01-025

       Petitioner appeals from an impartial hearing officer’s decision that denied tuition reimbursement for the 1999-2000 school year during which her son was attending the Kildonan School (Kildonan), a private school in Amenia, New York. The hearing officer found that respondent had failed to offer a free appropriate public education (FAPE) to the student, but denied petitioner’s claim for reimbursement upon a finding that she had failed to establish that Kildonan had provided appropriate educational services to her son. Respondent cross-appeals from the parts of the decision that found a denial of FAPE and that equitable considerations supported the parent’s claim. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioner’s son was 16 years old and in the ninth grade at Kildonan when the hearing began on January 6, 2000. Kildonan has not been approved by the New York State Education Department to provide education to children with disabilities. The student had a history of premature birth and hydrocephalus (Exhibits P-75, 80). He was classified as learning disabled by respondent’s Committee on Special Education (CSE) when he was in kindergarten. He has continued to be classified as learning disabled, and that classification is not in dispute.

        When the student was in the first and second grades, respondent’s CSE placed him, at his mother’s request, in regular education classes with resource room. A pediatric neurologist reported that the student had an attention deficit disorder (ADD), for which he began taking medication (Exhibit P-75). The student remained in respondent’s elementary school in an inclusion class through fifth grade. A more detailed account of the student’s educational history is set forth in a prior decision, Application of the Board of Education of the Arlington Central School District, Appeal No. 97-45, in which I sustained an award of tuition reimbursement for the 1995-96 and 1996-97 school years, when the student was initially placed by his parents at Kildonan.

        At the end of fifth grade, a comprehensive independent neuropsychological evaluation revealed that the student was slow in motor coordination, had difficulty with attention, organization and processing information, and had a tendency toward impulsivity (Exhibit P-80). The evaluator reported that petitioner’s son had not mastered the rules of phonetics, had a limited sight vocabulary, and did not yet have a consistent left-to-right, top-down manner of scanning a page. The student’s cognitive skills were reported to be in the low average range, and on achievement tests, he scored very low in reading, spelling and writing. The evaluator concluded that the student had moderately severe dyslexia. She opined that he needed to be taught in a disciplined, structured environment, by teachers who would use an intensive, multisensory approach (Exhibit P- 80).

        The student’s mother unilaterally enrolled him for the 1995-96 school year at Kildonan, where he repeated fifth grade. He reportedly received satisfactory grades at Kildonan, but was described as making inconsistent effort and being disorganized, distracting to others, and disrespectful (Exhibit P- 75). At the end of the 1995-96 school year, an independent evaluator reported that the student demonstrated improvement in almost all academic areas tested. In sixth grade at Kildonan, while reportedly receiving satisfactory grades, the student was found to have emotional difficulties, to lack enthusiasm and to distract others (Exhibit P-75). He was taking medication for depression and anxiety, and received psychological counseling in the spring of 1997 (Exhibit SD-27).

        In seventh grade at Kildonan during the 1997-98 school year, the student reportedly had an "uneven" year, doing well in some areas but struggling in others such as completing assignments (Exhibit P-75). Respondent’s school psychologist reported in a triennial evaluation performed in April 1998 that the student was functioning in the average intellectual range, but he had weaknesses in concentration and attention and visual processing speed that affected his learning. The student’s basic reading skills were at a grade equivalent of 3.6, while his reading comprehension skills were at a grade equivalent of 5.6. He earned grade equivalents of 5.5 for math reasoning and 6.6 for numerical operations. The student’s spelling and writing skills were significantly below grade level, at 2.9 and 2.1, respectively. His listening comprehension and oral expression scores were well above grade level (Exhibit SD- 20).

        Petitioner’s son reportedly had a productive year in the eighth grade at Kildonan during the 1998-99 school year. His teachers described him as being motivated, agreeable, and attentive (Exhibit P-75). A Kildonan testing profile indicates that at the end of eighth grade, the student’s spelling ability was still at a third grade level. Pursuant to a stipulation of settlement reached in Federal Court on October 14, 1998, respondent agreed to reimburse petitioner for approximately half of the cost of the student’s attendance at Kildonan for the 1997-98 and 1998-99 school years (Exhibit P-59). In consideration of such payment, petitioner agreed that the student’s status quo placement would be that which was recommended by the CSE for the 1999-2000 school year.

        The CSE’s annual review for the student was scheduled to occur on June 21, 1999 (Exhibit SD-30). The meeting was adjourned, however, because the CSE did not have the necessary records from Kildonan (Transcript p. 635). The student’s mother signed consent forms for release of Kildonan report cards and for an annual evaluation (Exhibits SD-31, 32; Transcript pp. 636-37). The mother wrote to respondent expressing her disappointment that her son would not be tested until the summer, when he would not be taking his medication for ADD (Exhibit SD-33).

        Respondent’s special education teacher evaluated the student in July 1999, as documented in an August 16, 1999 report (Exhibit SD-39; Transcript p. 523). As in previous evaluations, the student’s listening comprehension and verbal expression scores were high, while his spelling, and reading skills were in the below average range. Notwithstanding his weakness in spelling, the student achieved a score in the average range for written expression (Exhibit SD-39).

        The annual review was reconvened at a meeting on August 17, 1999, at which the CSE reviewed the August 16, 1999 evaluation, the Kildonan reports, and earlier evaluations (Transcript pp. 648-50). The CSE recommended that the student be placed in the ninth grade at respondent’s high school during the 1999-2000 school year. The student’s proposed program was to consist of 15:1 special education classes for English and social studies, which would be taught by a certified special education teacher using a multisensory approach (Exhibit SD-40; Transcript pp. 67-69), as well as mainstreamed Regent’s biology and Math 1RA classes, each taught over the course of two years, with a teaching assistant for no more than 20 students (Transcript pp. 53-57). In addition, the student was scheduled for a 6:1 regular education intensive reading lab that would meet each day, and be taught by a teacher certified in both reading and English. He was also scheduled for global lab, a 6:1 regular education class meant to supplement the social studies class, which would meet every other day (Transcript p. 55). The student was also to receive resource room services for one period per day, to work on writing and study skills. His individualized education program (IEP) provided that he would have the benefit of extended time limits for tests, a note taker, having test questions read aloud, exemptions from spelling and foreign language, and full day use of a laptop computer (Exhibit SD-40; Transcript pp. 57-59).

        During the CSE meeting, petitioner requested class profiles and information about teacher qualifications (Transcript pp. 67, 657-58). The CSE chairperson explained at the meeting that there was no profile for the reading class because it was a regular education class (Transcript p. 69). When the mother subsequently attempted to speak with the reading teacher about the course, she was advised to call the principal at the school because the teacher was away. She testified that the principal told her that he was unaware of the new reading program (Transcript pp. 658, 664). She further testified that she never received the information about the profiles or her other inquiries (Transcript pp. 665, 835).

        In a letter dated August 29, 1999, the mother informed the CSE of her rejection of the proposed IEP, setting forth her reasons in detail, including the fact that she thought her son required individualized reading instruction rather than the proposed 6:1 student-to-teacher ratio (Transcript pp. 666-67). She also felt he needed smaller class sizes in his math, biology and global lab classes, and should have textbooks written at a lower level (Exhibit P-7). She further noted that she had not heard from respondent’s staff regarding her request for more information on the reading program. She stated her intention to place him unilaterally at Kildonan and to seek reimbursement for tuition.

        The mother received a copy of her son’s class schedule on September 2, 1999, but the CSE chairperson testified at the hearing that this copy of his schedule was inaccurate, because the guidance counselor had not yet received the IEP (Transcript p. 81; Exhibits SD-41, P-60). According to her petition, the student’s mother received a copy of his IEP on September 8, 1999, which was the first day of school in respondent’s school district. The student began school the next week at Kildonan, for which petitioner had signed a contract in May 1999 (Transcript p. 832). By letter dated October 5, 1999, respondent sought an impartial hearing concerning the parent’s rejection of the CSE’s recommended program and her request for tuition (Exhibit SD-8). On October 18, 1999, the parent requested an impartial hearing as well, claiming she was denied an opportunity to participate in developing her son’s educational program (Exhibit P-9).

        In December 1999, petitioner’s son was privately evaluated by a psychologist, who reported that the student had achieved a verbal IQ score of 97, a performance IQ score of 93, and a full scale IQ 94. On the Wechsler Individual Achievement Test, the student achieved grade equivalents of 4.9 for basic reading, 7.1 for reading comprehension, 6.0 for math reasoning, 7.8 for numerical operations, and 4.3 for spelling. He achieved comparable results on other reading tests that were administered as part of the evaluation. The evaluator reported that the student’s auditory and visuospatial processing skills were impaired, and she opined that he needed very small group instruction in reading, math and writing, with children of similar intellectual ability and learning disabilities. In the other subjects, she opined that he needed written materials at a lower level of instruction that would be structured, sequential and multisensory. At the hearing she opined that a large public high school would not be an appropriate setting, because even passing though the hallways would be "socially dangerous" for the student (Transcript pp. 879, 885).

        The hearing began on January 6, 2000, and was completed on October 2, 2000. The parties received the hearing officer’s decision, dated December 27, 2000, in March 2001. The hearing officer found that the Board of Education had failed to offer an appropriate educational program to the student for the 1999-2000 school year because of its failure to provide the parent with a copy of her son’s IEP prior to the start of the school year. He reasoned that respondent had an obligation to deliver the IEP to the parent before the start of the school year, whether or not she had previously rejected the CSE’s recommendations. The hearing officer also objected to respondent’s characterization of the student’s proposed Regent’s biology class as a mainstream class because it in fact consisted exclusively of special education students, and found the class to be inappropriate under federal and state law. He also noted that the student’s IEP contained no transition plan.

        In determining whether Kildonan’s program was appropriate, the hearing officer examined the student’s standardized test scores over the course of several years. He concluded that the student had made insufficient progress in some areas and had regressed in others while attending Kildonan. He noted that Kildonan had not provided counseling to the student even though a Kildonan administrator had testified that the student had poor self-esteem, and that there was no evidence that Kildonan had addressed the student’s negative social style that the private psychologist had reported in her evaluation. He concluded that the private school’s program was no longer calculated to provide an educational benefit to the student, and that it was not the least restrictive environment (LRE) for him. Although he did not need to rule on the equitable considerations, the hearing officer found that the parent had cooperated sufficiently with respondent to meet the requirement that equitable considerations support her claim for tuition reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). He denied petitioner’s request for an award of tuition reimbursement because he found petitioner failed to meet her burden of proving the adequacy of Kildonan’s program.

        I will first consider respondent’s cross-appeal from the hearing officer’s determination that it had failed to offer a FAPE to petitioner’s son for the 1999-2000 school year. 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 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).

        As noted above, the hearing officer identified several areas of concern about the 1999-2000 IEP, including the lack of a transition plan, lack of short-term objectives, a mischaracterization of the math and biology classes, and the fact that the parent received the IEP on September 8, 1999, the day school began. While I agree that there were shortcomings with the IEP and its delivery, I find that the Board of Education failed to offer an educational program that was designed to meet the complex educational and social/emotional needs of this student.

        There is ample evidence that the student has severe dyslexia and significant social/emotional difficulties that affect his learning. He has not been able to progress well in spelling or oral reading, and he required psychological counseling as recently as seventh grade. As explained by the academic dean at Kildonan, where the student had been placed for the last four years, the student was "fragile emotionally" (Transcript p. 744). He had behavior problems that appeared to result from his feelings of inadequacy related to the dyslexia (Transcript pp. 773-74). He was described as acting out in class rather than paying attention and having difficulty relating to adults and peers (Transcript pp. 774-75). Most important, the academic dean testified that "[w]hen he is up for the next level of challenge, that’s when you see his sense of inadequacy come into the fold [sic] again" (Transcript pp. 773-74).

        Several different independent evaluators opined that the student needed small structured classes to address his learning disabilities and social style. The record indicates that he had been struggling for four years in classes of six to eight students and has only in the past year become adjusted socially to this small controlled environment at Kildonan. Therefore, I must conclude that the student’s attention deficits, impulsive behavior and struggles with peer interaction would not have been adequately addressed in the relatively large classes of 15-20 students proposed by the CSE.

        While the program recommended by the CSE was commendable for its coordination between regular and special education teachers and its attempts to address the needs of special education students, I find that the student needed more support in the form of smaller classes, counseling or other programs to help him transition from the smaller classes to which he was accustomed in order to achieve success in returning to the public high school setting and its large high school classes. Thus, I find that respondent has failed to meet its burden of proving that its 1999-2000 educational program was reasonably calculated to meet the student’s educational needs.

        Petitioner bears the burden of proof with regard to the appropriateness of the services provided to her 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, the parent 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 hearing officer determined that the student had made no academic progress at Kildonan in 1999-2000, relying on specific percentile scores and, in some instances, grade equivalent scores. Having reviewed all of the standardized test scores in the record, however, I find that the student made sufficient progress in reading, writing and math to determine that Kildonan’s program was reasonably meeting his educational needs.

        In comparing scores on the same tests, I note that on the WIAT in July 1999, petitioner’s son achieved grade equivalents of 6.2 in numerical operations, 6.9 written expression, 5.6 in reading comprehension, 5.5 in reading composite, 5.0 in writing, and 5.2 in basic reading (Exhibit SD-39). On the WIAT in December 1999, five months later, he scored grade equivalents of 7.8 in numerical operations, 5.8 in reading composite, 7.1 in reading comprehension, 4.9 in basic reading (Exhibit 75-P). On the Stanford test in Math in May 1999, he scored grade equivalents of 7.0 in computation and 4.9 in application. On that test in May 2000, he achieved grade equivalents of 7.2 in computation and 7.8 in application.

        On the Gates-McGinitie in May 1999, he scored grade equivalents of 5.6 in vocabulary and 7.4 in reading comprehension (Exhibit 35-D). On the Gates-McGinitie in May 2000, he achieved grade equivalents of 5.5 in vocabulary and 7.9 in reading comprehension (Exhibit 72-J). On the Woodcock-Johnson Tests of Achievement in May 1999, he scored in the 18th percentile in word attack, while his score in December 1999 was in the 26th percentile (Exhibits SD-35 & 75-P). In May 1999 on the Wide Range Achievement Test–3 (WRAT-3), he achieved standard scores of 95 in word identification, and 71 in spelling (Exhibit 35-D). In May 2000 on the WRAT-3, he scored slightly lower, an 88, in word identification, but his score increased to an 81 in spelling (Exhibit J-72).

        The student made less consistent progress in spelling over the years at Kildonan. On the WIAT in July 1999, he received a grade equivalent score of 4.5 in spelling, then scored a 4.3 in spelling in December 1999 (Exhibit P-81, 82; Exhibit SD-35). The Academic Dean at Kildonan testified that there was less focus on the student’s spelling and more focus on lengthier written expression, because he could never be expected to be at grade level in that subject (Transcript pp. 756-57). I find that the student’s persistent weakness in spelling is related to his continued disability rather than any deficiency in Kildonan’s program, and I note that respondent’s CSE had recommended that the student be exempt from spelling requirements in respondent’s recommended program.

        While the student’s test scores were sometimes inconsistent, I find that he made slow but steady gain throughout his tenure at Kildonan, including the 1999-2000 school year. It was clear he progressed in his academic performance, given that he maintained similar standard scores in each year despite the increasing complexity of the test questions as he proceeded through each grade level (Transcript pp. 968, 988).

        I have considered whether placement at Kildonan is inconsistent with the requirement that students with disabilities be placed in the LRE. Although the restrictiveness of a 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]), the LRE requirement must be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). In this case, although the student has no opportunity to relate to his nondisabled peers at Kildonan, I must note that the student would have had very few opportunities in respondent’s proposed program to interact with nondisabled students, since even the classes that were portrayed as mainstreamed were composed of exclusively special education students. I find that petitioner has met her burden of proof with regard to the appropriateness of the services provided to her son by Kildonan during the 1999-2000 school year, and will annul the hearing officer’s finding to the contrary.

        The final criterion for an award of tuition reimbursement is that the parent’s claim be supported by equitable considerations. The hearing officer found that petitioner had cooperated with respondent’s CSE, and that her claim for reimbursement was supported by equitable considerations. The Board of Education challenges the hearing officer’s finding. It asserts that petitioner had no intention of sending her son to respondent’s schools, and that she attempted to impede the reliability of the district’s testing of her son by taking her son off his medication during the summer of 1999. Although petitioner may have signed an enrollment agreement with Kildonan for the 1999-2000 school year in May 1999, that fact does not disqualify her from receiving an award of tuition reimbursement.

        Respondent alleges that the student was taking medication when he was tested at Kildonan in May 1999, but was not taking the medication in July 1999 when he was evaluated by its special education teacher. Respondent is referring to the drug Dexedrine that the student was taking for his attention deficit. Although it is not clear from the record why the student could not have simply resumed taking the medicine on the day of the evaluation, I am not persuaded that the July test results were distorted or otherwise of no value to the CSE in making its program recommendation for the student. Accordingly, I find that petitioner’s claim for tuition reimbursement is supported by equitable considerations.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent it found that petitioner had not met her burden of proof with regard to Kildonan’s services and that it denied tuition reimbursement to her; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son’s tuition at the Kildonan School during the 1999-2000 school year, upon petitioner’s submission of proof of payment of such tuition.