00-053

        Petitioner, the Board of Education of the Red Hook Central School District, appeals from an impartial hearing officer's decision that ordered petitioner to reimburse respondents for the cost of their child's tuition at The Kildonan School (Kildonan) for the 1999-2000 school year. The appeal must be dismissed.

        Before addressing the merits of petitioner's appeal, I will first address petitioner's contention that the hearing officer improperly accepted evidence pertaining to prior school years. The parties had entered into a stipulation regarding the 1998-99 school year, pursuant to which petitioner agreed to reimburse respondents for the cost of their child's tuition at Kildonan for that school year. In return, respondents agreed to waive any claim or legal action against the school district in any court of law or other forum based on the matters leading up to and including the date of the agreement (Exhibit SD-24). Petitioner asserts that the admission of any evidence pertaining to a school year other than the 1999-2000 school year is a violation of the stipulation. The hearing officer allowed the evidence pertaining to previous school years to be in the record in part because he concluded that this proceeding was not a claim or legal action, nor was it based upon events leading up to and including the date of the agreement, and because he believed that it was essential for him to consider the child's earlier levels of performance and prior IEPs.

        While I do not agree with the hearing officer’s conclusion that this proceeding is not a claim or legal action within the meaning of the parties’ agreement, I find that the hearing officer did not abuse his discretion by allowing respondents to introduce evidence about their child’s educational program during the school years prior to the 1999-2000 school year. He was not asked to determine the appropriateness of the child’s educational programs during those school years, nor did he make that determination. However, evidence of a child’s prior educational program and the child’s performance while receiving that program can be of great assistance in determining the efficacy and appropriateness of the child’s educational program during the current year. The hearing officer ruled only on the appropriateness of the 1999-2000 IEP. I find that the hearing officer reviewed evidence from prior years for the purpose of achieving a full understanding of the child's disability. He clearly based his decision on the appropriateness of the 1999-2000 IEP. Therefore, I find that there is no basis for annulling his decision as urged by petitioner.

        Petitioner also asserts that the hearing officer showed bias in favor of the respondents by engaging in an ex parte conversation with them and their attorney on the final day of the hearing. The record reveals that shortly after the hearing reconvened on April 16, 2000, petitioner’s attorney and its Director of Pupil Personnel Services briefly left the room. The hearing officer then discussed one of the exhibits which had been entered into evidence with respondents and their attorney (Transcript, pp. 1107-1110). The hearing officer was apparently concerned about a discrepancy between some of the information in the exhibit and the testimony he had heard. While I find that there is no basis in the record to conclude that the hearing officer engaged in the conversation for the partisan purpose of assisting the parents, I must note that impartial hearing officers should avoid even the appearance of impropriety by refraining from engaging in such exparte conversations (Application of a Child with a Disability, Appeal No. 96-2). I am concerned by the hearing officer’s conversation with respondents and their attorney, but I find that it does not afford a basis for setting the hearing officer’s decision aside.

        Respondents’ son was seventeen and in the tenth grade during the 1999-2000 school year. When first evaluated at the age of 2½, the child was found to have an expressive language delay. He was enrolled in the St. Francis Speech/Language Special Education Program, where he was found to have a moderate receptive language delay, a severe expressive language delay and an articulation delay (Exhibit P-G). Upon his entrance into petitioner’s schools for kindergarten in 1987, the child was classified as speech impaired. He retained that classification until August, 1997, when petitioner’s committee on special education (CSE) recommended that the boy be classified as multiply disabled because it found him to be both speech impaired and learning disabled. The CSE subsequently recommended that the boy be classified as multiply disabled for the 1998-99 and 1999-2000 school years. The boy’s classification is not in dispute in this proceeding.

        The boy attended a regular education kindergarten and received speech/language therapy five times per week (Exhibit P-Y). At the end of the school year, he was evaluated and found to have severe delays in all areas of language. The child was placed in a language intensive self-contained class at the BOCES, and was provided with speech/language services five times per week for the 1988-89 school year (Exhibits P-G, P-DD). The child remained in BOCES self-contained classes, and received speech/language therapy through the 1997-98 school year, except that he was partially mainstreamed while enrolled in petitioner’s Linden Avenue Junior High School for part of the 1996-97 school year. Over the course of that time, he was found to have a severe central auditory processing deficit that affected his attention, rate of processing, and auditory memory (Exhibit P-G). The child's IQ was tested several times throughout his education. His performance IQ score consistently fell into the average range, but his verbal IQ score declined from low average to borderline (Exhibit P-XX). The evidence does not show that the child has ever exhibited severe social/emotional deficits (Exhibit P-G). When the Wechsler Individual Achievement Test (WIAT) was administered to him in April, 1997, the boy achieved grade equivalent (and standard) scores of 1.5 (56) for basic reading, 1.8 (54) for reading comprehension, 3.1 (67) for math reasoning, 2.0 (48) for numerical operations, 3.9 (81) for listening comprehension, 3.0 (82) for oral expression, <k.0 (61) for written expression, and 1.7 (55) for spelling (Exhibit P-XX).

        In November, 1997, the child was evaluated by an independent speech/language pathologist, who had been trained to teach reading using the Orton-Gillingham technique (Exhibit P-AAA). She recommended a multi-sensory reading program for the child, 3-5 times per week for 60 minutes a session. The school district agreed to pay for that program (Transcript pp. 1039-1041).

        On March 5, 1998, petitioner’s CSE recommended that the boy continue in a BOCES self-contained class for the 1998-99 school year (Exhibit P-MMM). Respondents did not agree with that recommendation, and had their son privately evaluated by an educational consultant in March, 1998. The consultant reported that the child had achieved a score in the 0.1 percentile for word identification, a score in the third percentile for word attack, a score in the 0.2 percentile for word comprehension, and a score in the second percentile for passage comprehension on the Woodcock Reading Mastery Test. She recommended that the child continue to receive instruction in reading using the Orton-Gillingham technique, and suggested that the boy be placed in a private school specializing in dyslexic students (Exhibit P-D).

        Respondents chose to unilaterally enroll their son in Kildonan for the 1998-99 school year. He was evaluated at Kildonan in July, 1998. On the Wide Range Achievement Test–Third Edition (WRAT-3), he achieved a score in the third percentile for word identification, and a score in the first percentile for spelling. In September, 1998, the Gates McGinitie Reading Test (Gates McGinitie) was administered to the child at Kildonan. He achieved a score in the first percentile for vocabulary, and in the third percentile for comprehension. The Stanford Achievement Test in Math (Stanford) was also administered to him at that time. In both computations and applications, the child achieved scores in the second percentile (Exhibit SD-3).

        In August, 1998, the boy’s parents requested that an impartial hearing be held to challenge the CSE’s recommendation and to obtain an award of tuition reimbursement. As noted above, the parties resolved that matter by a stipulation in which they agreed that the child would attend Kildonan at school district expense during the 1998-99 school year. Respondents consented to a psychoeducational evaluation of their son by school district personnel for the purpose of developing the boy’s IEP for the 1999-2000 school year. The parties signed the stipulation by March 5, 1999, but the hearing officer did not sign the stipulation until April 8, 1999 (Exhibit SD-24).

        In a letter dated March 24, 1999, the director of special services requested that respondents consent to a psychological evaluation, educational evaluation, speech/language evaluation and classroom observation for the purpose of developing the child's IEP for the 1999-2000 school year. Included with the letter was a summary of the instruments of evaluation the evaluator intended to use (Exhibit SD-9). The evaluator was not an employee of the school district. She was a school district consultant (Exhibit SD-11). The parents responded to the request by seeking information about the evaluator and evaluation (Exhibit SD-10, P-XXX).

        The child was again evaluated at Kildonan in May, 1999. On the WRAT-3 word identification test, the child’s score rose from the third percentile to the fourth percentile. In spelling, the child’s score continued to fall into the first percentile. On the Gates McGinitie, the child’s vocabulary score rose from the first percentile to the twentieth percentile. The child’s comprehension score fell from the third percentile to the second percentile. On the Stanford math test, the child’s computation score fell from the second percentile to the first percentile. His applications score rose from the second percentile to the eleventh percentile (Exhibit SD-3).

        In a letter to respondents dated May 20, 1999, petitioners provided information about the proposed evaluation by a consultant, and offered respondents the option of an evaluation performed by district personnel if that was the parents' preference (Exhibit SD-11). Respondents replied on May 25, 1999, stating that they had not refused to allow the school district to evaluate the child. However, they asked several questions about the proposed evaluation. They indicated that they wished to be present during the evaluation, and asked the school district to forward the reason for contracting with an outside evaluator (Exhibit SD-12). On June 8, 1999, the director of special services responded by indicating that the proposed evaluator was a district consultant (Exhibit SD-13, P-YYY).

        The child was ultimately evaluated by the consultant on July 1, 15 and 26, 1999. The evaluator described the child as cooperative and optimistic. In non-verbal reasoning, the child achieved scores in the average range. His memory skills were reported to be poor for his age, with his visual memory being significantly better than his verbal memory. On the Woodcock Reading Mastery Test, he achieved a score in the 0.1 percentile in word identification. This was the same score the child achieved when he was administered the test in March, 1998. The child achieved a score in the eighth percentile in word attack, for which his score had been in the third percentile in March, 1998. On the Diagnostic Reading Scales, which tests oral reading skills, the child was found to be reading at a fifth grade level. The evaluator noted that the boy’s oral reading appeared to have improved by more than one grade level since he was tested with the Gray Oral Reading Test in 1998, and she recommended that the child receive at least one hour of individualized reading instruction every day. She also recommended that the child be required to write every day to improve his sight vocabulary and writing structure (Exhibit SD-2C).

        In August, 1999, the child was reevaluated by respondents’ consultant, who again used the Woodcock Reading Mastery Test. The child’s score in word identification rose from the 0.1 percentile to the second percentile. In word attack, the child’s score rose from the third percentile to the thirty-fifth percentile. In word comprehension, the child’s score rose from the 0.2 percentile to the fifteenth percentile. The evaluator recommended an Orton-Gillingham reading program for the child (Exhibit P-E).

        The Committee on Special Education (CSE) met on August 13, 1999 to develop an IEP for the child. Two IEPs were entered into evidence. According to both IEPs, the CSE recommended that the child be classified multiply disabled, and that he be placed in a special class with a student-teacher ratio of 15:1. The recommended class was located at the Red Hook High School (Exhibits SD-4A and SD-4B). The CSE chairperson testified that the first IEP was a draft, and the second version of the IEP was the final version (Transcript pp. 68-73).

        The first IEP was mailed to respondents after the August 13 CSE meeting and before the commencement of the school year. That IEP included a recommendation that the child spend 170 minutes each day in a self-contained class, 40 minutes in resource room, 80 minutes with a reading specialist, 40 minutes in mainstream global studies, 40 minutes in a mainstream elective course, 40 minutes in mainstream chorus three times per week, 40 minutes in mainstream art, 40 minutes per week in physical education three times per week, and 40 minutes in mainstream lunch. According to the first IEP, the child would have been expected to spend more than eight hours a day at school (Exhibit SD-4A).

        The second IEP was sent to respondents on September 13, 1999, which was after the school year had begun. The second IEP recommended that the child spend 80 minutes per day in a self-contained class, 80 minutes per day with a reading specialist, 40 minutes per day in a mainstream elective, 40 minutes per day in mainstream global studies, 40 minutes per day in mainstream chorus or physical education, 40 minutes per day in mainstream art, and 40 minutes per day in mainstream lunch. Although the IEP indicated that he would also receive resource room services, no time was allotted for those services (Exhibit SD-4B). The second IEP would have required the child to attend school for about 6 hours per day.

        The hearing in this proceeding began on October 18, 1999. It continued for six additional days, ending on April 17, 2000. Final memoranda of law were received by the hearing officer in early June, 2000. The hearing officer rendered his decision on July 6, 2000. He based his decision upon the second IEP, which he found to be inappropriate for two reasons. First, the hearing officer found that the boy’s educational program had not been developed in a timely manner. Second, he found the program could not be implemented because of changes which had been made in the school schedule. The hearing officer found that the CSE should have reconvened to revise the child’s IEP when it became apparent that changes in the school schedule made it impossible to implement the IEP. He further found that Kildonan offered an appropriate educational program for respondents’ son. He based this judgment on evidence in the record about Kildonan’s program, and his determination that the Board of Education had acknowledged that Kildonan provided an appropriate program by signing the stipulation pertaining to the 1998-99 school year. The hearing officer also found that equitable considerations favored the parents’ claim for an award of tuition reimbursement.

        Petitioner challenges the hearing officer’s decision on several grounds. The initial question in determining whether the Board of Education met its burden of proving that it had offered to provide an appropriate educational program to the student is which of the two IEPs should be considered. Petitioner contends that the hearing officer erred in holding that the second IEP (Exhibit SD-4B) was the relevant IEP. The Board of Education asserts that only minor "cosmetic" changes were made in the August 13, 1999 version of the IEP (Exhibit SD-4A). I disagree with petitioner’s assertion, and find that significant changes were made, such as the amount of time the boy was to spend in his special education class and the amount of time for resource room services. I note that the boy was to spend 40 minutes per day with a reading specialist under the first IEP, and 80 minutes per day with the specialist under the second version of the IEP. Nevertheless, I agree with petitioner that the relevant IEP is the first version. A CSE may revise a child’s IEP from time to time. However, the relevant IEP for purposes of an award of tuition reimbursement is the IEP which the parents had at the time when they enrolled their child in the private school (Application of a Child with a Disability, Appeal No. 98-14). I find that the relevant IEP is the first version of the IEP, which was the IEP respondents had when they re-enrolled their son in Kildonan.

        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]).

        The hearing officer found that the recommended program was inappropriate because it was untimely and could not be implemented. The hearing officer construed the stipulation, which became effective on April 8, 1999, to be a referral for an annual review, which should have resulted in a CSE recommendation within 60 days (8 NYCRR 200.4 [c]). Having reviewed the record, I find that nothing in it indicates that the parties perceived the stipulation to be a referral for an annual review. I cannot conclude that the CSE failed to meet to develop an IEP in a timely manner.

        I do agree with the hearing officer that the IEP could not be implemented as it was written. Exhibit SD-4A indicated that the child would have been required to spend about eight hours a day at school. Although there were reportedly typographical errors on the IEP with regard to the amount of special education services to be provided, I note that petitioner’s Director of Special Services testified that as he prepared the boy’s actual class schedule, he discovered that there was no room in the schedule for the elective course recommended by the CSE (Transcript p. 531). The Director acknowledged that the CSE should reconvene when a change in the school schedule makes implementation of an IEP impossible (Transcript p. 534). However, there is no evidence that the CSE did so in this instance. An IEP that cannot be implemented is an inappropriate IEP (Application of a Child with a Disability, Appeal No. 99-58). The difficulty here is that there were a number of changes in the second version of the IEP (Exhibit SD-4B) which makes it hard to discern from the original IEP what in fact the CSE had recommended. I find that the school district did not meet its burden of proving the appropriateness of the program recommended by its CSE.

        The child's parents bear the burden of proof with regard to the appropriateness of the services they obtained for their child at Kildonan during the 1999-2000 school year (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 parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20). Parents who unilaterally place their child in a private school are not held as strictly as boards of education are to the requirement that children with disabilities be educated in the least restrictive environment. Nevertheless, the restrictiveness of the unilateral placement may be considered in determining its appropriateness for purposes of tuition reimbursement awards (M.S. v. Bd. of Educ. of the City School Dist. of the City of Yonkers, ___F3d___, [2d Cir., 2000], 2000 Lexis 26848).

        I must first note that I disagree with the hearing officer’s finding that the stipulation regarding the 1998-99 school year is proof that the school district considered Kildonan to have an appropriate program. The determinative issue in deciding whether a stipulation may be construed against a school district is whether the stipulation was explicitly limited to a specific school year or definite time period (Evans v. Board of Ed. Rhinebeck CSD, 921 F. Supp. 1184 [S.D.N.Y 1996]). The stipulation in this case clearly pertains only to the 1998-99 school year. However, that it is not dispositive of the matter. The hearing officer found, and I concur, that there is evidence in the record to demonstrate that the Kildonan School provided an appropriate educational program to the boy during the 1999-2000 school year.

        Kildonan is a college preparatory school for students with dyslexia. Its instructional program uses the Orton-Gillingham methodology, which is a multi-sensory approach to teaching reading and writing. Instruction is provided in small classes. Each student also receives a 1:1 tutorial for language training for 45 minutes every day (Transcript, p. 913; Exhibit P-O). Kildonan’s Associate Head of School testified that respondents’ son required the intensive program which Kildonan provided because of the severity of his needs (Transcript, pp. 919-920). The boy's initial progress report for the 1999-2000 school year indicated that he was making satisfactory progress at Kildonan (Exhibit P-O). The hearing in this matter concluded before the end of the 1999-2000 school year, so there are no final progress reports or end-of-year test results in the record. In determining whether the parents have met their burden of proof, I have considered the boy's special education needs, as well as the results of his prior schooling. Respondents' son has a significant language processing difficulty which has inhibited the development of his reading and writing skills. Those skills are substantially below his grade level. Although he has received special education instruction from petitioner for a number of years, his progress has been minimal. I find that he required the intensive, specialized assistance which Kildonan provided, and that his placement there was consistent with the least restrictive environment requirement.

        The third and final criterion for an award of tuition reimbursement is whether the parents' claim is supported by equitable considerations. I find that equities support the parents claim for reimbursement. According to federal regulation, tuition reimbursement may be reduced or denied if the parents did not adequately inform the school district that they rejected the CSE's proposed program and were removing their child from the public school, the parents did not make the child available for evaluation, or if the parents behaved in a generally unreasonable manner (34 CFR § 300.403[d]). The evidence shows that the parents informed the CSE that they were dissatisfied with the proposed program at the CSE meeting held immediately prior to the child's removal from the public school. The evidence also shows that the parents ultimately allowed the school district to evaluate their child. Although petitioner argues that respondents delayed granting permission to evaluate the child, I note that the school district did not need respondents' permission to conduct an evaluation. I commend petitioner for attempting to work with respondents prior to initiating an evaluation, but I note that the regulations in effect during 1999 did not require a school district to obtain parental consent prior to conducting a reevaluation. The regulation requiring school districts to obtain written parental consent prior to conducting a reevaluation became effective January 6, 2000. Furthermore, respondents agreed in the stipulation to allow the school district to evaluate their child for the purpose of developing an IEP for the 1999-2000 school year (Exhibit SD-24). I cannot accept petitioner's argument that respondents caused a delay in the evaluation process. I find that the equities support respondents' claim for tuition reimbursement.

        I have considered petitioner's other contentions, and I find them to be without merit.

THE APPEAL IS DISMISSED.