99-097

       Petitioners appeal from the decision of an impartial hearing officer denying their requests for tuition reimbursement for the second half of the 1998-99 school year and for compensatory education. Respondent cross-appeals from the portions of the hearing officer's decision which found that its recommended program for the 1998-99 school year was inappropriate and that equitable considerations favored petitioners’ claim for tuition reimbursement. The appeal must be dismissed. The cross-appeal must be sustained in part.

        The student was sixteen years old and attending the Marvelwood School (Marvelwood), at the time of the hearing. Marvelwood is a private school in Connecticut, which is not on the New York State list of approved schools for students with disabilities. The student has been classified as learning disabled since the second grade, and his classification is not in dispute in this proceeding. Respondent’s committee on special education (CSE) recommended that the student receive resource room services while in the second grade. In the third grade, he received consultant teacher services. He received resource room services in the fourth and fifth grades. In the sixth and seventh grades, he was placed in "special class inclusion" classes, and received resource room services (Exhibit SD-1).

        In June, 1990, the student achieved a verbal IQ score of 118, a performance IQ of 114, and a full scale IQ of 118 on the Wechsler Intelligence Scale for Children-Revised. The psychologist who conducted the evaluation in 1990 noted that the child displayed a relative weakness in number facts and operations. A triennial evaluation was conducted in May, 1993, when the student was in fourth grade. On the Wechsler Intelligence Scale for Children-Third Edition (WISC-III), the student achieved a verbal IQ score of 94, a performance IQ score of 93 and a full scale IQ score of 93. Although there was a 25 point discrepancy between the 1990 full scale IQ score and the 1993 full scale IQ score, the evaluator reported that the results were similar to the results achieved during previous evaluations. The student exhibited a three year delay in his visual motor integration skills. His letter-word identification and math calculation skills were delayed by almost one year, but his other academic skills were at or above grade level (Exhibits SD-2, P-A).

        Another triennial evaluation was conducted in May, 1996, when the student was thirteen years old and in the seventh grade. The evaluator chose not to administer an IQ test because the student’s three previous IQ tests had yielded similar scores. On the Beery Developmental Test of Visual Motor Integration, the student achieved an age equivalent score of 10 years and 10 months. His auditory processing skills were reported to be in the average range. On individually administered standardized achievement tests which had been administered in March, 1996, the student achieved grade equivalent scores of 4.6 for reading and 5.3 for math. It was noted that the student needed structure and encouragement from the special education staff. His special education teacher reported that the student's greatest weakness was in math. She also reported that a teaching assistant worked with the student in all mainstream classes, and he received moderate support in resource room. The teacher indicated that the student needed monitoring to ensure that his assignments would be completed. The student's mother commented that the student's superior artistic ability was inconsistent with the description of poor fine motor skills (Exhibit SD-2).

        The student's Individualized Education Program (IEP) for the eighth grade during the 1996-97 school year was developed in May, 1996. The CSE recommended that the student participate in regular education classes, with five periods of resource room services per week. The CSE also recommended that the student be exempt from a second language. Use of a non-scientific calculator was recommended as a testing modification. A special note indicated that the student was anxious about math, and that it would be helpful for him to retake math tests in the resource room to receive assistance with directions and cues. The student's fine motor development was described as poor (Exhibit SD-3). In a letter dated August 30, 1996, the CSE chairperson notified the parents of the CSE's recommendation. The letter indicated that due process information was enclosed (Exhibit SD-4).

        In January, 1997, the CSE amended the student's IEP to provide that the student be placed in a special education class for math. The student remained in regular education classes for science, social studies, and English, as well as for special subject classes. The CSE continued to recommend that he receive resource room services for five periods per week, be exempt from the second language requirement, and have the use of a non-scientific calculator as a testing modification (Exhibit SD-6) Petitioners were reportedly provided with information about their due process rights in two letters dated February 26, 1997 (Exhibits SD-7 and SD-8).

        In April, 1997, the California Test of Basic Skills (CTBS) was administered with no testing modifications to the student. He achieved a grade equivalent score of 7.4 for reading decoding, which was at the 34^th percentile. The student achieved a grade equivalent score of 7.8 for reading comprehension, which was at the 41^st percentile. For total reading, the student achieved a grade equivalent score of 7.6, placing him at the 38^th percentile. The student's grade equivalent score for math computation was 6.8, which was at the 21^st percentile. His grade equivalent score for math concepts was 3.9, which was at the 4^th percentile. The student's grade equivalent score for total math was 5.5, which was at the 11^th percentile. On the Preliminary Competency Test (PCT) in written language, he displayed weak grammatical skills and had trouble expressing his thoughts in words. The student's final grades for the 1997-98 school year included 68 for English, 67 for social studies, 76 for math, 65 for earth science, 53 for health, and 82 for computers. The student's special education math teacher commented that the student was not working up to his ability, and his remedial reading teacher commented that his daily homework preparation was inadequate (Exhibit SD-11).

        The student's annual review prior to entering ninth grade was held in June, 1997. The CSE recommended that the student be placed in regular education classes in the Arlington High School, with five periods of resource room services per week. It continued to recommend that he be exempt from the second language requirement. Testing modifications included extended time limits, use of a non-scientific calculator, and having questions read to him when cued by the student. The student's IEP included two annual goals for improving his study skills, two written language goals, and one math goal (Exhibit SD-10, Transcript p. 79). By letter dated August 21, 1997, the CSE chairperson informed the parents of the CSE’s recommendations for their son. The letter indicated that due process information was enclosed (Exhibit SD-12). The CSE chairperson sent another letter to the parents on September 10, 1997, informing them that the Board of Education had approved their student's program. That letter also indicated that due process information was enclosed (Exhibit SD-13).

        On the Wechsler Individual Achievement Test in March, 1998, the student achieved grade equivalent (and standard) scores of 6.9 (84) for numerical operations, and 6.9 (92) for math reasoning (Exhibit SD-21). On the CTBS which was administered to him without testing modifications in April, 1998, the student achieved grade equivalent scores of 4.3 (5^th percentile) for reading comprehension, and 5.3 (9^th percentile) for total reading.

        The student's annual review was conducted on June 4, 1998. The CSE recommended that the student continue to participate in tenth grade regular education classes, with the option of using a regular education "English lab", while receiving five periods of resource room services per week during the 1998-99 school year. The CSE also recommended that he receive six sessions of individual counseling. However, it is not clear from the student’s IEP what was the intended frequency of those services (cf. 8 NYCRR 200.4 [c][2][x]). The student’s IEP annual goal for counseling indicated that he was expected to "develop and demonstrate an improvement in self concept." The IEP also included single goals related to improving the student’s study skills, mathematics, and written language skills. Testing modifications included time extended to twice the limit, use of a non-scientific calculator, and having questions read to him when cued by him (Exhibit SD-15).

        The student's final grades for the ninth grade were 65 for Regents English, 70 for Regents global studies, 66 for physical science, and 65 for studio art. The student achieved a satisfactory grade for resource room, but he failed math and physical education. The math teacher commented that the student's effort was erratic and inconsistent. His art teacher reported that the student had failed to make up tests, quizzes, projects or labs within the specified time period, and had received poor test scores due to lack of effort. His resource room teacher indicated that the student needed more practice in writing essays, and he needed to improve his listening skills by paying closer attention (Exhibit SD-16).

        In a student progress report issued on October 9, 1998, petitioners’ son was described as a pleasure to have in class by his resource room and general biology teachers. His art teacher and English teachers both commented that the student did not use time wisely in class. His art teacher reported that the student often rushed through work just to finish. The global studies teacher commented that the student was progressing satisfactorily, that his behavior was generally good but inappropriate at times, and that his average was between 70 and 74. The math teacher reported that the student’s average was between 40 and 44 and that he often failed to do homework assignments. The student's physical education teacher reported that the student had not met the attendance requirement for the class, and had been unprepared for class more than once (Exhibit SD-20). A report card was issued in November, 1998, and a progress report was issued in December, 1998. Both reports indicated that the child had many absences from class, and had exhibited a lack of effort. As of November, the student was failing every course except global studies, in which he had an average of 65 (Exhibits SD-21 and SD-22).

        The student was privately evaluated by a psychologist from the Yale Department of Psychology in November, 1998. On the Wechsler Adult Intelligence Scale-Third Edition, he achieved a verbal IQ score of 108, a performance IQ score of 87 and a full scale IQ score of 99. His verbal score was in the upper part of the average range, and his performance score was in the low average range. The psychologist reported that the discrepancy between the student’s verbal and performance scores indicated a weakness in his visual/spatial functioning. The student displayed weak arithmetic skills, as well as a weak working memory. The evaluator reported that the student absorbed information more readily from listening than from reading. The evaluator opined that the student had Attention Deficit/Hyperactivity Disorder (ADHD), Primarily Inattentive Type, but he acknowledged that the extent of the disorder was mild. He recommended a trial of a stimulant medication such as Ritalin for the student. The evaluator opined that the student needed a school with resources to help him overcome his learning deficits and build on his verbal skills. He asserted that placement in special education had not benefited the student, and might have caused him to doubt his abilities (Exhibit P-C).

        Petitioners unilaterally placed their son in Marvelwood for the second semester of the 1998-99 school year. In its literature, Marvelwood was described a school serving "average to above-average students who have not yet reached their potential, as well as for young people who have not been successful in traditional school settings." The school’s average class size was between 8 and 10 students. Petitioners’ son was placed in the skills program which was described as an intensive transitional support program in which students work on basic writing, reading, listening and organizational and study skills (Exhibit P-H).

        In her final report for the spring term, the student's skills teacher reported that she and he had worked on reading aloud and summarizing material. She described him as having a positive attitude, and always having his materials organized. He was taught to study by summarizing, questioning and rereading the material. The student's English teacher reported that he failed to complete some homework despite two "amnesty" periods. The teacher did state, however, that the student's performance had improved during the semester. The student's algebra teacher reported that the student rarely completed assignments, and that the assignments which he did turn in revealed that he did not understand the material. Although extra help sessions were offered every week, the student only attended one session. His classroom attendance was poor, and he did not concentrate well when he did attend. The teacher stated that the student should attend summer school. In biology, the student's efforts were described as erratic. He was the only student to fail the final exam. His teacher attributed his failure to a lack of preparation. She opined that the student was distracted with personal and social issues that had interfered with his priorities. The student’s world history teacher reported that he was easily distracted at times. The decline in his performance during the term was attributed to poor performance on tests rather than a lack of ability. The school’s graphic art teacher described petitioners’ son as one of the more talented students in the class. She reported that he consistently completed assignments on time and attended class (Exhibit P-F). For the 1998-99 school year, the student achieved final grades of A– for skills, C– for biology, B– for world history, B+ for graphic art and F for algebra (Exhibit P-G).

        In a letter dated March 18, 1999, petitioners requested an impartial hearing (Exhibit P-I). On March 19, 1999, the parents' attorney advised the CSE chairperson that petitioners were claiming that respondent had failed to provide a free appropriate public education (FAPE) to their son during the 1997-98 and 1998-99 school years. The relief they sought was two years of compensatory education and/or reimbursement of tuition and expenses for the unilateral placement of their child for the 1998-99 school year, as well as the adoption and implementation of an appropriate IEP for the 1999-2000 school year (Exhibit P-J). The impartial hearing was held over the course of six days in June and July, 1999.

        In his decision which was rendered on November 12, 1999, the hearing officer held that the student was not entitled to receive compensatory education, and his parents were not entitled to receive tuition reimbursement. He found the parents' claim of an alleged deprivation of a FAPE during the 1997-98 school year was untimely. With regard to the 1998-99 school year, he found that the school district did not provide an appropriate educational program. However, he further found that Marvelwood's program was inappropriate for the student. While he was not required to reach the issue of whether petitioners’ claim for tuition reimbursement was supported by equitable considerations, the hearing officer found that the equities favored the parents. Finally, the hearing officer denied the parents' request for additional educational services, finding that circumstances did not warrant such a remedy.

        Petitioners assert that the hearing officer erred in dismissing their claim for compensatory education for the 1997-98 school year. Compensatory education may be awarded when a student has been excluded from school or denied appropriate services for an extended period of time, or a school district has committed gross procedural violations (Garro v. State of Connecticut, 23 F.3d 734 [2d Cir. 1994]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Respondent asserts that the hearing officer properly held that petitioners had failed to raise the issue of the appropriateness of their son’s educational program during that school year in a timely manner.

        When parents request an impartial hearing, a delay of greater than one year is generally considered to be unreasonable, unless the parents present a mitigating excuse (Bernardsville Bd. of Educ. v J.H., 42 F.3d 149 [3d Cir. 1994]). In this case, the parents requested an impartial hearing on March 18, 1999 (Exhibit P-I). Among the things they sought was compensatory education for the school district's failure to provide an appropriate educational program during the 1997-98 school year (Exhibit P-J). The record shows that the IEP for the 1997-98 school year was developed at a CSE meeting held on June 16, 1997 (Exhibit SD-10). The IEP was sent to the parents on August 21, 1997, and due process information was enclosed (Exhibit SD-12). On September 10, 1997, the parents were informed that the Board of Education had approved the recommended IEP, and due process information was again enclosed (Exhibit SD-13).

        Although school districts have the primary duty to provide disabled students with appropriate programs, parents who have been fully apprised of their due process rights have a corresponding duty to place in issue the appropriateness of an IEP (Bernardsville Bd. of Educ. v. J.H., supra). Because petitioners were fully apprised of their rights, I find that there were no mitigating circumstances to justify a one year and nine month delay in requesting an impartial hearing. While I have considered their argument that they acted promptly to request a hearing upon becoming aware that their son’s program for the preceding year was allegedly inappropriate, I must affirm the hearing officer's finding that the parents' request for compensatory education with regard to the 1997-98 school year was untimely (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]).

        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). 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[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. 93-12; Application of a Child with a Disability, Appeal No. 93-9). The hearing officer found that the IEP for the 1998-99 school year did not adequately identify the student’s individual needs with regard to his disability in reading, or provide adequate services for that disability and his disability in writing. He also noted that the IEP did not include any annual goal for reading, and that the student’s annual goals for written expression and mathematics were too general.

        In its cross-appeal, the Board of Education asserts that the student’s IEP for the 1998-99 school year accurately identified his special education needs. I disagree, and find that the school district did not adequately evaluate the student to develop an appropriate program. As noted above, the student’s cognitive skills have not been assessed since 1993. The results of testing at that time showed a significant and unexplained decline in his cognitive skills. In addition, the student’s CTBS scores declined significantly from 1997 to 1998 (Exhibits SD-10 and SD-15). Again, no follow up testing was conducted, and no explanation was offered for the decline in scores. Although the student appears to have a language based disability, the nature and extent of the disability are unclear. The Yale psychologist opined that the student had ADHD. While that opinion was rendered after the IEP in question was prepared, it was consistent with some of the behavior which the student had manifested in respondent’s schools prior to the development of the IEP. There is no evidence that the CSE ever recommended a neurological evaluation. Such an evaluation could have helped the CSE to discern the nature and extent of the student’s distractibility. Under the circumstances, I find that the school district did not adequately evaluate the student to fully determine his needs.

        I further find that the school district did not develop appropriate goals and objectives. Despite the decline in the student’s CTBS scores, no reading goal was included on the student’s 1998-99 IEP. I also agree with the hearing officer that the student’s annual goals were too general (Application of a Child with a Disability, Appeal No. 93-24).

        In addition, I have considered the adequacy of the special education services which the CSE recommended for the 1998-99 school year. The CSE chairperson testified that a voluntary English lab was available to the student. The lab was limited to six students, and a certified special education teacher taught the lab, but the lab did not specifically serve special education students. The CSE chair agreed in testimony that the student’s test scores indicated that he needed special education in reading (Transcript pp. 164-168). Although the IEP included written language goals and objectives, the CSE chair acknowledged that the goals did not address language mechanics, which was the student’s greatest area of written language weakness (Transcript p. 176). The student's resource room teacher primarily addressed math. She acknowledged that she "didn't really work on written language with him often" (Transcript pp. 412-414). While I recognize the student needed significant assistance with math, the student's written language deficits also needed to be addressed. I find that the school district did not sustain its burden of proving that its program would have met the student's special education needs. Respondent’s cross-appeal from the hearing officer’s finding on this point must therefore be dismissed.

        The student's parents bear the burden of proof with regard to the appropriateness of the services they obtained for him at Marvelwood during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 95-57; 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). 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).

        Petitioners appeal from the hearing officer’s determination that they did not meet their burden of proof. I concur with the hearing officer’s determination. The primary remedial aspect of Marvelwood is the skills program (Transcript pp. 621-622, 631). Marvelwood also has a small student-teacher ratio (Transcript p. 620). The student's skills program primarily focused on reading and study skills. None of the teachers who focused on math skills were available when the student was enrolled in Marvelwood, therefore he did not receive skills training in math (Transcript pp. 670-671). The Assistant Director of Studies testified that the student's problems in math were related to his reading problems. She stated that when problems were read to him, the student could better perform calculations. This modification, however, was not implemented (Transcript p. 666). No test modifications were offered to the student at all (Transcript pp. 666-670). The Assistant Director of Studies explained that the faculty of Marvelwood believed the student's confidence in classes other than math needed to be bolstered in order to give him a sense of confidence, therefore his academic program did not focus on math (Transcript p. 709-713). The student failed math for the 1998-99 school year (Exhibit P-G).

        The student received no counseling at Marvelwood. Although the Assistant Director of Studies described him as "wounded" emotionally upon entering Marvelwood, counseling was not provided. Instead, the student was allowed to "settle in at Marvelwood" and go home a couple of weekends "to make him feel more connected" (Transcript pp. 713-714). The student went home early after the winter term because of a dispute among the students in his dormitory (Transcript pp. 715-716). He was not provided with counseling when he returned for the spring term. I find that Marvelwood did not meet the student's needs. Marvelwood did not address the student's weakness in math, and did not address the student's social-emotional needs

        Although it is not necessary to address equitable considerations for the purpose of determining whether the parents are entitled to tuition reimbursement, I will nevertheless address it because the hearing officer addressed the issue and respondent has cross-appealed from his determination of the issue. Respondent asserts that petitioners are not entitled to tuition reimbursement because they did not meet the notice requirements of the amended Individuals with Disabilities in Education Act (IDEA). Respondent correctly notes that an award of tuition reimbursement for a unilateral placement may be reduced or denied if the parents failed to provide written notice, within ten days prior to removal of their child from the public school, of their concerns regarding the IEP and their intent to enroll the child in private school at public expense (20 USC §1412[a][10][C][iii]). The statute upon which respondent relies has an exception when the parents were not notified by the school district of the new requirement of ten days notice before removal. The evidence shows that the parents did receive notice of the new requirement. One of the CSE chairpersons testified that due process information is included with each IEP (Transcript pp. 799-801). The due process information submitted into evidence included the required notification to parents (Exhibit SD-23). While petitioners asserted at the hearing that they were not familiar with all of their rights and responsibilities under the due process provisions, they did not allege that they did not receive Exhibit SD-23. I find that the parents were adequately notified by the school district of their duty to inform the CSE of their concerns with the IEP. The parents did not inform the CSE of their dissatisfaction with the IEP within the statutorily mandated time period. Given the fact that they did not prevail with respect to the second criterion for an award of tuition reimbursement, I need not determine whether their award should be reduced or denied.

THE APPEAL IS DISMISSED.

THE CROSS APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that he found that equitable considerations supported petitioners’ claim for an award of tuition reimbursement.