Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Lincoln Square Legal Services, Inc., attorney for petitioner, Beth G. Schwartz, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request for prospective payment of tuition costs at the Sterling School (Sterling) for her daughter for the 2004-05 school year. The appeal must be dismissed.
At the time of the hearing on July 7, 2004, petitioner's daughter was 11 years old (Parent Ex. KK) and had completed fourth grade (Tr. pp. 22, 72) at P.S. 160 (Parent Ex. II at p. 13). The student’s classification as a student with a learning disability (LD) is not in dispute (Parent Ex. II at p. 16; see 8 NYCRR 200.1[zz]). Sterling is a nonpublic school for children with language-based learning disabilities (Parent Ex. II at p. 128). Sterling has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities.
A comprehensive neuropsychological and psychoeducational evaluation of the student was conducted in March 2003 (Parent Ex. N). Administration of the Stanford Binet Intelligence Scale - Fourth Edition (Stanford Binet) yielded a test composite score of 95, which is in the average range of cognitive functioning (Parent Ex. N at p. 8). The student's performance on subtest scores indicated a relative weakness in short-term memory (Parent Ex. II at p. 78; Parent Ex. N at p. 8). The evaluator reported that the student's performance on assessments of her reading and her language processing skills met the criteria for diagnosis of a reading disorder and also offered a diagnosis of a disorder of written expression (Parent Ex. N. at p. 10). This psychologist subsequently confirmed the diagnosis of a reading disorder by re-evaluation in April 2004 (Parent Ex. BB). In July 2003, a treating psychiatrist (Parent Ex. II at p. 21) confirmed the student's diagnoses of a reading disorder (Diagnostic and Statistical Manual of Mental Disorders Fourth Edition [DSM-IV] classification code 315.00) and a disorder of written expression (classification code 315.2) (Parent Ex. C). In June 2003, a speech language pathologist evaluated the student and identified moderate difficulties in receptive language, moderate-severe deficits in expressive language, and significant deficits in phonological awareness and reading skills (Parent Ex. H at p. 3). Petitioner's daughter also has difficulty understanding the concept of time (Tr. pp. 52-53).
Evaluative material in the record reveals that the student is performing below grade level in reading, spelling, and writing (Parent Ex. II at p. 80). In March 2003, during the student's third grade year, the Wechsler Individual Achievement Test-Second Edition (WIAT-II) was administered to the student (Parent Ex. N). On the WIAT-II, the student achieved standard (and grade equivalent) subtest scores of 73 (2.0) in single word reading, 78 (1.6) in pseudoword decoding, 83 (2.3) in spelling, and 79 (2.8) in written expression (Parent Ex. N at p. 9). On the Gates-MacGinitie Reading Test – Third Edition: Level 4 – Form K (Gates) the student's performance on the subtests measuring vocabulary and comprehension were both in the 6th percentile (Parent Ex. N at p. 9).
In April 2004 follow-up testing by the same evaluator, the student's subtest scores on the WIAT-II were 69 (2.2) for word reading, 70 (1.2) for psuedoword reading and 75 (2.3) for spelling (Parent Ex. BB at p. 1). Her score on the subtest measuring written expression was not included in the April 2004 evaluation report. The evaluator reported that the student's performance in reading and written language was significantly below average in relation to peers, and below expectation relative to her cognitive functioning (Parent Ex. BB at p. 1). The evaluator recommended a nonpublic school placement specializing in teaching children with learning disabilities, which would provide intensive multi-sensory instruction throughout the day. She also recommended daily individual instruction using a multi-sensory, sequential approach (Parent Ex. BB at p. 2). There is testimony from both parties that the student’s reading disorder is characterized by deficits in spelling, decoding, and writing (Parent Ex. II at pp. 80-81) and requires a multi-sensory, sequential instructional approach (Tr. pp. 27-28, 78-79, 82).
The record also reveals that the student has struggled with appropriate peer relationships (Parent Ex. II at p. 24) and academic performance (Parent Ex. II at pp. 26-27). She also has a history of exhibiting symptoms of anxiety related to her academic difficulties, but in April 2004, the assistant psychiatrist who treated the student reported that the student no longer experienced the severe anxiety in a school setting that she had in the past (Parent Ex. II at p. 30).
During the 1998-99 school year, the student attended kindergarten at P.S. 160 (Parent Ex. II at p. 135). Subsequent to attending first grade at P.S. 160 during the 1999-2000 school year, the student transferred to a parochial school (id.). She repeated first grade at the parochial school, and remained there for second and third grade (Parent Ex. II at p. 93). During the 2003-04 school year, petitioner's daughter returned to P.S. 160 for fourth grade (Parent Ex. II at p. 94).
A CSE met on June 3, 2004 and recommended the student's continued classification as a student with a learning disability (Parent Ex. KK. at p. 1). The resulting June 3, 2004 individualized education program (IEP) for the student's fifth grade year stated a need for a "multi-sensory systematic phonics approach" to instruction (Parent Ex. KK at p. 3). The CSE further recommended a collaborative team teaching program with a student to teacher ratio of 12:1 (Parent Ex. KK at p. 1). The collaborative team teaching program is described in the record as a general education program with a general education teacher and a special education teacher both providing instruction (Parent Ex. II at pp. 50-51, 60). The CSE also recommended individual special education teacher support services (SETSS) five times per week in a separate location, to provide direct instruction with an emphasis on decoding (Parent Ex. KK at pp. 12-13). Individual counseling at a separate location for 30-minute sessions once a week was also recommended (Parent Ex. KK at p. 14). Recommended program accommodations included extended time, reading and re-reading of instructions, "answers recorded in any manner" by available school personnel, and test questions read aloud, with the exception of New York State and New York City tests of reading comprehension (Parent Ex. KK at p. 14). All books on tape, extra time to complete assignments and copy information from the chalkboard were also recommended (Parent Ex. KK at p. 3). Promotion criteria was modified to include meeting 50 percent of the elements of the fourth grade English Language Arts (ELA) standard and 50 percent of the fourth grade math standard as evidenced by the student's work, teacher observation and assessments/grades (Parent Ex. KK at p. 14).
By letter dated June 14, 2004 petitioner objected to the recommendations of the June 3, 2004 CSE and requested an impartial hearing (IHO Ex. I at p. 2). For relief, petitioner requested prospective payment of tuition at Sterling for the 2004-05 school year (IHO Ex. I at p. 2). There is no indication in the record that the student has been placed at Sterling or that any tuition has been paid by petitioner. An impartial hearing was convened on July 7, 2004. The impartial hearing officer rendered her decision on July 23, 2004. The impartial hearing officer determined that respondent had offered the student a program that was designed to meet the student’s needs and to enable her to progress academically in the least restrictive environment (LRE). She further determined that the student did not require a nonpublic school setting in order to receive a free appropriate public education (FAPE) (IHO Decision, p. 10). Despite determining that petitioner was offered a FAPE, the impartial hearing officer remanded the matter to the CSE for consideration of the appropriateness of the spelling goals, and the ELA and math promotional standards on the student's 2004-05 IEP (IHO Decision, p. 11). The impartial hearing officer ordered the CSE to provide a SETSS teacher trained in a multi-sensory approach to learning and to "make every effort" to place the student in a collaborative team teaching class with a special education teacher who is trained in a multi-sensory approach to learning (IHO Decision, p. 11). She further ordered the CSE to amend the IEP to include a recommendation for speech and language therapy two times per week and group counseling one time per week, upon petitioner’s written request or through a related services authorization at the expense of respondent (IHO Decision, p. 11). Accordingly, the CSE was ordered to meet no later than August 22, 2004 to reconsider the goals and promotional standards set forth in the IEP (IHO Decision, p. 11), and to reconvene before November 30, 2004 to re-evaluate the student's progress and determine whether she was benefiting from her current placement (IHO Decision, p. 12).
On appeal is the July 23, 2004 decision of the impartial hearing officer.1 Petitioner seeks reversal of the impartial hearing officer’s denial of petitioner’s request for prospective tuition payment at Sterling (Petition ¶ 22). Respondent seeks dismissal of the appeal and remand of the matter to the CSE "to address the student’s individual needs and to continue to educate her in an appropriate classroom setting" (Answer p. 9).
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 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 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 ; Application of the Bd. of Educ., Appeal No. 04-037). 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 initial issue to be decided is whether respondent’s CSE recommended an IEP for the 2004-05 school year which would appropriately meet the student's needs.
During the 2003-04 school year, the student was taught reading skills through the use of a program entitled, "AUSSIE", an Australian reading program which uses a variety of techniques and provides exercises in guided reading, shared reading, reading aloud and independent reading (Parent Ex. II at p. 63). The student's special education teacher testified that the student progressed in her ability to comprehend and make connections, understand genres, and understand the concepts of beginning, middle and end, characterization, inference, and comparing and contrasting (Parent Ex. II at p. 73). The special education teacher further testified that the student is still struggling with word recognition and reading passages (Parent Ex. II at p. 73). He assessed the student's decoding, deciphering, and word recognition levels to be at the beginning of the third grade level, when she was given sufficient time and prompting (Parent Ex. II at pp. 69-70). The special education teacher also testified that pullout periods of reading instruction were discussed at the April 16, 2004 CSE meeting (Parent Ex. II at pp. 66-67, 73) and that the program as recommended was to include a multi-sensory systematic phonics approach to address her decoding and word recognition difficulties, which would benefit the student (Parent Ex. II at pp. 73-74). Consistent with this approach, the June 3, 2004 IEP provides for individual direct services focused on decoding, increased from three to five periods per week, in a separate location (Parent Ex. KK at pp. 12-13).
The record reflects that use of a multi-sensory systematic phonics approach was recommended on the academic management needs section of the student's April 16, 2004 IEP (Tr. pp. 84-85; Parent Ex. II, IEP Dated April 16, 2004 at p. 3). A multi-sensory approach was also recommended on the student's June 3, 2004 IEP (Parent Ex. KK at p. 3). Respondent's representative testified that, for the 2004-05 school year, the student would have a teacher who is skilled in multi-sensory techniques and that she anticipated that the teacher who provided this instruction would be a SETSS teacher (Tr. pp. 82-83).
During the 2003-04 school year, petitioner provided for private speech-language therapy through her medical insurance (Parent Ex. II at pp. 103-07). In these therapy sessions, which were conducted between July 2003 and September 2003, the student participated in programs identified as Fast ForWord-Language and Fast ForWord-Language to Reading (Parent Ex. E). Program descriptions state that Fast ForWord programs "develop the fundamental language skills that are the building blocks for reading success" and "rapidly build[s] the skills critical for learning to read or become a better reader" (Parent Ex. F at p. 1). The student's mother testified that, while participating in the Fast ForWord programs, the student demonstrated progress by beginning to sound out words that had been "hopeless" to her prior to the initiation of Fast ForWord (Parent Ex. II at p. 104).
From September 2003 forward, the student received private speech-language therapy services once a week. The speech-language pathologist who provided the therapy reported that she worked with the student to improve her reading skills by implementing "an Orton-Gillingham approach" (Parent Ex. E at p.1), which the student's mother described as a multi-sensory teaching approach (Parent Ex. II at pp. 105-06). The mother testified that her daughter's skills diminished when the daily therapy sessions ended and the weekly sessions began (Parent Ex. II at p. 104). The speech-language pathologist reported that despite some improvement in reading skills "significant weaknesses" persisted. She recommended the continuation of weekly therapy using the Orton-Gillingham approach (Parent Ex. E at p. 1).
The impartial hearing officer ordered respondent to amend the IEP to include speech and language therapy two times per week (IHO Decision, p. 11). These speech-language therapy sessions in conjunction with the SETSS instructional periods five times per week recommended on the June 3, 2004 IEP (Parent Ex. KK at p. 2) will provide petitioner's daughter with seven multi-sensory instructional periods per week. Although not equivalent to the length of time devoted to Fast ForWord in summer 2003 (Parent II at p. 105), the daily aspect of one-to-one instruction through SETSS with an emphasis on decoding will provide the student a comparable level of frequency of instruction (Parent Ex. II at pp. 105-106) that resulted in the student's improvement in sounding out words during summer 2003 (Parent Ex. II at pp. 104). As the student has demonstrated progress with daily instruction in the past (Parent Ex. E at p. 1), I conclude the level of services on the June 3, 2004 IEP is reasonably calculated to confer educational benefit.
I concur with the impartial hearing officer that respondent has met its burden of showing that it offered to provide a FAPE to petitioner’s daughter for the 2004-05 school year, therefore, petitioner is not entitled to tuition expenses, and 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 petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|October 29, 2004||PAUL F. KELLY
STATE REVIEW OFFICER
1An impartial hearing was requested by petitioner and was held on April 23, 2004. A decision by the impartial hearing officer was rendered on May 13, 2004. A second impartial hearing was requested by petitioner and was held on July 7, 2004. A decision was rendered on July 23, 2004 and that decision is the subject of this appeal to the Office of State Review. The testimony from the April 23, 2004 hearing is included as an exhibit in the July 7, 2004 hearing. All citations in this State Review Officer decision relate to the July 7, 2004 hearing and July 23, 2004 decision of the impartial hearing officer unless otherwise indicated.