04-088

               Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son’s tuition costs at the Kildonan School (Kildonan) for the 2003-04 school year.  The appeal must be dismissed. 

           At the time of the hearing, the student was 12 years old, in his third year at Kildonan and attending the equivalent of the sixth grade.  Kildonan is 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.  The student's educational history is set forth in two earlier decisions, Application of a Child with a Disability, Appeal No. 03-080 and Application of a Child with a Disability, Appeal No. 02-067, in which the parents' appeals of the denial of tuition reimbursement for the 2002-03 and 2001-02 school years at Kildonan were dismissed, based on findings that the educational program set forth in respondent's individualized education programs (IEP) for those school years were appropriate.  The student’s current classification as learning disabled (LD) is not in dispute (IHO Ex. 5; see 8 NYCRR 200.1[zz][6]).

            In April 2003, respondent conducted several evaluations of the student in anticipation of his annual review.  Administration of the Woodcock Johnson Tests of Achievement III (WJ III) on April 3, 2003 revealed deficits in decoding, oral reading and comprehension (Dist. Ex. 17).  In Broad Reading, the student’s standard score was 75, placing him in the 5^th percentile.  In Basic Reading, the student’s standard score was 76, placing him in the 6^th percentile.  In Letter Word Identification the student’s standard score was 72 placing him in the 3^rd percentile.  In Reading Fluency, the student’s standard score was 84 placing him in the 14^th percentile.  In Passage Comprehension, the student’s standard score was 78 placing him in the 7^th percentile.  In Word Attack, the student’s standard score was 83 placing him in the 13^th percentile. 

           The Weschsler Individual Achievement Test (WIAT) was administered on April 7, 2003 to assess the student’s current level of functioning in specific academic areas, namely mathematics and writing (Dist. Ex. 16).  In mathematics, the student performed overall in the average range with a Mathematics Composite standard score of 93 placing him in the 40^th percentile.  In the Math Reasoning subtest, the student’s standard score was 97 placing him in the 42^nd percentile.  In the Numerical Operations subtest, the student’s standard score was 89 placing him in the 23^rd percentile.  In writing, the student performed in the below average range. The student’s Writing Composite standard score was 72 placing him in the 3^rd percentile.  In the Spelling subtest, the student’s standard score was 77 placing him in the 6^th percentile.  In the Written Expressions subtest, the student’s standard score was 74 placing him in the 4^th percentile.

            Respondent conducted a speech and language evaluation of the student on April 28, 2003 (Dist. Ex. 15).  The student was administered the Test of Language Development – Intermediate (TOLD-I:3) and the Goldman Fristoe Test of Articulation – 2^nd Edition (GFTA-2).  On the TOLD-I:3, the student’s standard score in the area of spoken language was 82, placing him in the 12^th percentile.  In Listening, the student’s standard score was 81 placing him in the 10^th percentile.  In the area of Speaking, the student’s standard score was 85 placing him in the 16^th percentile.  For Semantics, the student’s standard score was 81 in the 10^th percentile and in Syntax his standard score was 85 in the 16^th percentile. 

            Respondent's Committee on Special Education (CSE) met to recommend a program for the 2003-04 school year on June 23, 2003 (Dist. Ex. 10).  Services recommended for the student included a 15:1 non-integrated special class in English; 15:1 integrated classes for math, science and social studies; a 15:1 non-integrated special class in study skills; an occupational therapy consult once a month; and speech therapy in a 5:1 setting twice a week for 30 minutes.  Additionally, the student was recommended to receive remedial reading using a multi-sensory approach for 41 minutes daily.  Testing accommodations included extended time, questions read, flexible setting, answers recorded and the spelling requirement waived.  Program modifications included the use of a multi-sensory approach to instruction for the student’s remedial reading class, access to a word processor and copies of class notes.  Assistive technology included the use of a spelling device, highlighter tape for copying from a text, the use of recorded texts and the use of a word processor.  The CSE recommended that the student’s placement be in a special class in an integrated setting but that his extent of non-participation with general education peers be limited to English.

            By letters dated March 1, 2004 and August 15, 2003, petitioners advised respondent 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 (IHO Ex. 1).  Petitioners asserted that they did not receive the IEP in a timely manner; that the student was not suitably grouped in the 12:1+1 special class; and that the student would not receive instruction in the Orton-Gillingham (O-G) multi-sensory approach in his mainstream classes.  Petitioners’ objection to the timeliness of service of the IEP was subsequently withdrawn (IHO Ex. 5).

            The hearing was held on five days between March 17, 2004 and July 8, 2004.  In a decision dated September 4, 2004, the impartial hearing officer found that respondent’s CSE which met on June 23, 2003 was duly constituted and developed an IEP that was reasonably calculated to enable the student to progress and receive educational benefit (IHO Decision, pp. 9, 17).  She also found that in his three years at Kildonan, the student had made minimal progress in a very restrictive environment which did not provide him with a free appropriate public education (FAPE) or meet his specific needs, and that because his parents had enrolled him in Kildonan without requesting another CSE meeting or conference regarding the CSE, the equities did not favor tuition reimbursement (id. at 17-18) She denied tuition reimbursement for the 2003-04 school year. 

            On appeal, petitioners request that the impartial hearing officer’s decision be annulled because the CSE of June 23, 2003 was improperly composed and because the IEP was not reasonably calculated to enable the student to receive an educational benefit.  Petitioners further request a finding that their unilateral placement of the student at Kildonan was appropriate and request that they be awarded tuition reimbursement and costs for the Kildonan placement for the 2003-04 school year.

            The purpose behind the Individuals with Disabilities Education Act (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]), developed by a school district, 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 Sch. 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 Co. Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

            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 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 least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  State and federal 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[b][5][ii][b] and [d][2][i][a]).  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, Question 1).

            An IEP must include measurable annual goals, with 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][iii][a] and [b]).  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]).

            I will first address petitioners’ contention that the June 23, 2003 CSE was unlawfully constituted because there was no regular education teacher of the child at the CSE meeting.   Petitioners assert that the individual identified in the IEP as respondent’s general education teacher was in fact, a reading specialist not employed by respondent as a regular education teacher at the time of the CSE nor was this individual present at the CSE for the purpose of representing regular education programs or curriculum at respondents’ school.  Petitioners further assert that the CSE was conducted without a teacher from Kildonan present.  Respondent argues that a teacher with dual certification as a regular education teacher and reading specialist, and the likelihood of student’s enrollment in her sixth grade remedial reading class, made her an “appropriate attendee” at the meeting.  With regard to the absence of a Kildonan staff member at the CSE meeting, respondent contends that the academic reports reflecting two years of the student’s attendance at Kildonan provided adequate information upon which the CSE could base its findings.  

            A CSE meeting notice dated June 16, 2003 identified the meeting participants that were expected to attend the June 23, 2003 CSE meeting.  These participants were expected to include the CSE Chairperson, a psychologist, a special education teacher, a general education teacher and a parent member (Dist. Ex. 14).  All participants were identified by title and name with the exception of the general education teacher and parent member who were listed by title only.  Respondent sent a CSE meeting notice to Kildonan on June 17, 2004, after the school year had ended (Tr. p. 582; Dist. Ex. 13).  The attendance sheet for the June 23, 2003 CSE meeting indicated that there was a special education teacher present as well as a reading specialist, however a representative from Kildonan was not present (Dist. Ex. 11).  The reading specialist present was later identified on the IEP as the “General Education Teacher/Reading Specialist” (Dist. Ex. 10).  During the hearing, this individual stated that she holds a permanent New York State teaching certificate as a reading specialist for N – 12 as well as regular education N – 6 (Tr. p. 142).  She is also a permanently certified special education teacher.  She has been a reading teacher at respondent’s district since 1993 (Tr. p. 196).

            The student’s recommended placement of a 15:1 integrated special class was described as a special education class housed within a regular education class and taught by both a regular education and special education teacher (Tr. p. 46).  According to the 15:1 ratio designated on the student’s IEP (Dist. Ex. 10), there could be no more than fifteen disabled students assigned to the integrated class but in actuality there were only nine or ten special education students assigned to the student’s recommended science and social studies classes (Tr. pp. 46, 50).  In addition to the classified students, the integrated classes could contain as many as fifteen or sixteen regular education students (Tr. p. 488). 

            The reading specialist discussed remedial reading and the instructional approaches used in her class (Tr. p. 143).  She stated that she is only responsible for reading goals and described how she would have addressed each of the 13 reading objectives on the student’s IEP (Tr. pp. 153-161).  She stated that has never worked with the student (Tr. p. 190).  Moreover, there is no indication in the CSE minutes or in testimony that she discussed the regular sixth grade curriculum during the formulation of the IEP (Dist. Ex. 9). 

            The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; see also 8 NYCRR 200.3[c][2][ii]). The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).  The child's regular education teacher's membership in the CSE is particularly important to meeting the statutory requirement that the IEP explain how the child's needs will be met so that the child can be involved in and progress in the general curriculum (64 Fed. Reg. 48, p. 12583).  In addition, it is critical that at least one regular education teacher of the child be a member of the CSE and provide input on appropriate supplementary aids and services, including program modifications and supports for school personnel given the IDEA's emphasis on, to the maximum extent appropriate, educating children with disabilities in regular classes with non-disabled children with appropriate supplementary aids and services (64 Fed. Reg. 48, p. 12591). 

             Education Law §4402(1)(b)(1)(b) permits certain members of the CSE to serve in two capacities, but the statute does not authorize a special education administrator or a student’s special education teacher to serve also as the student’s regular education teacher member of the CSE (Application of a Child with a Disability, Appeal No. 01-083). The regular education teacher participating in the CSE should not only be appropriately certified to teach the student, but should also be a teacher who is, or may be, responsible forimplementing a portion of the IEP (Application of the Board of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-080).    

            Although a board of education cannot always be expected to know who the student’s regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but is also teaching in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).

            I am not persuaded by respondent’s assertion that its reading specialist’s certification as a regular education teacher, combined with the possibility that the student may have been assigned to her remedial reading class, qualified her to function as the regular education of such child at the CSE meeting of June 23, 2003.  This is especially so in light of the reading specialist’s admission that her only responsibility insofar as the student is concerned would be related to reading and not the general curriculum. 

            The record does not reflect that a regular education teacher of the child adequately participated in the CSE meeting with respect to the student’s participation in the general curriculum.  Given that the student would participate in the general education curriculum for the majority of his academic classes, and needed support in those classes, the participation of a regular education teacher was especially important.   For example, the student’s 2003-04 IEP recommended that he participate in an integrated class for math, science and social studies with up to 15 regular education students and 15 special education students.  In the classroom, the regular education teacher would be responsible for primary instruction  (Tr. p. 46).  However, the student’s special education teacher stated that the teachers in each class use several different methods of presenting information and that each of the regular education teachers have a specific way of doing things (Tr. pp. 65, 104).   The lack of a regular education teacher on the CSE deprived the child of a regular teacher’s perspective and input in the development, review and revision of the child’s IEP relating to his instruction in these courses.  At the June 23, 2003 CSE meeting, there was no input from a regular education teacher of the child about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24). For example, with this child’s receptive language delays, a regular education teacher on the CSE team would have been beaware of the extent that visual instruction is offered and how best to make the curriculum accessible (seeArlington, 2002 WL 31521158). Nor was there any input from a regular education teacher of the child in other aspects of the development of the IEP, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel (see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).

            Under the circumstances, I find that the absence of the regular education teacher from the June 23, 2003 CSE meeting compromised the development of an appropriate IEP, and therefore, denied the child a FAPE (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002; Application of the Bd. of Educ., Appeal No.02-056; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).  It also seriously infringed on petitioners’ participation in the creation or formulation of the IEP because petitioners had no regular education teacher of the student present at the CSE meeting with whom they could discuss supports for the student’s participation in regular education. Consequently, I find that respondent has failed to demonstrate the appropriateness of the program its CSE recommended for the student for the 2003-04 school year.

            Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to petitioners' son during the 2003-04 school year, I must now consider whether petitioners have met their burden of proving that the services provided to their child during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 04-045; 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, petitioners must show that Kildonan offered an educational program that met their son’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 failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20).

            Kildonan is a private co-educational board and day school for students with language based learning disabilities for grades 2 through 12 (Tr. p. 283).   The school’s mission, according to the academic dean, is to remediate language skills in the areas of reading, writing and mathematics by providing challenging and stimulating curriculum in the four major subject areas (Tr. p. 283).  Kildonan implements the Orton-Gillingham methodology that is used in one-on-one reading tutoring and allegedly infused into the subject matter academic curriculum (Tr. p. 287).  Orton-Gillingham is described as a language-based approach to teaching that is direct, explicit, diagnostic and prescriptive (Exhibit G). 

            The student attended Kildonan in the 2001-02, 2002-03 and 2003-04 school years (Exhibit IHO 5).  The student’s academic progress at Kildonan was reported to petitioners by interim reports.  The academic dean at Kildonan testified that progress reports at the school do not have quantitative criteria and are qualitative in nature (Tr. pp. 347, 349).  On October 16, 2003, the student was described in a progress report as responding well to visual aids and having a good memory for new concepts (Exhibit N).  He reportedly was able to decode accurately each syllable of a multi-syllable word but sometimes had difficulty sequencing the sounds.  In a progress report dated November 26, 2003, the student was reportedly working on expanding basic concepts, solving multi-digit problems and multiplying decimals (Exhibit O).  He was reported to assess problems well and develop thoughtful and creative solutions.  According to his teachers at Kildonan, he consistently demonstrated knowledge of basic concepts and familiarity with how to use resource materials.  In a progress report dated February 24, 2004, the student was described as careful and thorough on calculations and more consistently accurate in solving long division and other computational skills (Exhibit Q). 

            Standardized testing was performed by Kildonan in May 2003, November 2003 and May 2004  (Exhibit V).  The word identification subtest of the Wide Range Achievement Test – Third Edition (WRAT – 3) was administered and revealed an increase in standard scores from 82 in May 2003 to 94 in May 2004.  The Gate-MacGinite Silent Reading Test – 4^th Edition (GMRT – 4) was administered to assess vocabulary and comprehension.  The student’s scores on the May 2003 administration placed his vocabulary in the 4^thpercentile.  Administration in May 2004 placed him in the 21^st percentile.  In comprehension, he placed in the 4^th percentile in May 2003 and in the 42nd percentile in May 2004.  Other assessments during the same time frame revealed minimal improvement in standard scores and percentile rankings.  The Gray Oral Reading Test, 4^th Edition (GORT – 4) was administered to assess rate, accuracy and fluency.  In reading rate, the student placed in the 1st percentile in May 2003 and in the 2^nd percentile in May 2004.  In fluency, he increased from less than the 1^st percentile in May 2003 to the 1^st percentile in May 2004.  In accuracy, the student placed in less than the 1^st percentile in May 2003 and the 9^th percentile in May 2004 Assessments in spelling using the Wide Range Achievement Test – 3^rd Edition (WRAT-3) revealed standard scores of 78 in May 2003 and 75 in May 2004. 

            The student is described by the academic dean at Kildonan as “having weak phonemic awareness of phonological processing” (Tr. p. 294).  He is further described by the academic dean as having severe issues compared to the rest of the Kildonan population (id.).  The student’s reading decoding, fluency and comprehension skills are described as “low” and he has difficulty with spelling (id.).  The student is described by a reading specialist working as a consultant for public schools and Kildonan as having great difficulty generating sentences or paragraphs and having great difficulty retrieving information (Tr. pp. 381-82).  He has processing issues that delay his ability to put together a whole word but once he does, he immediately gleans meaning (Tr. p. 425). 

            During tutoring sessions, the student was observed to have severe speech and language impairments and processing impairments (Tr. pp. 381-382).  The student’s tutor reported that the student makes “very slow progress in very slow increments, has difficulty generating sentences or paragraphs and needs a multi-sensory approach involving many modalities and a lot of structure” (Tr. pp. 382, 388). 

            The student has been classified as a student with a disability since the 1994-95 school year.  Initially, the student was identified as having speech and language impairments.  He received speech and language services in preschool to address expressive and receptive language delays.  The student received both group and individual speech and language services for the 1995-96 and 1996-97 school years.  He reportedly made progress in receptive and expressive language, comprehension, vocabulary and articulation during his preschool years (IHO Ex. 5)

            In May 1997, the CSE classified the student as speech impaired and he received individual and group speech and language services as part of the program recommendation for the 1997-98 school year.  He continued to receive group and individual speech and language services in the 1998-99 and 1999-2000 school year and continued to be classified as speech and language impaired.  The CSE changed the student’s classification for the 2000-01 school year to learning disabled and the student continued to receive speech and language as a related service (IHO Ex. 5). 

            Historically, the student has exhibited receptive and expressive speech and language delays, and the record demonstrates that he continues to do so.  On the Clinical Evaluation of Language Fundamentals – 3 (CELF-3) administered by the district during the 2001-02 school year, the student’s receptive language standard score was 86 placing him in the 18^th percentile.  The student’s expressive language standard score was 75 placing him in the 5^th percentile (Dist. Ex. 15).  The Test of Language Development – Intermediate (TOLD-I:3) administered by the district during the 2002-03 school year, revealed that the student’s standard score in the listening subtest was 81, placing him in the 10^th percentile.  His standard score for speaking was 85 placing him in the 16^th percentile.  His standard score for semantics was 81 placing him in the 10^thpercentile and his standard score for syntax was 85 placing him in the 16^th percentile   (Dist. Ex. 15). 

            The hearing officer found that the child had made minimal progress in his three years at Kildonan and that the program did not meet his specific needs or provide related services (IHO Decision p. 17).  The evidence in the record does not persuade me otherwise. 

            Upon reviewing the record, I find that petitioners have not met their burden of establishing that the Kildonan placement was appropriate to address the student’s educational needs.  The student’s history demonstrates a consistent requirement of speech and language therapy in order to benefit from instruction and access the curriculum.  Yet since the student’s enrollment at Kildonan, beginning with the 2001-02 school year, he has not received formal speech and language therapy, as Kildonan does not offer these services (Tr. p. 344).  At the hearing, the academic dean at Kildonan stated that the school does not accept students that need occupational therapy or speech language therapy in excess of what could be provided in the individual language tutorial (id.).  The academic dean further stated that the Orton-Gillingham methodology used at Kildonan can address some speech and language issues regarding phonology, phonemics and to some extent, articulation, but if a student has extreme needs in speech and language, Kildonan would not be able to meet those needs (id.).

            The student’s recent speech and language evaluations show the student as continuing to score well below average in expressive and receptive language skills (Tr. p. 287; Dist. Ex. 15).  Although Kildonan asserts it infuses the Orton-Gillingham methodology across all academic areas, I find the phonics-based approach insufficient to address the student’s identified speech and language needs.  Kildonan does not offer the speech and language therapy services that this student requires and the record does not establish that Kildonan has staff qualified to provide such services. 

            Accordingly, I must find that Kildonan is not an appropriate placement for this student.

            Having determined that petitioners have not met their burden of proof as to the appropriateness of the student’s placement at Kildonan for the 2003-04 school year, I need not address equitable considerations (Application of a Child with a Disability, Appeal No. 04-028; Application of the Bd. of Educ., Appeal No. 01-014). 

            I have reviewed petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

IT IS ORDERED that the impartial hearing officer’s decision is annulled to the extent that she found that respondent offered to provide the student an appropriate educational program for the 2003-04 school year.