The State Education Department
State Review Officer

No. 04-021

 

 

 

 

 

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 Lakeland Central School District

 

 

Appearances:
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel

 

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

 

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer that denied her request for reimbursement of her child's tuition at the Ramapo Anchorage Camp (Ramapo) during the summer of 2003.  The appeal must be dismissed.

 

            At the time of the hearing, the student was ten years old.  He had been diagnosed with an attention deficit hyperactivity disorder (ADHD) during preschool (Transcript pp. 281, 346).  In addition to ADHD, the student was diagnosed with Asperger's syndrome shortly before the hearing (Exhibit 10).  He is classified other health impaired (OHI) (Exhibit 2).  That classification is not in dispute. 

 

            The student attended a therapeutic preschool where he was placed in a class with a student to staff ratio of 8:1+1 (Exhibit O).  Although developmental kindergarten was recommended, the student attended regular kindergarten because his mother reportedly felt that it would be more beneficial (Exhibit 18).  The student did receive occupational therapy and adapted physical education during kindergarten to address fine and gross motor deficits (Exhibit 18). 

 

            During the 1999-2000 school year, the student was described as a motivated learner who exhibited frustration because he could not read as well as his first grade peers (Exhibit 18).  In May 2000, an independent evaluator recommended that the student repeat first grade with the assistance of an individual aide (Exhibit Q).  The student repeated first grade during the 2000-01 school year; however, the Committee on Special Education (CSE) did not recommend an individual aide (Exhibit T).  The student's 2001-02 individualized education program (IEP) for second grade indicated that he had a significant delay in attention skills, that his emotional levels and abilities were within age appropriate expectations, and that there were "no social and emotional needs that should be addressed through special education at this time" (Exhibit T).  The CSE, which met on March 19, 2001, recommended an integrated class with a student to teacher ratio of 15:1 (Exhibit T).  It also recommended occupational therapy and adapted physical education. The mother requested resource room and an individual aide for second grade, but the CSE declined her request (Exhibit T).  The student was placed in an integrated class and received occupational therapy and adapted physical education during the 2001-02 school year.  The student's second grade teacher in the 2001-02 school year stated in testimony that the student had shown clear academic growth during second grade and seemed to be feeling much better about himself (Exhibit 9).

 

            The student's IEP for the 2002-03 school year, when he was in third grade, indicated that the student had a significant delay in attention skills, a delay in gross and fine motor skills, inconsistent reading skills, and weak writing skills (Exhibit Y).  The student required individualized attention when working on reading and writing tasks, assistance to improve fine and gross motor skills, a structured behavioral program in the classroom with rewards for appropriate behavior, and frequent refocusing (Exhibit Y).  The IEP indicated that his emotional levels and abilities were within age appropriate expectations and that there were "no social and emotional needs that should be addressed through special education at this time" (Exhibit Y).  The CSE recommended an integrated class with both direct and indirect consultant teacher services, resource room, adapted physical education, and occupational therapy (Exhibit Y).  Neither the student's teachers nor his clinicians observed a pattern of regression (Exhibit Y).  The CSE declined to recommend 12-month services, but subsequent to development of the IEP, the district agreed to provide the student with summer services (Transcript pp. 117-18). 

 

            The CSE convened on April 10, 2003 to develop the student's IEP for the 2003-04 school year (Exhibit Z).  The CSE recommended that the student be placed in a regular education class with an individual aide and indirect consultant teacher services once a week for 30 minutes (Exhibit Z).  The program also included resource room services, occupational therapy, and speech-language therapy (Exhibit Z).  The CSE recommended summer services consisting of individual reading instruction and individual occupational therapy (Exhibit Z).

 

            An independent psychologist observed the student on March 28, 2003 (Exhibit 10).  The mother had contacted the psychologist because her son had been exhibiting escalating behaviors at home (Transcript pp. 437-40).  The mother testified that her son had severe difficulty getting dressed, eating breakfast, and arriving to school on time (Transcript pp. 437-38).  The mother described her child as out of control, impulsive, and aggressive.  She also reported that the student had no friends and no social skills (Transcript p. 440).  The independent evaluator testified that he knew that the student displayed oppositional behavior in the home, but stated that he was unaware of social problems (Transcript p. 421). 

 

            Following his observation, the independent psychologist recommended that the student be admitted into the Four Winds Child Partialization Program (Four Winds) (Exhibit 10).  The student was in Four Winds from April 1, 2003 until April 25, 2003 (Exhibit 10).  In a letter dated May 5, 2003, the psychologist stated that the student's behaviors while in this program were consistent with severe ADHD and that the student showed "significant anxiety regarding changes, idiosyncratic interests, reactivity to noise and crowds, poor eye contact, obsessionality, and a tendency to isolate" (Exhibit 10).  The student was discharged with a dual diagnosis of ADHD and Asperger's syndrome (Exhibit 10). 

 

On May 6, 2003, the psychologist wrote a letter to the interim director of special education services suggesting social goals for the CSE to add to the student's IEP (Exhibit 11).  On May 16, 2003, the director of pupil personnel services sent the parent a copy of the IEP developed on April 10, 2003 (Exhibit 17).  On May 20, 2003, petitioner informed the CSE that the most recent copy of her son's IEP did not include the independent psychologist's recommendations (Exhibit E).  She also sent the CSE a pamphlet describing the summer program she hoped the CSE would consider for her son (Exhibit E).  On May 29, 2003, the district sent the parent another copy of the IEP developed at the April 10, 2003 CSE meeting (Exhibit Z).  None of the requested recommendations were included (Exhibit Z).  The director of pupil personnel services explained that the CSE intended to incorporate the recommendations of the independent psychologist into the IEP when the CSE met in June (Transcript pp. 28, 68).  The record does not reveal why the parent was sent the April 10, 2003 IEP or that the mailing had any negative impact upon the student or his program   On June 6, 2003, the parent requested an impartial hearing because she disagreed with the CSE recommendations (Exhibit 1).  The CSE reconvened on June 23, 2003 and amended the student's IEP (Exhibit 2).  The parent attended the CSE meeting by telephone (Exhibit 2).  The amended IEP identified the student's social abilities as not age appropriate and indicated that he had needs regarding social interactions, personal space, responding to social cues and making eye contact (Exhibit 2).  In addition, the amended IEP included counseling and the social goals that the independent evaluator suggested, and it described situations that cause the student stress.  The CSE did not recommend social skills instruction for the 2003 summer because no evidence existed that the student was likely to substantially regress in social skills without such instruction (Exhibit 2; Transcript pp. 185-86).  According to the June 23, 2003 IEP, none of the CSE members, including the independent psychologist, expressed any concern that there was a likelihood of substantial regression in the area of social skills (Transcript p. 48).  The student's resource room teacher testified that the student exhibited growth in social skills (Transcript p. 134).  The school psychologist testified that, while the student exhibited anxiety that seemed to be connected to his academic difficulties, he seemed to be making social skills progress (Transcript p. 182).

 

            The impartial hearing began on September 11, 2003, continued on November 18, 2003 and concluded on January 13, 2004.  Petitioner sought both tuition reimbursement and compensatory education.  In a decision dated February 25, 2004, the hearing officer found that the CSE recommended an appropriate summer program, and she denied the parent's request for tuition reimbursement and compensatory education.  Petitioner appeals asserting that the program recommended by the CSE was inappropriate, the private placement was appropriate and equitable considerations favor the parent.  Petitioner seeks tuition reimbursement for the four week residential placement at Ramapo during summer 2003.  Petitioner does not appeal the denial of compensatory education. 

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP as required under the Act (20 U.S.C. § 1401[8]).  The IEP must provide services that are tailored to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]).  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]).

 

            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, 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. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  The 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]).  An appropriate 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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

            If a student is eligible for a 12-month special service and/or program, the student's IEP must include that information (8 NYCRR 200.4[d][2][xi]).  Twelve-month programming is warranted for educational purposes when a student exhibits severe management needs, is multiply disabled, requires home/hospital instruction, exhibits needs requiring placement in a seven-day residential facility, or when necessary to prevent substantial regression as determined by the CSE (8 NYCRR 200.1 [j]). Substantial regression is "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]). 

 

            The district demonstrated that the recommended program of specialized reading instruction and occupational therapy for the 2003 summer was reasonably calculated to provide the student an appropriate education.  At school, the student displayed difficulty with reading, writing, attention skills, organization skills and fine motor skills (Exhibits 2, 3).  The student's goals and objectives for the 2003 summer focused on those needs.  The recommendation of occupational therapy and reading were based on evaluations, teacher observations, and clinician observations (Exhibit 2).  Although the occupational therapy evaluation revealed that the student's visual motor skills, visual spatial skills, and fine motor skills were average, the student's classroom performance was not consistent with testing (Exhibit 5).  In response, the CSE recommended occupational therapy for the student (Exhibit 2).  Further, despite the lack of evidence that the student would have experienced substantial regression without occupational therapy and reading, the occupational therapist testified that the goals and objectives were appropriate and she would have worked on them during the summer (Transcript p. 96).  In addition, the student exhibited weaknesses in phonic skills and spelling, for which the educational evaluator recommended a multisensory reading program (Exhibit 6).  For the summer, the district was prepared to provide a multisensory reading program (Transcript p. 47). 

 

            The record does not show that, at school, the student displayed weaknesses in social skills that would have warranted 12-month services.  At the June 23, 2003 CSE meeting, none of the CSE participants, including the independent psychologist, expressed concern regarding the likelihood of substantial regression in social skills (Transcript p. 48).  The mother testified that her son engaged in oppositional, aggressive and defiant behaviors at home (Transcript pp. 437-41).  She also testified, however, that the teachers never reported social problems at school (Transcript p. 440).  The student's teacher did not recommend 12-month services for social skills because she had not observed regression after the summer or long vacations (Transcript p. 134).

 

            The psychologist testified that the student displayed oppositional behavior; however, the psychologist generally described this behavior within the context of the home environment (Transcript pp. 348-49).  The psychologist described one incident of oppositional behavior at school, which took place in kindergarten (Transcript pp. 349-50).  He acknowledged that the student did not exhibit social deficits during an observation on November 22, 2002.  Rather, he observed social deficits in March 2003 (Transcript p. 378).  The recommendation of a summer program was not specific to petitioner's son (Transcript p. 416).  The psychologist testified that he would recommend a summer program for any student with an autistic spectrum diagnosis (Transcript p. 416).  He stated that every patient in his practice attends a summer program (Transcript pp. 416-17).

 

            There is no basis in the record upon which I could conclude that this child cannot benefit from instruction in a day program. Indeed, the record demonstrates that he has benefitted from such instruction. Although petitioner testified that the child was becoming increasingly difficult to manage at home, there is no evidence in the record that the child's behavior at home impacts upon his ability to benefit from his educational program. In any event, the child's behavior at home does not, per se, afford a basis for concluding that the child requires a residential program (Application of a Child with a Handicapping Condition, Appeal No. 91-28; Matter of a Handicapped Child, 21 Ed. Dept. Rep. 293).

 

            The record shows that the student primarily displays difficult behaviors at home and not at school. The record also demonstrates that the student's behavior at home does not adversely impact upon his ability to gain meaningful benefit from his educational program.  Therefore, the record does not afford a basis to conclude that the student requires a restrictive summer residential program to receive educational benefit or prevent regression.   (Application of a Child with a Handicapping Condition, Appeal No. 92-27).   The fact that a residential program may address a student's regressive behavior both at home and at school does not relieve the school district of its obligation to provide the program, as long as it is necessary to insure that the student is properly educated (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]).  Conversely, a residential placement is not appropriate where a student can make meaningful social and academic progress in a less restrictive day program  (see, Walczak, 142 F.3d at 131-32).  Although petitioner testified that her child engaged in difficult behavior at home, the record does not indicate that the behavior at home impacted the student's ability to benefit from respondent’s non-residential educational programs.  Further, because the evidence does not show that the student would experience substantial regression in social skills over the summer, I find that the summer program as recommended by respondent's CSE was appropriate.

 

            I concur with the impartial hearing officer that the challenged IEP was appropriate; therefore, respondent has met its burden of proving that it offered to provide a FAPE to the student during the summer 2003.  Petitioner is not entitled to tuition expenses, and I need not address whether Ramapo was an appropriate placement, nor whether equitable considerations favor petitioner (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). 

 

 

            THE APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

June 25, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER