97-095

       Petitioner, the Board of Education of the Hyde Park Central School District, appeals from that portion of the decision of an impartial hearing officer which ordered it to reimburse respondents for the cost of their son’s tuition at the Kildonan School (Kildonan) for the 1996-97 and 1997-98 school years. Petitioner further appeals the hearing officer’s order directing it to include certain assessments in the child’s annual evaluation. In their answer, respondents have asserted a "counter-claim" challenging the hearing officer’s dismissal of their request for tuition reimbursement for the 1991-92 through 1995-96 school years. Respondents’ counter-claim will be treated as a cross-appeal (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, Appeal No. 95-8).The appeal must be sustained in part. The cross-appeal must be dismissed.

        Preliminarily, I will address a procedural issue raised in this appeal. Respondents have annexed a letter by the Academic Dean of Kildonan to their answer which they describe as a supplement to the record. Petitioner argues that the letter serves only to embellish the testimony that was received at the hearing and should not be considered. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). Given that the letter addresses the child’s test results which are an issue in this proceeding, I will accept the letter so that I will have a more complete record.

        Respondents’ son was born on November 28, 1982, and entered kindergarten in the fall of 1988. He was evaluated by a physician in March, 1989 because he had a language difficulty and was unable to perform at the kindergarten level. The physician reported that the child was having difficulty learning sounds and associating the printed word. He indicated that the boy knew only two or three letters of the alphabet and that he had a developmental reading problem. The physician diagnosed the child as having a learning disability. He opined that the child was mildly hyperactive, but that there was no need for medication.

        Respondents’ son was initially referred to petitioner’s committee on special education (CSE) in October, 1989, when he was in the first grade. The child was classified as learning disabled. His classification is not in dispute in this proceeding. The CSE recommended that the child receive resource room services four and one-half hours per week.

        The CSE met in June, 1990 to develop a recommendation for the 1990-91 school year, the child’s second grade year. The CSE recommended that the child continue to be classified as learning disabled and that he receive resource room services one hour per day. In November, 1990, the child’s teacher advised the school’s child study team that the child was experiencing considerable difficulty learning to read. She indicated that the child was frustrated by his inability to perform successfully in class. The child’s teacher requested that the child’s placement be reviewed. The child’s resource room teacher reported that the child was progressing well, and that on an individual basis, she had noticed much growth.

        In a psychological update conducted when the child was in the second grade, the psychologist reported that the child had made significant progress since his last evaluation in May, 1989, but that his progress was not evident in the classroom setting. The psychologist expressed concern about the child’s future rate of progress. In a November, 1990 report, the child’s music instructor indicated that the child was very easily distracted and had to constantly be reminded to pay attention.

        In May and June, 1991, the child’s second grade teacher reiterated her position that the child should be placed in a self-contained classroom for the 1991-92 school year. She indicated that the child functioned best in a small group setting with maximum adult assistance. She noted that the boy’s performance was well below average and expressed concern that, given his current level of functioning, it was unlikely that he would be successful meeting third grade expectations.

        By letter dated August 18, 1991, respondents informed petitioner that they had enrolled their son in Kildonan, a private school in Amenia, New York that serves students in grades two through twelve with specific reading and writing disabilities. Respondents also requested transportation to and from Kildonan for their son. On August 23, 1991, the CSE recommended that the child continue to be classified as learning disabled. No placement was recommended for the 1991-92 or 1992-93 school years.

        In December, 1993, respondents advised the CSE that they were considering returning their son to the school district and requested a meeting to develop an individualized education program (IEP). A CSE meeting was held in January, 1994 at which the CSE recommended that the child continue to be classified learning disabled and that he be placed in a special class with mainstreaming in certain subjects. In April, 1994, respondents informed the CSE that they believed that the recommended program was not appropriate for their son, who would not return to the school district for the remainder of the 1993-94 school year. The CSE did not recommend a program for the child’s 1994-95 school year.

        The CSE met in August, 1995 to develop the child’s IEP for the 1995-96 school year. The CSE recommended that the child continue to be classified as learning disabled. The CSE also recommended that the child be placed at the Haviland Middle School, where he would receive resource room/consultant teacher services for four periods per day. The IEP included a special notation indicating that the child had been placed on Ritalin, then in April, 1995, switched to Dexadrine, which had proven more effective. The IEP also included the child’s results on the WISC-III which was administered in March, 1993. He had achieved a verbal IQ score of 92, a performance IQ score of 86 and a full scale IQ score of 88, placing him in the low average range of intellectual functioning. The Committee Minutes indicated that a neurologist had diagnosed the child as having an attention deficit disorder with minimal hyperactivity. On a Meeting Report Back Document (Exhibit V) it was noted that the child was reading at a fourth grade level. The child remained at Kildonan for the 1995-96 school year.

        The CSE met in August, 1996, to develop the child’s IEP for the eighth grade during the 1996-97 school year. The CSE recommended that the child continue to be classified as learning disabled, and that he receive resource room/consultant teacher services for four periods per day. Additionally, the CSE recommended that the child receive reading support in a small group for 200 minutes per week. By letter dated November 7, 1996, respondents advised the CSE that they believed the recommended program was not appropriate for their son. They indicated that their son would remain at Kildonan for the 1996-97 school year. By letter dated November 29, 1996 to the Superintendent of Schools, respondents requested information with respect to obtaining reimbursement for the educational expenses they had incurred for their son.

        In January, 1997, respondents had their son evaluated by a private psychologist. The private psychologist noted that the child struggled on all reading tasks and exhibited difficulty with verbal processing. On the Peabody Individual Achievement Test (PIAT-R), the child achieved a grade equivalent score of 3.9 for total reading. The private psychologist reported that the child exhibited a variable profile with his reading recognition being relatively weaker than his reading comprehension. It also was noted that the child’s written expression was somewhat above average, and that he appeared to be comfortable with writing. On the Boder Test of Reading and Spelling Patterns (Boder), the child achieved a reading grade level of 4.6, a reading age of 9.6 and a reading quotient of 68, representing significant difficulties in all aspects of reading recognition. The child demonstrated weaknesses in decoding and difficulties with sound/symbol relationships. The private psychologist reported that the child was making slow and steady progress in the areas of reading and spelling. However, he opined that the child required individualized remedial reading instruction, modification of all content area curricula to his functional and remedial levels, and close monitoring of his progress. The private psychologist recommended that the child be placed in a setting that had a small staff to student ratio and provided the necessary emotional support to assist the child in maintaining a positive academic self-image.

        In February, 1997, respondents requested an impartial hearing. The hearing was held on June 19, July 3, August 22 and September 16, 1997. The hearing officer issued his decision on November 14, 1997. He found that respondents were entitled to reimbursement for their son’s tuition for the 1996-97 and 1997-98 school years. The hearing officer ordered that petitioner conduct an annual evaluation of the child and specified the assessments that were to be included in the evaluation. Finally, the hearing officer dismissed on the equitable doctrine of laches respondents’ request for tuition reimbursement for the 1991-92 through 1995-96 school years.

        Petitioner appeals from the hearing officer’s decision ordering it to reimburse respondent for the 1996-97 and 1997-98 school years. With respect to the 1996-97 school year, petitioner argues that respondent did not demonstrate the appropriateness of their son’s placement at Kildonan, and that equitable considerations did not support the award of reimbursement. With respect to the 1997-98 school year, petitioner argues that reimbursement for that year was not an issue at the hearing in this proceeding, and was therefore beyond the hearing officer’s jurisdiction. Petitioner also appeals from the hearing officer’s order directing it to conduct certain assessments of the child. Respondents cross-appeal from the hearing officer’s decision denying tuition reimbursement for the 1991-92 through 1995-96 school years. They argue that the defense of laches does not apply because their delay in requesting an impartial hearing was reasonable and there was no prejudice to petitioner. Respondents ask that I expand the hearing officer’s remedy to include tuition reimbursement from the 1991-92 school year forward, or in the alternative, from the 1993-94 school year, when they provided the school district a written complaint regarding their son’s program, through the 1995-96 school year. Additionally, respondents request that I make a determination that Kildonan is their son’s pendency placement " . . . until such time as the district identifies an appropriate placement" for the boy.

        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 (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[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). At the hearing, petitioner conceded that it could not meet its burden of proof that it offered an appropriate placement for the child for the years in question. Thus, the first criterion for an award of tuition reimbursement has been met.

        With respect to the second criterion for an award of tuition reimbursement, 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 Kildonan (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). Petitioner argues that respondents failed to prove that Kildonan was an appropriate placement because the gap in the child’s deficit areas had not narrowed, the testing measures selected by Kildonan were not sufficient to reasonably assess progress, and there was no reliable evidence establishing that the child’s special education needs had been addressed at the school.

        The question before me is whether Kildonan offered an educational program which met the child’s special education needs. Petitioner claims the gap in the child’s deficit area did not narrow while he was at Kildonan. To support its argument, it relies on the testimony by its Director of Pupil Personnel Services who stated that it did not appear that the child had made progress relative to his chronological peers. However, respondents must only demonstrate that the private school met the child’s special education needs. The private psychologist reported that the child exhibited a reading/spelling pattern that was consistent with the most severely dyslexic readers who may not be able to read either by sight or ear. He testified that he has rarely seen an individual of the child’s age with such deficits in reading and spelling. Given the severity of the child’s disability, it would be unreasonable to expect that his progress should be compared to that of his chronological peers.

        It is undisputed that the child has a learning disability in reading which was identified before he entered kindergarten. When he was in the second grade at petitioner’s elementary school, the child’s teacher reported that the child was experiencing reading difficulties and noted that he functioned best in a small group setting with maximum adult supervision. The record shows that during the summer following the child’s second grade year, respondents enrolled their son in the summer camp at Kildonan, where he was administered various standardized tests. On the Wide Range Achievement Test - 1 (WRAT - 1), administered to the child in June, 1991, immediately following completion of his second grade year at petitioner’s elementary school, the child achieved a grade equivalent score of 1.5. The child was unable to read the first paragraph on the Gray Oral Reading Test (GORT), so he did not receive a score. The Gates-MacGinite Reading Test was not administered to the child in June, 1991 because staff at Kildonan did not believe that he could take the test. In addition, the child was first administered the Woodcock-Johnson Reading Test in May, 1993 at the end of his fourth grade year on which he achieved a grade equivalent score of 2.4. When it was administered to him again in May, 1997 at the end of his eighth grade year, he achieved a grade equivalent score of 5.2. Also in May, 1997, the child achieved a grade equivalent score of 6.0 on the WRAT and a grade equivalent score of 4.8 on the GORT. On the PIAT - R, the child achieved a grade equivalent score of 3.9 in total reading. On the Boder, the child achieved a Reading Grade level of 4.6. These scores ranging from a grade level of 3.9 to 6.0 suggest that the child’s reading level at the end of eighth grade fell between the fourth and fifth grade. The record shows that when the child entered Kildonan during the summer of 1991 after he had completed second grade at petitioner’s Violet Avenue Elementary School, he was essentially a non-reader. Six years later, at the end of his eighth grade year, the standardized test results show that the child was reading between the fourth and fifth grade level.

        Petitioner argues that the testing measures selected by Kildonan were not sufficient to reasonably assess the child’s progress. Petitioner’s Director of Pupil Personnel Services testified that the tests administered to the child and the scores that were reported do not provide a valid means to measure the child’s progress. However, petitioner failed to submit into evidence any test results that it would find to be an acceptable measure of progress, even though it had conducted annual reviews of the child. I find that the evidence demonstrates that the child received an educational benefit at Kildonan because when the child entered Kildonan, he was essentially a non-reader, and at the end of the 1996-97 school year, he was reading at a fourth to fifth grade level.

        I also find that the child’s special education needs have been addressed by Kildonan. The record shows that the child functioned best in a small group setting with maximum adult assistance. The private psychologist testified that the child required highly individualized instruction in a small class setting where the entire curriculum could be modified to address his needs. The private psychologist opined that a regular education placement would not be appropriate for the child. The Academic Dean at Kildonan testified that Kildonan is specifically organized around the mission to educate dyslexic students. She also testified that in addition to the standard eighth grade curriculum, each student received a one-on-one language remediation tutorial each day. In addition, because the child’s reading and writing skills were well below grade level, he received one-on-one reading instruction at Kildonan. I find that Kildonan offered an educational program which met the child's special education needs. Accordingly, I find that the parents have met their burden with respect to the second criterion for an award of tuition reimbursement.

        With respect to the third criterion for an award of tuition reimbursement, the hearing officer found that respondents did not assert their hearing right in a timely fashion for the 1991-92 through 1995-96 school years, and that their claims for tuition reimbursement were therefore barred by the equitable doctrine of laches. Laches is an equitable defense which may be asserted when a party, by omission or neglect, fails to assert a right in a timely fashion and that lapse of time causes prejudice to the adverse party (Conopco, Inc. v. Campbell Soup Co., 95 F. 3d 187 [2d Cir. 1996]). Consistent with the equitable nature of laches, courts typically decline to apply the doctrine when the party against whom it would be applied can show good cause as to why it should not be applied (Id. at 191).

        Respondents do not challenge the hearing officer’s finding that they became aware of their right to request an impartial hearing in October, 1989. However, they argue that laches does not apply because their delay in requesting an impartial hearing until February, 1997 was reasonable in that respondents did not know that the remedy of tuition reimbursement was available, and that the district was not prejudiced by their delay. The record shows that respondents first requested tuition reimbursement in a letter to the Superintendent of Schools in November, 1996 and their request for an impartial hearing was made in February, 1997.

        Although tuition reimbursement is one remedy which may be obtained from an impartial hearing, it is not the principal purpose of an impartial hearing. The extensive due process provisions of Federal and State law are intended to provide an inexpensive and expeditious manner by which a parent can obtain review by an impartial decision maker of a CSE’s action, or failure to act. The requirement that complaints asserted under the Individuals With Disabilities Education Act (IDEA) should be made in a timely fashion not only protects the school district from prejudice, but also assures that children with disabilities are provided appropriate educational programs without lengthy delays (Bernardsville Board of Education v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]). The right of review contains a corresponding parental duty to unequivocally place in issue the appropriateness of an IEP. I find that respondents’ delay in availing themselves of their due process rights to assure that their child was being provided appropriate educational programs deprived petitioner of any opportunity to correct its errors. Accordingly, I find that equitable considerations do not support respondents’ claims for tuition reimbursement for the 1991-92 through 1995-96 school years. Having found that respondents are not eligible for tuition reimbursement for the 1991-92 through 1995-96 school years because of their failure to timely assert their right to an impartial hearing, I need not address respondent’s cross-appeal claiming that petitioner failed to hold annual reviews during three of those years.

        With respect to the 1996-97 school year, the request for a hearing was made during that school year and there is no evidence that respondents did not cooperate with the CSE. (Application of a Child with a Disability, Appeal No. 95-77). Accordingly, I find that equitable considerations support respondents claim for tuition reimbursement for the 1996-97 school year. With respect to the 1997-98 school year, I agree with petitioner and find that that issue was not properly before the hearing officer. Respondents’ written request for an impartial hearing is limited to the 1991-92 through 1996-97 school years. At the outset of the hearing, the hearing officer invited the parties’ attorneys to explain the issues. Respondents’ attorney advised the hearing officer that respondents were seeking reimbursement for their son’s tuition expenses for the 1991-92 through the 1996-97 school years. On page seven of the transcript, respondents’ attorney stated, "So our case will relate to 1991-92 through 1996-97. So you will have six years to review and six years of requests from us for reimbursement of tuition." There is no evidence that the parties requested that the hearing officer consider tuition reimbursement for the 1997-98 school year. I find that the hearing officer exceeded his jurisdiction by awarding respondents tuition reimbursement for the 1997-98 school year (Application of the Board of Education of the Enlarged City School District of the City of Saratoga Springs, Appeal No. 96-9; Application of a Child with a Disability, Appeal No. 96-19).

        Petitioner also appeals from the hearing officer’s order directing it to perform an evaluation of the child and specifying the assessments that are to be included in the evaluation. Petitioner argues that no issue regarding the adequacy of the evaluation was raised, and that in the absence of a finding that the evaluations were inadequate, there is no justification for ordering an independent evaluation. Pursuant to Section 200.5 (c) (6) of the Regulations of the Commissioner of Education, a hearing officer may request an independent evaluation as part of a hearing. I find that the hearing officer had the authority to order an evaluation, and given the lack of information in the IEP’s, he did not abuse his discretion by ordering the evaluation.

        Respondents request that I make a determination that Kildonan is the pendency placement until such time as the district identifies an appropriate placement for the child. I find respondents’ request to be without merit (Application of a Child with a Disability, Appeal No. 96-83; (Application of a Child with a Disability, Appeal No. 96-92).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer to the extent that it ordered petitioner to reimburse respondents for the cost of the child’s tuition for the 1997-98 school year is hereby annulled.