00-018

        Petitioners appeal from an impartial hearing officer's decision which found that respondent had offered to provide an appropriate educational program to petitioners' son for the 1998-99 school year. He denied petitioners' request for an award of tuition reimbursement for the cost of their son's unilateral placement in the Kildonan School. The appeal must be dismissed.

        Petitioners' son is 13 years old. He was enrolled in the sixth grade at the Kildonan School during the 1998-99 school year. The boy was the subject of a prior appeal, Application of a Child with a Disability, Appeal No. 98-75. His prior schooling is described in the decision in that appeal, and will not be repeated in detail in this decision. He was initially classified as learning disabled by respondent's committee on special education (CSE) during the 1994-95 school year, as he neared the end of the second grade. The boy has remained classified as learning disabled. His classification is not disputed in this proceeding. His disability is manifested by deficits in his reading and writing skills.

        While in respondent's schools after having been classified, petitioners' son received a variety of special education services including special education instruction in reading, speech/language therapy, and consultant teacher services. Near the end of the fourth grade in May, 1997, the boy achieved grade equivalent (and standard) scores of 2.6 (90) for letter-word identification, 3.9 (94) for passage comprehension, 2.9 (82) for dictation, 3.3 (91) for writing samples, 3.0 (90) for word attack skills, 4.3 (97) for reading vocabulary, 2.9 (83) for proofing, 4.8 (100) for writing fluency, 2.9 (86) for punctuation and capitalization, 2.7 (78) for spelling, and 2.9 (87) for usage on the Woodcock-Johnson Psychoeducational Battery - Revised (W-J-R). On the Clinical Evaluation of Language Fundamentals – Revised (CELF-R), he achieved a receptive language score of 102 and an expressive language score of 108, both of which were in the average range. The boy's therapist recommended that speech/language therapy be discontinued.

        For the 1997-98 school year, the CSE recommended that petitioners' son be enrolled in a regular education fifth grade class, while receiving 50 minutes of structured language arts instruction from a special education teacher each day. That teacher would also have worked with the boy in a daily 30 minute structured study hall. In addition, the boy was to receive 40 minutes of reading instruction by a reading teacher each day.

        Petitioners did not accept the CSE's recommendation. They had their son independently evaluated, and they unilaterally enrolled him in the Kildonan School, which is located in Amenia, New York. The Kildonan School provides instruction to learning disabled students. However, it has not been approved by the State Education Department to provide such instruction. On December 3, 1997, petitioners requested an impartial hearing which was conducted over a six-month period in 1998. On September 30, 1998, the impartial hearing officer rendered his decision. He upheld the validity of the individual education program (IEP) which the CSE had prepared for the boy, and concluded that the Board of Education had met its burden of proving that it had offered to provide an appropriate educational program to the boy for the 1997-98 school year. The hearing officer denied petitioners' request for an order requiring the Board of Education to reimburse them for their expenditures for the boy's tuition at the Kildonan School.

        Petitioners appealed from the hearing officer's decision to the State Review Officer. In my decision in that appeal, I noted that petitioners had not challenged the boy's IEPs for the school years prior to the 1997-98 school year, and that their appeal was therefore limited to the 1997-98 school year. Upon review of the boy's IEP for that school year, I found that it adequately described his needs with respect to academic, social and physical development and his management needs, as prescribed by 8 NYCRR 200.4 (c)(2)(i). I rejected petitioners' challenge to the appropriateness of their son's IEP goals and objectives. In concluding that the recommended special education services were adequate to provide the boy with an appropriate education, I noted that both the parents and the Board of Education relied upon data from the school district and independent evaluations to support their respective positions, and I found that the boy had made significant improvement academically during the 1996-97 school year in respondent's program. Having found that respondent had met its burden of proof, I dismissed petitioners' appeal. My decision is now being reviewed in the United States District Court for the Southern District of New York.

        In an interim report dated October 18, 1997, the boy was described as making outstanding progress in mathematics, social studies, and science, and satisfactory progress in literature at the Kildonan School (Exhibit G). His progress was described as outstanding in each subject in the next report dated January 20, 1998 (Exhibit I). The boy's achievement was assessed by the Kildonan School on February 6, 1998 (Exhibit 102). He achieved grade equivalent (and standard) scores of 3.5 (87) for word identification and 3.9 (93) for word attack on the Woodcock-Johnson, and 2.8 (77) for spelling on the Wechsler Individual Achievement Test (WIAT). On the Gates McGinitie Reading Test, the boy earned grade equivalent scores of 4.6 for vocabulary and 3.4 for comprehension. He achieved grade equivalent sores of 9.0 for number concepts, 7.5 for computation, and 5.8 for math application on the Stanford Achievement Test. On April 28, 1998, the boy achieved grade equivalent (and standard) scores of 5.8 (100) for applied problems, 6.9 (107) for science, 6.2 (103) for social studies, 1.3 (74) for the humanities, and 4.7 (94) for broad knowledge on the W-J-R which was administered to him at Kildonan (Exhibit 100).

        At petitioners' request, their son was evaluated on April 10, 1998 by the independent evaluator who had previously evaluated him in August and November, 1997. During the latter evaluation, the boy had achieved grade equivalent (and percentile) scores of 2.7 (.2) for letter identification, 2.9 (4) for word identification, 2.3 (12) for word attack, 3.7 (23) for word comprehension, and 3.7 (31) for passage comprehension on the Woodcock Reading Mastery Test – Revised (WRMT). In April, 1998, the boy achieved grade equivalent (and percentile) scores of 4.8 (32) for word identification, 8.0 (60) for word attack, and 5.3 (47) for passage comprehension on the WRMT. The same form of the WRMT was apparently used in both test administrations. The independent evaluator also administered the Spadafore Reading Test to the boy in both evaluations. She reported that his word recognition skills had improved from an instructional level of first and second grade to a fourth and fifth grade level, his decoding skills had grown from an independent level of second grade to a third to fifth grade level, and his comprehension skills had improved from an independent second grade level to an independent third to fifth grade level. She opined that the Kildonan program was helping the boy meet his educational needs in a more appropriate manner than was previously possible in respondent's district (Exhibit EE).

        The boy's parents and respondent's Director of Special Education corresponded extensively during the spring of 1998 about the boy's triennial evaluation. The CSE met on March 6, 1998 to discuss his evaluation (Exhibit 110). The Director of Special Education also met with petitioners' attorney on May 22, 1998 to discuss which reading test should be administered to the boy (Exhibit 89). At one point, petitioners reportedly declined to permit the CSE to test their son's academic achievement (Exhibit 90). In any event, the WIAT was administered to the boy on June 1, 1998 by one of respondent's special education teachers. Petitioners' son achieved grade equivalent (and standard) scores of 3.4 (84) for basic reading, 5.6 (103) for reading comprehension, 3.1 (80) for spelling, K.0 (66) for written expression, 4.8 (92) for numerical operations, 4.9 (97) for math reasoning, 5.7 (101) for listening comprehension, 6.4 (107) for oral expression, 5.8 (100 for wide problems solving, 1.3 (74) for the humanities, 6.9 (107) for science, and 6.2 (103) for social studies (Exhibit 106).

        On May 29, 1998, the boy was evaluated by respondent's school psychologist, who reported that the boy had achieved a verbal IQ score of 102, a performance IQ score of 119, and a full scale IQ score of 111 (Exhibit 104). The psychologist reported that the boy's sequential rote memory skills were weak, as evidenced by his scores on the arithmetic and digit span subtests. The boy's visual motor integration skills were reported to be in the average range. On the Visual-Aural Digit Span Test, the boy evidenced weakness in rote auditory sequential memory, as well as visual memory, when he was required to respond in written form. The psychologist noted that those weaknesses could adversely affect the boy' ability to acquire reading and spelling skills. She reported that the test results which she obtained were consistent with those from the boy's previous evaluation. The boy appeared to be fatigued, so that the psychologist elected not to proceed with personality testing. She suggested that such testing be administered if the boy returned to respondent's schools in the fall to ascertain whether be might need the related service of counseling.

        The special education teacher who tested the boy on June 1, 1998 also observed him for the CSE in his science class at Kildonan on May 7, 1998. She reported that the boy left the room to complete an assignment on a computer. He appeared to be interested in the work which other students were doing on their computers, but he completed his own work (Exhibit 103).

        In an end of year report, the child's language training teacher indicated that the boy had a good foundation of basic phonetic sequences, but he needed to review some concepts. She also indicated that he had learned to write "example and reason paragraphs", and could expand a basic paragraph. The boy also practiced touch typing with her. His math teacher reported that he had made excellent overall progress. His history teacher also commented that he displayed a silly attitude which disturbed the class on a consistent basis. The boy's science teacher indicated that the child had difficulty focusing on his work, and needed assistance to begin and complete assignments (Exhibit LL).

        On June 11, 1998, the CSE met with petitioners and their attorney to prepare the boy's IEP for the 1998-99 school year. It recommended that the boy be classified as learning disabled. The CSE also recommended that the boy receive language arts instruction in respondent's structured language arts program, which included a special class for 40 minutes per day and a support lab for 40 minutes per day, in addition to 60 minutes per week of indirect consultant teacher services to insure that his learning disability did not inhibit his ability to participate in regular education classes for his other sixth grade subjects. He was to be placed in respondent's Bulkeley Middle School. At the hearing, the CSE chairperson testified that the structured language arts class and support lab were resource room classes to provide supplementary instruction (see 8 NYCRR 200.1 [hh]). The boy would also have received language arts instruction in his regular education classes. The lab was intended to assist him in meeting the requirements of his regular education classes (Transcript, pages 89-90). The consultant teacher was to coordinate the boy's program by meeting on a regular basis with the members of the boy's middle school teaching team.

        The IEP also indicated that if the boy returned to public school, he would be assessed to ascertain if counseling would be appropriate to insure his transition to the school. The IEP included annual goals to increase the child's academic skills by applying compensatory strategies, to increase his reading skills to a fifth grade level and his writing skills to a third grade level, and to make a smooth transition to his new school. The IEP also included the testing modifications of having the test read to him in content areas, and having directions read to him, and a 50 percent extension of the time limits on tests requiring written responses. It also provided that he was to have the use of a computer when appropriate, and to use one for word processing for written responses of at least one paragraph, and that he was not to be penalized for spelling mistakes (Exhibit 99).

        Although the results were reportedly not available to the CSE for its meeting, the boy was tested at Kildonan in May, 1999. He achieved a grade equivalent (and standard score) of 8.5 (107) for word identification on the WRAT-3. On the Gray Oral Reading Test (GORT), he achieved grade equivalent scores of 3.7 for reading rate, 5.5 for accuracy and 4.7 for passage. He also achieved grade equivalent scores of 4.5 for vocabulary and 3.3 for comprehension on the Gates McGinitie, and 4.1 for spelling on the WRAT-3 (Exhibit PP).

        By letter dated August 10, 1998 which was received on August 17, 1998, petitioners objected to the CSE's recommendations, and requested that an impartial hearing be held. The hearing was scheduled to take place on September 15, 1998, but it was adjourned by consent to await the decision of the hearing officer in the prior proceeding involving the boy's placement for the 1997-98 school year. It was further adjourned to await the decision in the appeal of that decision. The decision in Appeal No. 98-75 was rendered on June 1, 1999. The hearing began on September 7, 1999, and it concluded on October 21, 1999. At the hearing, petitioners contended that their son's IEP for the 1998-99 school year was inappropriate because it reportedly would not have allowed the boy to work toward the goal of becoming an independent reader and writer. They also asserted that the IEP lacked a description of the boy's then current functioning levels for some of his short-term instructional objectives. The boy's parents asked the hearing officer to find that the Kildonan program was appropriate for their son, and to award them the relief of tuition reimbursement for the 1998-99 school year.

        The hearing officer rendered his decision on February 28, 2000. He noted that petitioners had asserted that he was not bound by the determinations by the hearing officer and the State Review Officer in the prior proceeding involving the 1997-98 school year. However, he found that petitioners were bound by those determinations, and could not relitigate the issues of the prior proceeding in this proceeding because of the finality provisions of Federal and State regulation (34 CFR 300.509 and 300.510 [d]; 8 NYCRR 200.5 [c][11]). In doing so, the hearing officer noted that petitioners' remedy with regard to the prior proceeding was to seek judicial review of my decision in Appeal No. 98-75.

        The hearing officer also noted that petitioners' claim for tuition reimbursement for the 1998-99 school year was governed by the decisions of the U.S. Supreme Court in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). In those decisions, the court held that a board of education may be required to pay for the educational services which a child's parents have obtained for the child 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 (see also 20 USC 1412 [a][10][c][ii]). In the Carter decision, the court held that tuition reimbursement could be awarded even if the parents placed the child in a private school which had not been approved by the State Education Department to provide instruction to children with disabilities, as is the case here.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The hearing officer found that the IEP which respondent's CSE had prepared for petitioners' son accurately identified the boy's special education needs, and included annual goals and short-term objectives which were directly related to the boy's educational deficits. He dismissed petitioners' contention that the IEP was deficient because it included objectives for which there was no description of current levels of functioning, e.g., the boy's critical thinking skills, his vocabulary skills and his ability to do phonetic analysis. The hearing officer also found that the special education services which the CSE had recommended were appropriate to meet his special education needs.

        Although that finding was dispositive of petitioners' claim for tuition reimbursement, the hearing officer further found that there was evidence that the boy had received appropriate special education services at the Kildonan School, but that he did not require so restrictive a placement. Consequently, he held that petitioners had failed to meet their burden of proof with regard to the appropriateness of their unilateral placement of the boy in the private school. Finally, he held that equitable considerations would not have barred petitioners' claim for tuition reimbursement.

        Petitioners contend that the hearing officer refused to render an independent decision based upon all of the evidence which was before him. Their contention is premised upon the fact that the hearing officer held that he was bound by my determination that the boy was progressing in his educational program in respondent's schools prior to the time he left the district at the end of the 1996-97 school year. He noted that the parents disputed the accuracy of my findings, and he indicated that there appeared to be one error in my decision involving the boy's score on the passage comprehension subtest of the W-J-R which was administered to the child in May, 1995.

        Although I am precluded by regulation from reopening my prior decision (8 NYCRR 276.8 [d]), I will note for the record that the boy's standard score in May, 1995 was 92, not 82 as was indicated on page 8 of the decision. It was correctly indicated on page 2 of the decision The significance of that error, in light of all of the other data involving the boy's reading and writing skills in 1995, 1996, and 1997 which are in the record, is for the court to determine in its review of my decision in Appeal No. 98-75. In any event, the issue which was before the hearing officer in this proceeding was the appropriateness of the educational program which respondent offered to provide to the boy for the 1998-99 school year. To decide that issue, the hearing officer was required to consider what were the boy's special education needs for that school year, as revealed by the extensive testing done during the 1997-98 school year and other information which the CSE had before it when it prepared his IEP in June, 1998. Therefore, I find that petitioners' contention is without merit.

        As noted above, respondent bears the burden of demonstrating the appropriateness of the educational program which its CSE recommended for petitioners' son during the 1998-99 school year. The boy's educational program is described in his IEP (Exhibit 99). At the hearing, petitioners asserted that their son's IEP was procedurally and substantively deficient because it failed to provide sufficient information to ascertain his abilities and needs, did not include a complete statement of his then-current functional levels, and did not provide him with the services and settings he needed to "catch up" to his peers (Petitioners' Closing Statement and Memorandum of Law).

        The boy's IEP includes a listing of the standardized test results reported by respondent's staff in May, 1977, the Kildonan School in February, 1998, the independent evaluator in April, 1998, respondent's psychologist in May, 1998, and its educational evaluator in June, 1998. The results reported by the independent evaluator appear to be higher than those reported by the Kildonan School and by respondent's staff. While different testing instruments were used by each evaluator, I must point out that the use of standard scores should provide a means for making some useful comparisons. I note that at the hearing, the independent evaluator was questioned extensively about the manner in which she had administered the Woodcock Reading Mastery Test to the boy in April, 1998 (Transcript, page 478-498). In any event, it is clear that the boy's learning disability is in the areas of reading and writing. By the end of the 1997-98 school year, his reading skills were at a third to fourth grade level (compare Exhibits EE, 106, and PP). His comprehension skills were stronger than his basic reading skills. The boy's writing skills were somewhat weaker than his reading skills, with stronger spelling than written expression skills. This boy's IEP did more than simply list test scores. It also described the way in which his disability affected his performance in its description of the boy's educational achievement.

        An IEP must report a child's present levels of performance and indicate his individual needs with respect to educational achievement, physical development, social development, and management needs (8 NYCRR 200.4 [c][2][i]). The information must be sufficiently detailed to enable the CSE to prepare appropriate annual goals and objectives. Petitioners contend that the IEP is deficient because it did not state the level of the boy's critical thinking skills, his vocabulary skills, and his phonological awareness. Three of the five short-term objectives for the annual goal of improving the boy's reading involved improving the those skills. The first objective was for him to use critical thinking skills to interpret and comprehend the content of reading material with 80% accuracy. This objective obviously addressed the boy's reading comprehension skills which have been extensively tested and reported on his IEP. The second objective was to increase his comprehension through vocabulary development with 80% accuracy. This also relates to reading comprehension. I note that the IEP also lists the boy's score on the February, 1998 vocabulary subtest of the Gates-McGinitie. The fourth objective for the boy's annual goal of acquiring fifth grade reading skills was to consistently apply skills in phonetic analysis to reading with 80% accuracy. The IEP reported his performance on the word attack subtest administered by Kildonan in February, 1998, which I find was an adequate basis for this objective. Accordingly, I cannot agree with petitioners that the IEP lacked sufficient information for the CSE to prepare the three objectives in question. A teacher reading the IEP would understand what the boy's skills were, and what the CSE expected them to be at the end of the 1998-99 school year. Although petitioners have not identified any other objective to which they object, I have examined each goal and objective on the IEP, and I find that they addressed the boy's special education needs. They also appear to be achievable, given his then-current levels of performance.

        An IEP must provide for appropriate special education services in order to afford a child a reasonable opportunity of achieving his or her annual goals. In recommending special education services for a child, a CSE must provide for the child to receive those services in the least restrictive environment (34 CFR 300.550; 8 NYCRR 200.6 [a][1]). Petitioners contend that their son's special education needs are so severe that they cannot be adequately addressed in the recommended structured language arts program, which as noted above consisted of two periods of resource room services, one of which was to supplement the regular language arts instruction the boy was to have received. The other period was to be used for the more traditional purpose of assisting the boy with his school work in other courses.

        Respondent's Director of Special Education testified that there was more than one structured language arts class, but each class was taught by a certified special education teacher who had completed a 45 hour course in the Orton-Gillingham methodology taught by the founder of the Kildonan School. The Director further testified that the Orton-Gillingham methodology was used to develop phonetic analysis skills for reading and spelling. Respondent's educational evaluator, who had completed a program in Alphabetic Phonics, a version of Orton-Gillingham, at Columbia University consisting of approximately 700 hours of training, testified that respondent's structured language arts classes offered a highly structured, sequential, and repetitive approach to learning to read and write. The educational evaluator also testified that the children in those classes were grouped by the similarity of their needs and expected rate of progress. She opined that the boy's IEP goals and objectives were appropriate and achievable in the recommended educational program (Transcript, pages 212-216). The Director, who is a special education teacher pursuing a doctorate in reading disabilities, also opined that the boy's IEP goals would have been attainable in that program (Transcript, page 109). The independent evaluator who testified on behalf of petitioners questioned the ability of a teacher with only 45 hours of Orton-Gillingham training to proficiently use that methodology. She opined that the Alphabetic Phonics methodology which respondent uses in its program was not appropriate for "older" students with intensive needs (Transcript, pages 472-473). However, I note that her testimony appears to have been a general critique of the entire program, which she had actually observed for 30 minutes once in 1996.

        Petitioners contend that respondent failed to offer evidence of the efficacy of its language arts program, given what they assert were the boy's previous failures in that program. They are referring to the fact that the boy was enrolled in a similar program while in the fourth grade during the 1996-97 school year. The child's alleged lack of progress during that school year was discussed in the decision in Appeal No. 98-75. At the hearing in this proceeding, the independent evaluator testified that progress could be ascertained by comparing a child's raw scores on two administrations of the same test (Transcript, page 501). The W-J-R was administered to the boy in April, 1996 (Exhibit 44), and again in May, 1997 (Exhibit 43). I note that the boy's raw scores for letter-word identification, passage comprehension, dictation, and writing samples were higher in 1997 than they were in 1996. It is also true that his percentile scores increased, which the independent evaluator testified was another acceptable measure of progress (Transcript, page 502). I find that petitioners' contention is not supported by the record (Walczak v. Florida Union Free School District, 142 F 3d 119 [2d Cir., 1998]).

        At the end of the fifth grade, this child's basic reading, i.e., decoding skills were at the third grade level, but his reading comprehension skills were at the fifth grade level on the WIAT. His math skills were mildly delayed. The boy's writing skills were significantly impaired. The issue which I must decide is whether he required a full-time special education placement as petitioners contend, or part-time supplementary special education which respondent offered to provide. I have considered the boy's test scores and the written reports from Kildonan, as well as the testimony of the witnesses. I note that no one from Kildonan testified about his current needs at the hearing in this proceeding. Upon the record which is before me, I find that the Board of Education did meet its burden of proving that it had offered an appropriate educational program to petitioners' son. In view of that finding, I must deny petitioners' request for tuition reimbursement, as did the hearing officer.

THE APPEAL IS DISMISSED.