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Application of the BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Raymond G. Kuntz, P.C., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel


         Petitioner appeals from an impartial hearing officer’s decision that ordered it to reimburse respondents for the cost of their son’s tuition at a private school for the 1999-2000 school year. The appeal must be dismissed.

        Petitioner initiated this appeal by serving its papers upon the student’s father on September 25, 2000, within 40 days after its receipt of the hearing officer’s final decision (see 8 NYCRR 279.2[c]). By letter dated October 6, 2000, respondents requested an extension of time to answer the petition. Although petitioner consented to this request, respondents did not submit an answer. Instead, by letter dated October 16, 2000, respondents asserted that they were unable to answer the petition due to financial difficulties, and that a review of the transcripts and exhibits would refute the allegations contained in the petition. I note that in a prior appeal by the Board of Education, respondents also failed to answer the petition. I will consider the statements contained in the petition to be true, unless refuted by the facts in the record before me, because to do otherwise would violate my duty to conduct an independent review of the record (34 CFR 300.510[b][2]).

        Although declining to submit an answer, respondents allege in their October 6, 2000 letter that the State Review Officer (SRO) has a conflict of interest in reviewing this appeal because, in their view, the SRO is an extension of the political viewpoint and position of the New York State Education Department (NYSED). Respondents do not identify any specific policy of the Department or any act by one of its employees beyond alleging that the SRO cannot be impartial because he is an employee of NYSED. Respondents allege that the "entirety of the State, including the Attorney General’s office" has taken positions against them and claim that the Attorney General’s office failed to properly argue the appeal of a prior SRO decision before the Supreme Court of the State of New York. Respondents request that the SRO recuse himself and rule that their administrative remedies have been exhausted.

        I note that 8 NYCRR 279.1(b) provides that the term "State review officer" shall mean an employee of NYSED designated by the commissioner to conduct impartial State-level review, and 8 NYCRR 279.1(c) imposes various conditions to ensure the impartiality of state review officers. Respondents do not contend that any of the conditions regarding impartiality contained in these regulations have been violated, and I am unable to discern any interest that would prevent me from impartially deciding the issue herein, which is whether petitioner must reimburse respondents for the cost of private school tuition. Under the circumstances, I find that respondents’ allegation of a conflict of interest is without any basis in fact or law (Board of Educ. v. Sobol et al., 160 Misc. 2d 539 [1994]).

        Respondents’ son was 17 years old and in the tenth grade when the hearing began in February 2000. He was initially reported to have some attention difficulties in kindergarten, and he was diagnosed as having an attention deficit hyperactivity disorder (ADHD) when he was in the second year of a combination first and second grade class. Petitioner’s Committee on Special Education (CSE) classified the boy as learning disabled at that time, but it reclassified him to his current classification as other health impaired when he was in the seventh grade (Exhibit IHO-4). The boy’s classification is not disputed in this appeal.

        The student’s educational program for the 1998-99 school year was reviewed in a prior appeal concerning respondents’ unilateral enrollment of their son for the ninth grade at the Kildonan School (Kildonan), a private school in Amenia, New York (Application of a Child with a Disability, Appeal No. 99-65). The impartial hearing officer in that proceeding had ordered the Board of Education to reimburse the parents for the cost of tuition at Kildonan for the 1998-99 school year. The Board of Education appealed from the hearing officer’s decision, and as in this case, respondents chose not to submit an answer. I concurred with the impartial hearing officer’s determination that the Board of Education had not met its burden of proving the appropriateness of the educational program that it had offered to provide during the 1998-99 school year, albeit for different reasons than those of the hearing officer. While agreeing with the Board of Education that its CSE had prepared an adequate individualized education program (IEP) for the student, I found that the record did not afford a basis for concluding that respondents’ son would have been suitably grouped for instructional purposes as required by 8 NYCRR 200.6(g)(3).

        The Board of Education then brought a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in the Dutchess County Supreme Court of the State of New York to vacate my decision on the ground that the State Review Officer was allegedly required to base his decision solely on the facts alleged in the petition for review pursuant to 8 NYCRR 279.3. That Regulation of the Commissioner of Education states in pertinent part that: "If an answer is not served and filed in accordance with the provisions of the regulations, the statement contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department." The Supreme Court agreed with petitioner’s contention, and annulled the decision in Appeal No. 99-65 with regard to the 1998-99 school year. The Court’s decision is stayed pending an appeal to the Appellate Division of the Supreme Court of the State of New York.

        The student’s prior educational history is more fully explained in my prior decision and is not repeated here (Exhibit IHO-4). During the student’s attendance at Kildonan for the 1998-99 school year, his work was graded and a progress report written in November, March and June (Exhibit SD-5). In world literature, the student received a final grade of C for the year. Over the course of the year, his teacher noted that the student was frequently absent and failed to complete his weekend assignments. In global studies, the student achieved a grade of D+ for the year. The teacher’s reports noted the student’s absences, inconsistent effort, and lack of concentration. The student failed math for the year (Transcript, p. 368). He had begun the year in an algebra course, but was moved to pre-algebra in March 1999 after failing the first two marking periods. Over the course of the year, his math teachers noted the student’s absences, lack of commitment, and failure to study and complete assignments (Exhibit SD –5).

        The CSE began preparation for the student’s annual review for the 1999-2000 school year in spring 1999. Petitioner’s assertion that that the student’s parents withheld their written consent to have the student evaluated until August 1999 in spite of the CSE’s repeated attempts to obtain this consent beginning in April 1999 is not refuted (Petition, paragraphs 83-90). Petitioner alleges that the delay in completing the annual review for the student was due to respondents’ failure to cooperate in this regard.

        The student’s most recent triennial evaluation prior to the annual review for the 1999-2000 school year had been conducted in the fall of 1996 when he was in the seventh grade. At that time, the student achieved a verbal IQ score of 102, a performance IQ score of 100, and a full scale IQ score of 101 on the Weschler Intelligence Scale for Children - III (WISC-III) placing him in the average range of intellectual functioning (Exhibit SD-22). I note that when the WISC-III was administered to him again on January 27, 2000, the student achieved a verbal IQ score of 104, a performance IQ score of 103, and a full scale IQ score of 104 (Exhibit SD-1).

        The record reveals that the student was evaluated at Kildonan in May 1999. On the WRAT-3, which is a standardized academic achievement test, the boy earned grade equivalent (and percentile) scores of 12.2 (66) for word identification, 6.2 (21) for spelling. On the Gates-McGinitie Reading Test, he earned grade equivalent (and percentile) scores of 8.4 (36) for vocabulary and 6.3 (21) for comprehension (Exhibit P-F).

        In July 1999, the Wechsler Individual Achievement Test (WIAT) was administered to the student by one of petitioner’s special education teachers. The student earned grade equivalent (and standard) scores of 8.3 (97) for basic reading, 12.9 (115) for reading comprehension, 8.6 (97) for numerical operations, 12.9 (110) for spelling, 12.9 (123) for listening comprehension, 12.9 (121) for oral expression, and 11.6 (102) for written expression (Exhibits SD-8 and SD-13).

        A speech/language evaluation was conducted on August 25, 1999. The speech/language pathologist reported that the student appeared to have at least mild-to-moderate deficits in his overall ability to comprehend and express language at a rate and independence level that would generally be expected at his age. She recommended speech/language intervention and an audiological assessment to rule out a Central Auditory Processing Disorder (Exhibit SD-15). The results of each test administered during a central auditory processing evaluation (CAPE) on March 14, 2000 were normal, suggesting that the student’s academic problems were not due to auditory processing difficulties (Exhibit SD-23).

        The CSE met on August 24, 1999 to review the educational evaluation that had been conducted in July. It met again on September 2, 1999 to complete the annual review. Although the student’s parents requested placement at Kildonan for the 1999-2000 school year (Exhibit SD-14), the CSE recommended placement at petitioner’s high school. The CSE concluded that the student required special instruction in an environment with a smaller student to teacher ratio and minimal distractions to address his progress in meeting the learning standards in English and social studies. It therefore recommended that the student be placed in a special class with 15:1 child to adult ratio for instruction in those two subjects (Exhibit SD-19). The CSE also recommended that the student be enrolled in regular education Regents math and Regents biology classes in which the curriculum is presented over a two-year period, rather than the usual one-year period, and be assisted in those classes by a teaching assistant (Exhibit SD-19; Transcript, p. 40). The CSE also recommended that he receive one period of resource room service per day, and be assigned to a reading lab and a global studies lab every other day (Exhibit SD-19). The CSE recommended that he receive 40 minutes of speech/language therapy in a group in the classroom twice per week or cycle, and one 40-minute session of individual speech/language therapy outside the classroom per week or cycle (Exhibit SD-19).

        Rather than attend petitioner’s high school, respondents’ son attended Kildonan for the 1999-2000 school year. On January 20, 2000, respondents requested an impartial hearing for the purpose of obtaining tuition reimbursement for the 1999-2000 school year. Since Kildonan was the student’s current educational placement for purposes of IDEA’s "stay-put" provision, petitioner was financially responsible for the student’s tuition at Kildonan and respondents obtained that relief in the U.S. District Court for the Southern District of New York. The Board of Education has appealed from the court’s decision to the U.S. Court of Appeals for the Second Circuit. Petitioner asserts that it has paid for the student’s tuition at Kildonan for the 1999-2000 school year, but asserts that the issue of whether respondents are entitled to an award of tuition reimbursement is not moot. I agree that the parties are entitled to a decision on the question of whether petitioner offered a free appropriate public education (FAPE) to the student for the 1999-2000 school year.

        The impartial hearing concerning the 1999-2000 school year began on February 16, 2000, and continued for five days. It concluded on June 6, 2000, and the parties were required to submit briefs by July 14, 2000. A non-lawyer representative assisted respondents at the hearing. In his decision rendered on August 15, 2000, the hearing officer found that the petitioner had failed to offer to provide a FAPE for respondents’ son for the 1999-2000 school year. He further found that Kildonan was offering an appropriate education to meet the student’s needs, and that there were no equitable factors that would prevent respondents from receiving reimbursement.

        The Board of Education challenges the hearing officer’s decision on a number of grounds. First, petitioner contends that the hearing officer erred in failing to resolve a factual dispute between the parties as to the source of the student’s educational disability. The student has been classified as other health impaired because he was diagnosed with an ADHD. He started taking Ritalin for this impairment when he was in the fourth grade, and was still taking the medication at the time of the impartial hearing six years later (Transcript, p. 276). The student’s mother acknowledged that her son has an ADHD (Transcript, p. 260), but suggested in her testimony that a neurologist diagnosed her son as also having an "executive functioning disorder" (Transcript, p. 259). She further testified that executive functioning deficits are related to frontal lobe damage to the brain. A guidebook on traumatic brain injury was entered into evidence at her request (Transcript, p. 259; Exhibit P-B). The record, however, does not contain a report by a neurologist supporting a diagnosis of traumatic brain injury, or evidence of the existence of an "executive functioning disorder."

        While the record does not contain sufficient evidence to support a diagnosis of traumatic brain injury, the parties agree that the student has an ADHD. As was noted in the prior appeal decision, the etiology of the student’s disability is of less importance than an understanding of the manifestations of the disability. The record reveals that this student’s disability is manifested by difficulty comprehending and expressing himself, lack of focus, disorganization, and an inability to complete assignments on time. I find that the hearing officer did not err in failing to resolve the factual dispute concerning the existence of an "executive functioning disorder," or otherwise attempt to determine the etiology of the student’s disability.

        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 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 with 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]).

        Rather than apply this standard, the impartial hearing officer stated in his decision that the Board of Education was required to show at the hearing that the IEP for the 1999-2000 school year was not only different than the IEP for the prior year, but that it more readily dealt with the student’s problems. In doing so, he appears to have misread my prior decision which found that the Board of Education had failed to demonstrate that it had offered a FAPE to the student for the 1998-99 school year because it had not established that respondents’ son would have been suitably grouped for instructional purposes in accordance with the requirements of 8 NYCRR 200.6(g)(3). In any event, a student’s needs may change from year to year. It is a CSE’s responsibility to prepare an IEP that identifies the student’s current needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services to afford the student (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        In its memorandum of law accompanying the petition, the Board of Education acknowledges that neither the parent member of the CSE nor its speech/language therapist attended the September 2, 1999 CSE meeting at which the student’s IEP for the 1999-2000 school year was prepared. The Board of Education is aware that there are numerous decisions of the State Review Officer holding that an IEP that was prepared by a CSE that did not include its required parent member is a nullity (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 99-2; Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1; Application of a Child with a Disability, Appeal No. 96-8; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Handicapping Condition, Appeal No. 91-23; Application of a Child with a Handicapping Condition, Appeal No. 90-16). However, it argues that neither the absence of the required parent member nor the CSE’s failure to develop a transition plan as part of the student’s IEP would have denied him an opportunity to educationally succeed in petitioner’s schools during the 1999-2000 school year, had he been enrolled in those schools. I cannot agree with petitioner’s assertion of harmless error. A reviewing officer must consider whether a board of education and its CSE have complied with applicable procedural, as well as substantive, requirements in preparing an appropriate IEP for each student with a disability in its jurisdiction. Therefore, I find that petitioner has not met its burden of proving that it had offered to provide an appropriate educational program to respondents’ son during the 1999-2000 school year.

        Respondents bear the burden of proof with regard to the appropriateness of the services provided to their son by Kildonan 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, 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 [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).

        Kildonan serves students with specific learning disabilities, and in particular, those with dyslexia, dysgraphia, and attention deficit disorder (Transcript pp. 295, 329). Its teachers are trained in the Orton-Gillingham methodology, which is a multisensory teaching technique frequently used to teach reading to learning disabled students. When asked to explain how Kildonan was addressing the student’s difficulties with planning, integrating information and paying attention, the associate head of the school testified that there was an ongoing effort to develop the student’s organizational skills, remind him to rely upon his textbooks and notes, and refocus him when his attention wandered (Transcript p. 340). The witness noted that the school was helping the student to organize his thinking on a step-by-step basis to address his language production difficulties. In addition to his content courses, the student was also enrolled in a daily language training tutorial, in which he received individual instruction in reading comprehension and organization and structure in writing (Exhibit P-D).

        As noted above, the student had some academic difficulty throughout the 1999-2000 school year at Kildonan. His teachers’ end of year reports indicated that the student’s performance had improved during the spring term. On group administered standardized tests that were administered to him in the spring of 2000, the student showed a slight improvement in reading comprehension, and significant improvement in spelling and math skills (Exhibit P-F). I note that those scores were below those reported on the individually administered WIAT in July 1999. The associate head of Kildonan testified that the disparity between the July 1999 WIAT results and those reported by the school in its May 2000 testing reflected the fact that the student performed better on an individually administered exam which broke down tasks for him better than on the group administered tests used by Kildonan in the May 2000 testing. She further testified that this also demonstrated the nature of his disability, especially as it related to his day to day performance in school, as opposed to an optimal one-on-one testing situation. In the absence of any evidence to the contrary, I will accept her testimony, and rely upon the May 2000 test results as evidence that Kildonan did address the student’s special education needs during the 1999-2000 school year.

        Petitioner argues that the student’s special education needs were not so severe as to require placement in a specialized school for learning disabled students. The Individuals with Disabilities Education Act requires that students with disabilities be educated in the least restrictive environment (LRE). Although the LRE requirement also applies to parental placements (M.S. ex rel. S.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688 [2d Cir. 1989]). The educational program that petitioner’s CSE had proposed for the student would have removed him from regular education classes for at least three class periods per day, not including his related service of speech/language therapy. While I do not determine the educational appropriateness of the CSE’s recommendation, I find that it is useful in considering petitioner’s LRE argument. Under the circumstances, I find that petitioner’s argument is without merit. I further find that respondents have met their burden of proof with regard to the services provided by Kildonan to their son.

        Petitioner also challenges the hearing officer’s determination that respondents’ claim for an award of tuition reimbursement was supported by equitable considerations. The Board of Education asserts that it sought respondents’ consent to evaluate their son in April 1999 and that respondents delayed giving their consent until August 1999. I note that the April request and a second request in May 1999 indicated that the proposed re-evaluation might include the use of the WIAT, the Test of Written Spelling, and a "Reading Achievement Battery" (Exhibits SD-2 and 3). As was her right, the student’s mother sought additional information about the proposed testing. That information was provided to her by the CSE chairperson in a letter dated July 21, 1999 (Exhibit SD-7). While I would not condone any undue delay by the respondents in replying to the school district’s request to re-evaluate their son, I find that petitioner must bear some of the responsibility for the delay in obtaining the parents’ consent. I concur with the hearing officer’s determination about the equities.


Topical Index

CSE ProcessCSE Composition
District Appeal
Equitable ConsiderationsParent CooperationConsent for Evaluation
IDEA EligibilityDisability Category/Classification
Preliminary MattersIHO Qualifications/Bias
Unilateral PlacementAdequacy of Instruction
Unilateral PlacementLRE