The State Education Department
State Review Officer

No. 02-093

 

 

 

 

 

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

 

Appearances:
Young, Sommer, Ward, Ritzenberg, Wooley, Baker and Moore, LLC, attorney for respondent, Kenneth S. Ritzenberg, Esq., of counsel

 

DECISION

        Petitioners appeal from an impartial hearing officer's decision finding that respondent had offered to provide an appropriate educational program to their son for the 1998-99, 1999-2000, and 2000-01 school years, and denying their request for an award of tuition reimbursement for those school years. The appeal must be sustained in part.

        Respondent objects to my consideration of three documents that petitioners have annexed to their petition because the documents were not in the record before the hearing officer. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision if such evidence was unavailable at the time of the hearing, or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41). The three documents are a private school diploma issued to petitioners' son on June 16, 2002, a letter dated May 8, 2002 indicating that the student had been accepted for admission to the Vocational Independence Program of the New York Institute of Technology (VIP), and an undated description of the VIP. Although the hearing officer did not render her decision until August 20, 2002, the hearing concluded on September 11, 2000. I will include the documents in the record on appeal because they were unavailable at the hearing.

        Petitioners' son was 15 years old and attending the Riverview School (Riverview), a private school in Massachusetts in which he had been placed by petitioners, when the hearing in this proceeding began in May 1999. He entered foster care shortly after birth, and was diagnosed as having sickle cell anemia and probable developmental disabilities prior to being adopted by petitioners in 1990 (Exhibit 36). Between the ages of seven and nine, he experienced a series of strokes that reportedly resulted in permanent brain damage. The student fatigues easily. He has difficulty with memory and attending, and exhibits significant visual perceptual deficits, as well as delays in his mental processing ability. The student's reading skills are reported to be nearly age appropriate, with some deficits in higher-level comprehension. He has difficulty with mathematical computation, and his gross and fine motor skills are affected by left-sided weakness. The student's word retrieval skills are delayed, and he has difficulty interpreting social situations. His writing is poor in terms of content, mechanics, and legibility. The student reportedly tends to diminish his difficulties, as a result of which he has a somewhat unrealistic self-image.

        Petitioners' son entered respondent's schools in September 1989. He was initially placed in the first grade, but after encountering difficulties was reassigned to a pre-first grade class. Petitioners enrolled their son in a self-paced program at a private school in Troy, NY for the 1990-91, 1991-92, and 1992-93 school years. He was privately tutored after school during the latter two school years. The student returned to respondent's school for the fourth grade during the 1993-94 school year. He was classified as other health impaired by respondent's Committee on Special Education (CSE), and he has remained so classified. There is no dispute about his classification in this appeal.

        The student was placed in a self-contained special education class for part of the school day and also received resource room services and related services during the fourth, fifth, and sixth grades in respondent's schools. He continued to be privately tutored after school. Petitioners were reportedly unhappy with their son's educational program during those years. They unilaterally placed him in the Hillside School in Massachusetts, where he apparently repeated sixth grade during the 1996-97 school year (Transcript p. 203). The student reportedly did not do well at Hillside, and returned to respondent's schools for eighth grade during the 1997-98 school year. According to his mother, he was placed in the eighth grade, rather than the seventh, because of his age (Transcript p. 1258). Before starting in September 1997, he attended respondent's summer school, in which he displayed low academic skills (Exhibit D).

        During the 1997-98 school year, the student received primary special education instruction in mathematics as well as two periods per day of supplementary special education instruction, i.e., resource room, in addition to 15 periods of push-in supplementary special education in language arts, social studies and computer science (Exhibit 26). He also received occupational therapy twice a week. He received Bs and Cs for all subjects on his report card, on which his teachers noted that he had difficulty accomplishing independent work, completing class work, and being self-motivated (Exhibit 64). Organization and study skills were areas of weakness for him. He reportedly acted out on the school bus or at school on occasion, but there were no major disciplinary incidents (Transcript p. 1273). Petitioners were concerned by their son's apparent lack of motivation in school and argumentative behavior at home (Transcript pp. 1387, 1466). The student's neurologist indicated in May 1998 that the student might need counseling (Exhibit B).

        The CSE's annual review of the student's program had been scheduled to take place on May 26, 1998, but was cancelled because school staff were not prepared to meet on that day (Exhibit 81; Transcript p. 1952). The CSE met with petitioners on August 13, and 28, 1998. For the 1998-99 school year, the CSE recommended that petitioners' son be enrolled in a 12:1+1 special education class for four periods per day for language arts, mathematics, and organizational skills, and that he have a full time individual aide in respondent's high school. It further recommended that indirect consultant teacher services be provided for 30 minutes each week to assist the student in global studies, and that the student receive 40 minutes of individual speech/language therapy twice per week, 40 minutes of speech/language therapy in a group per week, 40 minutes of individual occupational therapy per week, and 30 minutes of consultant occupational therapy per week (Exhibit 28).

        At the August 28th meeting, petitioners' then attorney informed the CSE that petitioners were rejecting the educational program recommended by the CSE (Transcript p. 1904). By letter dated September 7, 1998, the attorney advised respondent's supervisor of special services that petitioners had decided to enroll their son in Riverview for the 1998-99 school year and would seek tuition reimbursement (Exhibit 31). A copy of the student's proposed individualized education program (IEP) for the 1998-99 school year was sent to petitioners on November 6, 1998, and another copy of the IEP was sent to them on December 16, 1998 after respondent had approved the CSE's recommendations pursuant to Education Law 4402(2)(b)(2) and 8 NYCRR 200.4(e) (Exhibits 33, 34). On May 5, 1999, petitioners requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Exhibit 32).

        Respondent's CSE conducted its next annual review of the student on August 18, 1999. A representative of Riverview participated by telephone in the annual review. The CSE did not complete the student's IEP on August 18. It reconvened on September 1, 1999 to complete the IEP for the 1999-2000 school year. The CSE recommended that the student attend respondent's high school for the tenth grade. He was to have received 80 minutes of instruction in reading and writing and 40 minutes of instruction in mathematics in a 12:1+1 special education class, and have 40 minutes of resource room instruction each school day. In addition, the student was to have received 40 minutes of direct consultant teacher service each day for global studies and 30 minutes of indirect consultant teacher service each week for industrial arts. The CSE recommended that he receive 40 minutes of individual speech/language therapy twice per week and 40 minutes of such therapy in a group each week, as well as 40 minutes of individual occupational therapy per week and 30 minutes of consultant occupational therapy per week. It also recommended that he receive 40 minutes of social skills training in a group twice each week (Joint Exhibit 3).

        Petitioners informed the CSE at its September 1st meeting that they would reject their son's proposed IEP and would enroll him in Riverview for the 1999-2000 school year (Transcript pp. 1918, 1993). A copy of the IEP was sent to petitioners on September 7, 1999 (Exhibit NN). On September 27, 1999, they were notified that respondent had approved the CSE's recommendations (Exhibit OO). The student attended Riverview during the 1999-2000 school year.

        By letter dated June 5, 2000, the CSE's chairperson advised petitioners that the CSE would re-evaluate their son during the current school year, and requested their consent for such evaluation (Exhibit 84). Petitioners were notified that the CSE's annual review would be conducted on June 19, 2000 (Exhibit 85). Although Riverview was invited to attend or participate in the review, the private school declined to do so (Exhibit 86). The CSE did not have any information from Riverview about the student's performance during the 1999-2000 school year, nor had it received petitioners' consent to evaluate the student, when it met with the student's mother on June 19, 2000 (Transcript pp. 1923-1924). The student's mother gave her written consent for evaluation on July 7, 2000 (Exhibit 88).

        On July 12, 2000, a school psychologist reviewed prior psychological evaluations and a midyear progress report from Riverview. He also administered the Wechsler Individual Achievement Test (WIAT). On the WIAT, the student achieved standard scores of 82 for reading, 66 for mathematics, and 79 for writing. The psychologist noted that the student had difficulty drawing conclusions, sequencing and making inferences, and that he could not accurately write a fraction as a mixed decimal, solve a one-step word problem requiring multiplication, or solve a one-step problem requiring the use of fractions. The student's motor skill deficits made it difficult to read his handwriting, but he could write an organized paragraph with the assistance of graphic organizers and writing frames. Although the student's responses to questions from the Piers-Harris Children's Self-Concept Scales were consistently positive to an exaggerated degree, the school psychologist reported that further discussion revealed that the student's self-view was more realistic than was indicated by the test results. He noted that the student consistently put forth his best effort, and had made notable gains over the years (Exhibit 91).

        On August 2, 2000, a speech/language pathologist evaluated the student for the CSE. She reported that the student evidenced significant delays in his receptive and expressive language skills, including word retrieval, following oral directions, processing comparative relationships, and formulating concise and cohesive sentences. She recommended that he receive 40-50 minutes of speech/language therapy three times per week, with one session taking place in the student's classroom (Exhibit 92).

        The CSE reviewed the results of the psychological and speech/language evaluations at a meeting with the student's father on August 10, 2000. For the 2000-01 school year, the CSE recommended that the student receive 80 minutes of instruction in reading and writing and 40 minutes of instruction in mathematics in a 12:1+1 special education class each day, as well as 40 minutes of resource room services for organizational skills each day. It also recommended that he receive 40 minutes of direct consultant teacher service each day for global studies, and 30 minutes of indirect consultant teacher service each week for industrial arts. In addition, the CSE recommended that the student be provided with 40 minutes of individual speech/language therapy per week, and two 40-minute sessions of speech/language therapy in a group per week, with one of such sessions to be in the student's language arts class. One 40-minute session of push-in individual occupational therapy and one 30-minute session of consultant occupational therapy were also recommended by the CSE, in addition to 40 minutes of social skills training per week (Exhibit 93).

        The student's father rejected the CSE's recommended program at the August 10, 2000 CSE meeting (Transcript p. 1933). By letter dated August 28, 2000, the CSE chairperson notified petitioners that the Board of Education had approved the CSE's recommendations, and enclosed a copy of the student's IEP for the 2000-01 school year (Exhibit 90). On September 8, 2000, petitioners' then attorney notified the CSE chairperson that petitioners were enrolling their son in Riverview and would request an impartial hearing for the purpose of obtaining tuition reimbursement (Exhibit UU).

        The impartial hearing in this proceeding began on June 24, 1999, and continued for 11 more days ending on September 11, 2000. By agreement of the parties, the hearing officer assumed jurisdiction over petitioners' requests for tuition reimbursement for the 1999-2000 and 2000-01 school years in addition to their initial request for tuition reimbursement for the 1998-99 school year. The hearing officer rendered her decision on August 20, 2002. She rejected the parents' contention that they had been denied a reasonable opportunity to decide whether to send their son to public or private school by the school district's delay in providing them with copies of the student's IEP for the three school years. She found that the CSE had adequately identified the student's educational needs and prepared appropriate goals and objectives on the IEPs for each of the three school years. The hearing officer further found that the student's IEPs were reasonably calculated to confer educational benefits upon him, and concluded that respondent had met its burden of proving that it had offered to provide an appropriate educational program for petitioners' son for the 1998-99, 1999-2000, and 2000-01 school years. She also found that petitioners had not demonstrated that the services provided by Riverview were appropriate for the student.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]).

        To meet its burden of showing that it had offered to provide a free appropriate public education (FAPE) to a student, a board of education must show that it complied with the procedural requirements of the Individuals with Disabilities Education Act (IDEA), and that the recommended program developed in accordance with those requirements is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

        Petitioners assert that respondent's CSE failed to recommend an appropriate educational program for their son in a timely manner for each of the three school years in question. They argue that the CSE was obligated to make its recommendations for their son's program by no later than the first of July because federal regulation requires that a school district have an IEP in place for each child with a disability at the beginning of the school year (34 C.F.R. 300.342[a]), and Section 2(15) of the New York State Education Law defines the term school year as being the period from July 1 through the following June 30. Petitioners' reliance upon the statutory definition of the term school year is misplaced because their son had not been recommended to receive services on a 12-month basis. The student was to receive services on a ten-month basis starting in September of each school year (Exhibits 28, 3, 93). The school year for this student began in September.

        In the alternative, petitioners argue that the CSE failed to make timely recommendations for the 1998-99 and 1999-2000 school years because they did not receive a copy of their son's IEP until after September 1 of each year. The 1998-99 IEP indicates that the student's program was to begin on September 9, 1998. Petitioners received a copy of the proposed IEP on November 6, 1998, approximately two months after their son's program in respondent's schools was to have begun, and another copy of the IEP on December 16, 1998 after respondent had approved its CSE's recommendations (Exhibits 33, 34). Petitioners received an enrollment application from Riverview in May 1998, and enrolled their son in the school some time after that (Transcript pp. 1196-1199). The student's IEP for the 1999-2000 school year indicates that his program was to begin on September 8, 1999. Petitioners received their son's proposed IEP for the 1999-2000 school year on September 7, 1999 (Exhibit NN), and were notified September 27, 1999 that respondent had approved the CSE's recommendations (Exhibit OO). The record reveals that on August 1, 1999, petitioners sent a non-refundable deposit to Riverview to reserve a place for their son at the school during the 1999-2000 school year (Transcript p. 2003).

        As noted above, respondent must show that it complied with the procedural, as well as the substantive, requirements of the IDEA. Procedural flaws do not automatically require a finding of a denial of a FAPE. However, procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation of a child's IEP, do constitute a denial of a FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 U.S. 950 [2001]; Heather C. v. State of Wisconsin, 125 F.3d 1045,1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D.Conn. 2001]; Evans v. Bd. of Educ. of Rhinebeck CSD, 930 F. Supp. 83 at 93-94 [S.D.N.Y. 1996]; Arlington Cent. Sch. Dist.v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002).

        Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]). The IEP must be in effect before special education and related services are provided (34 C.F.R. 300.342[b][1][i]). The school district must provide a copy of the IEP to the parent, without the need for a request (34 C.F.R. 300.345[f]; 64 Fed. Reg. 12587 [comment]; 8 NYCRR 200.4[e][3]). Beginning with the 1999-2000 school year, federal regulations require that the child's IEP must be accessible to each regular education teacher, special education teacher, and all other service providers who are responsible for its implementation (34 C.F.R. 300.342[b][2]).

        Petitioners do not allege that they were unaware of the CSE's general recommendations for their son's educational program for either the 1998-99 or 1999-2000 school year prior to receiving copies of the written IEP. Indeed, the record shows that at least one of the petitioners was present at each CSE meeting during which the student's proposed IEPs were discussed, and that they were active participants in the process of developing those IEPs. However, that is not dispositive of the matter. An IEP is more than a description of the special education services to be provided to a student. It must also include a description of the student's present levels of performance, set forth annual goals and short-term objectives and/or benchmarks, describe supplementary aids and services, and describe the testing modifications to be used with the student. Once a student's parents have this information, they can then make an informed decision about whether the proposed goals are reasonable and whether the proposed special education services, curricular modifications, and accommodations would afford their child a reasonable opportunity of achieving those goals. The appropriateness of a student's proposed program cannot be ascertained by his or her parents without having all of this information set forth in a written IEP (Application of a Child with a Disability, Appeal No. 00-095).

        In this instance, petitioners did not receive a completed copy of their son's IEP for the 1998-99 school year until well after services would have been provided pursuant to that IEP, had petitioners accepted the CSE's recommendations. Respondent's failure to provide a copy of the student's completed IEP prior to the projected starting dates for his educational programs for the 1998-99 school year is not a mere technical violation (Bd. of Educ. v. T.M., ___F. Supp. 2d ____, No. 02 Civ. 2252 [S.D.N.Y. July 29, 2002]; Application of the Bd. of Educ., Appeal No. 01-059; Application of a Child with a Disability, Appeal No. 00-059). I find that respondent has failed to meet its burden of proof that it had developed and offered to provide an appropriate educational program to petitioners' son in accordance with the IDEA for the 1998-99 school year. I reach a contrary conclusion with respect to the 1999-2000 school year. Not only did petitioners participate in the development of their son's IEP for that school year, they received a copy of the IEP that presumably would have been available to their son's teachers to provide instruction beginning with the first day of instruction on September 8, 1999.

        Petitioners bear the burden of proof with regard to the appropriateness of the services provided by Riverview to their son during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school offered an educational program which met the student's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        In determining the appropriateness of the services provided by Riverview, I must note that no representative of the private school testified at the hearing. While I share the hearing officer's concern about the lack of such testimony, I must nevertheless examine the entire record to ascertain whether it provides sufficient information about the services provided to the student and the student's progress, if any, as a result of receiving those services. There is a brief written description of Riverview in the record (Exhibit F) that indicates that it provides a literature-based curriculum with an emphasis on problem solving and critical thinking skills. The curriculum includes an "Our World" course with an emphasis on current events, adolescent issues and study skills.

        The record also includes reports by and the testimony of Dr. Maria Lifrak, a psychologist who evaluated the student for petitioners in November 1999 (Exhibit EE) and observed him in classes at Riverview on December 6 and 7, 1999 (Exhibit FF). Obviously, Dr. Lifrak's observation took place in the subsequent school year. However, it is highly likely that her description of the school and the instruction it provides is apt in determining the appropriateness of the services that the student received during the 1998-99 school year. Dr. Lifrak testified that Riverview is a small school that provides instruction for learning disabled adolescents who also have a medical condition that affects their learning. She described the school's curriculum as being language based and theme related. Dr. Lifrak testified that petitioners' son required placement in small classes in which instructional material is well organized, sequentially outlined, and repeated numerous times (Transcript p. 1746). Her description of how instruction was provided at Riverview (Transcript p. 1618) is consistent with the student's needs.

        Petitioners' son has visual perceptual deficits and delays in his mental processing ability, as well as deficits in his gross and fine motor skills. He also has difficulty sustaining his attention. The student's disabilities affect his ability to retrieve words, comprehend what he reads, perform certain mathematical operations, and write at a level commensurate with his age and ability. He also has difficulty interpreting social cues which affects his ability to interact with others. There are four written reports from Riverview with regard to the 1998-99 school year (Exhibits J, L, M, and N). They indicate that the private school prepared individualized goals and objectives for the student in his language arts, mathematics, social studies, computer lab and "Our World" courses, as well as social and behavioral goals during the 1998-99 school year.

        The private school's language arts goals and objectives focus upon improving the student's reading comprehension and writing skills, and are comparable to those that appear in the IEP that respondent's CSE prepared. The student's mathematics goals and objectives at Riverview appear to focus upon somewhat lower level skills than appear in the IEP prepared by the CSE, but they do include working with fractions, which was an area of particular weakness for the student. I note that the progress reports from later in the school year indicate that the student was being successful in more challenging activities, such as solving word problems that required regrouping. The progress reports indicate that the student achieved satisfactory grades and did achieve some of his objectives for language arts, mathematics, social studies and "Our World" courses.

        Although the private school apparently did not have written goals and/or objectives for study and keyboarding skills, the progress reports indicate that the student's keyboarding skills improved in his computer lab course. As noted above, study skills were part of the "Our World" course, and his teachers reported that there was at least some progress in his organizational skills during the 1998-99 school year. He made some progress on his social and behavioral objectives, and achieved an objective about treating classmates fairly. On balance, it appears that the private school provided instruction that addressed the student's primary academic difficulties, although he did not receive the related services of speech/language therapy and occupational therapy. However, I find that a failure to provide such related services does not provide a basis for determining that the services provided by the school were inappropriate to meet the student's special education needs during the 1998-99 school year.

        Respondent asserts that Riverview was inappropriate for petitioners' son because it was not the least restrictive environment for him. While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27; M.S. v. Bd. of Educ., 231 F.3d at 105). The requirement of instruction in the least restrictive environment must, however, be balanced against the requirement that each student with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). If this student had attended respondent's schools during the 1998-99 school year, he would have been enrolled in 12:1+1 special education classes for at least four school periods per day, and would have received other special education services as well. Under the circumstances, I do not find Riverview to be unduly restrictive. I do not find that he required a residential placement for educational reasons. However, there is no evidence in the record of an appropriate day placement in which petitioners could have enrolled their son. Accordingly, I find that petitioners have met their burden of proof with respect to the appropriateness of Riverview's services for their son during the 1998-99 school year (Application of the Bd. of Educ., Appeal No. 01-059).

        The third and final criterion for an award of tuition reimbursement is that the parents' claim for an award be supported by equitable considerations. There is no indication in the record that the parents failed to cooperate with the CSE in its effort to prepare the student's IEP for the 1998-99 school year. As noted above, the initial CSE meeting to prepare the IEP was adjourned because respondent's staff was not ready to proceed. I find that petitioners' claim is supported by equitable considerations.

        Petitioners challenge the appropriateness of their son's IEPs for the 1999-2000 and 2000-01 school years on the grounds that they fail to indicate the student's current level of performance in each of his areas of need; they lack short-term objectives with appropriate time frames; and they fail to provide programs with adequate structure and coordination. Federal regulation requires that an IEP include a statement of the student's present levels of performance (34 C.F.R. 300.347[a][1]). State regulation requires an IEP to describe a student's present levels of performance and indicate his individual needs with respect to educational achievement, physical development, social development, and management needs (8 NYCRR 200.4[d][2][i]). The information must be sufficiently detailed to enable the CSE to prepare appropriate annual IEP goals for the student (Application of the Bd. of Educ., Appeal No. 01-092).

        In particular, petitioners assert that both IEPs fail to adequately describe their son's present levels of performance with respect to speech/language, occupational therapy, and study skills. I must first note with respect to the IEP for the 1999-2000 school year that the student had not received any speech/language therapy or occupational therapy during the 1998-99 school year while he attended Riverview. The IEP reports the student's performance on the WIAT in 1997 with regard to written language, and it indicates that word retrieval and processing impairments create difficulty for him. The single IEP annual goal for speech/language has 19 benchmarks covering expressive, receptive, and pragmatic language that are written in a way that would allow both the parents and the service providers to understand the CSE's expectations (Application of a Child with a Disability, Appeal No. 96-68).

        The IEP description of the student's physical condition is fairly extensive, but lacks detail with respect to his fine and gross motor skills. The IEP annual goal for occupational therapy and its three benchmarks also lack precision, although they do appear to center upon improving the student's keyboarding skills, an identified area of need. There is no single portion of the IEP describing the student's current level of study skills. However, the IEP indicates that he has difficulty maintaining his attention and organizing his work, and that his performance varies. It also describes his need for a structured, consistent routine in which new information is introduced in small manageable segments, as well as the need to improve his note-taking skills. The single IEP annual goal for improving the student's organization and study skills is too broadly worded. However, the seven supporting benchmarks provide the precision that the goal lacks.

        Despite having the benefit of a recently performed speech/language evaluation (Exhibit 92) when it prepared the 2000-01 IEP, the CSE failed to include the results of such evaluation on the IEP. Nevertheless, the student's single annual goal and 24 benchmarks are consistent with the results of the evaluation, and they adequately address his speech/language needs. The 2000-01 IEP's description of the student's physical needs and its annual goal for occupational therapy and its description of his study skills and the annual goal for such skills are virtually identical to those set forth in the 1999-2000 IEP. I reach the same conclusion as to their adequacy and appropriateness.

        Finally, I reach the issue of the alleged lack of coordination and structure in the educational programs that respondent offered to provide to the student during the 1999-2000 and 2000-01 school years. Petitioners acknowledge that respondent has adequately identified many of their son's special education needs, but they contend that because of the unique nature of his disability he requires a specialized learning environment extending beyond the traditional school day. In essence, they argue that he requires a residential placement for educational reasons. A residential placement is appropriate only when it is required for a student to benefit from his educational program (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]; Kerkam v. Superintendent, D.C. Pub. Sch., 931 F.2d 84 [D.C. Cir. 1991]; Burke County Bd. of Educ. v. Denton, 895 F.2d 973 [4th Cir. 1990]; Abrahamson v. Hershman, 701 F.2d 223 [1st Cir. 1980]; Application of a Child with a Disability, Appeal No. 95-33).

        I have carefully considered Dr. Lifrak's testimony about the nature of the student's disability and his instructional needs, upon which petitioners rely to support their position. She asserted at the hearing that petitioners' son required more than a six-hour school day because he needed repetition, tasks broken down, and help transferring skills learned in an academic setting to a non-academic setting (Transcript p. 1594). However, Dr. Lifrak's written observation indicates that the student's instructional day at Riverview was from 8:15 a.m. to 3:15 p.m., with one hour for lunch (Exhibit FF). The record does not reveal what carryover instruction, if any, occurred at Riverview after the end of the instructional day. Dr. Lifrak also asserted that a public high school would be too fast-paced and chaotic for petitioners' son (Transcript pp. 1660-1661), but she acknowledged that she had not visited respondent's high school (Transcript p. 1755). I have also considered petitioners' testimony about the difficulties that they had with their son at home during the 1997-98 school year, but they do not afford a basis for concluding that the student required a residential placement. Upon the record before me, I am unable to conclude that the student's instructional needs could not be met during the course of the normal school day.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that respondent had offered to provide an appropriate educational program to petitioners' son during the 1998-99 school year and it denied petitioners' request for an award of tuition reimbursement for such year; and

        IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their son's tuition cost at Riverview during the 1998-99 school year, upon petitioners' presentation of proof of payment of such tuition.

 

 

 

Dated:

Albany, New York

 

__________________________

 

April 14, 2003

 

FRANK MUÑOZ