Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
Linda A. Geraci, Esq., attorney for petitioners
Donoghue, Thomas, Auslander & Drohan, attorney for respondent, Daniel Petigrow, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which found that Wappingers Central School District (district) failed to offer their child a free appropriate public education (FAPE), but denied petitioners' request to be reimbursed for their child's tuition costs at the Kildonan School (Kildonan) for the 2003-04 school year. The appeal must be sustained.
At the time of the hearing, the petitioners' daughter was a seventh grade student who was unilaterally placed at Kildonan by her parents. The student was declassified at a Committee on Special Education (CSE) meeting held on January 30, 2003, when the student was in the middle of her sixth grade year at the district's Van Wyck Junior High School (Van Wyck) (Exhibit 6). Although declassifying the student, the CSE recommended that, for the remainder of the 2002-03 school year, the student continue to receive the supports and services established pursuant to an individualized education program (IEP) developed in October 2002 (Transcript pp. 44, 45). The parents requested an impartial hearing in February 2003 to challenge the declassification (Exhibit A). The hearing did not commence until July 2003, took place over the course of five days, and concluded in October 2003. On September 15, 2003, the parents amended their hearing request to include a claim for reimbursement of tuition at Kildonan for the 2003-04 school year (Transcript p. 237).
The student was initially referred by her parents to the district for evaluation for special education evaluation when she was in second grade (Exhibit 1; Transcript p. 449). Achievement testing identified weaknesses in writing and math, but the CSE did not convene and the student was not classified (Exhibit 1; Transcript pp. 450, 461). The following year, the student was again referred to the CSE for evaluation (Transcript pp. 461-62). Testing by the school psychologist demonstrated that the student was not able to write a sentence without spelling and grammatical errors, and that there was an approximately three year delay in the her visual-graphic skills (Exhibit 1). A private evaluation by the St. Francis Center for Communication Disorders (St. Francis), procured by the student’s parents in July 1999, identified moderate to severe language based learning deficits (Exhibit H). The St. Francis evaluation report recommended speech and language services twice per week (id.). In October 1999, the CSE developed an individualized education program (IEP) for the child which classified her as learning disabled, as evidenced by difficulties in writing, math and reading (Exhibit 2). The CSE recommended placement in a general education setting with resource room services 60 minutes per day (id.).
In March 2000, petitioners wrote to respondent's CSE chairperson, expressing their belief that resource room services were insufficient to address their daughter's needs, and requested that she be evaluated by a reading specialist and considered for a program that would focus on the her language based difficulties (Exhibit K). In December 2000 the student was evaluated by a reading teacher (Exhibit JJ). Administration of the Woodcock Reading Mastery Test-R (WRMT-R) indicated performance in the average range in word identification and word attack. The student's performance on the Comprehensive Test of Phonological Processing (CTOPP) identified weakness in phonological awareness (id.). On the Test of Written Language-3 (TOWL-3), her score on the subtest measuring skills in contextual conventions was in the second percentile and her score for story construction was in the fifth percentile (id.). Her written language quotient on the TOWL-3 was rated as poor (id.). On the Gray Oral Reading Test – 3 (GORT –3), the student's performance was below average for reading and comprehension of passages (id.). The evaluator concluded that the student had a "deficit in manipulating the sounds in words" which led to an inability to decode words, spell, put together a story and organize thoughts (Exhibit JJ; Transcript p. 408). She recommended that the student receive "structured, multi-sensory instruction…delivered in a small group setting" (Exhibit JJ). The student was placed in a self-contained class during the 2000-01 and 2001-02 school years.
In April 2002, and again in July 2002, the CSE convened in order to develop an IEP for the student for the 2002-03 school year (Transcript pp. 383, 389-90, 395; Exhibits 3, 21). The IEPs developed pursuant to these meetings referenced new testing that had been conducted in March and April 2002, including the Test of Auditory-Perceptual Skills (TAPS), as well as another TOWL-3 conducted in April 2001 (see Exhibits C, D). Results of the TAPS indicated performance in the ninth percentile in auditory perception, the 13th percentile in spelling, and a math composite score in the 18th percentile (see Exhibits C, D). The TOWL-3 indicated that the student struggled with writing, as she scored in the second percentile in subtests measuring contextual language and story construction and her writing composite score was in the seventh percentile (see Exhibits C, D). A second independent speech and language evaluation conducted by St. Francis in April 2002 identified significant difficulties with formulated sentences, sentence assembly and expressive vocabulary (Exhibit F). The St. Frances evaluation concluded that the student had significant deficits in her written narrative skills and below average abilities in her conversational skills (id.). The evaluators recommended that she continue to receive speech and language therapy as well as her other school based support services (Exhibit F).
Of particular concern during the CSE meetings in April and July 2002 was the fact that the 2002-03 school year was to be a transition year for the student, who was scheduled to enter sixth grade at Van Wyck the following fall. The special education teacher who had taught the student in a self-contained class during the 2000-01 and 2001-02 school years participated in these meetings (see Exhibits 3, 21; Transcript pp. 389-91). While she initially believed that the student should be placed in a self-contained special education class at Van Wyck, she testified that the Van Wyck teachers were more familiar with the programs at that school, and she later concurred with them that the student could be placed in a sixth grade inclusion program (Transcript pp 383-84). The April and July 2002 IEPs recommended that the student be placed in a sixth grade special class with 11 other students for 90 minutes of the school day, with related services of speech and language therapy for 45 minutes twice every six days (Exhibits C, D). The special education teacher testified, however, that she believed it would be helpful for the student to be evaluated within a few weeks of the start of the new school year to assess the need for a one-to-one aide (Transcript p. 385).
On October 17, 2002, the CSE convened again, presumably to assess the possible need for a one-to-one aide (Transcript p. 476). At this time another IEP was developed, which essentially mirrored the April and July IEPs (Exhibit 5). It contained the identical classification and placement, as well as the same statements as on prior IEPs that "the student has a significant delay in math concepts, written expression, [sic] which inhibits progress in the general education curriculum" (Exhibit 5). It also contained the identical program modifications, accommodations, and goals with respect to study skills, reading, writing, mathematics and speech-language as were indicated on the prior two IEP's (Exhibit 5; see also Transcript p. 48).
In January 2003, the CSE convened again, pursuant to the parents' request, and to perform a triennial evaluation (Exhibits S; MM). The parents had obtained a private psychological evaluation because they were concerned that the student was not making progress in school (Exhibit 10). The private psychologist conducted the Wechsler Intelligence Scale for Children – III (WISC-III), which yielded a verbal IQ score of 84, a performance IQ score of 102, and a full scale IQ score of 92, which is in the average range of cognitive ability (Exhibit 17). The private psychologist also conducted a series of achievement based tests, including but not limited to the Wechsler Individual Achievement Test (WAIT), the GORT-3, the TOWL-3 and the Wide Range Assessment of Memory and Learning (WRAML) (Exhibit 10). His testing revealed that the student had significant deficits in her working memory, which is the ability to hold information in memory while problem solving (id.). He also found that she exhibited deficiencies in verbal memory capacity, including the ability to link words together effectively, and in language functioning, ability to process phonological information and writing mechanics (id.). The private psychologist concluded that the student had significant language and memory based impairments, characterized by impaired achievement in reading, spelling, writing and mathematical calculations (id.).
The child also underwent an educational evaluation conducted by her special education teacher at Van Wyck (see Exhibits 7, 14, 15). On the Kaufman Test of Educational Achievement – 3 (KTEA-3), the student's scores were below average in mathematic applications and mathematic computations and well below average in spelling (Exhibits 7, 14, 15). The special education teacher testified that test results demonstrated that the student performed within one standard deviation of the mean in all areas except for spelling and style (Transcript pp. 127, 130-31). However, she opined that the student's writing was "weak across the board" and that "she had a difficult time getting thoughts down on paper in a logical way" (Transcript p. 114). She also indicated that "her mechanics were very weak; spelling, capitalization, punctuation" (id.).
At the January 30, 2003 meeting, the CSE recommended that the student be declassified (Exhibit 6). According to the special education teacher, the decision to declassify the student was based upon standardized test results and the student's performance in the classroom (Transcript p. 139). According to the testimony of the CSE chairperson, a significant factor in the decision to recommend declassification was the extent to which the student exhibited a 50 percent discrepancy between her performance and her ability (Transcript p. 52).
It is not clear to what extent the testing and conclusions set forth in the private psychologist's report, which had been provided to the district, factored into the CSE decision. While the CSE chairperson testified that the psychologist's report was considered by the committee, the parent testified that the report was dismissed outright by the committee because the private psychologist was a clinical psychologist instead of a school psychologist (Exhibit BB [Audio Tape]; Transcript pp. 75, 506). Regardless, the report was not mentioned in the "Report of the Triennial Evaluation" compiled by the district's school psychologist (Exhibit 7). Additionally, it is not clear whether the needs and goals set forth in the 2002 IEPs, the most recent of which was formulated four months prior to the January 2003 CSE meeting, had been met.
The hearing officer rendered a decision on February 9, 2004, wherein he determined that the CSE's decision to declassify the student was both procedurally and substantively flawed. Inasmuch as neither side has appealed that portion of the decision regarding the decision to declassify this student and her continued eligibility for special education services, those portions of the decision are final and not subject to review (34 C.F.R. §300.510 [a]; 8 NYCRR 200.5[i][ii]; see also Application of a Child with a Disability, Appeal No. 03-105; Application of a Child with a Disability, Appeal No. 03-024; Application of a Child with a Disability, Appeal No. 03-002; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-001). The remaining issue is whether the hearing officer erred in failing to grant petitioners' request for tuition reimbursement. I find that he did.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with an IEP as required under the Act (20 U.S.C. § 1401). The IEP must provide services that are tailored to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 ). 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. Dep't. of Educ., 471 U.S. 359 ).
A 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 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a 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 is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). There is a determination in this case that the district improperly declassified this student, and that the student is entitled to special education services. The district did not appeal this determination, nor did it prepare any IEP for this student for the 2003-04 school year.1 As such, I find that the services offered by the district for the 2003-04 school year were inappropriate and that the student was denied a FAPE.
Turning to the next prong of the Burlington analysis, I must decide whether the parents' unilateral placement at Kildonan was appropriate. Kildonan is a private school exclusively for children with learning disabilities. It has not been approved by the Commissioner of Education to provide for the education of students with disabilities. The failure to select a program approved by the state, however, is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
In declining to find that Kildonan was an appropriate placement for this student, the hearing officer noted that petitioners' daughter had only been at Kildonan for approximately six weeks at the close of the hearing, and there was scant documentary evidence regarding her progress there. The hearing officer also noted that Kildonan was comprised exclusively of children with disabilities, and that it was located such a distance from the parents' home that the student's school day was at times 12 hours long. As such, the hearing officer questioned whether Kildonan was the least restrictive placement for this student.
A student's parent bears the burden of proof with regard to the appropriateness of the educational program for which they seek reimbursement (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; 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 parents must show that Kildonan 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. 02-027; 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. 02-027; Application of a Child with a Disability, Appeal No. 94-20). While the restrictiveness of a parental placement may be considered in determining its propriety, parents are not held as strictly to the least restrictive environment (LRE) standard as are school districts (M.S. v. Bd. of Educ., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). The LRE provision must be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).
In support of their claim for reimbursement, the parents offered the testimony of the academic dean of Kildonan. The academic dean described methods employed at Kildonan which addressed the student's language-based learning disabilities. Specifically, the academic dean indicated that the school employs the Orton-Gillingham methodology, which includes a multisensory approach to language-based disabilities. (Transcript pp. 548-49). He testified that Kildonan only accepts students who are appropriate for their services, which would include children of average or above average intelligence who have a discrepancy in one or more skill areas, such as decoding, comprehension, spelling, expository writing or mathematics (Transcript p. 551). He indicated that each student participated in a supervised study hall and a one-on-one language tutorial for 45 minutes daily (Transcript pp. 548, 554).
As noted, the student demonstrated difficulties in written expression, math and spelling. In addition, standardized testing revealed memory deficits, as well as weaknesses in auditory perception and phonological processing (Exhibit 10). Testimony from the academic dean of Kildonan indicated that each of these areas was addressed by the private school. Individual tutoring targeted the student's ability to distinguish sounds and develop skills for encoding and decoding (Transcript pp. 565, 566, 574). In addition, writing mechanics and the organization of paragraphs for expository writing were addressed (Transcript pp. 563, 564). Based on her needs and level of performance, the student was paired with one other student for math class. Instruction focused on developing basic skills that the student would require for higher-level math. These included understanding concepts of place value and applying multiplication and division skills (Transcript p. 576). The student was taught organization and study skills in both content area courses and in her tutorial (Transcript p. 579). The dean opined that the student's speech goals could be met through the Kildonan curriculum (Transcript pp. 581-83).
In light of the foregoing, I find that Kildonan was an appropriate placement for this student. The program the parents selected was "reasonably calculated" to enable the student to receive educational benefits, and the testimony offered by the academic dean afforded ample evidence from which to conclude that the student's needs were being met there (Rowley, 458 U.S. 176, 207).2 As to the restrictiveness of Kildonan and the length of the student's day, I do not believe, in this case, these are sufficient reasons upon which to deny reimbursement (M.S. v. Bd. of Educ., 231 F.3d at 105, citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir.1999] ["(T)he test for the parents' private placement is that it is appropriate, and not that it is perfect"], and also citing Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir.1998] [holding private placement's failure to meet IDEA's mainstreaming requirement does not bar parental reimbursement]). In doing so, I note that the parents had not been offered any IEP for the 2003-04 school year (see Muller v. East Islip Union Free Sch. Dist., 145 F.3d 95, 105 [2d Cir. 1998] [considering the LRE argument under similar circumstances, the court noted that "the District failed to provide (the student) with an appropriate IEP under the IDEA that would allow her to continue her public school education, and, thus the (parents) had no alternative but to unilaterally place her in a private facility"]) 3
Regarding the final prong of the Burlington analysis, I conclude that equities favor petitioners in this case. In doing so, I note that respondent's main contention in this regard is that the parents completed an application to Kildonan four months prior to the CSE meeting where the student was declassified. The district claims that this demonstrates that the parents were committed to sending their daughter to Kildonan as opposed to public school regardless of what the district offered (Respondent's brief at pp. 16-17). However, the student's mother testified that she initially considered Kildonan when the student was in the third and fifth grades, but continued to send her daughter to public school (Transcript pp. 511, 517). Furthermore, the parents did not sign a contract to send the student to Kildonan until March 2003, two months after the student had been declassified (Exhibit NN). One cannot conclude from the parents' mere inquiry into Kildonan prior to the January 2003 CSE that they would have rejected an appropriate placement had one been offered (see Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 530 [N.D.N.Y. 2001]), any more than one can one conclude, as the parents maintain, that it is precisely due to the parents' inquiry that the district declassified the student.
Rather, it appears from the entire record before me that the parents in this case attempted to cooperate with the district, participating in each of the many CSE meetings with regard to the 2002-03 school year and providing information and evaluation results in a timely manner. Furthermore, I concur with the hearing officer that the district improperly declassified the student at the CSE meeting of January 2003. Consequently, I find that the equities support an award of tuition reimbursement.
I have considered respondent's other contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that petitioners' were not entitled to be reimbursed for the cost of their daughter's tuition expenses at Kildonan for the 2003-04 school year; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their daughter's tuition at Kildonan for the 2003-04 school year upon petitioners' submission of proof of payment for such expenses.
1 The triennial evaluation report compiled by the school psychologist suggested that the parents should pursue the possibility of having an accomodation plan developed pursuant to Section 504 of the Rehabilitation Act of 1973 (see 20 U.S.C. § 794 ) after the conclusion of the 2002-03 school year to assess the need for further modifications beyond that year (Exhibit 7). There is nothing in the district's "notice" to the parent that it was declassifying the student regarding such a referral (Exhibit B). Regardless, a Section 504 plan is not a "suitable substitute" for an IEP for a student who is otherwise eligible for the same (Muller v. East Islip Union Free School District, 145 F.3d 95 [2d Cir. 1998]).
2 Additionally, while not required in order to reach the result in this case, I note that the parents in their petition attached new reports from Kildonan that they ask be considered on this appeal. Documentary evidence not presented at a hearing may be considered in an appeal if such evidence was unavailable at the time of the hearing or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 01-032). The new information includes progress reports from November 2003, January 2004 and February 2004, which indicate that the student is making progress at Kildonan, particularly in her writing abilities. The November 2003 report indicates that the student was writing in complete sentences and that she was better organizing her thoughts. The February 2004 report indicates that the student was starting to be able to form basic paragraphs. These are significant areas of need for the student.
3 The respondent's reliance on the Southern District Court's decision in J.B. v. Bd. of Educ., 2001 WL 546963 (S.D.N.Y. 2001) is misplaced. In that case, there was insufficient evidence to establish the student's continued eligibility for special education services, let alone a private placement.