The State Education Department
State Review Officer

No. 04-008

 

 

 

 

 

 

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

 

 

Appearances:
Neal Howard Rosenberg, Esq., attorney for petitioner

 

Shaw & Perelson, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from an impartial hearing officer's decision which found that respondent, the City School District of the City of Rye (district), provided an appropriate program for petitioner's son for the 2002-03 school year, and denied petitioner's request for reimbursement of tuition costs at the Windward School (Windward), a private school where the student was unilaterally placed by his parent.  The appeal must be dismissed. 

 

            Petitioner's son was enrolled in kindergarten in respondent's school for the 1999-2000 school year (Transcript p. 423).  The child evidenced signs of language and articulation problems, and, although not referred to the Committee on Special Education (CSE), was provided with some speech-language services (Exhibit 3; Transcript pp. 200-01, 88, 423).  Although the child reportedly made some progress during the year, petitioner and respondent agreed that the child should repeat kindergarten, with the same speech-language services, to help strengthen his emerging letter recognition and phonetic skills (Exhibit 3, Transcript pp. 424-25, 201, 360-63).  At the end of his second year of kindergarten, although petitioner's son still showed a weakness in short-term auditory memory and auditory processing skills (Exhibit 15; Transcript p. 206), he had made good progress in phonemic awareness and maturity (Transcript pp. 208-09; Exhibits D-16, D-17).  The child's teachers did not feel that his difficulties were of such a nature as to require a referral to its CSE (Transcript pp. 206-07).  At the end of his second year of kindergarten, petitioner obtained a private psychoeducational evaluation of his son (Exhibit 14), which yielded average IQ scores for the child on the Weschler Intelligence Scales for Children (WISC-III), but showed weaknesses in the areas of short-term memory retrieval, auditory processing, and math (id. at pp. 4, 7).  Behaviorally, the psychologist found the child to be mildly distractible, but easily refocused (id. at p. 7).  She recommended that the child be taught using a multisensory method of instruction (id. at pp. 5, 9).  

 

            For the 2001-02 school year, petitioner's son attended first grade in the White Plains school district (White Plains), where his mother resided (Transcript p. 427).  Petitioner enrolled his son in White Plains because it used a multisensory method of instruction, specifically, the "Orton-Gillingham" method (Transcript pp. 429-32). Petitioner had also applied to the Windward School (Windward) for the 2001-02 school year, a private school exclusively for special education students which uses the Orton-Gillingham method in every class, but had been informed there were no vacancies that year (Exhibit 19; Transcript pp. 431, 475-76).  Although petitioner described the White Plains program as "a special class" with a special education teacher and another adult in the classroom all day (Transcript pp. 432-33), the White Plains director of special education services described the class to respondent's CSE chair as a regular education class of approximately 15 students, taught by a regular education teacher and an aide, with an Orton-Gillingham specialist's services pushed in three times per week for 40 minutes (Transcript p. 492, see also Transcript p. 146).1  Petitioner reported that the first half of the school year his son did quite well at White Plains, but that his second semester was less successful because he was assigned a new teacher who was less experienced (Transcript p. 433).  The child's report card at White Plains indicated that the child was close to or at grade level in almost all areas, but easily distracted (Exhibit 8). 

 

            In March 2002 petitioner was notified that his son had been accepted at Windward for the upcoming 2002-03 school year (Exhibit 20).  Petitioner decided that for second grade he would either send his son to Windward, or to respondent's school, if respondent's CSE could develop an appropriate program (Transcript pp. 433-34).  On March 21, 2002, petitioner signed a contract enrolling his son in Windward for the 2002-03 school year and submitted a deposit (Exhibit D-21; Transcript p. 480).  In June 2002, petitioner reapplied to respondent's school district and was approved for residency for his son's enrollment (Exhibit 23; Transcript pp. 485-86).  By letter dated July 16, 2002, petitioner referred his son to respondent's CSE for evaluation for special education services (Exhibit 1).  On August 22, 2002, the district received petitioner's signed consent to evaluate the child (Exhibit 2).  In September 2002, petitioner's son began attending second grade classes at Windward (Transcript pp. 434, 18-19).  Petitioner requested that any evaluations the district conducted on his son be done after school, preferably on Fridays, and respondent complied (Transcript pp. 54, 94-95, 320, 419).  Over the next two months the district performed several evaluations on the child including a speech-language evaluation (Exhibit 4), a physical examination (Exhibit 5), a comprehensive psychoeducational evaluation including various standardized tests (Exhibits 3, 7), a social history (Exhibit 6), and a classroom observation (Exhibit 3).

 

            In October 2002 the school psychologist administered a series of tests to the child, including the WISC-III, which yielded a verbal IQ score of 92, a performance IQ score of 90, and a full scale IQ score of 90; all in the average range, although there was some inter- and intra- test scatter within the subtest scores (Exhibit 3).  The Bender Visual Motor Gestalt Test indicated average performance overall, but poor short-term memory for visually presented abstract material (Exhibit 3).  On the Children's Memory Scale (CMS), there was a 13-point discrepancy between the child's IQ score and his general memory index score; a statistically significant difference which the evaluator found indicated a deficit in the child's general ability to learn and remember new information (Exhibit 3. P. 5).  The Weschler Individual Achievement Test - Second Edition (WIAT-II), administered by the special education teacher (Transcript p. 95), yielded a reading comprehension standard score of 79 (8th percentile, borderline range), a math reasoning standard score of 82 (12th percentile, low average), and a spelling standard score of 86 (18th percentile, low average) (Exhibit 7).  According to the evaluator, the child had significant difficulty processing, organizing and holding onto auditory/verbal information (Exhibit 3).  The evaluator opined that the student would perform better when visual information was used to supplement information presented auditorily (Exhibit 3).

 

            The child's speech-language evaluation included another series of tests.  On the Peabody Picture Vocabulary Test - Third Edition (PPV-IIIB), the child scored in the low average range (25th percentile) (Exhibit 4).  On the Clinical Evaluation of Language Fundamentals (CELF), the child demonstrated weaknesses in short-term memory (Exhibit 4).  On the Listening Test, he scored below age level on all of the subtests and received a total standard score of 72 (Exhibit 4).  The speech pathologist concluded that the child's auditory memory deficits interfered with his auditory processing skills (Exhibit 4).  She suggested that the child would benefit from repetition, and from breaking information down into smaller chunks (Exhibit 4).  Due to the child's low scores in reading comprehension on the WIAT-II, the CSE and the parent agreed to have the district's reading specialist/resource room teacher conduct a reading assessment on the child (Exhibit 7; Transcript pp. 30, 98).  Contrary to the WIAT-II, the Woodcock Reading Mastery Test - Revised (WRMT-R) yielded a standard score of 96, or average, in reading comprehension (Exhibit 7).  The evaluator noted that the child performed better when picture cues were present (Exhibit 7). 

 

            Due to the inconsistencies in the child's reading comprehension scores on the WIAT-II (low borderline) and WRMT-R (average) tests, the district decided to conduct more comprehensive additional testing by administering the Peabody Individual Achievement Test - Revised (PIAT-R) (Transcript pp. 99, 281; Exhibit 7, Addendum).  The PIAT-R yielded standard scores in the average range across the board, i.e., reading recognition 98, reading comprehension 94, total reading 93, mathematics 87, and spelling 94 (Exhibit 7, Addendum); which were consistent with the results of the WRMT-R and the WISC-III.  In explaining the low scores on the WIAT-II, the evaluator concluded that the child's performance was dependent on the presentation mode of the test (Exhibit 7, Addendum).  In general, the child performed better on tests that included picture prompts with less language-laden tasks, and the WIAT-II was heavily language-laden (id.; Transcript p. 288).  Overall she concluded that although the child exhibited difficulties with decoding and comprehension skills, compared to age and grade level peers, there was no significant discrepancy between his ability and performance.

 

            On November 14, 2002, the CSE met with the parent, reviewed the evaluations, and developed an individualized education program (IEP) for the student for the 2002-03 school year (Exhibit 9).  The IEP noted that the child had weaknesses in short-term auditory memory and auditory processing skills that affected his performance in the classroom, but strengths were noted in visual memory.  His inconsistencies in reading, decoding, and math were attributed to his problems with language skills.  It was noted that the child had difficulty remembering all the information he heard, and needed things repeated and broken down into smaller components.  The IEP classified petitioner's son as speech-language impaired and placed the student in respondent's Midland Elementary School (Midland) in a regular education second grade classroom with services consisting of push-in (Transcript pp. 111-12, 129) consultant teacher services provided twice per week for 60 minutes, 5:1 speech-language services twice per week for 30 minutes, and 5:1 resource room services three times per week for 60 minutes.  Under program modifications, the IEP specified that the child receive preferential seating, refocusing and redirection.  Testing accommodations included directions read out loud, questions repeated, and directions explained.  Goals and objectives were included for reading and speech-language skills, which were to be evaluated by a designated provider and achieved by targeted dates.

 

            By letter dated December 30, 2002, petitioner's attorney informed respondent that petitioner rejected the 2002-03 IEP and was requesting an impartial hearing seeking tuition reimbursement for his child's educational expenses at Windward for the 2002-03 school year (Exhibit 12).  The hearing was held on four days, beginning on April 22, 2003 and concluding on October 30, 2003.  The hearing officer rendered his decision on January 15, 2004, finding that respondent had offered petitioner's son an appropriate program for the 2002-03 school year, and denying petitioner's request for tuition expenses. 

 

            Petitioner appeals, arguing that respondent's IEP was procedurally and substantively inadequate for a variety of reasons, including (1) the district's evaluation and placement process was untimely, (2) the parent was denied effective participation at the CSE meeting, (3) the regular education teacher member of the CSE did not meet regulation requirements, (4) the goals and objectives failed to meet all of the child's needs (5) the services in the IEP were insufficient to meet the child's needs, and that (6) a more restrictive environment was not considered. 

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's 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 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

 

            To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE 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 [1982]).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            I will first address petitioner's claim of procedural violations in the IEP formulation process.  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., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), 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., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  Petitioner alleges three specific procedural violations.

 

            Petitioner first alleges that the district did not evaluate and offer a placement for the child within the regulatory timeframe.  Federal regulations implementing the IDEA specify that, following the receipt of a parental consent to an initial evaluation, the board of education shall ensure that the child is evaluated within a reasonable period of time (34 C.F.R. § 300.343[b][1][i]).  If it is determined from the evaluations that the child is in need of special education and related services, a meeting to develop an IEP for the child must be conducted within 30 days of that determination (34 C.F.R. § 300.343[b][2]).  In addition, state regulations provide that if the child has not been previously classified, the board of education must arrange for the appropriate special education programs and services for the child (i.e., an IEP) within 60 school days of the receipt of the parents' consent to evaluate (8 NYCRR 200.4[d], [e]).  There may be no delay in implementing an IEP (34 C.F.R. § 300.301[c]; 8 NYCRR 200.4[e][i]).  In the instant case, respondent received petitioner's consent for an initial evaluation on August 22, 2002 (Exhibit 2).  Evaluations on the child were begun by the district on September 18, 2002 and completed on or about November 5, 2002 (see Exhibits 3, 4, 5, 6, 7).  The CSE met and devised the IEP on November 14, 2002, classifying the child and arranging for special education and related services for the child (Exhibit 9).  Based on the record before me, I find that respondent evaluated the child within a reasonable time from the initial consent to evaluate, and developed the IEP within 60 school days of receipt of the initial consent to evaluate.  Accordingly, I find that respondent's evaluation and placement of petitioner's son was timely and complied with all applicable regulations.  Moreover, I find that any delays within that timeframe were at least partially attributable to respondent's attempt to accommodate petitioner's request to evaluate his son only at certain times and days (Transcript pp. 54-55, 94-95, 218, 319-20, 419).

 

            Petitioner next argues that respondent denied him effective participation at the CSE meeting. "Congress sought to protect individual children by providing for parental involvement ... in the formulation of the child's individual educational program" (Rowley, 458 U.S. at 208).  Accordingly, the IDEA requires that parents be afforded the opportunity to be involved in the educational planning process of their child.  The parent must be a member of the CSE (20 U.S.C. 1414[d][1][B][i]), and the CSE must "consider the concerns of the parents for enhancing the education of their child" (20 U.S.C. 1415[d][3][A][i]).  The procedural safeguards of the IDEA include the "opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. 1415[b][1]; 34 C.F.R. § 300.501; see 8 NYCRR 200.5[d]).  The implementing regulations contain detailed provisions to ensure parents are afforded an opportunity to participate at CSE meetings (34 C.F.R. § 300.345), and require that, in the development of the IEP, the CSE shall consider any information provided by the parents and the parents' concerns for enhancing the education of their child (34 C.F.R. § 300.346[a][1][i]; 34 C.F.R. § 300.343[c][iii]). The United States Department of Education (DOE) intended that "The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding [the student's program]" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section II, Question 9, see also Section II, Question 5).  The parents must be afforded meaningful participation, and where a school district seriously hampers a parent's opportunity to participate in the IEP formulation process, such actions can result in a denial of FAPE (see, e.g., Briere, 948 F.Supp. 1242; Application of a Child with a Disability, Appeal No. 02-015).

 

            In the instant case, petitioner claims that the CSE meeting provided no opportunity for his input, that the meeting was totally controlled by the CSE chair, and that the resultant IEP was a foregone conclusion (Transcript pp. 435-38, 470; Pet. ¶¶ 45, 48).  Although petitioner had several opinions as to his child's needs which he did not hesitate to express in the past (Transcript p. 454), when asked if he expressed any of his concerns about his son's proposed placement to the CSE during the hour and a half meeting, he replied "No I did not.  Because I felt that based on the demeanor of [the CSE chair] and others at the meeting that this had been pretty much scripted, this is how they do things" (Transcript p. 438; see also, Transcript pp. 441, 466), and "I didn't want to argue with them" (Transcript p. 435; see also, Transcript pp. 445, 470).

 

            Initially I note that I find it troublesome when, as in this instance, the parent admits he made a conscious decision to remain silent and not attempt to voice his objections to the IEP at the CSE meeting, and thereafter complains that he was denied the opportunity to participate.  In any event, the record reveals that, contrary to petitioner's assertions, both the CSE chair and the special education teacher present at the meeting testified that petitioner did indeed freely and actively participate at the CSE meeting (Transcript pp. 112-13, 490, 491).  The CSE chair stated that during the meeting she affirmatively asked the participants if they had anything to say or any concerns, and that petitioner freely participated in the conversation (Transcript p. 490), raising many questions about issues such as standardized tests, classification, and transportation (Transcript pp. 499, 502).  She testified that at the meeting petitioner "asked really good questions, he listened to everyone's information, [and] he had a long dialogue with all the evaluators" (Transcript p. 47).  Based on the record before me, I find that there was no serious infringement on petitioner's right to participate in the development of his child's IEP at the CSE meeting.

 

            Petitioner next claims that the IEP formulation process was procedurally flawed in that the regular education teacher member at the CSE meeting was not "appropriate" because she was not teaching a second grade class at the time petitioner's son would have been enrolled in second grade (Pet. ¶ 19).  The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).  The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

 

            The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providng input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (64 Fed. Reg. No. 48, at p. 12591).  The purpose of having the regular education teacher who is actually assigned to teach the child present at the CSE meeting is so that that teacher may participate in discussions about how best to teach the child (64 Fed. Reg. 48, p. 12583).  For example, for a child with speech-language problems, the regular education teacher on the CSE team should be a teacher who is aware of the extent that visual instruction is offered as part of the district's mainstream curriculum and the likelihood that the student could be integrated into such curriculum (see Arlington, 2002 WL 31521158).  The Department of Education also recognizes that not all regular education teachers of a child may be present at the CSE meeting, and therefore directs school districts to inform regular education teachers of the child who are not present at the meeting of their specific responsibilities related to implementing the IEP, and of any specific accommodations or modifications contained in the IEP (64 Fed. Reg. 48, at p. 12583; see also N.Y. Educ. Law § 4402[7]a]).  The State Review Officer has found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).

 

            Petitioner claims that respondent erred by inviting a third grade regular education teacher as a CSE member instead of one of the five regular education teachers actually teaching second grade in the district during the 2002-03 school year, one of whom would have been responsible for implementing the child's IEP if the child attended the public school.  I agree with petitioner that the regulations require the attendance of a regular education teacher "of the child" (34 C.F.R. § 300.344[a][2]), who is or may be responsible for actually implementing a portion of the child's IEP (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26), and find that, since the regular education teacher member invited to be on the CSE was not teaching second grade in November of the school year during which the child would be placed there, she would not have been responsible for implementing any portion of the child's IEP, and the district's failure to have one of the five second grade regular education teachers (Transcript p. 169) on the CSE was a procedural violation (Application of a Child with a Disability, Appeal No. 00-060; see Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-046).  However, due to the unique direct and immediate involvement that this regular education teacher had with this child's proposed second grade classroom and curriculum (especially language arts, the child's area of disability) as described forthwith, I cannot find in this limited instance that the omission on the CSE team of one of the second grade teachers actually teaching second grade for the year in question amounted to a denial of a FAPE.

 

            The teacher invited by the district to serve on the CSE committee was certified to teach grades kindergarten through sixth grade (Transcript p. 160).  Although for the 2002-03 school year she was teaching third grade (Transcript p. 159), she was familiar with the core academic subjects and state learning standards for second grade (Transcript pp. 164, 192).  At the time of the hearing, she had taught three years of first grade and three years of third grade in the district, and had taught a second grade curriculum in the district's second grade classroom as recently as 2000 (Transcript pp. 160, 161, 172, 192-94).  When she taught first grade, she was trained together and teamed many times with a second grade teacher, and taught many of her own students second grade skills (Transcript p. 191).  Moreover, this child's disability involved speech-language skills, and she served as the "classroom representative" on the district's language arts committee that recently developed the language arts curriculum for the district for grades kindergarten through fifth grade (Transcript p. 162).  Over the summers, she helped write the curriculums for first, second, and third grade for language arts, math, science, and social studies for the district (Transcript pp. 163-64).  At the time she met with the CSE, she was involved in monthly meetings with second grade teachers to go over the second and third grade curriculums (Transcript p. 192), and she was sitting on the committee to develop the math curriculum for grades kindergarten through fifth grade (Transcript p. 163).  She also had direct experience integrating children with disabilities into first, second, and third grade regular education classrooms (Transcript pp. 189, 62), and had personally spoken to the child's speech-language teacher (Transcript p. 186). 

 

            Given this teacher's unique experience and relevant expertise as detailed herein, I find that she fulfilled the purpose of the regular education teacher member by effectively contributing to the recommendation of modifications and supplementary aids and services that would best enable this child to progress in the district's regular second grade curriculum.  As discussed below, the resultant IEP fashioned individualized programming and services for the child tailored to address the child's unique needs that impeded the child's ability to make meaningful progress in the general curriculum.  I also note that this child had not attended respondent's schools for at least a year, and that New York State regulations provide that "If the student is not receiving instruction from one or more regular education teachers, a teacher qualified to provide regular education in the type of program in which the student may be placed may serve as the student's regular education teacher" (8 NYCRR 200.1[pp][1]).  Further, I note that the district did include as an additional member to the CSE team a former teacher familiar with the child, notably the speech therapist, who had experience teaching the child for two years when the child was last in the district (Transcript p. 200).  Also, although the child's prospective second grade regular education teacher was not present at the meeting, I note that the prospective teacher eventually determined to be the child's regular education teacher would be informed of the child's IEP, and provided with a copy and instructions prior to implementing the IEP, pursuant to N.Y. Education Law § 4402(7)(a) (see 8 NYCRR 200.4[e][3]).  Although respondent violated required procedures by not including one of the five regular education teachers actually teaching second grade as a member or the child's CSE team at the November 2002 meeting, and I caution respondent that it must follow all procedural requirements of the IDEA in the formulation of an IEP in the future; based on the record before me, I cannot find that the composition of the CSE, under all of the circumstances presented herein, resulted in a loss of educational opportunity or in the creation of an IEP that was not uniquely designed to meet this child’s needs.  Therefore I cannot find that the procedural violation in this case amounted to a denial of FAPE.

 

            In order for an IEP to be appropriate, the substantive program developed by the CSE must also be reasonably calculated to confer educational benefits (Rowley, 458 U.S. at 206, 207).  The Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130).  I now turn to the program itself, and address petitioner's allegations involving the appropriateness of the goals and objectives set for the child as well as the selected special education program and related services.  I will also address whether the services would be provided in the appropriately restrictive environment.

 

            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, 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][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 student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1). 

 

            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, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]).  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][7]).

 

            Petitioner argues that the goals and objectives in the IEP failed to provide a FAPE to his son because they did not properly address his son's auditory processing needs, they failed to include math and spelling goals to compensate for his low scores on the WIAT-II, and because there were no social goals or objectives to address his attentional needs.  Petitioner's arguments are not persuasive. 

 

            A review of the IEP's goals and objectives indicate that they address the areas identified as weaknesses for the student.  Testing revealed, and both parties agree, that the child has a speech-language impairment that adversely affects his short-term memory and auditory processing skills in the classroom (see Exhibit 9; Transcript pp. 422-23).  The child's IEP includes two annual goals related to reading and one related to speech, followed by a total of 17 objectives (Exhibit 9, pp. 4-5).  The goals and objectives in reading, which include increasing recognition of sight words, improving decoding skills, and improving reading comprehension, are directly related to the child's inconsistencies in decoding and sight words as demonstrated in testing administered by the district's resource room teacher (Exhibits 7, 9; Transcript pp. 281, 283).  Speech-language objectives are also directly linked to the child's weaknesses as demonstrated in standardized testing and classroom reports, and are geared at improving the ability to follow directions, improving auditory recall, and improving word retrieval (id.).  Other objectives aimed at identified areas of weakness for the child which flow directly from both district and privately obtained educational evaluations include strengthening comprehension of verbally presented information, as well as developing strategies for improving auditory recall (Exhibit 9; see Exhibits 3, 4, 7, 14).  In fact, the speech therapist stated that using strategies to develop auditory recall was "a big part of what I do in therapy," which included, for instance, teaching the child tricks to remember homework assignments (Transcript pp. 229-30).  Each objective has a specific numeric percentage mastery level, evaluation method, target date of achievement, and is tied to a specific service provider (Exhibit 9).  The resource room teacher who administered the WRMT-R to the child and analyzed the results (Transcript p. 281), and who would have been responsible for implementing the child's IEP, testified that the goals and objectives were appropriate and achievable by the child during the school year (Transcript pp. 290-92).  The speech therapist who had worked with the child for two years in kindergarten, administered the current speech-language tests to the child, and who would have likely been responsible for implementing the speech goals on the IEP, described in detail how each of the speech goals was specifically tailored to the child's needs, and achievable (Transcript pp. 226-235).  The school psychologist and special education teacher who tested the child also reviewed the goals and objectives and found them to be appropriate in meeting the child's needs, reasonably calculated to ensure educational benefits, and attainable within the school year (Transcript pp. 333-34, 107-109, 112).  The parent's own expert witness testified that he found that all of the goals and objectives on the IEP were appropriate to the child's needs and were in fact essentially similar to the goals and objectives in the program at Windward (Transcript p. 409).

 

Petitioner faults the fact that specific math and spelling goals were lacking; however, the only example of low math or spelling scores occurred on the WIAT-II; the child's spelling and math performance in all other standardized tests and classroom report cards indicated average performance in these subjects (see Exhibits 3, 7, 8, 11, 14; Transcript pp. 43, 100-01, 269-70, 416, 150-51, 406-07).  The aberration of the scores on the WIAT-II were reasonably explained by the school psychologist and individual evaluators as due to the heavily language-based format of the WIAT-II in both questions and answers (see Exhibit 7, Addendum; Transcript pp. 104-06, 109-110, 270-71, 273-73, 42, 71).  In other words, the child's performance in math varied due to the language demands of the test, not his math skills (id.).  When standardized testing was presented with pictorial cues, requiring shorter responses with less focus on vocabulary, such as in the PIAT-R, the child achieved average scores in both math and spelling (see Exhibit 7, Addendum; Transcript pp. 71, 286-89).  The child's report card from White Plains supports that the student had mastered number facts, addition and subtraction, but not math vocabulary (Exhibit 8).  The parent's private evaluator reported that the child had trouble with word problems, but could execute simple pencil and paper calculations (Exhibit 14).  The student had scored in the average range on spelling on the PIAT-R and private evaluations obtained by the parent (Exhibit 7, Addendum; Transcript pp. 43, 101; Exhibit 14; Transcript pp. 269-70).  The CSE reasonably concluded that the child's needs as reflected in standardized test scores are based on weak reading comprehension and auditory processing skills (Transcript pp. 104-06, 109-110, 270-71, 273-74, 42, 71).  These areas are addressed in math and spelling in the goals and objectives of the IEP, which direct that the child "demonstrate the ability to read and understand content in subject area materials with 80% mastery, evaluated by utilizing recorded observations, as assessed by the special education teacher, by February 15" (Exhibit 9, p. 5), and "demonstrate the ability to understand and use vocabulary related to content area curriculum with a 85% mastery, evaluated by utilizing observation checklists, as assessed by the speech-language therapist and the regular education teacher, by June 1 (Exhibit 9, p. 5).  The testimony of the teachers who would be the child's speech therapist, special education teacher, and resource room teacher, all verified that they would be directly working on these areas of need with the child, as presented in the content areas of his general curriculum (Transcript pp. 230, 258-60, 107-112, 305-07), and the regular education teacher verified that it was her opinion that the goals and objectives could be delivered in a regular education second grade classroom (Transcript p. 167).  As such, I find the goals and objectives to be appropriate in meeting the child's needs (Application of a Child with a Disability, Appeal No. 03-084).

 

Petitioner contends that social goals concerning the child's distractibility should also have been included on the IEP.  Although the child was noted as being frequently distracted, evaluators, teachers, and even the parent's expert consistently also noted that the child was easily refocused (see Exhibits 15, p. 1-2; Exhibit 14, pp. 3, 7; Exhibit 4, p. 3; see Exhibit 8, p.2; Transcript p. 261).  The CSE noted and addressed the child's attentional needs in the IEP, providing for modifications such as preferential seating, teacher refocusing and redirection, directions read, reread, and explained, and special test locations with extended time (Exhibit 9, pp. 1-2; Transcript pp. 145-46).  Based on the record before me, I find the goals and objectives in the IEP to be reasonably calculated to meet the child's needs and I cannot find that they denied the student a FAPE.

 

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. § 300.347[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. § 300.347[a][3][i]).

 

Petitioner argues that the recommended program would not give his son enough support, and claims his son requires smaller classes, Orton-Gillingham instruction and more individual attention from special education providers to succeed.  The school psychologist who evaluated the child stated that the program was set up so that if there was anything that the child failed to acquire in the classroom, that it would be reinforced in a smaller group either with the child's consultant teacher, speech therapist, or resource room teacher (Transcript pp. 346-47).  She testified that regular classroom teachers assisted students with language problems by repeating direction, breaking things down, providing written directions, and providing visual aids (Transcript p. 343).  The child's proposed resource room teacher, with whom he would spend three hours per week, was trained in numerous reading methodologies, including Orton-Gillingham, Wilson, and Lindamood Bell (Transcript pp. 279-80).  She was the reading specialist who evaluated the child and attended the CSE meeting (Transcript p. 281).  In her testimony, she explained how the reading goals and objectives were appropriate to the child's specific needs, and were derived directly from the child's testing results and error analysis to improve his decoding skills (Transcript pp. 290-91).  She testified, and the CSE chair confirmed, that since in 2002-03 there were no other students at the same level as petitioner's son, that the child's resource room time in 2002-03 would have actually consisted of 1:1 instruction instead of 5:1 (Transcript pp. 46, 296-97), and would have provided intensive reading instruction to the child, while also addressing his language needs in his content area subjects (Transcript pp. 45, 305-07).  The speech-language provider, who would meet with petitioner's son for 30 minutes twice a week in a small group of five students, explained how each of the child's language goals would be achievable in that setting and the program was reasonably calculated to enable the child to receive educational benefit (Transcript pp. 226-31, 270).  Petitioner's expert claimed that the child needed multisensory instruction, yet admitted that it could be provided in a regular education setting (Transcript p. 408).  The speech therapist testified that the district did use a multisensory method of instruction in its classes (Transcript pp. 252-53); moreover, the child's proposed resource room teacher was trained in Orton-Gillingham, the method that had been used with some success with the child in the past (Transcript p. 280).

 

            The special education teacher testified that the goals and objectives could have been delivered to the child in the proposed resource consultant teacher model (integrated classroom) and that he would have received meaningful educational benefit (Transcript p. 112).  She testified that she would have been his special education consultant teacher (Transcript p. 111), and that in 2002-03, he would have been her only second grade student (Transcript p. 132), therefore he would have received individual attention.  At the CSE meeting, the regular education teacher, the child's speech-language teacher, the child's resource room teacher, and the school psychologist all carefully reviewed the child's records and concurred that the program and services recommended in the IEP were appropriate to meet the child's needs and would allow him to progress in the general curriculum (Transcript pp. 167, 232, 291, 333-34). 

 

            In the prior year, the child had received similar services at White Plains, where the director of special education described the program as a regular education classroom with a regular education teacher, an "internally trained aide,"2 and a special education teacher trained in Orton-Gillingham who visited the classroom for 40 minutes, three times per week (Transcript p. 492).  Petitioner stated the White Plains class had contained 14-15 students (Transcript p. 432).  Report cards from White Plains showed that with these services the child had approached or met grade level expectations in all areas (Exhibit 8).  Although there is no aide in respondent's recommended program, it provides the child the same amount of time in special education teacher services as did White Plains, and adds two additional services: three hours per week of 1:1 resource room time with a trained Orton-Gillingham instructor, and two additional 30-minute sessions per week concentrating solely on speech-language therapy, the child's area of disability.  The CSE chair testified that the proposed class would have included 17 students in 2002-03 (Transcript p. 493).  Based upon the foregoing, and the testimony of the child's proposed service providers, I find that respondent's recommended program was reasonably calculated to enable the child to achieve educational benefits.

 

            Lastly, petitioner raises the issue that the CSE erred by not considering a "more restrictive environment" for the child.  Petitioner misconstrues the purpose behind the IDEA.  In selecting an appropriate program, school districts must comply with the LRE requirement of the IDEA, which requires that students with disabilities be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1).  There is a strong preference for mainstreaming children with disabilities in regular education classrooms whenever possible (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; Walczak, 142 F.3d at 122; see Rowley, 458 U.S. at 202).  Special education and related services must be provided in the least restrictive setting consistent with a child's needs (Walczak, 142 F.3d at 122).  Removal of the child to special classes or separate schooling "occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" (34 C.F.R. § 300.550[b][2] [emphasis added]; see Walczak, 142 F.3d at 122). 

 

In the instant case, which was an initial referral, the district properly first considered whether or not the child could be educated successfully in a regular education classroom with nondisabled peers if provided with appropriate supports and services.  The special education teacher testified that she recommended an integrated regular education classroom with resource room and speech-language services as the best environment for the child because it would allow the child positive benefits from being grouped with academic and social role models while providing the necessary supports to enable him to be successful in the general education curriculum (Transcript pp. 111, 137).  The school psychologist, who had observed the child in the self-contained special education environment at Windward, agreed that regular education classes would be more appropriate for petitioner's son, and he would benefit from exposure to his nondisabled peers (Transcript pp. 323, 335), as did the district's regular education teacher and resource room teacher (Transcript pp. 168, 292-93).  The speech therapist testified that the CSE felt strongly after reviewing all of the available information, that "this was a child that we could very successfully educate in the mainstream classroom with some support help…he wasn't even borderline.  It was really to me a clear-cut case of him--that he should be in a regular ed class" (Transcript pp. 233-34).  There was evidence that the child had been successful in keeping up with the curriculum in the regular education setting with proper support services in both kindergarten (Exhibit 17) and in first grade (Exhibit 8).  Once the CSE determined, based on the results of a variety of tests and past educational records of the child, that the child could succeed in the regular education classroom with the appropriate supports and services (see Transcript pp. 233-34, 111-12, 292-93, 46-47, 62-63, 167-68, 144-45), the CSE had no duty to consider a more restrictive setting, as petitioner suggests.  Petitioner believed that his son should receive full time special education services (Transcript p. 421).  The IDEA's directive that "all children with disabilities have available to them a free appropriate public education" (20 U.S.C. § 1400[d][1][A]) does not create a duty to maximize the child's academic potential (Rowley, 458 U.S. at 197, n.21, 198; Walczak, 142 F.3d at 130, 132; Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]).  I find, based on the record before me, that the CSE fully complied with the IDEA's LRE requirements in selecting the regular education classroom with support services as the LRE for petitioner's son.  I find that respondent has met its burden of proving that it offered an appropriate IEP to petitioner's son for the 2002-03 school year.

 

            Having determined that the challenged IEP was adequate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2002-03 school year, petitioner is not entitled to tuition expenses, and I need not reach the issue of whether or not Windward was an appropriate placement; the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak., 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).3

 

            I have considered petitioner's remaining contentions and found them to be without merit.

 

 

            THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

April 9, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  The director of special education services at White Plains also informed respondent's CSE chair that petitioner's son had never been referred to its CSE or classified as in need of special education services while at White Plains (Transcript p. 492).  Petitioner confirmed this (Transcript p. 464).

 

2  The record does not specify what was meant by an "internally trained aide," or whether or not it was indicative of any special training outside of the normal training given in the regular course by White Plains to all of its teachers' aides.  The director of special education for White Plains did however reportedly inform the CSE chair that there "is not a special education teacher in the classroom" throughout the day (Transcript p. 492).

 

3  I note that even if I had found the district's program to be inappropriate, the record is devoid of a description of Windward's program, or teacher testimony by someone from Windward to explain how the school's program met this student's special education needs.  There are also no report cards or progress reports from Windward in evidence.  Absent evidence of progress or a description of how the private school's educational program specifically met the student's needs, I would be unable to find that petitioner has met his burden of proof with respect to the appropriateness of the services provided to his son at Windward during the 2002-03 school year (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 01-105).