, she had the reading ability of an eight year old and would have a very difficult time with reading tasks above the age of 8.7 years old, and that age-level tasks in cognitive processing, reading and written expression would be difficult for her (Exhibit SD 14). The CSE also had the results of standardized test scores which showed that even when the student had received special education and multisensory instruction in all of her classes the prior year at Kildonan, as well as daily 1:1 reading tutorials and the use of an array of assistive technology devices, her standardized test scores had showed only slight improvement in her performance levels (Exhibit SD 7). In spite of this information, the CSE recommended that the student be placed in a program in the 2002-03 school year that provided substantially less special education support and services than she had been receiving the previous year.

        While admitting that the student had a visual motor processing deficit which impeded her acquisition of academic skills needed to progress in the general curriculum, instead of recommending a program that continued to provide special education support in all of her academic classes, the CSE recommended she receive multisensory instruction in only two classes, a special education English and reading class, and be placed in large, regular education classes in the public school system for all other classes, including math, social studies, and science, despite the fact that the student had never been exposed to a public school classroom before and the district evaluator's conclusion that the student would have a very difficult time with reading above a third or fourth grade level. Petitioner argues that it was complying with the LRE requirement of the IDEA, which requires that students with disabilities be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]). Although the IDEA requires that a child with a disability not be removed from the regular educational environment if the child's education can be achieved satisfactorily in regular classes with the use of supplementary aids and services, the LRE principle is intended to ensure that a child with a disability is served in a setting where the child can be educated successfully according to the individual student's needs (34 C.F.R. Part 300, Appendix A, Section 1,Question 1); it is axiomatic that the LRE requirement must be balanced against the requirement that each child receive an appropriate education (see Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]; Application of a Child with a Disability, Appeal No. 03-021; Application of a Child with a Disability, Appeal No. 02-093; Application of the Bd. of Educ. of the Arlington Cent. Sch. Dist., Appeal No. 98-7). It is undisputed that the student's overall reading ability was severely delayed (Exhibits SD 14, P 24; Transcript pp. 113, 845-47, 932). The district's evaluator testified that the student would have a very difficult time understanding the regular eighth grade textbooks (Transcript p. 295). The private psychological evaluation performed on the student in May 2001 (Exhibit SD 6 at p. 3), the private IEE performed by a neuropsychologist in March 2003 (Exhibit P 24), and the district's 2002-03 IEP on the student (Exhibit SD 51 at p. 2), all agreed that the student needed a multisensory approach to learning in order to access the content of her courses, preferably in small classes where she could obtain individual attention when necessary (see Exhibit P 24 at p. 10; Transcript pp. 928, 930; see also Transcript pp. 205, 440). The record shows that, due to the student's severe reading and writing disabilities, she required some form of a multisensory teaching approach be employed throughout her curriculum in order for her to be able to access the content of her courses and receive meaningful educational benefit from them; as such, I find that the CSE erred by developing an IEP that failed to provide this or any other supplemental aids or services in three out of five of the student's core academic courses (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002] [record showed that severely dyslexic student required multisensory instruction in all classes]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, 99, 102 [S.D.N.Y. 1996] [same]["The failure to use an approach that will provide (the student) with the tools to become …an independent reader is alone an important reason why the District's IEP does not provide an appropriate education"]).

        An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and related to meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]). I note that the October 2002 IEP contains several goals which are either not measurable or completely unrealistic for the student. For instance, one goal is that the student "demonstrate an improvement in comprehension skills necessary to read for information and understanding" (Exhibit SD 2 at p. 3). This goal is too vague and immeasurable to be useful. One objective requires the student to comprehend subject area textbooks with 80% mastery in a four-week period (Exhibit SD 2 at p. 5), a feat that the district's evaluator testified would be extremely difficult for the student (Transcript p. 295). Another objective requires the student to be able to "skim written material and locate facts in the content areas with 80% accuracy" (Exhibit 2 at p. 5). As previously noted, this student is in the beginning stages of learning to read each word; skimming for content would be unrealistic, given her present levels of performance.

        A student's evaluation must also include "other appropriate assessments or evaluations …as necessary" (8 NYCRR 200.4[b][1][v]; 34 C.F.R. § 300.308). This includes an assistive technology evaluation where appropriate (8 NYCRR 200.4[d][3][v]; Application of a Child with a Disability, Appeal No. 01-040). An assistive technology device is defined by Federal regulation as "an item, piece of equipment, or product system ... that is used to increase, maintain, or improve the functional capabilities of a child with a disability" (34 C.F.R, § 300.5). A board of education must provide assistive technology devices to a child with a disability if the devices are required for the special education, related services, or supplementary services to be provided as part of the child's FAPE (34 C.F.R. § 300.308). State regulation requires that an IEP describe any specialized equipment and adaptive device which a child needs to benefit from education (8 NYCRR 200.4 [c][2][xii]). It is a CSE's responsibility to determine whether a child requires the use of an assistive technology device and the purpose for which the device is to be used (Application of a Child with a Disability, Appeal No. 99-048; Application of a Child with a Disability, Appeal 94-24).

        In the instant case, as noted, standardized testing had revealed that the student was severely delayed in her reading and writing abilities. A report from Kildonan's director of assistive technology indicated that assistive technology devices such as Dragon Speak,3 Wordsmith,4 and books on tape were instrumental in enabling the student to access the content of grade level materials (Exhibit P 19, see also Exhibits P 10, P 11). Various reports from Kildonan specifically noted that the assistive technology devices also gave the student the ability to do assignments with more speed, accuracy, and independence5 (Exhibits P 19, P 10 at p. 26 [Assistive Technology Report dated June 5, 2002], Exhibit P 11 at p. 2 [Tutorial report dated November 27, 2002]; see e.g., Exhibit P 17 at pp. 18-20 [student writing samples using assistive technology]). Although the parents repeatedly urged the CSE to include these devices on the IEP, the CSE declined, stating it would wait and see if she needed them at some point in the future (Transcript pp. 645-46, 1031-32, 1056-57). Based on the record before me, and the severe nature of the student's reading delays, I find that an assistive technology evaluation for this student should have been done to determine what, if any, assistive technology the student needed, and, if required, those devices should have been included in the student's IEP (34 C.F.R. § 300.346[a][2][v]; see Application of the Bd. of Educ. of the Roslyn Union Free Sch. Dist., Appeal No. 02-025). For all of the foregoing reasons, I find the district failed to meet its burden of showing that it offered to provide the student with a program that was reasonably calculated to enable the student to receive educational benefits for the 2002-03 school year.

        Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2002-03 school year, I must now consider whether respondents have met their burden of proving whether the private education services they obtained were proper under the Act and appropriate to the child's needs (Burlington, 471 U.S. 359; M.S., 231 F.3d at 104; Walczak, 142 F3d at 129; Application of a Child with a Disability, Appeal No. 95-57). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

        There can be little doubt that Kildonan provided a curriculum appropriate to respondents' daughter's needs. As noted, the student was severely delayed in reading and writing, requiring small classes and a multisensory approach to learning in order to access the content of her courses. At Kildonan, the student received a daily 1:1 language and reading training tutorial class using the Orton-Gillingham multisensory method of instruction, and this multisensory approach was then carried over into each of the student's academic classes (Transcript pp. 821-22, 604). The academic content of her courses was at grade level and not watered down, and was made accessible to her by methods other than reading and writing (Transcript pp. 848-49). As already noted, the student was provided with a wide variety of assistive technology to develop her reading and writing abilities (see Transcript pp. 850-51). Academic class sizes were small, ranging from four to eight students, to provide individual attention (Transcript p. 824). Additional 1:1 supervised day and evening study halls were available to further assist her in completing assignments and in areas of difficulty (Exhibit P 22).

        Although the student's standardized test scores may have showed little change from May 2001 to May 2002 (Exhibit SD 7, P 10 at p. 28), there is evidence that the student was receiving benefit from her instruction at Kildonan. The academic dean at Kildonan testified that, although her standardized test scores did not show a great deal of growth, they did show some improvement in spelling, vowel recognition, and speed of decoding (Transcript p. 858; Exhibits SD 7, P 10 at p. 28). He noted that the fact that she maintained the same scores in certain areas was itself a form of progress, since the test complexity increased each year (Transcript pp. 858, 875). He pointed out that she showed the greatest growth on the Gates Maginity Reading Test of silent reading vocabulary, where she continued to score highly even when the test complexity increased (Transcript p. 858). He testified that it was his opinion that because the student was so severely low-skilled initially, that it would take longer for her progress to begin to show in standardized test scores, but that he was confident that she was showing improvement in the classroom (Transcript pp. 859-60). The record supports this conclusion. The student's report cards at Kildonan for the 2001-02 school year show that she was achieving "A"s and "B"s in all her subjects (Exhibit P 10). Reports from her daily tutorial in language training reveal that during her first year at Kildonan the student gained knowledge in syllable division rules, spelling rules, decoding skills, and vocabulary (Exhibit P 10). Her language tutor commented that "her tests do not nearly indicate the amount of work [she] completed this term or the new skills she has begun learning but not yet mastered" (Exhibit P 10 at p. 19). In addition, her writing samples from September 2001 to May 2002 show a marked improvement (Exhibit P 17). The dean remarked that before attending Kildonan, the student could only print, her spelling was very poor, and her writing was at an angle (Transcript p. 863). By the end of the year, the student had mastered cursive writing, her writing sample was longer, spelling was more accurate, and content was better organized (Transcript pp. 863-64; see Exhibit P 17). Her language tutor agreed that the student had made remarkable progress in her writing skills, learning to use expanded paragraphs, compound sentences, and the recognition and use of adjectives and adverbs (Exhibit P 10 at p. 19). Her report cards with teacher commentaries also showed she was accessing the content in all her academic courses (Exhibit P 10). During the school year the student won the "academic effort award" each of her three terms (Exhibit P 20; Transcript p. 865), and once she was one of only two out of 100 students who was nominated for the award unanimously by all of her teachers (Transcript pp. 844-45). The student's father testified that during the 2001-02 school year at Kildonan his daughter for the first time began to demonstrate an eagerness instead of an aversion for reading (Transcript pp. 605, 717).

        Based on the record before me I find that the student's persistent weak scores in standardized testing is due to her continued disability rather than any deficiency in Kildonan's program (Mrs. B. v. Milford, 103 F.3d 1114, 1121 [2d Cir. 1997] ["a child's academic progress must be viewed in light of the limitations imposed by the child's disability"]). I find that she made slow but steady gains at Kildonan. The fact that she maintained steady test scores despite increasing test complexity does show some progress (Application of a Child with a Disability, Appeal No. 01-025), and her daily tutorials and report cards show that the student was receiving appropriate services to address her reading and writing deficiencies, and was receiving academic benefits. Thus, I find that respondents have met their burden of proof in showing that Kildonan offered their daughter an appropriate program which met their daughter's special education needs (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-052).

        Petitioner contends that respondents should not be awarded tuition reimbursement because respondents cannot show that their daughter required a residential placement. While parents are generally not held as stringently to the LRE requirement of the IDEA as school boards are (M.S. v. Yonkers, 231 F.3d 96, 105 [2d Cir. 2000], cert. denied 532 U.S. 942 [2001]; Cleveland Heights-University Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir. 1998]), the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 03-012). Although Kildonan is a private school exclusively for students with language-based disabilities (Transcript p. 899), and therefore does not present the same opportunity for mainstreaming as a placement in petitioner's schools would, I cannot conclude on that fact alone that Kildonan's program was inappropriate for the student (Application of a Child with a Disability, Appeal No. 02-080). However, as far as the nonresidential component of the program, it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his educational program (Walzak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 01-083). Where a residential component is not required, a school district is not obligated to pay for that portion of costs (see, e.g., Muller v. Committee on Special Educ. of East Islip Union Free Sch. Dist., 145 F.3d 95, 105 [2d Cir. 1998]; Application of a Child With a Disability, Appeal No. 03-062). In the instant case, I agree with the hearing officer that residential placement was not necessary in order for this student to receive educational benefits. The academic dean at Kildonan described the residential part of the program as "the luxury of having an evening study hall that is a structured, set time, set location" (Transcript p. 861). There is no evidence in the record that indicates the student had problems studying at home, indeed, the student's father testified that the student showed positive signs of self-motivation and an eagerness to read on her own (Transcript pp. 605, 717). In addition, the record shows daytime study halls were available at Kildonan for the benefit of its nonresidential students (Exhibit P 22). Based on these facts and others, I agree with the hearing officer that respondents are not entitled to tuition reimbursement for the nonresidential portion of the 2002-03 school year.

        The final criterion for an award of tuition reimbursement is that the parents' claim be supported by equitable considerations. The IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, at n.9).

        In the instant case, petitioner contends that equitable considerations do not support an award of tuition reimbursement because respondents allegedly failed to provide the district with any educational records of the student prior to the fifth grade, and that records provided from the fifth and sixth grade were inaccurate, which thwarted the district's ability to do an accurate evaluation. I disagree. The parents informed the CSE when they referred their daughter that she had been home-schooled until the age of 13 (Exhibits SD 12; SD 14; Transcript p. 169). The parents signed consent forms authorizing release of all of the student's educational records from both the Yonkers public school system (Yonkers) and Kildonan (Exhibits SD 19, SD 23), which included a complete psychological evaluation of the student performed by a school psychologist from Yonkers in November 2000 when the student was in her sixth grade year (Exhibit SD 5), as well as reports on prior optometric testing, writing samples, and other reports (Exhibit SD 29; Transcript pp. 85-101, 619). In addition, prior to the development of the October 2002 IEP, the parents complied with the district's request to supply them with a list of the tests the student had taken during the prior 2001-02 school year at Kildonan (Exhibits SD 20, SD 17), and Kildonan provided the results of these tests to the district, as well as writing samples (Exhibits SD 21, SD 24; see Exhibits SD 7, SD 11; Transcript pp. 85-101). The parents also provided the district with a copy of a privately obtained psychological evaluation completed on the student in May 2001, prior to the student's enrollment at Kildonan (Exhibit SD 6; see Transcript pp. 94, 619; Exhibit SD 1). In addition, the district performed a battery of its own tests on the student prior to development of the IEP which included a cognitive evaluation, a social history, a speech/language evaluation, and an occupational therapy evaluation as recently as one month prior to the creation of the October 2002 IEP, all of which formed a sufficient basis for the CSE to develop an appropriate program for the child. I also find that the parents were cooperative and made their daughter available for all tests and evaluations requested by the district and that they took an active interest in their child's education and attended all meetings of the CSE. Upon my review of the record, I conclude that the parents consistently cooperated, communicated and worked with school staff in attempting to develop an appropriate program for their daughter, and that therefore equitable considerations support an award of tuition reimbursement.

        Respondents argue in their cross-appeal that the hearing officer erred by limiting their recovery of tuition costs to the months following their letter of April 4, 2003, which formally requested an impartial hearing. I agree. The IDEA sets no such limit; the Second Circuit has found that "there is nothing in the IDEA, nor is there any persuasive decisional authority, which limits a court's authority to award reimbursement for expenses incurred prior to the parents' request for a hearing" (Ivan P. v. Westport Bd. of Educ., 101 F.3d 686, 1996 WL 304758, at *2 [2d Cir. 1996]). Although a hearing officer is free to consider a parent's delay in seeking administrative review when determining an award of tuition reimbursement, this is not a case where the parents failed to voice their dissatisfaction with a placement or refused to allow the district the opportunity to evaluate their child (see Ivan P. v. Westport Bd. of Educ., 865 F. Supp. 74, 82 [D. Conn. 1994], affd 101 F.3d 686 [2d Cir. 1996]). In this case, I cannot find that respondents were irresponsible or uncooperative once they notified the district of their dissatisfaction with the district's evaluation of their daughter, their decision to continue her placement at Kildonan, and their intent to seek tuition reimbursement by letters to the district beginning December 20, 2002 (Exhibits SD 36, SD 35; see Exhibit SD 40). Indeed, since both parties were attempting to resolve their disagreements about the program from December 2002 through March 2003, it would be inequitable to penalize the parents for attempting to negotiate a resolution with the CSE during this time (see 34 C.F.R. Part 300, Appendix A, Section II, Question 9 [informal attempts at mediation may not be used to deny or delay a right afforded a parent under the IDEA]). However, I note that granting respondents' request for full tuition reimbursement for the entire 2002-03 school year would also be inequitable (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 69 [2d Cir. 2000] [parents cannot in fairness expect to recover for expenses incurred prior to contacting the school board about their dissatisfaction with their child's IEP]). Therefore, in the instant case, I find that the equities favor an award of tuition reimbursement for respondents for the nonresidential tuition costs of their daughter's education at Kildonan from December 20, 2002, until the end of the school year in June 2003.

        I have considered petitioner's additional claims and found them to be without merit.

 

        THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer's order is annulled to the extent that it limited tuition reimbursement to respondents to the months of March, April, May, and June of 2003; and

        IT IS FURTHER ORDERED that petitioner shall reimburse respondents for the nonresidential costs of their daughter's tuition at Kildonan from December 22, 2002, through the end of the 2003 school year, upon respondents' submission to petitioner of proof of such payment.

 

 

 

 

Dated:

Albany, New York

__________________________

December 31, 2003

PAUL F. KELLY
STATE REVIEW OFFICER

 

 

1 Respondents' privately obtained IEE was completed sometime in March 2003 (Exhibit SD 24), but evidently the results were not available prior to the March 4, 2003 CSE meeting, as the IEE was not listed as reviewed by the CSE or discussed by either party in the comments section of the IEP (see Exhibit SD 52), and the parents indicated in a letter dated April 4, 2003, that they would forward the final report of the IEE to petitioner as soon as it was delivered (Exhibit SD 49 at p. 3).

2 The hearing officer also found that the results from the district's cognitive evaluation were essentially similar to the results of the IEE obtained by the parents and therefore he declined to order the district to reimburse respondents for the cost of the IEE. Since neither party appeals this part of the decision, that determination is final and not subject to review (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]; see Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 01-094).

3 Dragon Speak is a computer software program that allows the student to dictate written assignments and have them verbally proofread (Transcript p. 851; Exhibit P 19).

4 Wordsmith is a computer software program that includes a speaking spell-checker, thesaurus, homonym finder, and text-to-speech feature which allows the student to have text read aloud to her. As the text is read, each word is highlighted so the student may follow along (Exhibit P 10).

5 Such devices allowed the student to independently scan assignments and have them read aloud to her, then allow her to type her answers with the aid of a verbal proofreading feature (Exhibit P 10). The student stated that such devices allowed her to use larger words, which she had previously been unable to write (Exhibit P 17 at pp. 18-20).