Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Northeast Central School District
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel
Shaw and Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that petitioner's requests for a determination of the appropriateness of her child's individualized education program (IEP) for the 1994-95 school year, and for a determination of the child's "pendency" or "status quo" placement for that school year, were moot, and which denied petitioner's request for tuition reimbursement for the 1995-96 school year. The hearing officer denied petitioner's request for tuition reimbursement, despite finding that respondent had failed to demonstrate that it had offered an appropriate educational placement to the child for the 1995-96 school year, upon the grounds that the private school in which the child was enrolled was not the least restrictive environment for him, and that equitable considerations did not support petitioner's request for reimbursement. Respondent cross-appeals from the hearing officer's finding that the individualized education programs (IEPs) which respondent's committee on special education (CSE) prepared for the child for the 1994-95 and 1995-96 school years were inadequate. The appeal must be sustained in part. The cross-appeal must be dismissed.
Petitioner's son is sixteen years old. He reportedly repeated kindergarten, and received speech/language therapy and remedial reading services, while in the lower elementary grades in respondent's schools. In January, 1991, the child was enrolled in the schools of the neighboring Dover Union Free School District, where he remained until February, 1994. The child was initially classified as learning disabled by the Dover CSE, in March, 1991. He has continued to be classified as learning disabled, since his return to respondent's district in early 1994. His classification as learning disabled is not in dispute in this proceeding.
For the remainder of the fourth grade after he was classified, the child received resource room services. He continued to receive resource room services in the fifth grade during the 1991-92 school year. In addition, he received consultant teacher services and counseling, for at least part of the school year. However, he continued to have academic difficulty. Petitioner enrolled the child in the summer tutoring program of the Kildonan School, during 1991 and 1992. While in the summer program, the child was taught reading and language skills, with the Orton-Gillingham technique, which is a multisensory, highly structured, and sequential method of teaching reading and language skills.
In August, 1992, the child was privately evaluated by a psychologist, who reported that the child had achieved a verbal IQ score of 70, a performance IQ score of 91, and a full scale IQ score of 78. The psychologist noted that the child's IQ scores were significantly lower than those which he had achieved when tested in 1991, but opined that the results could not be truly compared because different tests were used in 1991 and 1992. She reported that the child, who was about to enter the sixth grade in the Dover schools, had achieved grade equivalent scores of 3.8 in basic reading, 4.5 in reading comprehension, 3.5 in mathematics reasoning, 4.5 in numerical operations, 3.5 in listening comprehension, 6.4 in oral expression, 3.4 in spelling, and below the kindergarten level (standard score of 68) in written expression. She also reported that the child had a poor self-concept. The psychologist opined that the child had an attention deficit disorder (ADD), and a learning disability in written expression. She recommended that the child be tutored by an educator who was trained to use a multi-sensory approach, such as the Orton-Gillingham technique. The psychologist also recommended that the medication be prescribed by a physician to address the child's ADD. Petitioner testified at the hearing in the proceeding that the child briefly took two medications for ADD, in the Fall of 1992, and that he took Ritalin for ADD, during the 1993-94 and 1994-95 school years.
The Dover CSE recommended that the child receive language training using the Orton-Gillingham or similar technique for one hour per day during the 1992-93 school year. Petitioner reportedly agreed with the Dover CSE's recommendation. However, she subsequently initiated a due process proceeding, after the child's language training tutor was replaced by the district. In Application of a Child with a Disability, Appeal No. 93-43, petitioner's appeal from a hearing officer's decision finding that the Dover Union Free School District had not violated petitioner's procedural or substantive rights, was dismissed. When tested by the private psychologist at the end of the sixth grade in June, 1993, the child achieved grade equivalent scores of 4.5 in basic reading, 4.1 in reading comprehension, 4.3 in spelling, and 1.2 in written expression.
The child was enrolled in the seventh grade of the Dover Junior/Senior High School for the 1993-94 school year. He was initially provided with special education instruction in language arts, mathematics and social studies, in a class with a 15:1 child to adult ratio, and regular education instruction in science. He also received special education language and reading remediation instruction with the Orton-Gillingham technique, for 40 minutes each day. In November, 1993, he was placed in a regular education social studies class. A Dover speech/language therapist who evaluated the child in December, 1993 reported that the child's oral language and auditory memory skills were significantly weaker than his visual recognition and memory skills. She opined that the child would be more successful in following directions and processing information, if he received visual cues and his teachers repeated their instructions.
In January, 1994, a Dover school psychologist reported that the child had achieved a verbal IQ score of 78, when re-evaluated that month. She did not report the child's performance and full scale IQ scores. The school psychologist reported that the child's reading skills were between the fifth and six grade levels, and that he had at least average reading decoding skills. She suggested that the child's attention and memory deficits were more significant problems than his reading comprehension skills. The child's writing skills were described as borderline. Although he reportedly had adequate knowledge of word use and style, he could not demonstrate that knowledge when asked to write a short story. The school psychologist reported that the boy was capable of at least low average level work in school, but that his performance was negatively affected by his attitude and attention to task.
In February 1994, the child was enrolled in the seventh grade of respondent's Webutuck High School because petitioner was reportedly dissatisfied with the program provided by the Dover schools. Pending his review by respondent's CSE, the child was enrolled in a resource room program for two periods per day. In one period of resource room, he received multi-sensory instruction in reading, spelling and writing. The resource room teacher testified that she provided that instruction as a pilot program, and that petitioner's son was enrolled in her class at the principal's suggestion. There were two other children in the pilot program. The teacher reported to the CSE that the child had mastered the skills previously taught to him, but that he had deficits in his study and organizational skills.
On March 10, 1994, respondent's CSE recommended that the child be placed in a self-contained 12:1+1 special education class for English and social studies, but be mainstreamed for special subjects, e.g., art and physical education, and for seventh grade mathematics and science, with the assistance of a special education teacher or aide in those two classes. However, the CSE declined to recommend that the child receive the multi-sensory instruction in reading, spelling and writing, which he nevertheless continued to receive for the rest of the 1993-94 school year. He also continued to receive another period each day of resource room services, although resource room was not provided for on his IEP. The CSE also recommended that the child be evaluated to determine if he required the related service of counseling. Petitioner accepted the IEP which the CSE prepared, while indicating that she preferred that the IEP specifically indicate that he would continue to receive the multisensory reading, spelling, and writing instruction.
In April, 1994, the child achieved grade equivalent scores of 4.4 in word identification, 5.9 in word attack, 3.9 in word comprehension, and 3.7 in passage comprehension, on the individually administered Woodcock Reading Mastery Test, and 6.2 in basic concepts, 4.7 in mathematical operations, and 7.0 in mathematical applications, on the individually administered Keymath Test. The next month, he took the group administered IOWA tests, on which he received grade equivalent scores of 7.1 in vocabulary, 3.8 in reading vocabulary, 6.9 in mathematical concepts, 5.2 in mathematical problems, and 9.4 in mathematical computation.
In a brief written report dated June 6, 1994, the teacher of the 12:1 + 1 special education class in which the child had been enrolled for English and social studies indicated that the child rarely completed his homework assignments on time, but was maintaining a passing or near passing average in each of his classes, including his regular education classes. Nevertheless, she indicated that the child continued to struggle with his study and organizational skills, and recommended that he repeat the seventh grade mathematics course during the 1994-95 school year. The child received final grades of 73 in English, 71 in social studies, 65 in science, and 63 in mathematics for the 1993-94 school year.
On June 10, 1994, respondent's CSE prepared the child's IEP for the 1994-95 school year. The resource room teacher who had instructed the child in reading, spelling and writing reportedly advised the CSE that the child would not need a specialized reading class for the eighth grade during the 1994-95 school year. The CSE recommended that the child continue to be enrolled in a 12:1 + 1 special education class, and be mainstreamed "as appropriate". The child's IEP indicated seventh grade mathematics, eighth grade science, and special subjects, as examples of appropriate mainstreaming for the child, The CSE also recommended that the child receive individual counseling, once every other week. The boy's IEP included annual counseling goals relating to demonstrating socially acceptable behavior and increasing his positive self-concept. The IEP also included annual goals for the child to increase his reading comprehension, writing, mathematics, social studies, science, and study skills.
The child's special education teacher for English and social studies did not attend the annual review on June 10, 1994. At petitioner's request, the CSE reconvened on September 6, 1994, so that petitioner could question the special education teacher about her child's performance in mathematics and science. The child's need to repeat seventh grade mathematics, which he had failed during the 1993-94 school year, was discussed at the CSE meeting, as was petitioner's concern that the child should be in a special education class for that subject. The CSE reiterated its prior recommendation that the child take regular education seventh grade mathematics. It again recommended that he receive special education instruction only in English and social studies, and that he receive individual counseling.
In a letter to the CSE chairperson, which was dated September 12, 1994, petitioner's attorney requested that an impartial hearing be held to review the CSE's recommendation. The attorney also asserted that respondent was obligated to provide the child with two periods per day of "Language Retraining with a teacher certified in the Orton-Gillingham method", during the pendency of the proceeding. The hearing in this proceeding began on November 4, 1994. Petitioner sought an order from the hearing officer requiring respondent to provide the child with two periods per day of multisensory special education instruction, during the pendency of the proceeding. The hearing officer denied petitioner's application, on the ground that he lacked the jurisdiction to issue the requested order. By agreement of the parties, the hearing was adjourned to afford petitioner the opportunity to seek relief in an appropriate forum.
The child remained in respondent's schools for the eighth grade during the 1994-95 school year. In January, 1995, the child's special education teacher reassessed the child's reading and mathematics skills, with the Woodcock Reading Mastery Test and the Keymath Test. She reported that the child had achieved grade equivalent scores of 6.1 in word identification, 3.7 in word attack, 4.7 in word comprehension, 5.3 in passage comprehension, 8.9 in basic mathematical concepts, 6.4 in mathematical operations, and 8.5 in mathematical applications. The teacher contrasted these scores with the scores which the child had achieved on those two tests in April, 1994. In April, 1994, the child had achieved grade equivalent scores of 4.2 in total reading, and 5.8 in total mathematics, while in January, 1995, his grade equivalent scores were 5.2 and 7.6, respectively. The child's scores had improved in every area, except word attack, where his grade equivalent score decreased from 5.9 in April to 3.7 in January. He completed the seventh grade mathematics course with a grade of 71, in January, 1995, but was not provided with instruction in eighth grade mathematics for the remainder of the school year. He achieved final grades of 69 in adapted eighth grade science, 80 in special education English, and 75 in special education social studies.
On June 10, 1994, the CSE prepared the child's IEP for the 1995-96 school year. Although she was invited to attend the CSE meeting, petitioner declined to do so, because she was contemplating a unilateral placement of the child in the Kildonan School. For the 1995-96 school year, the CSE recommended that the child attend a 15:1 special education class for social studies, and attend regular education ninth grade English, mathematics, science, and elective subject classes. The CSE indicated that the child would receive resource room support for his regular education classes, but the child's IEP did not reveal the amount of time per day that the child would receive resource room services (cf. 8 NYCRR 200.4 [c]  [vi]). The child's IEP indicated that he could decode most words in context, but needed reminders to decode words. It also indicated that he could write complete sentences, and multi-paragraph compositions. The IEP further indicated that the child had become a much more organized and conscientious student, and had usually made up allowed assignments in a timely fashion. However, the IEP indicated, as a management need of the child, that he continued to need monitoring to complete homework assignment notebook, and to remain on task. The child's IEP annual goals for the 1995-96 school year included increasing his reading comprehension to the 6.5 grade level, his writing skills to the 65% level on the Regents Preliminary Competency Test, and his mathematical computation and concept skills to the ninth grade level. It also included two very general goals relating to social studies and science. The child's 1994-95 annual goal for improving his study skills was incorporated in the new IEP, with higher standards of proficiency for the two short-term objectives supporting the goal. The 1995-96 IEP provided that the child would again receive individual counseling for 30 minutes once every other week, with some counseling goals as had appeared on the 1994-95 IEP. After the child's 1995-96 IEP had been prepared, his special education teacher reportedly annotated the child's 1994-95 IEP to indicate that he had achieved virtually all of his short-term instructional objectives for the annual goals relating to his academic and study skills, during the 1994-95 school year.
Petitioner commenced an action against respondent in the U.S. District Court for the Southern District of New York. In early 1995, the parties agreed to have the child independently evaluated by Dr. Judith Birsh, and that this proceeding and the Federal court action would be stayed until Dr. Birsh completed the evaluation. On June 12, 1995, Dr. Birsh recommended that the child should attend the Kildonan School for at least two years, or in the alternative, that he receive a 1:1 tutorial in a multi-sensory structured language program during the Summer of 1995, and direct instruction in social studies, science, literature and mathematics by teachers having a thorough knowledge of the structure of language and the methodology for working with dyslexic students, during the 1995-96 school year. The Federal court held that it lacked jurisdiction to grant the relief which petitioner sought because petitioner had failed to exhaust her administrative remedy, and dismissed petitioner's complaint on July 24, 1995 (Schlude v. Northeast Central School District, 892 F. Supp. 580).
When the hearing in the proceeding resumed on September 25, 1995, petitioner had unilaterally enrolled the child, at her expense, in the Kildonan School for the 1995-96 school year. She sought an order directing respondent to pay for the child's tuition in the private school. The parties agreed that the hearing officer should determine petitioner's claim for tuition reimbursement for the 1995-96 school year, and on October 23, 1995, respondent appointed the hearing officer to conduct a hearing for that purpose. The hearing concluded on April 6, 1996.
The hearing officer rendered his decision on May 13, 1996. He found that the child's IEP for the 1994-95 school year did not adequately describe the child's academic deficits, or his social development. He also noted that the IEP did not list the results of the child's IQ testing by Dover in January, 1994. The hearing officer upheld the appropriateness of the IEP's annual goals and short-term instructional objectives. He noted that the CSE chairperson had testified at the hearing that the boy's organizational needs would be addressed during the 1994-95 school year in the special education class in which he was enrolled for a portion of each day. The hearing officer concluded that the special education teacher's assistance in making sure that the child had the assignments for each of his classes constituted consultant teacher services, which were not, but should have been, indicated on the IEP. He also found that the IEP did not comply with the Federal and State regulatory requirement that the CSE specify the extent to which the child would be able to participate in the regular education program (34 CFR 300.346 [a] ; 8 NYCRR 200.4 [c]  [iv]). Nevertheless, the hearing officer declined to make a finding about the appropriateness of the child's IEP for the 1994-95 school year, on the grounds that the school year had ended and the IEP had been replaced by an IEP for the 1995-96 school year.
With regard to the 1995-96 school year, the hearing officer found that the IEP which the CSE had prepared for the child was defective because it did not identify the child's deficits in reading and writing as his individual needs. He also found that the IEP did not accurately report the child's present levels of performance. Although he found that respondent had failed to meet its burden of proof with respect to the appropriateness of the program recommended by the CSE because of the deficits in the child's IEP, the hearing officer nevertheless found that the recommended program was reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ). He premised his finding that the recommended program for the 1995-96 school year would have been appropriate for the child upon a finding that the child's educational deficits had been addressed by respondent during the preceding school year.
A board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, _____ U.S. _____, 114 S. Ct. 361 ). Although the hearing officer found that respondent had not met its burden of proof with respect to the first Burlingtoncriterion, i.e., whether the services offered by the board of education were appropriate, he denied petitioner's request for tuition reimbursement upon his findings that she had not prevailed with respect to the second and third Burlington criteria. He found that petitioner had not shown that the child could only obtain educational benefit if he received instruction using the Orton-Gillingham methodology, as provided at the Kildonan School. He also found that the Kildonan School was too restrictive a placement for the child. With regard to the third Burlington criterion, i.e., whether equitable considerations supported petitioner's claim, the hearing officer found that they did not because petitioner had declined to attend the June 10, 1996 CSE meeting at which the child's IEP for the 1995-96 school year was prepared.
In its cross-appeal, respondent contends that the hearing officer erred in finding that the child's IEPs for the 1994-95 and 1995-96 school years failed to accurately reflect the results of evaluations to identify his educational needs, that any IEP annual goal or short-term objective was unrelated to the child's educational deficits, or that the CSE had failed to recommend appropriate special education services for the child. I will consider respondent's contention first because it has the obligation to show that it offered the child an appropriate education program, and if it is able to do so, it would preclude petitioner's claim for tuition reimbursement.
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
With respect to the child's IEP for the 1994-95 school year, I note that respondent argues that the hearing officer's findings about the IEP were wrong, while petitioner argues that the hearing officer erred in finding that the controversy about the IEP was moot. Although the passage of time has rendered the dispute about the 1994-95 IEP largely moot, I do agree with the parties that it is necessary to consider the appropriateness of the child's program during the 1994-95 school year, in judging the efficacy of the program which the CSE recommended for the 1995-96 school year. I also note that the some of the deficits which the hearing officer noted in the 1994-95 IEP were also present in the 1995-96 IEP.
Neither IEP included the results of any IQ testing, or otherwise indicated the child's cognitive skills. I agree with the hearing officer that this would be useful information for the child's teachers to have in planning lessons for the child. The IEPs for both school years described the results of the child's performance on some standardized achievement tests. However, neither IEP included the results of his performance on the Test of Written Language in January, 1994, on which he achieved standard scores of less than 10 for vocabulary, thematic maturity, spelling, word usage and style. While one could infer from the annual goals for writing which appears in both IEPs that the child had a deficit in writing, I find that neither IEP adequately described the extent of the child's deficits in written language. The Dover school psychologist who evaluated the child in January, 1994 had reported that the child's ability to independently read appeared to be affected by either memory or attention deficits. Although respondent's IEPs for 1994-95 and 1995-96 indicated that the child was taking Ritalin, neither IEP indicated the extent to which the child's alleged ADD might have affected his ability to read. I note that at the hearing petitioner testified that no physician had ever diagnosed the child as having ADD, although a physician had prescribed Ritalin for him. I find that the absence of information about the child's alleged ADD on his IEPs was a significant omission, especially in light of his resource room teacher's testimony about the child's reported unwillingness or inability to remain on task and cooperate with her by the fifth period of the school day in the 1994-95 school year. Although both IEPs briefly described the child's social development, those descriptions did not, in my judgment, provide an adequate explanation for providing him with counseling during both school years.
IEP annual goals are statements which describe what a child with a disability can reasonably be expected to accomplish within a twelve-month period, and must be directly related to the child's present levels of performance (34 CFR Part 300, Appendix C, Question 38). Short-term instructional objectives are measurable, intermediate steps between the child's present levels of performance and the annual goals set for the child (34 CFR Part 300, Appendix C, Question 39). The child's IEP which respondent's CSE prepared in March, 1994 for the remainder of the 1994-95 school year included three annual goals for language arts, related to improving the child's vocabulary, composition writing and reading skills. There is little information in the record to demonstrate the extent to which the child achieved those goals, which would be necessary to determine the appropriateness of the child's two annual IEP goals for the 1994-95 school year: to increase the child's reading comprehension skills, and to increase his writing skills.
Although the child had achieved a standard score of 6 for spelling on the Test of Written Language in January, 1994, this significant deficiency in spelling skills was not addressed by either an annual goal or short-term objective in the child's IEP for the 1994-95 school year. The child's IEP goal for reading in his 1993-94 IEP was supported by the two objectives of improving his decoding skills and his ability to identify the main ideas in reading passages. For the 1994-95 school year, the CSE chairperson testified that the emphasis was to be upon improving the child's comprehension skills. However, one of the objectives supporting the child's reading comprehension annual goal for the 1994-95 school year was that the child would " ... apply concepts of structural analysis to decode words with an 80% accuracy level." Although that objective might well be appropriate for a structured language approach, such as the Orton-Gillingham methodology, the CSE had, in effect, concluded that the child did not require that kind of approach, and that his reading and language needs would be met in respondent's 12:1+1 class. In view of this child's prior history of having significant deficits in reading decoding and spelling deficits, I find that his IEP goals and objectives for the 1994-95 school year did not adequately address his needs by focusing upon offsetting or reducing the problems resulting from his disability which interfered with his educational performance (34 CFR Part 300 Appendix C, Question 40).
At the hearing in this proceeding, the CSE chairperson testified that it was respondent's practice to have the child's teacher annotate the child's IEP at the end of the school year to document the extent of the child's attainment of his IEP annual goals and short-term objectives. However, it is necessary that the CSE have that information at its annual review, when it prepares the child's IEP for the following year. Respondent introduced into evidence an annotated version of the child's IEP for the 1994-95 school year, which was apparently annotated after the CSE had prepared the child's IEP for the 1995-96 school year. At the hearing, the CSE chairperson testified that its annual review in June, 1994, the CSE had not gone through each goal and objective of the extant IEP before drafting new goals and objectives for the subsequent year. Having reviewed the testimony of the CSE chairperson and the child's special education teacher, I find that respondent has not demonstrated that its CSE was aware of the child's attainment of his 1994-95 IEP annual goals and short-term objectives, when it prepared his 1995-96 IEP annual goals and objectives. In addition as I have noted above, the child's 1995-96 IEP annual goals and short-term objectives did not adequately address his special education with respect to reading decoding and spelling.
To be appropriate, an IEP must also provide an appropriate set of special education services to address the child's identified special education needs. This child's special education needs involved his difficulty in processing language, as evidenced by the deficiencies in his reading, spelling, and writing skills. As noted above, there was a distinct possibility that the child's academic performance was held back because of ADD, or at least a short attention span, and poor organizational skills. For the 1994-95 school year, the CSE recommended that the child's special education needs be addressed by receiving primary special education instruction in English and social studies, and counseling once every other week. During the period from March, 1994 to June, 1994, the child had received primary special education instruction in English and social studies, as well as support from his special education teacher or her aide in the child's adaptive regular education mathematics and science class and one period per day of resource room services. Despite all of these IEP services, his special education teacher reported that the child continued to struggle with organization and study skills (Exhibit 5). The child failed adaptive mathematics, and achieved final grades of 73 in special education English, 71 in special education social studies, and 65 in adaptive science. I must also note that the child had received specialized instruction to improve his reading, spelling and writing skills in the 3:1 class during the Spring of 1994, although that instruction had not been recommended by the CSE. It is clear from the record that the CSE was aware that the child would not receive that specialized assistance during the 1994-95 school year, despite his continuing need for it. I find that respondent has failed to demonstrate that it offered the child an appropriate education program during the 1994-95 school year.
For the 1995-96 school year, the CSE recommended that the child receive even less special educational support, because it recommended that the child be mainstreamed for all ninth grade academic subjects, except social studies. Although the child appeared to have achieved some growth in his reading and mathematics skills, as evidenced by the results of the Woodcock Reading Mastery Test and Key Math Test which were administered to him in January, 1995, his skills were nevertheless below his grade level. Indeed, his reading skills were reported to be at the fifth grade level in January, 1995. Although the child's IEP indicated that he would receive resource room support, it did not indicate the amount of that support, and respondent did not provide that information at the hearing. In any event, there is a substantial question of whether the child's reading, spelling, and writing deficits could be adequately addressed without primary special education instruction. I have considered the testimony of the child's eighth grade special education teacher, who asserted that the child needed to increase the level of his reading and writing skills to the next level, in order to prepare for the Regents Preliminary Competency Test. However, I have been unable to find a satisfactory explanation of how that goal would be attained in the program which the CSE recommended, which would at best provide an unspecified amount of supplementary special education instruction in those basic skills. Upon the record before me, I find that respondent has not demonstrated that it offered the child an appropriate educational program for the 1995-96 school year. Therefore, respondent's cross-appeal from the hearing officer's decision must be dismissed.
My finding that respondent failed to offer the child an appropriate educational program for the 1995-96 school year means that petitioner has prevailed with respect to the first criterion for tuition reimbursement under the Burlington decision. She bears the burden of proof with regard to the appropriateness of services which she obtained for the child at the Kildonan School during the 1995-96 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, she must show that services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29).
Petitioner challenges the hearing officer's determination that she did not meet her burden of proof with respect to the second of the three Burlingtoncriteria for tuition reimbursement. She contends that the Kildonan School met her son's needs, and that the hearing officer disregarded her son's need to remediate the deficiency in his reading decoding skills. Petitioner relies upon the testimony of Dr. Judith Birsh, the independent evaluator who reviewed the child's records in June, 1995, and the testimony of Ms. Katherine Schantz, the Dean of the Kildonan School, as well as various reports from the private school.
Dr. Birsh opined that the child required a highly structured, organized, consistent environment in which his intellectual and basic literacy needs could be addressed simultaneously. She explained that petitioner's son needed intensive remediation in the elements of language, spelling, and writing, and that he needed to be taught how to comprehend the information provided in different kinds of reading materials. Dr. Birsh testified that the child needed to absorb information in small units, and that the traditional high school curriculum would not provide him with an opportunity to do so. She also opined that the child's reading skills were not sufficiently advanced to prepare him for a ninth grade curriculum. Dr. Birsh testified that for the 1995-96 school year, the child needed alternate teaching strategies, a special curriculum, and different methods of having his academic work assessed. She opined that the Kildonan School was appropriate for the child because it provided structure, intellectual stimulation, and addressed the child's language problems.
Ms. Schantz testified that the Kildonan School was a registered high school which offered a college preparatory curriculum to students with learning disabilities. She testified that language-based instruction was provided in classes of 5-12 students, by teachers who used multisensory teaching techniques. She further testified that while student reading assignments might be less than those which students would received in regular high schools, the course content was nevertheless the same as a regular high school would provide. Each Kildonan student also received a daily 1:1 "tutorial" in which the Orton-Gillingham methodology was used to improve the student's reading and writing skills. Ms. Schantz testified that this child's tutorial also addressed his spelling deficits.
The record reveals that the child was enrolled in global studies, art, earth science, pre-algebra, and American literature courses in the Kildonan School, during the 1995-96 school year. In November, 1995, the child's 1:1 tutor reported that the boy's oral reading skills had improved significantly. She also reported that the child continued to have difficulty creating and expanding sentences, when writing. In February, 1996, the tutor reported that the child's oral reading skills continued to improve, and that his decoding skills and reading speed had increased. She also reported that his vocabulary skills had improved, but that he continued to have difficulty writing certain kinds of sentences. The child's teachers reported that the boy's work and work habits were generally satisfactory. In December, 1995, the child achieved grade equivalent scores of 7.6 in word identification, and 6.3 in word attack skills on the Wide Range Achievement Test, and 6.7 in vocabulary and 5.1 in comprehension, on the Gates-McGinitie Reading Test. I note that another private evaluator, who tested the child in March, 1996, reported that he achieved substantially higher scores in reading.
The hearing officer noted that for purposes of obtaining tuition reimbursement, unilateral parental placements must be made in the least restrictive environment (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub nom., Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). However, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). In this instance, I find that petitioner's son had significant special educational needs which had only been partially addressed in his public school placements. Although he has shown that he could function at least minimally in a public school with some special education support, the child nevertheless continued to lag well behind his peers in acquiring the basic skills which would enable him to successfully complete a high school curriculum, and acquire the skills necessary for adult life. The Kildonan School offered him the opportunity to pursue an academic curriculum, while simultaneously providing him with the remedial services which he required to be more proficient in reading, writing, and spelling. In the absence of any evidence in the record of a less restrictive, yet equally effective educational program for the child, I find that the Kildonan School was the least restrictive environment for the child, and provided him with an appropriate education. Therefore, petitioner has prevailed with regard to the second Burlington criterion for tuition reimbursement.
Petitioner must also show that equitable considerations support her claim for tuition reimbursement. The hearing officer found that equitable considerations did not support petitioner's tuition claim because petitioner declined to attend the CSE meeting on June 10, 1996, when her son's IEP for the 1995-96 school year. Federal regulations require that a child's parent be invited to attend a CSE meeting (34 CFR 300.344). However, the regulations do not preclude a CSE from conducting its business in the parent's absence, if the CSE can document its attempts to have the parent attend its meeting (34 CFR 300.345 [d]). Petitioner testified at the hearing that she was precluded by illness from attending an annual review "preconference" with the child's teacher, and that she did not attend the CSE's annual review meeting because it would have been inappropriate to do so since she was suing the school district in Federal Court. While I do not agree with petitioner's statement that it would have been inappropriate for her to attend the CSE meeting, I note that the CSE was not hindered by her absence in performing its duty to make a timely recommendation for the 1995-96 school year. Upon the record before me, I find that equitable considerations support petitioner's claim for tuition reimbursement.
Finally, I note that petitioner asserts in her petition that she seeks review of the hearing officer's finding that the issue of the child's "status quo", or pendency placement during the 1994-95 school year was moot, solely for the purpose of supporting her claim for tuition reimbursement for the 1995-96 school year. In view of my determination that petitioner is entitled to tuition reimbursement for the 1995-96 school year, I need not address the pendency placement issue. I have considered petitioner's other contentions and requests for relief, and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the hearing officer's decision finding that petitioner was not entitled to receive tuition reimbursement for the 1995-96 school year is hereby annulled, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioner in the amount of $18,250 for the cost of her son's tuition in the Kildonan School during the 1995-96 school year, upon presentation by petitioner to respondent of proof of such expenditure.