01-010

        Petitioner appeals from an impartial hearing officer's decision finding that respondent had offered to provide an appropriate educational program to petitioner's daughter during the 1998-99 school year. The hearing officer denied petitioner's request that respondent be ordered to reimburse her for the cost of daughter's placement in a private school during that school year. The appeal must be sustained in part.

        Petitioner's daughter is 17 years old. She attended a private kindergarten, and entered respondent's Fishkill Elementary School for the first grade during the 1989-90 school year. In the summer of 1990, petitioner referred her child to respondent's committee on special education (CSE). The student was evaluated, and found to have cognitive skills in the high average range. However, her reading and writing skills were below expectations. Respondent’s speech/language therapist evaluated the child, and reported that she had imperfect listening skills which could affect her ability to learn (Exhibit IHO 3). The CSE recommended that she be classified as learning disabled in reading and writing, and that she receive one hour of resource room services each day to address the deficits in her reading and writing skills (Exhibit P-I). Petitioner accepted the CSE's recommendations, which were implemented while the student was in the second grade during the 1990-91 school year. She achieved satisfactory report card grades at the end of the year. Petitioner had her daughter privately tutored by special education teachers while in the second and third grades (Transcript pp. 197, 203).

        The student continued to receive resource room services while in the third and fourth grades. She also received group counseling ten times during the fourth grade because she reportedly had low self-esteem, difficulties with her peers, and lacked motivation (Exhibits P-M and N). The student also reportedly displayed anger and acted out in class, which may have been the result of family problems (Exhibit P-O). Her report card grades were satisfactory for both the third and fourth grades. In April 1993, the Stanford Achievement Test (SAT) was administered to petitioner’s child. She achieved percentile scores of 54 for total reading, 35 for total math, and 62 for listening.

        The student continued to receive resource room services while in the fifth grade during the 1993-94 school year. She was placed in an integrated class consisting of regular education and learning disabled students who were taught by a team of one regular education and one special education teacher. On the SAT in the spring of 1994, she achieved percentile scores of 63 for total reading, 62 for total math, 53 for total language, and 54 for listening. She achieved A’s and B’s for academic subjects on her fifth grade report card.

        The student was enrolled in a transitional program for the sixth grade at respondent’s Myers Corner School during the 1994-95 school year. In the transitional program, she received consultant teacher services, rather than resource room services. The program was intended to prepare her for a full-time regular education placement. The student received final grades of 76 for social studies, 81 for English, 77 for math, 84 for science, and "G" for reading (Exhibit D-17).

        For the 1995-96 school year, the CSE recommended that the student receive ten weeks of transitional support services (see 8 NYCRR 200.1[qq]) to assist her in transitioning to a regular education seventh grade program at respondent’s Van Wyck Junior High School. In late January 1996, the student’s special education teacher indicated that the student needed to have either consultant teacher or resource room services (Exhibit P-S). In February 1996, the special education teacher reported that the student’s grades were declining in all major subjects, and that frequent teacher-parent contact was necessary in order for the child to achieve passing grades. She opined that the student should resume receiving resource room services for academic support and to build her self-esteem (Exhibit P-U). On March 15, 1996, the CSE recommended that the student be classified as learning disabled again, and receive one period of resource room services per day (Exhibit P-T). The CSE’s recommendation was implemented that month with petitioner’s consent.

        In April 1996, petitioner’s daughter achieved percentile scores of 56 for total reading, 66 for total math, and 78 for listening on the SAT (Exhibit P-B). Her reading comprehension score was significantly below her score for vocabulary, and her score for concept of numbers was significantly below her scores for computation and applications. However, only the concept of numbers percentile score was in the below average range. I note that the report of test scores indicated that the student had not completed enough of the SAT battery to yield a global indication of performance on the SAT. The student earned final grades of 74 for social studies, 70 for English, 71 for Spanish, 65 for math, and 72 for science in the seventh grade. A number of the student’s teachers commented on her report card about the student’s inconsistent and unsatisfactory effort, incomplete work, and behavioral difficulties (Exhibit D-18).

        In May 1996, the CSE prepared the student’s IEP for the 1996-97 school year (Exhibit P-W). The IEP provided that the student would continue to receive one period of resource room services per day in a group of no more than five pupils during the eighth grade. The IEP testing modifications included extended time limits, flexible settings, flexible scheduling, and having test questions read to the student. There were annual goals for reading, writing, math, and study skills. The CSE also recommended that the student receive ten sessions of individual counseling during the school year, but did not specify any goal for the counseling

        In June 1996, respondent’s school psychologist performed a triennial reevaluation (Exhibit D-13). He noted that petitioner had indicated that her daughter was hurt and angry about her parents’ divorce and the absence of an adequate relationship with her father, and had also been affected by her grandmother’s death in May 1996. On the Kaufman Brief Intelligence Test, the student achieved percentile scores of 70 for vocabulary, 91 for matrices, and an 86 composite. The school psychologist noted that there was a significant discrepancy between her verbal (vocabulary) score and her performance (matrices) score. On the SAT, the student achieved percentile (and standard) scores of 74 (110) for reading vocabulary, 42 (97) for reading comprehension, 15 (84) for concepts of numbers, 85 (116) for math computation, 76 (111) for math application, 1 (65) for spelling, and 78 (112) for listening. Her scores for spelling and the concept of numbers were significantly discrepant from her academic potential. At petitioner’s request, the psychologist assessed the student for a possible attention deficit disorder (ADD) by having the student’s resource room teacher and her private tutor complete the Attention Deficit Disorders Evaluation Scale. The tutor who worked with the child on an individual basis reported a frequency of behaviors commonly associated with ADD which yielded a score in the 41^st percentile. The resource room teacher indicated that the student did not display such behavior. The psychologist recommended that petitioner discuss the issue of possible ADD with her daughter’s physician, noting that the student had emotional difficulties which could cause ADD-like behavior in certain settings. He also recommended that the student continue to receive resource room services, notwithstanding the student’s professed dislike for such services. The school psychologist suggested that the CSE consider adding counseling to the student’s IEP.

        During the summer of 1996 and the 1996-97 school year, the student received private remedial instruction in reading and math (Transcript p. 237). Petitioner's daughter remained in respondent's Van Wyck Junior High School for the eighth grade during the 1996-97 school year. When privately evaluated by a psychologist in April 1997, the student achieved a verbal IQ score of 100, a performance IQ score of 121 and a full scale IQ score of 111. On the Woodcock-Johnson Tests of Achievement-Revised, she achieved grade equivalent (and standard) scores of 6.7 (94) for letter-word identification, 8.3 (99) for passage comprehension, 8.3 (99) for calculation, 8.7 (100) for applied problems, 5.6 (86) for dictation, and 4.4 (87) for writing sample (Exhibit P-C). Later that month, she achieved percentile scores of 60 for reading decoding, 45 for reading comprehension, 20 for math computation, and 10 for math concepts on the SAT (Exhibit D-1). She received final grades of 72 for social studies, 74 for English, 73 for math, and 67 for science during the 1996-97 school year (Exhibit D-17).

        At its annual review on May 14, 1997, the CSE recommended that the student continue to be classified as learning disabled and receive resource room services while in the ninth grade at respondent's John Jay High School during the 1997-98 school year (Exhibit D-1). It also recommended that she receive eight sessions of individual counseling during the school year to improve her social and decision making skills as well as her ability to accept authority. The student's IEP also included the same testing modifications as had appeared on the IEP for the 1996-97 school year. The CSE indicated on the IEP that it had considered providing consultant teacher services to the student but had concluded that she required a more structured learning environment.

        Petitioner had her child privately evaluated in the summer of 1997, and was reportedly advised that the girl had ADD (Transcript p 247). There is no written report of that evaluation in the record, nor is there any formal diagnosis of that condition, although there is a brief notation of ADD on a March 1998 CSE subcommittee report. Petitioner chose to enroll her daughter in the Oakwood Friends School in Poughkeepsie, New York, at her expense, for the ninth grade. The student reportedly had some academic difficulty at Oakwood. On her mid-year report card, she received grades of D+ for English, C for Spanish, F for world history, C for algebra, and B- for biology (Exhibit D-18).

        In January 1998, petitioner withdrew her child from the Oakwood Friends School and enrolled her in respondent’s John Jay High School. She also referred the student to respondent’s CSE. On March 16, 1998, a CSE subcommittee recommended that the student be classified as learning disabled, and that she receive one period of resource room services per day (Exhibit D-6). It also recommended that she receive eight sessions of individual counseling per year, and have the benefit of various testing modifications.

        In April 1998, the student achieved percentile (and standard) scores of 42 (97) for reading decoding, 9 (80) for reading comprehension, 6 (72) for math computation, 6 (72) for math concepts, and 6 (77) for written language on the SAT (Exhibit D-16). Her academic performance declined as she began cutting classes in the spring of 1998 (Transcript pp. 55-56, 121, Exhibit P-BB). She earned final grades of 65 for social studies, 66 for English, 76 for Spanish, and 46 for Regents biology (Exhibits D-17 and P-FF). At petitioner’s request, the student was withdrawn from her ninth grade math class.

        On May 4, 1998, petitioner met with her daughter's special education and ninth grade English teachers for what was purportedly an annual review by a subcommittee of the CSE (Exhibit D-9, 10, 11, 16, 25, Transcript pp. 128-129). The special education teacher testified at the hearing that she discussed proposed IEP annual goals for the 1998-99 school year with petitioner at the May 4, 1998 meeting (Transcript pp. 152-153). The actual IEP for the 1998-99 school year was prepared after the meeting (Exhibit D-16), and was apparently revised in the spring of 1999 (Exhibit D-23). I note that in tuition reimbursement cases such as this appeal, the relevant IEP is the IEP which the parent had received when he or she placed the child in a private school (Application of a Child with a Disability, Appeal No. 98-14). In this instance, it is the IEP bearing the date of June 6, 1998 (Exhibit D-16). The IEP indicated that petitioner's daughter would attend the John-Jay High School for the tenth grade. She would remain classified as learning disabled, and was to have received one period of resource room services per day and ten individual counseling sessions during the 1998-99 school year. Testing modifications included extended time limits, flexible setting and scheduling, special locations, having test questions read to the student, and allowing her to use a spellcheck device. In its description of the student's current levels of educational achievement and learning rate, the IEP indicated that the student could, with effort, compensate for her disabilities, and that her inability to focus hindered her academic success. The IEP included five annual goals for English/language arts, three for written language/independent written expression, three for math, and three for study skills.

        Petitioner had her daughter privately evaluated by an educational consultant on August 18 and 19, 1998. In her report of that evaluation dated December 12, 1998, the consultant indicated that the student had achieved grade equivalent (and percentile) scores of 8.1 (36) for word identification, 5.0 (20) for word attack, 10.9 (67) for word comprehension, and 10.7 (61) for passage comprehension on the Woodcock Reading Mastery Test-R. The consultant noted that each score, except that for word attack, was in the average range. She nonetheless opined that petitioner's daughter had a specific language disability, known as dyslexia. She recommended that the Orton-Gillingham technique be used to teach reading to the student. The consultant also noted that the student had experienced unspecified traumas and could benefit from counseling (Exhibit P-QQ). I note that by the time the consultant wrote her report, petitioner had already placed her daughter in the Kildonan School, which is a private school for learning disabled students in Amenia, New York. The consultant concurred with the student's placement in the private school.

        On August 20, 1998, petitioner informed the CSE chairperson that she intended to place her daughter in the Kildonan School (Exhibit H10-1). She also rejected her daughter's IEP for the 1998-99 school year, and requested an impartial hearing. The hearing did not begin until December 7, 1998. It continued for six additional days, ending on September 1, 1999. The hearing officer failed to render a decision in the matter. Petitioner's counsel asked the State Education Department to intervene in February 2000. On or about June 28, 2000, the hearing officer's certification was revoked by the Commissioner of Education.

        The Board of Education appointed a new hearing officer on September 29, 2000. In his decision which was rendered on January 16, 2001, the new hearing officer revealed that he had received parts of the record in October and November, 1999, but he did not have the complete record until January 8, 2001. He noted that there was no dispute about the student's classification as learning disabled. The hearing officer further noted that a board of education may be required to pay for educational services obtained for a child by the child'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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]).

        The hearing officer found that the "appropriate personnel" from the school district were present at the May 4, 1998 meeting at which the student's IEP for the 1998-99 school year was developed. He further found that petitioner had been accorded her due process rights, and an opportunity to meaningfully participate in the development of the IEP. The hearing officer noted that the SAT scores listed on the student's IEP were invalid because the student had not cooperated during the test administration, but he concluded that the CSE had adequate information about the student to prepare an IEP for her. He questioned the validity of the educational consultant's evaluation of the student in August 1998, but found that respondent could have, in any event, provided the specialized training which the consultant had recommended. The hearing officer found that the student's IEP annual goals for the 1998-99 school year were appropriate for her, and concluded that respondent had offered to provide an appropriate educational program to petitioner's daughter during the 1998-99 school year. Consequently, he denied petitioner's request for an award of tuition reimbursement.

        Petitioner asserts that she is entitled to an award of tuition reimbursement because her daughter was reportedly denied a free appropriate public education (FAPE) because of the extended period of time between the ending of the hearing in September 1999 and the hearing officer's decision in January 2001. The delay was caused by the first hearing officer’s failure to complete her duties. Respondent asserts that it was also delayed in retrieving the record. Although the delay is regrettable, I find that it does not afford a basis for granting the relief which petitioner requests.

        Petitioner also asserts that the new hearing officer was not properly appointed by respondent because the appointment was allegedly illegal and tainted with bias. Respondent points out that although petitioner's attorney was aware of the new hearing officer's selection in the fall of 2000, petitioner failed to raise an objection to the appointment until after the hearing officer rendered his decision. I find that the issue is beyond the scope of my review because it was not raised below (Application of a Child with a Disability, Appeal No. 98-14; Application of a Child with a Disability, Appeal No. 99-60). In addition, I must point out that there is no evidence in the record of this appeal to support any determination of petitioner's claim of an improper appointment.

        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 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 which are 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 with a Disability, Appeal No. 93-9).

        Petitioner challenges the hearing officer’s determination that her daughter’s IEP for the 1998-99 school year was developed in accordance with the procedural and substantive requirements of the law. Both federal and state law require that an IEP be developed by a multidisciplinary team with certain mandatory members. In New York, the multidisciplinary team is known as the CSE. An IEP may be prepared by a subcommittee of the CSE, which is what happened on May 4, 1998 in this case. A CSE subcommittee must include: the student’s parent, a regular education teacher if the student is or may be participating in the regular education environment, a special education teacher, a representative of the district who is qualified to provide or supervise the provision of special education, a person who can interpret the instructional implications of evaluation results, other persons having knowledge or special expertise regarding the student as the school district or parent shall designate, and the student if appropriate (Section 4402 [1][d] of the Education Law). The record reveals that on May 4, 1998, petitioner met with her daughter’s special education teacher and her English teacher to prepare the student's IEP for the 1998-99 school year (Exhibit D-16). Although the IEP was subsequently amended to correct certain omissions (Exhibit D-25), there is no evidence that either the CSE or its subcommittee met to make those corrections on the IEP. Under the circumstances, I am compelled to conclude that the student’s IEP is a nullity because it was not prepared by a validly composed CSE subcommittee (Application of a Child with a Disability, Appeal No. 95-65). Accordingly, I find that respondent has failed to meet its burden of proof with regard to the appropriateness of its educational program.

        Petitioner bears the burden of proof with regard to the appropriateness of the services she obtained for her child at the Kildonan School during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parent must show that the services were proper under the IDEA (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]), i.e., that the private school offered an educational program which met the student's special education needs (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).

        Having reviewed the record, I find that petitioner's daughter needed specialized instruction to improve her decoding (word attack), encoding (spelling), writing, and math skills, which were significantly below her intellectual ability. In addition, it is evident that she had some emotional difficulties which interfered with her ability to complete assignments and attend school on a regular basis. The nature and extent of her emotional difficulties are difficult to ascertain, since there appears to have been little effort to objectively assess her emotional needs. At the hearing, the academic dean of the Kildonan School described the school and its program. The Kildonan School is a coeducational boarding school for pupils in grades two through twelve who have a language related learning disability. There were approximately 100 students at the school during the 1998-99 school year. Class size was approximately eight to eleven students. The teachers of the various academic classes at the school are trained in the use of the Orton-Gillingham technique, which is a multisensory methodology to teach reading and writing. Each student also has a 45-minute daily tutorial with an Orton-Gillingham specialist who works to remediate deficits in the student's reading and writing skills. During the 1998-99 school year, petitioner's daughter was enrolled in a tenth grade global studies course, an eleventh grade literature course, a biology course, and an algebra course, in addition to her individual tutorial.

        The student's progress reports from the Kildonan School indicated that she had some initial difficulty completing assignments and participating in class (Exhibit P-GG), but her performance steadily improved throughout the 1998-99 school year (Exhibits P-HH, II, JJ, KK). Although her punctuality for class decreased near the end of the school year, her academic performance was satisfactory (Exhibit P-LL). Her language training tutor reported that the student had made gains in her word attack skills, and that her writing skills had also improved. The student was tested in August 1998 and May 1999 with the Wide Range Achievement Test 3 (WRAT 3), the Gates-MacGinitie Reading Test (Gates-MacGinitie), and the Stanford Test of Academic Skills (TASK) (Exhibit P-MM). On the WRAT 3, her score increased from a grade equivalent (and standard) score of 7.5 (91) to 11.3 (104) for word identification. She improved from a grade equivalent (and standard) score of 8.3 (31) to 10.3 (42) for vocabulary on the Gates-MacGinitie. Her spelling score increased from 6.2 (86) to 8.3 (97) on the WRAT 3. Her math scores improved from a grade equivalent score of 7.7 to 9.6, as measured by the TASK. In January 1999, the student passed the Regents Competency Test in mathematics (Exhibit P-NN). The academic dean testified that the student’s writing organization and sentence structure had improved. I find that there is sufficient evidence of progress in the student's deficient skills to conclude that the Kildonan School addressed her academic needs.

        The IDEA requires that children with disabilities be educated in the least restrictive environment (20 USC 1412 [a][5]). That requirement applies to unilateral parental placements (M.S. on behalf of S.S. v. Bd. of Ed. of the City School Dist. of the City of Yonkers, 231 F. 3d 96 [2d Cir. 2000]). I am aware that petitioner's daughter had previously received supplemental special education instruction, as well as the assistance of a special education teacher in two inclusion classes. I am also aware that the student was privately tutored during the 1997-98 school year by a special education teacher and by a skills teacher from the Oakwood Friends School. Notwithstanding all of that support, the student had a rather unsuccessful year in the ninth grade. I find that her placement in a special education school like the Kildonan School is consistent with the IDEA's least restrictive environment requirement. However, there is an additional question about the restrictiveness of the student's placement because petitioner seeks reimbursement for the costs which she incurred in having her daughter board at the school on a five day per week basis. Petitioner's attorney indicated on the record that the driving time between petitioner's home and the private school was not more than 40 minutes. The academic dean of the Kildonan School testified that the student required more than a day placement because she needed additional structure and support. The dean explained that the student needed a lot of guidance to complete her assignments, and had not internalized her study skills so as to be able to complete her assignments at home. At Kildonan, the student was required to attend a two-hour nightly supervised study hall, in which she received assistance in organizing and completing her work. In view of respondent's apparent inability to address the student's truancy and failure to complete assignments in its day placement, I am not persuaded that the five-day boarder placement at the Kildonan School was too restrictive for the student. I find that petitioner has prevailed with respect to the second of the three criteria for an award of tuition reimbursement.

        The final criterion for an award of tuition reimbursement is that equitable considerations support petitioner’s claim for the award. The record indicates that petitioner cooperated with the CSE. She obtained private tutoring for her daughter during the 1997-98 school year, for which she does not seek reimbursement. I note that in her petition, petitioner asks for reimbursement for tuition, room and board, transportation, counseling, and physical education services. I find that she is entitled to be reimbursed for tuition and room and board for five-day boarding at the Kildonan School as indicated in the fee schedule attached to Exhibit P-TT. Petitioner seeks reimbursement for transportation at the rate of 35 cents per mile, for 70 trips of 35 miles. In the absence of any evidence that the distance or a number of trips is excessive, I find that petitioner should be reimbursed. There is no evidence in the record describing the purpose or extent of the counseling for which petitioner seeks reimbursement, and her request must therefore be denied. Petitioner also seeks reimbursement for a "mandatory physical education program" in the amount of $725. I note that on the Kildonan fees schedule, there is a separate fee of $725 for a ski trip. I find that there is insufficient evidence in the record to support petitioner’s claim for such reimbursement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her daughter’s tuition, room and board, and transportation during the 1998-99 school year, upon petitioner’s submission of proof of payment for such expenditures.