01-054

       Petitioners appeal from an impartial hearing officer’s decision which denied part of their request for tuition reimbursement for their daughter’s attendance at the Kildonan School (Kildonan) during the 1999-2000 and 2000-01 school years. The hearing officer awarded petitioners partial reimbursement for a day placement for both years, but denied their request for reimbursement for a residential placement during those years. Respondent cross-appeals from the hearing officer’s determination that it had failed to offer an appropriate educational program to the student during both school years and that petitioners should receive an award of partial tuition reimbursement. The appeal must be sustained in part. The cross-appeal must be denied.

        Respondent asks me to excuse its delay in serving the answer to the petition and cross-appeal. The petition was served upon the district clerk on July 12, 2001. At the end of the petition, petitioners indicated that a copy would be sent to respondent’s attorney. Accordingly, the clerk did not forward the petition to respondent’s counsel, who did not learn that the petition had been served upon the clerk until some time thereafter. The attorney who had handled the matter for respondent at the hearing gave birth to a child while the answer was being prepared. The answer and cross-appeal were served on September 26, 2001. In the interests of justice, I will excuse respondent’s delay.

        The Board of Education asserts that the appeal is untimely because the verified petition was not served within 40 days after petitioners received the hearing officer’s decision (8 NYCRR 279.2[b]). Petitioners assert that they received the hearing officer’s decision on June 8, 2001, and served their petition on July 12, 2001. I find that their appeal is timely.

        Petitioners have submitted a "corrected report" initially dated August 25, 2000, and an explanatory letter dated March 22, 2001 prepared by petitioners’ educational consultant. Respondent objects to my consideration of these documents on the grounds that it has not had the opportunity to confront the witness who prepared the documents. 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 of the hearing, or if the record would be incomplete without the evidence (Application of the Board of Education of the North Salem School District, Appeal No. 00-042; Application of a Child with a Disability, Appeal No. 98-55). The material objected to by respondent was unavailable at the time the hearing was concluded. I will accept the additional evidence (Application of a Child with a Handicapping Condition, Appeal No. 91-25). I note that petitioners initially requested that the hearing officer reopen the hearing to provide the educational consultant with an opportunity to identify and explain changes in her report dated August 25, 2000, but respondent objected.

        Petitioners’ daughter was 16 and about to enter the 11th grade at Kildonan when the hearing began. She attended the school as a five day a week residential student. The school offers a college preparatory curriculum for students with specific learning disabilities, including dyslexia. However, it has not been approved by the State Education Department to provide instruction to children with disabilities.

        The student transferred into respondent’s school district in February 1994, when she was in the fourth grade. She was initially classified as learning disabled while in the second grade in the Yonkers Public Schools during the 1991-92 school year. She had previously repeated first grade in Yonkers, after attending a private school for kindergarten and first grade. While in the third grade at Yonkers during the 1992-93 school year, she was enrolled in regular education classes and received resource room services. She began the 1993-94 school year in a special education class, prior to entering respondent’s schools.

        Respondent assigned the student to a 12:1+1 inclusion class upon her entry into its school system. Follow-up testing later that year showed the student to be more than two years behind in reading and more than a year behind in math (Exhibit 10). During the 1994-95 school year, the student was enrolled in a regular education fifth grade class, with ten hours of resource room services per week. The student moved to respondent’s middle school for the sixth grade. She was placed in special classes for English, science, social studies, math and study skills. During the 1996-97 school year for the seventh grade, she received consultant teacher services for social studies and science, and was enrolled in special classes for English, math, and study skills (Exhibit 12).

        The student’s triennial evaluation was performed at the start of the seventh grade (Exhibit 13). According to the examining psychologist, the student continued to have a significant learning disorder with difficulties in perceptual organization, visual analysis, problem solving, and auditory short-term memory. IQ testing indicated that she had average cognitive development, with a verbal IQ score of 90 and a performance IQ score of 94. The psychologist reported that the student had a good self-concept, but she was discouraged about her disabilities. In April 1997, the student achieved grade equivalent scores of 2.1 for reading decoding, 2.7 for reading comprehension, 5.2 for math computation, and 3.1 for math concepts (Exhibit 17). She passed all of her courses.

        For the eighth grade during the 1997-98 school year, petitioners’ daughter was enrolled in a special education class for English, math, and study skills, and received assistance from a special education teacher or teaching assistant in science and social studies (Exhibit 17). She was also enrolled in a remedial reading class. In the spring of 1998, she achieved grade equivalent scores of 4.3 for reading comprehension, 4.7 for math computation, 3.5 for math concepts, and 1.8 for spelling (Exhibit 19). She passed all of her courses (Exhibit 100).

        Petitioners and respondent’s teachers wanted the student to have "an opportunity to participate fully in the high school program" (Transcript pp. 12, 138). Therefore, the Committee on Special Education (CSE) recommended that the student be assigned to regular education classes in Regents English, math, global studies, and physical science, with seven and one-half periods of resource room services per week in the ninth grade during the 1998-99 school year (Exhibit 19). She was also enrolled in two non-credit general education lab courses for additional support in reading and social studies. Respondent modified the student’s ninth grade program to include testing modifications (extended time, special location, questions read, and a calculator) and also provided her with a student note taker for content area subjects.

        Starting in the eighth grade and continuing thereafter, the student reportedly had increasing difficulty focusing and concentrating on her homework (Transcript pp. 748, 842, 875-76, 881). Petitioners testified that by the ninth grade, their daughter was able to do almost no homework, no matter how hard she tried or whatever their level of encouragement (Transcript pp. 851, 853). By the time of the December break, the student appeared to petitioners to be overwhelmed, and petitioners were concerned that she might hurt herself (Transcript pp. 747, 851-54, 861, 877-78, 895-96). The student became increasingly physically and verbally abusive to her siblings and at one point physically assaulted her mother (Transcript pp. 747-48, 880, 881). For about six months during this period the student saw a private counselor (Transcript pp. 878-79, 892).

        Petitioners met with school staff a number times during the student’s ninth grade year (Exhibits 28, 36-40, 41, 47). Although changing the student’s program to include special classes was apparently discussed during these meetings, the student remained in regular education classes for the entire ninth grade. Later that year, the student gave up school athletics, which she had previously enjoyed, and teachers reportedly began to complain about her behavior in class (Transcript pp. 853-55, 894-95). The student received final marks of 65 in English, 59 in physical science, 53 in global studies, and 46 in math (Exhibit 51). She failed her Regents’ competency test in science (Exhibit 80). The student’s resource room teacher testified that the student’s academic difficulties were related to having to complete her homework in resource room, rather than using that time to review and reinforce concepts (Transcript pp. 254-56, 261).

        On June 16, 1999, the CSE recommended that the student be placed in special education classes for English, math, and study skills, and in regular education classes for Regents’ biology and social studies for the tenth grade during the 2000-01 school year. The student would continue to have seven and one-half periods a week of resource room, as well as a lab in social studies and a foundations in reading course, the latter of which was a non-special education remedial reading class. The CSE also recommended that she receive individual counseling, once a month for 40 minutes, and that she continue to have the benefit of testing modifications, as well as a note-taker for content area courses (Exhibit 23). The parent member of the CSE was not present. The CSE noted on the student’s individualized education program (IEP) that it would meet after the first marking period to review the student’s program.

        Petitioners enrolled the student in Kildonan’s summer program (Transcript pp. 856-58). She reportedly did well in the program. By letter dated September 9, 1999, petitioners advised respondent that they were rejecting the proposed IEP for that year, and that they would enroll the student in a private school and seek reimbursement (Exhibit 79). The student attended Kildonan during the 1999-2000 school year as a tenth grade student. She received generally satisfactory grades (Exhibits 75 and 78).

        In preparation for the CSE’s annual review on June 19, 2000, the Woodcock Johnson Reading Inventory and the Key Math assessment were administered to the student on June 13, 2000. Respondent’s evaluator reported that the student had achieved standard (and grade equivalent) scores of 85 (6.2) for letter-word identification, 82 (3.5) for word attack, 92 (8.1) for passage comprehension, 70 (4.2) for basic math concepts, 55 (1.8) for operations, and 65 (3.5) for applications (Exhibits 57 and 58). A psychological examination had been scheduled to take place prior to the annual review. However, the examination and the CSE meeting were rescheduled when the student failed to appear for the examination because her mother had forgotten the date of the examination (Exhibits 54-56, 62; Transcript pp. 218, 246).

        On May 24 and June 6, 2000, petitioners had their daughter privately evaluated by a consultant, who reported that the student had achieved a verbal IQ score of 82 and a performance IQ score of 100 on the Wechsler Intelligence Scale for Children- III (WISC-III) (Exhibit 110). She further reported that the student had achieved standard (and grade equivalent) scores of 82 (5.1) for word identification, 82 (6.2) for word attack, 79 (5.4) for word comprehension, and 84 (5.9) for passage comprehension of the Woodcock Reading Mastery Test, and 80 (5.5) for math on the Peabody Individual Achievement Test-Revised. Although the private evaluator’s report is dated August 25, 2000, the CSE did not have the report when it conducted its postponed annual review on August 31, 2000.

        The student’s triennial psychological evaluation was performed on August 18, 2000 (Exhibit 59). On the WISC-III, the student achieved a verbal IQ score of 98 and a performance IQ score of 94. The school psychologist reported that the student’s ability to exert mental control, i.e. hold information in short-term memory while working with it, was in the borderline range, and that her ability to process visual information quickly was poor.

        By letter dated June 12, 2000, petitioners’ attorney requested that an impartial hearing officer be appointed to consider their objections to respondent’s programs for the 1999-2000 and 2000-01 school years, although the CSE had not as yet proposed a program for the latter school year. When the hearing commenced on August 23, 2000, the parties advised the hearing officer that the CSE would meet by the end of the month to develop the student’s 2000-01 educational program. The parties jointly requested that the hearing officer hear and consider objections to both the 1999-2000 and the 2000-01 IEPs if the IEP developed for the 2000-01 school year was not agreeable to petitioners.

        The CSE developed an IEP for the 2000-01 school year on August 31, 2000 (Exhibit 63). Although a teacher from Kildonan was invited to attend the CSE meeting, none did (Exhibit 78). The CSE recommended placement in special education classes for math and global studies, and a daily period of resource room services. The student was to attend regular education classes for science and English and participate in a remedial reading class. The minutes of the meeting indicate that she was to attend the remedial reading class every other day. The CSE recommended that the student receive counseling once a month. It also recommended that the student receive content area note taking assistance and that testing modifications be employed.

        At the end of the meeting, petitioners submitted a letter advising the CSE of their dissatisfaction with their child’s proposed program and their intention to enroll her in Kildonan for the 2000-01 school year and seek tuition reimbursement (Exhibit 66). The impartial hearing resumed on September 8, 2000, and it continued for nine more days, ending on March 22, 2001.

        The hearing officer issued his decision on June 5, 2001. He found that the student’s IEPs for the 1999-2000 and 2000-01 school years were deficient in meeting her needs, and that respondent had failed to offer a free appropriate public education to the student during those school years. The hearing officer also found that the petitioners had demonstrated that Kildonan’s educational program was appropriate for the student during those years. However, he concluded that a residential placement was not a proper instructional component because it was unnecessary for the student to make appropriate educational progress. He therefore denied reimbursement for the student’s five day a week residential placement for both years. The hearing officer also ordered a two thirds reduction in petitioners’ reimbursement of non-residential tuition for the 1999-2000 school year because he found that they failed to give respondent ten business days notice of their rejection of the proposed program for that year. Finally, the hearing officer ordered a one third reduction in petitioners’ reimbursement of non-residential tuition for the 2000-01 school year because he found that they did not provide a copy of their private educational consultant’s report to the CSE at its August 31, 2000 meeting or raise issues addressed by that report at that meeting.

        Petitioners appeal the hearing officer’s decision to the extent that it directed the reduction of tuition reimbursement payments and the elimination of payment for residential services. Respondent cross appeals on the basis that respondent provided the student with an appropriate educational program, that Kildonan was not an appropriate educational placement for the student during the two school years, and that the equitable considerations cited by the hearing officer precluded any award of tuition reimbursement.

        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]).

        I will first consider 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). I find that respondent cannot meet its burden of proof with respect to the student’s 1999-2000 program because the CSE that prepared it did not include all of its required members. As indicated above, there was no parent member present as required by the applicable state regulations (8 NYCRR 200.3[a][1][viii]). Although a student’s parents may request that a parent member not attend a CSE meeting, there is no evidence of such a request. An IEP that is prepared by a CSE without the required parent member is invalid and a nullity (Application of a Child with a Disability, Appeal No. 00-070; Application of the Board of Education of the Arlington Central School District, Appeal No. 00-067).

        Even if the CSE been properly constituted, I would nevertheless be constrained to find that the student’s IEP was deficient. Although reading decoding was a significant area of need for the student, her IEP did not include any goal or objective for improving her decoding. Mathematics was another area of weakness for the student. The IEP addressed math with a single generally worded goal. The two objectives for that goal are unclear. The IEP did not include a goal for the counseling that the CSE had recommended for the student. As indicated above, the student’s homework difficulties directly affected her educational performance during the 1998-99 school year. The CSE proposed a once a month individual counseling program to address this issue. However, respondent has not explained how the recommended service would provide adequate assistance to the student to overcome this obstacle to academic success.

        The student’s parents bear the burden of proof with regard to the appropriateness of the services they obtained for their daughter 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 parents 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).

        Kildonan is a co-educational day and boarding K-12 college preparatory school for students with specific learning disabilities, including dyslexia and attentional difficulties, who are instructed in classes of eight to ten students (Transcript pp. 909-911). The school uses the Orton-Gillingham technique, a structured multisensory method of teaching reading which focuses on teaching sound-symbol (letter) relationships and the structure and organization of writing (Transcript pp. 917-21; Exhibit 108). Each student’s program includes a special language training program consisting of a daily 45 minute individual reading and tutoring program as well as proctored study halls in the afternoon and evening (Transcript pp. 912, 914-15).

        The student received passing final grades in each subject at Kildonan during the 1999-2000 school year (Exhibit 75). She achieved standard scores of 82 for Word Attack and 84 for Basic Reading on the WJ-R administered in June 2000, a marked increase over her standard scores on the April 1999 WIAT, when she achieved a standard score of 77 for reading. Her standard score of 87 for reading comprehension on the WJ-R was significantly higher than her standard score of 74 for reading comprehension on the WIAT. Her math scores remained depressed. I note that the school indicated that the student had difficulty completing her math homework in a day study hall, despite having a proctor available to assist her, because she often chose to socialize (Exhibit 78).

        Respondent argues that the requirement that children with disabilities be placed in the least restrictive alternative (LRE) precludes the student’s placement at Kildonan. Although the LRE requirement (20 U.S.C. § 1412[a][5]) applies to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2nd Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]). Petitioners’ daughter required more than a regular education program with supportive services. I find that the student’s day placement in a special education school was consistent with the LRE requirement.

        Petitioners seek reimbursement for the expense of their daughter’s five-day residential placement at Kildonan during the 1999-2000 school year. The record indicates that Kildonan is within commuting distance of the student’s home. The student’s residential placement was intended to address the fact that she did not complete her homework when she attended respondent’s schools. Although the school’s residential program offered proctored study halls to assist with homework completion (Transcript pp. 915-17), the student did not take advantage of that opportunity. Her study habits and completion of homework remained a concern and a problem for the entire 1999-2000 school year (Exhibit 105A p. 14; Exhibit 105 pp. 3, 4, 5, 7; Exhibit 105A p. 2; Exhibit 78 pp. 3, 5, 6; Exhibit 104 pp. 3, 4; Exhibit 105A p. 2), and there is nothing in the record to indicate that Kildonan took any action to address this concern. I therefore find that there is no basis for awarding reimbursement for the residential portion of the student’s placement during the 1999-2000 school year.

        The third and final criterion for an award of tuition reimbursement is that petitioners’ claim is supported by equitable considerations. The hearing officer concluded that petitioners’ request for tuition reimbursement should be reduced by two thirds because they did not notify the respondent of their concerns regarding the student’s 1999-2000 school program until their September 9, 1999 letter (Exhibit 79).

        As amended in 1997, the Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (20 U.S.C. 1412[a][10][C][iii]). The statute does not require disqualification if neither of the two actions is taken.

        Petitioners do not claim that respondent had failed to apprise them of the notice requirement. They assert that they made it clear during the 1998-99 school year and at the CSE’s annual review on June 19, 1999 that their daughter would not return to respondent’s schools in September 1999. They further assert that although written notification on September 7, 1999 was given only three days before they enrolled the student in Kildonan, rather than ten business days, respondent was not harmed by their failure to give a full ten days notice. Petitioners contend that the purpose of the notice requirement is to afford the CSE an opportunity to reconsider its recommendation and to correct any alleged deficiency in the proposed IEP. They note that respondent’s CSE did not reconvene until its next annual review in the spring of 2000.

        Having reviewed the entire record, I find that there is no evidence that petitioners informed the CSE at the June 19 meeting of their intention to enroll their daughter in Kildonan for the 1999-2000 school year. They did not formally notify respondent of their dissatisfaction with the CSE’s recommendation and their intention to enroll the student in Kildonan until September 7, 1999. The record reveals that they cooperated with the CSE and worked with respondent’s staff throughout the 1998-99 school year on their daughter’s behalf. Under the circumstances, I am not persuaded that their failure to give the requisite ten days of notice of their intent to enroll the student in a private school should defeat or reduce their award of tuition reimbursement for the 1999-2000 school year.

        I now turn to petitioners’ claim for an award of tuition reimbursement for the 2000-01 school year. The IEP that the CSE prepared for that school year (Exhibit 63) appears to accurately reflect the results of her evaluations and to state her current levels of performance. The student’s annual goals and objectives are more detailed than in the prior IEP, and they address her primary areas of academic weakness and include counseling. Shortly before the meeting at which the IEP was prepared, the CSE received information from Kildonan indicating that the student continued to struggle academically, but had made some progress with a more intense level of services during the 1999-2000 school year (Transcript pp. 675-76; Exhibit 78). Nevertheless, the CSE recommended that the student be placed in one less special education class than it had for the preceding year. The information that the CSE received from Kildonan indicated that the student continued to be resistant to completing school assignments on time, notwithstanding the help available to her in proctored study halls. The CSE’s response to this information was to again recommend that she receive counseling once a month. I find that respondent has not met its burden of proving that it had offered to provide an appropriate educational program for the student for the 2000-01 school year.

        The record does not contain standardized test results for the 2000-01 school year, but it does include the student’s grades and grade reports for the fall of 2000 (Exhibits 105B, 107 p. 2). The student’s final term grades included A- in United States history, B+ in environmental science, B in American literature, and C in algebra. When compared to her subject area grades the previous year, they show across the board improvement. The fall 2000 language training report (Exhibit 105B p. 1) indicated that she made steady progress during the term. The student’s subject area narrative reports (Exhibit 105 pp. 2-5) show that the student had made major and significant improvement in her study habits and homework. In three of her four subject area classes, including her social studies and math classes, she "always" prepared assignments and brought required material to class. In the other class, she "usually" did so. The language training report referenced above also indicated that the student put "great effort into her assignments." I find that Kildonan provided the student with an appropriate educational program for the 2000-01 school year.

        I further find that the hearing officer erred in concluding that a five day a week residential placement was not appropriate for the 2000-01 school year. Given the student’s significant problems completing her homework and assignments in previous years and her successful use of Kildonan’s proctored study hall and evening study skills resources during the 2000-01 school year, I find that its five day residential program was appropriate for the student during that school year. Accordingly, petitioners have prevailed with respect to the second Burlington criterion for the award of tuition reimbursement requested by petitioners for the 2000-01 school year.

        I also find that the hearing officer erred in reducing petitioners’ reimbursement by one third because they did not provide a copy of their educational consultant’s report to the CSE at its August 31, 2000 meeting or raise any of the issues within that report at that meeting. There was no evidence at the hearing that the report which was dated August 25, 2000, was in fact received by the petitioners prior to the August 31, 2000 CSE meeting. Petitioners allege in this appeal that they received the document "many weeks later". This being the case, it would be inequitable to limit petitioners’ tuition reimbursement because the report was not provided to the CSE at its August 31 meeting (Application of a Child with a Disability, Appeal No. 98-02). I must also note that the consultant’s report did not provide significantly new information that would have been of use to the CSE in preparing the student’s 2000-01 IEP.

        Respondent argues that petitioners are not entitled to an award of tuition reimbursement because they failed to make their daughter available for an evaluation prior to the 2000-01 school year. As noted above, there was a delay in completing the student’s triennial evaluation because the student did not show up for the psychological evaluation scheduled to take place in June 2000. The examination was performed in August, approximately two weeks before the rescheduled annual review was held. Petitioners attended the annual review, and they promptly advised the CSE at the end of that meeting of their disagreement with its recommendation. Upon the record here, I find that equitable considerations support petitioners’ claim for tuition reimbursement for the 2000-01 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that he found that petitioners were not entitled to be reimbursed for the cost of their daughter’s non-resident tuition at Kildonan during the 1999-2000 school year and resident tuition at such school for the 2000-01 school year.

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of their daughter’s non-residential tuition at the Kildonan School during the 1999-2000 school year, upon petitioners’ submission of proof of payment for such expenditures.

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the cost of their daughter’s residential tuition at the Kildonan School during the 2000-01 school year, upon petitioners’ submission of proof of payment for such expenditures.