02-080

        Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at the Kildonan School (Kildonan) for the 2001-02 school year. Respondent, the Board of Education of the Arlington Central School District (district), cross-appeals from the hearing officer's determination requiring it to reimburse petitioners for their son's educational expenses at Kildonan for the 2000-01 school year. The appeal must be sustained. The cross-appeal must be dismissed.

        At the time of the hearing, petitioners' son was 17 years old, classified by respondent's Committee on Special Education (CSE) as learning disabled, and attending ninth grade at Kildonan, where he was unilaterally placed by his parents. Kildonan is a nonpublic school which has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. Petitioners do not challenge the CSE's classification of their son as learning disabled.

        The prior educational history of petitioners' son is set forth in Application of a Child with a Disability, Appeal No. 00-075 and Application of a Child with a Disability, Appeal No. 00-023. On November 14, 2002, the U.S. District Court for the Southern District of New York dismissed an action challenging the decision in Appeal No. 00-075, which awarded tuition reimbursement to petitioners for their son's attendance at Kildonan during the 1999-2000 school year (Arlington Cent. Sch. Dist. v. D.K., ___ F. Supp.2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). There is no evidence in the record of any further appeals concerning the 1999-2000 school year.

        During the review proceedings relating to the 1999-2000 school year, respondent's CSE continued to develop individualized education programs (IEPs) for the student for the 2000-01 and the 2001-02 school years recommending placement in its public school system (Exhibits 1, 20), and petitioners continued to enroll their son at Kildonan. The appropriateness of those two IEPs and petitioners' request for tuition reimbursement for those two years at Kildonan are the subjects of this appeal.

        On August 24, 2000 the CSE met and recommended that for the 2000-01 school year petitioners' son be placed in the eighth grade at the district's LaGrange Middle School (Exhibit 20). The recommended program included a 15:1 special education class for five periods per day, one period per day of resource room services, and two 40-minute sessions of individual counseling per month (Exhibit 20). The IEP indicated that after considering a regular classroom setting with support services, the CSE rejected it and recommended instead that placement in a special class constituted the least restrictive environment (LRE) appropriate to the student's needs. The CSE noted, however, that the student's strength in math would be re-evaluated after the first marking period to determine whether it should reconsider his math class placement (Exhibit 20; Transcript pp. 326-27). The IEP also left two periods a day free for participation in nonacademic regular education courses, such as health, art, music, and technology (Transcript p. 365). On the student's IEP, the CSE explained that the student's disability affected his ability to progress in the general curriculum in that "although [the student]'s overall intellectual functioning is within the average range, he has reading, spelling and comprehension deficits that negatively impact his ability to keep pace with grade-level expectations" (Exhibit 20). The IEP also included testing modifications allowing for extended time to complete exams, a spelling waiver, verbal testing, a flexible setting, and use of a calculator, and the CSE recommended assistive technology, including use of a Franklin Speller/Audio, a tape recorder and use of recorded texts. The regular education teacher member of the committee was a kindergarten teacher who was not qualified to teach at the middle school level (Transcript pp. 369-370). In reaching its conclusion, the CSE relied in part upon testing done by its evaluator, who administered tests to the student the day before the meeting (Exhibit 20). The scoring and written results of the testing were not completed at the time of the IEP meeting (Transcript pp. 375, 383). The evaluator appeared before the committee the day after the testing with "informal" review notes on the student's results, which the CSE relied upon in developing the student's 2000-01 IEP (Exhibit 20; Transcript pp. 611, 613).

        Petitioners did not accept the CSE's recommended educational program. By letter dated August 28, 2000, petitioners informed the district that the student would be enrolled in Kildonan for the 2000-01 school year, and they "reserve[d] the right" to request an impartial hearing for the purpose of obtaining an award of tuition reimbursement until after the completion of the ongoing proceedings concerning the 1999-2000 school year (Exhibit A). The student remained at Kildonan for the 2000-01 school year.

    The following year, on July 30, 2001, the CSE met to determine the student's placement for the 2001-02 school year. The CSE recommended that the student be placed in the ninth grade at Arlington High School and be mainstreamed in all classes except English and global studies, for which the student would be placed in a 15:1 special education class for two periods per day. The CSE also recommended one period per day of resource room services and one period per day of a "Fundamentals of Reading" class in a small group "to address his reading/writing needs" (Exhibit 1). Otherwise, the IEP contained the same explanation of how the student's disability affected his progress in the general curriculum, the same testing modifications and assistive technology, and essentially the identical IEP goals as the 2000-01 IEP.

        By letter dated August 19, 2001, petitioners rejected the recommended program, informed the district that the student would be enrolled in Kildonan for the 2001-02 school year, and "reserve[d] the right" to request an impartial hearing to obtain tuition reimbursement for that year pending the resolution of the 1999-2000 claim (Exhibit B).

        On November 28, 2001, thirteen days after the State Review Officer's decision was rendered on petitioners' claim regarding the 1999-2000 school year, petitioners formally requested a hearing on the 2000-01 and 2001-02 IEPs (Exhibit D). The hearing began on January 18, 2002, whereupon petitioners immediately asked the hearing officer for an interim decision regarding the student's pendency placement. On February 1, 2002 the hearing officer rendered a decision concluding that pendency for the 2000-01 school year was moot, and he refused to reach the issue of the student's pendency placement for the 2001-02 school year. Petitioners appealed from the interim decision, and in a decision dated December 19, 2002, the State Review Officer annulled the hearing officer's decision and determined that Kildonan was the student's pendency placement for the duration of the current proceedings (Application of a Child with a Disability, Appeal No. 02-023).

        The hearing concluded on June 11, 2002. In a decision dated July 30, 2002, the hearing officer found that for the 2000-01 school year, the district failed to offer an appropriate and timely IEP and that Kildonan's program for that year was appropriate. Accordingly, he awarded petitioners tuition reimbursement for that year. On the 2001-02 claim, however, the hearing officer found that the district's IEP did offer an appropriate program reasonably calculated to meet the student's needs, and he further found that Kildonan's program was inappropriate because all of the student's teachers lacked state certification and because the student's needs at the high school level required programming that would enable him to meet Regents standards. He also determined that at the high school level the Orton-Gillingham method of instruction used at Kildonan was not necessary to the student's progress. Accordingly, the hearing officer denied tuition reimbursement for the 2001-02 school year.

        Petitioners assert that the educational program recommended by respondent's CSE for the 2001-02 school year did not satisfy the requirements of federal and state law because (1) the district failed to timely provide a copy of the student's IEP to the parents, (2) the CSE was not properly composed because the regular education teacher member was unqualified, and (3) the program contained in the district's 2001-02 IEP was not reasonably calculated to confer educational benefits to the student. Respondent cross appeals asserting that the award of tuition reimbursement to the petitioners for the 2000-01 year should be annulled because petitioners' claim for that year should have been barred by laches and because the district offered an appropriate IEP for the student for the 2000-01 school year.

        Respondent contends that petitioners' claim for tuition reimbursement for the 2000-01 school year should have been barred by laches because they failed to timely request an immediate hearing on the 2000-01 IEP. Laches is an equitable defense which may be asserted when a party, by omission or neglect, fails to assert a right in a timely fashion and that lapse of time causes prejudice to the adverse party (Conopco Inc. v. Campbell Soup Co., 95 F.3d 187 [2d Cir. 1996]). Consistent with the equitable nature of laches, courts typically decline to apply the doctrine when the party against whom it would be applied can show good cause as to why it should not be applied (id. at 191). The issue is whether petitioners unreasonably delayed in asserting their claim for tuition reimbursement to the point that it would be inequitable to require respondent to reimburse petitioners (Application of a Child with a Disability, Appeal No. 95-28). Failure to request an impartial hearing within a year without mitigating causes has been found to be an unreasonable delay (see Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149 [3rd Cir. 1994]; Application of a Child with a Disability, Appeal No. 99-97). However, when parents have spoken to the school district and expressed their dissatisfaction with a new IEP and they have informed the district of their intent to enroll their child in a private school and seek tuition reimbursement while in the middle of a hearing on a preceding year, such communication has been found to be sufficient to put the district on notice (Application of a Child with a Disability, Appeal No. 01-098).

        In the instant case, the CSE developed the student's 2000-01 IEP on August 24, 2000 (Exhibit 20). Although petitioners did not formally request an impartial hearing on that IEP until November 28, 2001 (Exhibit D), they did, in a letter dated August 28, 2000, inform the district of their dissatisfaction with the 2000-01 IEP, their intent to enroll their son at Kildonan for the upcoming year, and their intention to seek tuition reimbursement for that year (Exhibit A). In that letter, petitioners "reserved the right" to request an impartial hearing as soon as the proceedings on their 1999-2000 claim were completed, claiming it was financially impossible to engage in two proceedings simultaneously. I find that under these circumstances, petitioners gave the CSE timely notice of their intent to seek reimbursement for the 2000-01 school year within four days of the development of the 2000-01 IEP and did not unreasonably delay in requesting a hearing. Therefore, I find that petitioners' claim pertaining to the 2000-01 school year was properly before the hearing officer and not barred by laches (Application of a Child with a Disability, Appeal No. 01-098). I now turn to the merits of the two claims for tuition reimbursement.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359 [1985]). The parent's failure to select a program 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]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-029).

        To meet its burden of showing that it had offered to a provide a free appropriate public education (FAPE) to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). For procedural violations, relief is warranted only if the violations affected the student's right to a FAPE (J. D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of FAPE can occur if the procedural violations compromised the development of an appropriate IEP, depriving the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31621158 [S.D.N.Y. 2002]). The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate educational 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. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child with a Disability, 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

        An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]).

        An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]).

        Applying these criteria, the record reveals that for the 2000-01 school year, respondent failed to meet the first prong of Burlington, in that it failed to provide, either procedurally or substantively, an appropriate program for the student.

        First, respondent's CSE chairperson admitted that the regular education teacher who attended the CSE meeting to formulate the IEP was a kindergarten teacher who was not qualified to teach at the middle school level (Transcript pp. 374, 369-70, 382). The IDEA and state and federal regulations provide that the CSE must include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]). In its interpretation of the regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP" (see 34 C.F.R. Part 300, Appendix A, Section IV, Question 26). Although a board of education cannot always be expected to know who the student’s regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but is also teaching in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).

        In the present case, the student was being considered for a regular education class in mathematics. Such recommendation was delayed until a re-evaluation after the first marking period (Exhibit 20; Transcript pp. 326-27). The IEP also placed the student in two periods per day of nonacademic regular education classes such as health, art, and music (Transcript pp. 364-65). Because the student was being recommended for some regular education courses, a qualified regular education teacher was a required member of the CSE. The kindergarten teacher who attended the CSE meeting could not have been the student's teacher in any of these courses because he was not qualified to teach at the middle school level (Transcript pp. 369-70). Due to the student's high cognitive abilities and language disabilities, the presence of a regular education teacher familiar with the middle school courses offered at the district's schools may have illuminated the extent to which multisensory instruction is used in the district's mainstream curriculum and the likelihood that petitioners' son could be successfully integrated into mainstream math or other regular education courses; therefore, the absence of such a teacher on respondent's CSE compromised the development of an appropriate IEP for the student for the 2000-01 school year and deprived the student of educational benefits, which resulted in a denial of FAPE (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).

        Even if the CSE had been properly constituted, I would nevertheless be constrained to find that the 2000-01 IEP was deficient. As noted, an appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs (Application of a Child With a Disability, Appeal No. 01-092; Application of a Child with a Disability, Appeal No. 93-12). Adequate testing is required to establish present performance levels (34 C.F.R. § 300.347[a][1]; 34 C.F.R. Part 300, Appendix A, Section 1, Question 1; Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 98-36). In the instant case, the record reveals that the majority of the testing and evaluations done relied upon in the 2000-01 IEP were more than a year and a half old, that the more recent testing by the district and relied upon by the CSE was completed the day before the meeting, and that the results of such testing were not yet tabulated (Transcript p. 358). The CSE chair herself admitted that "the primary difficulty with the Arlington testing is it was completed approximately one day before the meeting and there was not sufficient time to do all the number crunching that is typically done for students to give a more measured profile of what their performances were" (Transcript p. 318). This is of particular concern where, as here, the student had never attended respondent's schools, no one from Kildonan was at the CSE meeting, and no one on the committee had any first hand knowledge of the student (Transcript pp. 153, 180, 185, 263, 349, 608). The IEP noted that the student was tested at Kildonan in May 2000, but the CSE chairperson testified that since the testing was qualified as being conducted "under optimal conditions," the CSE decided it could not determine how much weight to give the results (Transcript pp. 319-322). In order for the CSE to make an appropriate recommendation, it is necessary to have access to appropriate evaluative information (Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008); this is not possible where test results have not yet been tabulated. It is the CSE's responsibility to ensure that the information obtained from any testing is documented and carefully considered (34 C.F.R. § 300.535[a][2]). In this case, I find that the existing testing and evaluations were insufficient to establish the student's present performance levels at the time the 2000-01 IEP was developed. For all the foregoing reasons, I find that, due to both procedural and substantive errors, the district failed to demonstrate that it offered an appropriate program to the student for the 2000-01 school year.

        In order to qualify for tuition reimbursement for the 2000-01 school year, petitioners must demonstrate that the program offered by Kildonan for that year was appropriate (Burlington, 471 US 359; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington, 471 U.S. at 370). An appropriate program is one that is "likely to produce progress, not regression" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 [5th Cir. 1997], cert. denied, 522 U.S. 1047 [1998]).

        In January 2000, prior to the CSE's development of the IEP for the 2000-01 school year, the parents' private evaluator tested the student. Her report suggested that the student had made progress at Kildonan with the aid of Orton-Gillingham instruction (Exhibit 32; see also Exhibit P). Kildonan uses the Orton-Gillingham method in each subject matter class to teach students how to encode and decode language to improve their reading and writing skills and comprehension (Transcript p. 441, 402). The Orton-Gillingham method is described as a systematic, sequential, and multisensory approach to reading and writing that focuses on breaking down words into their component parts and teaching the student how to identify patterns to help him learn to decode and encode language (Transcript pp. 402, 501). Prior to enrollment at Kildonan in January 1999, the student's score on the Wide Range Achievement Test – III (WRAT –III) indicated that he was reading at the third grade level (standard score 78). On the word attack subtest of the Woodcock Reading Mastery Test – Revised (WRMT-R), also administered in January 1999, the student achieved a grade equivalent score of 2.6 (Exhibit R). The private evaluation in January 2000 yielded a standard (and grade equivalent) score of 90 (4.3) for word attack on the WRMT-R (Exhibit 32). The Test of Written Language – Third Edition (TOWL-3), also administered in January 2000 yielded a standard score of 83, which was in the 13th percentile. Administration of the Woodcock-Johnson Tests of Achievement – Revised (WJ-R) in August 2000 by the district evaluator yielded a standard score of 87 (3.8) on the word attack subtest (Exhibit 22). Evaluations from the student's teachers at Kildonan from November 1999 and June 2000 indicate that, although he still had difficulties with reading and writing, the student's reading and self-confidence had improved immensely, and that he had made significant improvements in his writing skills (Exhibit K). Two independent evaluators hired by the parents in March 2000 found that the student required continuation in the 2000-01 school year of the approach to language used by Kildonan in order to continue to progress (Exhibits 32, P).

        The record shows that during the 2000-01 school year, the student continued to require assistance in the area of encoding and decoding language using a multisensory approach while remaining in classes that challenged him intellectually (Exhibits 32, R, J, K, P; Transcript pp. 502, 508). Kildonan continued to use a method of instruction in each of his classes that was designed specifically to aid him in decoding and encoding language (Transcript pp. 402, 441-42, 502). The student continued to be evaluated regularly by his teachers throughout the school year and these evaluations indicated that, although he continued to struggle with phonetics, spelling, and advanced reading, he showed significant improvement and solid gains in vocabulary, decoding, and comprehension skills during the 2000-01 school year (Exhibit L). The parents' private evaluator readministered the WRMT-R in January 2001 (Exhibit O). The student achieved a standard score of 95 (6.4) on the word attack subtest, which the evaluator noted indicated more than a year's growth since her evaluation of the student one year earlier. Readministration of the TOWL-3 yielded a standard score of 96, in the 28th percentile (Exhibit O), an increase from the standard score of 83 and percentile score of 13 achieved in January 2000 (Exhibit 32). The student maintained a B average throughout the 2000-01 school year at Kildonan (Exhibit E). In light of the services provided to the student and his progress during the school year, I find that Kildonan's program was appropriate in meeting the student's needs for the 2000-01 school year.

        Respondent argues that petitioners have not met their burden of demonstrating that the program at Kildonan addressed the student's educational needs in the LRE (see 20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550; 8 NYCRR 200.1[cc]). While parents are not held as strictly to the standard of placement in the LRE 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 (M.S. v . Bd. of Educ., 231 F.3d 96 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 01-068). However, the LRE requirement 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]). There is little dispute that the student required a significant amount of special education instruction during the 2000-01 school year. The IEP devised by the district directed that the student receive special education instruction in all five of his major subject areas (Exhibit 20). Kildonan provided special education instruction in all of the student's classes (Transcript pp. 402-04, 441-42). Although Kildonan is a private school exclusively for students with language-based disabilities and therefore does not present the same opportunity for mainstreaming as a placement in respondent's schools, I cannot conclude on that fact alone that it is inappropriate for the student. At Kildonan, the student was provided with the combination of a specialized instruction and a high content curriculum to meet his unique needs in a peer group with average to above average intelligence (Transcript pp. 402-04, 441, 412-13, 404). Accordingly, I find that petitioners have met their burden of demonstrating the appropriateness of the program at Kildonan for the 2000-01 school year. In addition, since the parents were cooperative and involved with the school district in its effort to devise an appropriate program for the student (Exhibits U, V, X, Y, BB, CC), I also find that equitable considerations favor tuition reimbursement to the parents for the 2000-01 school year.

        I now turn to petitioners' claim for tuition reimbursement for the 2001-02 school year. First, the record reveals that the 2001-02 IEP has the same procedural flaw as the 2000-01 IEP in that the CSE failed to include an appropriate regular education teacher. The IEP for the 2001-02 school year recommended placing the student in regular education classes in all subjects except English and global studies; hence, a regular education teacher of the student familiar with the curriculum was again required to be a member of the CSE (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]). The student's mother testified that the regular education teacher at the July 31, 2001 CSE meeting was only qualified to teach physical education and health and had no knowledge of the regular education or reading courses the student would be enrolled in (Transcript p. 664). Respondent does not address this issue, and the record does not provide any additional information.

        The input of a regular education teacher in the development of the 2001-02 IEP was extremely important since in 2001-02 the CSE was recommending that the student be mainstreamed in all but two of his major subjects (Exhibit 1). As noted above, the regular education teacher member should be a teacher who is or may be responsible for implementing a portion of the IEP (34 C.F.R. Part 300, Appendix A, Section IV, Question 26), and who is not only appropriately certified to teach the student, but is also teaching in one of the regular education programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 01-105). The regular education member is required to participate in the development of the IEP, including the determination of supplementary aids and services, program modifications and any necessary supports the student needs (20 U.S.C. § 1414[d][3][C]). The parents have shown that their son's disability required multisensory teaching methods throughout his curriculum (Transcript pp. 76, 646-49, 650, 727-31; Exhibit 1 p. 10). There is no evidence in the record that the physical education teacher had any knowledge about the methods of instruction or content in any of the regular education courses or the reading course the student would be enrolled in for the 2001-02 school year. Similarly, there is no evidence that he could have illuminated the extent to which visual or multisensory instruction was offered as part of these courses, or how to modify the general curriculum in the regular classroom to ensure the student's involvement, progress, and participation in the regular education environment (see 34 C.F.R. Part 300, Appendix A, Section IV, Question 24). The absence of a qualified regular education teacher on the CSE once again compromised the development of an appropriate IEP, depriving the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. 2002]). Since I find that respondent has failed to meet its burden of showing that a regular education teacher familiar with the student's recommended curriculum was present at the July 31, 2001 CSE meeting, I find that the IEP for the 2001-02 school year was inadequate, and denied the student a FAPE.¹

        Even had the CSE been properly composed, however, I would again be constrained to find that the 2001-02 IEP, like the 2000-01 IEP, substantively denied the student a FAPE in that it was not reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. 176, at 207; M.S. v. Bd. of Educ., 231 F.3d 96, at 103 [2d Cir. 2000]). The 2001-02 IEP was substantively inadequate because it failed to meet the special education needs of the student, and it inappropriately grouped the student with students with dissimilar needs.

        The 2001-02 IEP failed to meet the individual special education needs of the student. Initially, it should be noted that the IEP recommended that the student be placed in a regular education math course even though the student had been struggling in his math course the year before, going from an A- to a C+ average (Exhibits 10, E). Also, the record reveals that all parties, including the director of special education for the district, the district's resource room teacher, the dean of Kildonan, the parents, and the parents' private evaluator were in agreement that the student's primary deficits continued to be in encoding and decoding language (Exhibit O p. 3; Transcript pp. 81, 241, 341, 422, 725, 727, 516-17). Significantly, the director of special education was aware, and it was noted on the student's 2001-02 IEP, that when the student's services in decoding and encoding were removed from his classes at Kildonan in the spring of 2001, the student began to struggle in his courses and the services had to be reinstated (Exhibit 1 p. 10; Transcript pp. 76, 646-49, 650, 727-31). The private evaluator stressed the student's need for the Orton-Gillingham approach to be incorporated into all the student's subject areas (Exhibit 32). In spite of this, the district's 2001-02 IEP failed to provide the necessary help in encoding and decoding language in each course, and instead recommended placing the student in regular education courses in all of his subjects except English and global studies (Exhibit 1).

        The CSE chair suggested that the reading class would focus on decoding and encoding (Transcript pp. 366-67). However, the record revealed that this course was taught by a regular education teacher (Transcript p. 120), and the parent testified that the teacher had informed her that the class focused on comprehension and that no structured sequential reading instruction would occur in that class (Transcript pp. 651-54). Moreover, although the instructor in the English and global studies classes claimed to use a multisensory approach to instruction (Transcript pp. 272, 278), he stated that word recognition and decoding would not be a focus (Transcript p. 281). He also stated that he was not trained in nor did he use any specific techniques or methods for decoding and encoding language in his classes (Transcript pp. 285-86), and that the goals of the student's IEP were too broad and would not be addressed in the English special education course (Transcript p. 287).

        Although the resource room teacher indicated that she would occasionally work with the student on encoding and decoding skills, she also stated that it was her responsibility to work on all of his IEP goals, including working on his organization skills, helping him with his regular education courses, working on his transition plan, and administering all of his tests (Transcript pp. 240-50). She admitted that she was limited in what she could cover in one 44-minute period per school day (Transcript pp. 252, 259).

        Thus, the record reveals that neither the reading course, the special education courses, nor the regular education courses would meet the student's specific individual language needs, and the resource room would only be able to work on his encoding and decoding needs occasionally. Without this help in each course, the student would lack adequate access to the content in his courses, as recognized in the comment section of the IEP which noted that the student failed when the supports were removed from his subject matter courses (Exhibit 1 p. 10). The record reveals that an integrated, multisensory, sequential method of instruction in each of the student's courses was a necessity, rather than an optimum situation for the student, due to the nature of his learning disability (Evans v. Bd. of Educ., 93 F. Supp. 83, 101 [S.D.N.Y. 1996]; compare, Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501 [E.D.N.Y. 1996] [IEP which placed dyslexic student in regular education classes appropriate where test scores showed he made progress in the absence of Orton-Gillingham type methodology]). Therefore, I find that the 2001-02 IEP was not reasonably calculated to confer educational benefits on the student.

        In addition, the 2001-02 IEP also inappropriately placed petitioners' son in special education classes with students with dissimilar needs. State regulations require that special education classes must suitably group the student for instructional purposes with students having similar individual needs (8 NYCRR 200.6[a][3]; 200.6[g][2]; Application of a Child with a Disability, Appeal No. 01-014; Application of a Child with a Disability, Appeal No. 98-32). One of the factors to be considered is the range of academic or educational achievement of the students in the class (8 NYCRR 200.6[a][3][i]; 200.6[g][2][ii]). This is defined to include consideration of "levels of knowledge and development in subject and skill areas,…level of intellectual functioning, … expected rate of progress in acquiring skills and information, and learning style" (8 NYCRR 200.1[ww][3][i][a]). As noted, petitioners' son required help in decoding and encoding language, while remaining in classes that challenged him intellectually (Exhibits 32, R, J, K, P; Transcript p. 508). The class profiles and instructor's comments for the two special education classes revealed that the other learning disabled students in the classes were in the average or below average range of cognitive abilities (Exhibits 37, 38; Transcript. pp. 166, 168, 172-73, 273, 508), whereas petitioners' son's cognitive testing scores indicated that his abilities were in the high average range (Exhibit 32 p. 4; Transcript pp. 514, 515). The method used in the two special education courses was to spread the dissemination of content of the ninth grade curriculum over a two year period (Transcript pp. 84-85, 271, 290). The student's above average scores on the general information subtest of the Peabody Individual Achievement Test – 3 (PIAT-3) indicated that he had the ability to comprehend content at or above his grade level and did not require the presentation of content at a slower pace (Exhibit O). In addition, the student maintained pace with the general curriculum at Kildonan, and was maintaining a B average. Spreading the content level over two years instead of one would not meet this student's academic needs and would prevent him from continuing to keep up with the general curriculum (see 34 C.F.R. § 300.347[a][2]). For all of the foregoing reasons, I find that the 2001-02 IEP was inadequate to meet the student's needs and not reasonably calculated to enable him to receive educational benefits.

        Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the student during the 2001-02 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by Kildonan during the 2001-02 school year were appropriate (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7). Respondent contends, and the hearing officer agreed, that Kildonan's program was inappropriate in large part because Kildonan does not employ certified special education teachers. The hearing officer also found Kildonan's 2001-02 program inappropriate because its courses were not required to meet New York State High School Regents standards. This is not the standard required of private schools in determining whether parents may be eligible under the IDEA for tuition reimbursement. It is well settled that the private school need not employ certified special education teachers, nor have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 99-78; Application of a Child with a Disability, Appeal No. 94-20). The parents' failure to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). "To add to the statute a requirement that, once a school district fails to provide a FAPE, the parents' choice must satisfy rigorous District-approved criteria 'would defeat the statutory purpose' by leaving children without an appropriate educational choice" (Bd. of Educ. v. Schutz, 290 F.3d 476, 484 [2d Cir. 2002], cert. denied, 123 S.Ct. 1284 [2003] [involving Kildonan School], quoting from Carter, 510 U.S. at 12-13). As stated before, the parents' burden is to show that the private school offered an appropriate educational program which met the student's special education needs (Burlington, 471 U.S. at 370), and was likely to produce progress, not regression (seeWalczak, 142 F.3d at 130).

        As previously noted, the record shows that during the 2001-02 school year, the student's special education needs continued to be in the areas of decoding and encoding (Exhibits H, M; Transcript pp. 504-05, 408, 410, 424-25). The student's private evaluator stated that the student needed to remain in a program for the 2001-02 school year where each subject matter class reinforced methods of decoding and encoding so that he could access the content in each course (Transcript pp. 516-17, 520). An examination of the program Kildonan provided to the student in the 2001-02 school year shows that the school continued to provide the student with language training in decoding and encoding material in all subject areas (Exhibit M; Transcript pp. 408, 414, 441-42). Although the student struggled in math, receiving grades of C and D+, the rest of his grades remained in the B average range for the 2001-02 school year (Exhibits F, G). In addition, the student received tutorial instruction in language, which focused exclusively on his areas of need in spelling, phonetics, and writing (Exhibit M). His tutor noted progress but also noted that the student still needed a lot of reinforcement in spelling, encoding and decoding words, and recognizing and pronouncing articles (id.). He also noted that the student still needed daily practice in sentence writing and paragraph composition (id.). The parents' private evaluator reevaluated the student near the end of the school year, in April 2002, and found that he maintained the same standard score on the word attack subtest of the WJ-R from January 2001 to April 2002, which indicated that he was making progress in his skills, while keeping up with the general curriculum (Exhibits O, H; Transcript pp. 549-51). Based on the foregoing, I find that petitioners have met their burden of demonstrating that Kildonan provided an appropriate program for the student for the 2001-02 school year.

        The final criterion for an award of tuition reimbursement is that the parents' claim be supported by equitable considerations. The record reveals that in the 2001-02 school year, as in the prior school year, the parents cooperated with respondent's CSE in preparing the student's 2001-02 IEP (Exhibits II, JJ, KK, MM, NN, OO). In the absence of any other equitable factor, I find that the parents' claim for tuition reimbursement for the 2001-02 school year is supported by equitable considerations.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the student's tuition at the Kildonan School during the 2000-01 and 2001-02 school years, upon petitioners' presentation to respondent of proof of such payment.