97-081

        Petitioner, the Board of Education of the Arlington Central School District, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondents for the cost of their son’s tuition at the Kildonan School for the 1996-97 school year. The appeal must be dismissed.

        Preliminarily, I will address the procedural issue raised in this appeal. Respondents assert that the hearing officer’s decision was untimely. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). By letter dated November 19, 1996 to petitioner’s CSE, respondents requested an impartial hearing. The record does not reveal when petitioner received the request. Petitioner notified the impartial hearing officer of his appointment by letter dated January 17, 1997. That letter, however, was mailed to an incorrect address. By letter to respondents’ attorney dated February 5, 1997, petitioner confirmed that the impartial hearing was scheduled to commence on February 27, 1997. The hearing officer was copied on that letter, but again, the letter was sent to the wrong address. Both sides appeared on February 27, 1997, but the hearing officer was not present.

        As petitioner’s attorney had some scheduling difficulties, respondents’ attorney suggested that petitioner’s attorney confer with the hearing officer to arrange a date for the commencement of the hearing. During a conference call on March 3, 1997, attorneys for the parties and the hearing officer established March 21, 1997 as the first hearing date. Because of a scheduling conflict, attorney for petitioner requested an adjournment, and the hearing ultimately began on March 24, 1997. Hearings were held on various days in April, May, June and August, all arranged at the mutual convenience of counsel.

        Petitioner has not explained its delay of approximately two months in appointing a hearing officer. In the future, petitioner must take steps to ensure that hearing officers are promptly appointed after requests for hearings are received. The record, however, does reveal that the hearing officer had not received petitioner’s notice advising him that he was appointed to hear this appeal, that he had not received the file in this appeal, and that he was not aware of the February hearing date. During the March conference call, hearing dates were established and waiver of the 45-day rule was discussed. The record shows that the hearing appears to have begun on the first mutually convenient date for the parties and the hearing officer. The remaining hearing dates were also scheduled on mutually convenient dates. While I do not excuse petitioner from its failure to promptly appoint a hearing officer to schedule a hearing, I must note that both parties were equally accommodated in the scheduling process and bear responsibility for the protracted proceeding which has occurred. The hearing lasted nine days and took place over more than four months. I find that under the circumstances, it was impossible for the hearing officer to comply with the 45-day rule.

        Respondents assert that there is no adequate remedy to address the violations of the 45-day rule, and they seek to extend the scope of this proceeding to include reimbursement for the interest on the money they borrowed to pay for their son’s 1996-97 tuition, as well as reimbursement for his tuition at Kildonan for the 1997-98 school year. Respondents' remedy for the delay in the hearing was to appeal to the Commissioner of Education pursuant to Section 310 of the Education Law. As these requests for reimbursement were not before the hearing officer, they are not within the scope of my review (Education Law Section 4404 [2]).

        Respondents first became aware of their son’s disability when he was in kindergarten in the fall of 1985, when they noted that he had delays in learning numbers and the alphabet. The same delays were noted in first grade, which he repeated during the 1987-88 school year. In December 1988, when the child was in the second grade, he was referred to petitioner's committee on special education (CSE). The CSE classified the child as learning disabled, and recommended that he receive resource room services seven hours per week, and speech language therapy twice per week for 30 minutes.

        The CSE also recommended that a neurological assessment of the child be conducted. In his March, 1989 report, the neurologist noted that the child’s academic history revealed that the child was easily distracted, impulsive and had a poor attention span. The neurologist reported that the child showed a variety of signs indicating neurological dysfunction, and he diagnosed the child as having a neurological impairment with learning disabilities and an attention deficit disorder (ADD). He opined that the child would best be served in a self-contained special education class to bolster his self-esteem and desire to participate. The neurologist also indicated that the child would be a candidate for medication, such as Ritalin, if his inattention and distractability impaired his achievement and success.

        For the third grade during the 1989-90 school year, the CSE recommended that respondents' son be enrolled in a special class and continue to receive speech/language therapy. In June of that school year, the CSE conducted a triennial review. On the WISC-R the child achieved a verbal IQ score of 84, a performance IQ score of 105, and a full scale IQ score of 92. These results are similar to the child’s 1987 results, which were a verbal IQ score of 96, a performance IQ score of 91, and a full scale IQ score of 92. On the Woodcock Johnson Test, the child achieved grade equivalent scores of 1.3 in reading, 1.8 in written language, and 3.3 in knowledge. The triennial evaluator noted that the child’s social/emotional development was age appropriate, but that he had low self-esteem. The evaluator recommended that the boy remain in a special education class and receive counseling.

        For the fourth grade during the 1990-91 school year, the CSE recommended a self-contained class, and continuation of speech language therapy. It added group counseling twice per week for 40 minutes to the boy's educational program. The CSE recommended continuation of the same program for the fifth grade during the 1991-92 school year. The CSE also recommended a follow-up neurological evaluation as the child had reportedly demonstrated mood swings and episodes of angry argumentative behavior. In the follow-up neurological report, the neurologist indicated that he believed that the child’s major problem was anxiety fueled by his neurological impairment. The neurologist noted an increase in frustration in the child’s ability to address his disability. The neurologist recommended that the boy take medication to reduce his anxiety and frustration, as well as his distractibility and inattention.

        The child attended petitioner's Titusville Middle School for the sixth through eighth grades. In the sixth grade, the boy was enrolled in special classes for English, science and social studies. Respondents' son was also enrolled in remedial reading and mathematics classes. He also received resource room services five periods per week, and six sessions of individual counseling for 30 minutes per week. He no longer received speech/language therapy. In November, 1992, the CSE recommended a special class for mathematics because the child was experiencing difficulty in regular education mathematics. In April, 1993, the child achieved grade equivalent scores of 1.7 for reading decoding, 3.8 for reading comprehension, 5.2 for mathematical competition and 4.4 for mathematical concepts on the group administered Comprehensive Test of Basic Skills (CTBS).

        In April, 1993, a school psychologist conducted a triennial evaluation. On the WISC-R, the child achieved a verbal IQ score of 106, a performance IQ score of 105, and a full scale IQ score of 105. The child's visual motor integration skills were found to be normal. The school psychologist noted that the child's scores on the information, arithmetic and vocabulary subtests of the WISC-R were low in comparison to his other verbal IQ subtests, which suggested to the psychologist that the child had limited educational opportunities, and possibly poor academic skills or motivation. I note that the record reveals that the boy was absent from school for 37 days during the 1992-93 school year.

        For the seventh grade during the 1993-94 school year, the boy was enrolled in special classes for English, science, social studies and math, as well as remedial reading and mathematics classes. He also received resource room services for five periods per week and individual counseling 40 minutes per week. The child’s reading specialist tested the child three times during his seventh grade year. On the Slosson Oral Reading Test (SORT), the child achieved a grade equivalent score of 1.3 in September, 1993; 1.8 in January, 1994; and 2.4 in May, 1994. He was absent for 19 days during the 1993-94 school year.

        For the 1994-95 school year, the CSE recommended that respondents' son remain in special classes for academic subjects, and receive resource room services 7.5 periods per week. The boy was also enrolled in a remedial reading class. The CSE also recommended that an occupational therapy evaluation and an independent reading evaluation be performed. The occupational therapist, who completed an evaluation in September, 1994, noted that the child demonstrated age-level or above skills in all areas, with the exception of a mild delay in duplicating geometric designs with paper and pencil.

        The CSE met in January 1995, and discontinued the child’s special mathematics class. The CSE met again in March, 1995 to consider the results of the independent reading evaluation which had been done in September and October, 1994, but was not reported until January, 1995. The independent evaluator administered the Woodcock Reading Mastery Test on which the child achieved grade equivalent scores of approximately second grade on all subtests, placing him at or below the 1^st percentile. The evaluator reported that the child’s scores on the other tests she administered were similar to the child’s results on the Woodcock Reading Mastery Test. She indicated that results showed that the child had good listening comprehension skills, but poor reading and spelling skills, primarily because of his inability to decode words. The evaluator opined that although the child had received considerable assistance in school, he needed a different kind of educational program. She recommended an Orton-Gillingham (OG) program, which is a structured, sequential, multisensory approach to teach language arts. In its March, 1995 review of the independent evaluation, the CSE did not recommend that any additional special education services be provided to the child.

        In May, 1995, the child's reading teacher reported that the child had achieved a grade equivalent score of 2.9 on the SORT, an improvement of five months in the year since that test was last administered in May, 1994. On the CTBS, respondents' son earned grade equivalent scores of 2.7 for reading vocabulary, 4.6 for reading comprehension, 6.1 for mathematical computation, and 7.2 for mathematical concepts. The boy was absent from school for 20 days during the 1994-95 school year.

        For the child’s ninth grade year, the CSE recommended a placement in petitioner's south campus high school in which the child was to reportedly receive special education instruction for English, mathematics, social studies and science in "co-taught" classes, i.e., classes consisting of both classified and unclassified students taught by a regular education and a special education teacher. However, I note that the child's individualized education program (IEP) for the 1995-96 school year indicated that he was to be placed in special classes for English, mathematics, social studies, and science (Exhibit P-A). In addition, the child was to receive seven and one-half periods of resource room services per week and eight individual counseling sessions. He was also to continue receiving remedial reading instruction.

        During the summer between the child’s eighth and ninth grade, respondents enrolled their son in Camp Dunnabeck, a summer program at the Kildonan School. Kildonan is a co-educational college preparatory school for students with specific reading and writing disabilities that are otherwise unexpected, given the students’ intelligence and educational opportunities. The child was screened in June when he entered the program. The results of the screening revealed that the child was functioning below the third grade level in spelling and word decoding. He achieved grade equivalent scores of 2.2 on the WRAT-R1 Reading Test, 3.6 on the Gray Oral Reading Test (GORT), and 2.3 on the Morrison-McCall Spelling Test. No reading comprehension tests were administered to the child at the beginning of the summer program because he reportedly did not have sufficient skills in that area. At the end of the summer program in August, he achieved grade equivalent scores of 3.8 on the WRAT-1 Reading Test, 3.7 on the GORT, and 3.3 on the Morisson-McCall Spelling Test. On the Gates-McGinitie Silent Reading Test, he achieved grade equivalent scores of 4.3 for vocabulary and 5.7 for comprehension. Respondents enrolled their son as a day student, at their expense, in Kildonan’s day program for the ninth grade during the 1995-96 school year. They reportedly requested that an impartial hearing be held with respect to the educational program which the CSE had recommended. That matter was reportedly resolved by the parties.

        The student profile from Kildonan during the ninth grade year shows that in December, 1995, he achieved grade equivalent scores of 5.5 in vocabulary and 6.5 in comprehension on the Gates-McGinitie Reading Test. The same test was administered again in April, 1996 on which the child achieved grade equivalent scores of 5.6 in vocabulary and 7.6 in comprehension. On the GORT reading comprehension subtest, which was administered in April, 1996, the child achieved a grade equivalent score of 8.9. All scores were obtained under optimum conditions. Toward the end of the child’s first year at Kildonan, petitioner's CSE conducted a triennial evaluation of the child. He achieved a verbal IQ score of 89, a performance IQ score of 86, and a full scale IQ score of 86. On the WIAT, he achieved grade equivalent scores of 3.0 in reading and 4.0 in spelling. A classroom observation was conducted while the child was in earth science class. The observer reported that the child appeared to be listening and following along in the text book.

        For the 1996-97 school year, which is the school year in dispute in this proceeding, the CSE recommended that the child receive daily consultant teacher services for English, mathematics, science and social studies, as well as five periods of resource room services per week. It further recommended that he be enrolled in a language skills class and a remedial math class, and receive individual counseling for eight, 40-minute sessions. The child's IEP indicated that certain testing modifications were to be used, such as extended time limits, separate locations, having test questions read, and the use of a calculator. Although the CSE made its recommendation in June, 1996, the child's IEP for the 1996-97 school year was not sent to respondents until October 16, 1996. The boy had been re-enrolled as a residential student in Kildonan for the 1996-97 school year. By letter dated November 19, 1996, the child’s mother requested an impartial hearing for the purpose of obtaining an order awarding tuition reimbursement to respondents for the 1996-97 school year.

        The hearing was held on various dates from March through August, 1997. In his decision which was rendered on October 8, 1997, the hearing officer found that the program offered by petitioner was inadequate. He found that by the tenth grade the child was only able to read at a third grade level, and that a comparison of his 1996-97 IEP goals and objectives with the goals and objectives of prior school years revealed that there had been little change in them, indicating that there had been little progress. He further found that the child required an intensive, multisensory, sequential method of learning instruction, fully integrated into all academic instruction in order to receive an educational benefit. He also found that placement of the child in mainstreamed classes as the CSE had recommended would further diminish the child’s confidence, which had been impaired by years of frustration in learning to read, and that Kildonan had brought about an improvement in the child’s confidence and attitude toward learning. The hearing officer found that respondents had demonstrated that Kildonan was an appropriate placement for their son, and that its learning environment, class makeup and educational philosophy appeared reasonably calculated to enable the child to learn. He also found that equitable considerations supported the parents' claim for reimbursement and directed petitioner to reimburse the parents for tuition for the residential program at Kildonan.

        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 [1985]). 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 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[1993]). 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        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). Upon review of the child's IEP (Exhibit SD-22), I find that it accurately reflects the results of the child's cognitive and achievement testing in April, 1996. It also indicates that he has difficulty decoding words, and that he is an auditory learner. The child's IEP annual goals for reading, writing, and study skills are very general e.g., " … will develop and demonstrate an improvement in written expression." However, the short-term instructional objectives supporting the boy's annual goals generally provide more detail, to enable the child's teachers to understand the CSE's expectations (Application of a Child with a Disability, Appeal No. 95-15).

        The CSE’s recommended program consisted of consultant teacher services for four periods per day for English, science, social studies and math; remedial math; language skills lab; and, resource room services one period per day. A special education teacher from the high school where the child was to be placed testified that the consultant teacher program was a team teaching approach in which a regular education teacher and a special education teacher co-teach, that is, they shared responsibility for the entire class. She stated that in the consultant teacher model, the special education teacher was mainly responsible for the special education students, but an effort was made not to isolate the special education students from the other students. She indicated that the consultant teacher classes were made up of 25-30 students, approximately 50% of whom were special education students at the "skills level." The skills level was described as a designation by the high school for the lowest level of student. Such students are generally two years behind in grade level in reading. The teacher testified that written materials in the skills level course were at the fourth - fifth grade level (Transcript, page 580).

        The special education teacher also testified that the English curriculum at the skills level tenth grade class was completely individualized for all students in the class. She described the remedial math class as a class of fewer than five students who are placed based on their Comprehensive Test of Basic Skills (CTBS) scores. The class was designed to prepare the students for the Regents Competency Test in Mathematics.

        The special education teacher also described the language skills lab which had been recommended by the CSE. She testified that the lab was for students with low scores on the CTBS, usually a year or two below grade level. However, I note that respondents' son had achieved a grade equivalent score of 3.5 in total reading when he took the test in April, 1995. Individualized programs were developed for each lab student based upon the student’s particular needs, and remedial work was concentrated on that specific area. Classes were made up of approximately four to five ninth and tenth graders, and were structured like that of a resource room. The instructor of the lab testified that she employed many of the OG strategies in the lab.

        The resource room component of the special education program was described as serving up to five special education students five periods per week, with a focus upon remediation at the high school level through the content areas. Class material was reviewed and retaught if necessary, organizational skills would be reinforced and homework was monitored.

        Petitioner asserts that the CSE's recommended placement for the 1996-97 school year was appropriate to meet the child’s needs in an academic setting in which he would be grouped with other students with similar needs. It contends that the hearing officer erred in finding that the child required a different educational program, because the child had progressed while he was a student in the district. Petitioner asserts that the child achieved good grades while in middle school, despite attendance and attitude difficulties, and that his standardized tests results showed progress.

        The hearing officer did not find that the child had failed to make any progress in petitioner's schools, rather he found that the child's progress was inadequate. The record shows that respondents' son is of average intelligence, but has a significant learning disability in reading. Despite special education placements in the elementary grades, the child entered the sixth grade with first grade reading skills. After three years of remedial reading and special education in petitioner's middle school, the child was basically reading at a high second to low third grade level. I agree with the hearing officer that the goals and objectives of the child's IEP for the 1996-97 school year are strikingly similar to those which appeared on the child's previous IEP's. The record does not demonstrate that the child made significant progress in achieving his goals and objectives in prior years, and there is little reason to believe that he would have done so in the 1996-97 school year with the educational program which petitioner's CSE had recommended for him. The recommended program of consultant teacher services in classes of 25-30 students would not have provided respondent's son with small group instruction which he had received in prior years, and which petitioner's school psychologist had indicated in the child's triennial evaluation was appropriate for the child (Exhibit SD-20).

        Although petitioner was required to educate respondents' son in the least restrictive environment, it must nevertheless do so with an educational program which will confer meaningful educational benefit upon the child (Briggs v. Board of Education of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). I am not persuaded by the facts which are in the record before me that this child could have received meaningful educational benefit from the educational program which petitioner's CSE had recommended for him. Therefore, I concur with the hearing officer's determination that the board of education failed to meet its burden of proof with regard to the appropriateness of the educational program which its CSE recommended for the 1996-97 school year.

        With respect to the second criterion for an award of tuition reimbursement, respondents bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at Kildonan during the 1996-97 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 parents 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).

        Kildonan's academic dean testified that the average class at the school had eight students. She indicated that the teachers at the school were not necessarily certified as special educators, but all were all trained in the OG approach, and that the classroom teachers integrated the OG method in their teaching. Additionally, the classroom teachers were trained to recognize the students' difficulties, and make accommodations such as reducing the volume of their reading assignments. She testified that each student had a 45 minute one-on-one tutorial each day using the OG approach to remediate his or her specific reading or writing difficulty. Additionally, she indicated that the residential program included a supervised study hall from 8:00 – 10:00 each night.

        Petitioner contends that the hearing officer erroneously found that the educational services which Kildonan provided were appropriate for the child. It asserts that the child's standardized test scores do not show an improvement in his academic skills, and that the record reveals that the child had behavior and attitude problems while at Kildonan. Petitioner urges that the testimony of one of respondents' expert witnesses, the child's independent evaluator, should be discounted because of her obvious bias in favor of the OG methodology and because the test results which the evaluator reported in April, 1997 (Exhibit P-P) were substantially higher than the results which Kildonan had reported.

        I find that the record shows that Kildonan offered an educational program which met the child’s special education needs. The record reveals that the child benefited from a structured, small class with intense remediation. When the child entered the summer camp at Kildonan in June 1995 immediately following eighth grade, he was functioning below the third grade level in word decoding and spelling, while his reading comprehension may have been at the fourth grade level (CTBS results). The record shows that near the end of ninth grade in Kildonan, in April 1996, the child achieved a grade equivalent score of 8.9 in reading comprehension on the GORT and a grade equivalent score of 7.6 on the Gates-McGinitie Reading Test. Additionally, the child achieved a grade equivalent score of 5.6 in vocabulary on the Gates-McGinitie Test. By the end of his tenth grade year, the record shows that the child achieved a grade equivalent score of 11.1 in reading comprehension on the GORT, and a grade equivalent score of 10.7 on the Gates-McGinitie Reading Test. Additionally, the child achieved a grade equivalent score of 6.7 in vocabulary on the Gates-McGinitie Test. These scores indicate an increase of at least one year in one year’s time, a significant increase. Given the child’s test scores when he last attended petitioner's schools, I find that his reading skills improved significantly in two years at Kildonan. In reaching this conclusion, I have not relied upon the test results reported by the independent evaluator in April, 1997.

        Petitioner argues that even if I find that a day placement in Kildonan was appropriate, I should find that a residential placement was not necessary for the child because of his prior success in its schools and at Kildonan as a day student. A residential placement is appropriate if it is required for the child to benefit from his or her educational program (Application of a Child with a Disability, Appeal No. 95-33). Although the child attended Kildonan as a day student during the 1995-96 school year, the Kildonan staff believed that the child required a residential placement because he lacked study skills, had difficulty with homework, and he was inexperienced with social skills. The Kildonan academic dean testified that the nightly two-hour supervised study hall at Kildonan provided an environment where the child learned to study and became a much more independent student, so that he could continue to do remedial work as well as keep up with assignments in other courses. Even with that study hall, the Kildonan staff was reportedly active in keeping the child focused on his assignments. The academic dean testified that the child benefited from the residential placement, as evidenced by the significant gains which he made in reading comprehension. She testified that he was able to keep up with the course demands and had fewer difficulties completing assignments. I note that one of the child's IEP annual goals was to improve his organizational study skills. She also testified that he benefited socially from the residential placement. He had developed a core group of friends and was more mature in his handling of social situations. Respondents’ second expert witness, a school psychologist, testified that the child indicated it was helpful to have guided study hall where he didn't feel "lost", and that he felt competent in social interaction. The school psychologist also testified that extended school day programs typically benefit those students who have a poor self image and poor academic image. The record shows that the child had low self esteem due in part to his frustration in dealing with his learning disability. Indeed, the child's IEP indicated that he needed to improve his confidence and self-esteem.

        Given this child's academic and emotional needs which had not been adequately addressed in prior years, as well as the evidence of improvement in his academic and social skills, as well as his improved self-esteem, I am persuaded that respondents have met their burden of proving that their son's residential placement at Kildonan was appropriate and was consistent with the least restrictive environment requirement. Therefore, I find that respondents have met their burden of proof with regard to the second criterion for an award of tuition reimbursement.

        With respect to the third criterion for tuition reimbursement, i.e., whether equitable considerations support respondent’s claim for reimbursement, I also find in favor of respondents. Petitioner argues that respondents should not be permitted to benefit from their actions in that they never informed the CSE of their frustration or concerns with their child’s performance, they failed to cooperate with the CSE in developing the program for the 1996-97 school year, and they failed to cooperate with petitioner in its attempts to conduct transition planning. The record shows that the parents did express their concerns about their son’s reading to the child’s teachers and the CSE representatives. Additionally, the record also shows that either one or both respondents attended many of the CSE meetings including the annual review in 1996 during which the 1996-97 program was recommended. With regard to respondents' alleged lack of cooperation in developing a transition plan, I note that petitioner has not alleged that respondents' alleged non-cooperation caused it to significantly delay the completion of the child's IEP. I find that respondents cooperated with the CSE and that their request for tuition reimbursement was made soon after they received the IEP for the 1996-97 school year.

THE APPEAL IS DISMISSED.