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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Arlington Central School District


Family Advocates, Inc., attorneys for petitioners, RosaLee Charpentier, Esq., of counsel

Raymond G. Kuntz, P.C., attorneys for respondent, Wendy K. Brandenburg, Esq., of counsel


       Petitioners appeal from an impartial hearing officer's decision that denied their request for tuition reimbursement for the unilateral placement of their son at the Kildonan School (Kildonan) for the 2002-03 school year. The appeal must be dismissed.

        When the hearing began on February 28, 2003, the student was 11 years old and in his second year at Kildonan, a nonpublic school that has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities (Transcript p. 582). The student's educational history is set forth in an earlier decision, Application of a Child with a Disability, Appeal No. 02-067, in which I dismissed the parents' appeal of a denial of tuition reimbursement for the 2001-02 school year at Kildonan, based on my finding that the educational program outlined in respondent's 2001-02 individualized education program (IEP) was appropriate.

        Respondent's Committee on Special Education (CSE) met to recommend a program for the student's fifth grade year on August 16, 2002 (Exhibit 80). The IEP indicates that he would be placed in a 12:1+1 special class one hour a day for language arts, and would have a remedial reading class three times a week for 40 minutes and 40 minutes a day in a reading lab. As related services, he would receive individual occupational therapy (OT) once a week for 30 minutes, and an OT and speech-language consultation once a week for 30 minutes. The student would participate in regular education in every content area subject but reading and writing, and he would be afforded test accommodations. The CSE planned to meet again after five weeks to review his program (Exhibit 90).

        On August 19, 2002, the student's parents wrote a letter to the CSE chairperson informing her that they would enroll their son again at Kildonan, and that they were requesting an impartial hearing for the purpose of seeking tuition reimbursement, fees, and transportation costs (Exhibit 83). They asserted that they did not receive the IEP in a timely manner; that their son was not suitably grouped in the 12:1+1 special class; that he would not receive instruction in the Orton-Gillingham (O-G) multi-sensory approach in his mainstream classes; and that the 2002-03 program was similar to the program offered for 2001-02, which they believed was inappropriate. The IEP was sent to the parents on August 30, 2002.

        The hearing was held on four days between February 28, 2003 and June 13, 2003. On July 29, 2003, the hearing officer ruled that the proposed program was reasonably calculated to enable the student to receive educational benefit. She found the IEP accurately indicated the student's learning style and addressed his needs in reading and writing by providing a smaller classroom, a reading lab and remedial reading. She noted that the student was also placed in mainstream subjects, in which he could reasonably participate. The hearing officer further noted that the proposed special education teacher had received O-G training, and was well qualified to teach using a multi-sensory, sequential methodology. She concluded that the program outlined in the 2002-03 IEP was well-planned and calculated to meet the student's needs in the least restrictive environment (LRE) with an intensive program that addressed his learning style. She denied tuition reimbursement and transportation to Kildonan.

        Petitioners claim that the IEP's statement of current functioning is inappropriate, and that the IEP contains no adequate means to measure the student's growth. They assert that no services or goals were included for assistive technology or word processing. They further claim that the IEP was unclear about what portions of their son's day were in a self-contained or regular education classroom and assert that there was no mention of inclusion in the IEP. They claim the qualifications of his proposed reading instructor were inadequate, and that their son required an intensive O-G approach. They also object to the class profile for his self-contained language arts class.

        I find the hearing officer's decision that the program was appropriate to meet the student's needs is adequately supported by the record. The hearing officer applied the proper legal analysis in determining whether the student received a free appropriate public education (FAPE) (see Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; Walczak v. Bd. of Educ., 142 F.3d 119, 130 [2d Cir. 1998]) and whether the parents were entitled to tuition reimbursement (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 00-008).

        I find that the student's needs and current levels of performance were adequately set forth in the IEP. The IEP states that his deficits were in language arts and reading, that he learns best through a multi-sensory approach, and that he required a smaller classroom for his areas of deficit, but that he otherwise functioned well in the mainstream. I also find that the IEP contained measurable goals. It listed as completion dates the end of the third marking period and the end of the school year, as appropriate, measured by his teachers according to their observation checklists and student portfolios (Exhibit 90). While the IEP was not provided to petitioners as soon as they had wished, it met the statutory requirements for timeliness (20 U.S.C. §1414[d][2]).

        As for petitioners' claim that there was no mention of the inclusion program in the IEP, I find that petitioners were adequately informed about the proposed inclusion program. First, the inclusion program was described at the earlier hearing regarding the 2001-02 IEP. At the hearing in the instant case, the student's proposed regular education teacher testified that the student would have been one of approximately four students with IEPs in the inclusion classroom with regular education students. He would have participated in the class for social studies, science and math (Transcript p. 174). She would have provided a multi-sensory approach to learning in the mainstream classes (Transcript p. 206) and there was always a teaching assistant and either the special education teacher or her assistant present in the classroom, in addition to a one-on-one aide for another student (Transcript pp. 178, 189). The teacher testified that someone else would have taken notes for the student and the notes would have been given to him the same day (Transcript pp. 176-77, 193, 217). Although the IEP does not mention assistive technology, the regular education teacher testified that there were six computers in the classroom to which the student would have had access, depending on his assignment (Transcript pp. 194-95).

        The parents acknowledge that the 2002-03 IEP is essentially the same as the 2001-02 IEP, which I found appropriate. Moreover, they presented no evidence that their son's needs had changed nor do they make such an allegation in their petition. I therefore find that the 2002-03 IEP is appropriate and reasonably calculated to provide the student with educational benefit for the same reasons articulated in Appeal No. 02-067. In that appeal, I found that petitioners' son would have been suitably placed in a small group of students in his 2001-02 language arts class. For the 2002-03 school year as well, he would have been placed into a smaller group of three to four students and the record supports that he would have been suitably grouped with those other students (Transcript pp. 258-63). In Appeal No. 02-067, I found that the student's proposed reading instructor for 2001-02 was well qualified to instruct him in reading and language arts, and the same teacher was scheduled to teach him reading in 2002-03.

        I find that the hearing was conducted consistent with the requirements of due process, and that there is no need to modify the determination of the hearing officer (34 C.F.R. § 300.510[b][2]; Education Law §4404[2]). I therefore adopt the findings of fact and determination of the hearing officer.


Topical Index

Annual Goals
Educational PlacementSpecial Class12:1+1
Implementation/Assigned SchoolGroupingFunctional
Implementation/Assigned SchoolStaff Credentials/Quality
Parent Appeal
Present Levels of Performance