00-074

         Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for their son’s attendance at the Kildonan School (Kildonan) for the 1999-2000 school year. The hearing officer found that the educational program set out in the student’s individualized education program (IEP) which involved the provision of educational services at respondent’s Pawling Junior/Senior High School was appropriate for the student’s educational needs and was provided in the least restrictive environment. The appeal must be sustained.

        At the outset I must address a procedural issue. Respondent asserts that the appeal is untimely because the petition was served upon it 44 days after it received the hearing officer’s decision. A petition for review must be served upon the respondent within 40 days after the petitioner receives the challenged decision (8 NYCRR 279.279.2[b].). The impartial hearing officer rendered his decision on August 17, 2000. The record does not reveal the date petitioners received that decision. Respondent received the decision on August 23, 2000. Petitioners served their petition for review on October 6, 2000. In the absence of proof of when petitioners received a copy of the hearing officer’s decision, I find that respondent has failed to prove its affirmative defense of untimeliness (Application of a Child with a Handicapping Condition, Appeal No. 92-35).

        Petitioners’ son was 13 years old and a 7th grade day student at the Kildonan School in Amenia, New York at the commencement of the hearing. Kildonan provides education for students with specific learning disabilities, including dyslexia. The school has not been approved by the State Education Department to provide instruction to children with disabilities. The student has attended Kildonan since the 1995-96 school year, when he began third grade. He attended respondent’s Pawling Elementary School for kindergarten, and for first and second grades. Petitioners’ son has been classified as learning disabled since the first grade. The student’s specific learning disability affects his ability to read, write, and spell. His classification is not disputed in this proceeding.

        The student’s educational history was described in a prior decision, Application of the Board of Education of the Pawling Central School District, Appeal No. 97-79, and will not be repeated in detail in this decision. In that proceeding, the student’s parents sought and obtained an award of tuition reimbursement for the 1995-96 and 1996-97 school years. Petitioners also requested impartial hearings and sought tuition reimbursement for the 1997-98 and 1998-99 school years. The parties settled those matters by stipulating that respondent would make certain payments for tuition and petitioners would withdraw the pending hearing requests (Attachments C and D to HO Exhibit 4).

        In March 1999, a speech/language therapist evaluated the student for respondent’s Committee on Special Education (CSE). She reported that the student’s expressive and receptive language skills were mildly delayed, as were his auditory perceptual skills. A comparison of the scores the student had achieved when evaluated in 1997 with those of the current evaluation revealed a consistent decrease. The therapist recommended that the student receive speech/language therapy in a small group twice per week (Respondent’s Exhibit 3).

        In May 1999, Kildonan reported on the results of standardized tests that had been administered to the student in January and May 1999, when he was in 6th grade. On the Woodcock Johnson Tests of Achievement administered in January 1999, the student achieved grade equivalents of 4.1 for word identification and 7.8 for word attack skills. On the Gray Oral Reading Test-3 (GORT-3), he earned grade equivalents of 2.6 for reading rate, 2.8 for reading accuracy, 2.6 for passage comprehension, and 4.7 for Comprehension. The student achieved grade equivalents of 4.3 for vocabulary and 3.3 for comprehension on the Gates-McGinitie Reading Test. On the Wide Range Achievement Test–3 (WRAT-3), he achieved a grade equivalent of 3.4 for spelling. The May 1999 results from the Stanford Achievement Test showed that the student continued to be relatively strong in mathematics, and that overall he was functioning at the 6.8 grade level in this area.

        As part of its annual review for the 1999-2000 school year, the CSE had referred the student for an assistive technology assessment. The January 1999 report (Respondent’s Exhibit 6) concluded that the student had successfully integrated an AlphaSmart 2000 word processor into his school routine. The evaluator found that the student’s weaknesses in spelling required auditory feedback and made recommendations for this. Among other things, the report also recommended continued use and skills development with the AlphaSmart, and a needs reassessment in a year.

        One of respondent’s special education teachers observed the student in a math class and a one-to-one reading tutorial at Kildonan on May 5, 1999. She reported that the student appeared comfortable in the class setting and participated in all aspects of the class, followed directions, attempted all problems, and volunteered. During the tutorial, the student worked on spelling, increased copying speed, sight word drills, and oral reading (Respondent’s Exhibit 4).

        Respondent’s CSE met with petitioners on June 23, 1999 to discuss the student’s educational plan for the 1999-2000 school year when he would be in the 7th grade. The dean of Kildonan participated in the meeting by telephone. She advised the CSE that petitioners’ son had done well academically at Kildonan during the 1998-99 school year, but that he needed to improve his independent reading skills to prepare for an eventual placement in mainstream high school classes. Respondent’s reading teacher acknowledged that the student appeared to still require intensive reading instruction. The student’s mother expressed her belief that only a program taught by teachers trained to use the Orton-Gillingham technique would be appropriate for her son. She also questioned whether the assistive technology report that the CSE had obtained was adequate. It was agreed that the student’s written language skills should be evaluated. The student’s mother questioned the appropriateness of the CSE making a program recommendation before it received the results of the agreed upon evaluation (Respondent’s Exhibit 11).

        The CSE recommended that the student be placed in a 12:1+1 special education class for English, social studies, and science, and receive individual instruction in reading for one period per day and one period of resource room services per day in respondent’s Junior Senior High School during the 1999-2000 school year. It also recommended that he be mainstreamed for instruction in math and special subjects. In addition, the IEP that the CSE prepared for him indicated that he was to receive individual speech/language therapy three times per week, individual counseling once per week, and consultant counseling services once per week. The IEP further provided for his use of a Quicktionary reading pen, talking spell checker, and a teacher-operated tape recorder. The CSE recommended program modifications, including preferential seating, study guides, use of written instructions, and provision of class notes with instruction and assignments broken down and sequenced. Recommended testing modifications included doubled time limits, separate locations, having directions read and explained, and math problems to be read step-by-step. The student’s IEP included annual goals for reading decoding and comprehension, study skills, speech/language and counseling (Respondent’s Exhibit 1).

        By letter dated June 24, 1999, petitioners informed the CSE chairperson of their dissatisfaction with the outcome of the CSE’s annual review, and requested an unspecified independent evaluation (Respondent’s Exhibit 12). In a subsequent letter dated August 22, 1999, they indicated that they had not received a response to their June letter, or a copy of the IEP. They also advised that the student would continue to attend Kildonan, and requested an impartial hearing to obtain tuition reimbursement for the 1999-2000 school year. By letter dated August 24, 1999, the CSE chairperson sent a copy of the IEP which had been approved by respondent on August 23 to petitioners (Respondent’s Exhibit 16).

        The hearing commenced on September 28, 1999. Petitioners' attorney asked the hearing officer for an interim decision regarding the student’s pendency placement. In an interim decision dated November 5, 1999, the hearing officer concluded that the student’s pendency placement was in respondent’s schools. Petitioners appealed from that determination. They contended that my decision in Appeal No. 97-79 awarding them tuition reimbursement for the 1995-96 and 1996-97 school years constituted an agreement by the State Education Department that Kildonan was an appropriate placement for the boy, and that the private school therefore became their son's pendency placement. In Application of a Child with a Disability, Appeal No. 99-100, dated March 16, 2000, I determined that Kildonan was the student’s pendency placement. Respondent appealed from that decision to the United States District Court for the Northern District of New York, which upheld the decision. Respondent’s appeal from the District Court’s decision to the United States Court of Appeals for the Second Circuit is pending.

        The hearing continued on October 7 and 26, November 18, and 30, 1999, and January 4, February 28, March 3, May 11 and 16, June 27, 2000. It concluded on July 19, 2000. The hearing officer issued a decision on August 17, 2000 denying petitioners’ request for tuition reimbursement. The hearing officer found that petitioners had fully participated in the development of their son’s IEP, and that the IEP would have provided the student with a free appropriate public education (FAPE) in the least restrictive environment during the 1999-2000 school year. He noted that petitioners should have received a copy of the IEP more promptly than they did, but also noted that they were aware of the CSE’s recommendations at the June 23, 1999 CSE meeting and had decided to continue their son’s enrollment at Kildonan regardless of the CSE’s recommendations.

        Petitioners assert that the hearing officer’s decision should be annulled for a number of reasons, including their claim that he was biased against them. They contend that the hearing officer’s conclusion that respondent had offered to provide a FAPE to their son is not supported by the record. Petitioners also request that I reconsider the issue of their son’s pendency placement in light of respondent’s alleged refusal to continue paying for the student’s tuition at Kildonan. Respondent denies their assertion of non-payment. I find that the record before me does not afford a basis for determining petitioners’ claim, which in any event relates to my prior decision, which I cannot reopen because it would violate the "finality" provisions of federal and state regulations (34 C.F.R. § 300.510[d]); 8 NYCRR 200.5[j][3]).

        Petitioners assert that the hearing officer was biased, and was inadequately prepared to preside as an impartial hearing officer. I must first note that complaints about the training or competency of an impartial hearing officer must be addressed to the Commissioner of Education pursuant to 8 NYCRR 200.21(b) (Application of the Board of Education of the Enlarged Newburgh City School District, Appeal No. 00-005). Petitioners claim that the hearing officer’s bias was evident throughout the proceedings and in his interim and final decisions. They point to his handling of their requests for access to student records in preparation for and during the hearing and to observe their son’s proposed classrooms in the Pawling Junior Senior High School.

        A hearing officer’s decision must not reflect favoritism or partiality to or bias against a party. However, the fact that a hearing officer rules against a party on a disputed issue is not evidence of bias, nor is bias shown when a hearing officer makes an honest error of law. I have carefully reviewed the transcript in its entirety. I find that there is no evidence of any actual bias against petitioner. Indeed, the hearing officer appears to have treated both parties courteously and fairly. I have also considered the hearing officer’s rulings regarding access to the student’s educational records and petitioners’ request to observe the classrooms proposed for their son. The hearing officer ruled on a number of occasions that petitioners had a right to observe any class in which respondent proposed to place their son. He also ruled that petitioners were entitled to have access to their son’s educational records. While his ruling with respect to access to teacher notes may not have literally accorded with the regulations implementing the Family Educational Rights and Privacy Act, I find that it is not evidence of bias against petitioners, and it did not deprive them of procedural due process of law.

        Petitioners assert that their son’s IEP for the 1999-2000 school year does not differ materially from his IEPs for prior school years, some of which were found to be deficient in the prior proceeding. Having reviewed the student’s IEPs for the 1994-95 through 1998-99 school years, I find that the 1999-2000 IEP is significantly different in that it provides for primary special education instruction in English, social studies, and science, while the prior IEPs provided for supplementary special education instruction in a resource room. That, however, is not dispositive of the matter. Respondent still bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Petitioners contend that the CSE failed to conduct appropriate assessments to ascertain their son’s special education needs. They assert that the CSE improperly relied upon test data provided by Kildonan. However, they do not assert that the test data are invalid, and I find that there is no reason why the CSE should not have used the data provided by Kildonan to ascertain the student’s current levels of performance.

        I agree with petitioners that there is a major omission in the IEP in that it does not indicate the extent of the student’s deficit in written expression. It was agreed at the June CSE meeting to have a written language evaluation performed after the IEP was prepared, but it is the CSE’s responsibility to ensure that it has adequate information about all of a student’s special education needs so that appropriate annual goals can be written. The IEP in this instance does not have goals to address the student’s weakness in written expression or spelling. A CSE is not in a position to recommend an appropriate educational program for a student until it has identified all of the student’s special education needs and prepared appropriate goals to address those needs, because it cannot determine whether a program will afford the student a reasonable opportunity of achieving his annual goals until needs have been identified and goals are drafted.

        Petitioners also challenge the CSE’s omission of annual goals for their son for English, social studies, and science, which were the three subjects in which he was to receive primary special education instruction. An IEP need not include annual goals relating to areas of the general curriculum in which the student’s disability does not affect his or her ability to be involved in or make progress in the general curriculum (34 CFR Part 300, Appendix A, Question 4). In this instance, the CSE must have concluded that the student’s disability did interfere with his ability to make progress in the regular curriculum to the extent that he required primary special education instruction in the three subjects in order to learn the contents of the curriculum. I find that there should have been goals and objectives or benchmarks for English, social studies, and science on the student’s IEP (Application of Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 95-72).

        The student’s IEP did include annual goals for reading decoding and comprehension, study skills, speech/language and counseling. Petitioners assert that their son’s annual goals were not discussed at the June 23, 1999 CSE meeting. I find that the extensive minutes of the meeting (Respondent’s Exhibit 11) support petitioners’ assertion. In addition, I note that the CSE chairperson testified that after the CSE meeting he had increased the amount of the speech/language therapy to be provided from twice per week as discussed at the meeting to three times per week, after discussing the matter individually with certain members of the CSE, but not with petitioners (Transcript p. 1035).

        While it may not be possible to discuss every component of an IEP at a CSE meeting because of time constraints, the Individuals with Disabilities Education Act (IDEA) emphasizes the participation of parents in the development of their children's IEPs (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). Federal and State regulations accord parents the role of participants, not merely attendees, at meetings held to develop IEPs (8 NYCRR 200.4[c][3]; 34 C.F.R. § 300.345[a]; 34 C.F.R. Part 300,Appendix A, IDEA Part B, Section II). Although a CSE is not obligated to accede to the parents' wishes in drafting a child's IEP, it must provide the parents with a meaningful opportunity to participate in the development of the student’s IEP (Application of a Child with a Disability, Appeal No. 98-26; Application of a Child with a Disability, Appeal No. 97-37; Application of a Child with a Disability, Appeal No. 96-31; Application of a Child with a Handicapping Condition, Appeal No. 92-47). I find that petitioners were not accorded that opportunity. For all of the foregoing reasons, I find that respondent has failed to meet its burden of proof with respect to the appropriateness of the educational program recommended by its CSE.

        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]).

        The student's parents 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 the Board of Educ. of the Monroe-Woodbury CSD, 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).

        The associate head of Kildonan testified regarding the appropriateness of that school’s educational program for petitioners’ son. Kildonan is a private school with day and residential programs. Its students have average or above average intelligence but have specific learning disabilities in decoding or encoding (Transcript p. 1671). The school uses the Orton-Gillingham approach to teaching reading and language training skills. The technique is a multi-sensory, structured, sequential approach to teaching these skills (Transcript pp. 1669-70). The witness also testified that the school taught its content area classes in particular ways to facilitate curricular learning by students with severe reading disabilities (Transcript pp. 1724-25).

        The student’s seventh grade program included literature, mathematics, science, social studies, and a daily one-to-one reading tutorial using the Orton-Gillingham approach to teach reading and to address his reading and written language deficits (Transcript pp. 1670, 1736-38, Petitioners’ Exhibits XX, EEE). The witness further testified that the student was severely dyslexic and had auditory processing difficulties (Transcript pp. 1671, 1678, 1680, 1683) and that he was an appropriate student for the school’s educationally intensive program (Transcript p. 1682, 1684, 1704). I note that the CSE Chair testified that the school had helped the student with particular reading skills (Transcript pp. 773, 867). During the student’s 1998-99 language training sessions, the student worked on handwriting, spelling, phonics, sentence and paragraph writing, and reading (including oral reading)(Respondent’s Exhibit 2A at p. 1, Respondent’s Exhibit 2B at p. 1). His language training work in 1999-2000 included speech, sentence structure, paragraphs, spelling, writing, and reading comprehension (Petitioners’ Exhibits XX, EEE). The associate head of Kildonan testified that despite significant reading difficulties, petitioners’ son was making slow, solid progress (Transcript p. 1671), and was able to benefit from assistive technology (Transcript pp. 1674-75, 1679).

        I find that overall the student made educational progress in the 6th grade during the school year preceding the school year in question. He passed each of his 6th grade classes (Respondent’s Exhibit 2, page 9) and did very well at Kildonan. A comparison of reading and writing skills test scores shows improvement in 6th grade scores when compared to 5th grade scores in word identification, vocabulary, copying speed, and spelling. GORT-3 testing also showed year end comparative grade equivalent increases in reading accuracy (0.2), passage (0.6), and reading rate (0.3) A GORT comprehension score showed oral reading comprehension at a 4.7 grade equivalent in May of 1999. The student continued to do relatively well in math. Results of the Stanford Achievement tests show the student performing at a 6.8 grade equivalent for total math. When compared with measured fifth grade performance, comparative subtest scores showed that student performance increased in number concepts, remained the same in computation, and decreased in number applications.

        The student continued to make educational progress in the seventh grade. At the time of the hearing, the record shows that that the student was passing each of his classes and was "doing well" (Transcript pp. 1673, 1691, Petitioners’ Exhibits XX, EEE). Additionally, November 1999 results of the Woodcock Reading Mastery Test-Revised (Petitioners’ Exhibit ZZ) show increases in standard scores in word identification, word attack, and passage comprehension when compared to June 1998 test results (Respondent’s Exhibit 7). The student’s March 2000 language training report also refers to measurable gains in his vocabulary (Petitioners’ Exhibit EEE).

        The hearing officer found the student’s placement at Kildonan inconsistent with the requirement that students with disabilities be educated in the least restrictive environment. He noted that if the student attended respondent’s school program, he would be with non-disabled children part of the school day. Although the least restrictive environment criterion (20 USC 1412[a][5]) 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 [2^nd 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 [2^nd Cir. 1989]).

        There is no dispute that this student requires a significant amount of primary special education instruction in order to receive an appropriate education. If the IEP which the CSE prepared and which I have found to be invalid had been implemented, the student would have received primary special education instruction in English, social studies, and science, and supplementary special education in a resource room. In addition, he would have received individual instruction in reading, but would also have had the opportunity to interact with nondisabled students. Although the student’s day program at Kildonan does not present him with the same opportunity for mainstreaming as would placement in respondent’s schools, I cannot conclude on this fact alone that it is inappropriate for the child (Application of a Child with a Disability, Appeal No. 00-056). I find that Kildonan offered an educational program which met the student’s special education needs. Accordingly, I find that petitioners have met their burden of demonstrating the appropriateness of the program at Kildonan and 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 is supported by equitable considerations. Petitioners attended the CSE annual review meeting for the 1999-2000 school year. Petitioners also provided the CSE with information relative to the student’s disability and his program and performance at the Kildonan. Petitioners also quickly advised the respondent that they were not in agreement with the program recommended by respondent’s personnel at the June CSE meeting and asked them to establish another placement. In a letter dated 59 days after petitioners’ June 24, 1999 letter to which they had not yet received a response, petitioners notified respondent that the student would continue to attend Kildonan. The day after the date of petitioners’ second letter, respondent approved an IEP, the components of which had previously been rejected by the petitioners. Respondent argues that petitioners’ decision to reenroll the student at Kildonan under the circumstances in this case and that petitioners’ raising of certain issues at the impartial hearing, some of which it claims were done as "a ploy" to extend the hearing process, precludes a finding of cooperation such that equitable consideration may not support a grant of tuition reimbursement. In light of the circumstances above and after considering respondent’s arguments, I do not agree that petitioner’s request for tuition reimbursement should be denied on the basis of equitable considerations. I find that equitable considerations support the petitioners’ claim for tuition reimbursement.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of their son’s tuition at the Kildonan School during the 1999-2000 school year, upon petitioners’ submission of proof of payment for such expenditures if they have not already done so.