00-027

         Petitioners appeal from an impartial hearing officer's decision denying their request for an order requiring respondent to reimburse them for their expenditures in unilaterally placing their daughter in the Victory Christian Academy (VCA) from March through June 1998. The hearing officer denied petitioner's request, after finding that they had not met their burden of proving that the services provided by VCA were appropriate under the Individuals with Disabilities Education Act (IDEA). The appeal must be sustained.

        At the outset, I must define the scope of my review in this appeal. Petitioners and respondent have referred to the student's educational program during the 1999-2000 school year and to an educational neglect proceeding which was reportedly commenced against petitioners during that school year. The child's educational program during the 1999-2000 school year is beyond the scope of this proceeding, which is limited to the last four months of the 1997-98 school year. Similarly, I cannot consider petitioners' claim concerning their request for an impartial hearing in March 1997 which does not involve the 1997-98 school year, and in any event could have been raised in a prior proceeding involving these parties.

        Petitioners' daughter became 15 years old this month. Her prior educational history is discussed in Application of a Child with a Disability, Appeal No. 98-49, and will not be repeated in detail in this decision. The student was enrolled in respondent's schools from kindergarten through most of the sixth grade. She reportedly began receiving remedial instruction in reading and mathematics while in the first grade. In addition, petitioners obtained private reading instruction for their daughter during the 1996-97 school year, when she was in the fifth grade.

        Petitioners referred their daughter to respondent's committee on special education (CSE) in March 1997. In August 1997, petitioners requested an impartial hearing to review the CSE’s recommendation that the student not be classified as a child with a disability. Two months later, the parties reached agreement to have the CSE classify the student as learning disabled and for petitioners to withdraw their hearing request (Exhibit D-10-4).

        The student was classified by the CSE as learning disabled in November 1997. The CSE prepared an individualized education program (IEP) for her. The IEP indicated that the student would receive instruction for English and reading in a self-contained special education class, as well as special education assistance while enrolled in inclusion classes for social studies, math, and science. The IEP also indicated that the student would receive resource room services, remedial reading, and individual counseling. Petitioners accepted the CSE’s recommendations (Exhibit D-10-6).

        In February 1998, petitioners requested a hearing because the Board of Education had allegedly failed to implement parts of the student’s IEP (Exhibit D-10-2). On March 16, 1998, which was 11 days before the hearing began, petitioners unilaterally enrolled their daughter in the VCA, which is in Lockport, New York. Their attorney subsequently notified the school district that petitioners would also seek an award of tuition reimbursement for the student’s attendance at VCA for the remainder of the 1997-98 school year (Exhibit D-11). However, at the outset of the hearing on March 27, 1998, petitioners’ attorney persuaded the hearing officer to separate the reimbursement claim from petitioners’ other claims, and leave it for another hearing.

        The hearing on petitioners’ original claims ended in April 1998. The hearing officer’s decision was rendered in July 1998. He rejected the parents’ claim that the Board of Education had failed to implement the student’s specialized reading program. However, the hearing officer also found that the Board of Education had failed to furnish textbooks on tape, large print books, and class notes on a timely basis, as required by the IEP.

        Petitioners appealed from the hearing officer’s decision with regard to the implementation of the student’s reading program. While noting that a CSE was not required to list a specific teaching methodology in an IEP, I found that respondent’s CSE had included the Fernald-based methodology for instruction in reading on the student’s IEP. I further found that respondent had failed to show that it had implemented the reading program as described in the IEP. In determining an appropriate remedy for respondent’s omission, I found that the record was insufficient to establish any harm to the student and whether the compensatory education requested by her parents would be appropriate. I remanded the matter to the CSE to ascertain the student’s current needs and to recommend additional services to address any deficiency resulting from respondent’s omission (Application of a Child with a Disability, supra).

        The hearing in the instant matter was requested by petitioners’ then attorney in a letter dated July 17, 1998 (Exhibit D-1). It began before a different hearing officer on November 4, 1998, and concluded on February 11, 1999. The hearing officer did not render his decision until March 9, 2000. He noted that the educational program respondent had provided to the student during the 1997-98 school year had been the subject of the prior hearing and appeal to the State Review Officer. The hearing officer rejected respondent's assertion that petitioners were barred from obtaining an award of tuition reimbursement because the student's IEP had not been found to be inappropriate in the prior proceeding. He held that the Board of Education had failed to meet its burden of proving that it had offered an appropriate educational program to petitioners' daughter. However, he further held that the record was insufficient for the parents to demonstrate that VCA's educational program had met their daughter's special education needs under the IDEA. Therefore, he denied their request for tuition reimbursement.

         A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). 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 200.6 [a][1]).

        Petitioners challenge the hearing officer’s determination regarding the appropriateness of the services provided to their daughter by VCA. However before I address their contentions, I must first note that the Board of Education asserts in its memorandum of law that petitioners cannot prevail as a matter of law because they have never challenged their child’s IEP for the 1997-98 school year or the educational program it provided. I disagree with respondent’s position drawing a distinction between failing to prepare an adequate IEP and failing to implement an IEP, at least under the circumstances of this case. Respondent was found by the first hearing officer and myself to have failed to implement the student’s IEP in a number of respects. My decision was final and binding upon the parties because it was not appealed to a court (34 CFR 300. 510[d]). I concur with the hearing officer’s determination in this proceeding that respondent failed to meet its burden of demonstrating the appropriateness of its educational program because of its failure to implement the IEP. Petitioners have therefore prevailed with respect to the first of the three Burlington criteria for an award of tuition reimbursement.

        The student's parents bear the burden of proof with regard to the appropriateness of the services which they obtained for her at VCA during the portion of the 1997-98 school year at issue (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, 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).

        In order to ascertain whether VCA's services were proper under the IDEA, I must first determine what the student's special education needs were. The record reveals that petitioners' daughter is of average intelligence, with a full scale IQ of 101 and no significant difference between her verbal and performance IQ scores. In August 1997, she achieved standard scores of 75 for basic reading, 89 for reading comprehension, 81 for spelling, 79 for numerical operations, and 96 for listening comprehension on the Wechsler Individual Achievement Test (Exhibit D-3). She was reportedly reading at the fourth grade level as she began the sixth grade. As was noted in my previous decision, respondent's school psychologist reported that the student had exhibited weakness in her ability to sustain attention, concentrate, and "exert mental control" (hold information in her short-term memory while performing some operations). A pediatric neurologist who evaluated the student in August 1997 opined that she had a learning disability in auditory processing and retrieval, as well as in written language. She recommended that a multisensory technique be used to teach the student to read, and that the student have textbooks on tape. The student's IEP for the 1997-98 school year indicated that she required primary special education in English and reading, as well as supplemental instruction (resource room services). She was also to receive special education assistance while in inclusion classes for social studies, mathematics and science, and to receive counseling to help her develop "independence and autonomy".

        At VCA, the student received approximately 40 minutes of instruction each day in reading from a teacher who was reportedly trained in special education and the Orton-Gillingham methodology (Transcript p. 224). Orton-Gillingham is a sequential, multi-sensory technique used to teach reading to students who have weak phonetic awareness skills. Although respondent’s reading coordinator testified that the Fernald methodology was more appropriate than Orton-Gillingham for this student because the student knew the basic sound-symbol relationships, she agreed that a phonetically based reading program was appropriate (Transcript p. 198). The student also received resource room services from VCA’s director of special education, who testified that when the student came to her overwhelmed by her school work, she assisted her by breaking the work down into more manageable units (Transcript p. 221). The director also testified the student received outlines of course material she was required to learn in science and history, and her homework assignments were also reduced into smaller units (Transcript p. 225). The student’s tests were given in alternate sites, and she was allowed to give oral answers in lieu of writing essays (Transcript p. 226). I note that those modifications were consistent with the student's IEP, as was her use of a computer for written drafts in the VCA resource room (Transcript p. 243). The girl's primary placement was in regular education classes of approximately 20 students with one teacher and one aide (Exhibit 14). The director opined that VCA had addressed most of the problems which a private psychologist and the neurologist had identified in their respective evaluations (Transcript pp. 231-237).

        VCA's director of special education testified that petitioner's daughter had made academic progress and improved emotionally while enrolled in VCA during the spring of 1998. The child received grades of 79 for history, 77 for English, 90 for math and 65 for science on her report card from the private school (Exhibit 14). VCA did not perform any formal end of year diagnostic testing (Transcript p. 281). In September 1998, respondent's reading teacher tested the child with the Brigance Comprehensive Inventory of Basic Skills and the Spache Diagnostic Reading Skills Tests (Exhibit D-42). At the hearing, the reading teacher compared the scores the student achieved in September 1998 with those she had achieved in September 1997 (Exhibits D-10-9, 10, 11). The reading teacher indicated that the student's reading decoding skills were slightly higher in 1998, but her word recognition skills were slightly lower than they had been in 1997 (Transcript p. 201). She further testified that the student's oral reading was extremely choppy. I must note that the child attended VCA for four of the ten months during the 1997-98 school year. I am not persuaded that the 1998 test results are proof that the child did not receive appropriate special education services at VCA.

        The hearing officer premised his decision upon a finding that there was insufficient proof that instruction using the Orton-Gillingham methodology was appropriate for the student, or that the VCA teacher providing such instruction was qualified to do so. I disagree with his finding. The neurologist who had evaluated the child in August 1997 had specifically recommended that the Orton-Gillingham technique be used for this student, as had the private psychologist who had also evaluated her at that time (Exhibits D-10-22 and 25). I have considered the testimony by respondent's reading teacher about the merits of the Fernald methodology, but I am not persuaded that the methodology used by VCA was inappropriate for this student during the spring of 1998.

        I note that there is no applicable state certification for instructing with the Orton-Gillingham methodology, and the record does not afford a basis for determining what would be an appropriate amount of training to use the technique. The VCA teacher's training was described by VCA's director of special education at the hearing (Transcript pp. 234-235). I find that the hearing officer's determination with regard to the teacher’s qualifications is not supported by the record.

        The hearing officer also concluded that the student's placement was inconsistent with the IDEA requirement that children with disabilities be educated in the least restrictive environment (20 USC 1412 [a][5]). That requirement applies to unilateral parental placements (M.S. on behalf of S.S. v. Bd. of Ed. of the City School District of the City of Yonkers, _____ F. 3d _____ [2d Cir., 2000]). I find that the child's placement in all regular education classes except for specialized reading instruction and resource room services at VCA was no more restrictive than that which respondent's CSE had recommended for her in its school. In view of all of the foregoing, I find that petitioners have met their burden of proof with regard to the appropriateness of the services provided to their daughter by VCA.

        In order to obtain an award of tuition reimbursement, petitioners must also demonstrate that their claim for reimbursement is supported by equitable considerations. The hearing officer did not reach this issue in his decision. Petitioners assert that they have acted in good faith, while respondent has long ignored their daughter’s needs. The Board of Education argues that much of petitioners’ claim of the alleged neglect of the student’s educational needs involves matters which were resolved by the October 1997 settlement agreement between the parties, and that petitioners failed to cooperate with the district and its CSE during the 1997-98 school year. As I noted at the beginning of this decision, the scope of this proceeding is limited to the 1997-98 school year.

        Respondent asserts that petitioners refused to attend any meeting with district staff after their daughter’s IEP was prepared at the November 1997 CSE meeting. At the hearing, respondent’s director of special education testified that a meeting for petitioners, the student’s special education teacher and her remedial reading teacher was scheduled to be held on or about December 11, 1997 and that petitioners had not attended the meeting. He did not explain the purpose of the meeting, which was apparently to assist in implementing the student’s IEP to which petitioners had not yet consented. The director further testified that petitioners were notified that the CSE would meet with them on January 27, 1998. The purpose of that meeting was to review the results of an occupational therapy evaluation which was performed in November 1997 and an auditory processing screening which was performed in December 1997. On the morning of January 27, 1998, the student’s mother telephoned the district to cancel the CSE meeting because she and two of her children were sick (Exhibit D-10-34). The record does not reveal what, if any, steps respondent’s staff took to reschedule the cancelled CSE meeting. I am not persuaded by respondent’s argument.

        Respondent also contends that petitioners withheld their daughter from school between October 29, 1997 and November 14, 1997, and between February 24, 1998 and February 27, 1998, as well as on March 6, 1998, as a consequence of their disagreement with the district. Having reviewed the record, I find that respondent has not proven the truth of its contention (see for example Transcript pp. 371-374).

        The Board of Education contends that petitioners’ claim for an award of tuition reimbursement must be denied, in any event, because petitioners allegedly failed to provide timely written notice to the school district of their intention to withdraw their daughter from school and enroll her in VCA. Respondent relies upon the provisions of 20 USC 1412 (a) (10) (iii) which were amended in 1997 to provide that an award of tuition reimbursement for a unilateral placement by parents may be reduced or denied, if at the most recent IEP meeting the parents attended prior to removing their child from public school the parents did not inform the IEP team that they were rejecting that placement, stating their concerns and their intent to enroll the child in a private school at public expense; or the parents failed to provide written notice, at least 10 days prior to removing their child, of their concerns regarding the child’s IEP and their intent to enroll the child in private school at public expense.

        Petitioners did not indicate at the November 1997 meeting that they intended to withdraw their daughter from respondent’s schools. Their daughter last attended class in respondent’s schools on March 5, 1998. She was enrolled by petitioners in VCA on March 16, 1998 (Exhibit D-43). During the week preceding her enrollment, the student "shadowed" another student at VCA as part of that school’s admission process. Petitioners contend that they complied with the statutory notification requirement because of a letter dated February 27, 1998 which the student’s mother addressed to respondent’s director of special education (Exhibit D-37). In her letter, the mother advised the director that she was withdrawing her daughter from respondent’s schools and placing her in VCA.

        A copy of the letter bearing a rectangular date stamp of the Barker Middle School showing that it was received on February 27, 1998 was entered into evidence, and was the subject of much testimony and analysis. Respondent has no record of ever having received the letter. Letters intended for the special education department were normally date stamped with another stamp which leaves a round mark unlike that which appears on Exhibit D-37. The child’s mother testified that she handed the letter to the special education department’s secretary in her office at the middle school on February 27, 1998, and that the secretary date stamped the original, copied it, and handed the copy to the mother. A friend of the mother’s corroborated her testimony (Transcript pp. 443-444). The special education department secretary conceded that there was "a slim possibility" that she could have used the rectangular middle school stamp rather than the special education department date stamp (Transcript p. 104). Neither she nor the director of special education department remembered receiving the letter. Respondent hired a document examiner to determine the authenticity of the letter in question. On November 28, 1998, the examiner opined that after examining various photocopies of the letter and making various stamp impressions, she believed that the date stamp impression on the letter had been altered (Exhibit D-43). The document examiner also testified at the hearing, where she was qualified as an expert witness. She testified that the numbers which appeared in the date stamp impression on Exhibit D-37 differed from those in an impression she obtained by using the middle school stamp.

        Although petitioners did not directly rebut the expert witness’ testimony, I find that the record does not afford an adequate basis for me to conclude that the document in question is false, and that petitioners did not in fact provide timely notification of their intention to remove the child and place her in VCA. I must also note that the statutory provision upon which respondent relies does not compel a reduction in the recovery of tuition. Having looked at all of the facts in the record, I find that it would be inequitable to do so.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it denied petitioners’ request for an award of tuition reimbursement; and

 IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their daughter’s tuition at the Victory Christian Academy during the period of March through June 1998, upon petitioners’ submission of proof of payment of such tuition.