99-012

        Petitioner, the Board of Education of the Taconic Hills Central School District, appeals from an impartial hearing officer's determination that it had failed to offer a free appropriate public education to respondents' daughter during the 1997-98 school year, and his order requiring petitioner to reimburse respondents for the cost of their unilateral placement of the child in the Kildonan School during that school year. The appeal must be sustained.

        I must first address a procedural issue raised by the Board of Education. It contends that I should not accept respondents' answer because they did not verify the answer (cf. 8 NYCRR 275.5), and because they did not answer the petition in a timely fashion. The answer which respondents filed with me was verified by the child's mother, and is therefore acceptable. While the copy of the answer which was served upon petitioner should have included a copy of the mother's verification, I will excuse respondents' failure to comply with the regulations (Application of a Child with a Disability, Appeal No. 95-41).

        An answer must be served within ten days after the petition was served upon the respondent (8 NYCRR 279.5). The petition in this appeal was served upon respondents on February 19, 1999. Respondents' answer was served by mail on March 11, 1999. Respondents acknowledge that their answer is late, but they ask that their delay be excused because their attorney was out of the country until shortly before she prepared and served the answer. I am not persuaded that respondents' brief delay has prejudiced petitioner, and I will excuse respondents' delay (Application of a Child with a Disability, Appeal No. 95-41).

        Petitioner also contends that respondents forfeited their right to pursue any remedy against petitioner by moving from the Taconic Hills Central School District to Sharon, Connecticut prior to requesting that an impartial hearing be held. Respondents reportedly moved into petitioner's school district in August, 1995, and they moved to Connecticut in mid-April, 1998. They requested the hearing in this proceeding on June 10, 1998. The hearing in this proceeding began on August 7, 1998. The Board of Education made a pre-hearing motion to dismiss this proceeding based upon the decision in Thompson v. Board of Special School District No. 1 et al., 144 F 3d 574 (8^th Cir., 1998) which held that a claim against a school district was not properly brought under the Individuals with Disabilities Education Act (IDEA) when a hearing was requested after the child had left the school district. The hearing officer denied the Board of Education's motion. I concur with his determination. The claim in Thompson was not for an award of tuition reimbursement, as the court noted in that case. A monetary claim may be asserted after a child has left the district (Application of a Child with a Disability, Appeal No. 93-26; Application of a Child with a Disability, Appeal No. 98-73).

        The Board of Education argues that respondents may not assert a claim for tuition reimbursement pursuant to the IDEA because their child has never attended a public school in the United States. Petitioner relies upon the June 4, 1997 amendments to the IDEA, one of which provided that:

"If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment" (20 USC 1412 [a][10][c][iv]).

        While the statute as amended affirmatively provides that an award of tuition reimbursement may be made under certain circumstances, it does not follow that the parent of a child who has not previously received special education cannot receive such an award. As was noted in Application of a Child with a Disability, Appeal No. 98-25, the authority for an award of tuition reimbursement is found in 20 USC 1415, which was not amended in 1997. Absent persuasive evidence to the contrary, I decline to construe the amended IDEA as having been intended to preclude an award of tuition reimbursement for any child who has not attended public school.

        Respondents' daughter is nine years old. She attended nursery school and pre-kindergarten in Toronto, Canada, where she reportedly did well. Respondents began looking in the spring of 1995 for a school for their daughter to attend during the 1995-96 school year. They reportedly contacted petitioner's Roe-Jan Elementary School, but they did not register their daughter in that or any of petitioner's schools during the 1995-96 school year. Instead, they enrolled her for kindergarten at the Hawthorne Valley School in Ghent, New York. The mother reported that the child did well in kindergarten, but was to be held back in that grade for the 1996-97 school year because of a school policy requiring that students remain in kindergarten until age seven, and because staff at the school expressed concerns about possible developmental delay. The child's mother testified at the hearing that respondents were concerned about having the child remain in kindergarten, so they met with the principal of petitioner's Roe-Jan Elementary School in the spring of 1996 (Transcript, page 244). The principal showed them a transitional class for children needing additional preparation for the first grade, which was unacceptable to respondents because the mother did not like the appearance of the children in that class and she was uncomfortable with the overall appearance of the school building (Transcript, page 246).

        Respondents did not register their daughter to attend one of petitioner's schools during the 1996-97 school year. Instead, they enrolled the child in the Berkshire Country Day School in Lenox, Massachusetts. The child's mother testified that a psychologist employed by that private school had informally assessed the child in August, 1996, and reported to respondents that their daughter's skills were significantly delayed. She further testified that her child was admitted to the Berkshire Country Day School with the proviso that she be privately tutored to make up for the reading and writing instruction which the mother claimed had not been provided to the child at the Hawthorne Valley School during the 1995-96 school year. In any event, the child was reportedly tutored for 40 minutes a day during the 1996-97 school year by the private school's psychologist, who reportedly used the Orton-Gillingham technique to teach the child to read. The child's mother also testified that her daughter became more anxious in the classroom during the 1996-97 school year because she had difficulty understanding oral instructions.

        The child reportedly also had difficulty paying attention in school. At the suggestion of the Berkshire staff, respondents had their daughter seen by a private psychologist in the spring of 1997. The psychologist reportedly opined that the child did not have an attention deficient disorder, but that she appeared to be very anxious. Nevertheless, the girl's parents agreed to try the use of Ritalin with her for a period of six weeks to see if that medication would improve the child's ability to pay attention. The mother testified that the drug did not appear to help her child.

        According to the child's mother, three of the child's teachers at the Berkshire Country Day School recommended that the child be retained in the first grade for the 1997-98 school year (Transcript, page 252). I note that there are no records of the child from the Berkshire Country Day School in the record of this proceeding. Respondents began to explore alternative placements for their daughter. In late July, 1997, they had their child evaluated at the Kildonan School. On the Wide Range Achievement Test, Revision 3 (WRAT-3), the child, who had recently completed the first grade, obtained grade equivalent (and standard) scores of 2.8 (113) for reading, 1.0 (86) for spelling, and 1.7 (97) for arithmetic (Exhibit 4). The Gray Oral Reading Test (GORT) was administered to the child who did not achieve even a first grade equivalent score because she took too long and made too many errors reading two paragraphs (Transcript, page 430). At the hearing, the child's mother testified that she and her husband were told that the child was learning disabled, and that she would benefit from Kildonan's program. The parents advised the Assistant Director of Admissions for Kildonan that they would probably enroll the child in that school (Transcript, page 257).

        On August 14, 1997, the child was privately evaluated by a psychologist at the Yale University School of Medicine. She achieved a verbal IQ score of 123, a performance IQ score of 100, and a full scale IQ score of 113, but the evaluator noted that a disparity between verbal and performance scores was common among children of this age, with nearly one third of children in the normative sample obtaining differences of this size or greater. The Yale psychologist reported that the child's lowest IQ subtest score was on the arithmetic test, and that her weakest area was in performing tasks which required rapid visual analysis of stimuli. The latter was reflected by her composite score of 83 for processing speed. The child achieved standard scores of 127 on the picture vocabulary portion of the Woodcock Johnson Revised (WJ-R), which is an achievement test, and 106 on the Developmental Test of Visual Motor Integration. She achieved a standard score of 96 for broad written language on the WJ-R. The Yale psychologist reported that the child demonstrated good phonetic analysis, but weaker skill in integrating phonemes. At the hearing, the CSE psychologist testified that the ability to reintegrate phonemes was a "splinter" skill, which was not "what you are looking for in reading" (Transcript, page 64). The Yale psychologist also reported that respondents' daughter demonstrated mild difficulty with rote auditory verbal learning, but he noted that her short-term memory was within normal limits. He further reported that visual memory was a relative weaknesses of the child, and that the child had weak written language skills. The psychologist opined that the child would do well in a structured academic setting which was attuned to her personal strengths and weakness.

        Respondents contacted the chairperson of petitioner's committee on special education (CSE) after they visited the Kildonan School. The child's mother testified that respondents wanted to find out what petitioner could offer to their child, while the CSE chairperson testified that respondents were seeking transportation for the child to the Kildonan School. The CSE chairperson testified that he advised respondents that they should refer their child to the CSE. On September 3, 1997, the child's father came to the district offices, where he provided information about her to petitioner's staff, who completed a school census enumeration form (Exhibit 1). The child's father also signed a consent form authorizing the CSE to evaluate the child (Exhibit 2), and a form authorizing the Berkshire Country Day School to release his daughter's educational records to petitioner's staff (Exhibit 3).

        On September 3, 1997, the child father also delivered a letter dated September 2, 1997, to which he attached copies of the evaluation reports from the Kildonan School and Yale University, and in which he indicated that the child would begin attending the Kildonan School on September 10, 1997 (Exhibit 4). In his letter, the child's father expressed his hope that petitioner would transport his daughter to Kildonan together with other students who lived in the district but attended Kildonan. He asserted that the Yale psychologist had recommended that the child attend a "specially structured school" such as the Kildonan School.

        At the hearing in this proceeding, the CSE chairperson testified that it was the district's practice to hand or mail a copy of the State Education Department's A Parent's Guide to Special Education for Children Ages 5-21 (Exhibit 8), which explains due process rights, to parents at their initial contact with the district. Although he assumed that this had been done when the child's father came to the district offices on September 3, 1997, the CSE chairperson had no personal knowledge that this was in fact done, and the child's father denied having received a copy of the publication. The child's mother testified that respondents had not received the publication. In any event, the CSE chairperson invited respondents by letter dated September 11, 1997 to meet with the CSE on September 23, 1997 (Exhibit 9). A "Notice to Parents Regarding Due Process Rights" was reportedly sent with the September 11, 1997 letter to respondents. At the hearing, the child's mother acknowledged that she had received the single page notice with the letter inviting respondents to the CSE (Transcript, page 265). The notice advised the parents that they could request an impartial hearing for various reasons, one of which was if they disagreed with the school district regarding the provision of an appropriate special education program for their child.

        The CSE chairperson testified that the CSE had not evaluated the child in order to respect respondents' wishes that she not be further evaluated. He further testified that the CSE had not received the child's records from the Berkshire Country Day School, and that he had not pursued the matter of obtaining them because respondents were only seeking to obtain transportation from petitioner (Transcript, page 157). The CSE reviewed the results of the private psychological evaluation which was done at Yale University and the educational testing done at Kildonan. The CSE chairperson testified that he had prepared a draft "bare bones" individualized education program IEP which was discussed with the child's mother at the CSE meeting which was held on September 23, 1997. He asserted that the draft IEP (Exhibit 10) was intended to be "... a place to begin to develop a more comprehensive plan for how we would deal with [the child] if she was in our school" (Transcript, page 94). The CSE chairperson acknowledged that the draft IEP, which indicated that the girl would receive 45 minutes of consultant teacher services five times per week, was not completed by the CSE because the child's parents were not interested in any of petitioner's educational programs. The CSE did recommend that the child be classified as learning disabled.

        By letter dated September 30, 1997, the CSE chairperson notified respondents of the CSE's recommendation for their daughter, i.e., that she be classified as learning disabled and that she be transported to the Kildonan School (Exhibit 13). A copy of an IEP was sent with the notice of recommendation. The IEP included some additional information about the child which her mother had provided to the CSE at the meeting. It also described the child's program and placement as "Grade 2 - Parent preferred placement at Kildonan, not CSE placement" (Exhibit A). The IEP provided that the child would receive daily transportation to and from the Kildonan School. On October 14, 1997, the child's mother signed a form acknowledging receipt of a copy of her child's IEP for the 1997-98 school year, and consenting to have the child receive "the described special education program" (Exhibit 15). On October 22, 1997, petitioner approved its CSE's recommendation with regard to respondents' daughter.

        Respondents had enrolled their child in the Kildonan School on September 9, 1997 (Transcript, page 257). The child began attending classes at the private school on or about September 10, 1997. Petitioner provided transportation to and from the Kildonan School until April 8, 1998 (Exhibit 17). It reportedly stopped providing transportation because respondents moved to Connecticut on April 9, 1997. Petitioner's CSE chairperson testified that he had not heard from the child's parents during the course of the 1997-98 school year, and he had not scheduled an annual review of the child by the CSE because he became aware of respondents' departure from the district. The child's mother testified that her husband had called the CSE chairperson in March, 1998, and had allegedly described the girl's progress at the Kildonan School.

        In a letter dated May 13, 1998, the child's mother asserted to petitioner's superintendent of schools that she had been unaware of her due process rights, and would have insisted upon the Taconic Hills Central School District providing an appropriate educational program to her daughter if she had been aware of her rights (Exhibit 18). She requested a meeting "to see what could be done about this misunderstanding". The superintendent of schools arranged a meeting between respondents, their attorney, petitioner's CSE chairperson, and its attorney, on June 10, 1998. The CSE chairperson testified that respondents sought a monetary settlement with petitioner, which they did not receive. By letter dated June 10, 1997, the child's mother again asserted that respondents had not been advised of their due process rights, and she requested an impartial hearing (Exhibit 19).

        The hearing in this proceeding began on August 7, 1998. As noted above, the Board of Education moved to have the proceeding dismissed because respondents did not reside in the Taconic Hills Central School District when they requested the hearing. The hearing officer allowed the case to proceed. Testimony was taken on two additional days: September 11, 1998 and October 16, 1998.

        On December 8, 1998 the hearing officer rendered his decision. He noted that the child's parents sought an award of tuition reimbursement, and that such an award could be obtained under certain circumstances. The hearing officer found that petitioner was negligent in complying with the "child find" requirement, i.e., to identify, locate and evaluate all children living within the district who are in need of special education, (see former 20 USC 1414 [a][1][A] and 34 CFR 300.220, and present 20 USC 1412 [a][3][A] and [B] and 34 CFR 300.125 and 300.220 [a], as well as 8 NYCRR 200.2 [a][1]), because the child had entered the district in 1996 but was not classified by the CSE until September, 1997. He further found that petitioner had not fulfilled its obligation to notify respondents of their due process rights and to make a free appropriate public education (FAPE) available to the child prior to her enrollment in a private school. The hearing officer found that the CSE had failed to obtain the results of a physical examination and social history of the child (cf. 8 NYCRR 200.4 [b][1][i] and [iii]), or to obtain more precise information about the nature of her educational disability. He also found that the CSE had failed to observe the child in her classroom (cf. 8 NYCRR 200.4 [b][4][viii]). The child's IEP for the 1997-98 school year was found to be defective by the hearing officer because it did not accurately reflect the results of her evaluation at Yale University and did not include the observations of her teacher. The hearing officer concluded that the Board of Education had failed to offer respondents' daughter a FAPE for the 1997-98 school year. He also concluded that the Kildonan School had provided an appropriate educational program to the child, and that equitable considerations supported their claim for an award of tuition reimbursement. He directed the Board of Education to reimburse respondents for their expenditures for tuition at the Kildonan School during the period between September 10, 1997 and April 8, 1998.

        The Board of Education challenges the hearing officer's determination that it had not offered to provide a FAPE for the 1997-98 school year to respondents' daughter. I must note that neither party disputes the appropriateness of the child's classification as learning disabled. Consequently, I am precluded from reaching that issue (Hiller v. Bd. of Ed. Brunswick CSD et. al., 674 F. Supp. 73 [N.D. N.Y., 1987]). Petitioner bears the burden of demonstrating the appropriateness of the educational 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). An appropriate program begins with an IEP which accurately reflects the results of a child's evaluations to identify his or her 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). Before a CSE can prepare an appropriate IEP, it must evaluate a child in accordance with the Regulations of the Commissioner of Education. A CSE may rely upon a current private evaluation, such as the psychological evaluation which respondents had obtained at Yale University, in lieu of doing its own psychological evaluation (Application of a Child with a Disability, Appeal No. 96-87; Application of a Child Suspected of Having a Disability, Appeal No. 98-80). However, a CSE may not dispense with any of the required elements of an evaluation. Section 200.4 (b) of the Regulations of the Commissioner of Education provides that an initial evaluation of a child suspected of having a disability must include a physical examination, a social history of the child, and an observation of the child in his or her current educational setting. Petitioner's CSE chairperson acknowledged at the hearing that the CSE had not performed a physical examination or social history, and had not observed the child in school (Transcript, page 203). In view of the CSE's failure to conduct an appropriate evaluation of respondent's daughter, I must find the Board of Education failed to meet its burden of proving that it had offered to provide a FAPE to the child for the 1997-98 school year (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 98-54).

        A board of education may be required to pay for the educational services which a child's parents have obtained for her, 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 for reimbursement (School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 [1985]. The fact that the private school selected by the parents has not been approved by the State Education Department as a school for children with disabilities (as is the case in this proceeding) 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]). Having found that petitioner failed to prove that it had offered to provide appropriate educational services to the child, I must now determine whether the services provided by the Kildonan School were appropriate.

        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 1997-98 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 Academic Dean and Director of Admissions for the Kildonan School, Ms. Katherine Schantz, testified that respondents' daughter was enrolled in the "Lower School" which consisted of approximately 30 students in grades 2 through 6. She further testified that the school is designed to provide intensive language remediation using the Orton-Gillingham teaching methodology primarily through a 1:1 tutorial program for 45 minutes each day, as well as in small groups of six to eight students in core courses, such as history, mathematics, science, literature, and the arts. The Orton-Gillingham technique is a multisensory, systematic approach to teaching a child to learn sound-symbol relationships necessary for the child to be able to read and write.

        Ms. Schantz testified that respondent's daughter had the characteristics of a typical dyslexic child, i.e., having trouble learning sound-symbol relationships and recognizing sight words (Transcript, pages 374-375). She also testified that the child's writing was somewhat immaturely produced, and her spelling was inconsistent. Ms. Schantz described the child's dyslexia as mild, but said its effect was compounded by the girl's attention difficulties. She opined that respondents' child could not work well in a large class, and required the small classes and extra attention which the Kildonan School had provided to her. Ms. Schantz explained that the girl's sight word vocabulary was improved by working on high frequency words to develop automaticity, and that her deficit on processing speed had been addressed by teaching on a 1:1 basis. She was questioned about the girl's progress while attending the Kildonan School during the 1997-98 school year with reference to the scores which she had received on certain standardized tests which were administered to her in January and May, 1998. On the WRAT-3 in May, 1998, she achieved standard scores of 87 for reading and 90 for spelling, indicating a decline in reading and a slight improvement in spelling since she took that test in July, 1997. However, she achieved a grade equivalent score of 1.9 for reading rate, accuracy and passage comprehension on the GORT in January, 1998, indicating a significant improvement in her performance since the GORT was administered to her in July, 1997. The child's performance in mathematics appears to have improved slightly during the school year. Ms. Schantz testified that respondents' child did not test consistently, but that she was making progress. Although the record does not include much credible evidence regarding the child's special education needs, I must nevertheless premise my finding upon that evidence. Upon the record which is before me, I find that respondents have met their burden of proving that the services which the Kildonan School provided were appropriate for their daughter.

        The Board of Education also challenges the hearing officer's determination that respondents' claim for tuition reimbursement was supported by equitable considerations. Petitioner asserts that the child's parents did not notify the district that they were dissatisfied with the CSE's recommendation that their daughter receive only transportation to the Kildonan School until it was too late in the 1997-98 school year for petitioner and its CSE to attempt to correct any alleged deficiency in that recommendation. The Board of Education points to the fact that at the September 23, 1997 CSE meeting the CSE offered to recommend that the child receive consultant teacher services in petitioner's RoeJan Elementary School, but respondents indicated that they had every intention of having the child attend the Kildonan School and they were only seeking transportation for their daughter (Transcript, page 362). It also relies upon the fact that on October 14, 1997 the child's mother formally consented to the implementation of the IEP which provided that the child would be transported to the private school (Exhibit 15). At the hearing, the child's mother acknowledged that she had been aware of her right to request an impartial hearing. However, she insisted that she was unaware of her right to request a hearing for the purpose of obtaining an award of tuition reimbursement until the spring of 1998 (Transcript, page 338).

        Although a hearing officer may award a parent the relief of tuition reimbursement, the primary purpose of conducting a hearing is to ensure that the child receives a free appropriate public education (Application of a Child with a Disability, Appeal No 95-82; Application of a Child with a Disability, Appeal No. 95-83). Parents must promptly resort to the due process procedures, so that school authorities have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 1992); Bernardsville Board of Education v. J. H., 42 F. 3d 149 [3d Cir., 1994]). I am aware that the IDEA was amended on June 4, 1997 to require that school districts provide parents with a procedural safeguard notice which includes the "requirements for unilateral placement by parents of children in private schools at public expense" (20 USC 1415 [d][2][H]). The notice of due process rights which petitioner provided to respondents did not include that information. However, I do not find that to be persuasive upon the facts in this case.

        The child's mother was quite clear in her testimony that she and her husband were not interested in enrolling their child in the public schools when they moved into petitioner's district (Transcript, page 285), and that she did not like petitioner's RoeJan Elementary School (Transcript, page 288). She also acknowledged that she had known about her child's reported processing problem as early as November, 1996, but had not advised petitioner's school census taker about that which would have allowed petitioner to perform its child find responsibility. Respondents waited until a few weeks before the start of the 1997-98 school year to even refer the child to the CSE. I find the CSE chairperson's testimony that respondents were not interested in petitioner's educational program, and that respondents had enrolled their child and referred her to the CSE for the sole purpose of obtaining transportation beyond the 15 mile limit (see Sections 3635 [1] and 4402 [4][d] of the Education Law) to be highly credible. While I do not condone the failure of petitioner's CSE to perform a complete evaluation and to prepare an IEP which met all of the regulatory requirements, that failure is significant for the purpose of determining whether petitioner had met its obligation to offer the child a FAPE. It does not, in my opinion, provide any justification for respondents' extensive delay in requesting an impartial hearing until after the school year was nearly over and after they had moved out of the district (Application of a Child with a Disability, Appeal No. 96-5). Therefore I do not concur with the hearing officer's finding that respondents' claim for tuition reimbursement is supported by equitable considerations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's finding with respect to equitable considerations and his order that petitioner reimburse respondents for their tuition expenditures are hereby annulled.