02-046

        Petitioner, the Board of Education of the Pine Plains Central School District, appeals from an impartial hearing officer’s decision awarding tuition reimbursement to respondents for their son’s education at the Kildonan School (Kildonan) during the 1999-2000, 2000-01, and 2001-02 school years. Respondents cross-appeal from his decision denying their claim for reimbursement for the 1997-98 and 1998-99 school years. The appeal must be sustained in part. The cross-appeal must be dismissed.

        Respondents’ son is 14 years old. He was initially classified as learning disabled by petitioner’s Committee on Special Education (CSE) while in the second grade during the 1995-96 school year. He has remained classified as learning disabled, and there is no dispute as to the appropriateness of that classification. The student received resource room services for the duration of the 1995-96 school year. Respondents unilaterally placed their son in Kildonan for the 1996-97 school year. In January 1997, they requested an impartial hearing to obtain an award of tuition reimbursement. The hearing officer ruled in January 1998 that the Board of Education had offered to provide an appropriate educational program to respondents’ son for the 1996-97 school year, and he denied their claim for tuition reimbursement.

        The parents appealed from the hearing officer’s decision. In Application of a Child with a Disability, Appeal No. 98-14, dated January 14, 1999, I sustained their appeal in part, finding that there were certain defects in the student’s individualized education program (IEP) for the 1996-97 school year, as well as some uncertainty about the nature of the services that were to have been provided to the student. However, I further found that the parents had not demonstrated the appropriateness of the services provided to their son by Kildonan, and denied their request for tuition reimbursement.

        The student’s parents commenced an action in the United States District Court for the Southern District of New York to review my decision. On March 1, 2000, the Court agreed with the parents, and held that they were entitled to receive tuition reimbursement for the 1996-97 school year. However, the Court limited the pendency effect of its decision to any subsequent litigation regarding the 1996-97 school year (Joint Exhibit 21 at page 16).

        The present proceeding was initiated on April 7, 2000, when respondents’ attorney requested an impartial hearing to obtain tuition reimbursement for the 1997-98, 1998-99, and 1999-2000 school years (Joint Exhibit 1). Petitioner appointed the hearing officer on April 25, 2000 (Exhibit SD-1). However, the hearing did not begin until July 13, 2000, at which time the Board of Education moved to dismiss the proceeding on the grounds that the parents’ request to review the educational programs that the CSE had proposed for all three school years was untimely. The parents cross-moved for a determination of their son’s pendency placement. It was agreed that any challenge to the CSE’s recommended educational program for the 2000-01 school year would be heard by the same hearing officer in a consolidated proceeding.

        By interim order dated August 25, 2000, the hearing officer denied the Board of Education’s motion to dismiss the proceeding. He also denied the parents’ cross-motion, without prejudice to a subsequent reconsideration of the pendency placement issue. Respondents renewed their motion for a pendency determination, which the hearing officer denied in an interim decision dated October 2, 2000. Thereafter, the parents appealed from that order. On June 18, 2001, I dismissed their appeal, upon a finding that they sought the same relief that the Court had denied them (Application of a Child with a Disability, Appeal No. 00-083). The student’s parents commenced an action in the Untied States District Court for the Southern District of New York. On December 13, 2001, the Court ordered the Board of Education to pay for the student’s tuition at Kildonan from December 6, 2001 through the duration of the hearing regarding the 1997-98 through the 2001-02 school years, and any appeal from the hearing officer’s decision (Exhibit A to petition).

        The hearing in this proceeding had been adjourned pending the determination of the parents’ appeal from the hearing officer’s denial of their request that he find that Kildonan was their son’s pendency placement. On April 4, 2001, petitioner’s CSE conducted its annual review of the student’s educational program. It reportedly did not send a completed copy of the student’s IEP for the 2001-02 school year to respondents until August 22, 2001 (Exhibit SD-34). By letter dated August 17, 2001, the student’s mother advised petitioner’s assistant superintendent for pupil personnel that she intended to keep her son at Kildonan and would seek tuition reimbursement for the 2001-02 school year (Exhibit P-A). In response to the parent’s letter, petitioner appointed another hearing officer to conduct a hearing with regard to the 2001-02 school year. That hearing began on October 23, 2001, but it was then consolidated with the hearing in this proceeding.

        The consolidated hearing on all five school years was held on January 3, 7, and 15, 2002, and February 11 and 12, 2002. The impartial hearing officer was apparently hospitalized shortly thereafter, and did not complete his decision until May 8, 2002. In his decision, the hearing officer noted that the Board of Education had asked him to re-examine his interim decision declining to dismiss the proceeding with regard to the 1997-98, 1998-99 and 1999-2000 school years. He did so, and found that the parents’ claim for the first two of those school years was barred by the equitable doctrine of laches because they had not requested an impartial hearing during either school year. The hearing officer further found that the parents’ claim for reimbursement for the 1999-2000 school year was timely because the hearing had been requested during that school year.

        The hearing officer examined the IEPs that were prepared for the 1999-2000, 2000-01 and 2001-02 school years, and found that they did not have the same deficiencies that had been found in the student’s IEP for the 1996-97 school year. He further found that the IEPs were reasonably calculated to enable the student to receive educational benefit. Nevertheless, he concluded that the parents were entitled to an award of tuition reimbursement for all three school years because there was no regular education teacher member of the CSE at the meetings when the IEPs for those years were prepared, in violation of 34 C.F.R. § 300.344(a)(2).

        I will first consider the parents’ cross-appeal from the hearing officer’s determination denying their claim for tuition reimbursement for the 1997-98 and 1998-99 school years. 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]). Although neither federal nor state statute prescribes a time period within which parents must assert their claim for tuition reimbursement, the timeliness of a claim may be considered in determining whether it is supported by equitable considerations (Application of a Child with a Disability, Appeal No. 95-32). In essence, the hearing officer found that the parents’ claim for tuition reimbursement for the 1997-98 and 1998-99 school years was not supported by equitable considerations because they delayed in asserting their claim.

        The student’s IEP for the 1997-98 school year was prepared at a CSE meeting on July 23, 1997. By letter dated August 15, 1997, the student’s mother advised the CSE chairperson that she had rejected the IEP and she asked whether the district would pay for her son’s education at Kildonan during that school year (Joint Exhibit 6). The chairperson informed her on August 25, 1997 that the school district was not responsible for the placement at Kildonan (Joint Exhibit 7). The IEP for the 1998-99 school year was discussed at a CSE meeting in June and completed on July 23, 1998. By letter dated July 1, 1998, the student’s mother rejected the IEP, and indicated that she would be seeking tuition reimbursement at Kildonan for the 1998-99 school year (Joint Exhibit 10). The chairperson responded on July 15, 1998 that the district would not pay for the student’s education at the private school (Joint Exhibit 11).

        Respondents did not request an impartial hearing to obtain tuition reimbursement for either school year until April 2000. The parents acknowledge that they had received the requisite notices each year advising them of their due process rights, including the right to challenge a district’s proposed educational program by requesting an impartial hearing. Moreover, I find that they were aware of their right to challenge what the school district had proposed for the 1997-98 and 1998-99 school years and to obtain tuition reimbursement for those years because they had done so with regard to the 1996-97 school year. While they appear to assert in their answer to the petition that they lacked access to legal representation during the period that litigation was pending on the 1996-97 claim, respondents have not offered any explanation in support of such assertion.

        The due process provisions of federal and state law exist so that parents’ concerns about their child’s educational program can be promptly resolved and necessary corrections made to the child’s IEP. Parents must raise the issue of the appropriateness of an IEP within a reasonable period of time. The issue is raised by requesting a hearing (Bernardsville Bd. of Educ. v J.H., 42 F. 3rd 149 [3rd Cir. 1994]; Phillips v. Bd. of Educ, 949 F. Supp. 1108 [S.D. N.Y. 1997]). Respondents failed to request hearings for the 1997-98 and 1998-99 school years for an extended period of time, and they have failed to offer a reasonable explanation for their delay. I concur with the hearing officer’s determination that respondents’ claim for tuition reimbursement for the 1997-98 and 1998-99 school years is not supported by equitable considerations (Application of the Bd. of Educ, Appeal No. 97-95). Therefore, I have no need to address the issues of the appropriateness of the district’s proposed educational program and the appropriateness of the educational services provided by Kildonan during those school years.

        I now turn to the 1999-2000, 2000-01, and 2001-02 school years. The board of education bears the burden of demonstrating the appropriateness of the educational 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 (LRE) (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).

        An IEP must be prepared by a CSE having each of its required members (Application of a Child with a Disability, Appeal No. 99-54). Federal regulation requires that an IEP team (CSE in New York) consist of the parents of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the child, or if appropriate, at least one special education provider of the child; and a representative of the school district qualified to provide or supervise the provision of special education (34 C.F.R. § 300.344[a]).

        Petitioner’s CSE met on June 2, 1999 to prepare this student’s IEP for the 1999-2000 school year. The student’s mother attended the meeting, but there does not appear to have been a regular education teacher present, according to the IEP that was prepared on that day (Joint Exhibit 12). The IEP provided that the student would be in regular education classes, except for two periods of resource room each day. By letter dated August 8, 1999, the student’s mother expressed concern about parts of her son’s IEP (Joint Exhibit 13). The CSE reconvened on August 30, 1999, although the mother had indicated that she could not attend the meeting (Joint Exhibit 15). The CSE that revised the student’s IEP slightly on that day included Ms. Kathy Kjetsaa (Joint Exhibit 18).

        Although Ms. Kjetsaa’s role was not indicated on the IEP, petitioner now asserts that she was a regular education teacher qualified to provide instruction to students up to and including the sixth grade. The Board of Education argues that the hearing officer erred in finding that the CSE that prepared the student’s IEP did not include a regular education teacher. Respondents contend that their son was entering seventh grade in the fall of 1999, so Ms. Kjetsaa would not have been qualified to instruct him. Petitioner disputes the contention that the student was about to enter seventh grade.

        The U.S. Department of Education has indicated that the regular education teacher member of an IEP team should be a teacher who is or may be responsible for implementing a portion of the child’s IEP, so that the teacher can participate in discussions about how best to teach the child (34 C.F.R. Part 300 Appendix A, Question 26). Even if I agree with petitioner that the student was entering the sixth grade in September 1999, I still have no basis for concluding that Ms. Kjetsaa might have been responsible for implementing at least part of the student’s IEP during the 1999-2000 school year. Although teaching assignments for the 1999-2000 school year might not have been determined when the CSE met in June 1999, petitioner is clearly in a position at this point to show whether Ms. Kjetsaa might have been responsible for implementing part of the student’s IEP if he had attended petitioner’s schools. In addition, I must point out that a CSE may create or revise an IEP in a meeting that the student’s parents do not attend, provided that the board of education has a record of its attempts to arrange a mutually agreed on time and place (34 C.F.R. § 300.345[d]). I am not persuaded on this record that petitioner has demonstrated that it attempted to arrange the second CSE meeting at a mutually convenient time and date. For both of these reasons, I find that the student’s IEP for the 1999-2000 school year must be annulled.

        The student’s IEP for the 2000-01 school year was prepared by the CSE at a meeting on June 5, 2000. The CSE recommended that the student be enrolled in seventh grade inclusion classes for all academic subjects and attend a regular education physical education class. It also recommended that he receive remedial reading instruction, which is regular education. The student’s IEP indicated that Ms. Irene Mitchell "Remedial Reading/Writing" was part of the CSE (Exhibit SD-21). Petitioner asserts that Ms. Mitchell, who is a certified English teacher in grades 7-12, attended the meeting. It identifies her as a reading teacher, but does not explain what her role would have been during the 2000-01 school year. I note that the CSE chairperson testified that Ms. Maureen Lyon would have been the student’s remedial reading teacher in seventh grade (Transcript p. 281). The student’s mother testified that no regular education teacher had been at the meeting (Transcript p. 563). Ms. Mitchell did not testify, and petitioner has not submitted an affidavit by her or anyone who was at the meeting to attest to her attendance. Under the circumstances, I find that I do not have an adequate basis to conclude that the CSE included each of its required members on June 5, 2000, and I will not set aside the hearing officer’s finding annulling the IEP.

        The CSE conducted its next annual review of the student’s program on April 4, 2001. The resulting IEP (Exhibit SD-38) and the minutes of the meeting (Exhibit SD-35) indicate that Ms. Maureen Lyon attended the CSE meeting. The CSE chairperson testified that Ms. Lyon would have been the student’s remedial reading teacher for the eighth grade (Transcript p. 281). At the hearing, Ms. Lyon was asked whether she had participated in developing the student’s IEP for the 2001-02 school year. She testified that she might have been at the April 4 CSE meeting, and assumed she was if her name appeared on a document about the meeting (Transcript p. 323). In his decision, the hearing officer did not explain why he found that there was no regular education teacher at the CSE meeting. I find that the hearing officer’s determination that the 2001-02 IEP was nullity because there was no regular education teacher at the CSE meeting must be annulled.

        On the IEP that it developed on April 4, 2001 for the 2001-02 school year, the CSE noted that respondents’ son exhibited difficulty with organization, study skills, reading, decoding speed, and writing tasks such as tests and written class assignments. The CSE recommended that the student be enrolled in regular education eighth grade classes in petitioner’s Stissing Mountain Junior High School, and that he receive multisensory reading in a group not to exceed five for 42 minutes five times per week, and "writing intervention" in a group of not more than five for 42 minutes five times per week. In addition, it recommended that he receive resource room services in a group of not more than five for 42 minutes five times per week. The CSE indicated that there should be several program modifications, including the use of books on tape, study guides, board notes given to him before lessons, an additional set of books, and a spellchecker. I note that the IEP did not indicate that a word processor would be provided to the student, although it did provide that he should use a spellchecker. The IEP also listed various testing modifications, including doubled time limits, separate location, having directions read, use of masks or markers to keep place, and having answers recorded for him. There were two annual goals for reading and two for writing. The CSE anticipated that the student would improve his word recognition, decoding and comprehension skills by one-half year. It expected that his writing mechanics and expression skills would improve by one year (Exhibit SD-38).

        Respondents’ son is bright, and reportedly has dyslexia. Although that term is somewhat imprecise, it frequently involves difficulty associating sound symbols with printed symbols, which affects a student’s ability to decode words when reading and to encode (spell) words. This student’s reading and spelling skills have been weak since at least the second grade. Although his vocabulary and overall reading skills have improved over the years, he continues to have weak word recognition and word attack skills and his spelling skills are very weak. In addition to having poor spelling skills, respondents’ son is described as having poor punctuation and capitalization skills. Although there does not appear to have been any formal test of his written expression, the brief handwritten example of his writing that is in the record indicates that his writing skills are weak. Despite these difficulties, the student has been able to progress academically, as evidenced by his post-high school grade equivalent scores and percentile scores of 89, 83, and 95 for math, science, and social studies, respectively on the Stanford Achievement Test (SAT) in February 2001 (Exhibit SD-36). He appears to have above average communication skills, as reflected by his standard scores of 125 for expressive communication and 131 for receptive communication on the Clinical Evaluation of Language Fundamentals (CELF) in June 1998. Although not raised by respondents, I must note that there is no evidence of a psychological evaluation having been performed since 1994.

        The Board of Education must present evidence to demonstrate that the services recommended by its CSE would have addressed the student’s identified needs. At the hearing, petitioner relied almost exclusively upon its assistant superintendent to demonstrate that the recommended services were appropriate. Having reviewed his testimony, I cannot conclude that he did so. Clearly, one of the student’s most significant needs is to improve his written expression. The CSE proposed that the student receive "writing intervention" on a daily basis. The record does not reveal whether writing intervention is special education, using specialized techniques, or whether it is remedial education that is part of the regular education program. It is unclear who would be responsible for seeing that the student attempted to achieve his annual goals for writing. Although resource room services could be used to address the student’s organizational and study skill difficulties, the assistant superintendent’s testimony did not establish that the resource room would be used for that purpose. I must note that the Board of Education was also required to demonstrate the similarity of needs of the students in the resource room (8 NYCRR 200.6[f][4]), and that it failed to do so. I agree with petitioner that the appropriateness of its reading program is not determined by the number of hours of training in a particular technique that its teachers have received. Nevertheless, petitioner’s case would have been greatly strengthened by having someone testify about precisely how the recommended reading program would have addressed the student’s deficits in word recognition and word attack skills. I find that petitioner has failed to meet its burden of proof with respect to the appropriateness of the educational program that its CSE recommended for the 2001-02 school year.

        The burden of proof shifts to the parents to show that Kildonan’s educational program met their son’s special education needs during the 1999-2000, 2000-01, and 2001-02 school years (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Educ., Appeal No. 93-34). The private school need not employ certified special education teachers, nor have its own IEP (Application of a Child with a Disability, Appeal No. 94-20). I must note that the hearing officer failed to address the issue, finding that respondents were entitled to tuition reimbursement because a regular education teacher had not been a member of the CSE that prepared their son’s IEPs.

        Respondents rely in part on the decision of the U.S. District Court finding that Kildonan’s program was appropriate for their son during the 1996-97 school year. They suggest that it is the Board of Education’s obligation to demonstrate that the private school was less appropriate for their son in any subsequent school year. However, a student’s needs and current levels of performance must be examined each year in determining whether a particular educational program is appropriate for the student. It is also necessary to consider the student’s progress while in a particular program in determining whether the student should remain in that program for a subsequent school year. I must base my decision upon the evidence that is in the record before me.

        The academic dean of Kildonan testified that the school uses a modified traditional curriculum and the Orton-Gillingham teaching methodology to instruct in reading and writing. He indicated that the school’s students are dyslexic. Instruction is provided in classes of seven or eight students. Respondents’ son also received individual language training in a "tutorial". Some writing instruction is provided in the daily tutorial. The academic dean testified that respondents’ son had made significant progress in reading while at Kildonan, but had made less progress in spelling (Transcript p. 473). He indicated that the student occasionally had behavioral difficulties in class, and that he required a high level of supervision to remain focused in the classroom (Transcript pp. 477-478). The academic dean opined that the student needed to remain at Kildonan during the 2001-02 school year to solidify the academic gains he had achieved.

        The standardized test results in the record indicate that the student’s word identification skills were at the mid-first grade level and his word attack skills were at a mid-second grade level in the spring of 1996. After a period of initial regression during his first year at Kildonan, the student began to make progress in both skills. In December 1999, during the first of three school years in question, the student is reported to have achieved grade equivalents of 5.1 for word identification and 5.0 for word attack. His spelling skills were found to be at the beginning third grade level. The student’s end-of-year progress report from Kildonan indicated that he had had a successful year. His language tutor noted that the student displayed an understandable reluctance to write, but had been introduced to the concept of outlining. When tested in December 2000, the student is reported to have achieved grade equivalents of 5.3 for word identification and 5.0 for word attack on the Woodcock Reading Mastery Tests (WRMT), and his spelling had improved slightly to a grade equivalent of 3.4 on the Wechsler Individual Achievement Test (WIAT).

        At the hearing, respondents offered a June 2001 report from Kildonan (Exhibit P-I). The hearing officer ultimately excluded the report from the record because respondents’ attorney had failed to disclose it to petitioner’s attorney at least five business days before the hearing. Both federal and state regulations provide that a party has the right to prohibit the introduction of evidence that has not been so disclosed (34 C.F.R. § 300.509[a][3]; 8 NYCRR 200.5[i][3][ix]). While I do not condone the attorney’s failure to comply with the disclosure requirement, I find that it would be fundamentally unfair to respondents not to consider the document, which in any event is not the sole evidence of the student’s performance at Kildonan during 2000-01.

        The student’s language teacher reported at the end of the year that his attitude had improved and he became more productive during the latter half of the year. The tutor also reported that respondents’ son had been asked to use voice recognition software to write his school papers, and that his papers were well organized and thought out. There are samples of the student’s handwritten and computer assisted writing attached to the year-end report (Exhibit P-I). The contrast between the two is quite significant, and indicates that the use of this software enables the student to express himself at a level that is more commensurate with his intelligence. The student’s other teachers also reported favorably on his progress. As noted above, the record also includes the results of the SAT that was administered to the student in February 2001. His spelling had improved to a grade equivalent of 4.8. Although the effect of the student’s language related disability is evident in such a score, the student also achieved scores at the post-high school level on the SAT, indicating that he has been able to acquire knowledge and master curriculum related skills notwithstanding his disability.

        There are no test scores or progress reports from the 2001-02 school year. Although the hearing officer excluded certain documents because of the five-day rule, I note that none of those documents related to the 2001-02 school year. In any event, Kildonan’s academic dean and a private educational evaluator testified about the student’s current needs. As noted above, the academic dean opined that the student continued to need the structure and assistance provided by the school. There is no evidence that petitioner has arranged for the student to be observed in the private school to ascertain his management needs, and there is no evidence of a psychological evaluation that might afford a basis for concluding that the student did not require the level of structure and assistance that the private school provided. I am concerned, as was the private educational evaluator, by the student’s low level of spelling skills notwithstanding years of specialized instruction at Kildonan (Transcript p. 700). Nevertheless, I find that respondents have met their burden of proof with respect to the appropriateness of Kildonan’s program for their son during the 2001-02 school year.

        I have considered the Board of Education’s claim that Kildonan is not the LRE for this student. Although the LRE requirement (20 U.S.C. § 1412[a][5]) applies to unilateral parental placements (M.S. v. Bd. of Educ., 231 F.3d 95, 105 [2d Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). I find that respondents have met their burden of proof with respect to the appropriateness of Kildonan for the 1999-2000, 2000-01, and 2001-02 school years.

        The third and final criterion for an award of tuition reimbursement is that the parents’ claim must be supported by equitable considerations. The hearing officer also failed to address this issue. The Board of Education does not specifically argue that respondents’ claim for reimbursement is unsupported by equitable considerations. At the hearing, the student’s mother was questioned about her alleged failure to provide a copy of the curriculum used by Kildonan to petitioner’s CSE, and her alleged failure to bring him to the district for testing to determine proper grade placement. Having reviewed the transcript, I find that it does not afford an adequate basis to conclude that the parents failed to cooperate with the CSE. Under the circumstances, I find that respondents’ claim for an award of tuition reimbursement for all three school years is supported by equitable considerations.

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 it found that a regular education teacher had not attended the CSE meeting at which the student’s IEP for the 2001-02 school year was prepared, and that the IEP for that year was in all other respects appropriate.