Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Mamaroneck Union Free School District
Westchester Putnam Legal Services, attorney for petitioners, Eileen Campbell O’Brien, Esq., of counsel
Shaw & Perelson, LLP, attorneys for respondent, Lisa Rusk, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision which denied their request for reimbursement for the cost of their daughter’s placement at the Kildonan School (Kildonan) during the 1999-2000 school year. The hearing officer found that respondent had offered to provide an appropriate educational program for petitioners’ daughter, that Kildonan did not meet the student’s needs, and that equitable considerations did not support their claim for reimbursement because they had not timely advised respondent of the unilateral enrollment of their daughter in that school. The appeal must be sustained.
Petitioners’ daughter was 15 at the commencement of the hearing and a 10th grade residential student at the Kildonan School in Amenia, New York. The school offers a college preparatory curriculum for students with specific learning disabilities, including dyslexia. However, it has not been approved by the State Education Department to provide instruction to children with disabilities. The student attended the Mamaroneck High School for the ninth grade during the 1998-99 school year.
Prior to her entry into kindergarten, petitioners’ daughter had attended a special needs pre-kindergarten program for two years where she had received speech and language support (Petitioners’ Exhibit 3). She was reportedly enrolled in regular education classes during the early elementary grades. In the fall of 1992, the child’s third grade teacher referred her to respondent’s Committee on Special Education (CSE) because of her low academic achievement (Petitioners' Exhibit 13). She was found to have average cognitive skills, with a significant discrepancy between her verbal and performance IQ scores. The child was two years below grade level in reading and spelling, and one year behind in math computation. The CSE recommended that she be classified as learning disabled. She has remained classified as learning disabled, and there is no dispute about her classification.
The record is not clear what special services the child received upon classification. At the time of her 1995 triennial evaluation in the 6th grade, she was apparently receiving resource room services to supplement her regular elementary education classes (Petitioners' Exhibit 6). IQ testing at that time revealed that the disparity between her verbal and performance IQ scores had been reduced to a four-point difference, although there was a scatter in her subtest scores. On the Peabody Individual Achievement Test (PIAT), the student tested at a 2.4 grade level in reading recognition, a 3.3 grade level in reading comprehension, a 3.4 grade level in spelling, and a 7.2 grade level in math (Petitioners' Exhibit 5).
The student attended respondent’s Hommocks Middle School in the seventh and eighth grades, during which she was mainstreamed with daily resource room assistance. During this period, she used compensatory mechanisms such as listening to books on tape, having material read to her, and working with modified written material, which enabled her to pass her mainstream courses. The student’s seventh grade final (and final examination) grades were 71 (54) in social studies, 82 (60) in math, 74 (70) in science, and 80 (71) in English (Respondent’s Exhibit 25). In the eighth grade, she received eighth grade final (and final examination) grades of 73 (59) in science, 70 (58) in English, 81 (76) in social studies, and 84 (86) in math (Respondent’s Exhibit 25). On the PIAT in March 1998, the student scored at a 2.2 grade level in reading recognition, a 6.8 grade level in reading comprehension, and a 3.9 grade level in spelling. She tested at an 8.2 grade level in math, and a 10.8 grade level in general information. The evaluator cautioned that the student’s score in reading comprehension was inflated, and more a reflection of her test taking abilities than of her ability to understand the written word (Respondent’s Exhibit 13).
The student’s individualized education program (IEP) for 1998-99 school year indicated that she would attend mainstream ninth grade classes for science, social studies, English, math and an elective, and would receive four 49-minute periods of resource room services per six day cycle (Respondent’s Exhibit 4). The IEP also indicated that she needed individualized programs of instruction in reading and writing, and required sequential, multisensory instruction. Her assigned reading room resource teacher had extensive training in such reading programs including the Orton-Gillingham Reading System and the Wilson Reading Program, and used the latter in her reading resource room.
At the beginning of the school year, the student’s reading resource room teacher administered a battery of diagnostic reading tests to the student (Respondent’s Exhibits 29, 11). She reported that the student did not have a consistent method of word analysis, and did not use any phonic method to decode (read) words. Although the student memorized a number of sight words, she continued to confuse small words such as "in" and "of". On the Woodcock Reading Mastery Test (WRMT) word attack subtest, the student had difficulty matching letters to sounds, and scored a 1.0 grade equivalent. Her performance on the Wilson Assessment of Decoding and Encoding (WADE) showed that the student had difficulty spelling even one-syllable words.
In December 1998, the student’s resource room time was rescheduled to provide her with the opportunity to receive 1:1 reading instruction by the resource room teacher. The reading teacher had suggested this change because the student did not consistently cooperate during the group resource room reading instruction periods. However, problems continued after the change from group to 1:1 instruction, with the student reportedly becoming verbally abusive to the reading teacher and writing "four-letter words" on her desk. Nevertheless, the reading teacher reported that the student was making progress, and the student remained in the 1:1 reading class until the teacher left for personal reasons in April 1999.
The student’s performance in her regular English, social science, and math classes declined during the 9th grade. At the end of the 2nd quarter, she received grades of 65 in both social studies and math, and a grade of "credit" in English. At petitioners’ request, the CSE met with them on January 11, 1999. The CSE revised the student’s IEP effective February 10, 1999 to provide her with 47 minutes of resource room instruction in reading five times per six day cycle, and an additional resource room class of the same frequency to support her in her mainstream classes. The CSE also recommended that she be removed from her mainstream science class and be instructed in science in a special education class (Respondent’s Exhibit 5).
In January 1999, the student’s triennial psychological reevaluation was performed. She achieved a verbal IQ score of 95, a performance IQ score of 113, and a full scale IQ score of 104. Respondent’s school psychologist reported that the student exhibited deficits in her short-term auditory memory, expressive vocabulary, and understanding of basic math concepts. He recommended that the student continue in her current placement (Respondent’s Exhibit 26).
At its annual review on March 24, 1999, the CSE recommended that during the 1999-2000 school year the student should be enrolled in a special education class with a 15:1 student:adult ratio for instruction in English and social studies, and be mainstreamed for other subjects, including science. It also recommended that she receive one period per day of resource room services for reading. The IEP following that meeting (Respondent’s Exhibit 3) also indicated that the student would be provided with books on tape, testing modifications, and assistive technology including a calculator and spell checker.
The student’s individual instruction in reading ended in April when the teacher left her position. However, she continued to receive reading instruction from another teacher in a resource room group. On or about June 4, 1999, petitioners sought another meeting with the CSE because they were dissatisfied with their daughter’s progress (Petitioners’ Exhibit 12). The requested meeting was held on June 24, 1999.
Prior to the June 24, 1999 CSE meeting, the student’s reading skills were assessed by her former resource room teacher (Respondent’s Exhibit 12). She was found to be independently reading at the third grade level on the Informal Reading Inventory. On the Gray Oral Reading Test, she achieved a grade equivalent score of 4.8, which was a four- month gain since September 1998. Her word attack skills improved from a 1.0 grade equivalent in September 1998 to 3.0 in June 1999 on the WRMT. On the Woodcock Johnson Tests of Achievement–Revised, she improved from a 1.0 to 3.5 grade equivalent for word attack. The teacher reported that the student’s word comprehension skills were at a 5.8 grade equivalent on the WRMT. On the WADE, the student improved from a 2-1 level to a 4-2 level in reading real words between September 1998 and June 1999. The teacher opined that the petitioners’ daughter required specialized multisensory reading instruction in a group of no more than three students to address her phonological processing deficits.
At its June 24, 1999 meeting, the CSE reportedly reviewed the student’s report card and her prior IEP. The student earned final grades of 68 in math, 80 in science, 65 in social studies, and "credit" for English during the 1998-99 school year (Respondent’s Exhibit 25). The CSE also considered the student’s June 1999 reading test results. It adhered to its previous recommendation that the student be educated in a special education class for English and social studies, and receive specialized reading instruction on a daily basis in a resource room (Respondent’s Exhibit 2). At petitioners’ request, the CSE recommended that a speech/language evaluation be performed within the first 30 days of the 1999-2000 school year, with a follow-up CSE meeting if that evaluation indicated the need for additional services. The CSE also recommended that it meet again on February 29, 2000 to review the student’s progress and performance.
By letter dated July 7, 1999, petitioners were informed that respondent had approved the CSE’s recommendations. I note that a copy of the IEP from the June meeting was not sent to petitioners until September 10, 1999. In the interim, petitioners corresponded with respondent’s staff about their daughter’s proposed educational program. They also enrolled their daughter in the summer program of the Gow School, a private school near Buffalo, N.Y., for additional instruction in reading.
The student’s father had applied for her admission to Kildonan on June 15, 1999 (Petitioners’ Exhibit 20). Kildonan accepted the student in a letter dated August 18, 1999 (Petitioners’ Exhibit 16). By letter dated August 24, 1999, the student’s father informed the Superintendent of Schools that his daughter would not attend respondent's high school in September, and would be placed in a more structured environment specializing in remediating her specific problems (Respondent’s Exhibit 28). Respondent received that letter on August 27, 1999 (Petitioners’ Exhibit 15), eight weekdays prior to the start of school on September 8, 1999 (Transcript at p. 78).
By letter dated November 10, 1999, petitioners requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Respondent’s Exhibit 1). The hearing commenced on December 7, 1999, with additional hearing dates on January 19 and 24 2000, March 23, 2000, and May 3, 2000. The hearing officer issued a decision on July 1, 2000. He found that respondent’s CSE had adequately evaluated petitioners’ daughter, and had prepared an appropriate IEP for her for the 1999-2000 school year. The hearing officer dismissed petitioners’ contention that the IEP should be invalidated because the CSE that prepared it had allegedly not included a regular education teacher. He also found that the student would have been appropriately grouped for instructional purposes with students of similar needs and ability, and that the student’s placement in Kildonan by her parents was inconsistent with the requirement that children with disabilities be educated in the least restrictive environment. The hearing officer further found that petitioners had not cooperated with respondent because they had not given respondent proper notice of the student’s unilateral placement at Kildonan. He denied their request for tuition reimbursement.
Petitioners claim that the hearing officer was biased in favor of the school district. A hearing officer must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice (Application of a Child with a Disability, Appeal No. 96-38; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-47; Application of a Child with a Handicapping Condition, Appeal No. 91-38; Application of the Board of Education of the Pittsford Central School District, Appeal No. 91-14). Petitioners’ claim of bias is based on statements of the hearing officer relating to the credentials and testimony of one of petitioners’ witnesses and the extent to which the hearing officer found the witness’ opinion testimony credible. At one point, he asserted to petitioners and their attorney that " you haven’t really presented anything, after hours of testimony" (Transcript p 635). While I find that the hearing officer’s remark was inappropriate, I further find that it appears to have been based on a misunderstanding of the weight to be given to the witness’ testimony, rather than a bias against petitioners or a predisposition in favor of respondent.
Petitioners renew their challenge to the June 24, 1999 IEP on the ground that no regular education teacher participated in the CSE meeting of that date. The IEP does not list the name of any of the student’s regular education teachers as being in attendance at that meeting. However, the unrebutted testimony at the hearing, by among others petitioners’ lay advocate, was that the student’s regular education English teacher attended the June CSE meeting. I therefore find that the CSE for the June 1999 CSE meeting was properly constituted.
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 ). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ). 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 ). 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 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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). An IEP is required to report the student’s present levels of educational performance and indicate the student’s academic, social, physical and management needs (8 NYCRR 200.4[c][i]; 34 CFR 300.347[a]). This student’s IEP has a number of conclusory statements about her performance and needs, such as "has moderate academic deficits". I find that such cursory statements do not provide the required performance information (Application of a Child with a Disability, Appeal No. 99-78). I must also note that the IEP fails to include the standardized test results obtained by the resource room teacher at the beginning and end of the 1998-99 school year, which were available to the CSE. I find that this relevant and up to date information should have been referenced in the IEP for the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 94-29).
An IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student’s needs arising from his or her disability (34 CFR 300.347). Goals must be specific in order to provide sufficient guidance to a student’s teachers with respect to the CSE’s expectations for his or her performance (Application of a Child with a Disability, Appeal No. 98-14), and they must be measurable (34 CFR 300.347[a]). Finally, the IEP must identify how progress toward its goals will be measured including the "evaluative criteria, evaluation procedures, and schedules to be used to measure progress towards the annual goals" (8 NYCRR 200.4[c][iii]; 34 CFR 300.347[a][i]).
When measured against these standards, I find that the student’s 1999-2000 IEP is inadequate. Despite the student’s significant and continuing weakness in spelling, the IEP contains no spelling goals or objectives. The IEP goals for reading, English, language arts, writing, and study skills are vague, for example: "the student will develop and improve decoding skills"; "the student will improve vocabulary skills"; and "the student will develop written expression skills". Many of the supporting short-term objectives also lack specificity, for example: "will increase repertoire of sight words", "will learn and apply rules for syllabication", "will read and understand vocabulary words", "will write a well constructed paragraph". The simple statement that "All objectives for the annual goals in this section will be completed with 80% accuracy" does not solve the problem because the IEP does not specify the level of expectation for such a percentage of success or accuracy.
An appropriate IEP must also include adequate special education and related services to address the student’s special education needs and afford her a reasonable opportunity to achieve her IEP annual goals. The record reveals that this student has difficulty decoding and sequencing sounds in reading, and that her writing is seriously impaired by deficits in organization, grammar and syntax, as well as spelling. Although this proceeding concerns only the 1999-2000 school year, I have considered the services that the student has received and the academic performance she achieved in prior school years to ascertain whether the services that the CSE recommended for the year in question were adequate.
It is apparent that the student requires specialized instruction to address weaknesses in her reading and writing skills. The CSE recommended that petitioners’ daughter receive primary instruction for English and social studies in a special education class, as well as separate instruction for reading in a resource room. I note that by definition, resource room instruction is supplemental (8 NYCRR 200.1[hh]). However, it is clear from the record that the instruction to be provided to the student in the proposed resource room would in fact have been primary rather than supplemental. I also note that the Wilson Program to be used in the resource room does include a component addressing spelling. In view of the progress reported by the student’s two resource room teachers at the end of the 1998-99 school year, I am not persuaded that the recommended services were inadequate.
Respondent must also show that petitioners’ daughter would have been grouped in the proposed special education and resource room classes with other students having similar needs with respect to levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and management needs (8 NYCRR 200.6[f], [g]). Respondent submitted class profiles (Respondent Exhibits 21, 22, and 23) and also presented testimony relative to this issue. I concur with the hearing officer’s finding with regard to the composition of the resource room class.
I am unable to conclude, however, that the student would have been suitably grouped for instructional purposes in the proposed English and social studies special classes. Both these classes allow a 15:1 teacher student ratio. The range of full scale IQ scores in both of these classes is 45 points, and varies from 64 (intellectually deficient) to 104 (average normal intelligence). The range of students includes four students who are classified as intellectually deficient according to their WISC III test results. Importantly, the reading comprehension scores in the two special classes range from a grade equivalent of 1.6 to a grade equivalent of 11.3; a spread of 8.9 grade equivalents. In view of these differences in ability and achievement, it is unlikely that the students have comparable academic goals.
For all of the foregoing reasons, I find that the Board of Education has failed to meet its burden of proof with respect to the educational program that it had offered to provide. Petitioners have therefore prevailed with respect to the first criterion for an award of tuition reimbursement.
Petitioners bear 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 Education of the Monroe-Woodbury CSD, Appeal No. 94-34). In order to meet that burden, they 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 ; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, as had been suggested by the hearing officer, and it need not have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).
Ms. Katherine Schantz, the associate head of Kildonan, testified on behalf of the petitioners with respect to the appropriateness of the school’s educational program for their daughter. Kildonan is a co-educational day and boarding K-12 college preparatory school for 135 students with specific learning disabilities, including dyslexia. Students at the school have average or above average intelligence, but need intensive remediation in literacy skills (Transcript pp.577-578). The school uses the Orton-Gillingham approach to teaching reading and writing. The technique is a structured, multisensory method of teaching reading which focuses on teaching sound-symbol (letter) relationships and the structure and organization of writing.
Ms. Schantz testified that petitioners’ daughter was enrolled in biology, health, geometry, social studies, world literature, and psychology courses at Kildonan. The student also participated in the school’s language training program consisting of a daily 45-minute 1:1 reading tutoring program, and proctored afternoon and evening study halls. During the individual tutoring sessions, the student worked on reading decoding, spelling and writing. The witness testified that in light of the very limited nature of the student’s reading skills and her age and grade, the 1:1 intensive level of reading instruction used at Kildonan was appropriate for her (Transcript pp. 613-14, 625). She also testified about the modifications Kildonan made in its non-reading instructional subject matter classes to maximize the extent to which the student would be able to learn the relevant curricular content (Transcript pp. 581, 649-650, 654).
Ms. Schantz testified that tests were not comparable with each other and that the school did not yet have standardized test results that could be compared, but she discussed the student’s grades at the school. For the winter term, the student received grades of A- in world literature, B+ is psychology, B in social studies, D in geometry, and B+ in biology (Petitioners’ Exhibit 23). The narrative reports accompanying the winter term grades indicated that the student’s class participation was sometimes weak, and she did not always complete assignments for math, literature, and social studies in a timely manner. The language tutor reported that the student had continued to develop better skills throughout the Winter Term (Petitioners’ Exhibit 24). Ms. Schantz testified that it was "a very slow process," and that she was doing "fine," "showing really good ability to comprehend," "developing a much more sustained reading habit," and that her writing showed "significant gains" (Transcript pp. 611-12).
The hearing officer found that the student’s placement as a residential student at the Kildonan School was inconsistent with the requirement that students with disabilities be educated in the least restrictive environment (20 USC 1412[a]). Although that requirement applies to unilateral parental placements (M.S. o/b/o S.S. v. Board of Education of the City School District of the City of Yonkers, 231 F.3d 96, 105 [2nd Cir. 2000], it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Education of the State of Connecticut, 882 F.2d 688, 692 [2nd Cir. 1989]). I find that the educational program described by Ms. Schantz is appropriate for this student. With regard to the residential portion of the placement, I note that the CSE indicated on the IEP that the student needed to develop responsibility for completing class and homework assignments. I am unable to conclude from the record before me that the student needed the evening study halls provided by Kildonan in order to receive an appropriate education. However, I must also note that Kildonan is about an hour and one-half away from the student’s home, and there is no evidence in the record of an appropriate placement nearer to petitioners’ home. Under the circumstances, I find that a residential placement is consistent with the least restrictive environment requirement (Application of the Board of Education of the Somers Central School District, Appeal No. 00-026; Application of the Board of Education of the Bethlehem Central School District, Appeal No. 99-94). Accordingly, I find that petitioners have prevailed with respect to the second criterion for an award of tuition reimbursement.
The third and final criterion for an award of tuition reimbursement is that petitioners’ claim for tuition reimbursement is supported by equitable considerations. The hearing officer concluded that such considerations did not support petitioners’ request for tuition reimbursement because they failed to provide respondent with sufficient prior notice of their intent to enroll the student in the private school.
The Individuals with Disabilities Education Act (IDEA), as amended in 1997, provides that an award of tuition reimbursement may be reduced or denied in certain circumstances. The amended statute provides that tuition reimbursement may be reduced or denied, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (20 USC 1412[a][C][iii]).
Respondent advised the petitioners of the IDEA notice provisions (Respondent’s Exhibit 3, 4, 5). Petitioners gave written notice of their dissatisfaction with the CSE’s proposed placement by letter dated August 24, 1999 (Respondent’s Exhibit 28). Their letter was delivered to the Superintendent of Schools on August 27, 1999 (Petitioners’ Exhibit 15), only eight business days prior to the beginning of school. Although the CSE was made aware of petitioners’ dissatisfaction with the proposed placement at its June meeting (Transcript p 537), petitioners did not inform the CSE of their intention to place their daughter in a private school (Transcript p 533). Subsequent to that meeting and prior to their August 27, 1999 letter, petitioners corresponded with the CSE chair on two occasions with respect to their concerns about the respondent’s program for the 1999-2000 school year (Respondent’s Exhibit 27). They notified respondent of their intention to place their daughter in a private school shortly after the student was accepted for admission by Kildonan. The record also shows that petitioners cooperated with the CSE at all times. Under the circumstances, I find that it would not be equitable to deny reimbursement to petitioners.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled.
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of their daughter’s placement at the Kildonan School during the 1999-2000 school year, upon petitioners’ submission of proof of payment for such expenditures.