05-015

            Petitioner, the Board of Education of the Carmel Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' daughter and ordered it to reimburse respondents for their daughter's tuition costs at the Kildonan School (Kildonan) for the 2003-04 school year. The appeal must be dismissed.           

            The student's prior educational history is described in Application of a Child with a Disability, Appeal No. 03-101, and will not be repeated here in detail.¹ Briefly, respondents' daughter was home schooled by her mother until the age of 13, at which time a private evaluation was conducted which revealed that the student was of average intelligence, but had weaknesses in decoding as well as difficulties in other areas which were consistent with symptoms of dyslexia.  In September 2001 respondents enrolled their daughter in Kildonan, a private school exclusively for students with dyslexia (see Tr. p. 892).  In April 2002, respondents moved into petitioner's district and referred their daughter to its Committee on Special Education (CSE).  While the student was being evaluated by the CSE, respondents re-enrolled her at Kildonan for the 2002-03 school year.  In October 2002 the CSE classified the student as learning disabled (LD) and developed an individualized education program (IEP) for the 2002-03 school year which placed her in petitioner's George Fischer Middle School in eighth grade regular education classes for all subjects except English and reading, the latter of which she was placed in 15:1 special education classes which used a multisensory approach to learning for students with reading difficulties.  The CSE also recommended the student receive resource room services five times per week. Respondents rejected the 2002-03 IEP, and in April 2002 requested an impartial hearing seeking reimbursement for their daughter's tuition costs at Kildonan for the 2002-03 school year.  A hearing was held (Hearing 1), after which an impartial hearing officer found that petitioner failed to offer an appropriate program for respondents' daughter, and that Kildonan's program met the student's needs.  The impartial hearing officer ordered petitioner to reimburse respondents for the student's nonresidential tuition costs at Kildonan from the time of the hearing request until the end of the school year.  Petitioner appealed that decision to the State Review Officer (see Application of a Child with a Disability, Appeal No. 03-101).           

            While petitioner's appeal of the impartial hearing officer's decision on the 2002-03 school year was pending before the State Review Officer, on May 8, 2003 the CSE met to begin developing the student's program for the 2003-04 school year (Dist. Ex. 1); her progress at Kildonan was reviewed (Tr. pp. 113-114; Dist. Ex. 10), after which the Committee adjourned to review a comprehensive independent neuropsychological evaluation obtained by the parent (Joint Parent Ex. P-24), updated standardized test scores from Kildonan (Dist. Ex. 18 at p. 28), and to do a classroom observation of the student (Dist. Exs. 1, 11; Tr. pp. 113, 116, 835-86).  The CSE reconvened on May 28, 2003 and developed the student's 2003-04 IEP (Dist. Ex. 2).  The CSE found that the student's cognitive skills were in the average to low average range, her language skills were average to above average, and she had significant reading decoding and fluency deficits, as well as significant spelling and writing mechanics deficits (id. at p. 2; see also Tr. pp. 118-19, 126-27).  The IEP noted that she had a visual-motor processing deficit that impeded her ability to progress in the general curriculum and needed a multisensory instructional approach to learning (id. at p. 2).  The CSE Chairperson, the special education teacher, and the regular education teacher all agreed that the student's standard scores on the Woodcock-Johnson III Tests of Achievement (WJ-III) in broad written language (standard score: 69; second percentile) and broad reading (standard score: 65; first percentile) indicated that "those skills were nowhere near proficient enough for her to engage in the general ed. classes in a meaningful and successful way" in high school (Tr. p. 201; see Tr. p. 198; Dist. Ex. 57; Joint Dist. Ex. B-14).  For the 2003-04 school year, the CSE recommended that the student be placed in the ninth grade in Carmel High School in 15:1 special education classes for all five academic subjects (English, Mathematics, Reading, Science, and Social Studies), with labs for English and Social Studies, and a special Process Reading class (id. at p. 1).²  The Process Reading class used several multisensory programs for reading and writing (Tr. pp. 587, 608), including the Wilson reading program method of multisensory sequential instruction; a program based on the Orton-Gillingham approach, designed to strengthen the student's decoding and encoding skills (Tr. pp. 144, 150, 168-69, 324-26, 337, 344, 662, 1214).  Testing accommodations included extended time for tests, flexible setting, spelling requirements waived, and directions and questions read and simplified (id. at p. 1). Program modifications included reteaching of materials, copies of class notes, texts on tape, and access to word processing with software (id. at p. 2).  The 2003-04 IEP contained identical goals and objectives for the student as the 2002-03 IEP, with the exception of the addition of one math goal and four math objectives (compare Dist. Ex. 2 at pp. 4-5; Joint Dist. Ex. B-2 at pp. 3-5). The parents disagreed with the recommended 2003-04 program (Tr. p. 1005; Dist. Ex. 27).  At the request of the parents, the CSE reconvened on August 22, 2003 to review and explain the student's program and to answer any of the parents' questions; however, the IEP was not changed (Dist. Ex. 3; see Tr. pp. 164, 1001-03, 1005). Respondents did not accept the recommended 2003-04 program (Dist. Exs. 3, 29, 31; Tr. pp. 174, 1005) and enrolled their daughter again at Kildonan for the 2003-04 school year (Tr. p. 1009; Dist. Exs. 27, 31).

             On December 31, 2003 the State Review Officer rendered a decision on the prior school year, finding that the district failed to offer respondents' daughter an appropriate program and upholding the impartial hearing officer's order for tuition reimbursement.³ The State Review Officer found the 2002-03 IEP to be inappropriate primarily because: (1) the student's needs required that she receive special education using multisensory instruction in all five of her academic subjects, (2) the student's needs indicated that an assistive technology evaluation should have been conducted and appropriate technology provided in the IEP, and (3) the IEP's goals and objectives were immeasurable and unrealistic for the student (Application of a Child with a Disability, Appeal No. 03-101).⁴

             After receipt of the State Review Officer’s December 31, 2003 decision, by letter dated January 9, 2004, respondents asked the district's director of pupil services if the CSE intended to revise the student's 2003-04 IEP, and, if not, they were requesting an impartial hearing seeking reimbursement for the cost of their daughter's tuition at Kildonan for the 2003-04 school year (Dist. Ex. 34; Tr. pp. 1008-09).  On February 13, 2004 the CSE reconvened to review the student's IEP for the 2003-04 school year (Dist. Ex. 4).  No changes were made to the May 28, 2003 IEP (compare Dist. Exs. 3, 4), but the CSE did recommend an assistive technology evaluation of the student (Dist. Ex. 4 at p. 4). The district began an assistive technology evaluation of respondents' daughter on February 27, 2004 (Dist. Ex. 61).  The evaluator found that the student would be "a great candidate for assistive technology," but specific recommendations were postponed pending results from an educational evaluation (Dist. Ex. 61 at p. 3).  No new IEP was generated during the 2003-04 school year.  By letter dated April 22, 2004, respondents again informed the district that they had rejected the 2003-04 IEP and requested an impartial hearing seeking reimbursement of their daughter's tuition costs at Kildonan for the 2003-04 school year (IHO Ex. 1; see Tr. pp. 1007-17).  After the school year was over, on July 29, 2004 the assistive technology evaluation was completed (Dist. Ex. 61).⁵

            The hearing (Hearing 2) commenced on May 21, 2004 and concluded on November 1, 2004.  At the start of the hearing, respondents requested that the impartial hearing officer issue a ruling on the student's pendency placement (Tr. p. 12).   On June 3, 2004 the impartial hearing officer rendered an interim decision finding that the student's pendency placement was at Kildonan during the course of the proceedings (see IHO Ex. 13 at p. 1; Tr. p. 570).   At the request of the parties, on September 13, 2004, the impartial hearing officer rendered a second interim pendency ruling clarifying that the district was responsible for payment of the student's nonresidential tuition costs at Kildonan for the entire 2003-04 school year (IHO Ex. 13).  Neither party appealed either of the pendency rulings, hence those determinations are final and binding upon the parties (Application of the Bd. of Educ., Appeal No. 03-019; Application of a Child with a Disability, Appeal No. 00-011; see 20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][v]; see also 8 NYCRR 279.10[d]).⁶  

           After the close of Hearing 2, on December 21, 2004, the impartial hearing officer rendered his decision, finding that the program the district recommended for the student in the 2003-04 IEP developed on May 28, 2003 was inappropriate because it did not include an assistive technology evaluation, which he deemed a necessary component for this student's program (IHO Decision at p 23).  He also found that the services provided by Kildonan were appropriate to meet the student's needs and ordered the district to reimburse respondents for their daughter's nonresidential tuition costs at Kildonan for the 2003-04 school year. 

            Petitioner contends that the 2003-04 IEP does contain some assistive technology services, and that, therefore, the impartial hearing officer erred by finding the district failed to offer the student a FAPE, and requests that the decision awarding tuition reimbursement be annulled.  Petitioner also contends that the impartial hearing officer erred in finding that Kildonan offered an appropriate program to respondents' daughter.  Petitioner alternatively contends that, since respondents' daughter has never previously received special education services from petitioner, that she is barred from seeking tuition reimbursement under the Individuals with Disabilities Education Act (IDEA). 

           The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). 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 [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 (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043). 

           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]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett 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 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).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 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. 04-046; 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 Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires 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]; see also 8 NYCRR 200.4[d][2][i]).  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).

           An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]). 

           An IEP must also 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]; see 8 NYCRR 200.4[d][2][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][x]).

          At the outset I note that petitioner was required, under the unappealed pendency determination by the impartial hearing officer rendered June 3, 2003 and clarified on September 13, 2003, to pay the nonresidential costs of respondents' daughter's tuition at Kildonan for the entirety of the 2003-04 school year based on the pendency determination.  Enforcement of prior orders of an impartial hearing officer are not properly determined by the State Review Officer (see Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-084; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4); however, respondent can obtain enforcement of such orders by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.660-300.662; 8 NYCRR 200.5[k]), or by filing a complaint in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dep't, 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F.Supp. 701 [W.D.N.Y. 1983]; Application of a Child with a Disability, Appeal No. 04-100; Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-04).

         Turning to the merits of the dispute over the 2003-04 IEP developed by petitioner for the student for the 2003-04 school year, a comparison of the 2002-03 IEP with the 2003-04 IEP in light of the decision in Application of a Child with a Disability, Appeal No. 03-101, reveals that for the 2003-04 school year, while the district did place the student in special education classes with multisensory instruction for all five academic subjects (see Dist. Ex. 2 at p. 1; Tr. pp. 169, 176, 284, 287, 290, 332, 378-79, 386, 391-92), petitioner still did not complete an assistive technology evaluation of the student until after the 2003-04 school year had ended, and petitioner failed to adjust the goals and objectives from the 2002-03 IEP to meet the student's needs.  In fact, although the goals and objectives in the 2002-03 IEP were found to be vague and "either not measurable or completely unrealistic" for the student in Application of a Child with a Disability, Appeal No. 03-101, the identical two pages of goals and objectives were included in the 2003-04 IEP, with the addition of a math goal and four objectives (Dist. Ex. 2).  As stated previously in Application of a Child with a Disability, Appeal No. 03-101, these goals and objectives, as written, are too vague and immeasurable to meet the requirements set forth in state and federal regulations.  For example, all of the goals specify the student must "Demonstrate an improvement….", but do not state how (Dist. Ex. 2).  The writing goal states "Demonstrate an improvement in the mechanics of written language such as spelling, capitalization and punctuation necessary to write for information, understanding and written expression" (Dist. Ex. 2 at p. 4), but the expectation as to how the student will demonstrate the improvements in the areas listed in the goal is unknown. More specificity is required in an IEP goal and/or objective (see Sample Individualized Education Program and Guidance Document, VESID, December 2002, at pp. 54-61; Application of the Bd. of Educ., Appeal No. 04-068).

           In addition, the goals and objectives do not match the student's needs or present levels of performance.  For example, although the student did make some progress in her reading abilities in the intervening 2003-04 school year (see Dist. Ex. 18 at pp. 23-24, 28), objectives such as "comprehend subject area textbooks with 80% mastery in a four-week period" and "skim written material and locate facts in the content areas with 80% mastery" (Dist. Ex. 2 at 4) remain very unrealistic for a student who is chronologically entering ninth grade but whose basic reading skills, according to an independent educational evaluation conducted a few months prior to the May 2003 CSE meeting and reviewed by the CSE (Tr. pp. 127-28, 838-39, 1063-64), were still at a third grade level, with reading comprehension at a fifth grade level (Joint Parent Ex. P-24 at pp. 7, 8, 10).  

           Moreover, results of the most recent standardized testing conducted on the student at Kildonan, completed on May 22, 2003, just six days before the May 28, 2003 CSE meeting and provided to the CSE (Dist. Ex. 18 at pp. 1, 28; Tr. pp. 1063, 1065-66), also confirm that the goals and objectives in the 2003-04 IEP do not meet the student's current needs or levels of performance.  For example, results from the Wide Range Achievement Test-Third Edition (WRAT-3) revealed that during the 2002-03 school year, while receiving intensive multisensory sequential instruction in all academic classes, the student had progressed from a fourth grade level to a fifth grade level in reading by May 2003 (Dist. Ex. 18 at p. 28); the Gates-MacGinite Reading Test-Fourth Edition (GMRT-4) showed that the student's reading comprehension was at a fifth grade level⁷ (Dist. Ex. 18 at p. 28); the Gray Oral Reading Test-Fourth Edition (GORT-4) revealed that the student's reading rate was at a second grade level, and her fluency and accuracy were at a first grade level, ranking her at less than the first percentile in these skills (Dist. Ex. 18 at p. 28).  Nevertheless, the CSE's 2003-04 IEP included a study skills objective that required the student to be reading ninth grade subject area textbooks with 80 percent mastery over a four-week period (Dist. Ex. 2 at p. 4). Similarly, Kildonan's dean reported that spelling was one of the student's weakest areas and would probably be one of the last skills developed by her (see Tr. pp. 909, 923), confirming results of the WRAT-3 in May 2003 and the independent evaluator's test results from January 2003, both of which placed the student at a second grade level (second percentile) in spelling (Dist. Ex. 18 at p. 28; Joint Parent Ex. P-24 at p. 9).  In spite of this, the 2003-04 IEP spelling objective required the student to spell basic sight words at a ninth grade level in classroom work with 70 percent mastery over a four-week period (Dist. Ex. 2 at p. 4).   None of these objectives is reflective of the student's present levels of performance, nor are they appropriate in meeting her special education needs.  In short, the goals and objectives are not reasonably calculated to enable this student to receive educational benefit (see Rowley, 458 U.S. at 206, 207).

           The 2003-04 IEP also contains an additional defect new to the 2003-04 school year in that it fails to contain any transition plan for the student.  Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including higher education, if appropriate, employment, and independent living (20 U.S.C. § 1401[30]; see 34 C.F.R. § 300.29; N.Y. Educ. Law § 4401[9]; 8 NYCRR 200.1[fff]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11).

           Accordingly, beginning at the age of 15 (or younger if appropriate) in New York, and 16 (or younger if appropriate) under federal regulations, the student's IEP must not only include a statement of the student's post-school transition needs, taking into account the student's preferences and interests (8 NYCRR 200.4[d][2][i][c]; see 34 C.F.R. § 300.347[b][1]); but must also include a statement of needed transition services being provided (8 NYCRR 200.4[d][2][ix]; see 20 U.S.C. § 1414[d][1][A][vii][II]; 34 C.F.R. § 300.347[b][2]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11). Under New York regulations, needed transition services and activities must be provided in instruction, related services, community experiences, development of employment and other post-school adult living objectives (8 NYCRR 200.4[d][2][ix], citing 8 NYCRR 200.1[fff]). New York regulations also require at age 15 that the student's IEP include a statement of projected post-school outcomes, based on the student's needs, preferences and interests, in the areas of employment, post-secondary education, and community living (8 NYCRR 200.4[d][2][ix]; see Application of a Child with a Disability, Appeal No. 04-112).

          Respondents' daughter was 15 years of age when the 2003-04 school year began and turned 16 toward the latter part of the school year (see Dist. Ex. 2). Nevertheless, contrary to both state and federal regulations, the 2003-04 IEP fails to contain any statement of her transition needs, preferences and interests, projected post-school or higher education goals, nor any statement of provision of transition services (id.).

          In summary, although the revised placement in multisensory special education classes for all five academic subjects in the 2003-04 IEP was appropriate, because the goals and objectives were still inappropriate in meeting the student's needs, no assistive technology evaluation was performed prior to the development of the 2003-04 IEP as required under the regulations (seeApplication of a Child with a Disability, Appeal No. 03-101), and the IEP failed to include a transition plan as required under state and federal regulations, the 2003-04 IEP resulted in a denial of FAPE to the student.                       

         Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 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 (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  In order to meet that burden, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

         The record shows that during the 2003-04 school year, the student's special education needs according to the district's IEP and the independent neuropsychological report included a structured and sequential multisensory approach in all her core academic subjects (Dist. Ex. 2 at p. 2; Joint Parent Ex. P-24 at p. 10; Tr. pp. 673, 700-01). She required instruction in small classes with students of similar cognitive abilities (Joint Parent Ex. P-24 at p. 10; Tr. pp. 281, 283, 145).  Her weaknesses included reading (especially decoding and fluency), spelling, and written expression, which were all well below grade level (Dist. Ex. 2 at p. 2; Joint Parent Ex. P-24).  Program modifications and assistive technology were also needed to assist the student in accessing the general education curriculum (Dist. Ex. 2 at pp. 1-2, Dist. Ex. 61; Joint Parent Ex. P-24).

         The record reveals that Kildonan provided a program to meet the student's special education needs.  The size of her academic classes was small, ranging from 8 to 12 students per teacher (Tr. pp. 895-97).  In addition to her main courses, she received a daily 45 minute individualized one-to-one language tutorial which directly addressed her individual reading and writing deficits using a multisensory sequential instructional approach that was carried over into all of her academic classes (id.; Parent Exs. H, L; Tr. pp.  700-01, 694, 699, 895, 898, 903-05).  Her tutorial instruction focused on phonics, decoding, spelling, fluency, grammar, and other areas of weakness (see Parent Ex. H at p. 1; Parent Ex. L at 1).  She also received training in keyboarding skills (Parent Ex. H at 1; Tr. pp. 692, 1093) and was provided twice per week with training in various forms of assistive technology, such as Dragon Naturally Speaking (Tr. pp. 911-12, 692-93, 941-42), although her use of them was somewhat erratic (see Parent H at p. 9, Parent L at p. 1; Tr. pp. 951-53, 1029-31).   

         The student's teachers consistently described the student as hard working, enthusiastic, diligent, and an active class participant  (Parent Exs. H, L).  She received A's in all her academic subjects during the 2003-04 school year (Parent Ex. H at pp. 8, 17), receiving the highest grade in the class on her final exam in American Literature (Parent Ex. L at p. 2), and a perfect 100 on her final exam in Health (Parent Ex. L at p. 3).  Standardized testing administered at the end of the 2003-04 school year showed that on the WRAT-3, her reading and spelling scores remained essentially the same, but results from the GORT-4 revealed that her reading rate, accuracy and fluency had improved from approximately a first grade level to a third grade level (Parent Ex. L at p. 9).  In addition, the GMRT-4 revealed that the student's reading comprehension score had improved significantly (from a fifth grade level to a tenth grade level), and her vocabulary score was now roughly at grade level (Parent Ex. L at pp. 9, 1).  Kildonan's educational evaluator described the student's progress as "slow and steady…in keeping with the severity of her disability" (Tr. p. 671; Dist. Ex. 18 at p. 24; see also Tr. pp. 894-95, 929).  The evaluator found the fact that the student's IQ score was increasing to be of special significance, indicating that her cognitive processing abilities were improving rather than plateauing (Tr. pp. 671-72).

         The student's language tutor reported that the student completed assignments with care and diligence (Parent L at p. 1).  Although handwriting was a time-consuming process for the student, she reportedly demonstrated that she could write clearly and legibly.  Her typing ability and speed also improved.  She continued to read multisyllabic words containing stable final syllables and learned many homonyms and nonphonetic words.  She continued to have difficulties with substitutions and omissions, particularly of suffixes, but she was better able to self-correct for meaning. In expository writing, the student's five-paragraph essays showed improvement in her ability to organize ideas, create a thesis, and provide supporting evidence.  The student also made great strides in independent reading, reading six books during the school year.

         Based on the record, the parents have met their burden of demonstrating that Kildonan offered a program that met their daughter's special education needs.  

         The final criterion for an award of tuition reimbursement is that the parents’ claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; Weast v. Schaffer, 240 F. Supp. 2d 396, 406-409 [D. Md. 2002]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  The record reveals that the parent attended and participated in the CSE meetings and cooperated with petitioner’s CSE in the student's evaluations and in preparing the student's IEP.  In the absence of any other equitable factor, I find that the parents' claim for tuition reimbursement is supported by equitable considerations.

           Lastly, petitioner, relying on a recent Memorandum and Order from the Southern District of New York (Tom. F. v. Bd. of Educ., __ F. Supp. 2d __ , 2005 WL 22866 [S.D.N.Y. Jan. 4, 2005]), raises the argument (Pet. ¶ 5) that a strict reading of 20 U.S.C.§ 1412(a)(10)(C)(ii) requires that tuition reimbursement be denied for any student, such as respondents' daughter, who has not previously received special education and related services under the authority of a public school agency. This, however, is not a new argument. The statutory provision in question provides that

Reimbursement for private school placement.  If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court of hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(20 U.S.C. § 1412[a][10][C][ii]).

The official commentary to the federal regulations implementing this provision of the IDEA directs that

[H]earing officers and courts retain their authority, recognized in Burlington and Florence County School District Four v. Carter, 510 U.S. 7 (1993) (Carter), to award "appropriate" relief if a public agency has failed to provide FAPE, including reimbursement and compensatory services, under section 615(i)(2)(B)(iii) in instances in which the child has not yet received special education and related services.  This authority is independent of their authority under section 612(a)(10)(C)(ii) to award reimbursement for private placements of children who previously were receiving special education and related services from a public agency.

(Placement of Children by Parent if FAPE is at Issue, 34 C.F.R. § 300.403, 64 Fed. Reg. 12601 at 12602 [Mar. 12, 1999]).

            State Review Officers have consistently declined to construe section 1412 of the IDEA as limiting the authority of a hearing officer, review officer, or court under section 1415 of the IDEA to grant an award of tuition reimbursement to the parents of a child who has not previously attended a public school, absent convincing evidence to the contrary of Congressional intent to do so (Application of a Child with a Disability, Appeal No. 02-052; Application of a Child with a Disability, Appeal No. 00-012; Application of  a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 99-35;  Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-54; Application of a Child with a Disability, Appeal No. 98-41; Application of a Child with a Disability, Appeal No. 98-25). I note that the New York district court case that petitioner relies on is currently on appeal (see Freston v. Bd of Educ., No. 05-0566 CV [2d Cir. Feb. 3, 2005]), and not settled law at the time of this decision; therefore, I must respectfully decline to follow it, pending its final resolution (see generally Application of a Child with a Disability, Appeal No. 01-052; Application of a Child with a Disability, Appeal No. 01-049; Application of a Child with a Disability, Appeal No. 01-044). Absent a final decision from a controlling court to the contrary, I continue to adhere to the State Review Officers' well-settled position and decline to construe section 1412(a)(10)(C)(ii) of the IDEA as limiting the authority of a hearing officer, review officer, or court under section 1415 of the IDEA to grant an award of tuition reimbursement to the parent of a child who has not previously received special education or related services under the authority of the public school district in which the child resides.

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

THE APPEAL IS DISMISSED.