finding IEP was not reasonably calculated to confer educational benefits where parents had shown dyslexic child's need to receive Orton-Gillingham instruction and IEP "relied on these methods to only a limited extent"Summary of this case from Robert v. Arlington Central School District
02 Civ. 2117 (DLC)
November 14, 2002
Raymond G. Kuntz, Law Offices of Raymond G. Kuntz, P.C., Bedford Village, NY, For Plaintiff.
RosaLee Charpentier, Family Advocates, Inc., Kingston, NY, For Defendants.
OPINION AND ORDER
Plaintiff Arlington Central School District ("Arlington") brought this action on March 15, 2002, pursuant to the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. § 1400, et seq., appealing from the November 15, 2001 decision by State Review Officer Frank Munoz (the "SRO") which partially annulled the August 28, 2000 decision of Impartial Hearing Officer Joseph E. Wooley (the "IHO") and awarded defendants D.K. and K.K. (collectively, the "Parents"), on behalf of their son C.K., tuition reimbursement for their unilateral placement of C.K. in a private school during the 1999-2000 academic year. On April 30, 2002, the Parents filed a counterclaim appealing from the SRO's decision not to award them tuition reimbursement for the second half of the 1998-1999 academic year.
Arlington now moves for summary judgment. The Parents cross-move. A principal issue in this appeal is the effect of the absence of a regular education teacher at the meeting at which the Individualized Education Program ("IEP") for C.K. was developed for the year 1999-2000. For the reasons stated, Arlington's motion is denied and the Parents' motion is granted in part and denied in part. Arlington must reimburse the Parents for the tuition they paid the Kildonan School ("Kildonan") for the 1999-2000 academic year.
The following facts are undisputed unless otherwise indicated. C.K. was born on May 5, 1986. He attended a parochial school from kindergarten, which he repeated, through third grade. In 1995, when C.K. was in second grade, the Committee on Special Education ("CSE") for North Rockland Central School District classified him as learning disabled. In 1996, C.K.'s family moved to Clarkstown Central School District ("Clarkstown"), where he attended fourth grade through the first half of sixth grade. In September 1996, Clarkstown prepared a psychological report on C.K. which recommended that he continue to be classified as learning disabled and that he receive special education support in the areas of reading and language arts, but that he participate in mainstream classes in all other areas.
In December 1998, when C.K. was twelve years old, C.K.'s family moved from Clarkstown into Arlington. On January 8, 1999, C.K.'s mother K.K. placed him at Kildonan, which specializes in the teaching of students with dyslexia. Kildonan, which is located in Amenia, New York, is not approved by the New York State Education Department to provide instruction to children with disabilities. On January 12, K.K. notified Arlington that her family had moved into Arlington and requested in writing a referral of her son to the Arlington CSE. K.K. further requested that Arlington transport C.K. to Kildonan.
Muskat's and Hochstetter's Evaluations of C.K.
By letter dated January 15, 1999, psychologist Lori R. Muskat ("Muskat") reported the results of a neuropsychological evaluation of C.K. which she conducted at the request of the Parents in October and November, 1998. In a detailed, nine-page letter, Muskat reported that C.K. was a cooperative and highly motivated student, but that he was dyslexic and his "scores on achievement tests range from two to four years below grade level in all areas examined." On the Weschler Intelligence Scale for Children-III ("WISC-III"), C.K. achieved a verbal IQ score of 92, placing him toward the lower end of the average range, and a performance IQ score of 106, placing him toward the higher end of the average range.
Muskat stated that C.K. "needs an intensive, full time program to address his significant difficulties with reading and written language." Muskat recommended that C.K. be taught reading and writing according to a highly structured Orton-Gillingham approach, a standard method of teaching dyslexics which emphasizes the multisensory assimilation of language. Muskat further recommended that C.K. be enrolled in a private school. She stated: "My experience has been that at the middle school level, most public school programs cannot provide the intensive remediation that [C.K.] needs." On January 20, K.K. provided a copy of the letter to Althea Schepperly ("Schepperly"), the Arlington CSE Director.
On February 11, 1999, the Parents consented to an evaluation of C.K. by an evaluator selected by Arlington, and requested that the evaluation be conducted while C.K. was on vacation. On the consent form provided by Arlington and signed by K.K., K.K. wrote:
Please test [C.K.] while he is off from the school — Unless someone evaluates him at Kildonan while he is participating in class. Otherwise, he is off from March 22 to April 2. I appreciate your consideration in regards to [C.K.'s] schedule.
Accordingly, C.K. was evaluated on March 22 by L. Patricia Hochstetter ("Hochstetter"), an independent educational consultant. In a two-page report, Hochstetter stated that C.K. was cooperative and diligent throughout the evaluation. Hochstetter further stated: "[C.K.] falls well below his grade level in his abilities to write about his ideas and to phonetically decipher printed and spoken words. . . . Word attack, [s]ound blending and [i]ncomplete words were all very challenging for [C.K.] which indicates a clear difficulty with the phonetics of language."
The IEP Developed for C.K.
The Arlington CSE met on March 24, 1999, but the meeting was postponed because the CSE had not yet received Hochstetter's March 22 report and no representative was present from Kildonan, which was on spring recess at the time. The CSE reconvened on June 21. In attendance were C.K.'s mother K.K., Schepperly, two psychologists, a parent member, a guidance counselor, a special education teacher, and Kildonan's Education Director. No regular education teacher was present. K.K. made a tape recording of the meeting and prepared a transcript of the meeting from that recording. The transcript was made part of the record before the IHO and SRO, and is part of the record in the instant action.
At the June 21 meeting, the CSE determined that C.K. should be placed in special education classes for English, social studies, reading, math, and science, but that he should be placed in mainstream courses for physical education and electives such as music and art. After extensively discussing the issue, the CSE also decided that C.K.'s math proficiency would be evaluated after five weeks in a special education math course to determine if he should be placed in a mainstream class. At the meeting, K.K. stated that C.K.'s math proficiency had improved markedly at Kildonan because "[C.K.] is a visual learner. And [Kildonan] used all visuals. And he just took off. . . . So whatever class he is placed in it would have to be heavy in visuals with math."
In the IEP developed at the June 21 meeting, but not provided to the Parents in written form until September, the CSE further stated that C.K. should receive resource room services one period daily and individual counseling twice per month for forty minutes. The CSE stated as its "Rationale" the following:
Basic Reading and Decoding, Spelling, and Writing are all areas of weakness for C.K. He falls well below his grade-level in his abilities to write about his ideas and to phonetically decipher printed and spoken word. Hence the recommendation by the CSE for a Special Class Departmental program in academics as well as the Intensive Reading program which will provide him with a small student-teacher ratio.
The CSE stated that it considered regular education with resource room services, but determined that "more intensive services are needed." Further, it determined that a "special education program without participation in regular education was considered but it would be overly restrictive."
The Parents' Request for an Impartial Hearing
Arlington began the 1999-2000 academic year on September 8, 1999. Eleven days before that date, on August 28, the Parents wrote to Schepperly to inform her that they were rejecting the IEP discussed at the June 21 meeting and that they were placing C.K. at Kildonan for the 1999-2000 academic year. The Parents also requested an impartial hearing seeking reimbursement of Kildonan's tuition. They stated that Arlington had been uncooperative in addressing their requests for further information and noted that they had not yet received a copy of C.K.'s IEP. The Parents also stated that although Arlington agreed to provide C.K. with a tutor over the summer, it failed to do so, with the result that the parents were forced to hire a tutor at their own expense. They sought reimbursement for the cost of the tutor as well.
Section 1412(a)(10)(C)(iii)(I)(bb) provides that reimbursement to parents "may be reduced or denied . . . if . . . 10 business days . . . prior to the removal of the child from the public school, the parents did not give written notice to the public agency" of their intention to place their child in a private school and seek reimbursement. 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb).
On September 13, the Parents agreed to pay $21,500.00 to Kildonan to cover the cost of tuition for C.K.'s course of study there for 1999-2000. On September 18, 1999, the Parents received C.K.'s IEP for 1999-2000. K.K. states, and Arlington does not dispute, that the IEP was mailed to the Parents on September 15, 1999 and postmarked September 16, 1999.
Arlington appointed the IHO on September 10, 1999. He contacted the Parents on September 15. They informed him that they were proceeding pro se and required additional time in order to obtain documents from Arlington. The IHO advised them that he was required to render a decision within forty-five days of their request for an impartial hearing unless they waived that requirement in writing. By letter dated October 6, the Parents waived the forty-five day requirement and confirmed that the hearing would begin on November 15, 1999. On November 14, the Parents requested an adjournment until February 2000 because they had recently retained an attorney, who needed more time to familiarize herself with the case.
The Parents' Review of Arlington's Class Profiles
In November 1999, K.K. wrote to Arlington to request profiles of the students attending classes proposed by the IEP for C.K. In December, Arlington provided the Parents with a profile of C.K.'s proposed reading class, which listed the reading levels, IQs, and behavioral needs of students then attending the class. A comparison of C.K.'s ratings to the students in the class indicates that C.K.'s IQ was significantly higher than the class average, and that his reading comprehension grade level was approximately three grade levels higher than the class average. C.K.'s word identification grade level was also approximately one to two grade levels higher than the class average.
In April 2000, Arlington provided the Parents with a class profile of C.K.'s proposed Language Arts and Sciences class. Based on the Parents tabulation of the data, the accuracy of which Arlington does not dispute, C.K.'s IQ was far in excess of the class average.
Liss's Evaluation of C.K.
In January and February 2000, the Parents requested that Phoebe Liss ("Liss"), a learning disability consultant, evaluate C.K. Muskat had referred the Parents to Liss. Liss reported that C.K. presented as an amiable and "normally bright" thirteen year old. Liss stated that C.K. had improved significantly as a result of his curriculum at Kildonan. A readministered WISC-III showed the following:
[C.K.'s] Verbal Scale IQ is now 105 (Average Range); Performance Scale IQ is 117 (High Average) and Full Scale IQ is 112 (High Average). When subtests are reorganized into processing factors, Verbal Concepts are 108 (Average)[,] Perceptual Organization is 123 (Superior), Freedom From Distractibility is 98 (Average) and Processing Speed is 100 (Average).
Liss also stated that "it is unlikely that his needs can be met in a public school setting as he requires intense, special instructional methods (Orton-Gillingham), in combination with the intellectual stimulation of a normally bright peer group." Liss concluded that "[g]iven his weak areas, his subject area teachers need also to be trained in the Orton-Gillingham process so that his newly developing skills are consistently reinforced and integrated."
Emsbo's Evaluation of Arlington's Curriculum
On March 28, 2000, at the request of the Parents, Jane Emsbo ("Emsbo") observed portions of C.K.'s proposed IEP for the 1999-2000 academic year. Emsbo is an expert in learning disabilities who specializes in the remediation of dyslexia through the Orton-Gillingham method. It appears from the exhibit attached to Emsbo's affidavit that she observed two special education classes at LaGrange Middle School in Arlington and then prepared a report of her impressions. In the "Background" section of the report, Emsbo noted that C.K. "is markedly dyslexic with above average intelligence which peaks to the Superior Range in areas of reasoning, comprehension and nonverbal problem solving." She stated that C.K.'s "extremely low progress in reading, writing and spelling, before entering Kildonan, can not be attributed to deficient intellectual potential, but, largely, to an inappropriate school developmental program for his dyslexia."
The first class Emsbo observed was in the area of social studies. Emsbo reported that the text assigned for reading "was watered-down from the regular 7th grade book. The text was simplified and abbreviated at approximately a fourth grade reading level with ample pictures and big print." Emsbo further reported:
The students answered literal questions dependent on rote memory of facts. No analytical questions were asked. No reading comprehension strategies were used such as prediction, summaries, preteaching vocabulary, scanning subtitles and pictures, etc. However, the teacher did draw a diagram on the board to show the various branches of government which was helpful. There was no hands-on learning.
Based on these observations, Emsbo concluded that "[i]t is essential that [C.K.] be taught the full information in his subject areas. This can be through audio or visual input with ample ways of hands-on and multisensory follow through. It must not be lowered to his present reading level."
Emsbo also observed an "Intensive Reading Class" and noted the ways in which the teacher's method fell short of the Orton-Gillingham method. Specifically, Emsbo reported that there was no review of phonogram drill cards, which, in her view, C.K. would require because of his phonological deficits. Emsbo also reported that "[t]here was no practice of phonological awareness. . . . [T]he students did not finger tap or segment the sounds of the syllables they spelled or read. In addition, no attention was paid to the manipulation of sounds in words. . . . There was scant multisensory responses [sic] incorporated in the lesson." Emsbo concluded that "[i]t is critical that [C.K.] will continue to receive the full content of his required courses, and that this is not dependent on his reading or writing level."
C.K.'s Progress at Kildonan
Kildonan administered several series of standardized tests to C.K. from January 1999 to May 2000. The test results indicate that C.K. advanced on average by about three to four grade levels in that fifteen-month period. C.K. showed especially strong gains in his reading skills.
The IHO Decision
The impartial hearing began on February 10, 2000, and concluded on August 4, 2000. On March 21, 2000, the Parents requested that the scope of the hearing be expanded to include Arlington's failure to develop an IEP for C.K. for the second half of the 1998-1999 academic year. The IHO denied the Parents' request on the ground that it was untimely. The IHO noted that it was being made seven months after the commencement of the hearing and nearly a year after the conclusion of the 1998-1999 academic year.
The Parents contend that the IHO hearing was procedurally flawed. These contentions do not need to be reviewed here given the conclusion reached below.
The IHO issued his decision on August 28, 2000. In his findings of fact, the IHO opined that C.K.'s parents received bad advice from Muskat and an unidentified college professor: "With the advice they received, . . . it is not a wonder that they never actually intended to enroll [C.K.] in the Arlington school." The IHO does not identify the evidence that supports the finding that the parents had no intention of placing C.K. in Arlington. The IHO also choose to make the following observation:
The unfortunate aspect of this is it appears that the parents brought the hearing against Arlington instead of Clarkstown where [C.K.] was schooled for most of his career. He never set foot in Arlington and the reason the parents brought the hearing against Arlington is because they happened to move there just as they placed [C.K.] in Kildonan. Indeed, the parents, in their brief, seem to realize the inequity of the situation.
In his "Decision," the IHO stated:
I find that the IEP developed by [Arlington] and the recommended program to be [sic] appropriate. The CSE had adequate information which was all within acceptable time frames in which to base it's [sic] decision. I find that the goals and objectives as set forth in the IEP were reasonably calculated to insure that the child would receive considerably more than a minimum educational benefit from the program it proposed and that this program was the least restrictive environment in the continuum of services in which this child would receive a free appropriate education. [Arlington] considered more and less restrictive programs and rejected them.
The IHO declined to consider the appropriateness of C.K.'s placement at Kildonan, explaining that "[t]here is no need to compare the programs as that is not the appropriate standard, is one better than the other."
The SRO Decision
On October 11, 2000, the Parents appealed the IHO's decision to the SRO. On November 15, 2001, in a thorough and tightly-reasoned opinion, the SRO partially annulled the IHO's decision and ordered that the Parents be reimbursed for their tuition payment to Kildonan for the 1999-2000 academic year. Specifically, although the Parents did not raise the issue either in the impartial hearing or on appeal, the SRO determined that Arlington could not meet its burden of demonstrating the appropriateness of C.K.'s IEP because there was no regular education teacher present at the June 21, 1999 meeting. In making this determination, the SRO referred to 34 C.F.R. § 300.344[a], which requires that a CSE include a regular education teacher if the student is or may be participating in a regular education environment. The SRO did not otherwise reach the issue of whether the IEP was reasonably calculated to confer educational benefits on C.K.
The SRO affirmed the IHO's decision that the Parents should not be reimbursed for their tuition payment to Kildonan for the second semester of the 1998-1999 academic year. The SRO noted that when the Parents requested an impartial hearing on August 29, 1999, two months after the conclusion of the 1998-1999 academic year, they limited their challenge to the IEP developed for the 1999-2000 academic year. The SRO further noted that although the Parents' attorney was retained in November 1999, the Parents did not attempt to expand the scope of the impartial hearing until March 21, 2000.
Discussion I. The Statutory Framework
Congress enacted IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). See also Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 68 (1999) (discussing the purposes of IDEA). To this end, IDEA requires that public schools create for each student covered by the Act an IEP for each year of the student's education. 20 U.S.C. § 1414(d)(2)(A). See also Honig v. Doe, 484 U.S. 305, 311 (1988) (defining the IEP as the "centerpiece" of IDEA's education delivery system). Section 1414(d) of the Act governs, inter alia, the composition of the "IEP Team" which develops a student's IEP, § 1414(d)(1)(B), what factors the IEP Team must consider, § 1414(d)(3), and what statements the IEP Team must include in the IEP itself, § 1414(d)(1)(A). Specifically, Section 1414(d)(1)(B)(ii) requires that the IEP Team be composed of "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)." Section 1414(d)(3)(C) further provides:
The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive 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).
"Concerned that parental input into the creation of the IEP would not be sufficient to safeguard a child's right to a free and appropriate education, Congress also included within the IDEA procedural safeguards that enable parents and students to challenge the local educational agency's decisions." Murphy v. Arlington Cent. Sch. Dist. Bd. of Ed., 297 F.3d 195, 197 (2d Cir. 2002). Specifically, the IDEA requires that parents of a child covered by the Act be given an opportunity "to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child . . . and to obtain an independent evaluation of the child." 20 U.S.C. § 1415(b)(1). The IDEA further requires that parents be provided with an opportunity to present complaints through the IEP process with respect to any matter relating to the identification, evaluation, or placement of the child. 20 U.S.C. § 1415(b)(6). In situations where the parents believe that the IEP process has not adequately responded to their complaints, the IDEA requires that they be given an opportunity to pursue their complaints in mediation, 20 U.S.C. § 1415(e)(1), or an impartial due process hearing, 20 U.S.C. § 1415(f)(1).
Section 1415(i)(2)(A) of the Act provides that the findings and decision of the administrative review process may be appealed "in any State court of competent jurisdiction or in a district court of the United States." 20 U.S.C. § 1415(i)(2)(A). Section 1415(i)(2)(B) further provides that a court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B).
II. Standard of Review
Although the parties have styled their submissions to the Court as motions for summary judgment, "the procedure is in substance an appeal from an administrative determination, not a summary judgment." Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995); see also Wall v. Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 501, 507-08 (E.D.N.Y. 1996). The court conducts an "independent" review of the appealed decision. Board of Educ. v. Rowley, 458 U.S. 176, 205 (1982) (citation omitted). Nevertheless, this "is by no means an invitation to the courts to substitute their own notions of sound education policy for those of the school authorities which they review." M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000) (citation omitted). "While federal courts do not simply rubber stamp administrative decisions, they are expected to give due weight to these proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy." Id. at 102 (citations omitted). See Rowley, 458 U.S. at 206.
III. Reimbursement for the 1999-2000 Academic Year
When a state receiving IDEA funding fails to give a disabled child a "free appropriate public education" under the Act, the child's parent may remove the child to an appropriate private school and seek retroactive tuition reimbursement from the state. School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369-70 (1985) (citation omitted). "A court may award tuition reimbursement if it appears (1) that the proposed IEP was inadequate to afford the child an appropriate public education, and (2) that the private education services obtained by the parents were appropriate to the child's needs." M.S., 231 F.3d at 102 (citation omitted).
A. Appropriateness of C.K.'s IEP
Two issues must be considered to determine whether the IEP developed for C.K. was adequate: (1) whether Arlington complied with the procedural requirements of the IDEA in developing the IEP, and (2) whether the IEP was "reasonably calculated" to confer "educational benefits." Id.; see also Rowley, 458 U.S. at 206-07). Arlington bears the burden of proof with respect to both of these issues. M.S., 231 F.3d at 102.
"The initial procedural inquiry is no mere formality." Id. (citation omitted). As the Supreme Court has stated, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Rowley, 458 U.S. at 206. With respect to the issue of whether the IEP is reasonably calculated to confer educational benefits, the
IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children."
Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 197 n. 21, 189). Nevertheless, the IEP must afford the opportunity for more than "trivial advancement." Id. (citation omitted). "An appropriate public education under IDEA is one that is likely to produce progress, not regression." Id. (citation omitted). "It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education." Rowley, 458 U.S. at 200-01. Finally, the IDEA requires that whenever possible handicapped children be educated with regular students or "mainstreamed." Id. at 202-03. See 20 U.S.C. § 1412(a)(5)(A); see also M.S., 231 F.3d at 105.
The SRO determined that because there was no regular education teacher present at the June 21 CSE meeting, Arlington could not meet its burden of demonstrating that the IEP developed at that meeting was adequate. Arlington now argues that the absence of a regular education teacher amounts to harmless error. Specifically, it cites Roland M. v. Concord Sch. Comm., 910 F.2d 983 (1st Cir. 1990), for the proposition that "[b]efore an IEP is set aside, there must be some rational basis to believe that procedural inadequacies compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process, or caused a deprivation of educational benefits." Id. at 994. See also M.S., 231 F.3d at 103 (Second Circuit resolved argument regarding procedural defect by relying on finding that IEP was not calculated to enable child to receive educational benefits); Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 922 (8th Cir. 2001) ("Not all procedural errors result in a loss of educational opportunity.").
Even if one accepts for purposes of this analysis the Roland M. standard, Arlington has failed to meets its burden. Based on the administrative record, there is a "rational basis" to believe that a procedural deficiency compromised the development of an appropriate IEP for C.K. Specifically, the absence of a regular education teacher during the development of C.K.'s IEP deprived him of educational benefits under that IEP. For example, as the SRO noted, the CSE discussed at length C.K.'s aptitude in math and decided that after five weeks in special education math, C.K.'s progress would be evaluated to determine if he should be placed in a regular math course. According to K.K.'s statements at the June 21 meeting, however, C.K. improved markedly in a math class based on visual instruction. The presence of a regular education teacher may have illuminated the extent to which visual instruction is offered as part of Arlington's mainstream curriculum and the likelihood, therefore, that C.K. could ever be integrated successfully into the regular education curriculum at Arlington. In light of the significant deficiencies in Arlington's special education curriculum for a student as talented as C.K., an issue that is discussed below, the absence of a regular education teacher may have had particularly serious consequences.
Arlington further argues that because the Parents failed to argue in the impartial hearing or on appeal to the SRO that the lack of a regular education teacher at the June 21 meeting constituted a procedural deficiency, they are not entitled to make that argument before the district court. Arlington, however, fails to point to any statutory provision or principle in the case law that bars the parents from raising this argument before the district court, particularly where, as here, the SRO's decision is based upon it, and where the district court's review is de novo, see M.S., 231 F.3d at 102, and may include the consideration of additional evidence, see 20 U.S.C. § 1415(i)(2)(B).
In light of the statutory requirement that a regular education teacher participate in the development of the IEP if a child "may be" participating in a regular education environment, 20 U.S.C. § 1414(d)(1)(B)(ii), and taking into account the "due weight" that should be accorded to the SRO's determination, particularly, where, as here, the parties have presented no new evidence, Arlington has failed to carry its burden of proof with respect to its compliance with IDEA's procedural requirements.
Arlington has also failed to meet its burden of showing that C.K.'s IEP was reasonably calculated to confer education benefits on C.K. The Parents have presented reports by Muskat, Liss, and Emsbo in support of the conclusion that the IEP was not sufficiently tailored to C.K.'s needs to enable him to progress, and might in fact have caused him to regress. The record shows that C.K. is of above-average intelligence, but has severe learning disabilities, particularly in the area of phonological comprehension, which were exacerbated by C.K.'s educational experiences before Kildonan. The Parents have shown that these disabilities require multisensory teaching methods throughout C.K.'s curriculum, and that the IEP relied on these methods to only a limited extent. The parents have also shown, with respect to at least two of the classes proposed by the IEP, that C.K. would have been placed with students of substantially lower IQ. Furthermore, the Parents have shown that the content of C.K.'s curriculum must engage his native intelligence and that it would be inappropriate to "water-down" the content of the reading or other instructional material to which he is exposed, as would have occurred in Arlington's special education curriculum. There is nothing in the brief report prepared by Hochstetter, who was selected by Arlington to evaluate C.K., to counter these conclusions.
B. Appropriateness of C.K.'s Placement at Kildonan
In the second prong of the tuition reimbursement analysis, the court must consider whether "the private education services obtained by the parents were appropriate to the child's needs." Walczak, 142 F.3d at 129. The Parents bear the burden of proof with respect to this issue. See M.S. 231 F.3d at 104. In addition, because Kildonan serves disabled students only, the Parents bear the burden of showing that "such a restrictive, non-mainstream environment was needed" to provide their child with "an appropriate education." Id.
There can be little doubt that Kildonan has provided a curriculum appropriate to C.K.'s needs. Arlington argues that Kildonan is not approved by the New York State Education Department to provide instruction to children with disabilities and that its staff is "uncertified." Yet as Arlington admits, these factors are not dispositive. See Florence County Sch. Dist. v. Carter, 510 U.S. 7, 14 (1993) ("Nor do we believe that reimbursement [under IDEA] is necessarily barred by a private school's failure to meet state education standards."). Regardless of whether Kildonan is approved by a state agency or not, the Parents have shown with compelling evidence that Kildonan's use of the Orton-Gillingham multisensory method of teaching dyslexics has significantly benefitted C.K. Arlington also argues that certain of Kildonan's methods, such as its placing of C.K. in a study hall to improve the legibility of his handwriting, did not benefit C.K. Yet the evidence clearly shows the contrary. C.K.'s test scores improved dramatically after only one and a half years of exposure to Kildonan's curriculum. Arlington compares C.K.'s test scores in January 1999 to his scores in May 1999 to argue that C.K. regressed at Arlington in spelling, math computation, and math applications. Yet a comparison of C.K.'s test scores from January 1999 to his scores in May 2000 shows that he improved markedly at Kildonan in that fifteenth-month period. See Walczak, 142 F.3d at 130 (relying on test scores even in the context of special education classes to assess progress of child). See also Murphy, 297 F.3d at 197 (affirming order to Arlington to pay for child's education at Kildonan); Bd. of Educ. v. Schutz, 290 F.3d 476, 485 (2d Cir. 2002) (affirming order to school board to reimburse parents for cost of child's education at Kildonan during pendency of proceedings).
II. Reimbursement for the Second Half of the 1998-1999 Academic Year
The Parents request that they be reimbursed for the tuition amount they paid to Kildonan to cover C.K.'s placement there during the second half of the 1998-1999 academic year (the "Spring 1999 Semester"). The Parents argue that they are entitled to reimbursement because Arlington failed to produce an IEP for C.K. until well after the Spring 1999 Semester had passed. Arlington responds that its delay in producing an IEP was at least partially attributable to the Parents' own delays in making C.K. available for evaluation and the failure of a Kildonan representative to be present at the March 24 CSE meeting.
Arlington failed to submit a reply memorandum in support of its motion for summary judgment or an opposition to the Parents' motion for summary judgment. It did, however, submit a "Reply Attorney Affirmation" in support of its motion and in opposition to the Parents' motion. This reply affirmation is largely a recitation of facts in dispute and contains no legal argument.
Both the IHO and SRO denied the request for reimbursement on the ground that the Parents' request to expand the scope of the IHO hearing was untimely. At no time between August 28, 1999, and March 21, 2000, did the Parents express any desire to expand the scope of the hearing to include reimbursement for the Spring 1999 Semester.
Arlington cannot be held responsible for failing to produce an IEP for C.K. before the end of the Spring 1999 Semester. The Parents failed to inform Arlington of their intention to remove C.K. from Arlington and place him in Kildonan until two days after they enrolled him at Kildonan. As noted above, Section 1412(a)(10)(C)(iii)(I)(bb) of the Act provides that reimbursement to parents "may be reduced or denied . . . if . . . 10 business days . . . prior to the removal of the child from the public school," the parents do not give written notice of their intention to place their child in a private school and seek reimbursement. 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb). A denial of reimbursement is particularly appropriate here, when the Parents further contributed to the delay when they asked that Arlington's evaluation of C.K. be delayed so as not to interrupt his schedule at Kildonan, and when the failure of a Kildonan representative to appear at the March 24 CSE meeting was partially responsible for the meeting's being put over until June. In light of these facts, and the "due weight" that should be placed on the SRO's decision, the Parents are not entitled to reimbursement for the Spring 1999 Semester.
For the reasons stated, plaintiff's motion for summary judgment is denied. Defendants' motion for summary judgment is granted with respect to their request for tuition reimbursement for the 1999-2000 academic year in the amount of $21,500.00, and denied with respect to their request for tuition reimbursement for the second half of the 1998-1999 academic year. The Clerk of Court shall close the case.