04-080

        Respondents' daughter was eight and a half years old and attending third grade at Kildonan, a private school, when the impartial hearing began on March 29, 2004 (Tr. pp. 38, 186). Kildonan has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The child’s eligibility and classification are not in dispute (Tr. p. 312).

        For purposes of context, respondents' daughter attended the Mizzentop Day School (Mizzentop) for her pre-kindergarten, kindergarten, and first grade years (Tr. p. 42). During first grade, Mizzentop teachers informed respondents that the child needed constant reinforcement and that they were worried about possible problems with regression (Tr. p. 43). Subsequently, respondents transferred their daughter to the Pawling Central School District for second grade for the 2002-03 school year (Tr. p. 43). At the beginning of the second grade the child's teacher advised respondents that the child was unable to participate in second grade because she was "unable to keep up," read, or work independently (Tr. p. 45). Respondents were advised by school personnel that their daughter was "shutting down" in class and could not "do what’s required of her" (id.). After a "miserable" 3 to 3 1/2 weeks in her second grade class (Tr. pp. 44-45), with the respondents’ consent (Parent Ex. J), the child was placed in a first grade public school class (Tr. pp. 45-46)

        By letter dated October 4, 2002, respondents referred their daughter to petitioner's Committee on Special Education (CSE) for an individual evaluation and determination of eligibility for special education programs and services (Dist. Ex. J; see 8 NYCRR 200.4 [a]). In October 2002 the child was evaluated. Selected sub-tests in the areas of word reading, pseudoword decoding, reading comprehension, listening comprehension, and spelling from the Wechsler Individual Achievement Test – Second Edition (WIAT II) administered to the child revealed standard scores in the average range (Parent Ex. G). The evaluator indicated that the child had difficulty with words tested in the reading comprehension sub-test, and was unable to read the passages as they progressed (Parent Ex. G at p. 1). When required to read separate sentences aloud, her fluency was reported to be choppy (id.). When presented with an unfamiliar word, the child relied heavily on phonetic decoding skills, a skill reinforced in the second month of first grade (id.). Age based reading scores in the areas of word reading, reading comprehension, and pseudoword decoding resulted in a composite standard score of 91, which was in the 27th percentile (Parent Ex. G Individual Performance Summary Sheet at p. 1). The results of the three individual sub-tests comprising the composite reading score were each considered to be in the average range (Parent Ex. G at p. 1).

        Shortly thereafter, a psychological evaluation of the child was performed by the school psychologist (Dist. Ex. 6). Noted as reasons for referral to the CSE were parental concerns regarding their daughter's delays in reading, memory retention, cognitive processing and decoding (Dist. Ex. 6 at p. 1). As assessed using the Wechsler Intelligence Scale for Children-Third Edition (WISC-III), the child's full scale IQ was 114, placing her in the 82nd percentile, or the high average range (Dist. Ex. 6 at 3). While her verbal IQ was in the average range at 106 (66th percentile), her performance IQ, measuring non-verbal reasoning ability, was superior at 121 (92nd percentile) (Dist. Ex. 6 at pp. 3, 9). The evaluator noted that the child's achievement scores in reading were not congruent with her demonstrated cognitive ability; that she scored much lower than expected given her cognitive ability (Dist. Ex. 6 at p. 7).

        The student's performance on the Block Design subtest, designed to assess ability to mentally organize visual information, was in the 99th percentile (Dist Ex. 6 at pp. 4,10). Her ability to sustain attention, concentrate and exert mental control were reportedly less developed than her nonverbal reasoning abilities, but within average range and better than approximately 61 percent of her age-mates (Dist Ex. 6 at p. 10). Visual motor integration was determined to be in the average range, as tested by the Beery Developmental Test of Visual Motor Integration (VMI) (Dist. Ex. 6 at pp. 3, 4).

        On a Dyslexia Screening Test, the student scored in the average range or above on eight out of the eleven subtests, indicating that she did not demonstrate a "dyslexic pattern" (Dist. Ex. 6 at p. 5). The school psychologist concluded that respondents' concerns about information processing and memory were unfounded, based on test results (Dist. Ex. 6 at pp. 6, 7). She also determined that there was no evidence that supported a classification of learning disabled (Dist. Ex. 6 at p. 7).

        The CSE convened on November 26, 2002 (Parent Ex. H) and determined that the child was ineligible for special education (Parent Ex. F). The mother and first grade teacher testified that the CSE also determined that the child’s performance would be monitored (Tr. pp. 53, 373; Dist. Ex. 6 at p. 7). The record is inconsistent regarding the future direction provided by the CSE. The mother testified that the CSE indicated it would convene a follow-up meeting in April 2003 (Tr. p. 53), while the first grade teacher testified that the CSE decided it would reconvene, if necessary (Tr. p. 373). The school psychologist recommended monitoring the child for the next three years (Dist. Ex. 6 at p. 7). The CSE did not convene for a follow-up meeting in April 2003 (Tr. p. 53).

        After being found ineligible for special education, the child continued in first grade at Pawling for the 2002-03 school year (Tr. p. 372). In comparison to the other students in the class, the child demonstrated "overall average" performance (Tr. p. 381). The first grade classroom teacher provided daily 20 to 30 minute-sessions of small group reading instruction for her (Tr. pp. 372-73). Although the child demonstrated an "uneven pattern" regarding the mastery of decoding skills, the first grade teacher determined that the child's decoding ability was within normal performance indicators for a first grade student (Tr. p. 374). In relevant part, the child's first grade report card grades ranged from S- (Satisfactory Minus) to S+ (Satisfactory Plus) in all areas of reading, with the exception of word analysis skills which involve the ability to rely on contextual, phonetic, and grammatical clues (Parent Ex. E). In this area, respondents' daughter received a grade of I+ (Improvement Shown Plus) for the second, third, and fourth quarters (id.). Teacher comments for the second and third quarters also indicated the child's difficulties in decoding new words (id.).

        The first grade classroom teacher testified that respondents' daughter received a score on a reading screening assessment which indicated no need for reading support services (Tr. p. 378). She further testified that the child exited first grade at a 1.4 reading level (Tr. pp. 385-86, see Parent Ex. E) based on the basal reading system (Tr. p. 389). The first grade teacher testified that a basal reading system level of 1.5 would be expected for an exiting first grade student (Tr. pp. 385-86) and that many children progress to second grade with a basal reading system level of 1.4. The first grade teacher indicated that she was only moderately concerned that the child left her class not reading at the first grade level (Tr. p. 386). She did not consider referring the child back to the CSE (Tr. pp. 379-80).

        The child's mother testified that on the last day of school for the 2003-03 school year, the first grade teacher urged her to have her daughter tutored over the summer because there was a "big problem" and her daughter was "at the bottom of the class" (Tr. pp. 54-55). The teacher testified that she suggested tutoring over the summer to address reading problems stemming from decoding difficulties (Tr. pp. 375-76). The child's mother hired a reading specialist to assess her daughter's needs and to provide tutoring services (Tr. pp. 55-57). In July 2003, the reading specialist, based on her review of report cards and documents previously submitted to the CSE, advised the mother that the child was "learning disabled and dyslexic" (Tr. p. 56). The child's mother testified that upon receiving the reading specialist's report she called the "CSE office" and asked for "help" (Tr. p. 57). She further testified that she brought the assessment to petitioner within three or four days and requested that a CSE meeting be held and her daughter re-evaluated (Tr. p. 58).

       By letter dated August 4, 2003, respondents requested a re-evaluation or reconsideration of their daughter's needs (Parent Ex. D at p. 1). Respondents acknowledged the challenge of convening a CSE meeting in August, and requested petitioner to "pass the word on" of the confirmation of the complexity and depth of their daughter's reading disability (Parent Ex. D at p. 2). Attached to this request, was a letter, dated August 4, 2003, from the reading specialist indicating that the child had a learning disability (Parent Ex. D at pp. 3-4). Petitioner's CSE Chairperson testified that he and the child’s mother spoke in late July or early August, that he "had a very large workload", and he mentioned to her "that if she made a referral [respondent could] do the evaluation preferably in September as opposed to August" (Tr. p. 422-23). Both agreed upon completing the evaluation in early September, after the teachers returned from the summer recess (Tr. p. 423), and they anticipated convening a CSE quickly after the evaluation was conducted (Tr. p. 424).

        By letter dated August 29, 2003, respondents confirmed a telephone conversation of the same date with the CSE Chairperson, which notified petitioner that respondents' daughter had been enrolled at Kildonan for the 2003-04 school year (Parent Ex. C). Respondents cited the reading specialist’s conclusion their daughter's deficits and decoding lags, as well as discrepancies between her performance IQ and verbal IQ scores, to be "concurrent with specific reading disabilities otherwise known as dyslexia" (id.). They indicated that at Kildonan their child would receive intensive, systematic, multi-sensory intervention and daily individual tutoring, while being placed with her chronological peer group in third grade, as opposed to remaining in second grade were she in public school (id.). The letter also stated that respondents’ were still waiting for the CSE's response to their request, from three weeks before, to have their daughter reconsidered for special education services (id.). The mother testified that she understood this letter to be a request for reimbursement (Tr. p. 364) by "beginning the whole process by saying this letter serves as the official notification to the district" (Tr. p. 365).

        By letter dated December 4, 2003, respondents requested an impartial hearing seeking that their daughter be classified for special education services, be provided an appropriate individualized education program (IEP), and be reimbursed for the cost of tuition for the 2003-04 school year at Kildonan (IHO Ex. 2 at p. 3).

        By letter dated December 11, 2003, respondents requested an immediate independent educational evaluation (IEE) at public expense (Parent Ex. W). The IEE was subsequently conducted in March 2004 (Parent Ex. T).

        The March 2004 psychoeducational IEE included administration of the WISC-IV which yielded a superior full scale IQ of 123, with average verbal comprehension, high average working memory and processing speed, and very superior perceptual reasoning (Parent Ex. T Table and Graphs Report for WISC-IV and WIAT-II, p. 1). Age based WIAT-II sub-test results indicated that the child was in the 23rd percentile for word reading, 87th percentile for reading comprehension, and 53rd percentile for pseudoword decoding (Parent Ex. T Table and Graphs Report for WISC-IV and WIAT-II, p. 2). She ranked in the 23rd percentile for numerical operations, 90th percentile for math reasoning, and 1st percentile for spelling (id.). The evaluating psychologist determined that "her learning pattern fits the profile for Specific Learning Disabilities also known as Dyslexia" and that the CSE should review her for classification as "Learning Disabled" (Parent Ex. T at p. 7). The evaluator concluded that his diagnosis was substantiated by the child's academic history, discrepancies within the WISC-IV protocol and discrepancies between potential (WISC-IV) and achievement (WIAT-III) (id.).

        An impartial hearing commenced on March 29, 2004 and concluded on July 28, 2004, after four days of hearings. On the first day of the hearing petitioner asserted that it could not demonstrate that it offered the child a timely free appropriate public education (FAPE) for the 2003-04 school year (Tr. pp. 12, 14, 16, 20, 25). Petitioner also conceded that, as of the first day of the hearing, there was still no written IEP for the child for the 2003-04 school year (Tr. pp. 14, 24, 146), and that "bring[ing] . . . [the child] back now in April would not make sense" (Tr. p. 20). Petitioner stipulated that placement at Kildonan was not harming the child (Tr. p. 17) and asserted that Kildonan was not an appropriate placement only to the extent it was not the least restrictive environment (LRE) for the child (Tr. p. 14). Petitioner asserted that the dispute before the hearing officer involved the pendency placement of the child at the end of the 2003-04 school year rather than tuition reimbursement because petitioner had offered to reimburse respondents for full tuition costs for the 2003-04 school year (Tr. pp. 27, 139-40, 146, 470-76, see also Tr. pp 498-507). Respondents maintained that the dispute before the impartial hearing officer involved tuition reimbursement for the 2003-04 school year; more specifically the dispute involved the appropriateness of respondents' unilateral placement because petitioner conceded the inappropriateness of the public school placement for 2003-04 (Tr. pp. 22-24, 140). The impartial hearing officer concurred with respondents' framing of the issue (Tr. pp. 34, 140).

        The impartial hearing officer rendered his decision on September 3, 2004. Declining to render a decision regarding pendency (IHO Decision, p. 9), the impartial hearing officer framed the issue as an application for tuition reimbursement (IHO Decision, pp. 7, 9). The impartial hearing officer determined, based on petitioner’s concession, that the child was not offered a FAPE for the 2003-04 school year (IHO Decision, p. 17).

        Regarding the appropriateness of the parent's unilateral placement of their daughter at Kildonan, the impartial hearing officer first found a review of the program unnecessary (IHO Decision, p. 18) based on the district's concession that Kildonan was not appropriate only to the extent that it was not in the LRE (Tr. p. 14). Secondly, the impartial hearing officer found that the district's concession regarding its failure to provide the child a FAPE, and its offer to pay full tuition, could be construed against the district in evaluating the appropriateness of parents' placement so as to bar the district from questioning the very placement for which it offered reimbursement of tuition (IHO Decision, p. 18).¹ Finally, the impartial hearing officer found that the child's placement at Kildonan was consistent with the LRE because "she required the intense, specialized assistance which Kildonan provided and which, at the time of her enrollment there, the [d]istrict did not provide" (IHO Decision, p. 19).

        Addressing the issue of equitable considerations, the impartial hearing officer determined that the parents had serious concerns about their child's academic performance when it was found that the child had not progressed substantially and needed summer tutoring (IHO Decision, p. 20). He stated that the parents learned that their daughter needed intense, multi-sensory instruction and after contacting petitioner for immediate reconsideration of their daughter's eligibility for special education services, the parents were met with inaction (id.). The impartial hearing officer found that the parents cooperated at all times, prior to the unilateral placement at Kildonan and thereafter, and made their daughter available for testing and evaluation (id.). The impartial hearing officer further found that the district's settlement offer to pay full tuition barred it from contending that equitable considerations did not favor the parents, even though no such contention was alleged by the district (id.). The impartial hearing officer concluded that equities favored the parents for tuition reimbursement for the 2003-04 school year (id.) and ordered petitioner to reimburse respondents for tuition paid to Kildonan for the 2003-04 school year (IHO Decision, p. 21).

        On appeal, petitioner asserts that the impartial hearing officer erred by making the following determinations: declined to dismiss the case as moot when petitioner satisfied the parent’s request for relief; failed to consider the evidence or arguments raised by petitioner because it was not entitled to any ruling that would lessen the effect of its concession; demonstrated bias; found that respondents where entitled to a full year of tuition reimbursement, Kildonan was appropriate, and the equities favored the parents; and abused his discretion when he failed to consider denial or reduction of tuition reimbursement based on the parents' untimely notice of intent to seek tuition reimbursement.²

        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 [2001]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). To meet its burden of showing that it had offered to provide a 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 developed by its CSE 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]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), which is tailored to meet the student's unique needs. A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

       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, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        I concur with the impartial hearing officer that petitioner conceded that it could not show that it had offered the child an appropriate educational program on a timely basis for the 2003-04 school year and thus conceded the first prong of the tripartite Burlington tuition reimbursement test.

        Turning to the second prong of the Burlington analysis, it must be decided whether respondents have met their burden of proving that the services provided to the child by Kildonan during the 2003-04 school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, respondents must show that Kildonan offered an educational program which met their daughter's special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). 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. 02-111). 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., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002];).

        I concur with the impartial hearing officer’s conclusion that Kildonan is an appropriate placement for this child to the extent that he that found that the placement is appropriate and not overly restrictive based upon his determination that it met her special education needs (IHO pp. 18-19). The record contains sufficient evaluative data concerning the child’s needs, and the services provided at Kildonan, to allow a determination of whether Kildonan was an appropriate placement for the 2003-04 school year. Based upon my review of the record, I find that Kildonan was appropriate. Having so found, I need not determine whether the impartial hearing officer erred in making additional alternative determinations that petitioner was barred from contesting both the appropriateness of the parental placement and the equities of full tuition reimbursement because it offered to pay for the private placement. On this latter point, I note that settlement of disputes by agreement should be encouraged, that settlement discussions between the parties are confidential unless introduced at the hearing by agreement of the parties or by evidentiary exception, and that an adverse inference should not be drawn based upon a party's willingness to settle a dispute (Fed. R. Evid. § 408; N.Y. C.P.L.R. § 4547). However, in the instant case, it was petitioner, with acquiescence by respondents, that introduced its ongoing settlement offer into the record, and which relied on its offer to pay tuition as a basis for asking the impartial hearing officer not to address respondents' request for tuition reimbursement (Tr. pp. 14, 17).

        On March 24, 2003, the CSE determined that the child was eligible for special education services as a child with a learning disability. (Dist. Ex. 4, IEP at p. 1). The IEP formulated by petitioner’s CSE on March 24, 2004 recommended that the student participate in general education with special education support and accommodations, with small group instruction to continue to build basic reading, writing, and spelling skills (Dist. Ex. 4, IEP at pp 1, 2). Special math class and special language arts class, each with a 15:1 student to teacher ratio, in the regular class location were also recommended (Dist. Ex. 4, IEP at p. 1). Indirect consultant teacher services provided to the regular education and reading teachers for science and social studies were recommended for two hours per week (Dist. 4, IEP at p. 1).

        The academic dean at Kildonan (academic dean) testified that at Kildonan all instruction is taught in a structured, sequential, cumulative, and multi-sensory manner (Tr. p. 184). The academic dean further testified that when the child entered Kildonan, she was a little shy and had a hard time engaging in the program (Tr. p. 186). She had very pronounced skills deficits in the areas of spelling, auditory comprehension regarding hearing and recognizing individual sounds and words, and issues in decoding and writing (Tr. p. 187). The November 26, 2003 report card for language training reported that the child quickly learned the open, closed, and silent "e" syllables and the vowel pairs "oo", "oi/oy", and "ou/ow" (Parent Ex. P at p. 1). She also learned the consonant "le" syllable and the syllable division for vowel-consonant-consonant-vowel (vccv) words, which she decoded while reading (id.). Her oral reading was starting to demonstrate inflection and confidence (id.). He further testified that respondents' daughter "has learned over 200 words at a level of automaticity, which has improved her fluency while reading" (id.). As of November 26, 2003, the child had also read a variety of books, totaling approximately 1000 pages (id.). The February 24, 2004 report card indicates grades of O (Area of Strength) and S (Satisfactory) in literature, math, science, social studies, art, and music (Parent Ex. R).

        At Kildonan, the child was grouped with third graders for reading because of her cognitive ability, her ability to master content, and because her reading program was individualized, based on a diagnostic model (Tr. pp. 207, 216-217). The academic dean testified that he spoke to the co-directors and to all of her teachers (Tr. pp. 186-87) and was informed that she is making progress in reading and decoding (Tr. pp. 188, 198). He testified that her language skills are at the low end of third grade level (Tr. pp. 206-07) and she has mastered the first two basic syllabication rules, and three to four kinds of syllables, but still needs to learn vowel teams and blends (Tr. p. 218). According to the academic dean, the child has "all but mastered" cursive writing and contributes to her class on a regular basis (Tr. pp. 188-89).

        The mother testified that her daughter is well liked at school, is relaxed most of the time and her level of confidence has risen dramatically (Tr. p. 240). The child’s private psychologist testified that the child would learn best in an environment that is particularly geared to the learning disabled youngster, both from an educational and self-esteem point of view (Tr. p. 148). The psychologist opined that the child was very comfortable and secure in her learning and in herself and that it was "a definite benefit for her to be in an environment like that at this point in time" (id.).

        The child's March 2004 private psychoeducational evaluation revealed that her weaknesses include: poor basic reading skills for sight word recognition with implied weak long term visual memory for words, inadequate phonics for third grade material although her phonetic skills are becoming stronger, weak basic math skills for computation, and deficient spelling (Parent Ex. T at p. 7). The evaluation indicated that the child is still at the sound/symbol stage of reading, but is making progress using the skills she has been taught at Kildonan (Parent Ex. T at p. 6). Her sight word vocabulary is reported to be weak and she relies on phonics to decode most words (id.). The child's reading rate is reportedly extremely slow because of the effort needed to decode so many words that are well within her spoken vocabulary (id.).

       The evaluation concluded that the support and instruction that the child received in third grade at Kildonan helped her make up for "lost ground" in previous years (Parent Ex. T at p. 7). The evaluator testified that she found the current placement to be very appropriate (Tr. p. 115) and recommended the "intensive educational therapy she has been receiving at the Kildonan School for reading, writing, and for arithmetic," further stating that a multi-sensory, systematic, phonics method of instruction for reading, spelling, and phonics targeted to the child's needs works best for the child (Parent Ex. T at pp. 7-8).

    Petitioner has asserted that Kildonan was an inappropriate placement because it was not the least restrictive environment for the child (Tr. p. 510). However, 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 petitioner's schools, I cannot conclude on that fact alone that it is inappropriate for the student.

    Accordingly, and on the basis of all the above, I find that respondents have met their burden of demonstrating the appropriateness of the program at Kildonan during the 2003-04 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57). By doing so, they have prevailed with respect to the second criterion for an award of tuition reimbursement for their daughter's attendance at that school for the 2003-04 school year.

       The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. Given the facts of this case, I find that respondents notified petitioner and placed in issue the 2003-04 school year in a time frame that allowed petitioner to address respondents' concerns. I'm mindful also that school personnel waited to the last day of the 2002-03 school year to notify respondents that the child was struggling educationally, and that school personnel did not refer the child back to the CSE at that time. I note also that it was respondents who prompted the child’s re-evaluation after they gave expeditious notification to petitioner that the reading specialist, that respondents hired per suggestion of petitioner, had identified the child as learning disabled. Respondents cooperated with petitioner's CSE. Respondents referred their child to the CSE in October 2002 and August 2003. They attended and participated in scheduled CSE meetings. They provided significant amounts of evaluative information to the CSE. In the absence of evidence demonstrating that respondents failed to cooperate in the development of an IEP or otherwise engaged in conduct which precluded the development of an appropriate IEP, I concur with the impartial hearing officer's finding that equitable considerations support respondents' claim for tuition reimbursement for the 2003-04 school year. For all of these reasons, I find that equitable considerations support petitioner's claim for tuition reimbursement for the 2003-04 school year.

        I have considered petitioner's remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.