Application of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Raymond G. Kuntz, PC, attorney for petitioner, Wendy K. Brandenburg, Esq., of counsel
Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel
Petitioner, the Board of Education of the Wappingers Central School District, appeals from a hearing officer’s decision awarding respondents tuition reimbursement for the cost of their son’s tuition at the Kildonan School (Kildonan) for the 2000-01 school year. The appeal must be sustained in part.
Respondents’ son was nine years old and attending Kildonan when the hearing began in September 2000. Kildonan, a private school in Amenia, New York, has not been approved by the New York State Education Department to provide instruction to students with disabilities.
A review of the evaluations in the record shows that the child began exhibiting developmental delays early in life. In August 1994, when he was two years old, the child was evaluated by a speech/language therapist who noted mild to moderate delays in receptive language skills, and severe delays in expressive language skills and articulation (Exhibit 32). In October 1995, an occupational therapist found that the child had severe fine motor delays (Exhibit 37). In a psychological evaluation conducted in November 1995, the child’s cognitive abilities were reported to be in the upper end of the low average range (Exhibits 39). The psychologist also noted that the child exhibited difficulties with recall and auditory processing. A 1996 speech/language re-evaluation indicated that the child continued to show severe delays in expressive language skills and articulation, as well as oral motor skills (Exhibit 41). In 1997, a developmental evaluation was conducted by a pediatrician who found that the child had a mild neurological impairment with specific weaknesses in processing, memory and retrieval skills (Exhibit 54). She also noted articulation difficulties.
In a private neuropsychological evaluation conducted in 1998, the neuropsychologist reported that the child’s general intellectual ability was in the average range with deficits in auditory processing, visuospatial perception, visual memory and visuomotor integration (Exhibit 7). Expressive language skills and general fund of knowledge were noted to be weak, but perhaps related to the child’s auditory processing deficit. The neuropsychologist concluded that her findings coupled with the child’s history were consistent with multiple specific developmental learning disabilities or processing deficits. A private educational consultant evaluated the child in 1999 (Exhibit 118). She noted that the child exhibited directional, sequencing and copying problems, and opined that he had a specific language disability, namely dyslexia. She also noted that the child’s language difficulties were immediately apparent, and that his fine motor coordination was extremely poor. In April 1999, a school psychologist evaluated the child and indicated that the results of the evaluation strongly suggested that the child had severe dyslexia, as well as characteristics of dysgraphia (Exhibit 61). She noted that the child’s reading was at a readiness level.
The private neuoropsychologist who evaluated the child in 1998 conducted a second assessment in August 2000 to determine the degree of the child’s progress and to clarify his current needs (Exhibit 137). She reported that the child’s reading skills were significantly below age expectations. His application of decoding strategies was weak and inconsistent, and his reading comprehension was an area of significant weakness. In math, the child had difficulty with word problems and items that required interpretation of text or visuals. His basic math facts were not automatic. He had limited strategies for solving novel problems and he did not recognize errors. The child also demonstrated significant weakness in written expression. He exhibited poor visual recall of word spellings, limited ability to generate ideas in writing, and his writing mechanics skills were very poor.
Due to the child’s identified needs, he began receiving services through the Early Intervention program in June 1994 (Transcript p. 906). In September 1994, when he was three years old, the child was classified as a preschool child with a disability by petitioner’s Committee on Preschool Special Education (CPSE) and was provided speech services (Exhibit 33). He attended preschool during the 1995-96 school year (Exhibit 39). In 1996, the child was classified as speech impaired, and petitioner’s child study team recommended that he remain in preschool for the 1996-97 school year (Exhibit 44). The child’s classification was changed to learning disabled in 1997. He attended kindergarten in petitioner’s school district, where he received various special education and related services. The child remained in public school for first and second grades through the 1999-2000 school year and continued to receive various special education and related services.
In April 2000, a subcommittee of petitioner’s Committee on Special Education (CSE) met for the child’s annual review (Exhibits 15, 76). It recommended that he be placed in a 12:1+1 special class with the related services of occupational therapy and individual and group speech/language therapy. The CSE subcommittee also recommended that the child receive intensive reading services. In a letter dated April 24, 2000, the child’s mother advised petitioner’s assistant coordinator of special education that she disagreed with her son’s individualized education program (IEP) and requested that the recommendation be revised (Exhibit 12). She expressed concern that her son had not made any progress with his reading program in first grade and that there was no significant progress during second grade. She claimed that he had actually regressed in certain areas. On August 2, 2000, respondents advised the CSE that they rejected their son’s IEP (Exhibit 3). They also indicated that they would place their son at Kildonan for the 2000-01 school year and requested transportation and reimbursement for tuition and associated costs.
The hearing began in September 2000 and was held on various days, concluding on July 12, 2001. The hearing officer rendered his decision on September 8, 2001. The hearing officer found that the child required a more intensive environment than the school district was able to offer in order to benefit educationally. He further found that the recommended special class was an inappropriate socialization setting and that the educational needs of the students in the proposed class were radically different from the child’s needs. The hearing officer concluded that the IEP was not reasonably calculated to provide an educational benefit to the child. He therefore found that the school district failed to meet its burden of proof demonstrating the appropriateness of its recommended program. The hearing officer also found that the parents had demonstrated that Kildonan offered a program reasonably calculated to provide an educational benefit to their son in the least restrictive environment. He further found that the equities supported the parents’ claim. Accordingly, the hearing officer concluded that the district should reimburse the parents for the cost of tuition at Kildonan.
The Board of Education asserts that the hearing officer’s determination that the child did not benefit from the public school programs is not supported by the testimony and evidence. It further asserts that the hearing officer’s findings regarding the legal sufficiency of the child’s IEP, the appropriateness of the social setting of the special class recommended by the CSE, and the extent of the child’s progress in the public school were erroneous. Petitioner also claims that the hearing officer erred in finding that Kildonan was appropriate because Kildonan does not offer any opportunities for mainstreaming. Finally, petitioner claims that the equities do not support the parents’ claim.
Petitioner contends that it recommended an appropriate program. 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 ). 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 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). 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).
An IEP must report a child’s present levels of performance and indicate his individual needs with respect to educational achievement, physical development, social development, and management needs (8 NYCRR 200.4[d][i]). The information must be sufficiently detailed to enable the CSE to prepare appropriate annual goals and objectives. The IEP reports the child’s results on the Weschler Intelligence Scale for Children - III (WISC-III), showing that he was functioning in the average range of intellectual ability. Notwithstanding his average intellectual ability, the record shows that the child has deficits in reading, spelling and written expression. With respect to reading, the IEP reports that the child scored in the 19th percentile in reading decoding, in the 14th percentile in reading comprehension, and in the 14th percentile in total reading on the Kaufman Test of Educational Achievement (KTEA) administered in February 2000. Those percentile test scores provide only general information about the child’s reading skills in relation to those of other students. They do not identify the child’s current functioning level, the specific skills he has acquired and the areas that present difficulties for him. I note that the teacher who was scheduled to provide intensive reading instruction to the child had he remained in the public school during the 2000-01 school year testified that the IEP did not contain specific information regarding the child’s current functioning in reading and that she would have to look at other test results and talk to his teacher to determine where the child started and where he was currently functioning (Transcript p. 657).
The IEP is similarly deficient in describing the child’s spelling needs. The only information regarding the child’s level of functioning in spelling is his score in the 9th percentile on the KTEA. There is no information on the IEP indicating the spelling rules the child has mastered or those with which he is having difficulty. Additionally, while the IEP reports that the child’s written language skills were unintelligible on the Test of Written Language (TOWL) administered in April 1999, it fails to include any specific information indicating the child’s current level of functioning in written language. There is no detailed information on the IEP describing the child’s abilities with respect to grammar, punctuation or sentence structure, all of which had been identified as areas of weakness. I note that petitioner’s assistant coordinator for special education and related services conceded that the IEP did not contain a current statement of the child’s functioning level in writing (Transcript p. 202). Given that the child had an early history of deficits in reading, spelling and written language and that he has received intensive reading instruction for at least two years while attending petitioner’s elementary school, I find that more detailed information regarding his needs should have been available and included on the IEP.
The child also had deficits in math. As with the child’s reading and spelling deficits, the IEP reports only the results of the KTEA showing that the child scored in the first percentile in math computation, in the second percentile in math application, and in the first percentile in total math. With the exception of indicating that the child’s problem solving skills were poor due to his language difficulties and that his addition and subtraction facts were satisfactory, there is no specific information on the IEP about the child’s current functioning level in math. The IEP does not report the child’s abilities with respect to money value, measurement or time, despite the fact that those areas had been identified as weaknesses (Exhibit 137). I find that the IEP does not reflect the evaluations that identify the child’s specific needs and does not report the child’s present levels of performance with sufficient detail.
It is critical to establish a child’s present levels of performance so that appropriate annual goals and objectives can be prepared. Once the present levels of performance and appropriate annual goals and objectives are established, the CSE must then consider what educational program would afford the child a reasonable opportunity of achieving his goals during the next school year. I must note that even in those areas where the child’s needs were identified, the IEP nonetheless was deficient. The evaluations show that the child had auditory processing, word retrieval, and memory deficits. Although these weaknesses were identified by the speech/language evaluator, there are no speech/language goals indicated on the IEP and the three speech/language objectives address only the child’s weaknesses in sentence structure and formulating sentences. I must find that the IEP does not adequately identify the child’s needs to afford a basis for preparing appropriate annual goals and selecting adequate special education services.
To address the child’s deficits in reading, the CSE subcommittee proposed that he receive an unspecified amount of intensive reading, which the IEP lists under the heading of "Supplemental Aids and Services/Program Modifications or Supports". The record reveals that the recommended program was intended to be specialized instruction on a 1:1 basis using the Orton-Gillingham methodology. As such, it was not a supplementary aid or service (8 NYCRR 200.1[bbb]). It was special education instruction, for which the frequency and duration should have been listed on the IEP (8 NYCRR 200.4[d][xi]). The child’s mother testified that at the April 2000 meeting she asked that the frequency and duration of the intensive reading services be included on the IEP, and that she asked about the frequency and duration of the intensive reading services on several occasions after the meeting, but was not given that information. In any event, I am not persuaded of the efficacy of the proposed services, in view of the child’s prior performance in the intensive reading program. For all of the foregoing reasons, I find that the Board of Education has not met its burden of proving that it had offered to provide an appropriate educational program to respondents’ son.
A board of education may be required to pay for educational services obtained for a child 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 Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 ). 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 ). Having found that petitioner failed to demonstrate the appropriateness of its recommended program, I find that respondents have prevailed with respect to the first criterion for an award of tuition reimbursement.
With respect to the second criterion for an award of tuition reimbursement, the child’s parents bear the burden of proof demonstrating the appropriateness of the services they selected (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 parents must show that the private school offered an educational program which met their son’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).
The record shows that the child has dyslexia. The professionals who evaluated and taught the child were in agreement that he required a multisensory program. The academic dean at Kildonan testified that Kildonan serves dyslexic students by addressing their language skills (Transcript p. 968). The center of the academic program at Kildonan is a 45-minute 1:1 daily tutorial period during which reading, writing and spelling skills are taught (Exhibit 128). The tutorial is presented through a systematic, multisensory, sequential, cumulative study of language. Tutors are responsible for developing the individual language skills programs for each student. In a November 2000 progress report, the child’s language training tutor noted that cursive writing was an important part of the child’s assignments (Exhibit 111). She described the spelling program she used with the child. She also noted that she was working on sentence structure, punctuation, grammar, syllabication, vocabulary and comprehension. In a June 2001 progress report, the child’s language training tutor noted that the child’s handwriting speed was increasing and that his formation of letters was more consistent (Exhibit 150). She reported that standardized tests administered in May 2001 showed a modest improvement in spelling and good gains in reading, vocabulary and comprehension. The language training tutor also noted improvement in the child’s ability to express his thoughts in writing. The child’s mother testified that Kildonan assured her that her son’s language and handwriting needs would be addressed through his tutor (Transcript p. 1244). She stated that her son had made progress with speech and that his handwriting has improved.
Math instruction at Kildonan includes a ten-minute drill period, and introduction of a new concept supplemented with worksheets (Exhibit 128). Numeration is rehearsed to an automatic level. In a June 2001 progress report the child’s math teacher noted that the child had made steady progress (Exhibit 150). The child’s mother testified that he had memorized a good portion of his multiplication tables (Transcript p. 1248). In social studies, students are provided study guides containing vocabulary and guide questions. The child’s mother testified that at the beginning of the year, her son experienced difficulties in social studies, which the school addressed by providing a tutor and changing the time of his class.
Based upon the information before me, I find that Kildonan met the child’s special education needs. It provided individual, mulitsensory instruction in reading, spelling and written language, including handwriting. It also addressed the child’s math deficits and provided additional assistance in social studies. I have considered petitioner’s argument that Kildonan is a school exclusively for students with learning disabilities and would not provide any mainstreaming opportunities. Given the nature and extent of the child’s special education needs, his prior experience in the mainstream setting in the public school and in view of the fact that the CSE did not recommend that he be mainstreamed for any instruction, I find that the parents have met their burden of proving the appropriateness of the program they obtained for their son (Application of the Bd. of Educ., Appeal No. 01-085).
The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents’ claim. Petitioner argues that the parents withheld certain evaluations from the CSE that would have assisted it in developing the child’s program for the 2000-01 school year. I am not persuaded by this argument. One of the evaluations at issue was conducted during the 1998-99 school year, and I note the child’s mother claims that the evaluation was not put into writing. The other evaluation was conducted in August 2000 after the CSE had recommended a program for the 2000-01 school year. I note that this evaluation was shared with the CSE at a January 2001 meeting.
The record shows that the child’s mother cooperated with the CSE. She frequently expressed her concerns to school staff and continued to send her son to the public school despite having serious concerns about the appropriateness of his programs (Exhibit 135). She also advised the CSE about her dissatisfaction with her son’s progress and that she disagreed with the IEP (Exhibit 12). Thereafter, she communicated with the CSE on numerous occasions, requesting additional information about the recommended program (Exhibits 19, 30, 21, 22). Additionally, she notified the district in early August that she would be placing her son at Kildonan for the 2000-01 school year and seeking tuition reimbursement. I find that the equities support the parents’ claim. Accordingly, I find that they are entitled to an award of day student tuition reimbursement.
I note that the hearing officer awarded reimbursement for the residential program as well. In their answer, respondents assert that the reference to residential costs in the hearing officer’s decision was a typographical error. While the reference to residential fees may have been inadvertent, there is nothing in the hearing record setting forth a claim for such relief. In view of the finality provisions of federal and state regulations, I will sustain petitioner’s appeal to the extent of annulling the hearing officer’s award of residential costs.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is annulled to the extent that he ordered the petitioner to reimburse the parents for the residential fees at Kildonan.