The State Education Department
State Review Officer

No. 04-051

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the West Hempstead Union Free School District

 

 

Appearances:
Educational Advocacy Services, attorney for petitioners, Emil J. Sanchez, Esq., of counsel

 

Guercio & Guercio, attorney for respondent, John P. Sheahan, Esq., of counsel

 

 

DECISION

 

            Petitioners appeal from the decision of an impartial hearing officer, which denied their request to be reimbursed for their son’s tuition costs at the Communities Acting to Heighten Awareness and Learning (“CAHAL”) program at the Hebrew Academy of Long Beach (HALB) for the 2003-04 school year.  This appeal must be dismissed.

 

            Initially, I must address a procedural issue.  Respondent maintains that this appeal is untimely, claiming that the petition was not served within 35 days from the date of the impartial hearing officer’s decision (Answer ¶26; Memorandum of Law pp. 18-19; see 8 NYCRR §279(2).  The impartial hearing officer’s decision is dated June 10, 2004.  Petitioners personally served respondent with a Notice of Intent to Seek Review on July 13, 2004.  Thereafter, on July 29, 2004, petitioners personally served respondent with a Notice of Petition and Petition for Review.  The Petition for Review was not served in a timely manner.  An untimely petition, however, can be excused for good cause shown. (Application of a Child with a Disability, Appeal No. 03-096; Application of a Child with a Disability, Appeal No. 03-005; Application of a Child with a Disability, Appeal No. 97-18)

 

Part 279.2(b) of the Regulations of the Commissioner of Education, as amended and effective January 1, 2004, provides that:

 

[t]he petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed.  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the…35-day period.

 

Part 279.2 of the Commissioner's regulations anticipates that an impartial hearing officer's decision will be mailed to the parties within a day or two of the date of the decision.  Here there is a dispute as to whether petitioners received a copy of the impartial hearing officer’s decision by mail in a timely manner.  Petitioners maintain that they were not made aware that a decision had been issued until their counsel was faxed a copy of the decision by counsel for respondent on June 22, 2004  (Pet. ¶ 3).  Respondent, as part of its answer, submitted an undated affirmation by the impartial hearing officer asserting that he mailed his decision to counsel for both parties on June 10, 2004.  Petitioners, in reply, have submitted an affidavit from an administrator in their counsel’s office, who claims responsibility for checking the office mail, stating that she never received the decision. I find both the impartial hearing officer and administrator credible on this issue.  I conclude that the decision was timely mailed but not delivered in a timely manner and that petitioners did not receive it until June 22, 2004.  Furthermore, petitioners assert (Pet ¶ 4) that they relied to their detriment on erroneous information contained in the decision advising of timelines in which to appeal the impartial hearing officer’s decision (IHO Decision p. 36).  The decision advises petitioners of timelines for initiating an appeal that had been repealed by the January 1, 2004 amendments to Part 279. Prior to the 2004 amendments, Part 279 provided that “[t]he petition for review shall be served…within 40 days of receipt of decision sought to be reviewed” (IHO Decision p. 36).  Although this is no longer the applicable standard for determining timeliness of a petition for review, petitioners complied with the improper standard as they were advised to do by the impartial hearing officer’s decision.  Here, petitioners served their petition 37 days after they received the decision on June 22, 2004.  I will exercise my discretion and excuse the failure to serve the petition within 35 days from the date of the decision because of the significant delay in petitioners’ being provided a copy of the decision and because petitioners relied to their detriment on an erroneous notice provision contained in the decision (Application of a Child with a Disability, Appeal No. 04-060).

 

            At the time of the hearing in this matter petitioners’ son was 13 years old and enrolled in a combined sixth/seventh grade class in the CAHAL program at HALB.  The CAHAL program has not been approved by the New York State Education Department as a program with which districts may contract with to serve students with disabilities.

 

His eligibility for special education programs and services as a student determined to be other health impaired (OHI) is not in dispute (see 8 NYCRR 200.1[zz][10]).  The student has reportedly been diagnosed with an attention deficit disorder and attention deficit hyperactivity disorder (Dist. Exs. 23, 24; Tr. pp. 232, 586) and has difficulty attending (Tr. p. 469).  The student’s parents report that in addition to ADHD their son has been diagnosed with obsessive-compulsive disorder (OCD) and his private psychologist has suggested the possibility of a pervasive developmental disorder (PDD) (Tr. pp. 232-33, 586-87).   The student functions cognitively in the low average to borderline range as measured by IQ testing (Dist. Ex. 3). The student’s teacher suggests the student is capable of doing grade level work, but at a slower place and with modifications (Tr. pp. 480, 505; see also Tr. p. 347).  The student scored primarily in the average range on an individual achievement test administered by the district in 2002 (Dist. Ex. 8; Tr. pp. 103, 148) but performed less well on a group achievement test administered at CAHAL the following year (Parent Ex. F; Tr. p. 421).  The student displays academic strengths in spelling and reading (Dist. Exs. 3, 4; Tr. p. 466).  He has difficulty with Math and reading comprehension (Dist. Exs. 3, 8; Tr. pp. 45, 467, 469, 476-79).  The student is described as a concrete or literal thinker who has difficulty with abstraction and higher-level thinking skills (Dist. Exs. 3, 8; Tr. pp. 45, 236, 467).  The student experiences anxiety in large group and interpersonal settings (Tr. pp. 56, 57, 207, 237, 382).  He is highly motivated but his compulsivity interferes with his work pace (Dist. Ex. 3; Tr. pp. 40, 344).  Although improved, the student continues to demonstrate difficulty with peer interactions, decision-making and transitions (Dist. Exs. 4, 10; Tr. pp. 344, 471-73). 

 

            The record contains a brief sketch of the student’s early educational history.  As a toddler the student exhibited speech and language delays (Tr. pp. 232, 586) and reportedly attended a preschool special education program for two years (Parents Ex. L, Dist. Ex. 3).  As the student grew older attending and learning difficulties became evident and around age five he was diagnosed with an attention deficit disorder (Tr. pp. 232, 586).  The student attended kindergarten at the South Shore Yeshiva and then repeated kindergarten at the Hebrew Academy of the Five Towns and Rockaway (HAFTR) (Parents Ex. L).  According to the student’s parents, in first or second grade it was determined that he could not keep pace with the mainstream class (Tr. pp. 232, 235, 601).  The student began receiving services through the CAHAL program in 1996 (Parents Ex. L).  CAHAL is a special education program that provides services to students in Jewish day schools. 

 

Petitioners have had prior impartial hearings regarding special education services offered to their son by respondent.  In Application of a Child with a Disability, Appeal No. 01-102, issued September 23, 2002, the petitioners were awarded tuition reimbursement for the 2000-01 school year (Parents Ex. L).  For the 2001-02 school year, a settlement agreement was reached in which respondent paid a portion of the student’s tuition at HAFTR (Dist. Ex. 21).  For the 2002-03 school year an impartial hearing officer found that the parents prevailed on all three criteria for an award of tuition reimbursement and ordered that the parents be reimbursed by the district.  The decision, rendered September 30, 2003, was not appealed (Parents Ex. K).

 

The current appeal involves the recommendations for the 2003-04 school year made by a Committee on Special Education (CSE), which met on May 22, 2003 (Dist Ex. 4).  The written individualized education program (IEP) indicates that the CSE considered the following reports that had been previously reviewed by the committee: February 15, 2002 psychological evaluation; January 17 2002 medical health records; January 28, 2002 educational evaluation; January 31, 2002 social history; October 16, 2002 functional behavioral assessment; and October 22, 2002 behavior intervention plan (id.).  In addition, the following new reports generated after the last CSE meeting were considered by the committee for the first time: a May 1, 2003 speech language evaluation; February 4, 2003 classroom observation; February 19, 2003 teacher report; and a February 4, 2003 vocational assessment.

 

According to psychological testing conducted in January 2002, the student’s full scale IQ as measured by the Wechsler Intelligence Scales for Children –III (WISC-III) was in the Borderline range of intellectual functioning (SS 78) (Dist. Ex. 3).  The psychologist noted a significant difference between the student’s verbal (SS 88) and performance (SS 73) IQ scores.  Although the psychologist noted growth in the student’s general fund of knowledge, the student demonstrated significant delays on tasks requiring active mental concentration and perceptual motor analysis and synthesis skills.  The student’s conceptual thinking was described as “limited” and “indicating a concreteness of thought”.  The student had difficulty applying nonverbal reasoning skills and understanding spatial relations.  The psychologist described the student’s ability to think in terms of cause and effect “immature”. 

 

According to the psychologist, on measures of projective testing the student conveyed a “sense of feeling vulnerable and overwhelmed by his environment.” (District Ex. 3).  As reported by the psychologist three of the student’s responses on the Behavior Assessment System for Children (Self-Report) “warranted further attention.”  The student’s Math calculation skills were delayed, as were his expressive and receptive language skills.

 

Achievement testing conducted in January 2002 revealed academic strengths in spelling and decoding (Dist. Ex. 8).  However, the student performed poorly on the ‘passage comprehension’ subtest of the Woodcock Johnson III Tests of Achievement leading the evaluator to suggest that the student “would have difficulty with longer tasks that require independent work requiring understanding, abstracting information and analyzing written material with regard to summaries, inferences and drawing conclusions, etc.”  The student also experienced difficulty on the reading vocabulary subtest, which required him to supply a synonym or antonym to a given word.  The student’s writing sample revealed expressive language weaknesses and “reflected errors with misplaced phrases, awkward word usage, and difficulty with higher level concept abstractions such as comparative analysis, etc.”  The evaluator also noted weaknesses in the student’s ability to perform basic Math calculations and his ability to solve word problems.  With the exception of the reading comprehension cluster score all standard scores were within the average range. 

 

            The committee considered a classroom observation of the student in his CAHAL program, as well as reports from the student’s teachers  (Dist. Exs. 1, 5, 6, 7; Tr. pp. 77, 143, 175-76).  According to a checklist completed by the district’s school psychologist during his February 2003 observation, the student demonstrated mostly on-task behavior, attended well and participated appropriately during a structured reading class (Dist. Ex. 1). Three CSE evaluation forms completed by CAHAL staff are included in the record.  The student’s computer teacher indicated that the quality of the student’s work was excellent, as was his effort; that he worked independently and completed his work; that his behavior was good and he had good peer relationships (Dist. Ex. 5).  The student’s general studies teacher completed two CSE evaluation forms, one in February 2003 and one three months later in May 2003 (Dist. Exs. 6, 7).  On the earlier form the teacher indicated the student was working up to his capacity, while in May 2003 she indicated he was not.  On both forms she reported that the quality of the student’s work was excellent, as was his effort.  The student could follow directions if they were repeated and rephrased and sometimes he was able to work independently.  The student’s in class behavior was described as good.  He reportedly had good peer relationships.  On the February report the teacher noted that the student worked slowly and deliberately which interfered with his ability to complete his work.  She also reported the student would get stuck and be unable to proceed (Dist. Ex. 6).  In May the teacher noted that the student had weaknesses in distractibility, Math, writing and abstract thinking (Dist. Ex. 7).

 

A February 2003 addendum to the student’s CAHAL report card indicated that he was making progress in language arts and performing well in Science and History (Parents Ex. I).  The student was reportedly making slow and steady progress in Math, where he benefited from small group instruction.  The report noted that the student’s participation in co-curricular subjects had improved since they had been modified.  The student attended gym class once a week but he could bring what he wanted with him and was not required to participate.  The teacher stated that the student “continued to inch his way forward in the social realm.”

 

The CSE considered a medical report from January 17, 2002.  Two reports from that date are in evidence.  The CSE chair could not remember which report the committee considered (Tr. pp. 166, 169).

 

A speech evaluation was completed in May 2003 (Dist. Ex. 10).  At the time of the evaluation the student was receiving 1:1 speech therapy two times/week for 45 minutes.  Therapy sessions focused on improving pragmatic language, understanding figurative versus literal language, developing decision-making abilities and expanding creative writing.  Over the course of the year the student reportedly demonstrated more relaxed body language and more appropriate volume when speaking.  According to the therapist the student demonstrated minimal progress in creative writing.  The student had difficulty participating in school activities, such as the Science fair.  The therapist opined that the student’s day-to day functioning was higher than results of formalized testing would suggest.  The Language and Communication Profile was used to assess the student’s language in terms of content, structure and use.  According to this assessment, the student’s most significant area of weakness involved peer interactions.  The therapist reported that the student would tell immature jokes and laugh inappropriately.  His responses were tangential.  The student had difficulty adapting when directives were altered.  The therapist indicated that the results of the student’s communication profile “may suggest the need to consider his psychosocial development.”  The therapist noted that despite years of speech therapy the student continued to demonstrate pragmatic language deficits that interfered with his academic and social progress.

 

The May 22, 2003 CSE changed the student’s classification to OHI based on his deficits in attending and socialization, as well as his obsessive-compulsive behaviors (Dist. Ex. 4).  The CSE recommended placement in the district’s special class/inclusion program at the West Hempstead Middle School.  In addition, the student would attend a 15:1 self-contained support class one period/day and receive individual counseling one period/week.  Program modifications included a positive reinforcement plan. The IEP noted that the student required assistance to attend to classroom activities.  Testing accommodations included extended time, alternate setting, use of calculator and directions explained.  The student’s speech therapist recommended that speech services be discontinued, a recommendation that was supported by the other committee members including the petitioners (Tr. pp. 29-30).  Psychological counseling was substituted for speech therapy as committee members determined it to be more appropriate (Tr. pp. 28, 395-96).  

 

The IEP noted that the student’s cognitive abilities fell in the low average to borderline range (Dist. Ex. 4).  The student had difficulty with Math and his language pragmatics were “significantly compromised”.  He required structure and routine.  The IEP reflected the student’s weaknesses in attending and organization, as well as the fact that he had difficulty adapting to large groups.  A functional behavioral assessment and behavioral intervention plan were attached (Dist. Ex. 4).  Meeting minutes indicated that the behavior plan developed for the 2002-03 school year continued to be appropriate and would be implemented during the 2003-04 school year.  The functional behavioral assessment identified three behaviors requiring intervention: the student was unable to make a decision when confronted with two or more alternatives, the student was unable to accept changes in routine, the student refused to attend physical education class.  The behavior plan identified target behaviors, expected outcomes and interventions to be used, as well as assigned responsibilities. 

 

In the spring of 2003 the student was administered the Stanford Achievement Test Series, Ninth Edition administered (Parents Ex. F; Tr. p. 367).  His scores on reading subtests fell primarily within the average range.  However, the majority of the student’s Math scores on measures of problem solving and computation were below average.  With the exception of spelling, all of the student’s grades on the language subtests were below average.  On the ‘listening’ content cluster the student performed below average on measures of functional listening and critical analysis, among others.  These scores are not reflected on the student’s IEP and may not have been available for the CSE to consider.

 

The student’s sixth grade report card generated in June 2003 reflected final academic grades of 100 in spelling and 89 in Math (Parents Ex. G).  According to the student’s teacher, these number grades were not equivalent to number grades given in the mainstream program (Tr. p. 373, 515).  The student’s remaining academic classes were not graded. 

 

By letters dated June 17, 2003, the parents were apparently notified in writing of the CSE’s recommendations, Board of Education approval of the proposed program, and the parents due process rights (Dist. Ex. 13, 14, 15, Tr. p. 248).  In late September 2003 the student began school in the CAHAL program at HALB (Tr. p. 706).  According to his class schedule on Monday through Thursday from 8:15 a.m. to 1:30 p.m. the student participated in religious studies (Dist. Ex. 18).  The student received academic instruction from 1:30 p.m. to 5:00 p.m.  On Fridays the student received one hour of academic instruction.

 

In October 2003 the student’s father made an appointment and visited the proposed inclusion program in the district’s West Hempstead Middle School (Tr. pp. 617, 672).  The student’s father testified that he found the program to be inappropriate due to the number of students in the class, the number of distractions in the class and the pace of instruction (Tr. pp. 249, 620, 623, 625, 682).  On October 23, 2003 the parents requested an impartial hearing asserting that respondent failed to offer their son an appropriate special education placement for the 2003-04 school year (Dist. Ex. 20). 

 

In November 2003 the student’s CAHAL teacher developed an individualized student plan and student goals for the 2003-04 school year (Tr. pp. 358-62; Dist. Ex. 19).  The plan indicated that the student would receive individual counseling once/week for 30 minutes.  Classroom modifications included preferential seating and behavior modification to address calling out and impulsivity.  Test modifications included time extended (1½), rest periods to complete tests, testing in small group, direction read and/or explained and use of a calculator. 

 

            By January 2004 the student had reportedly mastered the following skills outlined in his CAHAL plan:  solving basic algebraic equations; solving equations with negative integers; giving directions to explain a process; and comparing, contrasting and locating information within text (Dist. Ex. 19).  The student was reported as having difficulty with solving two-step word problems of increasing complexity, comprehending basic integers, working independently in Math, writing on imaginative topics that weren’t necessarily true, using creativity in written work, writing three details to support each main idea, interacting with peers appropriately in a mainstream setting, increasing ability to perceive things from another’s point of view, ignoring distractions from peers, behaving appropriately under stress and beginning class work independently.  The student’s instruction was provided using seventh grade texts, with the exception of Science in which a sixth grade text was employed (Dist. Ex. 19A).  A report card from December 2003 indicated that the student was receiving the following academic grades:  Spelling 99, Language Arts 98, Mathematics 90, Science 90, Social Studies 100 (Parents Ex. H).  The student’s teacher indicated there was no relationship between these grades and the mainstream grading system (Tr. pp. 417, 515).  In January 2004 the student began attending a mainstream language arts class at HALB on a trial basis.  In addition, the record indicates that the student successfully presented a science fair project in front of an audience full of students (Tr. pp.260-62), he recited portions of the Torah in front of a congregation (Tr. 291) and he went on a teen tour, spending eight full weeks away from family, without incident (Tr. pp. 653-55).

 

            The impartial hearing was held on four days, beginning on March 2, 2004 and concluding on April 22, 2004. The impartial hearing officer rendered his decision on June 10, 2004 finding that respondent had offered a free appropriate public education (FAPE) for the 2003-04 school year in the least restrictive environment, that the private school placement was inappropriate, and that the equities balanced in favor of respondent. Accordingly, the impartial hearing officer denied petitioners request to be reimbursed for tuition costs for the 2003-04 school year.  Petitioners appealed, asserting that the impartial hearing officer erred in making his determinations.

 

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 [1993]).  The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

 

            To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  The 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 student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            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).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1).

 

            With respect to the first criterion for an award of tuition reimbursement, respondent bears the burden of demonstrating that it offered an appropriate program.    The student functions cognitively in the low average to borderline range as measured by IQ testing (Dist. Ex. 3). The student’s teacher suggests the student is capable of doing grade level work, but at a slower place and with modifications (Tr. pp. 480, 505).  The student experiences anxiety in large group and interpersonal settings (Tr. pp. 56, 57, 207, 237, 382).  He is highly motivated but his compulsivity interferes with his work  (Dist. Ex. 3; Tr. pp. 40, 344), and he has difficulty attending (Tr. p. 469).  Although improved, the student continued to demonstrate difficulty with peer interactions, decision-making and transitions (Dist. Exs. 4, 10; Tr. pp. 344, 471-73). 

 

The student’s IEP listed the following programs and services:  15:1 special class for one 42- minute period/day and individual counseling one time weekly for 30 minutes (Dist Ex. 4).  The IEP recommended placement in the district’s special class/inclusion program at the West Hempstead Middle School.  According to the IEP “the inclusion program consists of a general education teacher with a consistent special education teacher or teaching assistant.  One period of academic support is provided to the special education students to support the general education curriculum.”  The student’s IEP indicated that the student required a positive reinforcement plan and assistance in attending to classroom activities.  Testing accommodations included extended time (1½), alternate setting, use of a calculator, directions explained and special location.  The IEP noted that the student required special instruction with a small student-to-teacher ratio and minimal distractions.  An occupational therapy evaluation was recommended. IEP goals and objectives addressed the following areas:  study skills including organization, the use of reference materials, attending, and transitioning; reading comprehension; written expression; Mathematical problem solving; and social emotional skills addressing self-awareness and socially acceptable behavior.  Attached to the IEP was a functional behavioral assessment (FBA) and behavioral intervention plan (BIP). 

 

When making its recommendation, the CSE relied on testing results, reports from the student’s teachers at CAHAL, a classroom observation by the school psychologist and input from the student’s parents and teacher (Tr. pp. 143, 175).  The CSE chairperson testified that the majority of the student’s progress during the 2002-03 school year had been in transitioning, understanding social cues and participating in the classroom (Tr. p. 144).  The decision to recommend an inclusion class for the student was based in part on the student’s social and behavioral progress (Tr. p. 210).  However the chairperson noted the student’s needs in all domains were considered (Tr. pp. 210, 174-75). 

 

The student’s father testified that he and his wife were generally in agreement with the district’s IEPs “because they are the result of a collaboration between the West Hempstead School District, between CAHAL and between my wife and myself” (Tr. p. 607).  He noted that is was the recommended placement that he did not accept.

 

The school psychologist opined that the inclusion class would address the student’s anxiety related to large group settings, assist the student with attending and focusing, address the student’s frustration tolerance and help maintain the academic growth exhibited by the student (Tr. p. 57).  He further indicated that the psychological counseling recommended by the CSE would address the student’s anxiety and improve his social skills (Tr. p. 56).  The psychologist stated that the inclusion program was appropriate because it provided increased staffing; a high degree of input from the school psychologist and the curriculum was modified and individualized (Tr. pp. 61, 81).  According to the district’s special education teacher, separate notes, handouts, modified tests, and small group teaching was all typically part of the inclusion class (Tr. p. 96).  She reported that it would be typical for a child in the inclusion class to need tasks broken down, and vocabulary previewed.  The teacher explained how IEP goals addressed the student’s attending deficits (Tr. p. 109).  The CSE chairperson noted that based on testing the student’s academic skills fell in the average range.  She asserted that the inclusion classroom would provide the student with an appropriate academic setting (Tr. p. 153).  In addition she reported that his behavior plan would be implemented by the special education teacher or teaching assistant.  The school psychologist would be able to provide support for the student on an as needed basis.  In addition the chairperson noted that through the recommended counseling sessions the psychologist could work with the student on peer interactions, taking risks, and transitioning (Tr. p. 157). She confirmed that the inclusion class could provide the student with the recommended testing accommodations (Tr. p. 159). 

 

            The record contains a class profile of students attending the recommended inclusion class (Dist. Ex. 9).  Full scale IQ scores for the nine students range from 69-115, reading grade equivalents range from 2.0 to 5.0 (with two student’s grade equivalents unknown), and Math grade equivalents range from 1.7 to 4.8 (with one unknown).  The middle school psychologist testified that all of the student’s were in the seventh grade (Tr. p. 126).  The psychologist stated despite the range in test scores the students were performing functionally within three years of each other.  The CSE chairperson opined that the student was a good match for the proposed class in terms of academic, social and management needs (Tr. pp. 158-59).  

 

            Based on the record, I concur with the impartial hearing officer that the respondent demonstrated that it offered an appropriate program.  Having determined that the challenged IEP was adequate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year, petitioners are not entitled to tuition expenses, and I need not reach the issue of whether or not the private placement was an appropriate placement; the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak., 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

 

            I have considered petitioners' remaining contentions and find them to be without merit.

 

 

            THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

October 13, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER