98-058

       Petitioners appeal from the decision of an impartial hearing officer which found that respondent's committee on special education (CSE) recommended an appropriate educational program for their son during the 1997-98 school year, and which denied petitioners' request for tuition reimbursement for the cost of their son's tuition at the Kildonan School (Kildonan) for that school year. The appeal must be dismissed.

        Preliminarily, I will address the procedural issues raised in this appeal. Petitioners assert that the hearing officer did not render a timely decision because respondent allegedly did not comply with the requirements for appointing a hearing officer. 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]). Petitioners filed a request for a hearing on December 10, 1997. Respondent appointed a hearing officer who scheduled the hearing to begin on January 23, 1998. However, by mutual agreement of the parties, the hearing did not begin until February 26, 1998. At that hearing, the attorney for petitioners questioned respondent's appointment procedures. Ultimately, the hearing officer who was initially appointed recused himself, and respondent appointed a new hearing officer on March 25, 1998. No objection was raised with respect to the appointment of the second hearing officer.

        In the petition, the parents allege that, "respondent appointed the hearing officer using a defective appointment process, but after parental objection, a proper list was instituted and Arnold Jaeger, Ph. D. was appointed." The hearing before Dr. Jaeger began on April 22, 1998. At the end of the hearing on that day, Dr. Jaeger stated on the record that, "the parties have mutually agreed that the timeframe is extended to accommodate the schedules of all of the parties." After several hearing dates scheduled at the mutual convenience of the parties, Dr. Jaeger closed the hearing on July 31, 1998, and rendered his decision on August 11, 1998. Under the circumstances, I find that it was impossible for the hearing officer to comply with the 45 day rule. Furthermore, the record shows that petitioners agreed to waive the 45 day rule on the first day of the hearing before Dr. Jaeger. As I have found that the delay is excused, I find that it is unnecessary to address the issue of whether the initial hearing officer was properly appointed.

        I note that at the hearing, petitioners' attorney raised a general complaint regarding respondent's ability to assure that impartial hearings are conducted within 45 days of the request for a hearing. This proceeding is not the appropriate forum in which to raise such a complaint (Application of a Child with a Disability, Appeal No. 97-80). Pursuant to Federal regulation (34 CFR 300.660), states must develop complaint procedures for resolving complaints alleging violations of certain provisions of the Individuals With Disabilities Education Act (IDEA). Petitioners should avail themselves of that process to address their complaint by writing to the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities.

        Petitioners further argue that they were denied due process because the hearing officer closed the hearing before they completed presenting their case, which resulted in the exclusion of expert testimony and documentary evidence they wished to present. They attempt to supplement the hearing record by attaching affidavits and documents to the petition. Respondent argues that the documents attached to the petition should not be accepted into the record because the documents were not disclosed to it within five days of the scheduled hearing date, nor were they submitted during the impartial hearing in violation of Federal law and State regulation. It further claims that my acceptance of such information into the record would deny it due process of law because it would not have had an opportunity to cross-examine adverse witnesses.

        As noted above, the hearing before the second hearing officer, Dr. Jaeger, began on April 22, 1998. The next scheduled hearing day was May 14, 1998, but the hearing was cancelled at petitioners' request. It resumed on May 29, 1998, and continued on June 12, 1998. The next scheduled hearing date was June 29, 1998. However, the hearing was postponed until July 9, 1998 to accommodate the schedule of one of petitioners' witnesses. A second witness was to have testified for petitioners on July 31, 1998. However, she was reportedly unavailable on that date. The hearing officer denied petitioners' request for an adjournment on July 31, 1998, and closed the record. In his oral remarks on July 31, 1998, the hearing officer noted that he had previously advised the parties that petitioners' final witness would have to testify on July 31, 1998 (see IHO Exhibit 1). While I do not concur with petitioners' claim that they were denied due process of law, I will accept the documents which petitioners have submitted so that I have a more complete record (Application of a Child With a Disability, Appeal No. 95-41).

        Respondent asserts that petitioners did not initiate the impartial hearing process until the 1997-98 school year, and it argues that they are barred by the equitable doctrine of laches from challenging the appropriateness of respondent's programs for the school years prior to the 1997-98 school year. It is imperative that parents promptly notify the CSE of their dissatisfaction with the CSE's recommendation, so that a board of education can rectify its mistakes, if any (Bernardsville Board of Education v. J.H., 42 F.3d 149 [3d Cir., 1994]; Matter of Northeast Central School District v. Sobol, 79 NY2d 598 [1992]). While the petition includes several allegations addressed to prior years, I note that petitioners' request for tuition reimbursement is limited to the 1997-98 school year. Respondent's liability, if any, for the cost of the child's tuition will be determined by what it did or did not do in preparing the child's individualized education program (IEP) for that school year.

        At the time of the hearing, the child was 13 years old and in the seventh grade at Kildonan, a private school in Amenia, New York, that serves children with specific reading and writing disabilities. Kildonan is not approved by the State Education Department as a school for children with disabilities. The child first entered respondent's schools in the 1991-92 school year, when he repeated first grade. He was initially referred to respondent's CSE by his parents in the second half of that school year. In a psychoeducational evaluation conducted in May 1992, the child achieved standard scores of 104 on verbal reasoning, 94 on abstract/visual reasoning, 106 on quantitative reasoning, 96 on short term memory, and a total score of 100 on the Stanford Binet Intelligence Scale-Revised, placing him in the average range. The child's visual motor integration skills were assessed to be average. His scores in math and general knowledge areas were assessed to be good. However, he scored in the first percentile for reading on the Woodcock Johnson-Revised (WJ-R). Respondent's school psychologist recommended that the child receive special education services in order to make progress in reading and writing.

        The child was evaluated by a teacher of the speech and hearing handicapped on April 22, 1992. On the Clinical Evaluation of Language Fundamentals - Revised (CELF-R), the child achieved standard scores of 95 for receptive language and 86 for expressive language. The evaluator noted that the child had significant trouble following oral directions, and difficulty processing directions involving the concepts of first/last and right/left. On the Test of Auditory-Perceptual Skills, the child had difficulty remembering and repeating short sentences and series of words. He also had great difficulty interpreting directions which were read to him and reversed several of the stimuli, i.e., the sequence of directions. However, he was able to answer questions assessing his reasoning skills at a level which was two years above his age expectancy. The evaluator reported that the boy's ability to formulate his thoughts into sentences was very limited, and that he appeared to have difficulty processing both auditory and visual stimuli, particularly when they were presented together. She recommended that he receive speech/language therapy twice a week to address his needs in formulating thoughts into sentences, remembering orally presented information, and following oral directions.

        In an educational assessment which was done in May, 1992, the child achieved grade equivalent scores of 1.5 for letter-word identification, K.0 for passage comprehension, 1.8 for calculation, 2.4 for applied problems, 1.1 for dictation (spelling), 1.3 for writing samples, 2.6 for science, 3.3 for social studies, and 3.9 for the humanities. The evaluator noted that the boy had difficulty paying attention, and she recommended that he receive resource room services.

        On August 20, 1992, respondent's CSE classified the child as learning disabled. The child's classification is not in dispute in this proceeding, and I do not consider its appropriateness (see Hiller v. Bd. of Ed. Brunswick CSD, et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). The CSE recommended that the child receive five hours of resource room services per week, and two 30-minute sessions of speech/language therapy per week, while in the second grade. It also recommended that certain testing modifications be used. Petitioners accepted the CSE's recommendation for the 1992-93 school year.

        For the 1993-94 school year, the CSE recommended that the child continue to receive resource room services five hours per week to support his instruction in reading and written language. It did not recommend that he receive more speech/language therapy. During the 1993-94 school year, the child received private tutoring. The child's tutor reported that the child's record indicated that he had difficulty with letter sound association, syllables, words and semantics essential to beginning reading. She noted that the child responded well to the Orton- Gillingham (OG) approach to teaching. The OG program is a structured, sequential, multisensory approach to teach children language arts. She reported that in the seven months that she had worked with the child, he had progressed from reading at an instructional level of mid-first grade to beginning third grade on the Spache Diagnostic Reading Test, and she opined that the child should continue to receive individual tutoring using the OG methodology.

        During the 1994-95 school year, the child was enrolled in a regular education fourth grade. He received five hours of resource room services per week pursuant to his individualized education program (IEP). The IEP indicated that on March 16, 1994, the child had earned grade equivalent scores of 2.8 for reading decoding, 3.7 for reading comprehension, 3.7 for mathematical computation, 4.5 for mathematical concepts, and 2.4 for written language. The boy's triennial evaluation was completed in May 1995, as he ended the fourth grade. On the WISC-III, the child achieved a verbal IQ score of 98, a performance IQ score of 100, and a full scale IQ score of 99, placing him in the average range of intellectual functioning. On the WJ-R, the child achieved grade equivalent scores of 3.2 in broad reading, 5.1 in broad math, and 2.8 in broad written language. The evaluator noted that the child displayed mild motor planning awkwardness, and that his handwriting was somewhat weak. The child was described as distractible, and at times impulsive. It was noted that he was strong in math, but that his writing skills continued to be weak. The triennial evaluation report included another comment that the child continued to require assistance in order to progress in reading and writing, and that he would benefit from assistance in language arts and content area support in the areas of organization and writing.

        For the 1995-96 school year, the CSE recommended that the child receive 45 minutes per day of reading in a special education class, and resource room services 7.5 periods per week to assist in skills and content areas for the fifth grade. His IEP indicated that on April 11, 1995, the child had achieved grade equivalent scores of 3.0 for reading decoding, 3.4 for reading comprehension, 4.2 for mathematical computation, 7.0 for mathematical concepts, and 2.8 for written expression. The boy's IEP was amended in April, 1996 to replace his special education class reading instruction with three 30-minute sessions of remedial reading per week, and to reduce his resource room services to five hours per week. Petitioners agreed to the changes. In April, 1996, the child received grade equivalent scores of 5.9 in total reading and 4.4 in total math on the California Test of Basic Skills (CTBS). In May, 1996, the child achieved grade equivalent scores of 4.5 in broad reading, 4.6 in broad mathematics, and 3.6 in broad written language on the WJ-R.

        The CSE met in May, 1996 to prepare the child's IEP for the 1996-97 school year. It recommended that the child continue to be classified as learning disabled, and that he be placed in a special class for study skills one period per day. It further recommended that he receive the services of a consultant teacher for English, social studies, science and math.

        The CSE reconvened in December, 1996 to consider the results of an evaluation of the child conducted by a private educational consultant in May, 1996. The private educational consultant reported that on the Woodcock Reading Mastery Tests-Revised, Form G, the child achieved a grade equivalent score of 4.2 in total reading. She concluded that the child's reading skills were significantly delayed. The educational consultant recommended that the child be taught using the OG approach. The minutes of the CSE meeting reflect that it was agreed that the child needed more concrete multi-sensory tools, and that he should attend study skills class daily. However, the CSE did not make any changes to the child's IEP as a result of that meeting. The CSE met again in April, 1997 to review the child's educational performance and his parents' concerns. The rationale included in the meeting minutes indicated that the CSE believed that the support the child received was appropriate and that he made academic gains, but that he needed to learn study skills and was not always cooperative in that regard. Again, no changes were made to the child's IEP as a result of that meeting.

        On August 7, 1997, the CSE met to develop the child's IEP for the 1997-98 school year. It continued the child's classification as learning disabled, and it recommended that the child be placed in a special class with a student to teacher ratio of 15 to 1 for one period per day for study skills and one period per day for intensive reading. Additionally, the CSE recommended that the child receive the support of a special education teacher in his regular education, English, social studies, science and math classes. Testing modifications of extended time and questions/words read when cued by the student were also recommended, as was access to a computer. Petitioners rejected the CSE's recommendation and unilaterally placed their son at Kildonan for the 1997-98 school year. On December 10, 1997, petitioners requested an impartial hearing seeking reimbursement for their son's tuition at Kildonan.

        The hearing began on April 22, 1998, and ended on July 31, 1998. The hearing officer rendered his decision on August 11, 1998. He found that the IEP developed by respondent's CSE, and therefore the educational program offered by respondent, was appropriate. Accordingly, the hearing officer denied petitioners' request for tuition reimbursement.

        Petitioners appeal from the hearing officer's decision on a number of grounds. They argue that respondent's CSE failed to adequately assess the child in his specific areas of weakness. They also argue that the child's IEP is defective because it did not provide the child's current functional levels as required by 8 NYCRR 200.4 (c)(2)(i), and that it did not propose a reasonably calculated plan for the child given his needs.

        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).

        The IEP indicates that at the child's August 7, 1997 annual review, the CSE considered, among other records, a May, 1995 psychological evaluation and an April, 1997 educational evaluation. The IEP, which the CSE prepared, reflects the test scores from those evaluations. In April, 1997, at the end of the child's sixth grade year, the child achieved a total reading score of 5.9 on the CTBS, and a composite score of 7.6 on the Gray Oral Reading Test-3 (GORT). The chairperson of the CSE testified that the CTBS result suggested that the child had a lag in his reading skills, and that the child's score on the GORT showed that his reading rate was slow, but that his accuracy was at grade level. The child's IEP includes a reading goal and two objectives to address reading comprehension. It also includes objectives to address decoding and identify new vocabulary words.

        The IEP lists the child's total written language score which was assessed to be at a 3.6 grade level in May, 1996. While the IEP does not list a score for 1997, it does identify writing as an area of need for the child. The chairperson of the CSE testified that the child's standardized test scores indicated a weakness in writing from dictation as well as a weakness in providing writing samples. The IEP includes a language arts goal to improve skills for writing and five objectives addressing the elements of writing.

        The IEP also describes the child's level of functioning in mathematics. On the April 17, 1997 CTBS, he achieved a total math score of 4.4. The CSE chairperson testified that the child demonstrated some difficulties in mathematics in computation and multi-step word problems. The IEP includes one math goal and several objectives to improve the child's math computation and problem solving skills. I find that the IEP accurately reflects the results of the child's evaluations, and that it adequately identifies his special education needs. I further find that the IEP establishes annual goals and short-term instructional objectives which are related to the child's educational deficits.

        A child's IEP must also indicate what his or her needs are with respect to learning style, social development, physical development and management needs (8 NYCRR 200.4 [c][2][i]). The IEP provides that the child benefits from a multimodal approach, and that he relies on his auditory skills. Additionally, with respect to social development, the IEP includes a notation that the child has difficulty working independently and that he needs to develop more consistent work habits. It provides that his physical development is age appropriate. With respect to the boy's management needs, the IEP indicates that the child needs to be consistent with homework completion. I find that this child's IEP for the 1997-98 school year met the above requirement.

        In order to meet its burden of proof, respondent must also demonstrate that its CSE has recommended the appropriate special education services to meet each of the child's identified special education needs. The CSE recommended that the child be placed in a special class for study skills one period per day to assist him with organizing his work, developing techniques for studying, and planning essay assignments. Additionally, it recommended that the child be placed in a special class which used a multisensory approach to address the child's reading deficits for one period per day. Further, the program recommended by the CSE included the support of a special education teacher and special education teacher's assistant in the child's regular education English, social studies, science and math classes.

        The child's special education teacher for sixth grade, who taught his study skills class and was the special education teacher assigned to his regular education science, social studies, math and English classes, testified that she used repetition and a multi-modal approach with her students. She further testified that the child's writing skills had improved as he was better able to organize his essays, and that the child had no difficulty reading the sixth grade text books.

        The child's sixth grade remedial reading teacher testified that the child had difficulty with spelling, and that his processing and reading rate were slow. However, she indicated that he demonstrated strengths in using context clues, which aided his comprehension. She further indicated that the child began the year at a fourth grade level and ended it at a seventh grade level in the instructional materials she used in her classroom. She testified that on the Slosson Oral Reading Test administered at the beginning of the year, the child achieved a fourth grade level. At the end of the year, he achieved a fifth grade level in comprehension on the GORT.

        With respect to the child's reading difficulties, the record shows that at the end of the child's fourth grade year, he was reading at a third grade level. At the end of the child's fifth grade year, he was reading at a fourth grade level, and at the end of the child's sixth grade year, he was reading at a fifth grade level. These scores demonstrate growth of approximately one year in one year's time. With respect to the child's writing skills, the record shows that at the end of the child's fourth grade year, his writing skills were assessed to be at a second grade level. By the end of his fifth grade year, they were assessed to be at a third grade level. Again, this demonstrates growth of one year in one year's time. While there is no standardized test score to show the child's level of functioning at the end of his sixth grade year, his special education teacher noted progress.

        Petitioners argue that their son could not read or write after spending several years in respondent's special education programs. However, the private reading evaluation conducted in June, 1996, at the end of the child's fifth grade year, listed the child's reading skills to be at the fourth grade level, which is consistent with the results reported by respondent. Petitioners assert that, after attending Kildonan for one year where the OG methodology was used for all instruction, their son is able to read. The child's father testified that his son has learned to read using the OG method and that he continues to need such instruction to benefit from his education. Petitioners' preference and that of their witness for a particular teaching methodology does not per se afford a basis for concluding that respondent's instructional program is inappropriate (Application of a Child with a Handicapping Condition, Appeal No. 90-24).

        The record shows that the child had deficits in reading, writing and study/organization skills. The program recommended by the CSE to address those needs included a special class for reading and study skills, as well as the assistance of a special education teacher in the child's regular education classes. The record further shows that a multi-sensory structured approach would be used to instruct the child in reading and writing. Based upon the information before me, including the child's performance in the prior school years, I find that the program recommended by respondent's CSE was appropriate to meet this child's special education needs during the 1997-98 school year.

        Petitioners seek the remedy of tuition reimbursement.  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]). Respondent has met its burden of proof with respect to the first Burlington criterion, i.e., it has offered an appropriate program. It is not necessary that I address the second and third criteria for an award of tuition reimbursement.

        I have considered petitioners' other claims, which I find to be without merit.

THE APPEAL IS DISMISSED.