01-105

       Petitioner appeals from an impartial hearing officer’s decision denying her request for tuition reimbursement for her son’s attendance at The Windward School (Windward) during the 2000-01 school year. The hearing officer found that the school district’s program was inappropriate, and Windward’s program was appropriate. However, she held that equitable considerations mandated a denial of tuition reimbursement. Respondent cross-appeals from the hearing officer’s findings with regard to its program and that of Windward. The appeal must be dismissed. The cross-appeal must be sustained in part.

        At the time of the hearing, the student was 11 years old, and he was attending fifth grade at Windward. Windward is a private school for students with learning disabilities, but it has not been approved by the New York State Education Department to provide instruction to children with disabilities.

        Respondent’s Committee on Special Education (CSE) initially classified the student as learning disabled in November 1997, when he was in the second grade. According to a June 15, 2000 psychological evaluation, the student’s cognitive skills are in the average range, but he has relative weaknesses in long-term and working memory, perception and the use of visual detail, and processing speed (Exhibit 8). He has remained classified as learning disabled, and his classification is not in dispute.

        Petitioner’s son attended respondent’s schools from kindergarten through third grade. The student exhibited learning difficulties during kindergarten, and was provided with support services in the learning resource center (Transcript pp. 162, 163). During first grade, the student continued to attend the learning resource center, and he received speech/language therapy for speech articulation difficulties. His speech/language therapy was discontinued by the end of the school year (Transcript pp. 163, 164).

        During the summer after first grade, petitioner’s son was privately evaluated by an educator, who reported that the student’s basic academic skills were delayed by approximately one year, and that he manifested a "dyslexic-like pattern". She also reported that the student exhibited speech articulation difficulties, and that learning difficulties were causing him to experience anger and sadness. The evaluator recommended that the student be classified as a learning disabled student, and that he continue to receive speech/language therapy to address articulation and word retrieval difficulties (Exhibit 10). The student’s parents shared the evaluations with respondent’s CSE (Transcript p. 168).

        In November 1997, the student’s teacher in the learning resource center reported that the student had not yet acquired a basic sight vocabulary, and that his weaknesses with visual-perceptual skills and retrieval of sound/symbols had kept him from acquiring the phonological sense necessary for reading and spelling. She recommended that the student be classified learning disabled and that support in reading, writing and math be continued (Exhibit 25). Near the end of November 1997, the CSE classified petitioner’s son as learning disabled. It recommended that he receive special education for language arts, and remedial assistance for math during the remainder of the 1997-98 school year (Transcript p. 170).

        In the spring of 1998, the student achieved grade equivalents of 1.8 for total reading and 2.1 for total math on the Stanford Achievement Test (SAT). He also achieved a score in the 27th percentile for written expression on the Metropolitan Achievement Test (MAT). The student was evaluated by a speech/language therapist in April 1998. On tests of his single word receptive and expressive vocabulary, he scored in the high average range. He demonstrated mild delays on two subtests of the Clinical Evaluation of Language Fundamentals - Revised (CELF-R). The evaluator opined that the student’s language needs were being met in the learning resource center, and that he did not require speech/language services (Exhibit 15).

        The parents completed an application for admission of their child to Windward in January 1998. In September 1998, a private psychological evaluation was conducted in order to complete the requirements for the private school application (Exhibit I). The student was reportedly admitted to Windward in March 1999, but he remained in third grade in respondent’s Quaker Ridge School for the rest of the 1998-99 school year. Respondent’s CSE revised the student’s individualized education program (IEP) in March 1999, after discussing a private consultant’s report (Exhibit 17) with the student’s parents. The CSE recommended that the student receive 30 minutes of individual counseling per week, which the parents reportedly declined to accept (Exhibit 2).

        In May 1999, the SAT, MAT, and the Key Math Test were administered to petitioner’s son. The evaluator who administered the SAT reported the student’s timed scores and untimed scores. For vocabulary, the student achieved a grade equivalent of 2.5 and percentile of 13 when he was timed. When he was not timed, he achieved a grade equivalent of 4.5 and percentile of 66. For reading comprehension, the student achieved a grade equivalent of 2.3 and percentile of 13. When he was not timed, the student achieved a grade equivalent of 7.1 and percentile of 85. On the written expression portion of the MAT, the student achieved a score in the 22nd percentile. On the Key Math Test, the student achieved a grade equivalent of 3.2 and percentile of 14 for math computation. For math concepts, he achieved a grade equivalent of 4.2 and percentile of 55. For math application, he achieved a grade equivalent 4.3 and percentile of 61 (Exhibit 18).

        At its annual review in May 1999, the CSE recommended a program including special class for language arts lasting 90 minutes each day, with a student: teacher ratio of 5:1. The CSE again recommended counseling to address the student’s test anxiety. Program modifications included books on tape and modifications of amount of homework. Testing modifications included having directions read/explained, flexible scheduling, special location, spelling waived and twice as much time to complete tests (Exhibit 3).

        The student’s parents chose to enroll him in Windward at their expense for the 1999-2000 school year. In February 2000, the parents signed a contract and paid a deposit for their child to attend Windward during the 2000-01 school year (Transcript p. 265). Windward reported in March 2000 that the student was having a successful year (Exhibit 22). In May 2000, the parents paid the balance of their son’s tuition for the 2000-01 school year.

        The student’s triennial evaluation was conducted in spring 2000. He was observed in class at Windward on March 8, 2000 by respondent’s school psychologist, who reported that the student was quiet, but attentive (Exhibit 7). Petitioner provided information for a social history update on March 28, 2000 (Exhibit 5). The student’s parents declined to have their child tested in reading and math by respondent’s staff. They requested that the CSE use the SAT results that had been obtained at Windward in May 2000 (Exhibit 6). On the SAT, the student achieved a grade equivalent of 3.1 and percentile of 20 for reading comprehension. The student achieved a total reading grade equivalent of 3.3 and percentile of 17. For math computation, the student achieved a grade equivalent of 5.3 and percentile of 60. The student achieved a math concepts grade equivalent of 7.7 and percentile of 83. He achieved a total math grade equivalent of 6.4 and percentile of 76. One of respondent’s special educators administered the Test of Written Language (TOWL) to the student, who achieved a score in the first percentile. The educator noted that the student’s written output was limited and compromised by errors in the mechanics of writing. As noted above, a psychological evaluation was completed on June 15, 2000 (Exhibit 8).

        At the request of the parents, the CSE’s annual review was held on June 20, 2000 after completion of the school year. The CSE recommended that the student attend a regular education class, with five hours per week of pull-out resource room services in a maximum group of five, and the services of an individual aide for ten hours per week in the student’s regular education class. The CSE did not recommend a change in the student’s program modifications or testing modifications. The parents requested a speech/language evaluation. The CSE agreed to perform a speech/language evaluation in the fall, even though the student’s IEP indicated that he had age appropriate speech articulation skills, receptive language skills, and expressive language skills (Exhibit 4). The parents had their son privately evaluated by a speech pathologist on June 29 and July 3, 2000 (Exhibit A).

        The student remained at Windward for the 2000-01 school year. By letter dated January 29, 2001, petitioner’s attorney advised respondent’s director of special education that the parents did not accept their son’s IEP for the 2000-01 school year and requested an impartial hearing (Exhibit 1). The hearing was held on two days in June 2001, after being adjourned with the consent of the parties.

        On October 28, 2001, the hearing officer rendered her decision. She rejected petitioner’s claim that the CSE had been invalidly composed on June 20, 2000, but agreed with the parent’s claim that respondent should have conducted a speech/language evaluation as it had agreed to do. She found that respondent had failed to prove that it had offered to provide an appropriate educational program during the 2000-01 school year. The hearing officer also found that the parent had met her burden of proving that Windward had provided an appropriate educational program to her son. However, she found that equitable considerations did not support the parent’s claim for tuition reimbursement because the parent had no intention of removing her son from Windward to attend respondent’s school during the 2000-01 school year. In reaching that conclusion, the hearing officer noted that the student’s parents were well aware of their due process rights, and had by their inaction prevented the CSE from correcting any mistakes or omissions in the student’s IEP.

        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 Sch. 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 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 (Application of a Child Suspected of Having 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 (Bd. 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]).

        Both parties have appealed from parts of the hearing officer’s decision. I will first consider respondent’s cross-appeal from the hearing officer’s finding that it had failed to offer an appropriate program to the student, which would render petitioner’s appeal moot if the cross-appeal is sustained. An appropriate 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. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must not only be substantively correct, it must be prepared in accordance with the prescribed procedure. I cannot find that respondent has met its burden of proving that the program recommended by its CSE was appropriate because the CSE was not properly composed.

        Federal regulation requires that an IEP team (CSE in New York) consist of the parents of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child, or if appropriate, at least one special education provider of the child, and a representative of the school district who is qualified to provide or supervise the provision of special education (34 C.F.R.§ 300.344[a]). On June 20, 2000, the CSE included petitioner, a regular education teacher, a special education teacher, a school psychologist, and a parent of a student with a disability residing in the district (Exhibit 4). The special education teacher and the school psychologist each qualify to fulfill the role of an individual who can interpret instructional implications of evaluation results and the role of a representative of the school district qualified to provide, administer or supervise special education and is knowledgeable about the general curriculum and resources (N.Y. Education Law, Section 4402[1][b][1][b]).

        The record shows that the person who served as the regular education teacher was employed as respondent’s director of special education (Transcript p. 81). The record does not reveal whether the person is actually certified as a regular education teacher (Transcript p. 82). In any event, there is no evidence to suggest that this person would or could have been the student’s regular education teacher during the 2000-01 school year. In the absence of the required regular education teacher member, I must find that the CSE could not have recommended a valid IEP. The IEP that was prepared for the 2000-01 school year is therefore a nullity (Application of a Child with a Disability, Appeal No. 01-083).

        The Board of Education also cross-appeals from the hearing officer’s finding that petitioner’s son was appropriately placed at Windward for the 2000-01 school year. A student’s parent bears the burden of proof with regard to the appropriateness of the services selected during the 2000-01 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent must show that the private school offered an educational program which met the student’s special education needs (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        The CSE noted on the student’s IEP for the 2000-01 school year that deficits in his reading and writing skills hindered him from accessing the regular curriculum with ease and independence. A comparison of the student’s scores on the SAT and TOWL-R in May 2000 and April 2001 does not show that the student made a significant gain in either reading or writing (Exhibits 4, 30). I note that a private evaluator reported in January 2001 that the student had made progress in improving his reading decoding skills, and that on one subtest of the Gray Oral Reading Test, he had performed at a beginning fourth grade level (Exhibit B). The private evaluator reported that the student’s reading decoding and comprehension skills were in the low average range, and that he had shown tremendous growth in a relatively short period of time. At the hearing, she testified that she had reassessed the student in June 2001, and that there was significant improvement in his reading skills (Transcript pp. 402-403). However, she did not provide any data to substantiate her testimony with respect to the June 2001 assessment. She also briefly described the reading and writing programs used at Windward as systematic, and she opined that petitioner’s son required such programs (Transcript p. 404).

        I have carefully considered the hearing officer’s finding with respect to the appropriateness of the services provided by Windward to petitioner’s son during the 2000-01 school year. She reasoned that the fact that the student did not show progress at Windward was not evidence of Windward’s inappropriateness because the challenges he faced at Windward were similar to those he had faced in respondent’s schools. The nature and extent of a child’s disability will certainly affect his rate of progress in acquiring basic academic skills such as reading and writing. However, I must point out that the 2000-01 school year was the student’s second year in the private school that reportedly specializes in children with learning disabilities. A reasonable amount of progress should have been expected. I am also concerned by the absence of a description of the school’s program, or testimony by someone from the school to explain how the school’s program had met this student’s special education needs. Absent evidence of progress or a description of how the private school’s educational program specifically met this student’s needs, I find that petitioner has not met her burden of proof with respect to the appropriateness of the services provided to her son by Windward during the 2000-01 school year.

        In view of my finding that petitioner has not met her burden of proof with respect to the second of the three criteria for an award of tuition reimbursement, I must also find that she is not entitled to such an award. Consequently, I find that the issue petitioner wished to raise in her appeal, whether her claim for such an award was supported by equitable considerations, is moot.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it found that respondent’s CSE had been validly composed when it prepared the child’s IEP for the 2000-01 school year, and that petitioner had demonstrated that Windward had provided appropriate special education services to her son during that school year.