99-094

        Petitioner, the Board of Education of the Bethlehem Central School District, appeals from an impartial hearing officer's decision which ordered it to bear one-half of the cost of the residential placement of respondents' son at the Kildonan School (Kildonan) during the 1998-99 school year. The hearing officer also ordered petitioner's committee on special education (CSE) to meet for the purpose of conducting a "manifestation determination" (see 20 USC [K][4]), and he directed that the CSE have the boy evaluated, including an independent psychiatric consultation. Petitioner appeals from those portions of the hearing officer's decision as well. Respondents cross-appeal to the extent that the hearing officer limited petitioner's financial responsibility for their son's placement to 50 percent. They seek a determination that petitioner should bear 100 percent of the cost of that placement. The appeal must be sustained in part. The cross-appeal must be sustained.

        Respondents' son is seventeen years old. His classification as learning disabled is not in dispute. He was enrolled in the tenth grade at Kildonan during the 1998-99 school year. Kildonan is located in Amenia, New York. It offers a college preparatory curriculum for students with dyslexia, i.e., students who have difficulty reading. The school has not been approved by the State Education Department to provide instruction to children with disabilities.

        The boy entered kindergarten in petitioner's schools, and remained in those schools through the ninth grade. He was evaluated by a psychologist at respondents’ request at the end of the third grade (Exhibit D-23). The psychologist found that the boy manifested eight of the characteristics of an attention deficit disorder (ADD), but not to a significant degree, except in times of diminished structure or task performance. In any event, he did not specifically diagnose the child as having ADD. He recommended that the boy’s teachers provide an enhanced degree of structure and support to the child. While in the fourth grade, the boy was reportedly diagnosed as having an attention deficit hyperactivity disorder (ADHD), and began receiving Ritalin to help him maintain attention (Exhibit P- GGG).

        The child was also referred to the CSE while in the fourth grade. His cognitive skills were found to be in the average range. Although the boy’s reading skills were reported to be in the 95^thpercentile, his spelling and written language skills were determined to be significantly discrepant (Exhibit D-21). In December, 1992, the CSE recommended that the child be classified as learning disabled, and that he remain in a regular education class while receiving resource room services to improve his writing and spelling. The boy reportedly continued to receive resource room services while in elementary school in petitioner’s school district. In May, 1994, the CSE agreed to add a special alert to the boy’s individualized education program (IEP) indicating that he had ADD (Transcript, p. 845).

        Respondents’ son was evaluated by an independent psychologist in January, 1995, when he was in the sixth grade (Exhibit P-G). The psychologist reported that the boy had achieved a verbal IQ score of 102, a performance IQ score of 117, and a full scale IQ score of 110. She noted that the child had difficulty doing oral arithmetic problems, and performing tasks which required the use of his visual memory. On the Wechsler Individual Achievement Test (WIAT), the boy achieved grade equivalent (and standard) scores of 7.4 (108) for basic reading, 7.1 (108) for reading comprehension, 6.0 (101) for mathematics reasoning, 5.9 (98) for numerical operations, 3.4 (78) for spelling, 4.4 (91) for listening comprehension, 5.0 (100) for oral expression, and 3.0 (84) for written expression. The psychologist further reported that the boy’s rate of work was unusually slow on all subtests of the WIAT. Although the boy applied phonic rules for spelling, he committed errors because of lapses in his visual memory. He achieved a perfect score on a test of his auditory discrimination skills.

        The boy’s performance on the Test of Adolescent Language (TOAL) was generally in the average range. However, the psychologist indicated that the boy’s scores were low for an individual with an IQ of 110. The boy’s memory skills were assessed on the Wide Range Assessment of Memory and Learning (WRAML). He did well on each of the subtests, except for "finger windows", which requires the use of rote memory of a series of visual locations. The psychologist opined that the boy’s weakness in this area was the cause of his low achievement in spelling. The boy’s score on the Children’s Depression Inventory was somewhat elevated, which the psychologist attributed to the boy’s feelings of ineffectiveness. She noted that he was discouraged and unmotivated to do school work, and that he was taking Ritalin for ADD. The psychologist suggested that the boy use a word processor with spell check, while also being systematically instructed in spelling in a way which took into account his visual memory deficit. She expressed concern about the boy’s relatively unsophisticated use of language, and suggested he be observed for additional evaluation and instruction. The psychologist also suggested additional study of the boy’s attitude in the context of his poor motivation, while noting that he needed to take responsibility for his own work.

        Respondents’ son continued to receive resource room services while in petitioner’s middle school for grades 6 through 8. He completed the eighth grade in the 1996-97 school year. The boy’s IEP for the ninth grade indicated that his reading skills were generally above average, but his reading rate was approximately two years below grade level (Exhibit D-1). Similarly, his mathematics skills were generally above grade level, except that his numeration skills were about one year below grade level. The IEP did not reveal at what level the boy’s writing and spelling skills were, notwithstanding the fact that his disability was manifested in those areas. It included a special alert that he had ADHD, but had not taken medication for that condition during the 1996-97 school year.

        For the 1997-98 school year, the CSE recommended that respondents’ son continue to receive five periods per week of resource room services. The CSE noted on the IEP that the boy had an attention deficit hyperactivity disorder (ADHD), and he benefited from frequent monitoring. It indicated that he should receive preferential seating to minimize distractions. The CSE also indicated that the boy should use a spell check device as part of the writing process. Respondents did not attend the CSE meeting at which their son’s IEP was prepared. The CSE chairperson testified that the parents did not object to their son’s IEP for the 1997-98 school year.

        While in the ninth grade at the Bethlehem High School, respondents' son was reportedly tardy and exhibited inappropriate or disruptive behavior on a number of occasions (Exhibit P-A). Among other things, he reportedly "cut", i.e., failed to attend, various detention classes to which he had been assigned. During the first semester of the 1997-98 school year, the boy had a total of 37 disciplinary referrals. A school social worker recommended that the boy receive counseling. Respondents were invited to a CSE meeting which was held on February 11, 1998 to consider the social worker's recommendation. They did not attend the CSE meeting, but they reportedly agreed with the social worker's recommendation. The CSE amended the boy's IEP to include 30 minutes of individual or group counseling per week (Exhibit D-6). He failed to meet with his counselor on a number of occasions (Exhibit P-WW), and he continued to receive disciplinary referrals (Exhibits P-V through Z, and BBB).

        On February 23, 1998, the Mather-Woodcock Group Writing Tests were administered to respondents' son. The boy achieved age equivalent (and standard) scores of 10.4 (80) for basic writing skills, 9.2 (70) for dictation spelling, 12.1 (93) for editing, 14.10 (99) for writing fluency, 15.5 (102) for expressive writing, and 17.7 (108 for writing samples. In total, his performance was comparable to that of an average 12 year old, or three years below his actual age. On the Stanford Diagnostic Reading and Mathematics Tests in the Spring of 1998, the boy achieved grade equivalent (and percentile) scores of 7.6 (31) for reading, and 7.7 (28) for mathematics.

        The CSE reconvened on April 2, 1998 to conduct its annual review and prepare the boy's IEP for the 1998-99 school year. The boy and his father attended the CSE meeting. The CSE recommended that the boy receive five periods of resource room services and 30 minutes of individual or group counseling per week during the 1998-99 school year (Exhibit D-9). The CSE also "suggested" that the boy use a writing lab at the high school. At the hearing, the CSE chairperson testified that the writing lab was not part of the special education program, but was a place where the boy could obtain additional assistance during his free periods (transcript, p. 204). The boy’s IEP included four broadly worded annual goals, "… will improve his writing skills; …. will improve his organization and study skills; … will improve his classroom behavior; and … will demonstrate impulse control". The IEP indicated that the test time limits would be doubled, the boy would not be graded for his spelling except on spelling tests, and that he could use a calculator for math. It also indicated that he could use a spell check device.

        By letter dated May 27, 1998, the boy’s parents objected to their son’s IEP (Exhibit D-11). They asserted that their son had made little progress during the three preceding years, and indicated that they would seek an independent evaluation of the boy at school district expense. They also requested information about a private school placement. The CSE chairperson responded to the parents’ letter by telephone on June 4, 1998 and by letter on June 12, 1998 (Exhibit D-12). He advised them that their son had been scheduled for a triennial evaluation as of March, 1998, and that the evaluation would in fact be scheduled to take place in the Fall. The chairperson asserted that respondents could ask for an independent evaluation if they were dissatisfied with the results of the yet to be conducted triennial evaluation. He also indicated that the written information which they had requested had been sent to them.

        The boy passed his English course, but failed his earth science, global studies, and Spanish courses, at the end of the 1997-98 school year (Exhibit P-FFF). He attended summer school at the Hoosac School in Hoosic, New York, where he passed earth science and global studies courses.

        Respondents had their son evaluated privately by a psychologist in July and August, 1998 (Exhibit P-GGG). The psychologist reported that the boy had achieved a verbal IQ score of 101, a performance IQ score of 90, and a full scale IQ score of 95. His long-term and short-term memory skills were reported to be areas of strength. He displayed a significant weakness in his ability to concentrate and apply numerical reasoning to solve problems. The psychologist noted that the boy's performance was adversely affected when he was required to perform tasks within time limits, and suggested that this might be responsible for the significant decline in the boy’s performance IQ score since the 1995 evaluation. On the Woodcock Reading Mastery Test-Revised, respondents’ son achieved grade equivalent (and standard) scores of 8.7 (93) for word identification, 5.9 (92) for word attack, 5.1 (84) for word comprehension, 10.7 (102) for passage comprehension, and 15.3 (105) for visual/auditory learning. Projective testing revealed that the boy was resistant to parental involvement in his life, and that he might be experiencing some depression. The private psychologist opined that the boy needed an educational program which addressed his dyslexia and ADHD, and which provided him with skills and strategies to succeed academically and socially.

        By letter dated September 10, 1998, respondents were informed that the CSE would meet with them on September 16, 1998 (Exhibit D-14). They requested that the meeting be rescheduled so that the private psychologist could accompany them. They also requested reimbursement in the amount of $600 for the private evaluation (Exhibit D-15). In their September 11, 1998 letter, respondents advised the CSE chairperson that they had placed their son in Kildonan as of September 7, 1998, and that they intended to have that placement be at public expense.

        The boy was evaluated by petitioner’s school psychologist on October 15 and 16, 1998 (Exhibit D-21). The school psychologist noted that although the boy had reportedly been diagnosed as either ADD or ADHD, the boy’s school records did not reveal a basis for the diagnosis. He reported that a cognitive screening test revealed that the boy "evidenced distress on tasks with heavy loading in the areas of planning and attention", but his other cognitive skills were intact. The boy was found to have age appropriate visual memory skills. The school psychologist also administered parts of the TOAL and the WIAT to assess the boy’s receptive language reading and writing skills. He reported that the boy's skills were consistently in the average range. I note that on the WIAT, the boy achieved standard (and percentile) scores of 75 (5) for spelling, 80 (9) for written expression, and 72 (3) for writing composite. The school psychologist opined that resource room services appeared to be appropriate for the boy, and that he should continue to use a word processor with a spell check device.

        On October 20, 1998, the CSE met with respondents to review the results of the boy’s evaluations, and to revise his IEP (Exhibit D-18). The school psychologist and the private psychologist discussed their evaluations, and the latter's opinion that the boy had dyslexia, i.e., difficulty with reading. The CSE recommended that the boy receive five periods of resource room services and 30 minutes of individual or group counseling per week (Exhibit D-17). It also recommended that a speech/language therapist assess the boy's auditory processing and pragmatic language skills, and that a functional behavior analysis be done to determine the relationship between the boy's learning behavior and educational achievement.

        The boy's parents requested an impartial hearing on November 22, 1998 (Exhibit P-M). An impartial hearing officer was appointed on January 21, 1999. The hearing began on February 3, 1999, and continued for seven days, ending on July 29, 1999. The hearing officer rendered his decision on September 27, 1999. He found that the Board of Education had failed to meet its burden of proving that it had offered to provide an appropriate educational program to respondents' son for the 1998-99 school year, because the CSE had not developed procedures to identify behavior which impaired the boy's learning, and had not included a transition plan in the boy's IEP. He also found that the boy's IEP annual goals and short-term objectives were not based on the boy's present level of performance. The hearing officer also faulted the CSE for not addressing the boy's behavioral needs which had resulted in the disciplinary action which was taken against him during the 1997-98 school year. With regard to the appropriateness of the boy's placement at Kildonan during the 1998-99 school year, the hearing officer noted that the student continued to exhibit the same pattern of behavior in that school as he had in petitioner's high school. He found that Kildonan was either unwilling or unable to deal with the boy's behavioral difficulties as a priority. He nevertheless ordered the Board of Education to pay for one-half of the cost of the boy's residential placement at Kildonan, and directed the CSE to properly evaluate the boy.

        Petitioner challenges the hearing officer's determination that it had not demonstrated that it had offered an appropriate educational program to the boy. 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).

        I must initially note that there are two IEPs for the 1998-99 school year. The first was prepared in April, 1998, and the second was prepared in October, 1998. Since the parents sought an award of tuition reimbursement in this proceeding, I find that the relevant IEP is the IEP which they had when they unilaterally enrolled their son in Kildonan (Application of a Child with a Disability, Appeal No. 98-14).

        The Board of Education’s assertion that the hearing officer's determination was substantially inappropriate is not supported by the evidence in the record. It contends that the boy's IEP properly identified the nature of his disability, and provided that he would receive appropriate services to meet his special education needs. I disagree with the Board of Education's contentions.

        A CSE must have adequate and timely evaluative data to prepare an appropriate IEP for a child (Application of a Child with a Disability, Appeal No. 99-5). This boy's triennial evaluation should have been conducted before the CSE prepared an IEP for him. A triennial evaluation must be sufficient to determine the student's individual needs, educational progress and achievement, ability to participate in the regular education program, and continued eligibility for special education (8 NYCRR 200.4 [e][4]). The boy’s triennial psychological evaluation was ultimately performed in October, 1998. However, the CSE must have concluded that additional information was required because it recommended that the boy’s auditory processing and pragmatic language skills be assessed, and that a functional behavior assessment be performed. The latter is particularly significant in terms of the academic and behavioral difficulties which the boy had during the 1997-98 school year. The CSE was aware of those difficulties when it prepared the boy’s IEP in April, 1998.

        I must note that while the boy’s IEPs since the 1993-94 school year have apparently included a special alert that he has ADHD, there appears to be little information about the extent of that condition, or the effect it has on the boy’s ability to function in regular education classes. In his October, 1998 evaluation, the district’s psychologist expressed doubt about whether the boy actually had the condition (Exhibit D-21). In addition to questions about the boy’s ADHD, I find that there are additional concerns raised by the boy’s apparent history of responding slowly to oral communication and having physical difficulty with his handwriting. There is no evidence that the CSE has obtained a neurological evaluation which could assist it in accurately identifying the nature of the boy’s disability. Consequently, I find that the IEP did not accurately describe the nature and extent of the boy’s disability.

        The hearing officer also found that the boy’s IEP annual goals and objectives were not based upon his present levels of performance. The results of the Mather-Woodcock Group Writing Tests were reported on the boy's IEP. The report of the results indicated that writing tasks below the 10.2 age level would be easy for the boy, and that writing tasks above the 14.10 age level would be quite difficult. The boy was 15 years old, and was to have been enrolled in tenth grade regular education classes, where written assignments could be expected to be difficult for him. The IEP annual goal that the boy would "improve" his writing skills was supported by the objective that he would "continue to write in a variety of formats which include essays, stories, letters, reports or projects with 80% consistency". A second objective provided that he would "edit his written work to apply grammar, punctuation and sentence structure to the 85% level of accuracy". I find that the goal and its objectives are too vague to establish a baseline and an expectation for the level of progress which the boy was to make during the 1998-99 school year.

        The hearing officer further found the boy's IEP deficient because it did not include a statement of needed transition services (cf. 8 NYCRR 200.4 [c][2][viii]). Having examined the IEP, I concur with his finding. In view of all of the foregoing, I further find that petitioner did not meet its burden of demonstrating that it had offered to provide an appropriate educational program to respondents' son during the 1998-99 school year.

        A board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education to their 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]).

        Having found that petitioner did not meet its burden of proof with regard to the appropriateness of its educational program, I now must consider the appropriateness of the services provided to the boy by Kildonan. Respondents bear the burden of proving that those services were appropriate (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, 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, or have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        The Associate Head of Kildonan testified about the school at the hearing. Kildonan offered specialized instruction using the Orton-Gillingham methodology for dyslexic students who following a standard college preparatory high school curriculum. Some of the students were ADD or ADHD, in addition to being dyslexic. There were 70 students enrolled in grades nine through twelve. The school provided 45 minutes of individual instruction each day in a "tutorial" class to remediate reading and writing disabilities (Transcript, p. 892). Classes in academic subjects averaged between eight and ten students. For two hours every evening, students attended a structured study hall, where teachers assisted them with their homework. The Kildonan Associate Head testified that about 60 % of the assignments were related to the students’ remedial programs, and the remaining 40 % related to their regular coursework. She also testified that by offering a language intensive program in small classes, the school forced students to pay attention and participate more than would be the case in large regular education classes. She opined that respondents’ son very much needed a structured educational setting (Transcript, p. 931).

        The Associate Head testified that the boy had difficulty with sound-symbol relationships which was manifested in his dysgraphia (writing deficits). She further testified that he had made significant progress in writing while at Kildonan during the 1998-99 school year. She noted that he had learned to use cursive writing, and that he could produce a longer and more coherent composition than before he entered the school (Transcript, p. 907). The boy also learned to type, and prepared some of his assignments at Kildonan on a word processor. In support of her testimony, respondents submitted samples of their son’s written school work while attending Kildonan (Exhibit P-CCC), which could be compared with sample of his writing from the Spring of 1998 while in petitioner’s high school (Exhibit P-PPP). The boy passed each of his courses at Kildonan (Transcript, p. 873; Exhibit P-RRR).

        I find that respondents’ son required primary special education instruction to address what appears to be a language-based disability compounded by attention difficulties. I further find that Kildonan offered appropriate special education instruction to address the boy’s special education needs during the 1998-99 school year. While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. of Ed. of the City School District of the City of Yonkers, ___F3d___ [2d Cir., 2000]). A residential placement is among the most restrictive of educational placements, and should not be selected unless it is required in order for a child to benefit from his educational placement (Application of a Child with a Disability, Appeal No. 98-69). Respondents have presented some evidence that their son required the structured setting Kildonan provided, including its evening study hall. The child’s mother also testified that she and her husband had attempted to find a geographically nearer school offering the kind of program the boy required so that he would not have to board at the school. Her testimony that there was no such school is unrebutted. Therefore, I find that respondents have met their burden of proof with regard to their son’s unilateral placement.

        Respondents must also show that their claim for reimbursement is supported by equitable considerations. I have considered the fact that petitioner asserted at the hearing that the parents did not afford the district an adequate opportunity to prepare a new IEP for the boy after his August, 1998 evaluation before unilaterally placing him at Kildonan. However, I must note that petitioner failed to conduct a timely triennial evaluation, and had informed the parents that the triennial would not be conducted until the Fall of 1998. The record shows that respondents have cooperated with the CSE. I find that their claim for tuition reimbursement is supported by equitable considerations. I further find that there was no basis for the hearing officer to limit their recovery to 50% of the cost of their son’s residential placement.

        As noted above, the Board of Education also challenges the hearing officer's directive that the boy be evaluated by a neurologist and a psychiatrist, and that a social history be prepared by a social worker experienced in family dynamics. I have already determined that a neurological evaluation should have been performed. During the hearing there were a number of references to the boy's behavior in school, as well as his relationship with his parents. Under the circumstances, I find that the hearing officer did not abuse his discretion by ordering that a psychiatric evaluation be performed. However, I find that that the social history ordered by the hearing officer would be redundant with the psychiatric evaluation.

        Finally, petitioner challenges the hearing officer's order that the CSE meet to conduct a manifestation determination. Petitioner asserts that there is no requirement that the CSE do so because respondents' son was not suspended from school either singularly or cumulatively for more than ten school days. The hearing officer found that the child had displayed behavioral difficulties over an extended period of time. He criticized petitioner's CSE for not intervening to assess the nature of the boy's behavioral difficulties, i.e., to perform a functional behavioral analysis, and to make a manifestation determination with regard to the boy's many disciplinary referrals during the 1997-98 school year. I agree with petitioner that the requirement to make a manifestation determination (20 UDSC 1415 [K][4]) may not have been applicable in this instance because of the manner in which discipline was imposed (detention rather than suspension). However, a functional behavioral analysis would assist the CSE in planning appropriate educational programs in the future. I will sustain petitioner's appeal to the limited extent of annulling the hearing officer's order to conduct a manifestation determination review.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it required the CSE to conduct a manifestation determination review and a social history, and to the extent that it limited the parents' reimbursement to 50% of the cost of their son's residential placement in Kildonan during the 1998-99 school year; and

IT IS FURTHER ORDERED that petitioner shall reimburse respondents for the cost of their son's residential placement at Kildonan during the 1998-99 school year, upon respondents' presentation of proof of payment for such placement.