00-045

         Petitioner, the Board of Education of the City School District of the City of Kingston, appeals from an impartial hearing officer's decision which found that the Board of Education had failed to provide an appropriate educational program to respondent’s son for the 1998-99 and 1999-2000 school years. It also appeals from the hearing officer’s order requiring the Board of Education to pay for the cost of the student’s tuition at the Kildonan School (Kildonan) for the 1999-2000 school year. The appeal must be sustained.

        Before addressing the merits of the appeal, I must address a procedural issue. In a one-page letter responding to the petition, respondent, who is not represented by an attorney, asserts that petitioner's appeal should be dismissed because it was not filed within 30 days after receipt of the decision. When a Board of Education commences an appeal to the State Review Officer, the notice of petition, petition, memorandum of law and any additional documentary evidence must be served on the parent within "40 days after the board's receipt of the hearing officer's decision" (8 NYCRR 279.2[c]). The decision was dated May 19, 2000, and the board asserts that it was received on May 23, 2000. Respondent acknowledges that she was served on June 28, 2000. Therefore, I find that the appeal was filed in a timely manner.

        This proceeding was commenced on January 11, 1999 by a request for an impartial hearing. At that time, the student was 18 years old. He was in the twelfth grade and was attending classes in petitioner’s high school for part of the school day and at the Ulster County Board of Cooperative Educational Services (BOCES) for part of the day. The student’s prior educational history was set forth in a previous appeal, Application of the Board of Education of the City School District of the City of Kingston, Appeal No. 98-30 (Exhibit 2).

        Respondent’s son has been classified by petitioner’s Committee on Special Education (CSE) as learning disabled. In his most recent triennial evaluation, which occurred in June 1999, the student achieved a verbal IQ score of 97, a performance IQ score of 111, and a full-scale IQ score of 103, indicating that his cognitive skills are in the average range (Exhibit D-15). Although he had achieved somewhat lower IQ scores when tested in December 1996 (Exhibit D-96), his scores in that evaluation were also in the average range. There is no dispute about his classification as learning disabled and I may not review its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp 73 [N.D.N.Y., 1987]).

        When evaluated in the tenth grade in December 1996, the student achieved grade level (and percentile) scores of 6.7 (21st) for letter-word identification, 3.8 (12th) for word attack, 11.0 (54th) for passage comprehension, 3.3 (2nd) for dictation, 7.0 (17th) for mathematical calculation, and 8.0 (30th) for mathematical application. The school psychologist who performed that evaluation opined that the student had a "dyseidetic dyslexic learning disability" which was manifested by difficulty in discriminating and analyzing the visual and spatial aspects of the configuration of letters and words. As a result of this condition, the student has difficulty reading and writing. His reading difficulty also affects his ability to learn math skills.

        During ninth grade, the student achieved passing grades for resource room, Regents Competency Test (RCT) English 9, global studies, Regents level earth science, and physical education. He did not achieve passing grades for an introduction to law course, or the Regents Course I in math (Exhibit D-14). In January 1996, the student achieved passing scores on the RCTs for reading, math, science, and writing (Exhibit D-1A).

        In tenth grade during the 1996-97 school year, the student continued to receive resource room services. He also received instruction in reading and math from an educational consultant who used the Orton-Gillingham methodology. That methodology uses a multisensory instructional technique that is often used with dyslexic students. Respondent’s son was initially enrolled in the Regents Course I in math and Regents level English, but dropped the former after one quarter of the year, and switched from the latter to RCT English after receiving failing grades for the first two quarters. The student earned passing final grades for RCT English, Regents level biology, tenth grade global studies, resource room, two occupational education courses, and physical education. He had earned seven credits towards graduation, exclusive of the credit given for physical education.

        For the 1997-98 school year, petitioner’s CSE recommended that the student continue to receive one period of resource room services per day, and 90 minutes of multisensory reading and math instruction from the consultant per day (Exhibit D-1A). Respondent’s son attended the BOCES for occupational classes in the morning, and petitioner’s high school for math, social studies, resource room, English, and physical education in the afternoon.

        Respondent challenged the adequacy of her son’s individualized education program (IEP) for the 1997-98 school year at a hearing that began in October 1997 and ended in January 1998. In April 1998, the hearing officer found that the student’s IEP was flawed, and recommended that the CSE consider placing the student in a day school for primarily dyslexic students. The Board of Education appealed from the hearing officer’s determination. The Board’s appeal was sustained in part on November 25, 1998.

        In my decision in that appeal, I found that the student’s initial and amended IEPs accurately described the student’s present levels of performance, as required by federal and state regulations, and that they provided some explanation of how the student’s disability affected his educational performance. I further found that while the IEP goals and objectives could have been more precisely crafted, they nevertheless addressed the student’s special education needs. In addition, I found that the combination of primary special education provided by the consultant and supplemental special education in the resource room enabled the student to benefit from the regular education instruction needed for him to continue to make progress towards achieving a high school diploma.

        Approximately three months after my decision was rendered, the hearing officer in that proceeding awarded compensatory education to respondent’s son in a second decision. The Board of Education appealed from that decision. On January 5, 2000, the hearing officer’s second decision was annulled (Application of the Board of Education of the City School District of the City of Kingston, Appeal No. 99-22).

        At the conclusion of the 1997-98 school year, the student earned three credits for auto mechanics, one total credit for introduction to occupations 1 and 2, one credit for history/government 11S and one credit for sequential course 1NR (Exhibit D-14). He did not earn a credit for English. On June 19, 1998, the CSE recommended that the student continue to participate in the regular education program during the 1998-99 school year, with one period of resource room services per day. It also recommended that he receive 60 minutes of multisensory reading and math instruction by the educational consultant four days each week. The IEP which the CSE prepared for the student included the testing modifications of extended time limits, having test questions read to the student, the use of special locations, and having all chapter and unit tests read to him. The IEP also provided that he was to have access to a computer with spell check and receive the services of a note-taker (Exhibit D-4).

        The minutes of the June 19 CSE meeting are attached to the student’s IEP. They indicated that the student had stopped attending resource room in April 1998 and had stopped completing his assignments. The notes further indicated that the student would be unable to graduate with his class due to his failure to accumulate the appropriate number of credits. The student's mother stated that the student would not attend summer school or night school. The minutes also reveal that one of the required members of the CSE, a regular education teacher of the student, did not attend the CSE meeting.

        Respondent’s son reportedly refused to attend classes in petitioner’s high school shortly after the beginning of the school year. The CSE reconvened on September 29, 1998, with respondent and her lay advocate. I note that the meeting minutes annexed to the IEP that was prepared on that date indicate that there was no required parent member of the CSE at the meeting. In any event, the parties stipulated that pending receipt of a decision in the Board of Education’s prior appeal to the State Review Officer, the student would participate in homeroom and a physical education class at Kingston High School, and an academic class and the auto mechanics program at BOCES. They also agreed that the educational consultant would provide him with a multisensory reading program. The parties acknowledged that the student's participation in the interim program would preclude his graduation in June 1999, and that resource room services were not necessary to support the student's coursework (Exhibit D-7). The student’s IEP was revised to reflect the interim agreement (Exhibit D-8).

        In a January 11, 1999 letter addressed to the CSE chair and the superintendent of BOCES, respondent’s son requested an impartial hearing. The student alleged that the school district had failed to implement and abide by the interim agreement, failed to monitor and provide oversight for the 1998-99 school year, failed to adjust his first marking period grades, and failed to intervene on the student's behalf when the staff at BOCES "harassed, intimidated, threatened and retaliated" against him for exercising his due process rights. He alleged separate violations against BOCES, and sought one year of compensatory education from the school district and one year of compensatory education from BOCES (Exhibit IHO-1).

        On May 31, 1999, the hearing officer found that the BOCES was not a proper party to the proceeding because it was merely a service provider for the Board of Education. The hearing officer dismissed some of the student’s allegations, such as his complaint about grades he had received, as being beyond his jurisdiction. The hearing officer also ruled that the student had no standing to demand a due process hearing. The student's father was substituted as the party requesting the impartial hearing (Exhibit IHO-2). The hearing began on June 8, 1999.

        The student’s triennial evaluation was conducted on June 15 and 16, 1999. As noted above, the student’s IQ scores were reported to be in the average range with no significant discrepancy between his verbal and performance IQ scores. The evaluator reported that the student's visual-perceptual skills appeared to be better developed than his verbal-expressive skills. The student's ability to distinguish essential from nonessential details was an area of relative strength, and his copying speed was an area of weakness. Nevertheless, all of the student’s scores, including copying speed, were in the average range or higher. On the Woodcock Johnson Test of Achievement, the student achieved grade equivalent (and percentile) scores of 8.2 (24th) for letter-word identification, 14.2 (65th) for passage comprehension, 8.9 (33rd) for calculation, 10.8 (39th) for applied problems, and 2.9 (0.5th) for dictation. The student made errors in spelling, punctuation and usage on the dictation portion of the test. On the Test of Written Language - Third Edition (TOWL-3), the student's score fell far below expectation given his cognitive ability scores (Exhibit D-15).

        A few days before the triennial was performed, the educational consultant who had been instructing the student also conducted an educational evaluation. She administered the Woodcock Reading Mastery Test - Revised (WRMT-R), and she compared his scores with the scores he had obtained when evaluated in December 1996. The consultant reported that the student’s word identification skills had improved from a grade equivalent of 6.1 to 11.3, his word attack skills from 3.4 to 16.9, and his word comprehension from 9.3 to 13.0. The student’s passage comprehension had remained at a grade equivalent of 16.9 during that period. The consultant also reported that the student’s spelling and writing skills had improved. She opined that the student could benefit from "the complete Orton [-Gillingham] program" (Exhibit D-10).

        At the end of the 1998-99 school year, the student received academic credit for his BOCES automotive and English courses and petitioner’s physical education course (Exhibit D-14). He had earned a total of 17.5 credits, but needed four more to graduate (Exhibit D-12). The CSE began its annual review of his educational program on June 22, 1999. The CSE chair read a letter from the student’s English teacher at the BOCES, but none of the student’s regular education teachers attended the meeting. The CSE did not complete an IEP for the student.

        The CSE met on August 23, 1999 to complete its annual review. Once again, there was no regular education teacher of the student present. Neither of the student's parents attended the meeting. The CSE recommended a classification of learning disabled and placement in the regular education program with one period per day of resource room services during the 1999-2000 school year. It also recommended that the student receive direct consultant teacher services for one period per cycle in English and social studies, and 30 minutes of individual counseling twice per month. Notwithstanding the student’s reported refusal to avail himself of the services of a note-taker during the 1998-99 school year, the CSE recommended he have a note-taker for the 1999-2000 school year. IEP testing modifications included doubled time limits, flexible setting, having test directions read/explained, and questions read and rephrased. The CSE again recommended that the student have access to a computer with spell check (Exhibit D-25).

        In September 1999, respondent unilaterally enrolled her son in Kildonan for the 1999-2000 school year. On September 7, 1999, the parent's representative verbally requested reimbursement of tuition for the 1999-2000 school year at the hearing with regard to the 1998-99 school year. By agreement, the parent’s claims for both school years were consolidated in this proceeding (Transcript pp. 194, 195). The impartial hearing continued over the course of 14 days through January 6, 2000.

        The hearing officer rendered his decision on May 19, 2000. He first considered the five remaining issues from the January 11, 1999 request for a hearing, and dismissed each of those issues. Since there is no cross-appeal, I do not review that part of the hearing officer’s decision. The hearing officer found that the student’s IEP for the 1998-99 school year was inappropriate for a number of reasons. He found that it did not indicate the student's current levels of functioning, nor did it sufficiently identify the student's needs. In addition, he found that the IEP goals for reading and writing were too vague and not measurable. The hearing officer also concluded that the IEP did not include sufficient special education service to address the student’s deficit in writing. While finding the Board of Education had denied a free appropriate public education (FAPE) to respondent’s son, the hearing officer found that the student was ineligible to receive an award of compensatory education.

        With respect to respondent’s claim for an award of tuition reimbursement for the 1999-2000 school year, the hearing officer construed the provisions of 20 USC § 1412(a)(10)(c), as added by the 1997 amendments to the Individuals with Disabilities Education Act (IDEA), as authorizing him to award tuition reimbursement upon a finding that the Board of Education had not made a FAPE available to the student in a timely manner prior to the student’s enrollment in the private school. In essence, he concluded that the tripartite test articulated by the U.S. Supreme Court in its decisions 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) had been replaced by that portion of the IDEA. I do not share the hearing officer’s opinion, which would authorize a tuition award without regard to whether the services provided by a private school were consistent with the purposes of the IDEA and its implementing regulations (34 CFR § 300.403[c]).

        In any event, the hearing officer found that the student’s IEP for 1999-2000 school year was deficient because the CSE that prepared it did not include a regular education teacher. He also found that it was unreasonable for the CSE to attempt to complete the IEP at its August 23, 1999 meeting without the attendance of respondent or her lay advocate. The hearing officer also found that Kildonan had offered an educational program that appropriately addressed the student's needs in the least restrictive environment, and that equitable considerations favored the parent. He noted that the student’s parents had not in fact paid any tuition to Kildonan for the 1999-2000 school year, and that the lay advocate’s organization, the Parent Information Center, had paid at least a portion of the tuition. The hearing officer further noted that the parents were not legally obligated to repay the Parent Information Center. Nevertheless, he ordered the Board of Education to reimburse the Parent Information Center for the full amount which it had paid to Kildonan for the student’s tuition, and to reimburse the student for the amount which he had reportedly paid to Kildonan. The hearing officer also ordered the Board of Education to pay Kildonan the balance due on the student’s tuition, less the above amounts and a $4000 scholarship that it had awarded to the student.

        Petitioner appeals from the hearing officer's findings that it had failed to provide a FAPE to respondent’s son during the 1998-99 and 1999-2000 school years. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        A CSE is required to conduct an annual program review for each special education student in the district (8 NYCRR 200.4[e]). During the review, the CSE must consider the educational progress and achievement of the student and the student's ability to participate in instructional programs in regular education (8 NYCRR 200.4[1]). At its annual review on June 19, 1998, the CSE considered several evaluations, the oldest of which was a reading evaluation dated December 17, 1996, well within the three-year limit (34 C.F.R. § 300.534[b]; 8 NYCRR 200.4[e][4]). The most recent evaluations were the Clinical Evaluation of Language Fundamentals (CELF) and the Test of Written Language (TOWL), which were administered on December 1, 1997 (Exhibit D-4). While it would have been preferable to have had an update from the consultant about any improvement in the student’s decoding skills, I must note that the student’s reading comprehension skills were almost at grade level. I find that the CSE’s evaluations were sufficiently current, and that they provided adequate information about the nature of the student’s disability to enable the CSE to prepare his IEP. I disagree with the hearing officer’s assertion that the IEP failed to identify the student’s needs as "a dyslexic person".

        The IEP included goals and objectives for reading, writing, study skills and transitional activities, which were appropriate in view of the student’s strengths and weaknesses. As noted above, the student’s disability was manifested by difficulty decoding words and writing grammatically. The objectives for reading focused upon improving the student’s decoding and word recognition skills. The objectives for writing pertained to composition writing, editing and use of a computer. The student also had difficulties with organization and assignment completion. The student's study skills goals and objectives addressed those weaknesses. The IEP also provided for career planning, which was appropriate in view of his age. The hearing officer found that the IEP goals for reading and writing were too general. However, I find that the supporting objectives provided the necessary specificity, e.g., "will recognize high frequency sight words with 80 percent success". I find that the goals and objectives on the 1998-99 IEP were appropriate.

        For the 1998-99 school year, the CSE recommended that the student receive resource room services for one period per day in a group of five, as well as 60 minutes of reading and math instruction four times per week by the educational consultant who used the Orton-Gillingham technique. The CSE also recommended that the student use a computer with spell check and the services of a note-taker to help him meet the written demands of his educational program (Exhibit D-4). However, the parties stipulated in September 1998 that resource room services were not necessary for the student until the appeal in the prior proceeding had been decided. The amended IEP that the CSE prepared on September 29, 1998 indicated that daily resource room services were "waived" (Exhibit D-8). There is no evidence in the record of any subsequent amendment of the IEP to provide that the student should receive resource room services, nor is there any evidence that the student received resource room services during the 1998-99 school year. I have considered the hearing officer's comments about the appropriateness of resource room services. However, I find that there is no basis for either the hearing officer or myself to decide the issue in the absence of proof of an amended IEP superseding the September 29, 1998 IEP. Since there is no dispute about the student’s other recommended special education services, I find that the hearing officer’s determination that the Board of Education denied a FAPE to respondent’s son during the 1998-99 school year is not supported by the record and must be annulled.

        I concur with the hearing officer’s finding that the student's IEP for the 1999-2000 school year was invalid because the CSE that prepared it was not properly constituted (Application of a Child with a Disability, Appeal 99-19). Federal regulation mandates that a CSE include at least one regular education teacher of a student if the student is, or may be, participating in the regular education environment (34 C.F.R. § 300.344). No regular education teacher was present at the meeting despite the fact that the CSE recommended that the student participate in the regular education program (Exhibit D-4). The Board of Education argues that the commentary to the regulations indicates that the regular education teacher is not required to attend every meeting. While that is so, this student’s IEP was developed over the course of two meetings and no regular education teacher participated in either meeting. In view of my finding about the IEP’s validity, I do not need to address the hearing officer’s finding that it was unreasonable for the CSE to complete the IEP at the August 23, 1999 meeting that respondent could not attend.

        The student's parent bears the burden of proof with regard to the appropriateness of the services provided by Kildonan during the 1999-2000 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 Board of Educ., Appeal No. 93-34). In order to meet that burden, respondent must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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 student (Application of a Child with a Disability, Appeal No. 94-20).

        Respondent unilaterally placed her son at Kildonan in October 1999 (Transcript p. 1929). Kildonan serves students with dyslexia and related learning disabilities, and all of the students at Kildonan have educational disabilities (Transcript pp. 1920, 1939). However, Kildonan is not approved by the New York State Education Department to provide instruction to children with disabilities. The associate head of the school described Kildonan as a college preparatory school with a traditional curriculum, and a remediation program that consists of individual tutoring for 45 minutes per day (Transcript p. 1919). Kildonan uses some of the New York State curriculum as a guide, but its curriculum is modified and the number of topics is reduced (Transcript pp. 1943, 1981, 1982). The typical class size is six to twelve students (Transcript p. 1973).

        The associate head at Kildonan testified that respondent’s son had enjoyed success at Kildonan, after some difficulty adjusting to the demands of the school during the first three weeks of placement (Transcript p. 1929). She further testified that he had received mostly As and Bs (Transcript p. 1930). She also testified that the student’s writing skills were being remediated and his reading was improving (Transcript p. 1931). On the Gates-MacGinite Reading Test that was administered in December 1999, respondent’s son scored in the high high school and post high school levels for both vocabulary and reading comprehension. The associate head of Kildonan acknowledged that the student had received "very good remediation" before he began attending Kildonan (Transcript p. 1931), and that he had strong reading decoding skills (Transcript p. 1948). I note that on November 13, 1999, the student took the College Board’s SAT, on which he achieved a verbal score of 660 and a math score of 480 (Transcript pp. 1931, 2111). His verbal SAT score was in the 90th percentile, and the associate head testified that the student’s math SAT score was good enough to get him into college (Transcript p. 1933). The student took the test with extended time limits.

        The student’s strong performance on the Gates-MacGinitie and the SAT shortly after his placement in Kildonan indicates that his reading skills had substantially improved by the beginning of the 1999-2000 school year. Further evidence of this improvement can be found in the test results reported by the educational consultant in June 1999 (Exhibit D-10) and by petitioner’s school psychologist in June 1999 (Exhibit D-15). However, the student’s writing skills continued to be below grade level. At the hearing, the educational consultant opined that the student’s skills were at the sixth grade level (Transcript pp. 1520-1521). The associate head of Kildonan testified that the student’s writing skills were at the junior high school level (Transcript p. 1945).

        I have carefully reviewed the record to ascertain how Kildonan addressed the deficit in the student’s writing skills. The associate head of Kildonan testified that the student’s classroom teachers were not using the sequential Orton-Gillingham approach to teach him to read or write (Transcript p. 1943). The student was, however, receiving remedial instruction in his 45-minute daily tutorial course, and had approximately one hour of homework each night in remedial assignments (Transcript p. 1954). The record does not reveal what that remedial instruction entailed. The associate head also testified that the student would be taught to write a 10 to 20 page research paper (Transcript p. 1974). She did not explain how that would be appropriate for a student with such modest writing skills. Although she also testified that the student was given writing assignments in his courses, those assignments do not appear to be directly related to whatever specialized instruction he may have received to improve his writing skills. I am unable to find on the record before me that Kildonan was addressing the student’s special education needs in writing which was reportedly his primary area of disability.

        Students with disabilities must be educated in the least restrictive environment (20 USC 1412[a][5]). The least restrictive environment (LRE) requirement does apply 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, LEXIS 26848 [2d Cir. 2000]). Nevertheless, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F.2d 688 [2d Cir. 1989]). Placement in a specialized school like Kildonan is highly restrictive. Respondent’s son had achieved almost enough credits to graduate from high school while receiving special education on a part-time basis. He had also acquired sufficient reading and math skills to be considered a candidate for a college education. Under the circumstances, I find that placement in a full time special education program at Kildonan is not consistent with the LRE requirement.

        I must find that respondent has not met her burden of proof with respect to the appropriateness of the services provided by Kildonan during the 1999-2000 school year. Because I have concluded that the private school placement was inappropriate, I need not address equitable considerations.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that the Board of Education had failed to provide a FAPE to respondent’s son during the 1998-99 school year and that respondent and others were entitled to an award of tuition reimbursement for the 1999-2000 school year.