01-059

      Petitioner, the Board of Education of the Guilderland Central School District, appeals from an impartial hearing officer’s decision awarding respondent tuition reimbursement for the placement of her son at the Kildonan School (Kildonan) for the 1999-2000 school year. Respondent cross-appeals from the portions of the impartial hearing officer’s decision that denied her requests for tuition reimbursement for the 2000-01 school year and for compensatory education. She asserts that her son is entitled to compensatory education because petitioner allegedly failed to allow him to enroll in middle school in a timely manner during the 1998-99 school year. Petitioner’s appeal must be dismissed. Respondent’s cross-appeal must be dismissed.

        Before reaching the merits of petitioner’s appeal and respondent’s cross-appeal, I must address two procedural issues. First, respondent contends that petitioner failed to serve its petition within 40 days after its receipt of the hearing officer’s decision as it was required to do (8 NYCRR 279.2 [c]). While the Board of Education admits that it served its petition 43 days after receipt of the hearing officer’s decision, it asserts that no prejudice has occurred and asks that I excuse its delay and accept its petition. Appeals from hearing officers’ decisions are generally not dismissed for service irregularities, absent a showing of prejudice to the respondent (Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with Disability, Appeal No. 93-2). I find that respondent was not prejudiced by the brief delay, and I will accept the petition.

        The second procedural issue that must be addressed is respondent’s objection to several documents that petitioner has annexed to the petition pertaining to the student’s progress at Kildonan during the 2000-01 school year. Petitioner asserts that these documents labeled as Exhibit B were not available at the time of the hearing, but should be considered in this appeal. Respondent contends that the documents should not be considered because there has been no testimony about them. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). Since the evidence was unavailable at the time of the hearing, I will accept the documents labeled as Exhibit B.

        Respondent’s son was 15 years old and in the tenth grade at Kildonan when the impartial hearing began in the fall of 2000. The student was first classified as learning disabled because of deficits in his language arts and math skills while in the second grade in petitioner’s school district in the 1992-93 school year. He remained in petitioner’s schools with that classification until the fifth grade, when he went to live with his father in Schenectady, New York. The student’s father enrolled him in the Schalmont Central School District (Schalmont), in which he continued to be classified as learning disabled. While in the eighth grade at Schalmont during the 1998-99 school year, respondent’s son attended regular education classes and received 215 minutes of direct and 90 minutes of indirect consultant teacher services each week. It had been noted that the student had difficulty completing assignments, and that he needed a structured work environment (Joint Exhibits 1, 22).

        In November 1998, the student began exhibiting self-mutilating behaviors, and had difficulty eating and sleeping (11/03/00 Transcript pp. 12-14). Respondent testified that certain special education students at the school were teasing him because he was popular (11/03/00 Transcript p. 10). Around Christmas, the student went to live with respondent, but he continued to attend Schalmont’s middle school (11/03/00 Transcript pp. 30-32).

        In January 1999, a teacher noticed a rope mark around the student’s neck. After being questioned, the student admitted that he had attempted suicide (11/03/00 Transcript pp. 19-20). Respondent immediately sought the assistance of a licensed psychologist. The psychologist indicated that the student had made a serious attempt at suicide, and recommended counseling for him (Transcript pp. 461-462). A few days after his first visit with the psychologist, the student drank an entire bottle of vodka. Respondent immediately took her son to the Four Winds Hospital, where he received inpatient services for approximately one week. After discharge from that facility, he received outpatient therapy for approximately one month (11/03/00 Transcript pp. 20-24).

        In March 1999, Schalmont became aware that respondent’s son was living outside of its district boundaries, and informed respondent that it would not be able to provide educational services to the student (11/03/00 Transcript pp. 30-31). Respondent testified that she contacted petitioner’s district by telephone during the last week of March, and that she was advised that she could not enroll her son in petitioner’s schools until she provided petitioner with proof of custody of her son (11/03/00 Transcript pp. 31-33). On or about April 14, 1999, Schalmont ceased providing educational services to the student (11/03/00 Transcript p. 25).

        On April 27, 1999, respondent obtained an order from the Albany County Family Court granting her primary physical custody of her son (Joint Exhibit 24). She immediately enrolled her son in petitioner’s schools, but he did not begin school until May 7. Respondent alleges that petitioner did not have a program set up for her son, notwithstanding the fact that she had faxed her son’s 1998-99 individualized education program (IEP) at Schalmont to petitioner two to three weeks before her son began school (Transcript pp. 31-39).

        Upon entering school in petitioner’s district, the student was placed in a Behavioral Consultant Workshop and mainstreamed for certain classes. Petitioner’s Committee on Special Education (CSE) did not convene until June 1999 to recommend an educational program for him. The Behavioral Consultant Workshop teacher described her program as a special education program providing academic, social and emotional support to students either on a push-in basis with teaching assistants helping students in mainstreamed classes, or on a pull-out basis in her classroom. She testified that push-in and pull-out services were determined on a daily basis for each student depending on that student’s needs, and that respondent’s son had been mainstreamed in all his classes (Transcript pp. 18, 19).

        On June 8, 1999 a CSE meeting was held to discuss classifying the student, and to recommend his educational programs for the remainder of the 1998-99 school year and for the upcoming 1999-2000 school year. For the duration of the 1998-99 school year, petitioner’s CSE recommended that the student be classified as learning disabled and that he remain in the Behavioral Consultant Workshop and be mainstreamed for language arts, science, math, social studies, physical education, health, and music. He was also to receive 120 minutes of counseling a month and curriculum assistance five days a week. It was noted that respondent’s son was very concerned about receiving passing grades because he had transferred to the school with borderline ones. In addition, it was reported that he had low self-esteem, and would complete but not hand in assignments for fear that his answers were wrong (Joint Exhibit 15).

        For the 1999-2000 school year the CSE recommended that respondent’s son continue to be classified as learning disabled, and that he be placed in an alternative learning program (ALP) for the ninth grade. The ALP was described as a program providing a combination of self-contained and mainstreamed classes, with a modified curriculum and small classes. A special education teacher was to work closely with the regular education teachers to coordinate the curriculum as well as to support any physical, management, or social needs the student had (Transcript p. 21; Exhibit SD-31). The CSE also recommended that he be mainstreamed for core biology, physical education and art. He was to receive counseling for 120 minutes a month (Joint Exhibit 15A).

        On August 24, 1999 respondent requested an impartial hearing. She also notified petitioner that she was placing her son in Kildonan for the 1999-2000 school year (Joint Exhibit 41). The student entered the ninth grade at Kildonan as a residential student in September 1999 (Joint Exhibit 41). Kildonan is located in Amenia, New York. It uses the Orton-Gillingham methodology to instruct its learning disabled students. Kildonan has not been approved by the New York State Education Department to provide instruction to students with disabilities. At Kildonan, respondent’s son was placed in math, science, and humanities classes, as well as daily individual language training tutoring and two study halls. The afternoon study hall was typically used for math, while the evening study hall focused on practicing the language skills that the student had worked on during the day (Transcript pp. 345-346).

        In October 1999, petitioner’s CSE reconvened to discuss respondent’s concerns about her son’s 1999-2000 IEP. It made minor revisions to the IEP, but adhered to its previous recommendation that the student be enrolled in the ALP program for instruction in all academic subjects except biology (Transcript p. 131; Joint Exhibit 19). On October 22, 1999, respondent’s attorney advised petitioner that respondent still objected to her son’s IEP, and would at some future date request an impartial hearing to obtain an award of tuition reimbursement (Joint Exhibit 28).

        On November 1, 1999, one of petitioner’s school psychologists evaluated respondent’s son at Kildonan. She reported that the student had achieved a verbal IQ score of 85, a performance IQ score of 94, and a full scale IQ score of 88. The psychologist noted that his nonverbal/perceptual organization skills were more highly developed than his verbal comprehension skills and that he did not tend to take risks on the verbal items and gave up if he was not sure of an answer. On the Woodcock-Johnson Tests of Achievement-Revised, the student received standard scores of 89 (23rd percentile) for basic reading skills, 96 (39th percentile) for reading comprehension composite, 76 (5th percentile) for written language composite, and 82 (13th percentile) for math calculation. The psychologist noted that respondent’s son displayed basic reading skills within the low average range for a student his age. His performance was also within the average range for reading comprehension. However, his spelling, writing, and math skills were below average. Finally, it was noted that the student displayed difficulties with motivation and organization (Joint Exhibit 23).

        On June 5, 2000, respondent formally requested an impartial hearing (Exhibit SD-20). Approximately two weeks later, petitioner’s CSE met to develop an IEP for the upcoming 2000-01 school year. The CSE recommended that respondent’s son continue to be classified as learning disabled, and that he be placed in a 15:1+1 self-contained ALP class for English and pre-algebra and be mainstreamed for core biology, global studies II, and physical education. He was also to receive 120 minutes a month of counseling (Joint Exhibit 38). Respondent rejected the IEP and enrolled her son in Kildonan for the 2000-01 school year (Joint Exhibit 38; 11/03/00 Transcript p. 104).

        The impartial hearing began October 11, 2000 and concluded on November 3 of that year. The hearing officer rendered her decision on June 4, 2001. She found that respondent bore some of the responsibility for the delay in her son starting classes in petitioner’s district, and she denied respondent’s request for compensatory education. The hearing officer also found that petitioner’s notices of its CSE meetings did not include all of the information required by federal and state regulations, and that the IEPs that the CSE prepared for respondent’s son lacked certain information and did not have clearly stated goals and objectives. Although she found that the student did not require a residential placement and that his placement at Kildonan had not addressed all of his needs, she nevertheless awarded tuition reimbursement to respondent for the 1999-2000 school year.

        I will first address respondent’s cross-appeal from the portion of the hearing officer’s decision that denied her son an award of compensatory education. The courts have concluded that compensatory education, i.e., special education services to be provided to a student after the student is no longer eligible because of age to receive such, is a permissible remedy under the Individuals with Disabilities Education Act (IDEA), when the student has been excluded from school or denied appropriate educational services for an extended period of time (Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Lester H. v. Gilhool, 916 F.2d 865 [3rd Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749 [8th Cir. 1986]). Although I do not condone petitioner’s delay of five school days in providing a program after receipt of the Family Court order, I find that respondent’s son is not eligible for an award of compensatory education because he has not been denied a free appropriate public education (FAPE) for an extended period of time.

        I now address petitioner’s claim that the hearing officer erred in finding that it did not prove that it had offered to provide an appropriate placement to respondent’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]). 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 petitioner cannot meet its burden of proof with respect to the student’s IEP because the group that prepared the IEP for the 1999-2000 school year did not include each of the required members. I note that at the hearing, petitioner’s administrator of special services asserted that a subcommittee of the CSE met on June 8, 1999 (Transcript p. 177). The notice sent to respondent informing her of the meeting did not indicate that it would be a meeting of a CSE subcommittee (Exhibit SD-32). The Regulations of the Commissioner of Education prohibit subcommittees from performing the functions of the CSE when a student is considered for initial placement in a special class (8 NYCRR 200.3[c][4]). Here, the student had just re-entered petitioner’s district and the purpose of the meeting was to discuss placement in a special class for both the 1998-99 and 1999-2000 school years.

        Even if I were to conclude that the student was already in a special education class because of his enrollment in the Behavior Consultant Workshop, I would still be compelled to find that the subcommittee did not include each of its required members. The three individuals who met with respondent on June 8, 1999 were the student’s special education teachers, a social worker assigned to the Behavior Consultant Workshop, and an art teacher. A subcommittee must include a representative of the school district who is qualified to provide, administer or supervise special education, other than the student’s special education teacher (8 NYCRR 200.3[c][2][ii]). Although petitioner’s administrator of special education asserted at the hearing that the art teacher was serving as the district representative member at the meeting, I find that the record does not establish the art teacher’s qualifications to do so, and that the IEP that was developed at the June 8, 1999 meeting was a nullity (Application of a Child with a Disability, Appeal No. 01-010).

        As noted above, the CSE convened in October 1999 to address respondent’s concerns with regard to her son’s IEP for the 1999-2000 school year. However, federal regulation requires petitioner to have a valid IEP in effect at the beginning of each school year (34 C.F.R. § 300.342). Petitioner’s failure to have a valid IEP in effect at the beginning of the school year requires me to find that it has not met its burden of proving that it had offered to provide an appropriate educational program to respondent’s son for the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 00-095; Application of a Child with a Disability, Appeal No. 00-084).

        Respondent is seeking tuition reimbursement. A board of education may be required to pay for educational services obtained for a student by the student’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 (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]. The failure of a parent to select a program approved by the state educational agency is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Respondent has prevailed with respect to the first criterion for an award for tuition reimbursement.

        Respondent bears the burden of proof regarding the appropriateness of the services that she obtained for her son at Kildonan for the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. 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 that met the student’s special education needs (Burlington, 471 U.S. at 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 record shows that the student had modest reading needs, as evidenced by his standard scores of 89 for basic reading and 96 for comprehension on the Woodcock-Johnson-Revised in November 1999 (Joint Exhibit 23). His math skills were slightly less developed, but were still in the slightly below average range. The student’s writing and spelling were in the below average range. He evidenced significant organizational difficulties, and as indicated above, he had serious emotional problems.

        The dean of Kildonan testified that respondent’s son had a "rocky start" at the school in the 1999-2000 school year. He reported that the student came to the school with the feeling that he was not capable of doing his schoolwork (Transcript p. 352). The student’s grades for the 1999-2000 school year at Kildonan were an F in math, a D- in humanities, and a C in science. Throughout the school year the student’s teachers noted that he would not hand in or complete homework assignments, he had a negative attitude about school and he did not adequately prepare for tests and quizzes.

        In June 2000, the student’s language training tutor reported that respondent’s son had made moderate gains in his ability to decode multi-syllabic words and to spell. She also reported that his writing composition skills had improved significantly. Standardized test results from the fall of 1999 and May 2000 indicate that his word identification skills improved from a grade equivalent of 6.8 to 8.8, and his spelling improved from a grade equivalent of 5.9 to 7.3. However, his reading comprehension declined from a grade equivalent 6.8 to 5.2 in May 2000. Notwithstanding his failure to complete assignments in math, and his consequent low grade in that course, I note that the student went from grade equivalents of 5.0 for computation and 5.7 for application in the fall of 1999 to a composite math grade equivalent of 7.8 in the spring of 2000. Overall, I find that the student made academic progress at Kildonan, notwithstanding his significant emotional difficulties. Respondent did not inform Kildonan that her son had previously attempted suicide since she feared that Kildonan would not take him (11/03/00 Transcript pp. 61-66). Consequently, there does not appear to have been any specific action taken by the school to meet the student’s emotional needs. Nevertheless, I find that the student appeared to function effectively in the environment that Kildonan provided to him during the 1999-2000 school year, even without counseling which he clearly needed.

        The hearing officer in awarding tuition reimbursement nevertheless found that the student did not require so restrictive a placement as Kildonan. I must therefore consider whether the student’s placement there was consistent with the requirement that he be placed in the least restrictive environment (M.S. v. Bd. of Educ., 231 F. 3d 96 [2d Cir. 2000]). In doing so, I note that the least restrictive environment requirement (34 C.F.R. § 300.530) must be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). Although this student did not have a severe learning disability, his disability required that he receive specialized instruction in a supportive environment, which Kildonan appears to have provided. The student was enrolled as a residential student at Kildonan. A residential placement is among the most restrictive of placements. However, there is no evidence in the record of a closer day placement in which respondent could have enrolled her son. Under the circumstances, I find that respondent has met her burden of proving that her son’s placement in Kildonan was appropriate and consistent with the least restrictive environment requirement (Application of the Bd. of Educ., Appeal No. 99-94).

        Respondent must also show that her claim for reimbursement is supported by equitable considerations. I am concerned by respondent’s withholding of certain information about her son from petitioner by limiting her consent to what Schalmont could release to petitioner (Joint Exhibit 8). However, I note that petitioner did obtain the information in time to prepare the student’s IEP. Accordingly, I find that respondent is entitled to be reimbursed for the cost of her son’s residential placement at Kildonan for the 1999-2000 school year.

        Finally, I will address respondent’s appeal regarding the impartial hearing officer’s denial of an award of tuition reimbursement for the 2000-01 school year. Respondent challenges her son’s IEP for that school year on a number of grounds. She argues that the CSE lacked an adequate basis for recommending a more restrictive placement for her son, i.e., the ALP program, because it had failed to evaluate her son. I find that her argument is without merit because the CSE’s school psychologist evaluated the student in November 1999.

        Having reviewed the student’s IEP, I find that it accurately reflects the results of the student’s most recent evaluations. It reports the student’s present levels of performance and individual needs across the four areas mandated by 8 NYCRR 200.4(d)(2)(i), albeit in brief terms. I note that the case profile attached to the IEP provides more detail. I find that the IEP adequately describes the student’s needs. An IEP must also have annual goals that are related to a student’s needs. The first goal on the IEP was to develop an ability to use school resources to address difficulties and reduce frustration. One of the supporting objectives for this goal was to have the student ask questions of his teacher when he did not understand material presented to him. The next three goals related to mathematics, oral and written language, and reading comprehension. I note that one of the supporting objectives dealt specifically with spelling, which was another area of weakness. Among the mastery criteria for the annual goal for math was the rate at which the student completed his homework assignments, which is especially appropriate in view of what happened at Kildonan during the 1999-2000 school year.

        An IEP must also include appropriate special education services to afford the student a reasonable opportunity to achieve his IEP goals and objectives. The proposed program offered a highly structured program with small class sizes and a modified curriculum. These were aspects which respondent testified were necessary for her son. In addition, petitioner’s CSE recommended that the student be mainstreamed for two core courses that would have allowed him to interact with regular education students. Respondent had been concerned about the opportunities her son had to interact with regular education students. I must also note that the proposed program addressed the student’s writing, language, and math deficits by recommending that he be in self-contained classes for these subjects, and test modifications were given to address his writing, spelling and auditory processing deficits. The proposed program also included 120 minutes of counseling per month. I note that the IEP annual goal for counseling indicated that the student could request additional appointments with the counselor beyond the 120 minutes per month specified in the IEP.

        The Board of Education is required to place respondent’s son in the least restrictive environment. Although I have found that respondent should be reimbursed for her expenditures for a residential placement during the 1999-2000 school year, it does not follow that the student required a residential placement for the 2000-01 school year. The educational program that petitioner offered to provide during the 2000-01 school year would have addressed this student’s special education needs in the least restrictive environment. For these reasons, I find petitioner has met its burden of proof with respect to the appropriateness of its proposed program for the 2000-01 school year.

        Having determined that petitioner has met its burden of proof with respect to the appropriateness of the program that its CSE recommended for the 2000-01 school year, it is not necessary that I address the second or third criterion of an award for tuition reimbursement. Finally, I have considered respondent’s other claims and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.