03-100

        Petitioner, the Board of Education of the Arlington Central School District, appeals from an impartial hearing officer's decision awarding respondents reimbursement for their son's tuition at the Kildonan School (Kildonan) for the 2002-03 school year. The appeal must be dismissed.

      At the time of the hearing, respondents' son was a nine-year-old child with average intelligence (Exhibit District 46), and was in fourth grade at Kildonan, a nonpublic school specializing in educating students with learning disabilities. Kildonan has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. The child's needs were initially addressed in 2001 through an accommodation plan provided under Section 504 of the Rehabilitation Act of 1973 (Exhibit 83). He was subsequently classified pursuant to the Individuals with Disabilities Education Act (IDEA) as other health impaired (OHI) by the Committee on Special Education (CSE) on June 13, 2001 (Exhibit 29). Approximately one year later the child's classification was changed by the CSE to that of learning disabled (LD) (Transcript p. 102; Exhibit 54). There is no dispute about the child's classification.

        Respondents' son was diagnosed with attention deficit disorder with hyperactivity (ADD) (Exhibits District 12, 83), with significant deficits in the areas of attention, activity levels, achievement, cognition (Exhibit District 19) and processing (Exhibit District 83), which adversely impacted his learning (Transcript pp. 101, 186, 341-42, 408, 410, 480, 496, 706; Exhibits 24, 29, 38, 54, 73, 76, 90). Additional severe deficiencies in receptive language skills, as evidenced by a score of 69 on the Clinical Evaluation of Language Fundamentals-3 (CELF-3), interfered with his listening skills and hampered his ability to follow long and complex directions (Exhibit 38). Inadequate motor skills impaired his ability to write (Exhibit 54).

     Neuropsychological testing was conducted in February 2002. Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ of 95, a performance IQ of 90, and a Full Scale Score of 92. These scores fall in the low average range. The Wechsler Individual Achievement Test-II (WIAT-II) yielded significantly below average reading comprehension and written expression age-based scores of 70 (2nd percentile and 3rd percentile), a below average age-based spelling score of 87 (19th percentile), and low average to deficient math age-based scores of 81 and 87 (10th percentile and 19th percentile) (Exhibit 46). Additional testing revealed deficits in working memory, phonemic awareness, visual-spatial processing, visual-motor integration, and processing increasingly complex linguistic information (Exhibit 46).

        The neuropsychologist diagnosed respondents' son with developmental dyslexia with impairment in the phonological and visual spatial routes to word recognition, a two-channel disability which made it extremely difficult for the child to learn how to read and spell. To address these deficits, she recommended continued special class placement for reading, writing, and math, a structured and sequential phonics program, an occupational therapy (OT) evaluation, classroom accommodations for his attention problems, keyboard skills development, testing modifications, and provision of class notes (Exhibit District 46).

        Petitioner's CSE met on May 17, 2002 to develop the child's 2002-03 individualized education program (IEP). The CSE recommended that the child be enrolled in a 12-month IEP, beginning with summer special education itinerant teacher (SEIT) 1:1 services, three times a week for 60-minute sessions. For September 2002, daily 12:1+1 non-integrated special education classes in language arts (120 minutes) and math (60 minutes) were recommended. In addition, the CSE recommended that the child receive 30 minutes of group speech-language therapy once a week. The child would be mainstreamed for the balance of the school day. Additional recommendations included the assignment of a second set of books for home use, and testing accommodations: extended time, words read when cued, and flexible settings (Exhibit District 54).

        Respondents did not accept the CSE's recommended educational program. By letter dated June 26, 2002, the child's mother informed petitioner that the child would be enrolled at Kildonan for the 2002-03 school year, and requested transportation (Exhibits 59, 60, 63). By letter dated January 28, 2003, respondents requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Exhibit 72), allegedly after first learning in December 2002 that tuition reimbursement was available. A pre-hearing conference call took place on February 25, 2003 (Exhibit 2) and was followed by a hearing, which commenced on April 23, 2003 and concluded on June 17, 2003.

        In a decision dated September 17, 2003, the hearing officer found petitioner's recommended program to be inappropriate, based upon deficiencies in the IEP, and the child's failure to achieve goals and objectives. He further found petitioner's recommended fourth grade program duplicative of the child's unsuccessful third grade program, and therefore, inadequate to address the child's educational needs for 2002-03.

        The hearing officer also determined that Kildonan's program met the child's educational needs because of the intensity of the program, the small size of the classes, the provision of a structured, sequential phonics program of the type recommended by the child's psychologist, and by the child’s reportedly diminished attention problems. Sufficient educational progress was cited to find that the parent had met her burden of proof regarding the appropriateness of Kildonan's services. The hearing officer concluded by finding that there was nothing in the record to indicate that the parent had not cooperated with the CSE, and awarded tuition reimbursement to respondents. I agree with the hearing officer's findings and determinations, to the extent discussed below.

        Petitioner contends that the hearing officer erred by finding the IEP recommended for the 2002-03 school year legally insufficient, and not reasonably calculated to confer educational benefits upon the student, thereby rendering the recommended program inappropriate for the child. Petitioner further alleges that respondents failed to meet their burden to prove the appropriateness of Kildonan's services, as demonstrated by the child's lack of educational progress there and Kildonan's failure to place respondents' son in the least restrictive environment (LRE). Moreover, petitioner asserts that equities do not support the parents' claim based upon the parents' lack of cooperation with the CSE, and notice requirement violations.

        Respondents assert the IEP to be both procedurally and substantively insufficient, and not reasonably calculated to provide individualized educational benefit. In contrast, respondents allege that Kildonan offered the type of multi-sensory, project-based instruction and level of intensive special intervention calculated to provide an educational benefit for the child. Respondents seek dismissal of the appeal and affirmance of the hearing officer's order for tuition reimbursement for the 2002-03 school year.

        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 (School Comm. of Burlington v. Department of Educ. of Mass., 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 (Application of a Child with a Disability, Appeal No. 02-006; Application of a Child with a Disability, Appeal No. 01-096; Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487).

        To meet its burden of showing that it had offered to 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 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. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

        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. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal and state regulations require 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]; 8 NYCRR 200.4 [d][2]).

        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). State and federal law require that a child’s IEP be reviewed and, if appropriate, revised periodically, but not less than annually (20 U.S.C. § 1414[d][4][A][i]; 34 C.F.R. § 300.343[c][1]; 8 NYCRR 200.4[f]).

        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]; 8 NYCRR 200.4[d][2][i] and [iii]).

        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]; 8 NYCRR 200.4[d][2][iii] and [x]). When the IEP is subsequently reviewed (20 U.S.C. § 1414[d][4][A][i]; 34 C.F.R. § 300.343[c][1]; 8 NYCRR 200.4[f]), appropriate revisions should address: "a) any lack of expected progress toward the annual goals and in the general curriculum, if appropriate; b) the results of any reevaluation and any information about the student provided to, or by the parents; c) the student's anticipated needs; d) or other matters, including a student's need for test accommodations and/or modifications" (34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f][1][ii][a-d]).

        I agree with the hearing officer's determination that the IEP was deficient because it did not adequately describe the child's needs regarding deficits in processing, memory, and phonemic awareness, and did not provide appropriate programming. I further agree with the hearing officer's finding that the IEP was deficient because it lacked appropriate goals and objectives, and was not amended to include occupational therapy services recommended by the CSE.

        Having reviewed this child's IEP, I note that the needs statement reflects the student's weaknesses rather than needs. For example, in the category of Levels/Abilities, the child was said to have "weaknesses in reading fluency and reading comprehension, and strengths in math fluency and applied problems." The corresponding need stated, "There are weaknesses in reading comprehension and decoding, in math facts, in the mechanics of writing, in organizational skills and in study skills that require special education."

        This need statement did not reflect the skills the child needed to master through his educational program, thereby creating the foundation from which the goals and objectives would be based. In this particular example, an appropriate need statement might have included the needs to acquire phonological awareness skills, improve the ability to understand what is read and maintain schoolwork and materials in an organized manner. I also agree with the hearing officer's determination that the deficits in processing, memory, and phonemic awareness should have been indicated on the IEP.

        Having reviewed the annual goals and short-term objectives, I agree with the hearing officer's determination that they lack sufficient precision to enable the child's teachers to identify a program starting point, or to allow the CSE, and the child's parents to measure his progress in objective terms during the course of the school year (Application of the Bd. of Educ. of the Washingtonville Cent. Sch. Dist., Appeal No. 99-095). The goals were not measurable (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii]). For example, one goal stated that the student will "demonstrate an improvement in word recognition and decoding skills necessary to read for information and understanding", providing no useable measuring key. Although the subsequent objectives or sub-skill areas were measurable, the objectives listed sight words, vowel sounds, and syllables to be mastered by the child, without indicating the manner in which these sub-skills would be integrated to demonstrate an improvement in reading for information and understanding.

        Individualized, intermediate steps between the child's present levels of performance and the schedules of performance expected over the course of the school year were also not represented (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]). Short-term objectives contained phrases such as "demonstrate the ability to" and "demonstrate the ability of", but failed to specify the actions needed to be performed by the student to demonstrate that the skills had been mastered. This type of poorly phrased objective defies measurement. Additionally, the goals and objectives did not relate to the content of the regular education curriculum, making it difficult to determine the degree to which the child was completing the curricula, based on this IEP (34 C.F.R. § 300.347[a][2][i]; 8 NYCRR 200.4[[d][2][iii][a]).

        I further agree with the hearing officer that occupational therapy evaluation results and services should have been added to a revised IEP in order to reflect current needs and recommended services. Although the district claims to have given the matter of updating the IEP less priority because the child was about to attend Kildonan, the child was entitled to an appropriate and current IEP.

        Moreover, because the child did make sufficient progress toward achieving the goals and objectives listed on the 2001-02 IEP (Exhibits 65, 65A), questions arise as to the basis for this failure and the appropriateness of offering the same program to the child for the next academic year. The record indicates that the student had performed poorly during the 2001-02 school year (Exhibits 45, 49). This is consistent with the May 2002 IEP social development assessment that "[the child] is unable to focus for even one minute and tends not to maintain eye contact for more than five seconds. His inability to stay focused on tasks seriously impedes his ability to take in and sustain information" (Exhibit 54).

        In the instant case, respondents pursued neuropsychological (Exhibit 46) and audiological (Exhibits 14, 74) evaluations. Despite the neuropsychologist's clearly articulated diagnosis of developmental dyslexia (Transcript p. 711; Exhibit 46), petitioner failed to provide the child a program aligned with the neuropsychologist's recommendation to offer a structured and sequential phonics program (Exhibit 46).

        Instead, petitioner changed the child's classification from OHI to that of LD, but continued to offer the student essentially the same eclectic and previously unsuccessful reading program (Transcript p. 452; Exhibits 45, 49) as he had for the 2001-2002 school year (Transcript p. 268). The emphasis of the child's recommended reading program continued to be on the Edmark Reading Program, a sight word approach to reading, not a phonological one (Transcript p. 227) as recommended by the neuropsychologist. In fact, the only change in the IEP recommendations between both school years was the change from pull-out to push-in speech-language paradigms (Transcript pp. 455, 488-489, 502).

        Standardized testing (Exhibit 46), report cards (Exhibit 64), teacher testimony (Transcript p. 199) and failure to make significant progress toward achieving any IEP goals (Exhibit 65) for the 2001-02 school year demonstrated the child's failure to progress socially and academically (Walczack v. Florida Union Free Sch. Dist., 142 F.3d 119, 132-133 [2nd Cir. 1998]). While I do not suggest that petitioner's recommended special education program was necessarily inappropriate because it did not teach reading using the phonic approach, as questioned by the hearing officer (Decision p. 19), I find that petitioner did not adequately address the child's continued deficits in reading and writing when it offered the child the same unsuccessful program for a second year (Application of the Bd. of Educ. of the Bay Shore Union Free Sch. Dist., Appeal No. 00-080).

        Based on the record before me, the district's formulated goals and recommended services for the child were inappropriate for the 2002-03 school year. Further, in light of the child's lack of educational success and continued level of attentional dysfunction, I find recommending essentially the same unsuccessful program for a second year (Transcript p. 268) not to be reasonably calculated to provide individualized educational benefit. Because the child was not offered a FAPE, I do not address remaining substantive or procedural allegations.

        Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2002-03 school year, I must now consider whether respondents have met their burden of proving that the services provided to the student by Kildonan during that school year were appropriate (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school provided services that were appropriate for the student (Burlington, 471 U.S. 359, 370). The private school need not employ certified special education teachers or have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        The record shows that the child has developmental dyslexia. At the beginning of the 2002-03 school year, his weaknesses continued to include deficiencies in the areas of reading comprehension and decoding, math facts, writing mechanics, organizational skills, and study skills (Exhibit 54). Kildonan's academic dean, a learning disabilities expert and supervisor of a school solely dedicated to educating dyslexic children (Transcript pp. 617, 619), recognized these disabilities, as demonstrated by his testimony regarding the child's phonological awareness and processing, and visual integration deficiencies (Transcript pp. 619-620). The learning disabilities alleged were consistent with the information and recommendations from the neuropsychological evaluation (Exhibit 46).

        To address these learning disabilities, Kildonan provided the child with a daily 1:1 language training program, utilizing an Orton-Gillingham (O-G) instructional approach, a structured, sequential, phonologically based, multi-sensory method of teaching reading and writing skills (Transcript p. 687). A cognitively based program designed to address each particular student's needs, the tutoring program allowed the teacher to use ongoing diagnostic and prescriptive approaches (Transcript p. 618). Since all Kildonan instructors are trained in O-G, the student received O-G instruction in the core academic subjects throughout his school day (Transcript p. 688). This approach was consistent with the neuropsychologist's recommendation to provide a structured and sequential phonics program (Exhibit 46).

        During the 2002-03 school year, the child made progress with phonemic awareness and the ability to decode words. He understood the six basic kinds of syllabification patterns and was learning how to apply them, trying not to resort to treating words as sight words (Transcript p. 623). His writing skills also progressed, as evidenced by an increase in his word choice, regardless of his ability to correctly spell his chosen words. He assumed risks, and his written words began to more closely approximate his verbal communications (Transcript p. 630). In math, the child memorized multiplication tables one through five (Exhibit C). This was reportedly reflected in his classroom work, as well as with the speed in which he completed worksheets.

        Fine motor skills and penmanship difficulties were addressed through the teaching of cursive writing rather than through printing, based on the premise that cursive writing allowed the child's lettering to flow from one letter to the next, thereby limiting decisions regarding spacing and letter formation. The use of cursive writing reinforced the kinesthetic function of O-G instruction (Transcript p. 625) and may have better served this particular child because of his visual-motor integration difficulties (Exhibit 67).

        The child also needed support in managing distractible and sometimes impulsive behavior, as well as accommodations for his attentional needs. However, the disruptive behavior articulated in varying degrees by the district teachers, appeared to have lessened at Kildonan. The student was learning to display more appropriate classroom skills in terms of his response to information and interactions with teachers (Transcript pp. 675-676, 681-682). He raised his hand, asked questions, and sought help in a timely and more appropriate manner (Transcript pp. 661-664). These behaviors are basic classroom skills which promote better attention, and deliberate rather than impulsive behavior. In point of fact, the student showed improvement in classroom attitude and behavior in science class. He was also beginning to remain focused on clear and detailed instructions provided by the teacher (Exhibit C).

        Individual tutorials and classes with six to seven students met the child's need for a small teacher-to-student ratio program with minimal distractions. The small class size provided more individual attention from teachers and greater opportunities to build deeper relationships with classmates, thereby fostering increased self-esteem. In addition, supervised study halls also aided in reinforcing the child's academic skills and developing his ability to work independently. Therefore, these measurable strides in phonemic awareness and decoding, writing skills, math facts, fine motor skills and behavior demonstrate that the child's academic needs were met.

        Petitioner argues that Kildonan was not the LRE for the child (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). 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 (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ. of City of Yonkers, 231 F.3d 96 [2d Cir. 2000]). However, the LRE standard must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ. of the State of Connecticut, 882 F.2d 688, 692 [2^nd Cir. 1989]; Application of a Child with a Disability, Appeal No. 00-058). I find that the educational program described herein is appropriate for this child.

        The final criterion for an award of tuition reimbursement is that respondents' claim for tuition reimbursement is supported by equitable considerations.  The IDEA, as amended in 1997, provides that an award of tuition reimbursement may be reduced or denied in certain circumstances. The amended statute provides that tuition reimbursement may be reduced or denied, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal (20 U.S.C. 1412 § [a][10][C][iii]; 34 C.F.R. § 300.403[d][1]).

        In the instant case, respondents expressed their dissatisfaction with the district's program both informally and formally in a timely manner (Transcript pp. 283, 538-540, 588; Exhibits 59, 60), although respondents' express request for tuition reimbursement was delayed (Transcript pp. 543-544), allegedly due to a misunderstanding of their due process rights (Transcript pp. 541-542, 578-579). Petitioner acknowledged the child's unilateral placement at Kildonan through what appears to be an intra-office facsimile transmission from the school psychologist, dated June 28, 2002 (Exhibit 63). Although respondents' original correspondence omitted the tuition reimbursement request and, therefore, was not in strict compliance with IDEA and federal regulations (20 U.S.C. § 1412 [a][10][C][iii]; 34 C.F.R. § 300.403[d][1]), respondents rectified this mistake through later communication with the district (Exhibit 72).

        Respondents cooperated with petitioner's CSE, as demonstrated by securing private neurological (Exhibits 12, 41), neuropsychological (Transcript p. 526; Exhibit 46), and audiological (Exhibits 14, 74) testing, maintaining ongoing written and verbal communication with the district (Transcript pp. 522-523, 528-529; Exhibits 20, 22, 23, 31, 33, 34, 42, 43, 44, 47, 48, 74, 55, 61, 60, 59, 63, 72), and participating in the development of the IEPs (Transcript pp. 516, 518-519, 525-527, 530-532; Exhibits 15, 17, 18, 27, 37, 38, 40, 54). In the absence of any other equitable factor, I find that the parent's claim for tuition reimbursement is supported by equitable considerations.

        Petitioner's remaining assertions have been considered and I find them to be without merit.

THE APPEAL IS DISMISSED.