The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for a review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Carmel Central School District
Garrett L. Silveira, Esq., attorney for petitioners
Raymond G. Kuntz, P.C. , attorney for respondent, Jeffrey J. Schiro, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which found that respondent had ultimately offered petitioners' son an appropriate educational placement for the 1998-99 school year, despite a delay in doing so. He ordered respondent to reimburse petitioners for the cost of their son's private school placement for the first three months of that school year, but he denied petitioners' request for reimbursement of their costs for the entire school year. Respondent cross-appeals from the hearing officer's directive that it reimburse petitioners for the cost of the first three months of their son's unilateral placement. The appeal must be dismissed. The cross-appeal must be sustained.
There is one preliminary procedural question to be decided concerning the record which I should consider. The Board of Education has annexed copies of a hearing officer's decision in a prior proceeding involving this child, the minutes of its meetings on August 17 1998, November 16, 1998, and January 19, 1999, and a notice of recommendation by the CSE to the child's mother dated January 20, 1999 to its answer and cross-appeal. The child's parents have asked me not to consider these documents because they were not part of the record which was before the hearing officer. Petitioners assert that the documents existed at the time of the hearing, and that they could have been entered into evidence. In addition they contend that the minutes of respondent's meeting on November 16, 1998 should be excluded from the record because they allegedly contradict the testimony of one of respondent's witnesses at the hearing.
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 of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). The documents in question were available at the time of the hearing. However, I will accept the documents in order to have a complete record. The prior hearing officer's decision is relevant to the issue of what respondent was required to do upon receiving that decision, which is an issue in this proceeding. Petitioners have alleged that respondent did not approve certain recommendations of its CSE. Respondent's minutes are relevant evidence which should be considered.
Petitioners' son will be 16 years old next month. During the 1998-99 school year, the boy was enrolled in the ninth grade at the Pine Ridge School in Williston, Vermont. The Pine Ridge School is a residential school for students with learning disabilities, and it uses the Orton-Gillingham methodology to teach its students to read and write. It has not been approved by the New York State Education Department to instruct children with disabilities, but it has been approved by the Vermont State Board of Education to provide both regular and special education.
The boy entered kindergarten in respondent's Matthew Patterson Elementary School in 1989. He reportedly received some extra assistance in mathematics during kindergarten, and remedial reading while in the third grade during the 1992-93 school year. The boy was reportedly medically diagnosed as having an attention deficit disorder (ADD) in 1992, and he began taking Ritalin for that condition. In February, 1994, the boy was referred by his mother to respondent's committee on special education (CSE). The boy was in the fourth grade when he was referred.
An educational evaluation was performed in March, 1994. Petitioners' son achieved grade equivalent (and percentile) scores of 3.6 (21) for reading decoding, 3.1 (16) for reading comprehension, 4.1 (32) for spelling, 5.1 (50) for math computation, and 4.3 (37) for math applications on the Kaufman Test of Educational Achievement. On the Test of Written Language, the boy's scores were in the average range for his age. However, his performance on the Detroit Tests of Learning Aptitude suggested that he had some listening comprehension and sequencing difficulties (Exhibit SD-11).
A school psychologist who evaluated the boy in April, 1994 reported that he had obtained a verbal IQ score of 91, a performance IQ score of 100, and a full scale IQ score of 95. The psychologist further reported that the boy's freedom from distractibility quotient of 93 indicated that his distractibility did not significantly impede his levels of performance. On the Wide Range Achievement Test Revised, petitioners' son achieved appropriate grade level scores. The school psychologist found no basis for concluding that the boy was learning disabled (Exhibit SD-8).
The CSE initially determined that petitioners' son did not meet the criteria for classification as a child with a disability, but it agreed to reconsider the matter after the boy had been seen by a physician and a speech/language evaluation had been performed. A physician confirmed the boy's diagnosis as ADD (Exhibit SD-14). A speech/language pathologist who evaluated the boy in May, 1994 reported weaknesses in his expression and auditory memory, and a significant delay in his vocabulary (Exhibit SD-16).
On May 17, 1994, the CSE recommended that the boy be classified as other health impaired, and that he receive five periods of resource room services and two sessions of speech improvement services per week (Exhibit SD-17). Petitioners accepted the CSE's recommendation. The boy reportedly adapted well to the recommended program. His fifth grade report card for the 1994-95 school year indicated that he did well, while participating in a "modified program" for language arts, math, social studies, and reading. His fifth grade resource room teacher reported that the boy's academic skills had improved, but he continued to need resource room services (Exhibit SD-25).
For the sixth grade during the 1995-96 school year, the CSE accepted the recommendation by the boy's speech/language therapist that speech therapy be discontinued. The CSE recommended that the boy continue to receive five periods of resource room per week for language arts while participating in the regular education sixth grade program (Exhibit SD-26).
In April, 1996, the boy achieved grade equivalent (and percentile) scores of 5.8 (34) for basic skills, 5.4 (32) for reading, 5.2 (30) for writing, 6.6 (47) for math, and 5.6 (34) for factual knowledge on the Woodcock Battery of Achievement. His resource room teacher reported that the child appeared to be experiencing success (Exhibit SD-33). On April 26, 1996, the CSE recommended that the boy continue to receive five periods of resource room services while enrolled in regular education seventh grade classes during the 1996-97 school year (Exhibit SD-34). It acceded to the request by the boy's mother for a re-evaluation of the boy's speech/language skills.
The re-evaluation was performed on June 6, 1996. The speech/language pathologist reported that the boy had achieved an age equivalent score which was almost two years below his actual age on the Peabody Picture Vocabulary Test Revised, while his age equivalent score on the Clinical Evaluation of Language Fundamentals Revised was approximately one year above his actual age. She recommended that the boy not receive speech/language therapy (Exhibit SD-37). Her recommendation was accepted by the CSE on June 11, 1996. The CSE indicated that it would review the matter after the first quarter of the 1996-97 school year (Exhibit SD-38). The boy's sixth grade report card indicated that he received satisfactory grades in each of his subjects, but three of his teachers described his performance as being inconsistent (Exhibit SD-39).
On October 16, 1996, the CSE revised the boy's individualized education program (IEP) for the 1996-97 school year. The minutes of that meeting indicated that the IEP was revised to include a notation that the boy's parent had requested that his teachers be informed that the boy's homework assignment book be checked on a regular basis (Exhibit SD-44). However, I must observe that a similar notation appeared on the IEP drafted in April, 1996. In any event, the CSE also agreed to have the boy's resource room teacher assess his written language skills and to reconvene to review the results of that assessment.
The assessment was performed on October 22, 1996. On the Woodcock-Johnson Test of Achievement - Revised, petitioners' son achieved grade equivalent (and percentile) scores of 6.9 (46) for dictation, 12.3 (89) for writing samples, 8.4 (64) for broad written language, 7.8 (57) for proofing, 5.5 (27) for writing fluency, 7.2 (50) for basic writing skills, and 7.1 (50) for written expression (Exhibit SD-47). The CSE reviewed those results on November 18, 1996. It added three annual goals for written expression to the boy's IEP (Exhibit SD-50).
In February, 1997, the boy's resource room teacher reported that the boy had achieved grade equivalent (and percentile) scores of 5.4 (27) for letter-word identification, 5.3 (31) for passage comprehension, 7.1 (46) for math calculation, 8.8 (65) for applied problems, 5.9 (31) for dictation, 8.9 (66) for writing samples, 5.2 (29) for science, 4.5 (15) for social studies, and 4.4 (21) for the humanities on the Woodcock-Johnson Test of Achievement (Exhibit SD-54). The teacher noted that the boy had attention difficulties during the test, and needed to be refocused (Exhibit SD-56). The achievement test was administered as part of the boy's triennial evaluation which was performed in the spring of 1997.
On April 3, 1997, the boy's resource room teacher, a school psychologist, and a school social worker conducted a case conference, at which they concluded that the boy's ADD did not appear to be adversely affecting his ability to learn. They recommended that he be declassified (Exhibit SD-58). On April 7, 1997, the school psychologist observed the boy in his math class. She reported that the boy behaved appropriately, but his attention and participation varied (Exhibit SD-59). In a social history update, it was noted that the boy's Ritalin dosage had been increased on an as needed basis.
The school psychologist, who evaluated the boy on April 17, 1997, reported that the boy had achieved a verbal IQ score of 82, a performance IQ score of 96, and a full scale IQ score of 87. She noted that his ability to attend to, concentrate on, and manipulate numerical material was consistent with his intellectual functioning. The school psychologist reported that the boy did not evidence specific patterns of strength or weakness, but that his visual motor mode of functioning was relatively stronger than his auditory verbal mode of functioning. She recommended that he be given structured assignments, vocabulary tasks, and tasks requiring him to slow down and check his work (Exhibit SD-61).
On May 13, 1997, a subcommittee of the CSE recommended that petitioners' son be declassified, and receive support services for study and organizational skills while in the eighth grade during the 1997-98 school year. The child's mother disagreed with the subcommittee's recommendation, which was sent to the CSE for review. The CSE met the boy's mother on May 28, 1997. The minutes of that meeting reveal that the CSE determined that the boy no longer met the criteria for classification as other health impaired, and that he was ineligible for classification as learning disabled (Exhibit SD-68). The CSE recommended that petitioner's son be declassified, and that he be found eligible to receive supportive services pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794). The CSE denied the parent's request for an independent neuropsychological evaluation of the boy because the CSE concluded that its testing was adequate.
The same day, a Section 504 accommodation plan was prepared for the boy. The plan provided that the boy's teachers would use a modified testing format, and make an extra effort to see that the boy received his homework assignments. The accommodation plan further provided that the boy would receive preferential seating in class, and be assigned to a middle school teaching team which included a special education teacher (Exhibit SD-68).
Shortly after the CSE had recommended that the boy be declassified, the California Achievement Test (CAT) was administered to him. He achieved grade equivalent (and percentile) scores of 5.2 (17) for vocabulary, 5.0 (26) for reading comprehension, 6.1 (25) for spelling, 8.4 (57) for language mechanics, 2.7 (12) for language expression, 8.0 (55) for math calculation, 6.6 (37) for math concepts, and 6.7 (43) for study skills (Exhibit P-A). On his report card for the 1996-97 school year, the boy received final grades of 76 for language arts, 88 for social studies, 73 for science, 66 for math, 87 for Italian, 91 for health/careers, and 84 for technology. The boy's science and math teachers commented upon the boy's inconsistent performance. I note that the boy's quarterly grades in math were 86, 71, 50, and 58 (Exhibit SD-70).
Petitioners did not request an impartial hearing to review the CSE's recommendation to declassify their son. However, the boy's mother apparently filed a complaint about the CSE's refusal of her request for an independent evaluation with the State Education Department. I note from the prior hearing officer's decision (Exhibit A to the Answer) that the boy was evaluated by a private psychologist in August, 1997. While the psychologist's report is not part of the record before me, the psychologist allegedly found that the boy had a profound language disability which made it impossible for him to learn in his current placement (Ibid.). The psychologist recommended that an independent speech/language evaluation be performed. The CSE reportedly agreed to have the evaluation performed. The independent speech/language evaluator's report is not in the record of this proceeding.
In September, 1997, petitioners' son returned to respondent's middle school, where he was enrolled in regular education eighth grade classes. He reportedly received the assistance which had been included in his Section 504 accommodation plan. On the first day of the school year, he was observed in his social studies class by the school psychologist. She reported that although the boy's attention and behavior were appropriate, he did not actively participate in the class, or take advantage of an opportunity to begin his homework assignment. In their five-week progress reports, the boy's English, math and science teachers noted that he had not completed all of his assignments. Subsequent reports in the latter part of October, 1997 indicated that completion of homework continued to be a problem. His first quarter grades included 72 for English, 66 for math, 60 for science, 60 for social studies, and 73 for Italian. His inconsistent performance and failure to complete assignments were noted on his report card.
At the CSE's request, an educational evaluator administered the cognitive testing battery of the Woodcock-Johnson Tests of Cognitive Ability-Revised to the boy on November 6, 1997. The boy achieved grade equivalent (and percentile scores) of 5.9 (43) for memory for names, 4.6 (28) for memory for sentences, 11.4 (76) for visual matching, 1.7 (8) for incomplete words, 16.9 (98) for visual closure, 2.4 (3) for picture vocabulary, 2.8 (12) for analysis-synthesis, 5.9 (28) for oral vocabulary, 5.9 (42) for long-term retrieval, 4.0 (27) for short-term memory, 11.0 (75) for processing speed, 4.1 (26) for auditory processing, 12.2 (73) for visual processing, and 3.9 (14) for listening comprehension.
On December 3, 1997, the child's mother and the private psychologist who had evaluated the boy in August met with the CSE. Respondent's educational evaluator also attended the meeting. The purpose of the meeting was to determine whether the boy was eligible to be classified as a child with a disability under the Individuals with Disabilities Education Act (IDEA) and its State counterpart, Article 89 of the Education Law. The CSE did not reach a decision because the boy's teacher had to leave. When the CSE reconvened on December 10, 1997, it determined that he was ineligible for classification, but it did recommend that his Section 504 accommodation plan be amended to include twice-weekly speech/language therapy (Exhibit SD-92).
Petitioners requested that an impartial hearing be held to review the CSE's recommendation. After its receipt of this request, respondent reportedly provided special education services to the boy pursuant to his last mutually agreed upon IEP, i.e., his IEP for the 1996-97 school year (Transcript, page 258). Petitioners reportedly sought a determination that their son should be classified as learning disabled, and be awarded seven years of compensatory education. The hearing officer in that proceeding rendered his decision on August 19, 1998. He found that petitioners' son by virtue of his ADD and language-based difficulties should have been classified as a child with a disability under the IDEA while in the eighth grade during the 1997-98 school year. The hearing officer rejected petitioners' assertion that their son had not received appropriate special education service during the years prior to the 1997-98 school year. He found that the boy had derived a meaningful benefit from his education during those years.
The hearing officer also found that respondent should have prepared an IEP for the boy and provided him with special education services during the 1997-98 school year. However, he attributed at least some of the boy's academic difficulties during that school year to the refusal of the boy's mother to allow school officials to contact two independent educational evaluators who had evaluated the boy. He remanded the matter to respondent's CSE to classify the boy and prepare an appropriate IEP for the 1998-99 school year. The hearing officer indicated that an appropriate educational program would include regular education classes, with supplementary assistance such as resource room services and a 1:1 tutorial for language remediation (Exhibit A to the Answer). Neither party appealed from that decision, which is therefore final and beyond review in this proceeding (34 CFR300.509; 8 NYCRR 200.5 [c] ).
During the pendency of the prior proceeding, the boy's academic progress was assessed with the Woodcock-Johnson Test of Achievement on March 3, 1998 (Exhibit SD-93). He achieved grade equivalent (and percentile) scores of 8.2 (47) for letter-word identification, 8.3 (48) for passage comprehension, 10.0 (66) for calculation, 6.8 (34) for applied problems, 5.6 (16) for dictation, and 7.6 (43) for writing samples. During the second semester of the 1997-98 school year, the boy was involved in a series of disciplinary incidents arising from outbursts in class (Exhibit P-D). These matters were handled at the building level. I note that in January, 1998, several of the boy's teachers indicated on his report card that his work effort was inconsistent. His cumulative averages for the first and second marking periods were 72.3 and 69.0, respectively (Exhibit SD-84). His teachers repeated those comments on the boy's final report card for the eighth grade, which also indicated that he had been absent from school for 23 days. His cumulative averages for the third and fourth marking periods were 64.9 and 64.8, respectively, with final grades of 65 in English, 58 in math, 63 in social studies, 50 in science, 52 in Italian, 66 in technology, 68 in home and careers, 65 in health, 73 in art, and 77 in music (Exhibit SD-97). Although he failed three of his academic subjects, the boy did not attend summer school.
Although it had previously recommended that the boy be declassified, the CSE conducted an annual review on the boy's pendency placement on June 16, 1998. The CSE meeting minutes indicated that the boy's resource room teacher reported that he had worked well in resource room, but had not shown consistent effort in his regular classes. The boy's speech therapist reported that petitioners' son was making progress in improving his vocabulary and auditory receptive skills, and should continue to receive twice-weekly speech/language therapy. The CSE prepared a pendency placement IEP for the 1998-99 school year which provided for five periods of resource room per week, and two sessions of speech/language therapy per week (Exhibit SD-95).
I note that at the time of its meeting in June, the CSE did not have the boy's final grades for the 1997-98 school year, or the results of the CAT which was administered to the boy in May, 1998. On the CAT, he achieved grade equivalent (and percentile) scores of 5.5 (14) for vocabulary, 3.9 (10) for comprehension, 9.3 (56) for spelling, for 6.7 (39) for language mechanics, 1.8 (4) for language expression, 8.1 (41) for math computation, 10.0 for math concepts, and 8.4 (43) for study skills (Exhibit P-C).
In a letter dated June 16, 1998, the boy's mother informed the CSE chairperson that she was dissatisfied with her son's proposed program because it did not include retaining him in the eighth grade. She indicated that she would seek a placement in an approved private school, from a list of such schools which she asked the chairperson to provide (Exhibit SD-96). On August 17, 1998, respondent approved the CSE's recommendation for the boy. Respondent's Assistant Director of Pupil Services advised the boy's mother on August 19, 1998 that her concern about having her son retained in the eighth grade should be addressed to the guidance department, rather than the CSE. A list of approved private schools was reportedly given to the boy's mother on September 9, 1998.
As noted above, the hearing officer in the prior proceeding remanded the matter to the CSE on August 19, 1998. Respondent's Director of Pupil Services testified that respondent received the decision on August 22, 1998, and that she contacted the boy's mother to schedule a CSE meeting. The boy' mother was reportedly available to meet only on Tuesdays. She and the Director reportedly agreed not to meet on September 1, which was a superintendent's conference day for teachers returning to school (Transcript, page 154). A meeting of the CSE was scheduled to take place on September 8, 1998. However, shortly before the meeting was to occur, the boy's mother telephoned the CSE to indicate that she was unavailable to attend the meeting. On September 10, 1998, the boy's mother agreed to meet with the CSE on September 16, 1998. The CSE did meet with her on that date.
Petitioners had enrolled their son as a residential student in the Pine Ridge School four days before the CSE meeting was held (Transcript, page 928). They agreed to pay the sum of $36,700 for tuition, room, and board (Exhibit P-L). At the CSE meeting, the boy's mother asked the CSE to guarantee her son's placement at the Pine Ridge School for the remainder of his high school career (Exhibit SD-107), notwithstanding respondent's inability to contract with an unapproved school (Section 4402 [b] of the Education Law). The CSE recommended that the boy be classified as other health impaired, after determining that the boy did not meet the criteria for classification as learning disabled. I note that the boy's classification as other health impaired is not in dispute in this proceeding. It also recommended that petitioners' son be placed in a special education class with a 15:1 student-teacher ratio for instruction in reading, English, Global Studies, modified science, and mathematics, with 39 minutes of resource room services five times per week and three sessions of individual speech/language therapy per week (Exhibit SD-106).
In a letter dated September 23, 1997, the CSE chairperson asked the boy's mother to provide information about the Pine Ridge School, so that the CSE " could properly consider your request [for funding of the parents' unilateral private school placement]" (Exhibit SD-108). The boy's mother responded to this request on October 2, 1998 (Exhibit P-E). A CSE meeting scheduled to be held on October 22, 1998 was not held because one of the required CSE members was unable to attend the meeting. The meeting was ultimately held on November 12, 1998. The regular education teacher member of the CSE attended part of the CSE meeting, but left before the end of the meeting to go to her class. The boy's mother signed a waiver of her right to have the regular education teacher in attendance at the meeting (Exhibit SD-112). The CSE meeting minutes indicate that the CSE reviewed the boy's educational plan at the Pine Ridge School, but it concluded that an out-of-district placement was too restrictive for the boy. The CSE adhered to its September recommendations (Exhibit SD-112).
In a letter dated December 14, 1998, petitioners asked for an impartial hearing regarding respondent's alleged failure to provide an appropriate IEP to their son for the 1998-99 school year (Exhibit SD-114). Petitioners' attorney indicated in a separate letter that petitioners believed that their son's IEP did not properly identify his needs, did not include appropriate goals and objectives, and failed to incorporate a behavioral assessment and behavior plan. The relief requested was reimbursement of petitioners' expenditures for their son's placement at the Pine Ridge School.
The hearing began on February 4, 1999, and it concluded after five additional days of testimony on March 25, 1999. The hearing officer rendered his decision on May 10, 1999. He found that respondent's " inflexible adherence to Committee membership requirements and school calendar constraints" had led to the postponement of urgent decisions. However, the hearing officer further found that respondent had met its burden of proof that it had offered to provide petitioners' son with a free appropriate public education during the 1998-99 school year. He determined that the Board of Education should compensate the boy's parents for the cost of their son's tuition, room and board at the Pine Ridge School for the first three months of the 1998-99 school year.
Petitioners challenge the hearing officer's determination that respondent had offered to provide a free appropriate public education to their son during the 1998-99 school year. They contend that the IEPs developed at the September 16 and November 12 CSE meetings were procedurally and substantially flawed. Petitioners' procedural objections relate to the composition of the CSE at both meetings, and respondent's alleged delay or inaction with regard to approving and implementing the CSE's recommendations. Petitioners assert that the IEP prepared at the September 16, must be deemed to be a nullity because the CSE's parent member (see Section 4402 [b] of the Education Law) did not attend the meeting. Although the child's mother signed a document purporting to waive her right to have a parent member present, I have previously held that the Education Law does not authorize school boards or parents to dispense with the services of required CSE members (Application of the North Rose-Wolcott Central School District, Appeal No. 97-1). Respondent asserts that the parent member arrived shortly after the CSE meeting had begun. I note that the parent member's name is not listed in the minutes of the CSE meeting (Exhibit SD-106). However, respondent's Director of Pupil Services, who served as the CSE chairperson at that meeting, testified that the parent member did join the meeting after it had begun (Transcript, pages 174-175). I find that her testimony was not refuted at the hearing, or in this appeal. Therefore, I further find that there is no basis for invalidating the IEP which was prepared at the CSE meeting which was held on September 16, 1998 because of an allegedly invalid CSE composition.
Petitioners also assert that the CSE's offer of a program for the 1998-99 school year was untimely. They point out that classes began in respondent's district on September 2, 1998, but the CSE did not prepare the IEP until September 16, and they contend that respondent never approved the CSE's recommendations, i.e., their son's IEP. In New York, the CSE's recommendations are sent to the board of education for review before implementation (Section 4402 [a] of the Education Law). Respondent asserts that the CSE's recommendations from its September 16, 1998 meeting were approved by respondent on November 16, 1998, and it has submitted its meeting minutes which support that assertion (Exhibit B to the Answer). At the hearing, the boy's mother acknowledged that she had received a copy of the IEP on November 12, 1998.
Federal law requires that an IEP be in effect for each child with a disability at the beginning of the school year (20 USC 1414 [d][A]). In this instance, the CSE had prepared a "status quo", or pendency, IEP at its June, 1998 meeting, which was consistent with its obligation to provide the same level of services which respondent had provided before petitioners requested the first hearing. Respondent approved that IEP on August 17, 1998 (Exhibit E to the Answer). Five days later, respondent received the hearing officer's decision directing its CSE to classify the boy and to place him in regular education classes, with supplementary services such as resource room and a 1:1 "tutorial" in language remediation. As noted above, the hearing officer's decision was binding upon both the parents and the school district, unless appealed. Given the short period of time between the receipt of the hearing officer's decision and the opening of school, and the fact that the June 16, 1998 pendency IEP was substantially similar to what the hearing officer in the first proceeding had directed respondent to provide, I find that the June 16, 1998 IEP could have been implemented at the beginning of the school year until the parties had a reasonable opportunity to meet and prepare a new IEP. I have considered the testimony of the CSE chairperson and the boy's mother about the scheduling of the September 16, 1998 CSE meeting, and I find that the CSE did not unreasonably delay in meeting with the boy's mother to prepare a new IEP. I must therefore turn to the appropriateness of the IEP which was prepared on September 16, 1998.
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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.
Petitioners assert that their son's IEP did not adequately identify the boy's educational deficits and his special education needs. I disagree with that assertion. I find that the boy's educational deficits and his special education needs were described in adequate detail on the second and third pages of the IEP. Petitioners point out that the IEP did not include the results of the independent neuropsychological and speech/language evaluations. Since those reports are not in the record which is before me, I have no basis for determining the significance of the CSE's omission for purposes of planning an appropriate educational program.
Petitioners contend that the boy's IEP was inadequate because it failed to include annual goals and supporting objectives for each of the special classes in which their son would have been enrolled. Specifically, they allege that there were no goals for reading, science, and social studies.
As amended, the Individuals with Disabilities Education Act (IDEA) provides that an IEP include " a statement of measurable annual goals, including benchmarks or short-term objectives, related to (I) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum; and (II) meeting each of the child's other educational needs that result from the child's disability" (20 USC 1414 [d][A]). The IEP in question included annual goals for written language, study skills, speech/language, transitional activities, English Regents, mathematics, English-language arts, and language analysis skills. Goal #2 for English Regents and the language analysis skills goal are clearly related to the boy's weakness in reading comprehension. As noted on the IEP, the boy's reading needs included understanding multiple meanings of words, comprehending words in context, form analysis, and recalling information. There are a number of IEP objectives which would have addressed these needs. The IEP goals and objectives also address his weaknesses in written expression and listening comprehension, which are also skills which the boy required in order to successfully master the general curriculum.
The special education social studies and science classes which the boy would have taken were to have used modified regular education curricula. While the boy would have been expected to achieve passing grades in those courses, I find that it was not necessary to have annual goals for him to achieve that result, or to identify specific portions of the curricula of those courses which the boy should master. The record does not demonstrate that the boy had specific deficits in the content areas of science and social studies. What it does reveal is that he had difficulty completing assignments to satisfy the course requirements for eighth grade science and social studies. His IEP for the 1998-99 school year included goals for improving his organizational and study skills, as well as his test-taking strategies. An improvement in these skills would allow him to master the content of social studies and science.
Petitioners assert that their son's IEP was deficient because its annual goals and short-term objectives did not include expected levels of achievement, and measurable standards of achievement. I agree that IEP objectives should provide general benchmarks for determining progress towards meeting a child's annual goals. This boy's objectives described the specific skills which will be worked upon, the expected rate of success, and the evaluation procedures, e.g., teacher observation and teacher devised tests. One of the objectives for written expression indicates that his work would be at the ninth grade level. While there was no grade level specified for his reading objectives, I am not persuaded that the entire IEP should be found to be inadequate because of that omission.
Petitioners have not challenged the CSE's recommendation that their son be enrolled in special education classes for his academic content areas, but they do challenge the appropriateness of placing him in ninth grade classes. I note that the boy's resource room teacher for the eighth grade described him as an average child who should be able to do well in school, and she opined that he would do very well in the program which the CSE had recommended for the ninth grade (Transcript, page 522). The recommended program would have specifically addressed the boy's deficits in language skills, and it would have provided him with far more structure than his eighth grade program did. Accordingly, I find that the boy would have appropriately placed in special education ninth grade classes during the 1998-99 school year.
Although both parties have alluded to the IEP which the CSE prepared at it November 12, 1998 meeting, that IEP would not have altered the educational program which the CSE had recommended in September. Therefore, I find that the contents of the IEP and the manner in which it was adopted are not relevant to the central issue in this appeal which is whether petitioners should be reimbursed for any or all of their expenditures for their unilateral placement of their son in the Pine Ridge School for the 1998-99 school year.
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 ). In this instance, I find that respondent has met its burden of demonstrating that it had offered to provide a free appropriate public education to petitioners' son for the 1998-99 school year. Therefore, petitioners' appeal must be dismissed.
In its cross-appeal, respondent contends that the hearing officer misapplied the criteria for awarding the relief of tuition reimbursement. Respondent argues that the hearing officer could not award tuition reimbursement because he found that respondent had offered to provide an appropriate educational program to petitioners' son.
The hearing officer based his award upon " the District's failure to respond promptly and effectively to the parents during the weeks prior to and immediately following the unilateral placement". His finding that respondent had allegedly failed to work with the parents in a timely manner appears to have been premised upon his belief that respondent's staff should have responded more promptly to the June 16, 1998 request by the boy's mother for a list of the private schools which had been approved by the State Education Department, and respondent's alleged failure to offer to provide a summer school program to the boy. However, I must note that a regular education summer school program was available to the boy, and that his mother testified that she had not asked the CSE for a summer school program for her son (Transcript, pages 934-935). In any event, I must agree with respondent that the hearing officer erred by apparently relying upon equitable factors to award tuition reimbursement, notwithstanding his finding that respondent had offered an appropriate program, and his failure to make a specific finding that petitioners had met their burden of proof concerning the appropriateness of the services provided to their son by the Pine Ridge School.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it ordered the Board of Education to reimburse petitioners for their expenditures for the first three months of their son's unilateral placement at the Pine Ridge School.
|Dated:||Albany, New York||__________________________|
|January 31, 2000||FRANK MUŅOZ|