Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Oceanside Union Free School District
Wasserman Steen, LLP, attorney for petitioners, Lewis M. Wasserman, Esq., of counsel
Ehrlich, Frazer & Feldman, attorney for respondent, James H. Pyun, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer, which found that respondent's Committee on Special Education (CSE) appropriately recommended that the student was no longer eligible for classification under the Individuals with Disabilities Education Act (IDEA), and further found that petitioners were not entitled to reimbursement for the cost of privately obtained individualized reading instruction. The appeal must be dismissed.
At the time of the hearing, petitioners' son was 16 years old and was receiving services in accordance with his last agreed upon individualized education program (IEP) dated November 18, 2002 (Dist. Ex. 6). The student was initially classified as having a learning disability and began receiving resource room services and speech-language therapy when he was in the first grade (Dist. Exs. 9, 15). Speech-language therapy was discontinued when he was in the fifth grade (Dist. Ex. 15). The student's November 18, 2002 IEP also indicated that he has significant delays in reading decoding and written expression (Dist. Ex. 6). The student's classification is the subject of this appeal.
The student was evaluated by a neuropsychologist during the 2000-01 school year (Dist. Ex. 15). Cognitive testing using the Wechsler Intelligence Scale for Children – Third Edition (WISC-III) yielded a verbal IQ score of 111 (77th percentile), a performance IQ score of 111 (77th percentile), and a full scale IQ score of 112 (79th percentile). On the Woodcock Reading Mastery Test (Revised), the student's scores were in the 21st percentile for word identification, the 17th percentile for word attack and the 18th percentile for reading comprehension. His score on the Test of Written Spelling – IV was in the 16th percentile. On the Test of Written Language (TOWL), the student's score on the subtest measuring contextual conventions was in the 25th percentile, and his scores for contextual language and story construction were in the 63rd percentile. The evaluator recommended individualized reading instruction. Subsequent to this evaluation, the student's seventh grade program was revised to include this recommended service. He received individual reading instruction using the Wilson program, a program based on the Orton-Gillingham methodology which uses multisensory techniques to address deficits in identifying letter sounds and combining them to form words (Tr. pp. 316, 327).
During the 2001-02 school year, the student was placed in all regular education classes and was described by his teachers as a hard-working, motivated high achiever who was regarded by his peers as a role model (Parent Ex. D). The student's score of 741 on the English Language Arts examination administered in eighth grade placed him at performance level four, which is the highest level on this examination (Dist. Ex. 4).
The CSE convened on June 6, 2001 to prepare the student's 2001-02 IEP for his ninth grade year (Parent Ex. D). The committee recommended regular education placement for all academic subjects at the district's Oceanside High School with resource room services three hours per week (Parent Ex. D). The CSE also recommended testing accommodations of administration in a separate location, responses recorded, spelling provided, directions read, additional examples provided and testing time extended to one and one-half time. Additional program modifications of pre- and post-teaching, no penalty for spelling errors, assistance with note taking and preferential seating were also recommended (Parent Ex. D).
Beginning in October 2001, the student again received individual reading instruction using the Wilson program (Tr. pp. 319-20). Prior to beginning instruction, the student's reading teacher, who had also taught him in seventh grade, administered the WADE, a test specifically designed to measure progress in the Wilson program. The WADE contains subtests in three categories assessing performance in identifying sounds, reading real and nonsense words, and spelling in words and sentences. The student's total sounds score was 83 percent, his total reading score was 95 percent and his total spelling score was 58 percent (Dist. Ex. 16). When the reading teacher re-administered the WADE as a post-test in June 2003, the student's total sounds score was 97 percent, his total reading score was 94 percent, and his total spelling score was 83 percent (Dist. Ex. 17). His reading teacher described the student as "an excellent student" who was motivated and "came to every class that he was assigned…did everything he was told, and he did it very well" (Tr. p. 344).
The record indicates that the student was also successful in his academic subjects during the 2001-02 school year (Dist. Ex. 18). His report card for ninth grade lists final grades of 93 in English, 85 in global history and 91 in biology, all of which were Regents courses. His score on the Regents examination in biology was an 81. The student's grades in other academic courses included a 92 in math, a 95 in health, and a 96 in studio art, an area in which the student reportedly demonstrated interest and aptitude. His grades qualified him for honor roll status, and teacher comments on his report card noted his high degree of motivation, his conscientiousness, good attitude and consistent effort, and his productive use of time (Dist. Ex. 18).
For the student's tenth grade year in 2002-03, he was again placed in regular education Regents-level academic courses and received resource room as a related service for three hours per week (Dist. Ex. 3). Based upon his progress in the Wilson reading program during his ninth grade year, the student's reading teacher recommended that, instead of continuing instruction in the Wilson program, the student be placed in a half-credit course entitled Readings in World Literature. The Readings in World Literature course was a general education, credit-bearing "regents prep class" (Tr. p. 347) designed to parallel the tenth grade Regents English curriculum. The course provided pre-teaching of concepts as well as opportunities for oral reading, which would allow the teacher to identify and promptly correct reading errors (Tr. pp. 341-42). The student's reading teacher, who also taught the Readings in World Literature class (Tr. p. 338), opined that this course was more appropriate for the student than continuation in Wilson instruction because the student would have an opportunity to apply the strategies he had learned in the Wilson program, and because she did not consider his reading decoding deficit to be severe (Tr. p. 339). The parents did not agree with this recommendation and it was not implemented.
The record indicates that the student was very successful in tenth grade, and that he was on the honor roll for all of the 2002-03 marking periods. He achieved a score of 95 on the Regents math examination (Dist. Ex. 11), an 86 on the global studies Regents examination and a 99 on the Regents earth science examination (Tr. p. 102). Although the student had the Regents examinations read to him per his IEP testing accommodations, he wrote all of his answers for the exams (Tr. pp. 1170-71).
The student's parents continued to express concern regarding their son's reading deficits and obtained an independent reading evaluation at public expense on January 11, 2003 (Dist. Exs. 6, 9). The student was administered selected subtests of the Woodcock-Johnson Tests of Achievement - Third Edition (WJ-R) (word identification, word attack, spelling and passage comprehension), Roswell-Chall Diagnostic Reading Test (Roswell-Chall), Gray Oral Reading Test-III (GORT-III), Test of Word Reading Efficiency (TOWRE), Gray Silent Reading Test (GSRT), and selected subtests of the Comprehensive Test of Phonological Processing (CTOPP) (rapid digit naming and rapid letter naming) (id.). On the WJ-R, the student achieved standard (and percentile) scores of 92 (29) in word identification, 89 (23) in word attack, 99 (47) in passage comprehension and 72 (3) in spelling. His standard score of 109 on the GSRT was in the 73rd percentile.
According to the evaluator, testing indicated that the student had made good progress in word reading and decoding skill (Dist. Ex. 9). The psychologist reported that the student's ability to read words accurately on untimed tests and his oral text reading accuracy both fell within the average range (id.). The student's ability to recognize and/or decode individual words at an efficient rate and his text reading rate were reported to be extremely low. The student's oral text reading passage score fell within the below average range and the evaluator opined that the student's spelling remained inadequate (id.).
The psychologist recommended that the student continue to receive remediation with the Wilson reading program beyond Level 8, receive fluency training, use of an electronic text reader, use of a computer spell checker or electronic spelling device, and extended time on all tests involving reading (id.).
On February 12, 2003, the CSE convened at the request of the New York State Education Department as a result of a complaint filed by petitioners relative to 46 5:1 resource room sessions that the student had missed during the 2001-02 school year (Dist. Ex. 7). The student's program was also reviewed at this meeting. The student's special education teacher reported that the student had mastered all of his goals and objectives with the exception of four objectives in which he achieved satisfactory progress. The meeting minutes indicated that these four areas represented skills that develop over time (id.). The school district offered 12 1:1 resource room sessions to be held after school. Petitioners requested 23 sessions. The minutes reflect that the meeting was adjourned without a consensus having been reached due to the length of the meeting and the parents' request for time to review their son's IEP progress reports from the 2001-02 school year (id.). These sessions form the basis of petitioners' claim that respondent failed to implement their son's 2001-02 IEP.
The CSE reconvened on March 18, 2003 to review the results of the January 2003 independent reading evaluation (Dist. Ex. 8). The parents again requested that the student receive reading instruction using the Wilson program. The CSE reviewed teacher progress reports, all of which indicated that the student was performing above expectations in all academic areas and was the highest or one of the highest performing students in several of his classes. His teachers reported that the student used his test accommodations of extended time on some of his examinations but otherwise performed all tasks independently and appeared to be compensating for any weaknesses he may be experiencing (Dist. Ex. 8). In discussion of the results of the evaluation, it was noted that the student's score on the GSRT was in the 73rd percentile and that this test measured silent reading comprehension, which was most reflective of reading skills necessary to perform assignments in high school (Dist. Ex. 8; Tr. p. 219).
The student's annual review was held on June 2, 2003. For the 2003-04 school year, respondent's CSE recommended that petitioner's son be declassified and receive declassification support services of resource room for three hours per week in a 5:1 non-integrated setting, testing accommodations of extended time (2.0), directions read and explained, questions read, spelling waived, assistance with unfamiliar vocabulary, and assistive technology devices of books on tape (Dist. Ex. 10). The CSE recommended that the declassification support services remain in effect for up to one year (id.).
According to the minutes of the annual review, the student's teachers indicated that the student was performing above expectation in all academic areas and that he was the highest or one of the highest performing students (id.). The student's grades, which already qualified him for honor roll status during the first two marking periods of 2002-03, had improved in several areas. For the third quarter, the student had achieved grades of 90 in English, 94 in global history, 96 in math, and 99 in earth science. All grades were achieved on the basis of general education course criteria without modifications in homework assignments or performance expectations (Tr. p. 227). His teachers reported that the student was able to complete his classroom assignments (Tr. p. 74), and that he seldom used his extended time testing accommodation, as he was able to complete most tests in his mainstream classes, occasionally using an additional five or ten minutes in resource room to complete a test (Dist. Ex. 10; Tr. pp. 290, 602, 1243). His teachers opined that the student appeared to compensate for any weaknesses he may be experiencing and described the student as competent and independent (Dist. Ex. 10; Tr. p. 226). It was also reported at the meeting that the student intended to pursue a college education (id.).
The student's IEP goals and objectives were also reviewed at the annual review. His resource room teacher reported that the student was progressing in all areas and that his fourth quarter progress report for 2002-03 would indicate mastery of all IEP goals and objectives (Dist. Ex. 10; Tr. p. 1222). The resource room teacher brought samples of the student's work to the annual review for consideration by the CSE (Tr. p. 309). She reported that the student functioned independently in her resource room and used his time productively with minimal guidance, and that her role at that time consisted primarily of "answering questions for him if he asked" (Tr. pp. 308, 310). The resource room teacher supported the recommendation to declassify the student and opined that the student was doing "extremely well" and was compensating for his disability to the extent that he no longer required special education services in order to perform in school (Tr. p. 1221).
Based upon teacher reports, report card grades, and further review of the January 2003 independent reading evaluation, the CSE recommended that the student be declassified (Dist. Ex. 10). Based upon recommendations made in January 2003 by the independent evaluator, the CSE recommended that the student continue to receive the testing accommodations of extended time for testing, directions read and explained, questions read, spelling requirements waived and assistance provided with unfamiliar vocabulary (Tr. p. 302). Program modifications were amended to reflect those which the student continued to use (Tr. pp. 291, 300). Although the student's teachers were not in favor of continuing the accommodation of books on tape, it was maintained because the student's parents "felt strongly that it would help him, and we didn't want to deny anything that they felt would help him" (Tr. pp. 608-09). The student's foreign language exemption was also continued, because it was a three-year requirement and the student was scheduled to graduate in two years and would not have had sufficient time to complete the requirement (Tr. p. 149). It was noted that a foreign language would not be required for college admission (Tr. p. 600). The student attended a portion of the annual review and requested that his support services be continued due to his desire to continue the same level of academic achievement (Dist. Ex. 10; Tr. pp. 94-95). In response to the student's concerns and because of his motivation to continue to achieve (Tr. p. 602), the CSE recommended continuation of resource room services in 2003-04 as a declassification support service and also recommended that the student's school team convene at the end of the first quarter of the 2003-04 school year to review the student's progress and ensure that the CSE's recommendations were appropriate (Dist. Ex. 10; Tr. pp. 270, 297-98). If any difficulty arose as a result of the declassification in 2003-04, the student would be re-referred to the CSE for further consideration (Tr. pp. 634-35).
The parents disagreed with the recommendation to declassify their son and indicated that he continued to require extensive assistance. They asserted that he would not succeed academically if he did not receive extensive help at home. The student's teachers advised the parents that the student functioned independently at school, took advantage of accommodations when needed, used appropriate compensatory skills and had excellent study strategies. However, the parents declined the teachers' suggestion that they allow the student to perform more independently at home (Tr. pp. 232-34) and requested another neuropsychological evaluation (Dist. Ex. 10). The school psychologist who was present at the meeting indicated that there was no need for further psychological evaluations, as the student's IQ scores were consistent (Tr. p. 214). The neuropsychologist who had evaluated the student in December 2000 was contacted and concurred that another neuropsychological evaluation was unnecessary (Tr. p. 215). The parents then requested an independent reading evaluation, but the CSE determined that additional evaluations were unnecessary because it had sufficient information from previous evaluations as well as from current teacher reports to make a determination regarding classification (Tr. p. 95). On July 21, 2003, the CSE requested an impartial hearing to address its denial of the parents' request (Dist. Ex. 13). On August 11, 2003, the parents requested an impartial hearing, asserting that their son had been improperly declassified and sought independent evaluations, compensatory resource room services and reimbursement for private tutoring (Parent Ex. A).
The hearing began on October 16, 2003 (IHO Decision p. 1). The impartial hearing officer consolidated both hearing requests into a single hearing. Testimony was heard a total of nine days and the hearing concluded on May 6, 2004 (IHO Decision p. 1). By decision dated August 9, 2004, the impartial hearing officer found the school district had complied with the procedural requirements of the IDEA relative to notice and declassification (IHO Decision pp. 31-33). The IHO further found that respondent complied with the substantive requirements of the IDEA and had proven the appropriateness of its recommendation to declassify petitioners' son (IHO Decision pp. 33-36).
In this appeal, petitioners contend that the hearing officer erred in determining that 1) the student does not have a learning disability; 2) the school district complied with IDEA requirements prior to recommending declassification; and 3) petitioners were not entitled to additional educational services or reimbursement for privately obtained reading instruction (Pet. ¶ 22).
A board of education bears the burden of establishing the appropriateness of its CSE's recommendation that a child not be classified as a child with a disability (Application of the Bd. of Educ., Appeal No. 03-103; Application of a Child with a Disability, Appeal No. 01-069; Application of the Bd. of Educ., Appeal No. 97-51; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). To meet this burden, a board of education must show that it complied with both the requirements of state and federal law (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ).
I will first consider the threshold issue of whether petitioners' son meets the criteria of a student with a specific learning disability. Learning disability is defined by state regulation as:
a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability.
(8 NYCRR 200.1[zz]).
The comparable federal regulatory criteria for finding that a student has a learning disability requires that there be a severe discrepancy between a student’s achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning (34 C.F.R. § 300.541). Although the state regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the state’s 50 percent standard is the functional equivalent of the federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F.2d 635 [2d Cir. 1981]; Application of the Bd. of Educ., Appeal No. 03-103; Application of a Child with a Handicapping Condition, Appeal No. 91-15; Application of the Bd. of Educ., 27 Ed Dept Rep 272 ). In order to be classified as learning disabled (LD), a student must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34).
Relative to this issue, petitioners allege that the independent evaluation performed on March 7, 2004 (Parent Ex. G) was the only objective testing performed and that their son's basic reading, spelling, and reading fluency skills were more than 50 percent below expected scores (Pet. ¶¶ 26-29). This evaluation included scores from the Wechsler Individual Achievement Test (WIAT – 2). Subtests of the WIAT administered to the student measured word reading (sight vocabulary), pseudoword reading (word attack) and reading comprehension. The student's standard scores of 89 on both the subtests measuring word reading and pseudoword reading were in the low average range. His reading comprehension standard score of 107 was in the high average range. His standard score of 86 on the WIAT – 2 subtest for spelling was in the low average range. The evaluator based his determination that scores were below expectation upon a comparison of standard scores with a full scale IQ score of 112 obtained during a December 2000 evaluation. He used these scores to calculate a predicted score on each subtest. Based upon the evaluator’s calculations, there was a 15 point discrepancy between the student's actual and predicted score on the pseudoword decoding subtest, a 16 point discrepancy on the word reading subtest, and a 19 point discrepancy on the spelling subtest.
The results of the two remaining subtests of the WIAT administered to the student by the evaluator are of greater significance in measuring this student's ability and performance. His reading comprehension subtest score, which was obtained without testing modifications, was 107, one point above the predicted score reported by the evaluator. His reading composite score of 92 is in the average range and represents a 14 point discrepancy between expectation and achievement. The reading composite score is an average of the student's word reading, psuedoword reading and reading comprehension score, and represents the student's overall ability in reading, reflecting his strengths, his deficits, and his ability to compensate for those deficits.
Petitioners assert that the March 7, 2004 independent evaluation of the student identified deficient reading fluency skills and is the "only objective testing" of reading fluency (Pet. ¶ 28). The evaluator did not administer any standardized tests measuring reading fluency, and his evaluation report makes only peripheral reference to reading fluency as it relates to reading speed and accuracy.
Petitioners further allege that their son's learning disability is evidenced by his extreme difficulty in phonological decoding, reading speed and fluency and spelling (Pet. ¶ 29). The evaluator correctly stated that the student's difficulties with sight vocabulary and decoding compared with his cognitive ability meet the criteria for a diagnosis of a reading disorder pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR). In addition to containing diagnostic criteria, the DSM-IV-TR also contains a cautionary statement: "[t]he specified diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses ... inclusion here ... does not imply that the condition meets legal or other nonmedical criteria" (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 at p. xxxvii; Application of the Bd. of Educ., Appeal No. 04-037). The record indicates that the student does not exhibit a significant discrepancy between his ability and achievement (8 NYCRR 200.1[zz]; Application of a Child with a Disability, Appeal No. 94-16; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 91-34). The student is on the honor roll in Regents-level courses and has received impressive scores on the Regents exams. He has been described by his teachers as an excellent student who is regarded as a role model by his classmates. There is no indication in the record that the student's reading and spelling deficits are affecting his academic achievement. On the contrary, the student has a remarkable record of performance in spite of his deficits, and has demonstrated extraordinary motivation as well as a remarkable ability to implement compensatory strategies.
Petitioners also allege that the impartial hearing officer erred in finding that the student's education was not adversely affected because the student has only been so successful because of the special education services he has been receiving (Pet. ¶¶ 32-34).
The record contains considerable information about the student's education history which suggests that the student received appropriate services throughout his tenure in the district, allowing him to not only benefit from but to succeed academically to an impressive degree. The student is described as a highly motivated and effective independent learner (Dist. Ex. 8; Tr. pp. 308, 310) who is capable of self-directing his use of the special education supports and services that are available to him. When the CSE proposed declassification, it carefully reviewed the accommodations and test modifications on his then-current IEP, and maintained as declassification supports those which the student continued to use, including those he only used to a minimal degree. For example, the student was to continue to receive the accommodation of double time for tests even though his resource room teacher testified that he seldom required extra time and when he did, the additional time required was usually an additional five to ten minutes (Tr. p. 1243).
In recommending declassification of the student on June 6, 2003, the CSE demonstrated both a desire to acknowledge the student's high degree of motivation and hard work as well as an effort to be responsive to the student's needs as articulated by the student himself (Dist. Ex. 10; Tr. p. 602). The student participated in a portion of the CSE meeting at which declassification was recommended and he expressed his concern about maintaining resource room services due to his desire to continue the same level of academic achievement (id.; see also Tr. pp. 94-95). The CSE promptly responded to this statement of self-advocacy by the student and recommended that resource room services be continued (Dist. Ex. 10; Tr. pp. 94-95, 270, 602). The CSE also recommended that it reconvene at the end of the first quarter of the 2003-04 school year in order to review the student's progress (Dist. Ex. 10; Tr. pp. 297-98). The school psychologist further testified to the responsiveness of the CSE to the student's needs when she noted that, if the student experienced difficulty at any time, he could be re-referred to the CSE to determine if he should be classified, or to the Section 504 Committee to arrange for additional accommodations (Tr. pp. 634-35).
I find that respondent's CSE appropriately recommended that the student be declassified because the record does not demonstrate that he can only receive appropriate educational opportunities from a program of special education (N.Y. Education Law § 4401). State regulation requires that when a CSE determines that a student no longer needs special education services and can be placed in a regular education program on a full-time basis, the CSE must identify the declassification support services (see 8 NYCRR 100.1[q]), if any, to be provided to the student and/or the student's teachers (8 NYCRR 200.4[c]). I find that respondent's CSE recommended appropriate declassification support services.
Petitioners next contend that the impartial hearing officer erred in finding that respondent's CSE complied with the procedural requirements of the IDEA and that as a result their son was denied a free appropriate public education (FAPE) (Pet. ¶ 22[b]).
The purpose of the IDEA is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show that it complied with the procedural and substantive requirements set forth in the IDEA (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ). 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]). The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of a Child with a Disability, Appeal No. 02-092).
Relative to the second issue, petitioners allege respondent's CSE failed to do the following prior to recommending declassification: 1) evaluate the student's written expression skills; 2) perform a psychoeducational evaluation or require the school psychologist to prepare a report explaining why no further psychoeducational evaluations were necessary; 3) inform petitioners that they had the right to request additional evaluations; 4) request and review written classroom observation reports, and an objective assessment on the student's progress on 2002-03 reading and writing goals and objectives; 5) discuss ability versus achievement discrepancies, or the independent reading evaluation; 6) request and review a written recommendation by an eligibility team to declassify; 7) perform and review a classroom observation that supported the recommendation to declassify; and 8) form an eligibility team to consider declassification (Pet. ¶¶ 41-61).
I find petitioners' allegation that the CSE did not evaluate their son's written expression skills prior to recommending declassification to be without merit. The student's current standardized test scores identified areas of deficit in reading, decoding and spelling. There are no test scores in the record suggesting that the student continues to have a deficit in written language. In testimony, the student explained how he used accommodations of waiver of spelling requirements (Tr. p. 1132) and use of a reader for test questions. The student indicated he only used a reader for tests that required reading of more difficult questions and passages (Tr. p. 1131). His 2003-04 IEP included one goal with four objectives for written language and his teacher reported to the CSE at the student's annual review that he had in fact mastered that goal (Tr. p. 1222).
The student also writes his own test responses and does not require a writer as a testing accommodation. He wrote his own answers on Regents examinations (Tr. p. 1171) and, prior to the CSE recommendation of declassification, the student had passed the Biology Regents examination with a score of 81, the Math Regents examination with a score of 95, the Global Studies Regents examination with a score of 86, and the Earth Science Regents examination with a score of 99 (Tr. p. 102).
In view of the student's exemplary performance on written examinations, as indicated by his grades and by his scores on Regents examinations, an evaluation of the student's written expression skills would have been unlikely to identify additional information regarding the student's needs. Additionally, the CSE had previously reviewed and was familiar with the results of a neuropsychological evaluation conducted by the parents' private evaluator in December 2000 (Ex. 15,) which included a Test of Written Language – 3 (TOWL – 3). On this evaluation, which was current at the time declassification was recommended, the student's scores in story construction and use of contextual language were in the 63rd percentile.
As to the second allegation, the record reveals that at the time the CSE recommended declassification, the student's last psychological evaluation, conducted by the parents' private neuropsychologist in December 2000, remained current (Dist. Ex. 15). Another psychological evaluation was neither required, nor would it have provided any additional information needed by the CSE, as the committee was already aware of the student's intellectual functioning and his IQ test scores had remained constant (Tr. p. 214). The school psychologist who participated in the CSE meeting at which the student was declassified testified that, because the private neuropsychologist had not identified any cognitive disabilities in his evaluation of the student, she did not see a need for further psychological testing (Tr. pp. 510, 519). The CSE Chairperson noted that, in response to the parents' expressions of concern, the private neuropsychologist had been contacted by telephone and had indicated that additional psychological testing was unnecessary (Tr. p. 215).
The record also reveals that petitioners were aware of their right to request additional evaluations given the fact that they had previously done so. The minutes of the June 6, 2003 CSE meeting indicate that the parents inquired about additional evaluations and were advised that the committee already had "comprehensive evaluative material" available for review when it recommended declassification, including the independent reading evaluation obtained by the parents earlier that same year (Dist. Ex. 10). Further, even if additional evaluations had been conducted and had identified specific areas of deficit, the student's academic performance clearly indicated that any deficits which may have been identified by further testing were not affecting his ability to benefit from academic instruction, given the supports afforded him through declassification support services.
As to petitioners' fourth allegation, respondent's CSE did receive and review the student's April 2003 report card, which was an objective report of his progress in Regents-level academic courses (Dist. Ex. 10). The final report of progress on IEP goals and objectives had not been completed on the day the CSE convened, but the student's special education teacher, who was responsible for implementing and reporting on progress on the student's goals and objectives, was present at the June 2, 2003 meeting and reported that the student had mastered all IEP goals and objectives for 2002-03 (Tr. p. 169).
As to the fifth allegation, the June 2, 2003 CSE meeting minutes (Dist. Ex. 10) indicate that the independent reading evaluation was discussed. Also, this report had already been reviewed in detail at the March 18, 2003 CSE meeting (Dist. Ex. 8). Any discussion in the record of the student's abilities versus his achievement suggested that the student's high level of academic performance was commensurate with his ability.
As to petitioners' sixth, seventh and eighth allegations, the record reveals that respondent's CSE did not conduct a classroom observation (34 C.F.R. § 300.534[c] citing 34 C.F.R. § 300.533[a][ii]; see also 34 C.F.R. § 300.542[a]), nor convene and review a written recommendation of an eligibility team (34 C.F.R. § 300.540) in violation of declassification procedures (34 C.F.R. § 300.534[c]). I caution the school district to comply with the IDEA and its implementing regulations in the future. Nevertheless, based upon the foregoing, I find that these procedural violations neither resulted in a loss of educational opportunity for the student nor seriously infringed upon petitioners' opportunity to participate in the CSE. Given the student's grades and Regents scores, it is unlikely that a classroom observation would have provided information to refute the overwhelming evidence of the student's high level of academic achievement. Further, the required additional team members for evaluating children with specific learning disabilities (34 C.F.R. § 300.540) participated in the student's annual review. Lastly, petitioners' participation in the CSE meeting has been well documented in the record.
Petitioners' final issue in this appeal is whether the impartial hearing officer erred in denying an award of additional educational services for failure to implement the 2002-03 IEP (Pet. ¶ 22[c]). As to this issue, petitioners allege: 1) the student's reading and writing goals for 2002-03 were not implemented; 2) that no objective measures were taken during 2002-03 to measure the student's progress on goals and objectives; and 3) that the parents did prove that the student benefited from his private reading tutor (Pet. ¶¶ 62-74).
As to the first allegation, testimony reveals that the student's resource room teacher offered detailed descriptions of how the student's 2002-03 IEP goals and objectives were implemented (see Tr. pp. 1199-1218). The resource room teacher testified that she focused on these goals through daily collaboration with the student's content area teachers and by assisting the student with reading and writing for his content area courses (Tr. pp. 1191-92). In testimony, the resource room teacher reviewed each of the student's reading objectives, described implementation of these objectives, and explained how she monitored the student's progress by observing the student's oral reading in the resource room as well as through reports from content area teachers, who described the student as a successful reader in their classes (Tr. pp. 1200-09). She assessed reading comprehension by asking the student questions about his reading and by examining his written responses to questions he read (Tr. p. 1209). She also testified that she reviewed the student's writing goals and objectives and again provided detailed descriptions of how she collaborated frequently with content area teachers to address the objectives and to monitor the student's progress (Tr. pp. 1211-18). She monitored the student's progress on his fourth, most complex writing objective, which involved writing an interpretive response to a literary selection, by examining written work submitted by the student to his English teacher (Tr. p. 1217). She also noted that she used pre-teaching, post-teaching and reviews to assist the student in preparing for tests in content areas (Tr. p. 1197).
Petitioners also allege that no objective measures were taken during the 2002-03 school year to measure their son's progress towards his goals and objectives. I find this allegation to be without merit. At the November 18, 2002 CSE meeting, petitioners revised their previous request for another neuropsychological evaluation and instead requested an independent reading evaluation (Dist. Ex. 6). At the time of the CSE meeting, the student's most recent reading evaluation was on the WJ-R, which had been administered less than six months earlier on May 3, 2002. Even so, the CSE approved the parents' request for an independent evaluation. The CSE minutes indicate that the parents declined to engage in any other discussion of the student's progress and needs at the November 18, 2002 meeting (Dist. Ex. 6).
In response to the parents' request, an independent reading evaluation was conducted on January 11, 2003 at public expense (Dist. Ex. 9). The evaluation report, as discussed above, included scores from the WJ-R, which provide a standardized measure of the student's progress in decoding and reading comprehension, corresponding to the student's 2002-03 IEP reading goals for decoding and for comprehension of independent reading. The independent evaluator also reported a standard score of 109 on the GSRT, placing the student in the 73rd percentile on a test measuring the student's ability to comprehend material he read independently, reflecting the student's fifth and most advanced objective for his 2002-03 reading goal, and also reflecting the type of reading skills required for high school assignments. The independent evaluator's report was reviewed by the CSE on March 18, 2003 (Dist. Ex. 8) and again on June 2, 2003 (Dist. Ex. 10).
Also during the 2002-03 school year, the student was evaluated twice using the WADE, an objective test specifically designed to measure decoding skills (Dist. Ex. 16). The WADE provides total scores in the area of decoding of sounds, reading and recognizing words, and spelling. In October 2002, the student achieved scores of 83 percent in total sounds, 95 percent in total words, and 58 percent in total spelling. When the WADE was repeated as a post-test in June 2003, he achieved a 97 percent in total sounds, a 94 percent in total words, and an 83 percent in total spelling (Dist. Ex. 17).
The CSE reviewed the resource room teacher's reports of progress on the student's 2002-03 IEP goals and objectives at the February 12, 2003 CSE meeting (Dist. Ex. 7), the March 18, 2003 CSE meeting (Dist. Ex. 8), and the June 2, 2003 CSE meeting (Dist. Ex. 10). Because the goals and objectives are both measurable and objectively stated, the goals themselves can reasonably be considered additional objective measures of progress. However, the most significant objective measure of progress for this student, given his remarkable academic success, is his grades, in Regents-level academic content courses which consistently qualified him for the school's honor roll, and his highly successful scores on the Regents examinations. The student's 2002-03 IEP goals and objectives were developed to afford the student an opportunity to succeed academically and, for this student, who was already highly motivated to succeed academically, these two measures are the best objective indicators of his academic performance.
As to the last allegation of the third issue, I agree with the impartial hearing officer that petitioners are not entitled to additional resource room services and that petitioners also failed to prove the appropriateness of their privately obtained reading services. The student's private reading tutor testified that she provided services to the student one or two times per week, depending on her schedule. She began working with the student in March 2003 (Tr. p. 984). By the time the tutor began working with the student, he had been receiving assistance in reading from his resource room teacher (Tr. p. 1203) for seven months, and had also had frequent opportunity throughout the 2002-03 school year to practice reading skills in his content area classes (Tr. pp. 1200, 1240). While the student's test scores, his IEP progress reports, and his grades all indicate that he made progress in reading, I find that the record does not support petitioners' contention that the student's progress is attributable solely to the tutoring sessions he received once or twice per week beginning in March 2003.
Based upon the foregoing, I agree with the decision of the impartial hearing officer in its entirety and find that respondent's CSE appropriately recommended that petitioners' son be declassified and that petitioners are neither entitled to additional resource room services nor are they entitled to reimbursement for the cost of privately obtained reading services. I have considered petitioners' remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
October 27, 2004
PAUL F. KELLY