The State Education Department
State Review Officer

 

No. 04-031

 

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE ROSLYN UNION FREE SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Jaspan, Schlesinger & Hoffman, LLP, attorney for petitioner, Carol A. Melnick, Esq., of counsel

 

Neal H. Rosenberg, Esq., attorney for respondents

 

 

DECISION

 

Petitioner, the Board of Education of the Roslyn Union Free School District (district), appeals from the decision of an impartial hearing officer, which found that it failed to offer a free appropriate public education (FAPE) to respondents' son and ordered it to reimburse respondents for their son's tuition costs and related expenses at the Vincent Smith School for the 2003-04 school year.  The appeal must be sustained.

 

At the outset I must address a procedural issue.  Respondents request that I consider two documents attached to their answer to the petition that were not made part of the hearing record and are now offered for review.  The first document is an undated one page local journal article submitted for the purpose of clarifying testimony from one of respondents' witnesses at the hearing (Answer, Ex. A).  The information in the article is presented in a question and answer format in which the director and a trustee describe the Vincent Smith School.  The second document is the child's final report card for the 2003-04 school year at the Vincent Smith School which was issued subsequent to the conclusion of the hearing (Answer, Ex. B).  It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098). Petitioner objects in its reply to the answer to the admission into evidence of the additional documents.  Petitioner argues that one of the two people interviewed for the article testified at the hearing and could have provided the information at the hearing that was reported in the journal article. Petitioner further asserts that the journal article only provides information that was available at the time of the hearing.  I agree.  The information in the article was available to respondents at the time of the hearing and the information is not necessary for me to render a decision.  Therefore, I will not accept Exhibit A attached to respondents' answer.  The child's final report card for the 2003-04 school year, which was not available until after the hearing, may provide information relevant to a determination of the appropriateness of the educational program in which the parent had enrolled her son.  However, although the final report card was not available at the time of the hearing, I find that such evidence is not necessary for me to render my decision because I need not review the appropriateness of the private school placement in light of my determination that petitioner offered respondents' son a FAPE.  I, therefore, also do not accept Exhibit B attached to respondents' answer.

 

            The student attended public school in petitioner's district beginning in 1992 when he entered prekindergarten and was classified as speech and language impaired (Tr. p. 78).  When the hearing began in November 2003, the student was 14 years old (Tr. p. 768) and attending ninth grade at the Vincent Smith School (Tr. pp. 716-18), a private school, where his parents unilaterally placed him for the 2003-04 school year (Dist. Ex. 28).  The Vincent Smith School has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities.  The student is currently classified as other health impaired (OHI) (Dist. Ex. 30).  The classification is not in dispute (Pet. ¶ 3). 

 

A neuropsychological evaluation was conducted on this student in August 1995 (Dist. Ex. 1).  At that time, the student was six years and three months old.  He had been previously found to have neurodevelopmental difficulty in the presence of attention deficit hyperactivity disorder (ADHD) with associated behavioral difficulty, an expressive language disorder, difficulty with memory and with minor motor skills.  He was found to have normal cognitive skills in most areas.  At the time of the August 1995 evaluation, the student was taking medication for ADHD.  On the Wechsler Intelligence Scale for Children – III (WISC-III), the student’s performance fell within the average range of intellectual functioning with a full scale IQ score of 105.  His verbal IQ score was 110 and his performance IQ score was 99.  His scores on subtests which measure working memory, attention, organizational skill and arithmetic were in the low average range.  On tasks measuring verbal learning, the student acquired information quickly but was found to forget the information or have difficulty retrieving the information for use.  Based on the evaluation, the evaluator recommended that reading and writing instruction for this student occur in a combined manner in order to compensate for the student's difficulty in memory and retention.  He further recommended the development of compensatory strategies for memory.

 

In August 1998, the student was again evaluated by the same neuropsychologist (Dist. Ex. 3).  At the time of this evaluation, the student was nine years and four months old.  The evaluation mentioned that reportedly the student was "holding his own" academically but is still reportedly experiencing difficulties in math, organizational skills and writing.  The student was again assessed using the WISC-III and performed within the average range of intellectual functioning.  His full scale IQ score was 99 with a verbal IQ score of 105 and a performance IQ score of 94.  The evaluator, based on subtest scores, noted that the student had well-developed skills in conceptual language, and visuo-spatial skills but did not display well-developed skills in organization and speed.  Visuo-spatial skills include picking out details and perceiving the arrangement of those details into patterns.  Handwriting and memory related tasks continued to be identified as problematic.  The evaluator stated that the student would benefit from a mainstream placement but continued to need educational support services and program modifications.

 

            In January 2001, the student was evaluated by the district as part of his triennial review (Dist. Ex. 5).  At that time, the student was almost twelve years old.  The student was described by the school psychologist as doing well with factual information and demonstrating good rote memory skills.  He was further described, however, as encountering great difficulty when higher-level conceptual reasoning was required.  The student was administered the Woodcock-Johnson Tests of Achievement-Revised in evaluating his achievement in reading, mathematics and writing.  The student's reading scores ranged from average to superior with letter word identification at a standard score of 106, passage comprehension at 114, and word attack at 120.  According to the school psychologist, the student's performance in the classroom was at a lower level than the level of ability that his testing indicated.  She attributed this to the presence of a more structured presentation of tasks in the testing environment and the absence of a time demand.  The student's performance in math fell within the low average to average range.  He encountered the most difficulty with problem solving tasks.  The student also was found to have continued difficulty in his writing ability.  He performed in the low average range in technical writing tasks requiring the application of punctuation, grammar and spelling.  The evaluator concluded that, as had been previously noted, the student’s ability to independently organize and translate his thoughts into writing was an area in need of further remediation.  The psychologist also assessed the student's social and emotional functioning during this evaluation.  She described the student as being optimistic, with a positive attitude toward school and a desire to improve his academic skills.  Although she did note that the student appeared insecure at times, she stated that there were no social or emotional concerns.

 

            On April 11, 2002 the Committee on Special Education (CSE) developed the student's individualized education program (IEP) for the 2002-03 school year which included a co-teaching workshop five times a week (Dist. Ex. 8) and a resource room on alternating days for five times every two weeks (Tr. p. 90; Dist Ex. 8).  The IEP also indicated that the student would participate in co-teaching classes for math, English, science and social studies (id.).  According to the district, co-teaching classes are regular education classes with a regular education teacher and a special education teacher or a paraprofessional in the room each day (id.).  The co-teacher or paraprofessional are available to clarify information, answer questions and help with organizational skills (Tr. p. 231).  According to the school psychologist, the co-teaching model uses a number of different strategies, including visual and auditory techniques, for instruction (Tr. pp. 122-23).  The school psychologist testified that graphic organizers, copies of class notes, highlighters and review sheets are commonly used (Tr. p. 123).  The student's special education co-teacher testified that co-teaching classes benefited the student, as he could observe peer models with appropriate behavior in the general education setting and follow the same curriculum as nondisabled students (Tr. pp. 240-41, 279-80).

 

After a program review request dated September 30, 2002 (Dist. Ex. 9), the CSE convened on November 6, 2002 (Dist. Ex. 10) to review the student's program and consider a parental request for a daily support period (Dist. Ex. 9).  Meeting minutes indicate that the student was earning passing grades in math, social studies and science, continued to experience significant difficulties in writing, and continued to have difficulties focusing, initiating work and incorporating skills (Dist. Ex. 11).  The CSE responded to the parents' request by adding a daily resource room service to the student's program (Dist. Ex. 10).

 

            In February 2003, the student was evaluated by the district as part of his triennial review.  Selected subtests of the Woodcock Tests of Achievement – III were administered.  On these subtests, the student scored in the average range for tasks in reading and math, but his writing sample subtest score was in the borderline range, and his score was in the low average range for punctuation and use of capital letters (Dist. Ex. 15).  According to petitioner's school psychologist, this score indicated that the student was able to recognize correct punctuation and capitalization even if he was not able to produce a writing sample with correct punctuation and capitalization (Tr. pp. 100-104).

 

The evaluative information contained in the record consistently identifies this student as having average cognitive ability with weaknesses in written expression, organization, memory and problem solving (Dist. Ex. 1 at 2, Dist. Ex. 3 at 1-3, Dist. Ex. 5 at 2, 4, 5).  Recommendations consistently included assistance with the development of compensatory strategies for memory and also for adult support to assist in focusing and organization (Dist. Ex. 1 at 4, Dist. Ex. 5 at 5).  None of the evaluations identified any significant concerns in the areas of social or emotional functioning.

 

The CSE convened for an annual review on April 10, 2003 (Dist. Ex. 17).  As a result of this meeting, the CSE recommended that the student attend co-teaching classes at the district high school with the support of co-teaching workshops and resource room services, each five times a week (id.).  Co-teaching workshops differ from co-teaching classes in that they are special education classes with a 15:1+1 student/teacher ratio where students are taught strategies for addressing reading comprehension and writing assignments in their mainstream classes (id.).  To further support the student’s transition into high school, a one-to-one aide was offered in his program to assist him twice a day, five times a week (Tr. pp. 147-48, 335).  Although a one-to-one aide was recommended as part of this student’s special education program on the April 10 IEP, testimony by the special education co-teacher indicated that the addition of the aide was discussed at the April CSE meeting and that the student would have received a one-to-one aide when he entered high school in September 2003 (Tr. pp. 334-35).  Meeting minutes from April 10, 2003 indicate that the one-to-one aide for resource room and co-teaching workshops was included in the comments section of the IEP (Dist. Ex. 17).

 

            Concerned that it did not adequately address the educational needs of their son, the parents withdrew their approval for the April IEP on June 15, 2003 and requested a program review for the 2003-04 school year (Dist. Ex. 20).  On July 30, 2003, the CSE reconvened to discuss the parents' concerns about the 2003-04 IEP (Dist. Ex. 30).  Meeting minutes from the July 30, 2003 CSE indicated that the parents were pessimistic as to the student's ability to succeed in high school because they believed that their son was not capable of the level of critical thinking that would be required (Dist. Ex. 25).  The parents also mentioned that they were doing some of the student's homework for him (id.).  The minutes also indicated the special education teacher requested that the student at least try the district high school and then the CSE could reevaluate his progress (id.).  The CSE continued to recommend the student attend the district high school with the support of co-teaching classes, co-teaching workshops, resource room services and a one-to-one aide twice a day, five times a week for a total of 360 minutes (Dist. Ex. 30).  On August 14, 2003, the parents formally withdrew their son from the district and sent a letter notifying the district that he would be attending the Vincent Smith School and that their attorney would file a hearing request in September for tuition reimbursement for 2003 (Dist. Ex. 28).

 

            Pursuant to a written request by respondents for an impartial hearing challenging the April 10, 2003 and July 30, 2003 review determinations and recommendations of the CSE, an impartial hearing officer was appointed and hearings were conducted.  The impartial hearing began on November 18, 2003 and concluded on February 5, 2004 after four sessions (IHO Decision, p. 4).  The hearing officer rendered her decision on April 28, 2004 (IHO Decision, p. 19).

 

            The hearing officer determined that the CSE failed to consider whether the student had shown regression in the program offered for the 2002-03 school year (IHO Decision, p. 14) and that the IEP offered for the 2003-04 school year contained numerous procedural flaws that affected the substance of the student's program (IHO Decision, p. 15).  She determined that the July 30, 2003 IEP failed to describe the student's educational, social, and physical needs, many of the goals and objectives were vague, and the IEP sometimes contradicted the student's stated needs (IHO Decision, p. 16).  The hearing officer found that the IEP was not reasonably calculated to provide educational benefits to the student and therefore the district had failed to meet its burden of showing it had offered a FAPE to the student for the 2003-04 school year (id.).  Finally, the hearing officer found that the student’s special education needs were less academic than behavioral (IHO Decision, p. 17) and because of the smaller class size at the Vincent Smith School the student realized an educational benefit from the unilateral placement (IHO Decision, pp. 17-18).  For these reasons, the hearing officer ordered that the district provide tuition and fee reimbursement to the parents for the student's attendance at the Vincent Smith School for the 2003-04 school year (id.).  

 

Petitioner appeals from the hearing officer's decision that the proposed 2003-04 July IEP was inappropriate (Pet. ¶ 36).  The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities 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 (20 U.S.C. § 1401[8]).  The Supreme Court has determined that tuition reimbursement may be an appropriate remedy for certain enumerated violations of the IDEA (20 U.S.C. § 1415[i][2][A]).  A board of education may be required to pay for educational services obtained for a child 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 failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

 

            Petitioner 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, petitioner 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 through the IDEA's procedures 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).  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]; Application of a Child with a Disability, Appeal No. 02-015), 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]).   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. 03-037; 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).  An IEP must indicate the individual needs of the student in the areas of academic or educational achievement and learning characteristics, social development, physical development and management needs (8 NYCRR 200.4[d][2][i]).  Additionally, an IEP must include annual goals and benchmarks or short-term objectives that are related to meeting the student's needs which arise from his or her disability (see 34 C.F.R. § 300.347[a][2]; Application of a Child with a Disability, Appeal No. 00-058; 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).

 

Petitioner argues that the IHO erroneously determined that the procedural flaws in the July 2003 IEP affected the student’s right to a FAPE (Pet. ¶ 36).  Petitioner testified that due to new computer software formatting, the July IEP (Dist. Ex. 30) failed to include the student's educational, social, and physical needs, which had been identified and discussed by the CSE and were intended to have been listed under present levels of educational performance and individual needs (Tr. pp. 185-86, 293, 311-12).  The record reflects that respondents agreed that the April and July IEPs were basically the same (Tr. p. 904) and that the CSE “presented” the student's levels and needs the same way in April as it did in July (Tr. p. 905-06).  The district mailed a copy of the April IEP to the parents on June 4, 2003 (Dist. Ex. 17).  Although present levels of educational performance and individual needs should have been included on the July IEP (34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[d][2][i]), the record indicates that this information was discussed at the April 10, 2003 CSE meeting in which the parent was a participant (Tr. pp. 314, 898-899), the parent and educators were aware of the district's view of these needs listed under present levels of academic performance and individual needs at the April CSE meeting (Tr. pp. 313-14, 536, 544-45) and at the July CSE meeting (Tr. p. 904), and the program developed reflects, and is based upon, these levels and needs (Dist. Ex. 17 at pp. 3, 5-13, Dist. Ex. 30 at pp. 3, 5-10).  Finally, at the time of the July 2003 CSE meeting, the parents had access to a copy of the April 10, 2003 IEP (Tr. p. 900), which listed the information that was inadvertently not included on the July IEP document (Exhibit SD-30).  Because the parent participated in a detailed discussion of these levels and needs in the formulation of her child's April IEP and the proposed program reflects and was based upon the student's actual present levels of educational performance and individual needs, I find that the failure to list this information on the July IEP was inconsistent with IDEA requirements but did not result in the loss of an educational opportunity for the student, nor did it seriously infringe on the parent's participation in the creation or formulation of the IEP (Application of the Bd. of Educ., Appeal No. 02-025; O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 703-704 [10th Cir. 1998]).

 

Petitioner also asserts that the hearing officer erroneously determined that the goals and objectives were vague and sometimes contradictory.  An IEP must include a statement of measurable annual goals and benchmarks or short-term objectives that are related to meeting the student's needs arising from his or her disability (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]).  An IEP must include appropriate objective criteria and evaluation procedures and schedules for determining whether the short-term instructional objectives were being achieved (34 CFR 300.346 [a][5]).  An IEP is inadequate when the goals and objectives lack specificity (Application of a Child with a Disability, Appeal No. 00-058).

 

In the instant case, goals and objectives on the student's IEP were grouped in the areas of attention, English language arts, reading, mathematics, and organizational/study skills.  These are the student's areas of need as identified in current evaluation reports.  These needs are adequately stated under the section of the April 10, 2003 IEP which describes the student's present levels of performance and individual needs (Dist. Ex. 17, pp. 5-6), but which were inadvertently omitted from the July 30 IEP  (Dist. Ex. SD-30).  In reviewing these goals, I find that they are somewhat generally stated and lack specificity.  However, a careful review and analysis of the objectives that follow each goal reveals that the objectives provide clear direction as to what the student was expected to accomplish over the course of the school year in order to meet each goal (Dist. Exs. SD-17, SD-30).  For example, one organizational/study skills goal states that the student, "will demonstrate an ability to attain organizational skills to enhance the learning process" (Dist. Ex. SD-17, p. 11, Dist. Ex. SD-30, p. 8).  Objectives for this goal address use of an agenda book to record homework, use of study cards to reinforce new skills, development of strategies to improve ability to answer different types of questions, and completion of homework assignments (id.).  An English language arts goal to "improve the mechanics of written expression" (Dist. Ex. 17 at pp. 9-10, Dist. Ex. 30 at p. 6) includes objectives stating that the student will be able to form legible print and cursive letters, write grammatically correct and structured sentences, develop an organized plan to address writing requirements of a task, express his thoughts in writing, write a creative story with a beginning, middle and end, develop an organized plan to address the writing requirements of a critical clause or document based question, and write a research paper (id.).  When objectives for these and other goals are read together with the goal, the objectives provide specific measurable direction as to what the student was expected to accomplish over the course of the school year.  Based on my review of the IEP, I find that the objectives, when read together with the goals, are not vague but instead list unambiguous measurable criteria that satisfy the regulatory requirements of IDEA.  The IEP also sets forth the evaluation procedures to be used to measure progress for each objective, including teacher observations, evaluations, and teacher-made tests and materials.  Moreover, the student's mother testified that she thought the goals and objectives were appropriate (Tr. p. 907).

 

The next issue to be considered to determine if the district offered the student a FAPE is whether the board of education has shown that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  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).  The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

The record contains numerous statements regarding the student's success and progress in the 2002-03 co-teaching program.  The proposed program in the 2003-04 IEP was designed to build upon the student's previous success and to increase the likelihood of continued success in his first year of the high school setting.  The district's school psychologist testified that the student was successful in the co-teaching program in previous years (Tr. pp. 89-90, 115, 134).  The school psychologist opined that the student would benefit from the mainstream program by being in classes with nondisabled peers (Tr. p. 134).  The student's special education teacher for seventh and eighth grade testified that the student was never a behavior problem (Tr. p. 237), had good self-esteem (Tr. p. 238), was successful in meeting a lot of his goals and objectives (Tr. pp. 254-55), made progress while in middle school (Tr. pp. 247-48, 254-55) and benefited from exposure to appropriate behavior of general education students in the co-teaching class (Tr. pp. 279-80).  One of the student's eighth grade general education teachers testified that the student was appropriately placed in his class (Tr. p. 453).  The school psychologist testified that, at a 2002 CSE meeting, the student's eighth grade special education teacher reported that the student was passing and understanding the social studies and science on his own (Tr. pp. 93-94).  From seventh to eighth grade, the student's final grades for math, social studies and English were stable and his grade in science dropped slightly from an 82 to a 75 (Dist. Exs. 7, 23).  The only significant area in which the student's test scores fell significantly was on the English language arts exam.  The student's eighth grade score on this exam was significantly lower than his fourth grade score (Parent Exs. A, C).  However, the school psychologist for the district testified that the student's eighth grade score was an underestimate of his academic abilities since he was not allowed to use his test modifications for the eighth grade test and he, "would have gotten a higher score on the test" with the accommodations since "his ability is higher" (Tr. p. 100).  

 

To assure the continued benefits and progress evidenced from the middle school co-teaching program, the proposed ninth grade program reasonably addressed the parents' concerns regarding their son's homework assignments and the academic demands of high school (Tr. pp. 872-73) by continuing resource room services and by adding a one-to-one aide each day for the student's resource room and co-teaching workshops for a total of 360 minutes a week (Dist. Ex. 30 at p. 2).  The minutes from the April 10, 2003 CSE meeting indicate that the district was responsive to the parents' concerns, noting that the CSE assured the parents that if the student did not succeed in the recommended program, the CSE would reconvene and re-design the student's program, placing him in a smaller group with more supports or alternatives (Tr. pp. 107-08; Dist. Ex. 17).  The April 10, 2003 minutes also note that alternative programs such as Board of Cooperative Educational Services (BOCES) could be considered and that the student was not required to finish high school in only four years (Dist. Ex. 17).  Based upon the testimony from the record, I find that the district's July 2003 IEP is reasonably calculated to enable the student to receive educational benefits.

 

            Finally, I must determine if the proposed program offered the student an educational opportunity in the LRE.  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).

 

            Testimony from the student's psychiatrist emphasized the importance of access to appropriate role models for the student (Tr. p. 822).  The opportunity for access to general education and special education staff in the co-teaching classes in the proposed IEP would have provided respondents' son with the necessary support, repetition, clarification and review in a setting with nondisabled peers.  The testimony of the district's school psychologist supported the psychiatrist's recommendations regarding the importance of role models for the student.  The school psychologist testified that the student would benefit from exposure to appropriate peer behavior in the district's co-teaching program and that he would also benefit from placement in the mainstream setting (Tr. pp. 134-35).  The student's special education teacher opined that the student did not need a more restrictive setting than the program offered by the CSE for 2003-04 (Tr. pp. 287-88).  I find that the educational program recommended by the CSE would have addressed this student's special education needs in the LRE.

 

            Having reviewed the hearing record, I find that petitioner has met its burden of demonstrating that the student's July 2003 IEP, at the time it was formulated, was reasonably calculated to enable the student to receive educational benefits and likely to produce progress.  The July 2003 IEP was appropriately based on results of 2002-03 assessments and progress reports.  The 2003-04 IEP was based upon adequate assessments and tailored to meet the student's needs.  Special education programs and services were aligned to address the needs, adequate goals and measures of progress were included, and the educational program was offered in the LRE.

 

            Having determined that the challenged IEP was adequate, petitioner has met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year, respondents are not entitled to tuition expenses, and I need not reach the issue of whether or not the Vincent Smith School was an appropriate placement (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. 04-008; Application of a Child with a Disability, Appeal No. 04-003).

 

 

            THE APPEAL IS SUSTAINED.

 

            IT IS ORDERED that the hearing officer's decision is annulled to the extent that she awarded reimbursement to respondents for tuition and related costs for the 2003-04 school year.

 

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

August 12, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER