00-075

         Petitioners appeal from an impartial hearing officer's decision which denied their request for tuition reimbursement for the cost of their son's tuition at the Kildonan School (Kildonan) for the 1999-2000 school year. The appeal must be sustained in part.

        Preliminarily, I will address the procedural issue raised in this appeal. Petitioners have attached two documents, an undated, unsigned analysis of the profile of the seventh grade language arts class recommended by respondent's Committee on Special Education (CSE) and a 1997 article on learning disabilities research, to their memorandum of law. The memorandum of law makes reference to a third document described as a written report prepared by a specially trained teacher who was unable to attend the hearing. That report was not included with the papers filed with this office. At the hearing, petitioners' attorney attempted to introduce the report into evidence. Respondent's attorney objected and the hearing officer ruled that it could not be admitted. Therefore, it is not part of the record before me. Petitioners' attorney was given an opportunity to submit the document to this office, but has not done so. Consequently, I am precluded from making a determination as to whether that report should be considered as additional evidence in this appeal.

        Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 93-20). I find that the analysis of the recommended seventh grade language arts class profile, though undated, was based upon information available at the time of the hearing. The 1997 article clearly was available at the time of the hearing. I further find that the information contained in these documents is not required to make the record complete. Because these documents were available at the time of the hearing and are not required to make the record complete, they will not be considered in this appeal. Similarly, I will not consider the document respondent has submitted with its answer. The document is dated April 3, 2000, and therefore was available at the time of the hearing. Additionally, it is not required to make the record complete.

        Petitioners' son was 13 years old and in the seventh grade at Kildonan when the hearing began in February 2000. He attended a parochial school for kindergarten, which he repeated, reportedly because he was unable to acquire the standard pre-academic skills (Exhibit C). He continued to attend the parochial school through the third grade. During the spring of 1995, when he was in the second grade, the student was initially classified as learning disabled by the North Rockland Central School District (Exhibit 2). He received resource room services three days per week for an hour each day through the third grade ending in June 1996 (Exhibit 4). For fourth grade, the student attended school in the Clarkstown Central School District (Clarkstown) because his family had moved to that district earlier in the year. The Clarsktown CSE continued the student's classification as learning disabled and provided him with a variety of special education services. He remained at Clarkstown for fifth and most of the first half of sixth grade.

        In the fall of 1998 during the first semester of sixth grade, the student became increasingly frustrated and was reluctant to go to school (Transcript p. 809). His parents arranged for a private neuropsychological evaluation which was conducted on various dates in October and November 1998 (Exhibit 14). The psychologist reported that the student's scores on achievement tests ranged from two to four years below grade level in all areas examined. On the Weschler Intelligence Scale for Children - III (WISC-III), the student achieved a verbal IQ score of 92 and a performance IQ score of 106, which, the psychologist reported, was consistent with the student's previous testing. She noted that the student had pervasive language difficulties which affected multiple aspects of his language functioning, including receptive and expressive language, reading and written expression. The student had difficulty sustaining attention when information was presented orally, and was not always able to differentiate between similar sounding words. The psychologist described the student's expressive language as simplistic. She reported that the student had difficulty translating thoughts into words and generating language in an unstructured situation. The psychologist reported that the student's reading skills also were weak. He had significant difficulty decoding words in isolation and appeared to lack any structural analysis skills. The psychologist noted that weak sound symbol skills affected the student's ability to spell. He had difficulty spelling words in isolation, as well as in context. She further noted that thematic written language and the physical act of writing presented difficulties for the student. The psychologist also reported weaknesses in the student's processing speed and sequential processing, as well as mental control processes. She defined mental control processes as those processes which help an individual notice his environment, organize perceptions and responses, and regulate behavior. She concluded that the student had a developmental language disorder typically known as dyslexia.

        Personality testing revealed that the student's coping resources were underdeveloped. The psychologist opined that the student was experiencing considerable situational stress. However, she noted that despite the student's significant academic struggles, he appeared to be motivated to learn. She recommended that he be placed in an intensive, full time program with a highly structured, systematic approach to address his reading and language difficulties.

        In December 1999, the student's family moved to the Arlington Central School District (Transcript p. 817). On January 8, petitioners decided to enroll their son at Kildonan (Transcript p. 819). Kildonan has not been approved by the New York State Education Department to provide education to children with disabilities. By letter dated January 11, 1999, the student's parents advised respondent that their son was enrolled in Kildonan and requested that respondent assume responsibility for his transportation to and from school (Exhibit 9). On January 12, 1999, the student's mother referred her son to respondent's CSE (Transcript pp. 825, 827). That same day, the parents were sent a notification of referral and consent form (Exhibit 12). The student's mother consented to the evaluation on February 11, 1999, and requested that testing be conducted when her son was on vacation between March 22 and April 2, 1999, unless the evaluation was conducted while he was participating in class at Kildonan (Exhibit 16).

        On March 22, 1999, the student was evaluated by a private educational consultant (Exhibit 18). The evaluator found that the student's basic reading and decoding, spelling and writing skills were all areas of weakness. She noted that word attack, sound blending and incomplete words were all very challenging for the student, indicating a clear difficulty with the phonetics of language.

        The CSE met on March 24, 1999, but the meeting was postponed because no representative from Kildonan was present at the meeting and the CSE had not received the March 22, 1999 evaluation report (Exhibit 19, Transcript p. 837).

        The CSE reconvened on June 21, 1999 to develop the student's individualized education program (IEP) for the 1999-2000 school year. It recommended that the student continue to be classified as learning disabled, and that he be placed in a special class for English, social studies, reading, math and science. It further recommended that he receive resource room services one period daily and individual counseling twice per month for 40 minutes. The IEP included a notation that the student would participate in the regular education curriculum for physical education and specials, e.g., music and art. A special education program without participation in regular education was considered by the CSE, but found to be overly restrictive. The minutes from that CSE meeting, which are attached to the student's IEP, reflect that the student's math proficiency was to be evaluated after five weeks for possible placement in an inclusion class for that subject. No regular education teacher was present at the CSE meeting.

        On August 13, 1999, the student was evaluated by an occupational therapist, who indicated that she tested the student in the areas of gross and fine motor coordination, motor planning, sensory processing, visual perception and handwriting (Exhibit 22). She reported that the student was functioning within normal limits, and did not recommend occupational therapy for him.

        By letter dated August 28, 1999, the student's parents advised the CSE that they were rejecting the IEP, and providing notice of their intent to place their son at Kildonan for the 1999-2000 school year (Exhibit 23). They also requested an impartial hearing seeking tuition reimbursement.

        In response to the parents' hearing request, respondent appointed a hearing officer on September 10, 1999 (Exhibit IHO-2). When the hearing officer contacted the parties to schedule the hearing, he was advised by the parents that they were not represented by an attorney and that they were not ready to proceed because they were trying to obtain additional information from the school district (Impartial Hearing Officer Decision p. 2, Transcript p. 961). The hearing officer advised the parents of the requirement that he render a decision within 45 days of their request for a hearing. He suggested that the parents put their request for an adjournment in writing (Impartial Hearing Officer Decision p. 2). By letter dated October 6, 1999, the parents waived the 45-day requirement and confirmed that the hearing would commence on November 15, 1999 (Exhibit IHO-3). However, on November 14, 1999, the parents requested another adjournment because they had recently retained an attorney (Exhibit IHO-5). The parents' attorney was not available to participate at the hearing until February 2000 (Impartial Hearing Officer Decision p. 3).

        In January and February 2000, the student was privately evaluated by a learning disability consultant (Exhibit C). The consultant noted that throughout the evaluation, the student's behavior and attention span were always appropriate. On the WISC-III, the student achieved a verbal IQ score of 105, a performance IQ score of 117, and a full scale IQ score of 112, placing him in the high average range of intellectual functioning. The consultant reported marked gains in the student's ability to process information, since his last evaluation in January 1999. She noted that the student had made progress in phonetic decoding and that his spelling had improved to a fourth grade level. The consultant described the student's writing as immature, noting that he struggled to use complex sentences and language. According to the consultant, the student's score on the Test of Written Language - 3 (TOWL-3) was indicative of his ongoing difficulty with the writing process. The student also continued to have trouble recognizing unrelated words. On a test measuring the student's ability to rapidly name familiar objects and symbols, the student performed slowly, indicating difficulty with rapid name retrieval.

        The consultant opined that the student was bright, but had significant needs in reading and written language consistent with a diagnosis of dyslexia. She recommended that he be provided with individual tutoring in language arts in a structured, sequential, multisensory, Orton-Gillingham (OG) based approach to build basic decoding and encoding patterns needed to improve reading and written language. OG is a sequential, structured, multisensory, approach to teaching (Exhibit D). She also recommended placement in small classes for content area subjects.

        The impartial hearing began on February 10, 2000. It was held on various dates, concluding on August 4, 2000. The hearing officer rendered his decision on August 28, 2000. He found that the CSE had adequate information upon which to base its recommendation. He also found that the IEP goals and objectives were reasonably calculated to ensure the student more than minimum educational benefits. Accordingly, he found that the CSE had prepared an appropriate IEP and recommended an appropriate program. He denied petitioners' request for tuition reimbursement.

        Petitioners appeal from the hearing officer's decision on a number of grounds. Initially, they argue that they were not offered the opportunity for a hearing until more than 45 days after their request for a hearing. Federal and state regulations require hearing officers to render their decisions within 45 days after the request for a hearing has been received by a board of education (34 C.F.R. § 300.511[a]; 8 NYCRR 200.5[i][4], previously found at 8 NYCRR 200.5[c][11]). However, a hearing officer may extend the 45-day period for a specific period of time at the request of either party (34 C.F.R. § 300.511[c]). The record shows that petitioners filed their request for a hearing on August 28, 1999, and that the hearing officer was appointed by respondent on September 10, 2000. As noted above, after receiving the notice of his appointment, the hearing officer contacted the parties to schedule the hearing. At that time, the parents advised the hearing officer that they were not represented by an attorney. They also advised the hearing officer that they were not ready to proceed because they were trying to obtain additional information from the school district. The hearing officer and petitioners disagree about how the November 15, 1999 hearing date was set. However, the record is clear that petitioners were not opposed to that date, which was already beyond the 45-day requirement (Exhibit IHO-2), and in fact requested that the hearing not proceed on November 15, 1999 because they had just retained an attorney and were attempting to find someone to review the school district's proposed program for them (Exhibit IHO-5). Based upon the information before me, I find that petitioners exercised their right to an extension of time as permitted by 34 C.F.R. § 300.511(c), and any claim that the hearing was untimely is without merit.

        Petitioners' request for tuition reimbursement for the second half of the 1998-99 school year raises a question about the scope of this appeal. The record shows that petitioners requested a hearing on August 28, 1999 limiting their challenge to the IEP developed for the 1999-2000 school year. At the hearing, petitioners' attorney requested that the scope of the hearing be expanded to include issues arising during the second half of the 1998-99 school year. The hearing officer denied that request. I agree with the hearing officer that the issues in this matter are limited to the 1999-2000 school year. As noted by the hearing officer, petitioners' attorney was retained in November 1999, but she did not make the request to expand the scope of the hearing until March 21, 2000 (Transcript p. 167). Petitioners filed their request for an impartial hearing more than two months after the 1998-99 school year had ended, and their attorney's request to expand the scope of the hearing was almost a full year after that school year had ended. Because petitioners did not challenge respondent's failure to develop or implement an IEP for the second half of 1998-99 before the end of that school year, their claim for tuition reimbursement for the second half of the 1998-99 school year would not be supported by the equities. The due process system exists so that parents' concerns about their child's education can be promptly resolved and necessary corrections made in their child's IEP (Bernardsville Board of Educ. v. J.H., 42 F.3d 149 [3d Cir. 1994]; Northeast Central School Dist v. Sobol, 79 N.Y.2d 598 [1992]).

        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 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 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]).

        I find that respondent cannot meet its burden of demonstrating the appropriateness of the program recommended by its CSE because the CSE that prepared the student's IEP did not have each of its required members. The record shows that there was no regular education teacher present at the meeting at which the student's IEP for the 1999-2000 school year was developed. Federal regulations require that the CSE include a regular education teacher if the child is or may be participating in the regular education environment (34 C.F.R. § 300.344[a][2]). The CSE in this instance recommended that the student participate in the regular education curriculum for specials and potentially for mathematics. In the absence of a required member, the CSE could not prepare a valid IEP (Application of a Child with a Disability, Appeal No. 96-87). Consequently, respondent cannot prove the appropriateness of the program recommend by its CSE. Having made this determination, it is not necessary that I address petitioners' other procedural and substantive challenges to the IEP.

        Petitioners 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, 471 U.S. at 370; 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 parties agree that the student has deficits in the areas of reading, spelling and written expression, and that in order to address those needs, the student requires special instruction in an environment with a small student:teacher ratio and minimal distractions (Exhibit 21). The associate head of Kildonan testified that the average class in the middle school had eight students (Transcript p. 605). She further testified that all the teachers at the school are trained in the OG approach (Transcript p. 609). She indicated that the content of the courses at Kildonan is similar to the content of the courses taught in a public school. She further indicated that the teachers at Kildonan are encouraged to link their oral and visual presentation, to reinforce the information to help with retention. The associate head also testified that in addition to the core academic subjects, each student participates in an individual tutorial designed to be a diagnostic and prescriptive lesson using the OG approach. The tutorials focus on reading, writing and to a certain degree expressive language. They are individualized to address each student's particular weaknesses and flexible in meeting the needs of each student. The students also participated in a study hall. The associate head indicated that she presided over the student's study hall on several occasions and observed him working on his tutorial reports, a component of which was to remediate writing skills (Transcript p. 680).

        The record also shows that the student made progress at Kildonan. In the fall of 1998, prior to entering Kildonan, he was functioning at the third grade level in spelling on the WRAT-III. When tested again in January 2000, he was functioning at a fourth grade level. Similarly, in the fall of 1998, his word attack score on the WRMT-R was a 2.6 grade equivalent, while in January 2000, it was a 4.3 grade equivalent. In the fall of 1998, he achieved a standard score of 1 for contextual language on the TOWL-3. That score had improved to a standard score of 8 in January 2000. These test results show improvement in spelling, reading and written language, the student's areas of deficit. Additionally, the student's teacher for the sixth grade tutorial indicated that the student had demonstrated improvement in the short time that he had attended Kildonan (Exhibit F). He had mastered the lower case cursive alphabet and his handwriting had greatly improved. She also indicated that the student showed significant improvement in word identification and copying speed. She indicated that at the time, she was concentrating on reading comprehension and writing with him. The student's seventh grade tutorial teacher indicated that the student had made significant improvements (Exhibit O). He had mastered compound sentences and basic and expanded paragraphs, and had begun to work on a five-paragraph composition. She further indicated that the student had difficulty distinguishing certain suffix sounds, but through repetition, drilling and study hall assignments, he became successful.

        Respondent argues that petitioner has not met her burden of demonstrating that the program at Kildonan addressed the student's educational needs in the least restrictive environment. It argues that placement at Kildonan would prevent the student from interacting with his nondisabled peers. Students with disabilities must be educated in the least restrictive environment (Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. § 1412[a][5]). While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]).

        There is little dispute that the 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 on procedural grounds had been implemented, the student would have received primary special education instruction in all subject areas. Although Kildonan does not present the same opportunity for mainstreaming as a placement in respondent’s schools, I cannot conclude on that fact alone that it is inappropriate for the child. Based upon the information before me, 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.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents' claim. Respondent argues that petitioners' delay in the hearing process is convincing evidence that they were only interested in obtaining tuition reimbursement. However, I am unable to find that the delays in the hearing were solely attributable to petitioners. There is no indication that petitioners failed to cooperate with the CSE when the IEP for the 1999-2000 school year was being developed. I find that equitable considerations support the parents claim and that they are entitled to be reimbursed for the cost of their son's tuition at Kildonan for the 1999-2000 school year.

        I have considered petitioners' other claims, which I find to be without merit.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the hearing officer's decision is hereby annulled, to the extent that he denied petitioners' request for tuition reimbursement for the 1999-2000 school year; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at Kildonan during the 1999-2000 school year, upon petitioners' submission of proof of payment of such tuition.