Application of the BOARD OF EDUCATION OF THE HICKSVILLE 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
Guercio & Guercio, attorney for petitioner, John P. Sheahan, Esq., of counsel
Pamela Anne Tucker, Esq., attorney for respondents
Petitioner, the Board of Education of the Hicksville Union Free School District, appeals from the decision of an impartial hearing officer which ordered it to reimburse respondents for their son's tuition at the Crestwood Country Day School (Crestwood) for a portion of the 2002-03 school year and for the 2003-04 school year. Petitioner also appeals that portion of the decision that ordered it to reimburse respondents for the cost of speech-language therapy services and reading instruction services provided during the latter part of the 2002-03 school year, summer 2003, and the 2003-04 school year. The appeal must be dismissed.
At the time of the hearing, respondents' son was 10 years old and attending fifth grade at Crestwood, where his parents had unilaterally placed him for the last seven weeks of the 2002-03 school year and for the 2003-04 school year. Crestwood is a private school that 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 (Education Law § 4401 ).
The child’s classification as a student with a learning disability (LD) is not in dispute (Tr. p. 12; see 8 NYCRR 200.1[zz]). He was diagnosed with attention deficit and hyperactivity disorder (ADHD) during his kindergarten year and began taking medication for this condition at that time (Tr. p. 1603). The record also reveals: he has demonstrated deficits in receptive language processing (Tr. pp. 445, 448), phoenemic awareness (Tr. pp. 448, 451, 572-73), articulation (Tr. pp. 468-473) and auditory processing (Tr. p. 189). In addition to visual motor integration deficits (Tr. p. 188), the child has oromuscular motor deficits which interfere with expressive language (Tr. pp. 17-18), the right side of his face is weak and he has exhibited elements of dyspraxia as demonstrated by incoordination of facial musculature (Tr. pp. 647-48).
During his kindergarten year, the child was placed in a self-contained 12:1:1 class with the related services of speech-language, and occupational therapy (Tr. pp. 1601, 1603). His mother testified that he continued with essentially the same 12 month program, with related services, taught by the same classroom teacher for his first, second, and third grade years (Tr. pp. 1606-07, 1613-15). She testified that her son did not show educational progress over this time period (Tr. pp. 1606-07, 1609) and that she had informed petitioner of her concerns about the lack of progress at Committee on Special Education (CSE) meetings and during individual meetings with staff (Tr. pp. 1605-07, 1611, 1617-19, 1621). The child was transferred into another school and class for his fourth grade year after his mother had a parent advocate contact the district (Tr. pp. 1623-24). During his fourth grade year at the district school, the child was placed in a 12:1:1 self-contained class (Tr. p. 1625) with both fourth and fifth grade students with varying reading abilities (Tr. pp. 111, 112).
Evaluative material in the record reveals that the child’s educational performance is below age and grade expectations. In October 2001, during his third grade year, the child received grade equivalents of 1.0 in basic skills, 1.4 in math, 1.2 in reading and K.5 in writing on the Woodcock Johnson Mini Battery (Dist. Ex. 15). Shortly thereafter, administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ of 72, while administration of the Bender-Gestalt Comprehensive Test of Nonverbal Intelligence yielded a nonverbal intelligence quotient of 81. The child also received a standard score of 65 on the arithmetic subtest of the Wide Range Achievement Test - Third Edition (WRAT-3) during this time. Approximately one year later, in December 2002, a second administration of the WISC-III yielded a performance IQ of 81 and a verbal IQ of 92, resulting in a full scale IQ of 86. At the same time, the Gray Oral Reading Test - Fourth Edition (GORT-4) yielded a grade equivalent of less than 1.0 (age equivalent of less than 6.0) in accuracy, a grade equivalent of 2.4 in comprehension (age equivalent of 7.6), a grade equivalent of less than 1.0 (age equivalent of less than 6.0) in fluency and a grade equivalent of less than 1.0 in rate of reading (age equivalent of less than 6.0).
Private evaluations conducted by a senior neuropsychologist from North Shore University Hospital from December 16, 2002 through January 15, 2003 resulted in identical GORT-4 scores, but with WISC-III scores of 92 in verbal IQ (average), 81 in performance IQ (low average), and 86 in full scale IQ (low average) (Parent Ex. C Neuropsychological Evaluation at pp. 8, 13). However, the evaluator stated that these scores should be regarded cautiously due to the child's areas of difficulty and should not be used as predictors of future functioning (Parent Ex. C Neuropsychological Evaluation at p. 3). Auditory and phonological processing was significantly below expectations (Parent Ex. C Neuropsychological Evaluation at p. 8), with the Woodcock-Johnson Test of Cognitive Ability, sound blending subcategory, resulting in a grade equivalent of K.7 (age equivalent of 5-11) (Parent Ex. C at Neuropsychological Evaluation at p. 13); the Neuropsychological Assessment (NEPSY) phonological processing subcategory ranked the child in the 9th percentile (Parent Ex. C Neuropsychological Evaluation at p. 13); while the oro-motor sequencing subcategory placed him within the 3rd to 10th percentiles (Parent Ex. C Neuropsychological Evaluation at p. 14). As a result of the complete assessment, the neuropsychologist recommended the Lindamood-Bell System or Wilson Method reading programs (Parent Ex. C Neurological Evaluation at p. 11), also recommended by the child's developmental pediatrician as a result of his October 2002 evaluations (Dist. Ex. 32 at p. 3).
The March 28, 2003 and June 12, 2003 CSEs (Dist. Exs. 2, 15) recommended essentially the same individualized education program (IEP) as the April 11, 2002 IEP (Parent Ex. B), with the exception of the addition of an FM trainer for the classroom (Tr. pp. 1659-62; Parent Ex. C).
The child's April 11, 2002 (Parent Ex. B) and December 5, 2002 (Dist. Ex. 27) IEPs developed for his fourth grade year recommended a 12:1:1 special class with group occupational therapy 30 minute sessions once a week and group speech-language therapy 30 minute sessions twice a week. Mainstreaming in physical education, lunch, recess, and reading was also recommended. Extended school year service recommendations included a daily 12:1:1 special class for 330 minutes a day, with group speech-language therapy 30 minute sessions twice a week and individual occupational therapy 30 minute sessions once a week. Testing accommodations included the provision of a test location with minimal distractions, simplification of directions, reading of test questions to the child, extension of allotted test taking time, and provision of additional examples. The IEP noted that the child required teacher support to maintain positive behavioral management, and demonstrated limited English proficiency.
After consideration of the child's neuropsychological, audiological, and auditory processing evaluations, the child's IEP was amended by the March 28, 2003 CSE to include the addition of a classroom amplification system or FM trainer unit, as recommended by the district audiologist's report (Tr. pp. 1665-66; Dist. Ex. 2, Parent Ex. C). The CSE noted in its summary sheet that the addition of the classroom amplification system was recommended in lieu of additional speech services, in consideration of the number of pullout services he was already receiving (id.). In support of its recommendation, it summarized the child's services as including academic intervention services (AIS) twice a week, "extra help 2x week", small group reading instruction with the resource room teacher, and Lexia and WYNN program services, in addition to the IEP "mandated" services (id.). I note that the special education teacher testified that AIS was not provided on a consistent basis (Tr. p. 77).
Respondents did not accept the CSE's recommended IEP (Tr. pp. 1666-7; Parent Ex. K). The record reflects that the mother sought an inclusion class with typically developing children because she believed her son to be a normal little boy, notwithstanding his disability (Tr. pp. 1669-70). She believed Crestwood would provide an appropriate reading program, as well as speech-language therapy, and occupational therapy (Tr. 1669-71) in a school environment structured with small classes and a collaborative teaching staff (Tr. p. 1671).
In a letter to petitioner’s CSE chairperson dated April 2, 2003 respondents stated that petitioner was unable to meet their child’s educational needs "as recommended" by the neuropsychologist, a developmental pediatrician, and the Huntington Learning Center (Parent Ex. K). In this letter, respondents stated that they would be placing him at Crestwood as of April 28, 2003, at which time, services would be provided. Respondents concluded by requesting "reimbursement for tuition and all other costs."
By letter dated April 17, 2003, respondents' counsel requested an impartial hearing (Dist. Ex. 25). Respondents' counsel advised petitioner that the parents would be seeking reimbursement for the cost of their son’s tuition at Crestwood for the remainder of the 2002-03 school year and the 2003-04 school year, for the cost of the summer reading tutorial, and for such other and further relief as the hearing officer deemed fit and proper. Respondents' son completed fourth grade at Crestwood during the 2002-03 school year (Tr. pp. 1677, 1750-51) and continued enrollment there for the 2003-04 school year (Tr. pp. 1118-20).
An impartial hearing commenced on June 23, 2003 and concluded on February 24, 2004, after 12 days of testimony. By decision dated June 18, 2004, the impartial hearing officer found that the IEP was not reasonably calculated to "allow the student to receive educational benefit" and petitioner failed to provide the child with a free appropriate public education (FAPE). The impartial hearing officer’s decision noted that a parent may not dictate a particular teaching methodology. However, she concluded that the "ultimate issue" is whether the recommended IEP was reasonably calculated to provide educational benefit. She found the student’s IEP reflected that he has a multi-sensory learning style and is able to acquire information through a consistent multi-sensory approach (Parent Ex. B). She determined that despite the "clear roadmap" provided by evaluations showing a need for intensive reading instruction, the district offered a "potpourri" of programs that weren’t working and resulted in a "fractured and inconsistent program." In addition to finding that the child was offered an inadequate and inconsistent reading instruction, she found that petitioner failed to consider providing the child with resource room services and offered little credible evidence to support a claim of progress. She also concluded that there was inappropriate development and implementation of goals, inadequate speech-language services, and an inadequate showing that the summer program offered to the child was appropriate.
Additionally, the impartial hearing officer determined that with the exception of the parents' failure to meet their burden of proof regarding the appropriateness of the occupational therapy services, the parents had otherwise met their burden to show that Crestwood had provided appropriate educational services. The parents also sustained their burden regarding the reading instruction and speech-language therapy delivered during the summer. The impartial hearing officer further found the related services provided by independent contractors located at Crestwood to be integrated and intertwined with the child’s program, and to have been available to the child only because he attended Crestwood. Equitable considerations were found to favor the parents. The impartial hearing officer ruled on a procedural matter, allowing respondents to amend their hearing request during the course of the hearing while providing petitioner a full opportunity to respond to the amended request. Finally, the impartial hearing officer determined that respondents’ claim for reimbursement for the cost of privately obtained related services was not affected by New York Education Law 3602-c because no services had been requested pursuant to that statute.
Accordingly, the impartial hearing officer ordered petitioner to reimburse respondents for their son's tuition at Crestwood for the 2002-03 and 2003-04 school years, as well as for reading instruction and speech-language therapy services from April 2002 through the end of the 2003-04 school year. Reimbursement for occupational therapy services was denied.
On appeal, petitioner argues that the impartial hearing officer's decision should be annulled to the extent that it did not find the district's program to be appropriate, and found the parents’ unilateral placement of their son at Crestwood to be appropriate, with equities favoring the parents, and ordered tuition reimbursement and the payment of related services to the parents. Petitioner also claims that the impartial hearing officer lacked the jurisdiction to allow respondents to amend their impartial hearing request, during the course of the hearing, to include a request for reimbursement for the cost of the special education services privately paid for by respondents.
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 ; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). To meet its burden of showing that it had offered to provide a free appropriate public education (FAPE) to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the IEP 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 ). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet 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]). As for the substantive program itself, 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 least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401), which is tailored to meet the student's unique needs. A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). State and federal regulations require 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]; 8 NYCRR 200.4[b][ii][b] and [d][i][a]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Question 1).
An IEP must include measurable annual goals, with 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]; 8 NYCRR 200.4[d][iii][a] and [b]). 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]; 8 NYCRR 200.4[d][iii] and [x]).
The impartial hearing officer found that petitioner failed to provide a FAPE to the child. I agree. I also adopt the impartial hearing officer's well-reasoned determination and findings on this issue. The child read at least two years below grade level, and had limited verbal expression, ADHD, a communication disorder which adversely impacted upon his learning, and a rate of progress which was below average in all areas, as indicated on his June 12, 2003 IEP (Ex. 2). The IEP also indicated that the child had a multi-sensory learning style and was able to acquire information through a consistent multi-sensory approach (id.). Evaluations (Dist. Ex. 32 p. 3, Parent Ex. C Neuropsychological Evaluation at pp. 3, 8-12) and testimony from the district's resource room teacher (Tr. p. 345) recommended individualized reading instruction, but respondent continued to provide the same 12:1:1 self-contained classroom without a formal pullout resource room (Tr. pp. 344-45) with the same teacher for first, second and third grades (Tr. p. 766). In fact, the special education teacher stated that the child did not learn well in a whole class setting (Tr. p. 231) and tried to help the parents find someone to teach the child using the Lindamood-Bell or Wilson Method (Tr. p. 248). Although the child received informal reading services (Tr. pp. 73, 336), no such services were indicated on the IEP (Tr. pp. 331, 892; Dist. Ex. 2).
The child received neither an individualized nor consistent reading program. Rather he received several distinct programs provided in an inconsistent, nonsequential manner: the Scott Foresman Basal Reader (Tr. p. 191), the Sing, Spell, Read and Write (Sing and Spell) (id.), and the computer based Lexia and Glass Analysis (Tr. pp. 176-77, 191). Testimony indicated that the Sing and Spell program should be integrated throughout the school day; however, the resource room teacher did not know whether such integration was taking place within the child’s program (Tr. pp. 345-46). Reportedly, the CSE Chairperson concluded that the child's reading program was sufficient, and that a reading program could not be mandated (Tr. p. 998).
I agree with the impartial hearing officer regarding the lack of credible evidence to support a claim of educational progress. The Mini Battery of Achievement (Parent Ex. D) used was administered contrary to protocol to maximize the child's ability to achieve a higher score (Tr. pp. 195-214). Testimony also indicated that the number of goals listed as having been mastered on the Progress Report (District Ex.13) was not accurate (Tr. p. 408).
The speech-language therapist did not expect the child to be able to "catch up to his age level" in the areas tested by the Listening Test (Tr. pp. 464-62; Parent Ex. F), and although he scored in the first percentile, she indicated that he had made progress for his functional level (Tr. pp. 459-462). She directed her services toward language-based deficits (Tr. p. 416), receptive language (Tr. pp. 473-74) and social management skills (Tr. pp. 553), to the exclusion of addressing his labial and lingual incoordination (Tr. p. 467), mild dyspraxia (Tr. p. 467), articulation (Tr. pp. 468-473), phonemic awareness (Tr. pp. 572-73) and other oro-motor deficits (Tr. pp. 468-473).
The record is insufficient regarding the adequacy of the summer school program. I agree with the impartial hearing officer's determination that a summary description of services listed on the IEP (Dist. Exs. 2, 34, 35), and a conclusory statement made by the CSE Chairperson as to the appropriateness of the program did not establish that the district had offered an appropriate summer school program to the child (Tr. pp. 849, 851-52).
The impartial hearing officer was correct in noting that a parent may not dictate a particular teaching methodology. However, the teaching methodology utilized by petitioner resulted in a substantive educational program that was not reasonably calculated to enable the child to receive educational benefits (Rowley, 458 U.S. at 206-07). I find that petitioner did not meet its burden to demonstrate that it offered a FAPE to the student (Application of a Child with a Disability, Appeal No. 95-71; Application of a Child with a Disability, Appeal No. 94-13).
Having determined that petitioner did not provide respondents’ son a FAPE in 2002-03, I must now consider whether respondents have met their burden of proving that the services provided to the student by Crestwood during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, respondents must show that Crestwood offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111).
Petitioner contends that Crestwood is not an appropriate placement for the student because it does not provide special education services for the student (Tr. pp. 1201-02, 1212, 1217-20, 1811; Pet. ¶ 24). However, "[n]either the statutes, nor the decisions construing them hold, or even suggest, that a school must have a program formally designated a ‘special education’ program in order to constitute a proper placement for a student with special needs" (Mathew J. v. Mass. Dept. of Educ., 989 F.Supp. 380, 390 [D. Mass. 1998]; see, e.g., Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 02-018; Application of a Child with a Disability, Appeal No. 98-17).
Crestwood is a private school that integrates both disabled and nondisabled students (Tr. p. 1226; Dist. Ex. 37), and has related services available in speech, occupational therapy, and physical therapy for those students that need them (Tr. p. 1287). Approximately 25% of the students are classified as children with disabilities and receive related services (Tr. pp. 1186, 1287). Crestwood provides a small class setting, modifies the curriculum to meet the child's needs, and individualizes instruction according to the child's ability (Tr. p. 1306; Dist. Ex. 37, Parent Ex. Y). In addition to his inclusion class, the child receives reading instruction (Tr. p. 1118), and speech-language therapy (Tr. p. 653). There is a lack of information in the record regarding the provision of his occupational therapy.
During May 2003, the speech therapist met with the child twice a week and worked with the classroom teacher and resource room teacher to determine the reading targets within their language curriculum (Tr. p. 654). Upon enrollment, the Crestwood speech therapist had had no information regarding the child's oro-motor and speech difficulties (Tr. p. 646). After meeting him, the speech therapist administered the Test of Oral Structures and Functions (Parent Ex. G), ultimately concluding that the right side of the child's face was weak and poorly coordinated, a component of dyspraxia (Tr. pp. 646-48). The speech therapist indicated that this not only affected the clarity of the child's speech, but also his spelling, writing, and reading (Tr. pp. 648-49). In testimony, the speech therapist offered an example of the way in which this disability affected the child's learning: mispronouncing "then" as "den" because of the inability to pronounce the "th" sound, would lead to reading "then" as "den". This affected both the reading and writing modalities (Tr. pp. 648-49).
The speech therapist also conducted the Listening Test to measure the child's listening comprehension; this assessment focuses on components such as listening for the main idea, determining the key points with supporting details, understanding concepts, reasoning, and story comprehension (Parent Ex. F; Tr. pp. 650-52). The child scored overall in the first percentile, and, as a ten-year-old boy, received an age equivalent score of six years old (Parent Ex. F; Tr. p. 652). The speech teacher placed him on the Earobics program, software for children with auditory processing disorders (Tr. pp. 657-58). This program focuses on processing memory in terms of phonological awareness, following directions, processing, listening, and background noises, a great concern for the child (Tr. p. 658). The speech teacher, the classroom teacher and the resource room teacher discussed the relationship between the Wilson Method, which the classroom teacher utilized, and Earobics, and jointly decided what would be presented to the child (id.). The speech therapist also initiated oro-motor exercises to the child to strengthen his oral musculature and worked on sequential activities to improve his oral sequencing ability (Tr. p. 654).
The Crestwood principal testified that when the child entered Crestwood, he was reading at approximately a first grade level, showed signs of withdrawal, suffered from diminished self-esteem, did not understand basic math facts pertaining to addition and subtraction, had deficient organizational skills, was not capable of writing a paragraph independently, and could not spell (Tr. pp. 1303-04). She has observed the child making meaningful academic and social progress at Crestwood, from the time that she met him until the present time (Tr. p. 1253). She indicated that he has come a long distance in mathematics (Tr. pp. 1262-63). She testified that he had come from a setting where he was not "flourishing" and now was in a setting where he was flourishing and learning in a short period of time (Tr. pp. 1267-68).
The Crestwood classroom teacher stated that the child entered Crestwood as almost a nonreader (Tr. p. 1337). This was affirmed by the resource room teacher (Tr. p. 1120). He was very shy, would not interact with the children very much, and would not ask for directions (Tr. p. 1340). The classroom teacher immediately began using a reading program (Tr. pp. 1338-39) that involved a very structured, step-by-step, multi- sensory approach to language (Tr. pp. 1341-42). This approach was chosen because the classroom teacher had been made aware that it had been recommended for the child (Tr. p. 1420). Although he wasn't able to write any sentences at that time, the classroom teacher required the child to review short vowels, complete sentence dictation, and work with simple reading passages and spelling words (Tr. p. 1339). She spent individual time with him while the rest of her class was completing independent work (Tr. pp. 1339-40). Initially, the classroom teacher also worked with him on simple mathematics (Tr. p. 1339).
After the child spent a week or two at Crestwood, the child's demeanor had completely changed (Tr. p. 1340); the classroom teacher testified that he was joking around, playing sports with the children, requesting help, asking what specific words were, and inquiring as to what he should do next (id.). She continued to instruct him three days a week over the course of the summer (Tr. pp. 1340-41) and noticed a great deal of change (Tr. p. 1341). By the third week of August, the child was reading chapter books (Tr. p. 1341), books with full pages of reading (Tr. p. 1343). The child also studied written language skills during the summer (Tr. pp. 1343-44, 1418). He learned the sequencing of language through writing what was dictated to him, and wrote on his own sentences without dictation (Tr. pp. 1343-44). At that time, the record reflects that the child was progressing very well (Tr. p. 1344).
The resource room teacher instructed the child for approximately one-half hour per day in May 2003 (Tr. p. 1110). She testified that in May 2003 the child appeared to be ashamed that he could not read (Tr. p. 1111). She informally assessed his reading ability by asking him to identify words from the Dolce Sight Word List of the 220 most common sight words that appear in children's literature, trade books, and the like (Tr. p. 1111). He could read "the", "this", and "that", in essence, fewer than ten words (id.). Using a very sequentially presented, multi-sensory approach (Tr. pp. 1113-15), the resource room teacher coordinated the use of her materials with the classroom teacher (Tr. p. 1114-15). The resource room teacher would present the words on index cards, and complete sentence readings and word definitions with the child (Tr. p. 1115). Then, the materials would be taken to the classroom for follow-up by the classroom teacher in subject predicate, writing, handwriting, and spacing of words (id.). The child responded enthusiastically, remembering his materials, practicing, and complying with instructions (Tr. p. 1117). In addition, the resource room teacher testified that the child was able to retain things; for example, if he could remember to place his index finger between words after his initial direction to do so (id.).
Respondents have also met their burden of proving that the speech-language and reading services offered to the student at Crestwood during the 2002-03 school year and summer program were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57).
However, despite finding that respondents have met their burden with regard to the appropriateness of the speech-language and reading services received by their son, I must agree with the impartial hearing officer that respondents did not satisfy their burden regarding the appropriateness of the occupational therapy services provided, based upon respondents’ failure to offer testimony regarding these services (IHO Decision p. 27). Under these circumstances, without evidence of the specific nature and cost of the services, or of who ultimately paid for the services allegedly obtained by the parents for the child, I am unable to make a determination on an award for reimbursement of the privately obtained occupational therapy services (Application of a Child with a Disability, Appeal No. 03-067; Application of the Bd. of Educ., Appeal No. 99-65 [reimbursement for speech services is denied where the record contains no specific evidence of the services beyond a list of dates when the services were allegedly rendered]; Application of a Child with a Disability, Appeal No. 94-18 [the absence of sufficient information in the record about the child's evaluations and private services precludes any consideration of petitioners' claim for reimbursement for such examinations and services]; see Application of a Child with a Disability, Appeal No. 02-041 [reimbursement denied when there is no basis in the record to ascertain the appropriateness of the services]; Application of a Child with a Disability, Appeal No. 97-71 [where only an amount for services is given, absent further information about the services provided to the child, there is no basis for considering a parent's claim for reimbursement]).
Accordingly, and on the basis of all the above, I concur with the impartial hearing officer and find that respondents have met their burden of demonstrating the appropriateness of the program at Crestwood. By doing so, they have prevailed with respect to the second criterion for an award of tuition reimbursement and speech-language and reading services for their son's attendance at that school for the spring semester of the 2002-03 school year.
The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist, 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 ). In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim tuition reimbursement.
I find no evidence that the parents failed to cooperate with the CSE. Accordingly, I agree with the impartial hearing officer and find that equitable considerations support the award of reimbursement for tuition and related services for the portion of the 2002-03 school year that the child attended Crestwood and for summer tutoring.
I now turn to a discussion of the 2003-04 school year program. The child remained at Crestwood for the 2003-04 school year. According to petitioner, the CSE meeting for the child's fifth grade year took place on June 12, 2003, at which time IEPs for both the end of the 2002-03 and the 2003-04 school years were generated (Dist. Exs. 2, 15). The IEP for the 2003-04 school year reflects that the same 12:1:1 12 month program offered to the child for the 2002-03 school year was being offered to the child again, with the exception of an additional speech therapy session to address the use of the FM trainer offered to the child (Tr. pp. 842-43). For the reasons discussed above, the district program remained inappropriate for the 2003-04 school year. Because petitioner's IEP was not reasonably calculated to enable the child to receive educational benefits (Rowley, 458 U.S. at 206-07), I find that petitioner did not meet its burden to demonstrate that it offered a FAPE to the student for the 2003-04 school year (Application of a Child with a Disability, Appeal No. 95-71; Application of a Child with a Disability, Appeal No. 94-13).
Having determined that petitioner has not met its burden of demonstrating that it had offered to provide a FAPE to the student during the 2003-04 school year, I must now consider whether respondents have met their burden of proving that the services provided to the student by Crestwood during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57).
The Crestwood principal testified that the fifth grade classroom teacher used techniques in the classroom characterized as special education techniques and that the child has made meaningful progress in every level of functioning (Tr. p. 1307). She further testified that the child can write a paragraph independently and is on the third grade reading level (Tr. pp. 1304-05). The child interviewed a visiting international student and wrote an article in the school newspaper about the interview (Tr. pp. 1242-43). He is able to interact with his peers properly (Tr. pp. 1304-05) and shows no signs of deficient self-esteem (Tr. pp. 1304-05). He is also able to organize himself within the classroom (Tr. pp. 1304-05).
For the 2003-04 school year, the speech therapist provided services three times a week, as per his 2003-04 IEP (Tr. p. 655). She met and coordinated with the classroom and resource room teachers on a frequent basis and tried to select clusters of sounds to mirror the material being covered (Tr. pp. 659-660). His therapy included what the speech therapist describes as one-on-one oro-motor group therapy, wherein the child was paired with another student, alternating computer and oro-motor work on an individual basis with the speech therapist (Tr. pp. 655-56). He also received small group speech therapy, which addressed his language processing, semantic language, pragmatics, oro-motor needs, articulation, and central auditory processing needs (Tr. p. 657).
The child has made good progress within the oro-motor area, producing bilabial sounds, and exhibiting increased oral tone and coordination (Tr. p. 660). He can produce the "th" sound in all motions and words (id.). He is working on multi-syllabic words derived from the reading curriculum in order to reinforce reading and oral sequencing (Tr. p. 661). In a structured setting, he can use the memory strategies of chunking and verbal rehearsal (id.). His processing has improved and he is more verbal (Tr. p. 661-62). His hand is up in class and he is willing to take risks, as opposed to his prior very passive demeanor (Tr. p. 662).
The fifth grade classroom teacher at Crestwood testified that the child is instructed with an entirely individualized program. (Tr. p. 1411). She also works with him on his "words" on a daily basis for between 30 minutes and one hour a day, while the other students are doing some independent work (Tr. pp. 1345-46). She uses this multi-sensory approach throughout the day and integrates it into the social studies and science curriculum, using hands on projects (Tr. pp. 1348-50).
The child is writing sentences independently (Tr. p. 1381) and can diagram sentences (Tr. p. 1357). He can read compound and multi-syllabic words, and identify all initial consonants, as well as blends and digraphs (Tr. p. 1358). Since September, his recall of details from reading passages has been over 80 percent (Tr. p. 1456). He is excelling in spelling and is anticipated to perform as well or better on the next report card (Tr. pp. 1359-60). The child is using a different mathematics program than the rest of the class (Tr. p. 1355). He is performing addition and subtraction operations up to hundred-thousandths with regrouping, and renaming. He can multiply using three and four digits multiplied by one digit and just started double-digit multiplication (Tr. p. 1354). For reading, mathematics, and language arts, the child is retaining almost 100 percent of the material (Tr. p. 1494).
The child sits close to the blackboard to address visual perceptual and conceptual problems and has no visual perception problems when he is reading or writing (Tr. p. 1444). He no longer skips lines or words, and leaves appropriate spaces between his words (id.). The child has never left an assignment incomplete, nor been unable to continue with a lesson (Tr. p. 1407). He is involved with extracurricular activities, such as basketball (Tr. p. 1356).
During the 2003-04 school year, the resource room teacher resumed the daily one-half hour reading services from September to October 2003, but by December 2003, she increased the duration of service to one hour daily (Tr. pp. 1117-18). Her testimony affirmed much of the testimony from Crestwood staff discussed above (Tr. pp. 1117-1119, 1122).
When the resource room teacher re-administered the Dolce Sight Word List, the child was able to read 197 out of the 220 sight words tested, or 89% accuracy (Tr. p. 1121). At the time of her testimony in December 2003, the resource room teacher indicated that the child had made extraordinary progress, having already gained approximately two years in a matter of a few months (Tr. p. 1123). She attributed this success to the child's immersion in the Wilson Method reading program; this system was used exclusively and in a coordinated fashion amongst the Crestwood staff and with the parents at home (Tr. pp. 1123-24, 1411, 659-660). Not only was one method used, it was sequential and consistent down to the size of the print selected (Tr. pp. 1150-51). The resource room teacher concluded that the child was both unique and unusual: unique in the sense that he came to Crestwood as a fourth grade student who could not read and then made such fast progress, and unusual because he progressed easily to that level in such a short time frame (Tr. p. 1148-49).
I find that the fifth grade program at Crestwood during the 2003-04 school year addressed the student's management, academic, physical, and social needs through an individualized, and well-integrated program. Accordingly, and on the basis of all the above, I concur with the impartial hearing officer and find that respondents have met their burden of demonstrating the appropriateness of the program at Crestwood; respondents have prevailed with respect to the second criterion for an award of tuition and related services reimbursement for their son's attendance at that school for the 2003-04 school year.
The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. I find no evidence that the parents failed to cooperate with the CSE (Tr. p. 1679). Accordingly, I agree with the impartial hearing officer and find that equitable considerations support the award of reimbursement for tuition and related services, as specified, at Crestwood for the 2003-04 school year. I find that respondents are entitled to reimbursement for their son’s tuition at Crestwood for the 2002-03 and 2003-04 school years and for speech-language therapy services and reading instruction services from April to June of the 2002-03 school year, for summer 2003, and for the 2003-04 school year, upon respondents’ submission to petitioner of proof of such payment.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
September 13, 2004
PAUL F. KELLY