00-048

        Petitioner, the Board of Education of the Monroe-Woodbury Central School District, appeals from an impartial hearing officer's decision which held that the Board of Education had failed to provide an appropriate educational program to respondent's child for the 1999-2000 school year. 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 Windward School (Windward) for that school year. The appeal must be dismissed.

        Prior to addressing the merits of petitioner's argument, I must first address a procedural issue. Petitioner has annexed additional exhibits which are not part of the hearing record to its petition. The exhibits are evaluation results provided by Windward that were not available at the time of the hearing. Respondent opposes consideration of the additional evidence because it allegedly does not apply to the school year in question. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). Because the additional evidence was unavailable at the time of the hearing, I will consider the evidence, and afford appropriate weight to it in rendering my decision.

        At the conclusion of the hearing in May 2000, the student was 13 years old. He had initially been classified as learning disabled while in first grade, and he continues to have that classification. His classification is not in dispute. The student was unilaterally placed by his parents at Windward during the 1997-98 school year, and has continued to attend that school. Windward is approximately a one-hour drive from the school district (Transcript p. 258). It has not been approved by the State Education Department to provide instruction to children with disabilities.

        Respondent’s son was initially referred to petitioner’s Committee on Special Education (CSE) by his kindergarten teacher. His initial evaluation was conducted when the student was in first grade. He achieved a verbal IQ score of 90, a performance IQ score of 85 and a full scale IQ score of 86 (Exhibit SD-3). In addition to recommending that the student be classified as learning disabled, the CSE recommended that he be placed on a part-time basis in a special education class (Exhibit P-7).

        During second and third grades, the CSE recommended placement in a full time special class with a student:teacher ratio of 15:1. Lunch, physical education and special subject instruction were to take place in the mainstream. Group speech/language therapy was recommended for the student twice per week for thirty minutes (Exhibits P-7 and P-8). For fourth grade, the CSE recommended that the student remain in a full time special class with a student:teacher ratio of 15:1, except for math, lunch, art, and physical education. It also recommended that he receive group speech/language therapy twice per week for thirty minutes (Exhibit P-9). For fifth grade during the 1996-97 school year, the CSE recommended a similar educational program for the student. The CSE minutes indicate that the CSE had initially recommended that the student participate in a special class for math, but the parents expressed a strong desire for the student to remain in a mainstream math class (Exhibit P-10).

        Respondent’s son was privately evaluated by an educational consultant in the fall of 1996. On the Weschler Intelligence Scale for Children - Third Edition (WISC-III), he achieved a verbal IQ score of 95, a performance IQ score of 96, and a full scale IQ score of 95. On various achievement tests, the student achieved a fifth grade level score for math, but his scores for reading and spelling were at the first and second grade level. On the Test of Written Language-3 (TOWL-3), he achieved a standard score of 70 (2nd percentile) for spontaneous writing. The evaluator recommended that the student receive daily instruction by a specialist trained in the Orton-Gillingham methodology, as well as private tutoring with an Orton-Gillingham specialist. She also recommended that he remain in a mainstream math class, with modifications to ensure success, and that he be considered for placement in a mainstream science class (Exhibit P-2). Shortly after the independent evaluation, the student began to receive private tutoring.

        The parents and the private evaluator met with the CSE on February 27, 1997. The parents requested that the student be placed at Windward, because they wanted a program that provided reading instruction in all classes (Exhibit P-13, p. 83). The CSE sought to have another evaluation performed by an outside expert to resolve concerns regarding the conclusions reached by different evaluators (Exhibit P-13, pp. 85, 86). The parents agreed to discuss the additional evaluation (Exhibit P-13, pp. 95, 96).

        Subsequent to the meeting, the CSE director wrote to the parents to inform them that the district's speech/language therapist had recommended that their son receive 30 minutes of speech/language services twice per week. The CSE director requested the parents' approval to initiate the services for the remainder of the 1996-97 school year (Exhibit P-14). The record does not indicate whether the parents gave their approval. In a letter dated March 21, 1997, the parents granted permission for an independent evaluation. They also requested an impartial hearing to adjudicate their claim of an alternative placement and tuition reimbursement for Windward (Exhibit P-16).

        The district’s outside evaluator tested the student in May and June 1997. He reported that the student's overall intellectual functioning was in the low average range, and that his disability included both auditory and visual deficits. The evaluator opined that the student could not be expected to achieve in reading at a rate exceeding three to five months during each year of schooling. He reported that the student could be expected to do grade level work in math, science, and social studies. The evaluator recommended that a variety of techniques, rather than just the Orton-Gillingham methodology, be used with the student. He also recommended that future educational planning emphasize vocational training, rather than academically oriented careers, and opined that the student could benefit from a private school placement (Exhibit SD-6).

        When evaluated by his teacher in June 1997, respondent’s son received standard (and percentile) scores of 75 (5th) for broad reading, 100 (50th) for broad math, and 76 (5th) for broad written language. His scores for science and social studies were grade level appropriate (Exhibit SD-51). On June 18, 1997, the CSE reviewed the student’s program, and recommended a full time special class with a student:staff ratio of 12:1+1 for him in the sixth grade during the 1997-98 school year. The comments included on the individualized education program (IEP) indicated that the CSE agreed to refer the student to Windward. It also recommended referral to two state approved private schools, Eagle Hill and The Community School of Bergen County (Bergen) (Exhibit SD-7). The record shows that placement could not be made at either Eagle Hill or at Bergen because referral and acceptance dates had expired. The CSE reportedly placed the student on a waiting list for both school programs, and temporarily funded a placement at Windward (Exhibit SD-38). At Windward, the student repeated the fifth grade.

        The parents had their son re-evaluated in January 1998 by the consultant who had evaluated the student in the fall of 1996. She reported that the student evidenced gains of four months in sight reading and more than one year in phonetic decoding (Exhibit P-3). The school district questioned the test results because the evaluator measured the results using age norms rather than grade norms. The consultant recommended that the student continue to attend Windward, and be reevaluated in spring 1999. She also recommended further consultation with her as needed (Exhibit P-3).

        In May 1998, the student was evaluated by one of petitioner’s teachers. The teacher reported that the student achieved an oral reading quotient of 64, which was below the first percentile, on the Gray Oral Reading Test 3. On the Woodcock Reading Mastery Test-Revised (WRMT-R), the student achieved standard (and percentile) scores of 3.0 (84th) for word attack and 2.8 (77th) for passage comprehension. Comparing his performance on those tests with the standardized test results he had achieved in June 1997, the teacher reported that the student had made minimal progress in basic reading skills and his comprehension had decreased slightly while attending Windward during the 1997-98 school year. She recommended that the student receive daily reading instruction focusing on word attack, sight vocabulary and comprehension. She opined that the student would benefit from instruction in compensatory reading techniques, books on tape and exposure to technology courses (Exhibit SD-10).

        The student was also evaluated by the school district's psychologist in the spring of 1998. The parents reportedly did not consent to release of their child's records from Windward. The psychologist observed the student at Windward, and updated his testing. Although the student's ability to write a paragraph had improved, his overall writing skills were found to be three to four years below grade level. The student also exhibited a relative decline in his math skills. The psychologist opined that the student should return to the school district because he had not progressed in certain academic areas at Windward, and because it would afford him the opportunity to participate in extracurricular activities and to interact with peers (Exhibit SD-9).

        In a letter dated June 4, 1998, the CSE chairperson indicated that the CSE’s previously scheduled review of the student’s program had been postponed because the school district had not received the student’s educational records from Windward despite three requests for them. The chairperson indicated that the CSE review would be deferred until the student could be re-evaluated by the outside evaluator who had tested him in the spring of 1997 (Exhibit SD-9). The re-evaluation was conducted in June 1998. On the Woodcock-Johnson Tests of Achievement - Revised (WJ-R), the student's grade equivalent score for broad math had increased over the course of the year from 5.5 to 5.8, and his broad knowledge score had improved from 4.4 to 5.4. His grade equivalent for broad reading remained unchanged from the previous year. On the TOWL-3, the student's score for spontaneous writing increased from the 8th percentile to the 13th percentile. For contrived writing, the student's score decreased from the 7th percentile to the 2nd percentile. The student's score for overall writing also decreased from the 6th percentile to the 4th percentile (Exhibit SD-5).

        The CSE convened on July 29, 1998, and suggested a sixth grade placement in the district’s schools for the student. However, the parent member of the CSE was not present, as required by Education Law § 4402(1)(b)(1)(a). The CSE with its parent member reconvened on September 3, 1998. It recommended that the student receive special education in regular education classes for science, social studies and math, direct special education instruction for language arts for 45 minutes per day, individual multi-sensory reading instruction for 40 minutes per day, and special education instruction for study and organizational skills for 20 minutes per day (Exhibits SD-3 and SD-28). Students in petitioner’s special education in regular education classes program are assisted in regular education classes by special education teachers or teaching assistants (Transcript p. 397).

        The student’s parents did not accept the CSE’s recommendations, and chose to enroll their son in Windward for the 1998-99 school year. They also requested an impartial hearing, which began on October 16, 1998. After one day of hearing, the parties agreed to adjourn the hearing until the parents could obtain another private evaluation of their son.

        The parents had their son privately evaluated on October 28, 1998. The student achieved a verbal IQ score of 89, a performance IQ score of 111, and a full scale IQ score of 99. On the WJ-R, the student achieved standard (and percentile) scores of 77 (2nd) for letter-word identification, and 95 (37th) for word attack skills. In June 1997, the student had achieved scores of 69 (2nd) and 90 (25th), respectively. The student reported to the evaluator that he suffered from severe headaches while attending public school, but he did not experience headaches or anger at Windward. The evaluator recommended that the student continue to attend Windward. She also recommended that the student listen to books on tape and radio programs to enrich his vocabulary and improve his knowledge of general information (Exhibit J-1).

        In November 1998, the student was privately evaluated by the consultant who had previously evaluated him in the fall of 1996 and January 1998. On the WRMT-R, the student achieved standard (and percentile) scores of 71 (3rd) for word identification, and 89 (23rd) for word attack (Exhibit J-2). When the evaluator previously administered the WRMT-R in January 1998, the student achieved a word identification standard score of 52 and grade equivalent of 2.1. He achieved a word attack standard score of 89 and grade equivalent of 2.9 (Exhibit P-3). Since the WRMT-R had also been administered to him in May 1998, it is possible that the rise in his scores in November may have been attributable to the practice effect. The evaluator recommended that the student continue to attend Windward, that the Windward language specialist be consulted regarding suspected word finding problems, that the student continue Orton-Gillingham tutoring during the summer months to reinforce learning, and that he be re-evaluated in one year (Exhibit J-2).

        The hearing resumed on February 11, 1999. On that day, the parties agreed that the parents and the school district would each pay 50 percent of the cost of the student's tuition and service fee at Windward during the 1998-99 school year, and that the school district would continue to provide transportation to him. The parents agreed that they would cooperate with the referral, intake and interview process, if the CSE recommended a private placement at Bergen for the 1999-2000 school year (Transcript pp. 199-202). The parties also agreed that the hearing officer would retain jurisdiction in the event that a dispute arose subsequent to the CSE's recommendation for the 1999-2000 school year (Transcript p. 203).

        In April 1999, an educational evaluation was performed as part of the CSE’s annual review. On the WRMT-R, the student achieved a standard score of 75, a grade equivalent of 2.8 and a percentile score of 5 for word identification. For word attack, the student achieved a standard score of 90, a grade equivalent of 4.4 and a percentile score of 25. The evaluator used age norms in scoring the test. She recommended that the student continue in a program with reading instruction on a daily basis, take advantage of books on tape, and take elective classes focusing on his areas of strength (Exhibit SD-30).

        The school psychologist also evaluated the student in April, using the age norms for the TOWL-3 and the Kaufman Test of Educational Achievement (KTEA). Between May 1998 and April 1999, the student's standard score and percentile for overall writing decreased, and his math composite standard score and percentile decreased. His math composite grade equivalent increased. The psychologist opined that the student needed access to technology support and opportunities for local social interaction (Exhibit SD-31).

        In May 1999, the private consultant again evaluated the student, using the grade norms for the WRMT-R. The student achieved a grade equivalent of 3.8, a standard score of 86 and a percentile of 17 for word identification. For word attack, the student had a grade equivalent of 6.4, a standard score of 99 and a percentile of 48. For word comprehension, the student achieved a grade equivalent of 4.4, a standard score of 86 and a percentile of 18. For passage comprehension, the student achieved a grade equivalent of 4.4, a standard score of 88 and percentile of 22 (Exhibit SD-34).

        The CSE conducted its annual review of the student’s program on May 10, 1999. For seventh grade during the 1999-2000 school year, the CSE recommended that the student be enrolled in petitioner’s special education in regular class program for social studies, science, and math, a 15:1+1 "Communication Literacy" class to prepare him for the Regents English examination, a 15:1+1 "Skills" class to assist with study and organization, and that he receive 40 minutes of resource room services five days per week (Exhibit SD-33). The student's father agreed to consider a state approved private placement at Eagle Hill. The father reported that the parents had visited Bergen and found it to be unacceptable. The CSE chairperson indicated that the application deadline for Eagle Hill had passed, and he was under the impression that the parents had been aware of the deadline (Transcript pp. 19-29). The CSE chair also indicated that he would contact the parents regarding approval for the school district to conduct another evaluation (Transcript pp. 29, 30, 32, 33).

        In a letter dated May 18, 1999, the parents refused to consent to an additional evaluation of their child. They indicated they would consent to their son’s placement at Eagle Hill, provided he was placed in the residential program. They reiterated that they would not consider Bergen because they did not feel the staff maintained appropriate control over the students. In the event that neither Eagle Hill nor Windward was recommended by the CSE, the parents requested an impartial hearing (Exhibit SD-37). The CSE chair responded by stating that the parents had not been genuinely cooperative with the CSE and a new evaluation of the student was necessary because of the varying results of previous evaluations. He also indicated that the school district would initiate an impartial hearing to obtain authorization to evaluate the student if the parents did not consent to the evaluation (Exhibit SD-38). The parents responded on June 21, 1999 by formally requesting an impartial hearing (Exhibit SD-27).

        The parents unilaterally placed their child in Windward for the 1999-2000 school year. The student was evaluated at Windward in September 1999. On the Wide Range Achievement Test (WRAT), the student’s reading score was reported to be at the fourth percentile, while it had been at the second percentile when tested in September 1998. The student achieved a score in the second percentile for spelling. His spelling skills had improved from the first percentile in September 1998 to the second percentile in September 1999. The student’s math skills decreased from the 45th percentile in September 1998 to the 37th percentile in September 1999. On the Gates-MacGinitie Reading Test administered in May 1998 and September 1999, there was little if any improvement in the student’s performance (Exhibit SD 50).

        The hearing resumed on November 30, 1999. On December 6, 1999, the hearing officer ordered the parents to cooperate with the school district in having the student evaluated. He recommended an independent evaluator other than the evaluator the school district preferred (Exhibit IHO-8). The parties agreed to the evaluator suggested by the hearing officer.

        The evaluation was conducted in January 2000. The evaluator administered the WRMT-R, and scored the test using both age norms and grade norms. Using grade norms, the student achieved a word identification standard score, percentile and grade equivalent of 80, 9 and 4.3, respectively. For word attack, the student achieved a standard score of 105, a percentile of 63 and a grade equivalent of 16.9. Using age norms, the student achieved a word identification standard score of 79, a percentile of 8 and a grade equivalent 4.3. For word attack, the student achieved a standard score, percentile and grade equivalent of 107, 67 and 16.9, respectively (Exhibit IHO-13).

        The evaluator reported that the student's pattern of progress indicated an increase in reading achievement during first, second and third grades. The student then hit a plateau in reading achievement during fourth and fifth grades, as well as the fifth grade he repeated at Windward. The evaluator reported that the student displayed an increase in reading achievement in sixth and seventh grades. He estimated that the student's rate of progress in reading achievement had been about 0.9 grade equivalents while at Windward. The student's estimated rate of progress in reading achievement in the district was 0.5 grade equivalents. I note that at the hearing, the evaluator conceded he had not considered the results of the student’s performance on the Gates-McGintie Reading Test administered to him at Windward during November 1998 and November 1999 (Transcript p. 722). On that test, the student showed no gain from the former date to the latter date (Exhibit SD 50). The evaluator recommended a neurological evaluation to determine whether the student had an attention disorder. He also recommended daily individualized reading instruction using the Orton-Gillingham methodology, provision of academic material on video or audio tapes, extended time for tests, and a follow-up evaluation in one year (Exhibit IHO-13).

        At the request of the school district, the evaluator provided an addendum to the evaluation. He reported on the student's rate of progress in reading as evaluated by the Windward staff since attending that school. He also reported on the student's rate of progress in math, social studies, science, spelling, and written language. In reading, the evaluator reported that the student was performing below grade level, and while attending school in the school district, he fell increasingly further below grade level. At Windward, the student was also performing below grade level, but he was not falling further below grade level. The student's standard scores indicated improvement in reading. In math, the evaluator reported that the student's achievement in math had improved during his years at Monroe-Woodbury, and he had stayed close to grade level while at Windward. The evaluator reported that the student had been close to grade level in social studies and science while in petitioner’s schools, but he had fallen one grade level in both subjects since attending Windward. The student's written achievement was below grade level and he was falling further behind while attending school in the school district. The evaluator could not compare the student's written achievement at the school district with his written achievement at Windward because of a lack of data. The student's spelling achievement was below average at both the school district and Windward, and his spelling continued to decline (Exhibit IHO-14).

        The hearing concluded on March 27, 2000. The hearing officer issued his decision on June 2, 2000. He found that the CSE that had prepared the student’s IEP was not validly composed because one of its members was not familiar with the educational program that the CSE recommended. The hearing officer also noted that the evidence of the CSE’s composition was "rather inconclusive." In any event, he apparently determined that the Board of Education had not met its burden of proving that it had offered to provide an appropriate educational program to the student. He accepted the independent evaluator’s opinion that respondent’s son had progressed at a greater rate in reading while attending Windward than in petitioner’s schools, in finding that the parent had met his burden of proving that Windward was meeting the student’s special educational needs. He ordered the school district to convene a CSE meeting and modify the student's IEP to indicate that Windward was the student's placement. The school district was to be responsible for tuition, fees, books and transportation to and from Windward. The school district was also ordered to assist the student in participating in any extracurricular activities with the school district. The hearing officer ordered the parents to arrange for their child to be evaluated by a pediatric neurologist for an attention disorder.

        Petitioner contends that the hearing officer applied an incorrect standard in reviewing the school district's program, and that he erred in finding the program to be inappropriate. It also contends that the hearing officer erred in finding that Windward’s educational program met the student’s special education needs because the student had not progressed in reading since attending Windward. Finally, petitioner asserts that equitable considerations did not favor the parents’ claim for an award of tuition reimbursement.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option such as Windward is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). 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 with a Disability, Appeal No. 93-9).

        I find that the Board of Education has failed to meet its burden of proof because the CSE that developed the child's IEP was not properly constituted. Federal and state regulations require that a CSE include at least one regular education teacher of the student, if the student is or may be participating in the regular education environment (34 C.F.R. § 300.344 [a][2]; 8 NYCRR 200.3[a][1][ii]). There was no regular education teacher at the May 10, 1999 CSE meeting at which the student’s IEP for the 1999-2000 school year was developed. In that IEP, the CSE recommended that the student participate in regular education classes with special education support for science, social studies and math, as well as regular education classes for electives and physical education (Exhibit SD-33). In the absence of a required member, petitioner’s CSE could not prepare a valid IEP for respondent’s child (Application of a Child with a Disability, Appeal No. 96-87). Therefore, I find that respondent has prevailed with respect to the first criterion for an award of tuition reimbursement.

        Respondent bears the burden of proof with regard to the appropriateness of the services provided to his son by Windward during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent 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).

        A parent may demonstrate in different ways that a private school’s program was appropriate for his or her child. In this instance, the parents offered the testimony by their educational consultant, who opined at the hearing that Windward was appropriate for this student because he would receive instruction in reading using the Orton-Gillingham methodology. That instruction is consistent with the needs of a student like this, and I need not consider whether there are other approaches that might have been used with the student. I have also considered the student’s report card for the 1999-2000 school year that indicates that his performance was satisfactory (Exhibit B to the Petition), as well as his February and June 2000 progress reports from Windward (Exhibit C to the Petition). In those reports, the student’s teachers indicated that he had made progress in their respective subjects. In February 2000, the student’s reading and writing teacher reported that those subjects continued to be difficult for the student, especially with regard to common phonetic patterns.

        End of year testing results indicated an overall gain in decoding skills on Windward’s own decoding test. Progress was also indicated by the results of the Diagnostic Reading Scales administered to the student in June. On the Stanford Achievement Test, there was a slight decline in the student’s reading vocabulary, but a slight increase in his reading comprehension. His standard score for oral reading also improved slightly on the Gray Oral Reading Test. Although the test results are mixed, I find that on balance they demonstrate that the student’s special education needs were addressed by Windward during the 1999-2000 school year. Those results, together with the opinions expressed by the expert witnesses, affords a basis for me to conclude that respondent has met his burden of proof with regard to the appropriateness of the services provided to his son by Windward.

        In order to obtain an award of tuition reimbursement, respondent must show that equitable considerations support his claim. The school district argues that equitable considerations do not favor respondent because the parents did not make their child available for evaluation upon the school district's request in May 1999. Tuition reimbursement may be reduced or denied if, prior to removal of the student from the public school, the school district appropriately provided notice of its intent to evaluate the student and the parents did not make their child available for the evaluation (34 C.F.R. § 300.403[d][2]). The hearing officer ultimately ordered an independent evaluation of the student. The school district objected because it did not have the opportunity to choose the evaluator. However, an impartial hearing officer may order that an evaluation be performed at school district expense (8 NYCRR 200.5[c][6]).

        The parents made their son available for evaluation in April 1999, and school district personnel did perform an evaluation. The parents objected when asked to make him available for an additional evaluation in May 1999 because they felt that their child had already been extensively evaluated (Exhibit P-20, p. 29, SD-37). Under the circumstances, I find that they were not unreasonable (Healey on behalf of Healey v.Ambach, 103 A.D.2d 565 [1984]). I find that equitable considerations favor respondent’s claim for tuition reimbursement.

THE APPEAL IS DISMISSED.