The State Education Department
State Review Officer

No. 99-6

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Valley Central School District

 

Appearances:
Family Advocates, Inc. attorney for petitioner, RosaLee Charpentier, Esq., of counsel

Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

 

DECISION

        Petitioner appeals from an impartial hearing officer's decision which found that respondent had offered to provide an appropriate educational program to petitioner's son during the 1997-98 school year, and which denied petitioner's request for an order requiring respondent to reimburse her for the cost of her son's tuition at a private school during that school year. The appeal must be dismissed.

        Petitioner's son, who is seventeen years old, has been classified as learning disabled since January, 1989 when he was in the first grade. During the 1997-98 school year, the boy was in the tenth grade at the Kildonan School in Amenia, New York. Petitioner unilaterally enrolled her son in that private school which has not been approved by the State Education Department to provide instruction to children with disabilities.

        The boy reportedly exhibited learning difficulties while he was in preschool and nursery school, prior to enrolling in kindergarten at respondent's Coldenham Elementary School in September, 1987. Petitioner had her son privately evaluated by a psychologist in the summer of 1987 (Exhibit P-J). The boy achieved a verbal IQ score of 130, a performance IQ score of 111, and a full scale IQ score of 123. On the Peabody Individual Achievement Test (PIAT), his reading recognition and mathematics skills were in the 91st percentile. The psychologist reported that there was no evidence of a neurological impairment, or of an attention deficit disorder. She suggested that the boy be re-evaluated in the spring of 1988.

        Petitioner's son reportedly received resource room services on an informal basis while in kindergarten. He was re-evaluated by the private psychologist in May and August, 1988 (Exhibit P-K). On a different IQ test that had been used the preceding summer, the child achieved a verbal IQ score of 139, a performance IQ score of 120, and a full scale IQ score of 133. The boy achieved grade equivalent (and percentile) scores of 1.1 (64) for reading and 1.4 (76) for mathematics on the PIAT. Although the child exhibited some difficulty naming the letters of the alphabet, the psychologist noted that there were no severe deficits typical of a learning disabled child. She recommended that he continue to receive counseling and informal resource room services.

        In January, 1989, the child was referred by a school psychologist to respondent's committee on special education (CSE) because of difficulty making consistent progress in reading and phonics skills and a low tolerance for frustration (Exhibit P-L). The CSE recommended that the child be classified as learning disabled. The child's reading decoding and comprehension skills were described as below grade level on his initial individualized education program (IEP), and he was reported to have a low frustration tolerance and poor self-image (Exhibit BOE-21). The CSE recommended that the child receive 90 minutes of special education instruction in reading per day, and informal counseling, for the rest of the first grade. It also recommended that time limits be extended on his tests, and that he take those tests in an alternate location.

        The CSE recommended a similar program for the second grade during the 1989-90 school year. In March, 1990, the child achieved a grade equivalent score of 1.7 for reading decoding on the Woodcock Reading Test, and a grade equivalent score of 3.8 on the Key Math Test. For the 1990-91 school year, the CSE recommended that the child receive special class instruction for three and one half hours per day in a 12:1+1 class, as well as individual and group counseling (Exhibit P-N). In March, 1991, while he was in the third grade, petitioner's son achieved grade equivalent scores of 1.9 for reading decoding and 4.0 for mathematical computation. In May, 1991, the boy's counselor described him as a timid and fragile child, especially where his academic abilities were concerned.

        The child's triennial evaluation was performed in the fall of 1991. A school psychologist reported that the child had achieved a verbal IQ score of 107, a performance IQ score of 105, and a full scale IQ score of 106. The psychologist noted that there were some subtle difficulties with the child's fine visual motor control, and that there had been a meaningful drop in the child's cognitive efficiency since his last evaluation. In addition, he reported that there appeared to be difficulty with the boy's auditory attention and concentration, as well as his visual integration and sequencing. He noted that the boy continued to struggle with reading decoding. The psychologist also noted that the child's decrease in performance may have been the result of emotional factors relating to his parents' divorce. The child's special education teacher reported that the Orton-Gillingham Technique had been used to teach reading to the child, but he had great difficulty applying learned concepts to new situations. She indicated that the boy was becoming frustrated, and was not progressing at the expected pace (Exhibit P-O). In November, 1991, the CSE recommended that the child continue to receive three and one half hours of instruction per day in a 12:1+1 special education class in the district, and that he be mainstreamed for instruction in mathematics and art (Exhibit P-P). It also recommended that he continue to receive one session of individual and one session of group counseling per week, and that his prior testing modifications remain in effect.

        In March, 1992, petitioner's son achieved grade equivalent scores of 2.8 for reading decoding, 1.7 for reading comprehension, 5.6 for mathematical computation, 5.4 for mathematical concepts, and 5.5 for written language. The CSE met that month to revise the child's IEP to increase his special class program to four hours per day. In the summer of 1992, the child attended Camp Dunnabeck at the Kildonan School. The Camp Director reported that the child had made progress in reading and spelling, and recommended that he continue to be tutored in the Orton-Gillingham methodology at least three times per week throughout the 1992-93 school year.

        When tested in early September, 1992, the child achieved grade equivalent scores of 2.6 for reading decoding, 2.0 for reading comprehension and 1.6 for written language. On October 1, 1992, the CSE recommended that the child be mainstreamed for each of his fifth grade subjects, except language arts. The IEP prepared on that day indicated that the child would received 90 minutes of special class instruction and 45 minutes of resource room services per day for English, as well as 30 minutes of individual counseling per week (Exhibit P-W). The Orton-Gillingham methodology was reportedly used to teach language arts to the child in the fifth grade. In February, 1993, the child achieved grade equivalent scores of 3.3 for reading decoding, 3.9 for reading comprehension, and 2.2 for written language (Exhibit P-X).

        For the 1993-94 school year, the CSE recommended that the boy receive instruction in a 15:1 special education class for three periods per day and one period of resource room services per day, and that he be mainstreamed for sixth grade mathematics, social studies, science, and electives. The child's IEP for that school year indicated that he needed to have a behavior modification program to help him follow rules and complete assignments.

        Petitioner's son attended Camp Dunnabeck during the summer of 1993. His language skills reportedly improved, although on one test, the Gray Oral Reading Test, there was no improvement from the score which he had received in the prior summer (Exhibit P-Y).

        In September, 1993, the child entered respondent's middle school. The CSE amended his IEP in October, 1993 to provide that a multisensory approach be used to reach reading and writing to the child (Exhibit P-CC).

        In January, 1994, the child was re-evaluated by the private psychologist who had evaluated him in 1987. She reported that he had achieved a verbal IQ score of 125, a performance IQ score of 113, and a full scale IQ score of 122 (Exhibit P-EE). On the Woodcock Reading Mastery Test - Revised, the boy achieved grade equivalent scores of 2.0 for word identification, 2.2 for word attack and 2.4 for passage comprehension. His scores on the Spache Diagnostic Reading Scales were comparable to those on the Woodcock. The private evaluator reported that the child's spelling skills were also at the second grade level. She further reported that the boy was despondent about his academic skills, and recommended that he continue to receive Orton-Gillingham training on a daily basis. She indicated that he had agreed to receive private counseling to address both school and family issues which were troubling him.

        On the Kaufman Test of Educational Achievement which was administered to him in February, 1994, petitioner's son achieved grade equivalent scores of 3.8 for reading decoding, 2.6 for reading comprehension, 6.7 for mathematical computation, and 12.9 for mathematical concepts. In April, 1994, the CSE prepared the boy's IEP for the seventh grade during the 1994-95 school year (Exhibit P-FF). The CSE recommended that the child be mainstreamed in all subjects, but receive two periods of supplementary instruction per day in a resource room. In June, 1994, the boy scored well below the State reference point on the New York Pupil Evaluation Program sixth reading test, but well above the State reference point on the sixth grade mathematics test.

        The CSE reconvened at petitioner's request in January, 1995 to listen to her concerns about the child's educational program, and to consider her request that he be exempted from the requirement of having to take a foreign language. According to the minutes of that CSE meeting, the CSE declined to make any change in the boy's IEP (Exhibit P-II). In April, 1995, the boy achieved grade equivalent scores of 3.8 for reading decoding, 4.2 for reading comprehension, 8.9 for mathematical computation, and 2.9 for written language on the Woodcock-Johnson Tests of Achievement - Revised (W-J-R). The CSE recommended that the boy's educational program remain the same for the eighth grade during the 1995-96 school year (Exhibit P-KK).

        The boy returned to Camp Dunnabeck during the summer of 1995. He was tested there in June and August, 1995. On the Wide Range Achievement Test - I (WRAT-I), the boy's reading skills improved from a grade equivalent of 2.5 to 3.8, while on the Gray Oral Reading Test, they improved from 1.4 to 2.3. His spelling also improved from a grade equivalent of 2.6 to 3.1 on the Morrison-McCall Spelling Test (BOE Exhibit 15).

        In March, 1996, the boy's resource room teacher reported that the boy showed signs of maintaining and improving his decoding and encoding skills, and that his reading had become more fluent. She noted that the boy needed to be constantly supervised and had difficulty "prompting himself to initiate his work" (Exhibit P-LL). On the W-J-R which was administered to him in March, 1996, petitioner's son achieved grade equivalent scores of 4.1 for reading decoding, 3.3 for reading comprehension, 8.3 for mathematical computation, 12.3 for mathematical concepts, and 3.9 for written language. Petitioner's son was in the eighth grade when tested. The CSE reviewed the boy's progress, and prepared his IEP for the 1996-97 school year on March 19, 1996. The meeting minutes indicated that the boy's inconsistent academic progress was noted. The CSE agreed with the resource room teacher's recommendation that the boy continue to be mainstreamed and receive two periods of resource room services per day during the 1996-97 school year (Exhibit P-MM). The CSE also recommended that petitioner's son be exempted from the foreign language requirement for receipt of a high school diploma.

        The boy again attended Camp Dunnabeck during the summer of 1996. From June to August, 1996, his reading skills reportedly improved three grade levels to a grade equivalent of sixth grade on the WRAT-3 (Exhibit P-B). However, his improvement on the Gray Oral Reading Test was only from 2.6 to 2.9.

        On October 15, 1996, the CSE met at petitioner's request to review the boy's educational program. The CSE recommended that a new triennial evaluation be conducted immediately. It also modified the boy's IEP to provide that he receive 1:1 reading instruction using the Orton-Gillingham methodology during one of his two daily resource room periods, and it added various testing modifications to his IEP (Exhibit BOE-4). Specifically, it provided that he not be penalized for grammatical and spelling errors when graded, and that test questions be read to him and his answers of more than one paragraph be recorded for him. The CSE also recommended that the boy's teachers prepare a list of the novels he was to read in the ninth grade, so that tape recorded copies could be obtained for him, and that the Kildonan School be contacted to obtain a list of suitable books for the boy.

        On October 21, 1996, a school psychologist completed his evaluation of the boy. He reported that the boy had achieved a verbal IQ score of 121, a performance score of 117, and a full scale IQ score of 121, placing him in the superior range for verbal ability and the above average range for performance. The boy's standard core of 124 on the Beery Developmental Test of Visual Motor Integration was in the superior range, indicating that the boy had excellent visual motor coordination and fine motor control. The school psychologist reported that the boy was passing his Regents level ninth grade classes. He described the boy as " ... a fairly well adjusted adolescent who is aware and accepting of his academic limitations but at the same time can become frustrated with school because of his superior intelligence and difficulty expressing it. He suggested that counseling might improve the boy's motivation (Exhibit BOE-17).

        On October 31, 1996, petitioner's son achieved grade equivalent scores of 5.0 for letter-word identification, 4.8 for passage comprehension, 9.1 for calculation, 13.7 for applied problems, 3.9 for dictation, and 5.1 for writing samples on the W-J (Exhibit BOE-13). In December, 1996, the boy was tested for dyslexia by a teacher of the visually impaired, who reported that the boy had mild dysphoneidesia (difficulty with sight-words and sounds), that his sight-word recognition skills were at the third grade level, and that he was inconsistent with letter sounds. She opined that the boy had a very specific learning disability, and recommended that he use books on tape (Exhibit P-E). On December 12, 1996, the boy's resource room teacher since September, 1996 reported that petitioner's son had met all of his IEP goals during the preceding three years. She also reported that the boy's mainstream teachers had been very cooperative in making modifications so that the boy could be successful. However, she expressed concern about the boy's inconsistent motivation to work hard and take responsibility for completing his work (Exhibit BOE-12).

        The CSE reconvened on December 12, 1996. The IEP which was prepared at that meeting (Exhibit BOE-5) indicated that the CSE had recommended that the boy be placed in a 15:1 special education class and receive resource room services. However it also indicated that the CSE had concluded that the boy's current program, which was regular education classes plus resource room services, was appropriate. It is clear from the record that the boy's resource room program did not change, but the CSE did recommend that the boy receive 30 minutes of individual counseling per week. Although the boy's IEP included management goals relating to his motivation, acceptance of academic demands, and responsibility for completing assignments, it did not include any academic goals. I note that at the hearing in this proceeding, the boy's resource room teacher testified that she worked with the boy on the academic goals which were set forth in his prior IEP for the 1996-97 school year.

        By letter dated January 5, 1997, petitioner requested an independent evaluation of her son. On January 31, 1997, the CSE approved petitioner's request (Exhibit P-F). The independent evaluation was not performed until August, 1997, and the results of that evaluation were not made available to the CSE until September 16, 1997.

        On May 13, 1997, the boy achieved grade equivalent scores of 5.8 for letter-word identification, 7.6 for passage comprehension, 10.0 for calculation, 12.3 for applied problems, 4.1 for dictation, and 5.9 for writing samples on the W-J (Exhibit BOE-13). The CSE reviewed the boy's progress, and prepared his IEP for the 1997-98 school year on May 27, 1997. It recommended that he continue to be classified as learning disabled, and that he continue to receive two periods of resource room services per day while enrolled in regular education tenth grade classes (Exhibit BOE-6). As during the 1996-97 school year, one of the two periods of resource room was to be for individual instruction using the Orton-Gillingham methodology to improve the boy's reading and writing skills. The CSE also recommended that petitioner's son receive 30 minutes of individual counseling per week. The boy's IEP testing modifications included flexible scheduling, time limits, and location, as well as having test questions read to him and his answers recorded for him on essay tests, no penalties for spelling or grammatical errors, and the use of a calculator.

        Petitioner's son earned final grades of 82 for Regents level English, 69 for Global Studies, 68 for General Science, 75 for Sequential Course 1A (mathematics), 80 for art, and 83 for physical education (Exhibit BOE-2). His cumulative average at the end of the ninth grade was 75, and he earned 5.25 units for credit towards graduation from high school.

        As noted above, the boy's independent evaluation was performed in August, 1997. The independent evaluator reported that on the Woodcock Reading Mastery Tests - Revised, the boy earned grade equivalent (and percentile) scores of 3.5 (.1) for word identification, 2.6 (7) for word attack, 5.1 (9) for word comprehension, and 4.9 (9) for passage comprehension. She also administered the Slingerland Screening Test and the Spadafore Diagnostic Reading Test to petitioner's son. Although she did not report specific scores from the Slingerland, the evaluator asserted that the boy's "profile" was typical for a dyslexic student. On the Spadafore, the boy's word recognition skills were at the third grade level for instructional purposes, while his oral reading decoding skills were reported to be at the fourth, fifth and sixth grade levels. The evaluator reported that the boy's oral reading comprehension skills were at the sixth grade level for instructional purposes, while his listening comprehension skills were found to be at the seventh and eighth grade levels. She recommended that petitioner's son receive intensive individual instruction in language arts from a trained "academic language therapist" for one hour per day, and that his testing modifications should continue, and that he be exempted from the foreign language requirement for graduation until he became more proficient in English (Exhibit BOE-16).

        At petitioner's request, the CSE met with her on September 5, 1997. She asked the CSE to recommend that her son be placed in the Kildonan School. The CSE, which had not yet received the results of the independent evaluation, made no recommendation (Exhibit BOE-7). After the meeting, petitioner submitted a written request for an impartial hearing (Exhibit BOE-1). The next day, she enrolled her son in the Kildonan School (Exhibit PPP).

        The CSE met with petitioner again on September 29, 1997 to review the independent evaluator's report. The independent evaluator participated by telephone in the meeting. Petitioner did not remain for the entire meeting, but she reportedly agreed to have the CSE finish her son's IEP in her absence. The CSE revised the IEP to include an additional period of resource room services, for a total of three per day. One period was to be used to support the boy in his mainstreamed program, and the other two periods were to be used for individual instruction in reading, language arts, and keyboarding by a teacher trained to use the Orton-Gillingham methodology (Exhibit BOE-8). The CSE also added two annual goals for reading decoding, one annual goal for word recognition, and one annual goal for reading comprehension. The boy's annual goals and short-term objectives for writing were also revised by the CSE. A prevocational goal for keyboarding was also added to the boy's IEP.

        The hearing in this proceeding began on December 11, 1997. Petitioner, through her attorney, asked the hearing officer to consider awarding her not only tuition reimbursement, but also reimbursement for the cost of her son's residential placement at Kildonan School. The boy attended Kildonan during the 1997-98 school year as a "5-day boarder" (Transcript, page 289). Petitioner also sought reimbursement for the cost of transporting her son to and from Kildonan. The hearing continued for six additional days, ending on August 13, 1998. The hearing officer rendered her decision on December 15, 1998.

        In her decision, the hearing officer noted that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        The hearing officer considered and dismissed petitioner's assertion that respondent could not have provided resource room services to the boy on an individual basis during the 1997-98 school year. She found that petitioner's assertions about respondent's alleged failure to provide individual resource room services to the boy during the 1996-97 school year were not credible. The hearing officer also considered petitioner's claim that the results which the boy achieved on the W-J on May 13, 1997 were too high, and reflected the fact that he had remembered test items from the W-J which he had taken on October 31, 1996. The hearing officer noted that the boy's special education teacher had testified that different forms of the W-J were administered to the boy on those two dates. She also rejected the speculative opinions given by two of petitioner's expert witnesses that the boy's higher scores in May may have been the result of the manner in which the resource room teacher administered the test.

        The hearing officer found that the boy had made good academic progress in respondent's high school during the 1996-97 school year in an educational program which was similar to that which the CSE had recommended for the 1997-98 school year. The hearing officer noted that the recommended program was substantially similar to that which the independent evaluator had recommended for the boy in August, 1997. She credited the testimony by the boy's ninth grade English teacher and his resource room teacher that petitioner's son could have been successful in a Regent's level tenth grade program in respondent's high school. She concluded that respondent had met its burden of proof with regard to the appropriateness of the educational program which it had offered to petitioner's son. Having reached that conclusion, the hearing officer did not address the appropriateness of the educational program offered to the boy by the Kildonan School, or consider whether equitable considerations favored petitioner's claim for tuition reimbursement.

        Petitioner contends that the hearing officer wrongly dismissed the "comprehensive history" which she provided at the hearing. The hearing officer noted in her decision that she had no jurisdiction to award relief for the allegedly inappropriate programs which respondent had provided to the boy in prior school years. I agree with the hearing officer. The boy's prior educational history provided useful information about the appropriateness of the program which respondent offered for the 1997-98 school year. However, the appropriateness of those prior educational programs was not within the scope of this proceeding.

        Petitioner contends that the hearing officer erred in finding that respondent had met its burden of proof. She asserts that her son's IEP for the 1997-98 school year was defective because it did not adequately describe the specific nature of the boy's educational disability. Petitioner objects to the fact that her son's broad reading score was reported on his IEP, but his reading decoding and reading comprehension scores were not. She alleges that there was a significant discrepancy between his reading comprehension abilities and his reading decoding and spelling abilities. I find that the use of the subtest scores would have provided more useful information than the composite broad reading scores, but the CSE's failure to include the subtest scores does not, in my judgment, afford an adequate basis for concluding that the IEP was defective.

        Petitioner further contends that the boy's IEP did not include a statement of current functioning in most of the areas addressed by the boy's annual goals and short-term objectives. The former 34 CFR 300.346 (a)(1) and its State counterpart, 8 NYCRR 200.4 (c)(2)(i), require that each child's IEP include a statement of the child's present level of educational performance. The State regulation requires that the IEP include a description of present levels of performance and needs with regard to academic achievement, social development, physical development, and management needs. I find that the boy's IEP for the 1997-98 school year satisfied the Federal and State regulatory requirement.

        Petitioner also challenges the adequacy and appropriateness of her son's IEP annual goals and short-term objectives. In fact, she asserts that there were no short-term objectives supporting her son's IEP annual goals. I find that her assertion is refuted by even a cursory examination of the boy's IEP for the 1997-98 school year. There is more merit to her assertion that the annual goals were rather general, and lacked the precision necessary to provide meaningful guidance to the teachers who would be required to implement them (Application of a Child with a Disability, Appeal No. 93-34). Such annual goals as " ... will develop decoding skills" and " ... will develop comprehension skills" are too broad to provide meaningful guidance. Even when the annual goals are too general, it may nevertheless be possible to discern a CSE's intentions from specific short-term objectives (Application of a Child with a Disability, Appeal No. 95-15). Some of this boy's objectives are, at first blush, equally general, e.g.: "will be able to apply knowledge of open and close (sic) syllables". However, they take on a more specific meaning within the context of the Orton-Gillingham methodology to teach reading which the CSE had specified for the child. The five objectives supporting the annual goal to improve the boy's reading comprehension skills, would, in my judgment, provide sufficient guidance to his teachers. The boy's annual goal relating to spelling was too general, and unsupported by an objective. His annual goal for written expression, while too general, was clarified by more precise short-term objectives. I find that the boy's other goals and objectives were sufficiently detailed. Although the IEP which the CSE initially prepared for the boy did not include any annual goal for reading, the amended IEP which was prepared in September, 1997 after receipt of the independent evaluator's report included goals and objectives which were consistent with the evaluator's recommendations and the boy's needs.

        Petitioner asserts that the goals and objectives lacked objective criteria and evaluation procedures as was required by the former 34 CFR 300.346 (a)(5) and 8 NYCRR 200.4 (c)(2)(iii). I agree that the IEP should have provided more detail about how the boy's progress would be assessed. However, I find that this omission does not lead to the conclusion that the recommended services and the program were, on the whole, inappropriate (Application of Children with Disabilities, Appeal No. 94-7; Application of the Board of Education of the Middle Country Central School District, Appeal No. 97-65).

        Petitioner further contends that the special education services which the CSE recommended for her son were inappropriate. She points out that a resource room is, by definition, intended for supplementary instruction (see 8 NYCRR 200.1 [hh]), and she argues that it was therefore an inappropriate place for her son to receive direct instruction in reading using the Orton-Gillingham methodology. Petitioner also asserts that the resource room teacher was unqualified to teach reading because she was a certified special education teacher, but was not certified to teach reading. Notwithstanding the CSE's designation of two periods per day of 1:1 instruction in reading, language arts, and keyboarding as resource room services, I find that it was clear to all who were involved that the boy would receive direct special education instruction during the periods in question. I further find that it would have been appropriate for a certified special education teacher to provide that instruction to him because of the nature of the instruction. Although 1:1 instruction is clearly among the most restrictive of settings, I find that it would have been appropriate under the circumstances presented to remediate the deficits in the boy's skills, while also affording him the opportunity to continue to pursue a Regents diploma in a mainstream setting during the remainder of the school day.

        Petitioner asserts that the hearing officer wrongly concluded that the combination of direct and supplementary special education instruction recommended for this boy would have been appropriate to meet his special education because the hearing officer premised her conclusion upon an erroneous definition of "good academic progress". While appearing to acknowledge that her son had achieved satisfactory grades in his mainstream high school courses while receiving similar services during the 1996-97 school year, petitioner contends that achieving satisfactory grades is an inappropriate standard because her son needed supports and modifications to achieve those grades. I disagree. Satisfactory grades in coursework which are consistent with performance on standardized testing instruments are acceptable indicators of satisfactory progress (Walczak v. Florida Union Free School District, 142 F. 3d 119 [2d Cir., 1998; Pascoe v. Washingtonville Central School District, 96 Civ. 4926, U.S. D.C. S.D. N.Y., 1998 [29 IDELR 31]). According to petitioner's expert witnesses, her son has severe dyslexia. His achievements during the 1996-97 school year were hardly inconsequential under the circumstances. Although I have considered petitioner's claims about the validity of the results on the W-J in May, 1997, including the rescoring of the results by one of the expert witnesses (Exhibit XXX), I must concur with the hearing officer's determination that there is no reason to discount the significance of the scores which the boy achieved in May, 1997. Those scores demonstrate that he had begun to make significant progress in his reading skills during the 1996-97 school year while receiving one period per day of 1:1 direct instruction using the Orton-Gillingham methodology.

        For the 1997-98 school year, respondent's CSE recommended that the boy receive two periods per day of 1:1 instruction from the same teacher who had taught the boy reading during the 1996-97 school year. Although the teacher would also have instructed the boy in writing and keyboarding during those two periods, I have no reason to believe that she would have been unable to assist him in continuing to improve his basic academic skills in reading and writing in the 1997-98 school year. Accordingly, I find that respondent has met its burden of proof with regard to the appropriateness of the educational program which it offered to provide to petitioner's son during the 1997-98 school year.

 

        THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

__________________________

January 20, 2000

FRANK MUŅOZ