Application of the BOARD OF EDUCATION OF THE HYDE PARK 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
Shaw and Perelson, LLP, attorneys for petitioner, David S. Shaw, Esq. and Lisa A. Schreiner, Esq., of counsel
Rosa Lee Charpentier, Esq., attorney for respondent
Petitioner, the Board of Education of the Hyde Park Central School District, appeals from an impartial hearing officer's decision which ordered petitioner to reimburse respondent for his expenditures for his son's tuition in the private school in which respondent had unilaterally enrolled the boy for the 1995-96 school year. The appeal must be dismissed.
Respondent's son is fourteen years old. He was initially evaluated because of suspected delays in visual motor development, when he was screened for entrance into kindergarten in the Red Hook Central School District. The child was reportedly placed in a prekindergarten program for the 1987-88 school year, and attended kindergarten during the following school year. The Red Hook Central School District reportedly provided resource room services to the child when he was in the first grade during the 1989-90 school year.
In 1990, respondent moved to the Hyde Park Central School District, where his son was classified as learning disabled, and enrolled in a self-contained special education class for basic skills. The boy was reportedly mainstreamed for second grade science and social studies. He also received occupational therapy as a related service. The child was privately tutored in reading during the second grade.
In 1991 at the end of the second grade, the child was evaluated by a private psychologist, who had initially evaluated the child in December, 1989. In the earlier evaluation, the child had achieved a verbal IQ score of 95, a performance IQ score of 70, and a full scale IQ score of 80. In the 1991 evaluation, the child achieved a verbal IQ score of 105, a performance IQ score of 71, and a full scale of 87. The psychologist, Dr. Salvatore Massa, reported that the child's ability to perform tasks involving arithmetic reasoning, and his ability to make social/practical judgements, had significantly improved since the previous evaluation. However, the child exhibited increased difficulty performing tasks requiring attention to visual detail, and tasks requiring spatial abilities. Dr. Massa noted that the child's spatial abilities were below the borderline level. He explained that while the boy's verbal ability gave the illusion of an adequate level of functioning, his ability to learn was significantly hampered by the deficits in his visually related skills. He noted that the child's score on a test of his visual motor integration skills in 1991 was lower than it had been when he was tested in 1989. Those skills were delayed by approximately four and one-half years, despite the fact that he was wearing corrective lenses. I note that a subsequent individualized education program (IEP) for the child indicated that he used bifocal lenses. On the Woodcock-Johnson Tests of Achievement in 1991, the child achieved grade equivalent scores of 1.4 in reading, 1.2 in mathematics, 1.4 in written language, and 5.1 in knowledge. Dr. Massa reported that the child's performance in reading was hampered by his poor word attack and contextual reading skills. In addition, the child's poor knowledge of grammar and punctuation interfered with his ability to read and write. He also exhibited weakness in solving mathematical word problems and counting money. Projective testing revealed that the child exhibited a relatively poor self-image and a high level of frustration regarding his academic performance. Dr. Massa recommended that the child be placed in a 12:1+1 special education class, with mainstreaming when appropriate. He also recommended that the child be instructed with the use of multi-modal techniques, and that information be provided to him orally, with simple, concrete visual stimuli as reinforcement.
During the 1991-92 school year, the child was again placed in a self-contained class, but was mainstreamed for third grade social studies. He continued that program for the fourth grade during the 1992-93 school year. At the hearing in this proceeding, the child's mother testified that the child made little academic progress in the fourth grade, and that he began to be frustrated and angry. The record reveals that the child achieved grade equivalent scores of 1.8 in September, 1992, and 2.3 in April, 1993, for reading comprehension on the Woodcock Reading Test. When his mathematics skills were assessed near the end of the fourth grade in April, 1994, the child achieved a grade equivalent score of 2.8.
The child remained in a special education class for the fifth grade during the 1993-94 school year, but he was reportedly mainstreamed for science, social studies, and special subjects. He reportedly received 30 minutes of remedial instruction twice per week during that school year. In December, 1993, one of the two private tutors who had worked with the child when he was in the second grade reported that his recent re-evaluation of the child's academic progress revealed that the boy had made only minimal progress, and that oral reading and reading comprehension skills were at the pre-primer level. The tutor suggested that the child be instructed in reading with a phonetic, multi-sensory approach, such as the Orton-Gillingham technique. The child's reading comprehension and mathematics skills were reported to be at the 2.8 and 3.0 grade levels, respectively, in September, 1993. When he was tested in March, 1994, the child achieved grade equivalent scores of 3.3 in reading comprehension, and 3.5 in mathematics, or approximately two years below his actual grade level. The child's raw score of 13 on the Pupil Evaluation Program Sixth Grade Reading Test was in the first percentile.
In June, 1994, the child's triennial psychological evaluation was performed by Dr. William Robelee, one of petitioner's school psychologists. The boy achieved a verbal IQ score of 92, a performance IQ score of 63, and a full scale IQ score of 76. Dr. Robelee noted that the child's performance was below age level expectations on tasks requiring an ability to recall information learned over time, to mentally compute arithmetic problems, and to maintain attention for short-term recall and reprocessing of information. He further noted that the child's low performance in mathematics appeared to reflect the child's weakness in basic computational skills, and his tendency to respond quickly. Dr. Robelee indicated that the child demonstrated significant weaknesses on a variety of tasks requiring him to use visual perceptual organizational skills.
On achievement tests, the child's letter-word identification skills were at the 2.4 grade level, while his passage comprehension skills were at the 3.0 grade level. Dr. Robelee noted that the child could accurately identify individual letter sounds, but he was unable to connect the sounds into the completed word. He reported that the child had achieved a grade equivalent score of 1.5 in written expression, while noting that the child had been expected to write a dictated sentence at the 3.0 grade level with 95 percent accuracy as part of his specialized reading program for the 1993-94 school year. In mathematics, the child achieved grade equivalent scores of 3.0 for calculation, and 3.3 for applied problems. Dr. Robelee noted that the child had improved on 10 of 13 objectives in his special education mathematics program. He further noted that the boy had achieved grade equivalent scores of 4.5 in science, and 7.0 in social studies, but that the boy's teachers had reported that his performance in school had been impaired by his failure to bring necessary work to class. Dr. Robelee contrasted the results of the child's achievement tests in 1991 and 1994, and he reported that the child had made progress in all academic areas, except written language.
Although the child reportedly interacted well with others and generally followed daily routines in school, Dr. Robelee reported that the child expressed dislike for most of his academic tasks, and often sought to avoid work. Dr. Robelee recommended that specific goals which were related to the child's academic needs be addressed through a combination of intensive remedial reading, special education, and regular education in areas of strength and interest for the child. He suggested that the child be constructively confronted about his attitude towards his disability, and that individual counseling might be provided to the child.
In June, 1994, the child's reading teacher reported that the child had not achieved the levels which she had expected of him with regard to basic sight vocabulary, vowel sound recognition, and accuracy of comprehension. The teacher indicated that the child had been excessively absent during the two prior months, which had affected his performance. During the Summer of 1994, the child was enrolled in a twice per week program of remedial instruction provided by petitioner's reading teacher. The teacher reported that the child had made progress during the summer in a phonologically based reading program, but he had difficulty working independently on second to third grade level comprehension activities. She further reported that the child had difficulty writing stories, and had no keyboarding knowledge. She opined that the child would need a great deal of support in the 1994-95 school year.
For the 1994-95 school year, petitioner's committee on special education (CSE) recommended that the child's educational program be significantly changed. Instead of a self-contained special education class, the child was enrolled in a regular education sixth grade class in petitioner's Haviland Middle School. The CSE recommended that the child receive the services of a "Resource Room/Consultant Teacher in class ... all day" (Exhibit 18). Notwithstanding that designation, I note that the child's special education teacher, Ms. Theresa Buso, testified that she did not remove the child from class to support his regular education program, as would typically be the case for a resource room program. Ms. Buso initially provided direct instruction in reading, and thereafter provided consultant teacher services to the child, when a regular education reading teacher was assigned to instruct the child in reading. The CSE also recommended that the child receive occupational therapy once per week. In April, 1995, the CSE recommended, and the boy's parents agreed, that occupational therapy be provided to him only on a consultant basis once per month. The child's IEP indicated that books on tape, if available, would be provided to him. In April, 1995, the IEP was amended to indicate that the child's daily homework assignments would be tape recorded, as needed. His IEP was also amended in November, 1994 to exempt him from participation in petitioner's exploratory foreign language program in the sixth grade.
The child's IEP for the 1994-95 school year had annual goals for "thinking behavior" (organization and expression), "integrated sciences" (understanding of social studies and science concepts), writing, spelling (complete work at the third grade level), reading, language development (reading and writing), keyboarding, and visual perception on the child's IEP for the 1994-95 school year. The child's six annual goals in reading involved improving his decoding and comprehension skills, as well as improving his sight word vocabulary to a third grade level. His IEP indicated that the child would continue to use the Recipe for Reading program, a phonetically based reading program, which he had reportedly begun to use in the 1993-94 school year.
In October, 1994, the child was evaluated at his parents' expense by Ms. Margaret Mabie, who is an educational consultant. She reported that the child had achieved grade equivalent scores of 2.2 in word recognition, 1.6 in word attack, 2.3 in word comprehension, and 2.9 in passage comprehension on the Woodcock Reading Mastery Test. Ms. Mabie indicated that the child lacked a secure knowledge of phonics, notwithstanding his prior training in word attack techniques. On the Slingerland Screening Tests, the child made errors in near-point copying, visual matching, and perceptual memory tasks. He also had some difficulty performing certain tasks which required him to use his auditory skills. Ms. Mabie reported that the child had difficulty sequencing the sounds in multi-syllabic words. She also administered the Spadafore Diagnostic Reading Test to the child. His performance on the independent level (the level of greatest skill) was at the primer level in word recognition, oral reading, and silent reading, but at the second grade level for reading comprehension. However, his independent level listening comprehension skills were reported to be at the ninth grade level. Ms. Mabie also reported that the child had misspelled five of six words at the first grade level of a spelling test.
Ms. Mabie opined that the child had a specific language disability, and that he required a more intensive and consistent instructional program for reading, writing, and spelling than he was receiving. She further opined that the boy's instructional program should be provided by someone who had been trained to use the Orton-Gillingham technique, and that program be provided for one hour per day. Ms. Mabie indicated that the "ideal" solution would be to enroll the child in a school which specialized in teaching dyslexic students. She further recommended that the child be taught keyboarding skills in a formal, organized manner, and that he receive specific assistance from the school in developing his organizational skills.
The child's mother asked the CSE to meet to discuss Ms. Mabie's evaluation report. The requested meeting was held on March 3, 1995, at which time the CSE reportedly agreed to have a subsequent meeting with Ms. Mabie. The CSE chairperson and two of the boy's teachers thereafter met with Ms. Mabie. On April 7, 1995, the CSE reviewed the child's IEP, and made certain revisions. The minutes of the CSE meeting reveal that the CSE discussed the fact that the child was not completing all of his homework assignments , and recommended that he be allowed to tape record his homework assignments. It also agreed to consider whether the size of the child's instructional group for reading could be reduced, but it did not make any change in the child's reading program.
The child's report card for the 1994-95 school year reveals that he was absent from school on 26 days, and late for school on 31 days. Some of his teachers testified at the hearing that the child's tardiness negatively affected his performance in school because he needed time in the morning to become organized. The child was described in his report card as "progressing with support" in language, mathematics, social studies, and science. His performance in special subjects, such as music and art, was satisfactory. In reading, the child mastered a third grade level sight word list, which was one of his IEP annual goals. At the hearing, Ms. Rose Wiley, the child's reading teacher, testified that she had used Power Phonics, a reading program for students who have word recognition deficits, with respondent's son. However, the child's word recognition skills remained at a grade equivalent of 3.2, so that he made no gain during the 1994-95 school year. Ms. Wiley asserted that the child had made progress in semantic and syntactical cuing, and that his silent reading skills had improved to a grade level of 5.2, or approximately two-years, between December, 1994 and June, 1995. In spelling, the child reportedly made progress in learning various spelling rules. However, his special education teacher noted on the child's IEP that the child inconsistently applied those rules to his written work. She also noted that the child did not use cursive writing, although one of his IEP goals had been to use cursive writing at all times, with teacher prompting. The child averaged eight words per minute in keyboarding by January, 1995, but his speed did not improve during the remainder of the school year.
On July 24, 1995, the CSE met with the child's mother to prepare the child's IEP for the 1995-96 school year. The CSE recommended that the child remain classified as learning disabled. It further recommended that the child be enrolled in regular education seventh grade classes in the Haviland Middle School, and that he receive resource room/consultant teacher services for four periods per day. In the portion of the IEP indicating the extent of the child's participation in regular education programs, the CSE provided that the child would receive reading on a daily basis. At the hearing, the CSE chairperson explained that the remedial reading teacher who had worked with the child for most of the 1994-95 school year would have continued to instruct him in reading for one period per day during the 1995-96 school year. The CSE also recommended that the child continue to receive consultant occupational therapy, but on a twice per month basis. As in the previous IEP, the child's IEP for the 1995-96 school year provided for various testing modifications, including having test questions read to him and his answers recorded, extended time limits, and the use of a calculator. The CSE meeting minutes indicate that the child was to continue to have the use of taped textbooks, as appropriate. The child's IEP included three annual goals for reading, three goals for writing, three goals for mathematics, one goal related to his study and organizational skills, and one goal to improve his library reference skills. The IEP also included three annual goals to improve his social and emotional skills, although the CSE had not recommended that the child receive counseling.
Four days before the CSE met to prepare the child's 1995-96 IEP, his parents unilaterally enrolled him in the Kildonan School, a private school for learning disabled children, which is located in Amenia, NY. The Kildonan School has not been approved by the State Education Department as a school for children with disabilities for the purpose of reimbursing school districts for the cost of the education of children placed in that school. The child's parents incurred an obligation to pay the school the sum of $18,250 for tuition. Petitioner provided daily transportation for the child to the private school during the 1995-96 school year.
By letter dated September 6, 1995, respondent's attorney requested that an impartial hearing be scheduled to review the CSE's alleged failure to provide the child with an appropriate instructional program in reading, spelling, and writing. The attorney indicated that the boy's parents would seek tuition reimbursement at the hearing. The hearing in this proceeding began on October 10, 1995, and it concluded on May 7, 1996. In his decision, which was rendered on July 9, 1996, the hearing officer found that the child's IEP for the 1995-96 school year was inappropriate because it did not provide him with sufficient support to meet his needs in the "inclusion," or regular education, setting which the CSE had recommended for him. Although he did not rule upon the adequacy of the child's IEP for the 1994-95 school year, the hearing officer noted that the IEPs for both school years were similar. He found that the child's program during the 1994-95 school year did not reflect his IEP, and that the child's progress had been inadequately monitored during the year. The hearing officer further found that there was no evidence or reason to believe that the child's educational program would be implemented differently during the 1995-96 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, 510 U.S. 7 ).
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 CSE 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]). The hearing officer found that petitioner had not met is burden of proof on this issue.
The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent 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, the parent must show that the 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). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20). The hearing officer found that the Kildonan School was an appropriate placement for the child, as evidenced by the improvement in the child's skills since his entry into the school. With regard to the issue of the least restrictive environment for this child, the hearing officer found that respondent's son required a more structured setting than petitioner had offered him.
The third, and final, criterion for tuition reimbursement is whether equitable considerations support the parent's claim. The hearing officer found for the parent on this issue. He noted that the school district had ample reason to know of the child's lack of progress and its impact upon his self-esteem, and that the district failed to address the problem. The hearing officer directed petitioner to reimburse the parent, upon proof of his expenditures, for the child's tuition, including the interest which he paid on a loan for that purpose. He also directed the CSE to evaluate the child, before making its next recommendation for the child's educational program.
The Board of Education asks that the hearing officer's decision be annulled on the ground that the IEP which its CSE prepared for the 1995-96 school year was appropriate to meet the child's educational needs, and that the child's unilateral placement by his parents in the Kildonan School was inappropriate for him. As noted above, the Board of Education bears the burden of demonstrating the appropriateness of the educational program which its CSE has recommended. 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).
The child's evaluations, as well as his prior academic performance, reveal that he had significant delays in his reading, writing, and mathematics skills, which appeared to have been impaired by deficits in his visual perceptual, language, and organizational skills. Although the boy's IEP referred to the results of his triennial evaluation in June, 1994, his performance on two reading tests in May and June, 1995, and certain teacher reports at the end of the 1994-95 school year, I find that the IEP failed to provide adequate information about the child's present levels of performance and individual needs (cf. 8 NYCRR 200.4 [c][i]). The IEP provided some information about the child's word identification and passage comprehension skills in reading, but failed to adequately identify the specific reading skills to be addressed by his teachers pursuant to the IEP during the 1995-96 school year. The IEP descriptions of the boy's written language and mathematics skills did not identify the grade level at which he was currently working, or the nature of his deficits, in either area. The CSE's failure to adequately describe the child's present levels of performance and individual needs is especially significant because of the type of program which the CSE recommended for the child. Although the CSE recommended that the child be enrolled in seventh grade classes, it did not apparently expect that he would perform at the level of his seventh grade peers, as would be the expectation if he were mainstreamed with consultant teacher services. Instead, the CSE apparently intended an "inclusion placement" in the seventh grade classes. In an inclusion program, a child with a disability is expected to achieve at a level consistent with the child's ability, rather than the level of achievement expected of his or her non-disabled peers (Application of a Child with a Disability, Appeal No. 94-17).
Ms. Buso, the child's special education teacher, testified that she had modified the child's assignments during the 1994-95 school year, which would presumably have been done again during the 1995-96 school year. Despite the CSE's failure to identify the grade level at which the child was expected to perform, when it prepared his annual goals and short-term instructional objectives, it is apparent from the record that the CSE did not expect that he would perform each of the tasks outlined in his IEP at the seventh grade level. For example, one instructional objective indicated that the boy would spell sight words : ... at an appropriate grade level with 80% success." The evidence in the record before me suggests that the child's spelling skills were at the third or fourth grade levels. The child's sixth grade language arts teacher testified that the child may not have been graded at the sixth grade level, and the content of his written work was definitely below grade level. The child's sixth grade social studies teacher testified that third or fourth grade level written materials were used to teach the child sixth grade social studies concepts. The teacher further testified that the child's written work was not at the sixth grade level.
Once a child's special education needs have been identified, and one or more goals have been formulated to address those needs, the CSE must recommend appropriate special education services to afford the child a reasonable opportunity to achieve his or her annual goals. This child clearly needed special education for reading. However, his IEP indicated that the child would receive remedial reading assistance, as part of his regular education program. I note that Ms. Wiley, who was to instruct the child in reading during the 1995-96 school year, was not certified as a special education teacher by the State Education Department. Although Ms. Wiley had used a phonetically based reading program with the child in the 1994-95 school year, the results which the child had achieved on the Woodcock Reading Mastery Test in October, 1994 and July, 1995 indicate that he made very little progress during that school year. In October, 1994, the child achieved grade equivalent scores of 1.6 in word attack, 2.2 in word identification, and 2.9 in passage comprehension. In July, 1995 he achieved grade equivalent scores of 1.4 in word attack, 2.4 in word identification, and 3.0 in passage comprehension. The corresponding percentile scores also indicate that the child's progress in reading was minimal. Upon the record before me, I find that the hearing officer correctly concluded that the Board of Education had failed to meet its burden of proving that it had offered the child an appropriate educational program for the 1995-96 school year.
Petitioner challenges the hearing officer's conclusion that the child's placement by his parents in the Kildonan School was appropriate for him. It asserts that there is no evidence in the record about the manner in which the private school addressed the deficit in the child's reading skills, and that the hearing officer's determination that the boy's writing skills had improved while attending the private school is unsupported by the record. I disagree with petitioner's assertion. At the hearing in this proceeding, Ms. Katherine Schantz, the Dean of the Kildonan School, testified that the private school provided the child with a multisensory, highly structured program of instruction, in classes of no more than eight children. She indicated that the Orton-Gillingham methodology was used at the private school to address the phonological processing and organizational processing deficits of the school's students. The child was enrolled in science, history, and literature classes. In addition, he received 1:1 instruction in reading, spelling, and writing during a daily tutorial class. Ms. Schantz testified that approximately 70% of the child's homework assignments during each school week related to improving his reading, spelling and writing skills. She further testified that the child's homework assignments in his content classes were prepared by his tutor to be consistent with the child's reading and writing skills. On March 3, 1996, the Woodcock Reading Mastery Test was again administered to the child. He achieved grade equivalent scores of 3.0 in word attack skills, 3.3 in word identification skills, and 3.1 in passage comprehension skills. Those scores, when compared to the scores which he had achieved on the same test in July, 1995, afford a basis for concluding that the private school was addressing his special education needs with regard to reading.
With regard to the child's handwriting skills, I note that both parties submitted samples of the child's writing. While petitioner's Exhibit 22 supported its contention that the child had received instruction in cursive writing at least by the fifth grade, parent's Exhibit X revealed that the child's cursive writing had significantly improved by February, 1996. Petitioner was afforded an opportunity to establish the circumstances under which Exhibit X was prepared. I have no reason to doubt that Exhibit X fairly reflects the child's handwriting ability as of February, 1996, and I find that his handwriting had improved by that date, when it is compared to the handwriting set forth in Exhibit Y.
Petitioner also challenges the hearing officer's decision on the ground that he allegedly failed to determine whether the child's placement in the Kildonan School was consistent with the requirement that children with disabilities be educated in the least restrictive environment, which applies to parental, as well as school district, placements (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 Central School District et al., 92-C.V.-6286 [W.D.N.Y., 1994]). The Kildonan School serves learning disabled children, most of whom have been identified as children with disabilities by their respective CSE's. Petitioner contends that the hearing officer was required to find that the child could not benefit from any regular education instruction, before finding that the Kildonan School was appropriate for the child.
This child received instruction in the core academic subjects in self-contained special education classes for most of his elementary school career. Although he was assigned to regular education classes for academic subjects during the 1994-95 school year, I must note that neither the documentary nor testimonial evidence in the record before me clearly demonstrates the extent to which the child benefited from such instruction. Whenever possible, children with disabilities should be educated with their non-disabled peers, provided that their special education needs are adequately addressed. I have already found that petitioner's proposed program for the child during the 1995-96 school year would not have met his special education needs. The boy is now almost of high school age, yet he has early elementary school level reading and writing skills. I find that he had intensive special education needs which were appropriately addressed in the specialized facility which his parents had selected for him (Applications of a Child with a Disability and the Board of Education of the Morrisville-Eaton Central School District, Appeal Nos. 96-21 and 96-23).
Petitioner also argues that equitable considerations do not support the parent's claim for tuition reimbursement. It premises its argument largely upon the fact that the child's mother and her advocate allegedly failed to challenge the contents of the child's IEP for the 1995-96 school year at the July 24, 1995 CSE meeting. However, the record reveals that the child's mother had made known to the CSE her dissatisfaction with the child's instructional program at the March, 1995 CSE meeting. In June, 1995, petitioner's attorney informed the CSE chairperson that the child's parents believed that the 1994-95 IEP was inadequate, and that the parents would attempt to place the child in a private school for the 1995-96 school year and seek reimbursement. The IEP which the CSE prepared for the 1995-96 school year did not materially differ from the IEP for the preceding school year. Under the circumstances, I find that petitioner's argument is without merit. The record reveals that the child's parents cooperated at all times with the CSE.
THE APPEAL IS DISMISSED.