The State Education Department
State Review Officer

No. 03-039





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 Wappingers Central School District

Linda A. Geraci, Esq., attorney for petitioners

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



        Petitioners appeal from an impartial hearing officerís decision denying their request for reimbursement for the cost of their sonís school program for the 2002-03 school year. The appeal must be dismissed.

        Petitionersí son is a sixth grade resident of the Wappingers Central School District currently placed unilaterally by his parents at the Kildonan School (Kildonan) in Amenia, New York. Kildonan is a nonpublic school which has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. Petitioners seek reimbursement of the Kildonan tuition for the 2002-03 school year, and reimbursement for the summer 2002 tuition of the Dunnabeck Camp, a summer day camp run by Kildonan, as well as reimbursement of the cost of the independent neuropsychological evaluation they obtained for their son.

        The student was originally classified by respondent as speech impaired when he was in kindergarten, and he received a variety of special educational services during his early school years. More recently he was classified learning disabled and placed, during his fourth grade year, in a self-contained class for all academic subjects, with the exception of mathematics (Exhibit 5). According to the minutes of the Committee on Special Education (CSE) meeting held to recommend this placement on April 13, 2000, the program was designed to "remediate expressive language skills, word identification skills, organization and attentiveness to task" (Exhibit HH). Petitioners assert that this fourth grade self-contained class, however, was working on a third grade curriculum. The record indicates that petitionersí son received instruction within this class, in reading, spelling and handwriting using the Orton-Gillingham method every day in a group of two (Transcript p. 837). By June 2001 many of the objectives on his individualized education program (IEP) were noted to be "mastered": recognizing and defining multiple meaning words; following written directions; using context clues to aid in reading; recognizing high frequency sight words; decoding specific word families; constructing clear, complete and grammatically correct sentences in written work; writing a simple paragraph about one subject; writing several paragraphs which include a topic sentence and supporting details; correcting his written work by revising, editing and rewriting; applying the rules of spelling to his written work; and correcting errors in spelling, capitalization, punctuation and grammar with increasing independence (Exhibit A).

        A psychological evaluation completed in March 2001 reveals that academic functioning continued to be significantly impaired, as measured on the Diagnostic Achievement Battery, in the areas of alphabet/word knowledge; reading comprehension; spelling; and writing composition. The parentsí psychologist noted that the student's functioning in the areas of overall reading, story characteristics, alphabet/word knowledge, and spelling had regressed from a prior administration of the Diagnostic Achievement Battery in June 1998 (Exhibit 7; Transcript pp. 298-300). In addition to this reported regression in key areas, the studentís mother characterized her sonís emotional state during fourth grade as "self-conscious, self-doubting" and noted that he "hated school" (Transcript p. 836).

        A central auditory processing evaluation (Exhibit 10) completed by the Center for Communication Disorders at St. Francis Hospital in June 2000 noted that the student "has a severe central auditory processing disorder, characterized by weaknesses in the areas of auditory memory, auditory sequencing, auditory closure, binaural separation, and listening in the presence of competing background noise." A speech therapist assigned to work with him for the following school year concluded that by mid-year his language skills were age-appropriate. In her report on May 2001 she recommended discharging him from speech therapy at the end of the year, contingent on correction of his articulation (Exhibit 0). At the hearing, respondentís chairperson for all the CSE meetings held for this student during 2000-01 agreed that the relevant IEP (Exhibit 5) contained goals for improvement of expressive language.

        For the 2001-02 year, the committee on special education (CSE) recommended an IEP (Exhibit 4) under which the student would attend a fifth grade inclusion class. This IEP notes in the language abilities that the student "demonstrates good comprehension of language and demonstrates appropriate expressive skills." The immediately subsequent section on cognitive functioning notes that "written and verbal expressive language skills are moderately delayed" and that he "acquires reading and language concepts at a below average rate." Petitioners argue that no provision was made on this IEP for individualized reading and writing instruction, despite the student having received it the previous year. Speech therapy goals addressed articulation, although a speech and language evaluation conducted on August 27, 2001 found him to show a moderate delay on the Test of Auditory-Perceptual Skills-Revised, and a severe delay on the Test of Problem Solving-Revised (Exhibit L; Transcript pp. 363-367, 233).

        When petitionersí son began the inclusion class in September 2001, he had some difficulty with the reading, writing and organization demands in the class. The regular education teacher in the classroom testified that he had difficulty handling the requisite reading and writing, particularly in social studies. The special education teacher also testified (Transcript p. 134) that the work in the inclusion class was difficult for him. While in this class, petitionersí son also was being privately tutored, but petitioners had not disclosed this to respondent.

        At the student's April 17, 2002 annual review the CSE recommended that petitionersí son attend a 1:12+1 self-contained class for sixth grade, with multisensory reading services and speech-language therapy. The CSE also recommended summer services, including multisensory reading twice a week for one hour (Exhibit 19). Books on tape were continued, as well as access to a computer. Use of an FM auditory trainer, which respondent began providing in the fourth grade, was continued and certain testing modifications were recommended. Under the IEP the student was to be mainstreamed in mathematics, physical education and music.

        Petitioners did not send their son to the summer program the CSE recommended. Instead, on August 20, 2002 they sent a letter to respondentís director of special education, advising that they objected to the IEP recommended by the CSE for the 2002-03 school year and were placing their son at Kildonan and would seek tuition and other reimbursements.

        During the hearing, which was conducted in eight sessions and concluded on February 10, 2003, petitioners contended that the CSE had gathered insufficient information and then had proposed an IEP which did not fully set out the student's needs or his short or long-term goals; nor did it state how or whether the suggested program would benefit him. In a decision dated April 4, 2003, the hearing officer made a number of findings of fact and expressed his conclusion that the program that the district CSE recommended for petitionersí son within the district was not only appropriate but was also well conceived. Accordingly, he denied petitionersí request for reimbursement for the costs of educating their son at Kildonan and Dunnabeck Camp and the cost of the neuro-psychological evaluation. Petitioners apparently never requested an independent evaluation, and a request is not specifically discussed in the hearing officer's decision nor do petitioners address the matter in any detailed way in the papers before me.

        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 parentís claim (Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359 [1985]). The parentís 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 [1993]). The 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, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2002]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-029; Banks v. Danbury Bd. of Educ., 238 F. Supp. 2d 428 [District Court CT 2002]).

        To meet its burden of showing that it had offered to provide a free appropriate public education (FAPE) to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the IEP that its CSE developed for the student through the IDEAís procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]).

        An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the studentís 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. 02-114; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child with a Disability, 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the studentís present levels of educational performance, including a description of how the studentís disability affects his or her progress in the general curriculum (34 C.F.R. ß300.347[a][1]). 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 studentís present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

        An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the studentís needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the studentís other educational needs arising from the disability (34 C.F.R. ß300.347[a][2]). In addition, an IEP must describe how the studentís progress towards the annual goals will be measured and how the studentís parents will be regularly informed of such progress (34 C.F.R. ß300.347[a][7]).

        An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. ß300.347[a][3]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. ß300.347[a][3][i]).

        Applying these criteria to the record before me, I find that for the 2002-03 school year, respondent offered to provide an appropriate program for the student.

        Respondent argues, and I agree, that the IEP was developed in concert with the parents and that its CSE used current evaluative information including data from the parentsí private psychologist. I note that among the hearing officerís findings were that none of the Burlington criteria were satisfied and that the content of the IEP was never in dispute with respect to whether it properly identified the studentís needs or determined goals and objectives for him for the 2002-03 school year. The hearing officer specifically rejected petitionersí contention that respondentís test results were misleading, relying upon witnesses' testimony and noting that petitioners acknowledged the testing information was available to them at CSE meetings.

        I have reviewed the IEP developed for this student, and I find, as did the hearing officer, that it properly reflects the needs of the student as shown in his evaluations, provides for the use of appropriate special education services, and establishes appropriate goals. The IEP identified the studentís present level of performance and individual program needs, set goals for the student to achieve and set out the interim steps for determining whether the student is progressing towards those goals. In preparing the portion of the IEP describing the studentís present levels of performance, the CSE relied upon the results of updated or timely information. I find that the IEP accurately reflected the studentís needs and current levels of performance. Respondent identified petitionersí son as speech impaired early in his schooling, and provided services through which a severe articulation process was remediated. The respondentís IEP continues to address this area of deficit and provides for the use of assistive technology, including the FM trainer which was used effectively when he attended respondentís program in the fifth grade. It is unclear whether the FM trainer is still necessary, as it is not provided to the student at Kildonan. The placement recommendation of a self-contained class is more restrictive than the prior school year placement when the student was in a fifth grade inclusion class. However, there is ample evidence that the appropriate placement to address the student's learning needs is in a self-contained class. Testimony about the class profile, from both respondentís employees and petitionersí own psychologist convincingly explains some of the deficits in the profile and justified how students in the class would be grouped based on similarity of needs (Transcript pp. 989-90). While there is some dispute about the extent to which petitioners agreed to the content and goals andobjectives of the 2002-03 IEP, there seems to have been general agreement about the IEP except for information on spelling, functioning levels in written expression. Respondentís IEP adequately addresses all these concerns.

        I find that the respondent has met its burden of demonstrating the appropriateness of the educational program that its CSE recommended.








Albany, New York


December 19, 2003