00-070

        Petitioners appeal from an impartial hearing officer’s decision denying their request for an award of tuition reimbursement for the 1999-2000 school year. Respondent cross-appeals from the portions of the hearing officer’s decision that found that its recommended program for the 1999-2000 school year was inappropriate and that equitable considerations favored petitioners’ claim for tuition reimbursement. The appeal must be dismissed. The cross-appeal must also be dismissed.

        At the time of the hearing, the student was 17 years old and in the 11th grade at the Marvelwood School (Marvelwood). Marvelwood is a private boarding school located in Connecticut that has not been approved by the New York State Education Department to instruct students with disabilities. The school does not accept students who have severe learning problems, or serious dyslexic conditions. Rather, it is a school for students with average or above average intelligence who have not reached their potential (Exhibit 38).

        The student’s educational history and evaluations were discussed in Application of a Child with a Disability, Appeal No. 99-97, which concerned the student’s placement during the latter half of the 1998-99 school year. They will not be repeated in detail here. Petitioners’ son has been classified as learning disabled since the second grade. He received a variety of special education services while attending respondent’s schools up until the middle of the tenth grade during the 1998-99 school year. He failed math, English, biology and gym during the first half of the school year. The student’s teachers had noted that he had not done his homework assignments, or used his time wisely in class, and that he exhibited an overall lack of effort (Exhibit 29).

        Petitioners placed their son at Marvelwood the second half of the 1998-99 school year. In March 1999, they requested an impartial hearing to obtain tuition reimbursement. The hearing officer found that the Board of Education had not offered an appropriate educational program to the student during the 1998-99 school year. However, he further found that Marvelwood had not offered an appropriate program to petitioners’ son, and he denied petitioners’ request for both tuition reimbursement and compensatory education. In December 1999, petitioners appealed from the hearing officer’s decision, and the Board of Education cross-appealed from the decision to the extent that it found that respondent had not offered an appropriate program to the student. I found that the school district had not adequately evaluated the student to fully determine his needs, and had not developed appropriate goals and objectives for his individualized education program (IEP) or addressed his written language needs. Consequently, the Board of Education’s cross-appeal was dismissed. I concurred with the hearing officer’s finding that petitioners had failed to demonstrate that Marvelwood had met their son’s special education needs, and dismissed their appeal.

        After failing algebra at Marvelwood in the spring of 1999, petitioners’ son received summer tutoring so he could retake the exam when he returned to Marvelwood in the fall of 1999. However, after the summer of tutoring, the student failed the exam (Transcript pp. 840-842). Marvelwood allowed him to retake the algebra exam for a third time, with an oral accommodation. He passed the exam, and took geometry for the 1999-2000 school year. I note that Marvelwood’s Director of Studies testified that the student would have been promoted to geometry even if he had not passed the algebra exam because the curriculum did not permit him to retake the course (Transcript pp. 832-833).

        In preparation for the student’s triennial review, respondent administered the Wechsler Individual Achievement Test (WIAT) in August 1999. The student received standard (and percentile) scores of 73 (4th) for numerical operations, 82 (12th) for math reasoning, and 75 (5th) for total math. The evaluator noted that the student’s overall mathematics skills were below average, and that he was particularly weak in the areas of numerical operations (addition, subtraction, multiplication, division, fractions and decimals) and mathematical reasoning. In reading he received standard scores of 116 (86th) for reading comprehension, 96 (39th) for basic reading, and 104 (61st) for a reading composite score. The student’s basic reading skills were in the average range, while his reading comprehension was within the high average range. His standard score of 124 for composite language was at the 95th percentile, which was in the above average range. For writing he received a composite score of 97 (42nd), which was in the average range (Exhibit 15 and 16).

        On September 1, 1999 St. Francis Hospital conducted a speech/language evaluation at respondent’s request. On the Clinical Evaluation of Language Fundamentals (CELF-III) the student ranked in the fifth percentile for semantic relationships and in the 37th percentile for listening comprehension. The evaluator noted that the student had a delay in semantic relationships, and suggested it might have been due to difficulty with temporal and sequential relationships, which appeared to have been related to the already diagnosed math difficulties. However, speech/language services were not recommended at that time (Exhibit 18).

        Respondent’s Committee on Special Education (CSE) held its annual review on September 2, 1999 to develop an IEP for the 1999-2000 school year. Respondent’s CSE recommended that the student continue to be classified as learning disabled. It also recommended that he attend the Arlington High School for 11th grade. He was to be mainstreamed, except for a 15:1 special education class for math, and a 12:1+1 special education study skills class. The latter was described as a support service to aid the student in organizing his schoolwork and managing his time, and was intended to address the problem of his not coming to class prepared (Transcript p. 90). A functional behavior assessment was to be developed by the student’s guidance counselor, special education teacher, school psychologist, the student, and his parents. Petitioners expressed concern that the CSE had not addressed a reading deficit that was identified in a 1998 private evaluation of their son. Specifically, the evaluator had noted that the student had difficulty in reading comprehension when the reading consisted of long passages (Exhibit 10). To address reading difficulties, the CSE recommended that the student attend a regular education global lab and a regular education English lab (Transcript pp. 97-98). The CSE recommended that the student have counseling for ten 40-minute counseling sessions. It also indicated that the student’s IEP would be reviewed by the parents and the "team" on September 17, 2000 (Exhibit 19). No parent member participated in the CSE meeting (Transcript p. 99).

        Petitioners rejected the 1999-2000 IEP, and continued their son’s placement at Marvelwood. They enrolled him in a skills program at the school to address his organizational and reading needs. This program was not included in the regular tuition (Transcript p. 826). Marvelwood also offered a math tutorial to address the student’s math deficits, but the petitioners did not enroll him in it for financial reasons because that too was at an additional fee (Transcript p. 878). Marvelwood’s director of studies testified that it was more important for the student to be in the skills program because the deficiencies in his math skills could be remediated in other ways (Transcript p. 827). To address those deficiencies, Marvelwood placed him in a lower level math class, and encouraged him to obtain extra help (Transcript p. 746). Marvelwood also required him to attend an after school study hall monitored by faculty members (Transcript p. 720).

        Petitioners requested an impartial hearing on October 1, 1999 to obtain tuition reimbursement for the placement of their son at Marvelwood (Exhibit 2). The hearing began on December 17, 1999, and concluded on May 18, 2000. The hearing officer rendered his decision on August 10, 2000. He found that respondent failed to demonstrate the appropriateness of its IEP for the 1999-2000 school year. He held that respondent’s failure to develop a transition plan, to conduct a functional behavioral assessment prior to the start of the school year, and to have a validly composed CSE for the September 2, 1999 meeting were fatal flaws. The hearing officer further found that petitioners had not demonstrated that their son was able to function successfully at Marvelwood, or that the school had addressed the student’s serious deficiencies in math. He further found that the residential program was not the least restrictive environment for the student. In addition, the hearing officer found that petitioners had cooperated with the CSE, and determined that their claim for tuition reimbursement would have been supported by equitable considerations, if they had met their burden of proof with regard to the appropriateness of Marvelwood’s services.

        Petitioners appeal from the hearing officer’s determination that Marvelwood did not provide educational services to address their son’s special education needs. They argue that the school’s small classes, skills program, and closely monitored after school study hall directly addressed their son’s educational deficits. They also argue that the fact that Marvelwood charged extra for additional services over and above its regular tuition should not be dispositive of whether the private school met the student’s educational needs.

        Respondent cross-appeals from the hearing officer’s finding that it had failed to provide a free appropriate public education (FAPE) to the student, and that equitable considerations supported petitioners’ claim for tuition. One of respondent’s arguments is that the improper composition of the CSE was not so serious as to deny the student an opportunity to succeed in its program.

        I will first address respondent’s claim that the hearing officer erred in finding that it did not prove the appropriateness of its recommended placement. 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]). 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).

        I find that respondent cannot meet its burden of proof with respect to the student’s IEP because the CSE that prepared the IEP did not have each of its required members. It is well settled that an IEP developed at a CSE meeting lacking the required parent member is invalid (Application of a Child with a Disability, Appeal No. 99-2; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-31). Having found that the IEP was invalid, it is not necessary that I address respondent’s other challenges to the hearing officer’s findings with regard to the appropriateness of its recommended program.

        A board of education may be required to pay for educational services obtained for a student by the student’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 (Burlington School Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]. The failure of a parent to select a program approved by the state educational agency is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). As stated above, respondent cannot demonstrate the appropriateness of its recommended program. Therefore, I find that petitioners have prevailed with respect to the first criterion for an award for tuition reimbursement.

        Petitioners bear the burden of proof regarding the appropriateness of the services that they obtained for their son at Marvelwood for 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 parents must show that the private school offered an educational program that met the student’s special education needs (Burlington, 471 U.S. at 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).

        I find that Marvelwood’s program was not calculated to meet the student’s special education needs. The student’s weakness in math was not addressed by simply putting him in a lower level math class. At Marvelwood, he was placed in a lower level regular education geometry class without any additional support services. Interestingly, the director of studies had acknowledged that the student would probably struggle in geometry because of his difficulty with fractions and his previous failure in algebra, yet no assistance was provided to the student (Transcript p. 834). A math tutorial would have been available to him, but it was not part of the school’s regular program, and the student was not enrolled in it because of the additional cost to his parents.

        Petitioners argue that the after school study hall remediated the student’s special education needs. I disagree. This service could not possibly remediate his math needs when he failed to complete his math assignments. The purpose of the study hall was to enable the student to complete his assignments under the supervision of faculty members (Transcript p. 720). The director of studies noted that the student’s failure to complete his math assignments was one of the reasons he failed geometry during the spring term (Transcript p. 853). I must note that there was no testimony from the student’s math teacher about how the student’s math deficits were addressed in the math class. There is no objective evidence in the record of an improvement in the student’s math skills during the 1999-2000 school year.

        Although there is evidence of some improvement in the student’s organizational skills that could be attributed to his participation in Marvelwood’s optional study skills program, I find that it does not afford an adequate basis for determining that the school provided an educational program that met the student’s special education needs. As a result, petitioners cannot be awarded tuition reimbursement for their son’s placement at Marvelwood for the 1999-2000 school year. I further find that it is no longer necessary to address respondent’s cross-appeal regarding the hearing officer’s finding with regard to equitable considerations.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.