The State Education Department
State Review Officer

No. 04-067





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 Arlington Central School District



Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorney for respondent, Jeffrey J. Schiro, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which denied her request for reimbursement of the cost of her daughter's tuition and expenses at the Kildonan School (Kildonan) during the 2003-04 school year. The hearing officer determined that respondent, the Board of Education of the Arlington Central School District, offered to provide the student with a free appropriate public education (FAPE) during that school year. The appeal must be dismissed.

        Respondent raises two procedural issues in this appeal. First, respondent claims that petitioner’s notice of intention to seek review was not served on respondent as required by 8 NYCRR 279.2. I note that by letter dated September 17, 2004, petitioner filed an affidavit of service stating that the notice of intention to seek review was personally served on respondent on August 13, 2004.

        The notice of intention to seek review shall be served upon the school district not less than ten days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The 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 25- or 35-day period, as required by 8 NYCRR 279.2(b).

        The record indicates that the decision of the impartial hearing officer was dated July 19, 2004, served by mail on the parties, and the notice of intention to seek review served on August 13, 2004. As such, I find that the notice of intention to seek review was timely. Second, respondent alleges in its answer that the petition for review was not served in a timely manner as required by 8 NYCRR 279.2(b). Respondent correctly asserts that the petitioner's time to serve her petition for review expired on August 30, 2004 and further alleges that the petition for review was served on its district clerk on August 31, 2004. The affidavit of service attached to petitioner’s petition for review confirms the August 31, 2004 service date. A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (id.). The reasons for such failure shall be set forth in the petition (id.). Petitioner, in the petition for review, does not specify good cause for the late filing (see 8 NYCRR 279.13). Neither did petitioner file a reply to respondent’s affirmative defense raised in its answer alleging that the petition for review was served in an untimely manner. Petitioner offers no explanation for the delay in serving the petition for review. Therefore I have no basis upon which to excuse the delay, and I find that the appeal is untimely. The petition is therefore dismissed (Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

        Despite dismissing the petition as untimely, I have reviewed the merits of petitioner’s appeal. Petitioner's daughter was fifteen years old at the time of the hearing request and attending tenth grade at Kildonan, where her parent unilaterally placed her for the 2003-04 school year. Kildonan is a private school for children with language-based learning disabilities (Tr. p. 611). Kildonan is a private school that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities (Tr. p. 646). Petitioner's daughter was previously classified as speech or language impaired for the 2002-03 school year (Dist. Ex. 52 at p. 1) and is now classified as learning disabled for the 2003-04 school year (Dist. Ex. 4 at p. 1). The student's classification by respondent's Committee on Special Education (CSE) as learning disabled is not in dispute.

        Petitioner's daughter entered respondent's school district in the first grade from another school district and attended respondent's public school from first grade through seventh grade (Tr. pp. 120-21). The student has a history of speech-language difficulties beginning in first grade (Parent Ex. T). She received speech-language therapy for a mild articulation disorder as well as remedial reading support for reading comprehension weaknesses (Parent Ex. T at p. 2). The Test of Cognitive Skills-2, an intelligence test administered in June 1997, revealed difficulty with the Memory subtest (15th percentile); however all other scores were in the average range for non-verbal abilities and above average range for verbal abilities (Parent Ex. T at p. 2). Administration of the Comprehensive Tests of Basic Skills (CTBS) at the end of fourth grade indicated the student's reading ability was between the 43rd to 53rd percentiles (Parent Ex. T at p. 3). The student exhibited scattered skills in Math, with Math Computation at the 8th percentile and Math Concepts and Application at the 67th percentile (Total Math score was at the 32nd percentile) (Parent Ex. T at p. 3).

        A speech-language and hearing evaluation was conducted in 1999 when the student was 11 years old (Dist. Ex. 46 at p. 1). At that time, petitioner's daughter was attending the Sylvan Learning Center for assistance with reading (id.). According to the evaluator, the student had received remedial reading, psychological counseling and speech-language therapy to improve articulation and writing skills in the past (Dist. Ex. 46 at pp. 1-2). Testing results indicated that the student exhibited weaknesses in metalinguistic (higher level language) skills and writing. Overall receptive and expressive language skills were judged to be within normal limits. She required repetition of information presented auditorally. Speech-language therapy was recommended (Dist. Ex. 46 at pp. 7-8). The student was referred for the Speech-Language evaluation due to her difficulty in auditorally distinguishing words and sounds and referred for Central Auditory Processing (CAP) testing was also recommended (Dist. Ex. 46 at pp. 1, 8).

        A psychoeducational evaluation was conducted on February 22, 2000 because petitioner referred her daughter to respondent's CSE (Dist. Ex. 44). Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ score of 114, a performance IQ of 112 and a full scale IQ of 114 (Dist. Ex. 44 at p. 2). All of the composite scores were in the high average range with "no significant difference" (Dist. Ex. 44 at p. 2). Although, on the verbal section of the testing two subtest areas that were below average were arithmetic (25 percent) and Digit Span (37 percent). The Digit Span subtest revealed the student's difficulty with retention of short-term information (Dist. Ex. 44 at p. 3). The performance scale scores were all average or above average (Dist. Ex. 44 at p. 3). Administration of the Wechsler Individual Achievement Test (WIAT) revealed somewhat lower standard scores than would be expected given the student's full scale IQ score; however the discrepancy was not significant. The student achieved the following scores on the WIAT: Basic Reading (SS: 95, 37 percent), Mathematics Reasoning (SS: 96, 39 percent), Spelling (SS: 91, 27 percent), Reading Comprehension (SS: 97, 42 percent), and Composite Score for Reading (SS: 95, 37 percent) (Dist. Ex. 44 at p. 3). The Bender Visual Motor Gestalt Test was administered and revealed designs in the average range without areas of deficits (Dist. Ex. 44 at p. 4). The student performed better on this evaluation than on previous assessments performed at St. Francis and Sylvan Learning Center. A remedial reading class and after school Math remediation with an introduction to study skills was recommended (id.).

        In March 2000 the CSE determined the student was ineligible for special education services at that time (Dist. Ex. 41; Dist. Ex. 1 at p. 1). She was described as a student with "strong average capabilities with some weaknesses in basic skills" (Dist. Ex. 1 at p. 1). The district recommended remedial approaches for study skills and reading improvement within the regular education spectrum. (Dist. Ex. 41 at p. 2-3). The student continued to receive outside speech-language therapy services at St. Francis (Tr. pp. 433-34).

        An auditory processing evaluation performed in July 2000 revealed a moderate-severe auditory processing disorder in the areas of auditory closure, understanding speech in difficult listening situations, and attention to a message in the presence of a competing message (Dist. Ex. 40 at p. 2). The pattern of errors on the Staggered Spondaic Word (SSW) Test suggested difficulty with decoding and accuracy of processing speech sounds. Recommendations from this assessment included improving the signal-to-noise ratio using classroom modifications such as using an FM system, gaining eye contact before talking to the student, preferential seating, and auditory training 2-3 times per week (Dist. Ex. 40 at p. 2-3).

        The student was re-referred to the CSE on September 27, 2000; however, according to the record the September 2000 CSE meeting was not held, and the parent withdrew the CSE referral in January 2001 (Dist. Exs. 1 at p. 1, 37 at p. 1). The parent requested a 504 accommodation plan for the student in January 2001 (Tr. pp. 439-40, Dist. Ex. 37). The student received tutoring in phonics and spelling from November 2000 to January 2001 (Tr. p. 437).

        A neuropsychological evaluation was conducted between November 2000 and May 2001 (Dist. Ex. 49). The evaluator reported that the student had recently been treated for behavioral problems including oppositionism, temper outbursts, and failure to follow instructions (Dist. Ex. 49 at p. 2). The student had been suspended for fighting in school and expressed suicidal ideation. In addition, the student was described during the assessment sessions as evidencing a "sense of passive insolence" (Dist. Ex. 49 at p. 3). The student's behavior became "overtly hostile" in the presence of her mother during testing (Dist. Ex. 49 at p. 3). Further the student's mood was described as "generally angry; her affect labile" (Dist. Ex. 49 at p. 3). The examiner reported the student showed poor motivation overall. Her performance on the WISC-III revealed a verbal IQ score of 105, (average range, 63rd percentile) a performance IQ score of 121 (superior range, 92nd percentile) and a full scale IQ of 113 (high average range, 81st percentile) (Dist. Ex. 49 at p. 3). These scores are commensurate with previous IQ testing performed in February 2000 (compare Dist. Ex. 44 at p. 2). The student exhibited a high degree of inter-subtest variability, especially in the verbal domain. Deficits were noted in the Digit Span and arithmetic subtests, which is consistent with the student's performance on previous cognitive testing, and continued to indicate difficulty in the "attentional realm" (Dist. Ex. 49 at p. 4). She exhibited consistently above average skills in the nonverbal domain (id.).

        On the Peabody Individual Achievement Test-Revised (PIAT-R) the student exhibited below grade average skills in the areas of reading, spelling and writing, indicating the presence of a language-based learning disability (Dist. Ex. 49 at pp. 4-5). Her achievement scores are as follows: social and natural sciences (standard score (SS): 102, 55th percentile), word decoding (SS: 88, 21st percentile), reading comprehension: (SS: 100, 50th percentile), total reading: (SS: 92, 30th percentile) and spelling (SS: 83, 13th percentile) (Dist. Ex. 49 at p. 5). The writing portion of this assessment revealed difficulty with the mechanical aspects of writing, such as punctuation and paragraph development, which was below age expectation. A semantic understanding of written work was an area of weakness for the student (Dist. Ex. 49 at p. 5). The student did not exhibit graphomotor difficulties on the Beery Test of Visual Motor Integration (VMI) (Dist. Ex. 49 at p. 5). However, she did present weaknesses in processing and/or recalling verbal information when compared to visual information on the Wide-Range Assessment of Memory and Learning (Dist. Ex. 49 at p. 5). She was described as a "weak phonetic reader" (Dist. Ex. 49 at p. 5).

        Emotional and behavioral testing revealed the absence of any "significant psychiatric liability" (Dist. Ex. 49 at p. 5). She did however display "an ever increasing pattern of negativistic, oppositional, and aggressive behavior . . . ", resulting in a diagnosis of Oppositional Defiant Disorder (Dist. Ex. 49 at pp. 5-6). Recommendations included a referral to the CSE to increases access to remedial educational services. However, it is of note that this clinician believed the student's problems were "not severe enough to warrant placement in an alternative class setting" (Dist. Ex. 49 at p. 6). Petitioner testified that her daughter's emotional state was declining necessitating outside counseling (Tr. pp. 440-42).

        The student attended eighth grade at the Oakwood Friends School in Poughkeepsie, due to its smaller classes, for the 2001-02 school year (Tr. pp. 445). Petitioner re-referred her daughter to the CSE in July 2001 (Dist. Ex. 34). Achievement testing using the WIAT performed in November 2001 did not reveal significant changes in academic performance since the February 2000 WIAT or May 2001 PIAT-R testing (Dist. Exs. 30, 31). The student continued to exhibit deficits in spelling, which was the only subtest that was in the low average range (Dist. Ex. 30 at p.2).

        A speech-language evaluation performed on December 3, 2001 revealed average receptive language skills on the Clinical Evaluation of Language Fundamentals-Third Edition (CELF-3) (Dist. Ex. 29 at p. 6). Mildly delayed expressive language skills were recorded with difficulties noted in the area of formulating simple and compound sentences and assembling sentences with appropriate grammatical and semantic composition (Dist. Ex. 29 at p. 6). During auditory perceptual testing, difficulty was noted in the area of rote memory and attention to auditory information; however, the student utilized compensatory strategies successfully to achieve average scores (Dist. Ex. 29 at p. 7). Speech therapy was recommended two times per week for 30-minute sessions to address oral language weaknesses (Dist. Ex. 29 at p. 8).

        The CSE convened in January 2002 and classified the student as speech or language impaired based on her deficits in oral and written language skills (Dist. Ex. 23 at p. 1). The CSE recommended that the student participate in general education, be provided with direct/indirect consultant teacher services two hours a week, with 30 minutes of group speech-language therapy twice a week (Dist. Ex. 23 at p. 1).

        A fall term report card from Oakwood Friends revealed average grades with the exception of Health, in which the student received a "D-" (Dist. Ex. 28 at p. 1). Comments from the teachers revealed the student is reluctant to participate in class; however she is a hard worker (Dist. Ex. 28). Oakwood Friends staff described the student as having "considerable skills", but also as having difficulty "accepting the responsibility of doing her homework, and therefore falls behind in school" (Dist. Ex. 17 at p. 3). The student was suspended for a five-day period in January 2002 due to a smoking incident at the private school (Dist. Ex. 57) and she was involved in a verbal/physical altercation with another student in April 2002 (Dist. Ex. 58).

        A private educational evaluation took place in April 2002 in which the student participated willingly (Parent Ex. T). The student reported to the evaluator that she "missed her friends" at Arlington Middle School and would like to return there (Parent Ex. T at p. 1). The Comprehensive Test of Phonological Processing (CTOPP) revealed poor performance on subtests requiring the student to delete sounds from different positions in a word (phonological awareness) and with holding information in short-term memory and in working memory to perform complex mental tasks (phonological memory) (Parent Ex. T at pp. 5, 7-9). The student achieved average scores for all other subtests administered (Parent Ex. T at pp. 5-6). On the Woodcock Reading Mastery Test-Revised Normative Update (WRMT-R/NU), the student performed in the average range on the majority of subtests (Parent Ex. T at pp. 10-11). On the sound-symbol subtest, she exhibited difficulty producing the letter's symbol sound when presented with the letter symbol (Parent Ex. T at p. 10). She performed below average on the word comprehension subtest, which is consistent with her diagnosis of a language-based learning disability (Parent Ex. T at pp. 10, 12). The Test of Written Spelling-4th Edition (TWS-4) revealed skills in the average range of functioning (Parent Ex. T at p. 12); however, given her above average aptitude, spelling is an area of weakness (Parent Ex. T at p. 13). The evaluator of this report describes the student as cognitively above average with difficulties in metalinguistics, phonological awareness, phonological memory and reading (Parent Ex. T at p. 13). The evaluator concluded the student would benefit from a reading and spelling approach such as the Orton-Gillingham approach in conjunction with other recommendations including speech-language therapy and other academic accommodations (Parent Ex. T at p. 14).

        The student attended Camp Dunnabeck at Kildonan during the summer of 2002, prior to the student's ninth grade year. (Tr. p. 506). This camp has an Orton-Gillingham approach foundation and this method was utilized with the student during one on one tutoring sessions (Dist. Ex. 14 at p. 1). Her scores in reading and spelling on the Wide Range Achievement Test-Third Edition (WRAT-3) improved from June to August of that year (Dist. Ex. 15 at p. 1).

        The student returned to Arlington for the 2002-03 school year. The CSE convened on October 16, 2002 to review her program (Dist. Ex. 7 at pp. 2-3). According to the 2002-03 individualized education program (IEP), the student received 40 minutes of resource room five times per week, 30 minutes of group speech-language therapy two times per week, 30 minutes of individual counseling two times per month (Dist. Ex. 17 at p. 1). Test accommodations offered included extended time, special location and access to a spell check device. The student also received preferential seating (id.). It is of note that the parent requested the student receive the speech-language therapy services during resource room time so she would not miss any academic subjects (Dist. Ex. 7 at p. 3; Tr. p. 141). As for counseling during the 2002-03 school year, the school district psychologist testified that she worked with the student during the 2002-03 school year to assist the student's transition back to the public school from Oakwood Friends (Tr. pp. 346-347). The psychologist indicated she did not see any signs of oppositional behavior that negatively affected the student's class work or homework ability (Tr. pp. 356-358). The psychologist further opined the student made progress toward IEP counseling goals during the school year and that the parent agreed to the discontinuation of counseling at school for the 2003-04 school year (Tr. pp. 395, 408). The student did, however, receive private counseling as a result of her behavior at home (Parent Ex. Y).

        The student received private tutoring twice a week throughout the 2002-03 school year to improve reading, writing, spelling and vocabulary skills (Parent Ex. R at p. 1). As the school year progressed, the student was frequently absent or tardy as documented by petitioner and respondent school district (Tr. pp. 44, 71, 125-127, 206-207, 370-372, 405-7, 413; Dist. Ex. 50 at p. 4, Parent Exs. D at p. 2, BB, CC). She was absent from school 21 days, illegally absent one day, and tardy 27 times in attendance periods throughout the school year (Dist. Ex. 51 at p. 1). Petitioner testified that the student's increasing discipline issues and school related stress resulted in the high degree of absenteeism (Tr. p. 480-481). Excuses for absenteeism and tardiness included oversleeping, and a variety of physical complaints such as coughing, sore throat, stomach virus etc. (Parent Ex. CC). By the end of the January 2003 marking period, teachers were beginning to comment about the absenteeism on the student's report card, such as "absenteeism from school limits progress" (Parent Ex. AA at p. 4). Petitioner's daughter acquired four out of five possible credits toward graduation during the 2002-03 school year (Parent Ex. D at p. 2). Even through she failed the Math course, she passed the RCT in Math with a 73 (id.). Petitioner testified that her daughter "doesn't have a math problem" (Tr. pp. 492-493). Respondent's director of special education testified that the student's absences negatively affected her performance in academic subjects, especially Math due to the sequential nature of the subject (Tr. pp. 42-43). She further opined that the student was capable of passing academic subjects (Tr. p. 57). The student's resource room teacher also testified that the amount of absences especially for Math was problematic (Tr. pp. 217, 286, 341).

        The student completed a speech-language re-evaluation in April 2003 (Dist. Ex. 53). Scores on the Clinical Evaluation of Language Fundamentals-3 (CELF-3) subtests improved or remained constant since the previous administration in December 2001. The speech-language pathologist testified with respect to her implementation of the 2002-03 IEP goals, stating that the student performed in the average range on tasks involving phonetics, auditory memory, auditory recall, sentence structure and vocabulary by the end of the 2003 school year (Tr. pp. 143-147, 150-159). By letter dated June 5, 2003 petitioner requested that respondent make certain accommodations for her daughter and employ a particular method of teaching to address the student's reading and spelling issues (Parent Ex. E). Respondent's CSE developed the 2003-04 IEP that addressed the parent's request for a reader for tests by providing for questions to be read for Math, Science and Social Studies technical vocabulary as a test modification. It was determined that in view of the student's "stronger academic reading comprehensive ability," a reader was not required (Dist. Ex. 4 at p. 4). Petitioner's request for one on one instruction was denied by the district, which reported that the student's academic performance did not indicate she required such a restrictive service. Respondent's CSE approved daily resource room to support the student in writing and skill development (Dist. Ex. 4 at pp. 1, 4). Speech-language therapy was discontinued as a result of progress made during the school year and petitioner's request to discontinue the speech-language therapy (Tr. pp. 536-37; Dist. Ex. 4 at p. 4). The student's classification was changed from speech or language impaired to learning disabled (Dist. Ex. 4 at p. 4).

        By letter dated August 19, 2003, petitioner requested an impartial hearing seeking tuition reimbursement, associated costs and transportation due to an alleged failure by respondent to offer an appropriate program for the 2003-04 school year because it did not provide the type of instruction that was recommended for the student and which Kildonan provides (IHO Ex. 1). The hearing began on September 12, 2003 and testimony was heard over eight days, concluding on April 26, 2004. The hearing officer rendered his decision on July 19, 2004 finding that respondent offered to provide an appropriate IEP. The hearing officer found that respondent offered to provide the student a FAPE and that the petitioner did not meet its burden of proving that the services provided to the student by Kildonan were appropriate. The hearing officer denied petitioner's request to be reimbursed for the cost of her daughter's tuition and expenses at Kildonan for the 2003-04 school year.

        On appeal, petitioner claims the impartial hearing officer erred in denying tuition reimbursement and alleges that the student was denied a FAPE for the 2003-04 school year because the 2003-04 IEP was both procedurally and substantively flawed.

        The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), developed by a school district, 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 Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). 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 Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

        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 [2001]; 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 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]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130). The program recommended by the CSE must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][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). 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][1]; 8 NYCRR 200.4[b][5][ii][b] and [d][2][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][2]; 8 NYCRR 200.4[d][2][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][7]; 8 NYCRR 200.4[d][2][iii] and [x]).

        First, I will address petitioner's claim that respondent did not comply with required "procedural safeguards. Petitioner contends that respondent's CSE failed to evaluate the student until weeks after the 2003-04 IEP was developed, thereby violating "the IDEA requirement that the student's progress be reviewed at least annually" (Pet. ¶ 57). I find this contention to be without merit. The CSE met on June 5, 2003 to develop the 2003-04 IEP (Dist. Ex. 4). The 2003-04 IEP notes that the student "no longer requires [s]peech/[l]anguage services as of June, 2003, based on progress and recent test results" (Dist. Ex. 4 at p. 1). Petitioner testified that she spoke to the speech therapist and agreed with the speech therapist that her daughter was doing well with speech therapy and that she didn't need speech therapy as of June 2003 (Tr. pp. 536-37). The comment section of the 2003-04 IEP contains a statement that the student had become resistant to individual counseling and a recommendation to discontinue counseling for the 2003-04 school year. However, it also allowed the student to see the school psychologist at any time (Dist. Ex. 4 at p. 4). At the CSE meeting, the committee considered updated academic testing, reports on the student's progress from both her teacher and speech therapist, as well as information provided by the mother including a letter from a neuropsychologist, and numerous evaluations cited in the IEP (Dist Ex 4 at pp 2-4). I find that respondent's CSE reviewed the student's progress and had sufficient information to determine present levels of performance at the time it developed the student's 2003-04 IEP.

        Petitioner further contends that her daughter's June 5, 2003 IEP was not reasonably calculated to enable her to receive educational benefits. She asserts that her daughter in the 2002-03 school year had to drop an art class, and passed only four out of the five classes left, leaving the student frustrated and having low-self esteem. The hearing officer found that the student's 2003-04 IEP was procedurally without defect and reasonably calculated to provide the student with a meaningful opportunity to obtain educational benefits (IHO Decision p. 14). He found that the student passed a Biology Regents and passed RCT's in Math and Science during the 2002-03 school year. In addition, the record shows that speech language skills improved to such a degree that she not only required a change in classification, but no longer required speech-language therapy for the 2003-04 school year (Tr. p. 169; Dist Ex. 4 at p. 4). The hearing officer concluded that the student received educational benefits in the previous 2002-03 school year with the exception of failing a Math class, which he opined to have occurred because of "other reasons" (id.).

        Testing throughout the student's academic career has documented her average to above average cognitive abilities (Dist. Ex. 49 at p. 3). Her academic achievement abilities were average with the exception of weakness in spelling, writing and decoding (Dist. Ex. 50 at p. 3). However, the student's frequent absenteeism and tardiness affected this student's performance in the 2002-03 school year (Tr. pp. 44, 71, 125-127, 206-207, 370-372, 405-7, 413; Dist. Ex. 50 at p. 4, Parent Exs. D at p. 2, BB). Respondent's June 5, 2003 CSE appropriately considered the student's frequent absenteeism for the 2002-03 school year as a factor contributing to the student's academic performance. As a result of this consideration, the CSE for the 2003-04 school year established an annual goal on the IEP for the student to "[a]ttend school and all classes to meet attendance requirement with 80 percent mastery, evaluated by utilizing recorded observations, as assessed by the resource room teacher" to address the absenteeism concern (Dist. Ex. 4 at p. 5). During the 2002-03 school year the resource room teacher telephoned petitioner about the student's attendance when the student was absent. According to the teacher, when she had called petitioner, the student’s mother indicated that the student was at home sick (Tr p. 290). The teacher further testified that after she would call, the student would be back in school the next day (Tr. p. 290). The IEP goal relating to absenteeism was developed and added to address the student's poor attendance during second half of the 2002-03 school year (Dist. Exs. 4 at p. 5, 50 at p. 4, Parent Exs. D at p. 2, BB, CC; Tr. pp. 44, 71, 125-127, 206-207, 370-372, 405-7, 413). The teacher testified that she would implement this objective in 2003-04 by calling the family when absences occurred and communicating with the student and her teachers about her absences (Tr. p. 290).

        Overall, the levels of service and goals developed for the 2003-04 IEP adequately identify and address areas of need based on her present level of performance evidenced on numerous evaluations (Dist. Ex. 4 at pp. 2-3). For the 2003-04 school year the district offered one period of daily resource with specific test accommodations, program modifications and assistive technology devices (Dist. Ex. 4 at pp. 1-2). The IEP goals and objectives regarding study skills were developed to address the student's identified needs in the area of homework organization (Tr. pp. 41, 205, 283; Parent Ex. AA). The resource room teacher testified she would have implemented these goals by checking with the student and her other teachers to ensure the assignments were completed (Tr. pp. 248-250) and progress would be assessed via observation and communication with the student's other teachers (Tr. p. 250). The IEP goals and objectives regarding reading were developed to address the student's identified needs in the area of decoding (Tr. pp. 21, 260; District Ex. 50 at p. 1). The resource room teacher testified she would have implemented these goals by reviewing high frequency sight words, teaching the student to "break words up into syllable, how to sound out each part of the word'" and documenting the student's efforts in sounding out words read our loud (Tr. pp. 250-252). The teacher testified progress would be assessed via a "running record" of correct vs. incorrect syllables/words read orally (Tr. pp. 251-52). The IEP goals and objectives regarding written language such as spelling, capitalization and punctuation stem from identified needs (District Exs. 49 at p. 5, 50 at p. 3; Parent Ex. T at p. 13). The resource room teacher testified she would assess the student's errors, teach the correct answer, and re-assess her writing for generalization of the new skill (Tr. pp. 252-54). The teacher also indicated she would have reviewed the student's writing portfolio, rough drafts of assignments and use of the spell check device to implement the IEP goals (Tr. pp. 253-54). The teacher testified progress would be assessed by evaluating writing samples and looking at the ratio of correct/incorrectly spelled words. She would also be evaluating the student's ability to use the spell check device to find the correct spelling of a word (Tr. pp. 253-254). The IEP goals and objectives regarding written expression were developed to address the student's identified needs in the area of writing (Dist. Exs. 49 at p. 5, 50 at p. 3). The resource room teacher testified that although she did not see a deficit in the student's written expression at the beginning of the 2002-03 school year, she would be responsible for reviewing preliminary "brainstorming" work toward the writing assignment and discussing the student's plan for an essay (Tr. pp. 254-55, 280). The teacher testified progress would be assessed via observation of the student's writing to see if she was using the ideas she developed in the brainstorming session, as well as evaluation of her writing portfolio (Tr. pp. 254-55).

        The proposed 2003-04 IEP offers a program designed to address the student's needs by offering academic support while allowing the student to remain in the general education setting enabling her to receive educational benefits (Tr. pp. 84, 341-42).

        I find that the program as recommended by the June 5, 2003 CSE was appropriate at the time it was formulated and that respondent has met its burden of demonstrating that the student's IEP was reasonably calculated to enable the student to receive educational benefit. Having determined that the challenged 2003-04 IEP was appropriate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year. Petitioner is not entitled to tuition expenses, and I need not reach the issue of whether or not Kildonan 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. 04-008, Application of a Child with a Disability, Appeal No. 04-003). The appeal is dismissed on the merits in addition to being dismissed as untimely.

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






Dated: Albany, New York   __________________________
  October 14, 2004   PAUL F. KELLY