The State Education Department
State Review Officer
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 Lakeland Central School District
S. Jean Smith, Esq., attorney for petitioners
Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at the Kildonan School (Kildonan) for the 2002-03 school year. The appeal must be dismissed.
At the time of the hearing, petitioners' son was 12 years old and, having been retained at the end of the 2001-02 school year, was in the sixth grade at Kildonan, a private school specializing in providing education to children with dyslexia. Kildonan is not approved by the Commissioner of Education to contract with school districts for the education of students with disabilities (Transcript pp. 438-39). Respondent's Committee on Special Education (CSE) classified the student as other health impaired (OHI), as a result of significant attention deficit disorder (ADD) (Transcript p. 34; Exhibit 8) and neurological impairment (central auditory processing disorder [CAPD], Exhibit 10) affecting his memory, cognitive processing abilities (Transcript p. 34), and sensory integration (Transcript p. 34; Exhibit 8). He was also diagnosed with dyslexia (Exhibit K) and is described as essentially a non-reader (Exhibit 4). Medical documentation indicated that his speech was fluent and prosodic, and without paraphasic errors (Exhibit 8), although other speech-language deficits (Exhibit 6) as well as poor fine motor and oral motor skills had also been identified (Transcript p. 34).
The Weschler Intelligence Scale for Children–III (WISC–III) administered in May 2000 yielded a verbal IQ score of 87, a performance IQ score of 84 and a full scale IQ score of 84 (Exhibits 19-23). In April 2001, when the student was in the fifth grade at a district elementary school, the results of the district administered Woodcock-Johnson III Tests of Cognitive Abilities and Tests of Achievement revealed general intellectual ability in the low range based on grade comparisons and in the low average range based on age comparisons. Although his scores were in the average range for grade and age in verbal and thinking abilities, test results identified severe deficits in cognitive efficiency involving information processing speed, visual matching skills, number reversals, and short-term memory. He tested in the low range for grade and low average range for age for broad attention and executive processing, with significant intra-domain discrepancies within the broad attention category (Exhibit 4). With the exception of significant progress in story recall and writing samples, and gains of four to twelve months in math word problems, word recognition and decoding, the student's cognitive deficiencies were generally confirmed by the Woodcock-Johnson III Tests of Achievement, Gray Oral Reading Test–4, and selected subtests of the Developmental Neuropsychological Assessment, all of which were administered between June and September 2002 (Exhibit K). The student, described as an auditory and verbal learner who is easily distracted, works slowly in an academic setting, and possesses limited short-term memory as well as weak visual skills (Exhibit 4). There is no dispute about the student's classification (Transcript p. 35).
In September 2001, petitioners requested an impartial hearing claiming inadequate individualized education program (IEP) implementation, evaluation scheduling, and equipment availability (Transcript pp. 270-72). Subsequently, they unilaterally placed their son at Kildonan for the 2001-02 school year (Exhibit 6). The student continued his education at Kildonan for a second year. This appeal does not address issues pertaining to the 2001-02 school year, but rather is restricted to the matter of tuition reimbursement for the 2002-03 school year at Kildonan.
For the 2002-03 school year, respondent's CSE recommended that the student be enrolled in seventh grade, and placed in non-integrated, 12:1+1 42-minute special education classes for language arts, math, science, skills, and social studies (Exhibit 16). In addition, the CSE recommended that he receive 30 minutes of individual occupational therapy and 60 minutes of group occupational therapy per week. Individual and group speech therapy were each recommended for 40 minutes once a week (Exhibit 16). The student was to be mainstreamed for his remaining subject areas (Transcript p. 145). Respondent's CSE recommended this program to meet the least restrictive environment (LRE) requirement, based on the student's need for intensive services. A non-integrated, daily, specialized reading program was recommended for an undisclosed period of class time, for the regular school year, while an individual summer reading program was recommended for two hours per week. Summer session recommendations also included individual occupational therapy for two hours per week (Exhibit 16).
The CSE's IEP indicated program modifications which included: the use of a multi-sensory approach, preferential seating, task segmentation, the use of concrete examples, books on tape, class notes, structured transitions, and reteaching. Testing accommodations included: the reading of questions and directions, assistance of a scribe, extra response time, use of a calculator, and individually administered tests. The CSE also recommended adaptive devices that included: a slantboard, voice output spellcheck, Write Out Loud computer software, Co-writer computer software, and a laptop computer (Exhibit 16).
Petitioners did not accept the CSE's recommended educational program. By an undated letter, time-stamped August 2, 2002 by respondent (Exhibit 1), and a second letter dated August 8, 2002 (Exhibit J), they informed respondent that their son would be enrolled at Kildonan for the 2002-03 school year, and requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement. Petitioners contended that the proposed 12:1+1 class ratio was inappropriate, that removing their son from class five or more times per week would diminish his educational benefit, and that the IEP goals were non-specific and or incapable of objective measurement. They proposed that their son continue his education at Kildonan at the district's expense (Exhibit J). They further argue that their son's unilateral placement at Kildonan is appropriate and that equitable considerations support their claim for reimbursement. Respondent asserts that the hearing officer properly determined that the district had met its burden to establish the appropriateness of the 2002-03 IEP.
The hearing commenced on October 17, 2002, and concluded on December 19, 2002. In a decision dated February 14, 2003, the hearing officer determined that respondent offered the student a free appropriate public education (FAPE) and he denied petitioners' request for tuition reimbursement.
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 (School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 ). The parents' failure to select a program 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 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 02-006; Application of a Child with a Disability, Appeal No. 01-096; Matter of a Handicapped Child, 22 Ed Dept Rep 487 ).
To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., ___ F. Supp. 2d ___ 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).
The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). While parents are not held as strictly to the standard of placement in the LRE 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 [1st Cir. 2002]; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96 [2d Cir. 2000]).
Petitioners assert that the educational program recommended by respondent's CSE is inappropriate because of inadequate reading and written language goals, with additional deficiencies in the areas of goal consistency, measurement and implementation. They further argue that the proposed class profile was inappropriate.
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
In the instant case, the record reflects that a regular education class with related services would not have been an appropriate placement for the student. However, the proposed special education program and placement was appropriate, given the severity of the student's educational needs in the academic, physical and management domains (Exhibits 5, 6, 8, 13, 15, 19, A, K). Multiple evaluations in the record support the conclusion that the IEP was reasonably calculated to provide educational benefits to the student in light of the student's attention deficits, cognitive limitations, and history of very limited reading, writing, and mathematics skills (Exhibits 4, 5, 13, E-8).
I note that the hearing officer attributed the student's minimal educational benefits from past educational programs within the district to the student's attentional and impulse control deficiencies. Based on the record before me, this is a reasonable but incomplete conclusion. The student's mother testified that when her son was previously attending school within the district, the special education teacher who would have been his fifth grade teacher told the mother that in the fifth grade she could not be expected to address the student's distractibility. The mother successfully argued for a change of instructor, and reported that her son made some progress that year (Transcript pp. 269-70).
In contrast to the previous fifth grade teacher's position, the special education teachers who testified during the instant hearing conveyed preparedness, directness, and cooperation (Transcript pp. 121-205). Despite the student's slowly evolving focus and processing difficulties, respondent's CSE developed a program for the 2002-03 school year that would have nurtured his academic progress. Further, the student has grown physically and emotionally. He has learned that he is not "stupid" (Transcript p. 274) and now has a better understanding of the way he needs to approach learning.
An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, as well as meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a]).
Here the IEP indicated present levels of performance and needs as based on multiple evaluation tools (Transcript p. 105; Exhibits 4, 5, 6, 8, 13, 15), and was consistent with state and federal regulations (34 C.F.R. 300.47[a]; 34 C.F.R. Part 300, Appendix A; 8 NYCRR 200.4[d][i]). Goals and objectives flowed from the student's stated needs and were specific and comprehensive. Individual areas of need were targeted (Transcript pp. 105-10), and all benchmarks were behavioral, measurable, and related to the annual goals under which they were assigned. For example, in mathematics, the goal that flowed from the student's need statement was that the student would demonstrate an improvement in the mathematical concepts, reasoning, and computation necessary to develop problem-solving skills and to utilize mathematics to address everyday problems. The IEP contained a series of behaviorally stated and measurable benchmarks related to that goal. One mathematics objective for the student was to identify a problem, choose the correct mathematical operation, and solve the problem with 80 percent mastery, as determined by classroom and standardized tests administered by the special education teacher, by June 15, 2003. The additional areas of study skills, reading, writing, speech and language, and motor skills were addressed in a similar manner in the IEP (Exhibit 16).
I note that petitioners were concerned about the efficacy of the Wilson Reading Program (Wilson) as compared to that of the Orton-Gillingham Reading Program (O-G) used at Kildonan. The Wilson program is an O-G based program (Transcript p. 373). Both programs are structured and multi-sensory (Transcript pp. 125, 138, 370-71) and were recommended for the student by the evaluating clinical psychologist (Transcript pp. 369-71; Exhibits 4, K). Indicative of their sensitivity to their students, the district special education teachers testified that they were flexible in the application of the Wilson program contingent upon student needs, despite the program's mastery-based foundation (Transcript pp. 131, 139, 153).
Finally, state regulations require that in special classes students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a], 200.1[ww][i], 200.6[g]; Application of a Child with a Disability, Appeal No. 01-084). The similarity of abilities and needs may be demonstrated through the use of a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 94-7). The chronological age range among the students within the special education classes is limited to 36 months (8 NYCRR 200.6[g]).
A review of the class profiles revealed that several students have the same or comparable full scale IQ scores as tested by the WISC-III. All students are within three years of age of each other. The class profiles appropriately group students by age, cognitive ability, and difficulties in the areas of decoding, writing and mathematics skills as well as attentional, organizational and fine motor skills (Exhibits 19, 20, 21, 22, 23). After considering the age, cognitive ability, achievement test scores, social and physical development, and management needs of the student in relation to the parallel characteristics of the students in the proposed class (8 NYCRR 200.6[a][i-iv] and 200.6[g]), I find sufficient similarities among the students to conclude that appropriate groupings had been recommended.
Based upon a review of the record before me, I find that respondent has met its burden to establish the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 99-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ) by demonstrating that the recommended program is in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]) and is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ).
I have considered respondent's remaining claim and find it to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
October 27, 2003
PAUL F. KELLY