00-041

        Petitioner appeals from an impartial hearing officer's decision which held that petitioner was not entitled to an award of tuition reimbursement for her child's attendance at the Kildonan School (Kildonan) during the 1998-99 school year. The hearing officer found that the school district had developed an appropriate educational program for petitioner's child. The appeal must be dismissed.

        Before addressing the merits of petitioner's appeal, I note that respondent has submitted additional evidence with its answer and respondent's attorney submitted an affidavit with an attached exhibit. The additional information pertains to difficulties the parties experienced with the hearing officer initially appointed to hear the case. That hearing officer never issued a decision, and a new hearing officer was appointed. On appeal, petitioner raises an issue regarding the failure of the initial hearing officer to issue a decision. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). Because the record would be incomplete without the additional information, I have accepted it.

        The student was nine-years-old at the time of the hearing. She had entered kindergarten in the school district during the 1994-95 school year. Subsequent to kindergarten, the student was placed in a pre-first grade class for the 1995-96 school year. She was initially referred to the Committee on Special Education (CSE) in April 1997, when she was in the first grade (Exhibit 4).

        In May 1997, a speech/language evaluation, a psychoeducational evaluation and a classroom observation were performed. In addition, a social history was taken. The student’s performance on the Clinical Evaluation of Language Fundamentals - Revised (CELF) revealed that her receptive language skills were within the normal range. Her expressive language skills were below average and fell into the fourth percentile. On the Language Processing Test - Revised (LPT), the student achieved a standard score of 76, an age equivalent of 5-7 and a percentile of six. She achieved a standard score of 80 and a percentile of 10 on the Test of Word Finding. The evaluator recommended that the student receive speech/language therapy in a group three times per week and individual speech/language therapy one time per week, with a focus on developing her language processing skills, expressive language skills, and specific word finding. The evaluator also recommended that a Central Auditory Processing Test be administered (Exhibit 18).

        During the classroom observation, the student was reportedly focused and her behavior was unremarkable. On the Weschler Intelligence Scale for Children - Third Edition (WISC-III), the student achieved a verbal IQ score of 88, a performance IQ score of 123 and a full scale IQ score of 104. The Diagnostic Reading Scales (DRS) revealed that the student had difficulty with silent reading and phonics. She performed well below average on the Visual Aural Digit Span Test. The evaluator recommended that the student be classified as learning disabled and placed in a regular education class, with the services of a consultant teacher and resource room support. She also recommended a firm, structured environment with an emphasis on phonics instruction in reading (Exhibit 17).

        On May 28, 1997, the CSE recommended that the student be classified as learning disabled. Its recommended placement was in a regular education class, with 60 minutes of resource room services five days per week. The CSE also recommended that the student receive 30 minutes of speech/language therapy in a group three times per week, 30 minutes of individual speech/language therapy per week, and 30 minutes of direct instruction in content areas from a consultant teacher five days per week. An audiological evaluation was also recommended by the CSE (Exhibit 8).

        Petitioner informed the school district that she agreed that her child should be classified as learning disabled, but she did not agree with the placement recommendation. She requested another CSE meeting (Exhibit 3-B). In a letter dated June 14, 1997, petitioner informed the CSE that she would place her daughter privately if the CSE did not recommend an appropriate placement for her daughter by the third week of August 1997 (Exhibit 3-C).

        An audiological evaluation was conducted on July 28, 1997. The audiologist reported that the student had normal hearing sensitivity, but had significant difficulty with auditory processing. She recommended preferential seating for the student, a small group setting and a preview of vocabulary for new lessons. The audiologist opined that the student would need an assistive listening device in a larger group to help her listen when she became fatigued (Exhibit 19).

        A second CSE meeting was scheduled for August 15, 1997, but petitioner was unable to attend (Exhibit 3-D). After being informed that another CSE meeting could not be scheduled until September, petitioner chose to enroll her daughter in a private school. She requested information from the school district regarding the procedures for obtaining tuition reimbursement (Exhibit 3-F).

        An independent psychoeducational evaluation conducted in August 1997 revealed that the student had a severe processing deficit involving short-term memory for both auditory and visual stimuli. In addition, the student's ability to analyze and interpret sound sequences in information presented auditorily was significantly impaired, and she displayed an inability to correlate visual memory with an appropriate kinesthetic-motor association. The evaluator opined that the student would not benefit from instruction in a traditional classroom and that a multi-sensory teaching approach, such as the Orton-Gillingham method, should be employed with the student (Exhibit 20).

        The parent enrolled her daughter in Kildonan for the 1997-98 school year. The student was placed in the third grade (Exhibit 25). Kildonan is a private school serving students with language impairments (Exhibit E). It has not been approved by the State Education Department to provide instruction to children with disabilities. In accordance with a stipulation, the school district agreed to reimburse the parent for her child's tuition. A progress report developed by the Kildonan staff in November 1997, indicated that the child was achieving grades ranging from S- to O+, with S indicating a satisfactory grade and O indicating an outstanding grade (Exhibit 21). In January 1998, the student's reading skills were evaluated. On the Gates-McGinitie Reading Test, she achieved a grade equivalent of 1.3 and percentile of 4 for vocabulary. She achieved a grade equivalent of 1.5 and percentile of 10 for reading comprehension. The student achieved a grade equivalent of <2.0 on the Ayres Copying Speed Test. On the Stanford Achievement Test in Math, the student achieved a grade equivalent of 3.4 and percentile of 85 for concepts of numbers. On the computations and applications sub-test of that test, the student achieved a grade equivalent of 3.3 and percentile of 83 (Exhibit 25). A Kildonan interim report dated January 20, 1998 indicated that the student had achieved grades of S+ through O+ (Exhibit 22).

        In May 1998, petitioner asked respondent to pay a down payment on her child’s tuition at Kildonan for the 1998-99 school year (Exhibit 3-I). Her request was denied because the CSE had not recommended placing the student at Kildonan (Exhibit 30). Also in May 1998, the student was evaluated at Kildonan. On the Gates-McGinitie Reading Test, she achieved a grade equivalent of 2.1 and percentile of 20 for vocabulary and a grade equivalent of 2.2 and percentile of 25 for comprehension. On the Stanford Achievement Test in Math, the student achieved a grade equivalent of 4.0 and percentile of 78 for concepts of numbers and a grade equivalent of 4.5 and percentile of 86 for computations and applications (Exhibit 25). The student's year-end progress report indicated that she achieved grades ranging from S- to O+ (Exhibit 23).

        On July 27, 1998, respondent’s CSE recommended that the student continue to be classified as learning disabled. It also recommended that the student be placed in the district’s Intensive Learning Program, which is a special education program with a student: staff ratio of 12:1+1, for 66 minutes five times per week. In addition, the CSE recommended that the student receive individual instruction in reading from a special education teacher for 45 minutes per day. It further recommended a total of one hour and fifteen minutes of consultant teacher services per week for the student (Exhibit 11). The record indicates that the parent requested an impartial hearing subsequent to the July 27 CSE meeting.

        Another CSE meeting was scheduled for August 28, but petitioner was unable to attend. The CSE had reportedly intended to recommend a day placement for the student in the Hartland School (Hartland), which is an approved private school located in Albany, N.Y. (Exhibits 3-M, 31). Petitioner reportedly advised the Director of Hartland that she did not want her daughter to attend that school, and the student was not evaluated by the private school for admission (Exhibit 30). The Director of Hartland subsequently testified that she did not feel that the student could be placed appropriately at Hartland (Transcript pp. 99, 181).

        The CSE reconvened on September 4, 1998. It recommended that the student be placed in a third grade special education class with a 12:1+1 student: staff ratio in the Intensive Learning Center, but that she be mainstreamed for lunch, recess, physical education, science, math, social studies and art/music. The CSE again recommended that the student receive 30 minutes of speech/language therapy in a group three times per week, and 30 minutes of individual speech/language therapy per week. Recommended support services included targeted case management twice per month, 60 minutes of direct consultant teacher services with a reading specialist five times per week, and 15 minutes of indirect consultant teacher services five times per week. The CSE’s recommended testing modifications included extended time, revised method of response, directions and questions read to the student, and use of an alternate testing location. The student’s IEP annual goals and short-term objectives pertained to reading, writing and communicating (Exhibit 1).

        Petitioner did not accept the CSE’s recommendations, and enrolled her child in Kildonan for the 1998-99 school year. She requested an impartial hearing, which took place over the course of eight days from January through May 1999. The student’s schedule pursuant to the proposed IEP was discussed at great length during the hearing. Respondent submitted the student's proposed schedule. Individual reading was scheduled for 60 minutes each day. Language training and spelling were each scheduled four times per week. The student's special education teacher was to provide language training and spelling. Speech/language therapy was to have been provided for 30 minutes four times per week in the morning, prior to the start of the school day. For all other subjects, the student participated in the mainstream with special education support. Because of the morning session of speech/language training, she was scheduled to spend 6.25 hours in school most days (Exhibit 33).

        The Intensive Learning Center was described as a place where children were provided with individual instruction in reading, math and language (Exhibit 34). Students placed in the Intensive Learning Center participated in the mainstream to the extent of their ability (Transcript p. 364). The special education teacher in the Intensive Learning Center, who had received 45 hours of training in the Orton-Gillingham method of teaching, testified that she used Orton-Gillingham techniques as well as other teaching methods in her classroom (Transcript p. 389). The teacher also testified that she worked as a team teacher with two regular education teachers (Transcript p. 365). The profile of the recommended class in the Intensive Learning Center indicated that there were eight students ranging in age from 8 to 10 in the class. All of the students were in the third grade. Their average full scale IQ was 84, and their average grade equivalents for reading, math and written expression were 2.6, 2.7 and 2.2, respectively (Exhibit 2).

        Respondent hired a teacher with 80 hours of training in the Orton-Gillingham method to provide the student with individual reading instruction (Transcript p. 108). Ms. Diana King, the founder of Kildonan, was hired by respondent to continue working with 13 of the school district's teachers whom she had previously trained in the Orton-Gillingham method. Ms. King testified that she was familiar the student's individual reading instructor and respected her as a professional (Transcript p. 493). Ms. King stated that she agreed with the CSE recommendation to place the student in third grade. She opined that the student had likely been placed in fourth grade at Kildonan as a matter of convenience. She stated that it probably had more to do with class size than the student's ability to perform at a fourth grade level (Transcript 498).

        The hearing officer who presided over the hearing never rendered a decision. On October 28, 1999, the hearing officer’s certification as a hearing officer was annulled by the Commissioner of Education, and respondent was directed to appoint a new hearing officer by the State Education Department (Exhibit 3 to Respondent’s answer). A new hearing officer was appointed on January 20, 2000. He reviewed the record from the hearing, and rendered his decision on May 16, 2000. He dismissed petitioner’s contention that the school district had failed to offer a timely IEP to her child, noting that the basic IEP had been prepared at the CSE’s annual review on July 27, 1998, and finalized by the CSE at its September 4, 1998 meeting. He found that the student’s IEP adequately reflected the results of her evaluations, established goals and objectives which were related to her educational deficits, and provided for the use of appropriate special education services during the 1998-99 school year. The hearing officer further found that Kildonan was a more restrictive placement than was educationally appropriate for the student. He dismissed petitioner’s claim for an award of tuition reimbursement.

        Petitioner contends that the hearing officer erred in finding that respondent had offered a timely and appropriate IEP for her daughter, and in finding that the private school was not appropriate for her daughter. Petitioner asserts that the IEP was unclear, failed to report sufficient evaluative information to accurately identify her child’s present levels of performance, and did not include a statement about the student's writing skills. She further asserts that the CSE's recommendation for inclusion of her child in a regular education class was inappropriate because the student required a full-time structured environment in which the Orton-Gillingham technique was used in order to learn. Petitioner also asserts that the CSE’s recommendation of placement in a third grade class was inappropriate because it would have been a demotion for the student.

        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 (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). 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 County School 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 (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        I will first address petitioner’s contention that respondent failed to provide an IEP on a timely basis. Having looked at the record, I find, as did the hearing officer, that a proposed IEP was discussed at the CSE meeting on July 27, 1998 (Exhibit 11). During the meeting, petitioner indicated her disagreement with the CSE’s recommended program for her daughter, and her intention to enroll her daughter in Kildonan for the 1998-99 school year. It was agreed to look at Hartland as an alternative, but the CSE did not in fact change its recommendation for an in-district placement (Transcript p.94). At petitioner’s request, an additional CSE meeting was scheduled to be held on August 28, 1998, but was in fact not held because petitioner could not attend the meeting (Exhibit 3-L). The CSE did reconvene again on September 4, 1998. It recommended the same educational program as it had recommended in July, except that it added speech/language therapy. I find that petitioner’s assertion is without merit.

        At an annual review, a CSE is required to review a student's existing IEP and other "current information pertaining to the student's performance" (8 NYCRR 200.4[e][1]). In this instance, the CSE reviewed the student's IEP, the evaluations conducted the previous year, a private psychoeducational evaluation, and progress reports from Kildonan. I find that the CSE appropriately reviewed the student’s current levels of performance for the purpose of developing her IEP. The IEP included a narrative description of the student’s academic achievement, social development, physical development, and management needs as required by 8 NYCRR 200.4 (c)(2)(i), as well as a tabular summary of relevant test results. I find that it adequately described her current levels of educational performance.

        An IEP must include annual goals and short-term objectives which are directly related to a student’s educational deficits and which include objective criteria for measuring the student’s progress. Having looked at this student’s IEP, I find that the annual goals were directly related to her educational deficits in reading decoding and comprehension, spelling, writing, and organizational skills. Performance standards were given in terms of a percentage of accuracy, with performance to be measured by pre and post-testing. While I agree with petitioner that the short-term objectives were not drafted as intermediate steps, I do not find that is a sufficient basis for invalidating the IEP.

        I find that the recommended placement addressed the student's individual needs in the least restrictive environment. Although petitioner asserts that the CSE should not have recommended an inclusion placement for her daughter, I find that the student's needs were not so severe as to warrant full-time placement in a self-contained class. The student was capable of making adequate progress in the recommended placement. I have considered petitioner’s assertion that it would have been inappropriate to place her daughter in a third grade class because it would allegedly have been a demotion for her. In addition to the opinion expressed by Ms. King in her testimony, I note that the student’s achievement test scores indicate that she would have been appropriately placed in the third grade for the 1998-99 school year. I concur with the hearing officer’s finding that respondent offered to provide a free, appropriate public education to petitioner’s child during the 1998-99 school year.

        Because I have found that the school district proved the appropriateness of its program, I need not address the appropriateness of the private placement or whether equitable considerations support petitioner’s claim for an award of tuition reimbursement. I will address petitioner's contention that she is entitled to tuition reimbursement because of procedural violations in the hearing process. State and federal regulations require school districts to ensure that hearing officers issue final decisions no later than 45 days after a request for a hearing (8 NYCRR 200.5[i][4]; 34 C.F.R. § 300.511[a]). Although petitioner claims that she did not waive this requirement, the record clearly indicates that she did. At the initiation of the hearing, petitioner's attorney stated, ". . .we have clearly waived our 45 day rights. . ." (Transcript p. 28). Given petitioner's waiver, I find that the failure to issue a decision within 45 days is not a due process violation.

        Petitioner also asserts that the she was denied due process because the hearing officer who presided at the hearing was not the hearing officer who issued the decision. State regulations require that the impartial hearing officer "shall preside at the hearing and shall provide all parties an opportunity to present evidence and testimony" (8 NYCRR 200.5[c][4]). In a letter dated January 17, 2000, petitioner's attorney specifically consented to the appointment of a new hearing officer to issue a decision (Exhibit A to Affidavit of Karen Norlander, dated July 10, 2000). Given petitioner's specific consent to the appointment of a new hearing officer, I find that her assertion of a due process violation is without merit.

        I have considered petitioner’s other contentions which I find to be without merit.

THE APPEAL IS DISMISSED.