02-052

        Petitioner, the Board of Education of the Hyde Park Central School District, appeals from the decision of an impartial hearing officer which granted respondent's request for an award of reimbursement for the cost of her son's tuition at the Kildonan School (Kildonan) for the 2001-02 school year. The appeal must be dismissed.

        The child was seven years old and attending Kildonan when the hearing began in December 2001. The child exhibits severe phonological awareness deficits due to poor speech sound discrimination. He also has significant articulation delays due to motor planning and oral motor weaknesses (Exhibits 26, 30, 46). These deficits limit his acquisition of reading and writing skills (Exhibit 46). Additionally, the child is sensitive to his academic inadequacies and experiences distress if he perceives exposure is imminent (Exhibit 46). The child's hearing is reported to be within normal limits for pure tones and speech (Exhibit 50).

        The child was living in Connecticut when he was referred to that state's Birth to Three Program in June 1996 because of concerns related to his language development (Exhibit 1). He received early intervention services until the age of three, when he began attending a special education preschool and received speech and occupational therapy (Exhibits 5, 15). He attended kindergarten in public school in Danbury, Connecticut during the 1999-2000 school year. In May of that year, a planning and placement team (PPT) meeting was held, and the child was recommended for speech/language therapy (Exhibit 19). In the fall of 2000 when the child was in first grade, the PPT classified him as learning disabled, and recommended that he be placed in a regular education classroom with resource room support and speech/language therapy (Exhibits 34). In early February 2001, a private tutor began working with the child, and also provided training to respondent to work with her son at home (Transcript pp. 435-36). Later that month, respondent withdrew her son from the public school, and she provided home instruction to him while he continued to receive tutoring (Transcript pp. 209-10, 341).

        Also in February 2001, respondent submitted an application for her son to attend Camp Dunnabeck, Kildonan's summer camp (Exhibits 57, FF). By letter dated April 25, 2001, the child's parents were advised by the director of admissions at Kildonan that their son had been accepted at Kildonan for the 2001-02 school year (Exhibit MM). Respondent did not submit an application to Kildonan for the 2001-02 school year (Transcript p. 677). The child attended Camp Dunnabeck during the summer of 2001. In a progress report from Camp Dunnabeck, the child's language training tutor reported that when the camp began the child knew all of the consonant names and sounds, but was uncertain of some short vowel sounds (Exhibit 40). By the end of camp, he could identify and isolate short vowel sounds in closed syllable words. He continued to have difficulty blending individual sounds into words and his ability to recognize rhyming words was inconsistent. The language training tutor described the Orton-Gillingham approach as a systematic and sequential introduction of sound-symbol relationships that promotes greater phonological awareness. She indicated that language concepts are taught using multisensory techniques to strengthen visual and auditory memory for language. The tutor noted that the child had benefited from individual tutoring using the Orton-Gillingham approach, and recommended that he continue to receive such instruction.

        At the end of July 2001, respondent and her family moved to petitioner's school district (Transcript pp. 346-47). On August 14, 2001, respondent delivered her son's school records to petitioner's district office, completed a pupil registration form and requested transportation for her son to and from Kildonan (Exhibit B; Transcript p. 743). At that time, one of petitioner's student records assistants advised respondent that someone would be contacting her to schedule a Committee on Special Education (CSE) meeting (Transcript p. 745). One week later, respondent contacted the school district and was advised that transportation had been arranged, but that no CSE meeting would be held (Transcript p. 369). On August 22, 2001, respondent sent a check to Kildonan to be applied toward her son's tuition for the 2001-02 school year (Transcript p. 186). The student entered Kildonan in September 2001.

        By letter dated November 11, 2001, respondent requested an impartial hearing seeking tuition reimbursement for the 2001-02 school year. The hearing began on December 21, 2001 and was conducted over six sessions, concluding on February 28, 2002. In January 2002, while the hearing was pending, petitioner's CSE met to develop an individualized education program (IEP) for the child (Exhibit 54). The CSE classified the child as learning disabled and recommended that he be placed in a regular education classroom with resource room services for language arts and writing, direct consultant teacher services and group speech therapy. The CSE further recommended a functional behavioral assessment, as well as evaluations for counseling and occupational therapy.

        The hearing officer rendered his decision on April 25, 2002. He found that petitioner's CSE had failed to recommend an appropriate program in a timely manner for the child for the 2001-02 school year. He further found that respondent established that the program she obtained for her son for the 2001-02 school year was appropriate to address his special education needs. The hearing officer also determined that equitable considerations did not weigh against an award of tuition reimbursement. He ordered the district to reimburse the parent for the child's tuition at Kildonan.

        The Board of Education appeals from the hearing officer's decision. It argues that the hearing officer erred in finding that it did not make a free appropriate public education (FAPE) available in a timely manner. It also argues that respondent failed to meet her burden of showing that Kildonan was appropriate, and that equitable considerations do not support her claim.

        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 Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). Kildonan has not been approved by the New York State Education Department to provide education to children with disabilities. However, 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 Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). 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 the recommended program is reasonably calculated to confer educational benefits (Bd. 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]).

        As a threshold matter, the Board of Education claims that respondent's request for tuition reimbursement should be denied because she does not meet the requirements set forth in section 1412(a)(10)(C) of the Individuals with Disabilities Education Act Amendments of 1997 (IDEA '97), which provides, in part, that:

[i]f the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(20 U.S.C. § 1412[a][10][C][ii]).

        The Board of Education contends that the child had not previously received special education or related services under its authority, and that section 1412(a)(10)(C)(ii) of IDEA '97 would provide respondent a remedy only against Danbury Public Schools. However, State Review Officers have declined to construe this section of IDEA '97 as limiting the authority of a hearing officer, review officer, or court under section 1415 of IDEA '97 to grant an award of tuition reimbursement to the parents of a child who has not previously attended a public school, absent convincing evidence to the contrary of Congressional intent to do so (Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-25). I continue to adhere to that position and will not construe section 1412(a)(10)(C)(ii) of IDEA '97 as limiting the authority of a hearing officer, review officer, or court under section 1415 of IDEA '97 to grant an award of tuition reimbursement to the parent of a child who has not previously received special education or related services under the authority of the public school district in which the child resides.

        Petitioner further argues that there is nothing in the record to support a finding that it failed to make a FAPE available to the child in a timely manner prior to his enrollment at Kildonan. It asserts that the child was enrolled in Kildonan as of August 22, 2001 at the latest, only one week after he was registered with school district.

        The Office of Special Education Programs (OSEP) of the United States Education Department has opined that a school district which receives a transfer student from another state is not required to adopt the student's most recent evaluations, or to implement the student's most recent IEP from the school district in which the student previously resided (OSEP Memorandum 96-5, 24 IDELR 320). Rather, the student's new school district of residence must determine if the student has a disability, and if the student's evaluations and IEP from the other state meet the education standards of the new state of residence. If the student's new school district of residence elects not to adopt the student's previous evaluations, it must evaluate the student without undue delay and provide proper notice to the student's parent, who must consent to the evaluation before it can be performed. A CSE meeting must be convened no later than 30 calendar days after the student has been found to need special education services. If the student's parent wishes to challenge the CSE's recommendation, and the parent and the school district cannot agree on a placement during the pendency of the proceeding, the school district is not required to implement the student's prior IEP, or to approximate the services contained in the former school district's IEP during the pendency of the review proceedings. Instead, OSEP opined that the school district must place the student in its regular education program. Alternatively, if the school district accepts the determination that the student has a disability and adopts the evaluation from the other state, the school district must provide notice to the student's parent.

        Upon the child's transfer to petitioner's school district, petitioner was required to determine if the child had a disability, and if the child's evaluations and IEP from Connecticut met New York State requirements. There is no indication in the record that this was done. The child's family moved to petitioner's school district in the summer of 2001 and, on August 14, 2001, respondent registered her son at petitioner's district office. The following week, respondent was advised that no CSE meeting would be scheduled, and petitioner took no action to convene a CSE meeting until the first day of the hearing in December 2001. I find that petitioner failed to develop an IEP within a reasonable period of time after the child had been registered at the district office, and therefore did not make a FAPE available in a timely manner as required by 1412(a)(10)(C)(ii) of IDEA '97.

        Petitioner argues that a FAPE was available to the child upon enrollment at the school district whether as a continuation of his IEP from Connecticut or as a regular education student in accordance with OSEP Memorandum 96-5. However, as discussed above, petitioner failed to select one of the options set forth in OSEP Memorandum 96-5 within certain prescribed time frames and to provide timely notice to respondent regarding how it intended to proceed. Based upon the information before me, I find that respondent's request for tuition reimbursement should not be denied for failing to meet the requirements of section 1412(a)(10)(C)(ii) of IDEA '97.

        As set forth above, the first criterion for an award of tuition reimbursement is whether the services offered by petitioner were appropriate. 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 have already determined that petitioner failed to develop an IEP for the child within a reasonable period of time. A board of education’s failure to provide a child’s parents with a timely IEP may afford a basis for concluding that the board did not offer an appropriate placement to the child (Applications of the Board of Educ. and a Child with a Disability, Appeal Nos. 00-091 and 01-018; Application of a Child with a Disability, Appeal No. 00-084; Application of a Child with a Disability, Appeal No. 99-81). Under the circumstances, I must find that petitioner cannot meet its burden of proving that it had offered to provide an appropriate placement to respondent's son for the 2001-02 school year. Accordingly, respondent has satisfied the first criterion for obtaining an award of tuition reimbursement.

        A student's parent bears the burden of proof with regard to the appropriateness of the services 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 parent must show that the private school offered an educational program which met the student'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). While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]).

        The record shows that the child exhibits severe phonological awareness deficits. He also exhibits feelings of inadequacy because of these deficits. The academic dean at Kildonan testified that the child is one of seven students in his subject matter classes (Transcript p. 533). He further testified that the Orton-Gillingham approach is used in the child's instruction (Transcript p. 542). He described Orton-Gillingham as a total language approach and indicated that it includes phoneme awareness training (Transcript p. 544). The academic dean at Kildonan further testified that the child receives a 45-minute 1:1 language skills tutorial each day (Transcript pp. 532-33). The child's language tutor reported that she was working with the child on naming and identifying vowels without prompts (Exhibit 41). She further reported that the child knew the short vowel sounds, but at times confused the sounds for "e" and "o". He was able to sound out and read three letter words that begin and end with consonants. The academic dean at Kildonan also testified that the structure and predictability of the curriculum helps to address the emotional component of the child's disability (Transcript p. 572). He acknowledged that counseling services were not offered to the child at Kildonan, but indicated that given the child's progress and his increasing comfort in the classroom, intense counseling services were not warranted (Transcript p. 545). He also stated that while no written behavior intervention plan for the child was in place, the child's teacher and tutor met regularly to discuss his behaviors, such as reticence to perform reading and writing tasks, to help him perform appropriately in all settings (Transcript pp. 573, 574).

        The record also shows that the child made progress at Kildonan. The child's language tutor and classroom teacher reported that he is more willing to attempt tasks (Transcript p. 535). In a January 2002 re-evalaution, the private speech/language therapist noted that the child had demonstrated improvements in intelligibility, motor planning and specific sound production. Based upon the information before me, I find that Kildonan met the student’s educational needs. It provided small, structured classes with teachers who used a multisensory approach in their instruction. It offered intensive 1:1 tutoring to address the child's severe language deficits. It provided an educational environment that enabled the child to attempt tasks he had previously been reticent to undertake. Although it did not offer speech therapy, it does follow that he was not receiving an educational benefit.

        Respondent asserts that Kildonan was too restrictive a placement for the child. Although the least restrictive environment requirement applies to unilateral parental placements, 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]). Given the severity of the student's disability and his sensitivity to exposure of his academic inadequacies, I find that the child's placement in Kildonan is consistent with the purposes of the IDEA. I conclude that the parents have prevailed with respect to the second criterion for an award of tuition reimbursement

        The third and final criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim. I am not persuaded by petitioner's assertion that the record supports a finding that the parent had no intention of sending her son to the public school during the 2001-02 school year. The child's mother testified that it was her intention to allow her son to attend public school when she registered him with the school district on August 14, 2001 (Transcript p. 356). She further testified that she requested transportation to Kildonan because she had been advised that a transportation request must be submitted 30 days prior to the beginning of school, and she was unsure what type of program would be recommended for her son (Transcript p. 356). At the end of October and early November 2001, respondent attempted to contact the CSE chairperson because her son's IEP from Connecticut should have been reviewed by October 31, 2002 (Transcript pp. 369-73).

        Petitioner also argues that tuition reimbursement should be denied because no prior notice was provided to the district. Reimbursement of tuition for a unilateral placement may be reduced or denied if the parent failed to provide written notice, within ten days prior to removal of their child from the public school, of their concerns regarding the IEP and their intent to enroll the child in private school at public expense (20 U.S.C. § 1412[a][10][C][iii]). As petitioner failed to develop an IEP within a reasonable period of time after the child's registration with the school district, there was no IEP in place for the parent to reject. I note that the statute upon which petitioner relies has an exception when the parent was not notified by the school district of the requirement of providing ten days notice before removal. There is no evidence in the record that petitioner informed respondent of the requirement.

        Additionally, there is no indication in the record that respondent failed to cooperate with the CSE. In fact, she initiated the contact to arrange for a CSE meeting. The fact that respondent signed an agreement with Kildonan for the 2001-02 school year in August 2001 does not disqualify her from receiving an award of tuition reimbursement. I find that equitable considerations support the parent's claim, and that there is no basis in the record for me to direct that her tuition award be reduced or denied.

        I do not consider the appropriateness of the January 2002 IEP. For tuition reimbursement purposes, the relevant IEP is the IEP that the parent received when she placed her son in a private school (Application of a Child with a Disability, Appeal No. 98-14). At the time respondent placed her son at Kildonan, no IEP was in place. I have considered petitioner's other claims, which I find to be without merit.

THE APPEAL IS DISMISSED.