The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE TACONIC HILLS CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorney for petitioner, Kenneth S. Ritzenberg, Esq., of counsel
Family Advocates, Inc., attorney for respondent, RosaLee Charpentier, Esq., of counsel
Petitioner, the Board of Education of the Taconic Hills Central School District (district), appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for her son's tuition costs at the Kildonan School (Kildonan) from January 20, 2004 until the conclusion of the 2003-04 school year. The appeal must be sustained.
Respondent's son has a medical diagnosis of an attention deficit hyperactivity disorder (ADHD) for which he has been treated successfully with medication since his kindergarten year (Dist. Ex. 1). In December 2000, when respondent's son was nine years old and in third grade at petitioner's elementary school, the child was referred by his pediatrician to a clinical psychologist for a psychological examination (Dist. Ex. 1). The psychologist administered a battery of tests, including the Wechsler Intelligence Scale for Children - Third Edition (WISC III), wherein the child achieved overall cognitive scores in the high average range (113), verbal scores in the low average range (92), and nonverbal scores in the superior range (135) (id. at 4). The psychologist concluded that the child showed signs of a language-based learning disability, a developmental reading disability, and ADHD (id. at 3-4). Particular areas of weakness were noted in language processing and phonics (id. at 5) and short-term memory (id. at 3); while strengths were noted in nonverbal cognitive skills, which were described as "exceptional" in nature (id. at 5). The psychologist recommended the child be placed in a special reading program, with modifications, and that speech-language therapy be considered (id. at 5). The child was referred to petitioner's Committee on Special Education (CSE) (Parent Ex. K; Tr. p. 771), which on February 17, 2000 classified the child as learning disabled and developed an individualized education program (IEP) for him for the remainder of the school year (Dist. Ex. 2). The program placed the child in petitioner's public school in a 15:1+1 special education inclusion class for language arts five days per week for 60 minutes, with goals and objectives in language arts, and various testing modifications (Dist. Ex. 2). The IEP also referred the child for a speech-language evaluation (id.).
The CSE reconvened on June 13, 2000 to develop the child's program for the upcoming fourth grade 2000-01 school year (Dist. Ex. 3). The 2000-01 IEP placed the child in the inclusion class for language arts for 90 minutes five days per week, but added speech-language services for 30 minutes twice per week and learning center (resource room) services for reading 20 minutes five days per week (Dist. Ex. 3; Tr. p. 40). The IEP included goals and objectives for language arts, organization, and speech-language skills (id.). The CSE Chairperson reported that the student made progress in reading, spelling, and word attack skills in the fourth grade (Tr. p. 49). For the fifth grade 2001-02 school year, the student remained in a reading resource room for 20 minutes five days per week and a language arts inclusion class 60 minutes five days per week, but his speech therapy sessions were reduced to twice per month, and, at the student's mother's request, a 30 minute counseling session was added once per week (Dist. Ex. 5; Tr. pp. 49-51). His resource room services consisted of 20 minutes of daily instruction in reading using the Orton-Gillingham methodology (see Dist. Ex. 5; Tr. pp. 420, 422, 440), which is a sequential and multisensory approach to reading (see Parent Ex. E). Goals and objectives were provided in organization, reading, writing, and counseling (Dist. Ex. 5). The student's teachers reported that the student's ADHD manifested itself in the classroom by virtue of the fact the student was an active child, sometimes tapping or fidgeting, with episodes of lack of focus, but that he responded favorably to verbal prompting and redirection (Tr. pp. 420-22; Dist. Ex. 39 at 2-3; Tr. pp. 47, 268-69, 278, 420-22, see also Tr. p. 535).
The CSE met on May 30, 2002 to develop the student's program for the sixth grade 2002-03 school year (Dist. Ex. 18). The Child Study Team recommended to the CSE that the student continue to be classified learning disabled and receive services based on his writing disability (Parent Ex. R). The CSE Chairperson noted that recent testing had revealed that the student's reading was now on a par with his peers, but his writing skills still lagged behind (Dist. Ex. 18 at 2; Tr. pp. 62-63). Although the parent continued to profess that the student had a reading disability, while other CSE members disagreed with her, all members of the CSE agreed that the student continued to be eligible for services as learning disabled based on his disability in written language (Dist. Ex. 18 at 2). The 2002-03 IEP placed the student in an inclusion class for written language for 45 minutes five times per week, and continued multisensory instruction in reading in his resource room sessions for 20 minutes five times per week, but speech-language and counseling services were discontinued, and two 30-minute sessions of indirect consultant teacher services were added (Dist. Ex. 19 at 4; see also Dist. Ex. 31). Goals and objectives were provided to address deficits in attention, reading and writing (id.). Respondent enrolled her son in summer school classes at Kildonan during the summers of 2002 and 2003, where he was taught using the Orton-Gillingham method of instruction for reading (Dist. Exs. 16, 43; see Parent Exs. E, G, H).
In spring 2003 the student's triennial evaluation was performed (see Dist. Exs. 36, 39, 40, 41). The psychoeducational report dated May 5, 2003 yielded standardized test scores similar to the student's January 2000 scores: administration of the Wechsler Abbreviate Scale of Intelligence (WASI) yielded a verbal IQ score of 92 (average range), a performance IQ score of 119 (high average range), and a full scale IQ score of 106 (average range) (Dist. Ex. 39 at 4). On the planning and attention scales of the Das-Naglieri Cognitive Assessment System (CAS) the student did very well, scoring in the superior and high average range, which was interpreted by the school psychologist as indicating that the student's medication for ADHD was effective; however, he showed weaknesses in subtests related to short-term memory processing (Dist. Ex. 39 at 4-5, 8). On the Wechsler Individual Achievement Test - Second Edition (WIAT-II) the student achieved standard (and percentile) subtest scores of 84 (14) in reading comprehension (low average range), and 96 (39) in word reading (average range) (Dist. Ex. 39). The school psychologist administering the tests noted that the student appeared to lack motivation during the reading comprehension subtest and that, therefore, his scores on that test may underestimate his achievement (Dist. Ex. 39 at 3; Tr. pp. 279-80). The student scored in the low average range for written expression and spelling on the Oral and Written Language Scales Test (OWLS) and the Test of Written Spelling - Fourth Edition (TWS-4) (Dist. Ex. 39 at 6). The school psychologist concluded in the evaluation that the student had average to high average intellectual ability (Dist. Ex. 39 at 8), with weaknesses in written language skills, organization, focus, and completing homework assignments (Dist. Ex. 39 at 2, 8). The report contained fifteen specific recommendations concerning accommodations and strategies for the teachers to use to assist the student in areas such as reading, writing, organization, and memory (Dist. Ex. 39 at 8-9). In addition, a speech-language evaluation noted a mild receptive language delay and recommended speech therapy services resume for the student twice per week (Dist. Ex. 40).
In May and June 2003 the CSE met to develop the student's program for the seventh grade 2003-04 school year (Dist. Exs. 42, 46, 47). When the issue of reading goals was raised at the May CSE meeting, the parent and the school psychologist initially felt that reading comprehension goals should be included in the IEP, but the student's reading resource room teacher, special education teacher, and regular education teacher all indicated that they did not believe the student needed reading goals and objectives anymore based on his performance in the classroom (Dist. Ex. 42 at 2; Tr. pp. 93-94). The resultant May draft IEP recommended a resource room for study skills and organization (see Tr. p. 232), but did not recommend a reading resource room or reading goals and objectives; instead, the draft IEP recommended a remedial reading lab to assist the student with his reading needs (Dist. Ex. 42).
The CSE met again in June to finalize the 2003-04 IEP. The resultant June 10, 2003 IEP continued to classify the student as learning disabled, placing him in a special education inclusion class for English for 40 minutes five days per week, a specialized organization skills study hall for 30 minutes five days per week and a remedial reading lab, discontinued indirect consultant teacher services but reinstated speech-language services for 40 minutes twice per week (Dist. Ex. 47 at 5). The IEP provided goals and objectives for organization, study skills, writing, and receptive/expressive language skills (Dist. Ex. 47). No mention was made in the IEP of the use of multisensory instruction in reading and no goals and objectives were included for reading (Dist. Ex. 47). The CSE also approved respondent's request to obtain a new independent educational evaluation (IEE) (Dist. Ex. 46 at 2). The parent again raised the issue of adding reading goals and objectives to the IEP (Dist. Ex. 46 at 1-2; Tr. pp. 842-43). There was disagreement between the parent and the district CSE members regarding the student's reading needs; the student's teachers continued to recommend the reading lab as sufficient to address the student's needs, but the parent felt it would be ineffective without including specific reading goals and objectives in the IEP (Dist. Ex. 46 at 2; see also Tr. pp. 909-10, 950-51). The CSE Chairperson offered to revisit the issue of adding reading goals and objectives to the IEP after the IEE was completed (Dist. Ex. 46 at 2; Tr. pp.100-102, 909-12). By letter dated August 4, 2003, respondent objected to her son's 2003-04 IEP and requested an impartial hearing (Hearing 1) (Dist. Ex. 49). Both parties agreed to continue using the student's sixth grade 2002-03 IEP (Dist. Ex. 31) as his pendency placement beginning in September 2003 until the dispute over the 2003-04 IEP was resolved (Parent Ex. Z, Dist. Ex. 50; see Dist. Ex. 54 at 23, 24). The district received the IEE from the parent's evaluator on October 20, 2003 (Dist. Ex. 51; Tr. pp. 108-109).
On the first day of Hearing 1, November 4, 2003, the parties indicated that they had reached a settlement agreement (Dist. Ex. 54 at 2-3). The terms of the settlement agreement were placed on the record as follows (Dist. Ex. 54 at 2-9). First, it was agreed that the CSE would meet and develop a new 2003-04 IEP for the student and that the IEP would specifically include: (1) 40 minutes five days per week of 5:1 reading instruction in a multisensory program, (2) "explicit" reading goals and objectives developed by the CSE using both the district's psychoeducational report and the new IEE as guides, (3) that weekly reports will be sent to the parent on the reading material covered, (4) that the reading teacher will meet with the parent quarterly to review the student's progress, (5) that the student's inclusion teacher will keep a home/school journal on the student with daily notations, (6) that the student will maintain a planner to log daily assignments which will be initialed by each of the student's regular classroom teachers, (7) that weekly study guides and classroom notes will be provided to the parent, (8) that the student will be given extended time for tests, and other test modifications as determined by the CSE (Dist. Ex. 54 at 2-9). The stipulation specified that the new IEP would be "completed no later than the 18th of November" (Dist. Ex. 54 at 9). In return, the parent agreed to waive all other issues surrounding the 2003-04 IEP, and agreed she would be precluded from filing a request for another impartial hearing until the district proposed an IEP for the 2004-05 school year, which the district was to complete by April 1, 2004 (id.). The stipulation agreement was accepted in full by Hearing Officer 1 (Dist. Ex. 54 at 25-26).
The CSE met on November 13, 2003 and started developing a "draft" IEP incorporating some of the terms specified in the settlement agreement; i.e., the organizational skills resource room was changed to a reading resource room, quarterly meetings with the parent and reading teacher were added, as well as weekly distribution of classroom notes and study guides to the parent (Dist. Ex. 57 at 2-6). The student's mother agreed to give the other members of the CSE until November 21, 2003, three days beyond the settlement agreement deadline, to come up with a completed IEP (Tr. pp. 884, 938-39, 956, 208) to allow the reading teacher time to draft the reading goals and objectives and to send copies of these to the CSE Chairperson and mother for their approval (Dist. Ex. 55; Tr. pp. 123-24, 549). On Friday, November 21, a "draft IEP" was delivered to the parent (Dist. Ex. 57 at 2-7; see Dist. Ex. 53 at Nov. 21, 2003; Tr. pp. 558, 883). The draft consisted of the same version of the IEP as it existed on November 13, plus an additional half-page of two general reading goals and five general reading objectives, with no mastery rates, reporting schedules, or present levels of performance relating to those goals and objectives (Dist. Ex. 57 at 7). The draft IEP made no mention of multisensory instruction or a 5:1 ratio for the reading class (id.).
On the same day she received it, the parent noted in the daily home/school journal that she found the new draft IEP unacceptable and reportedly left a message on the CSE Chairperson's answering machine rejecting it (Tr. p. 940; see Dist. Ex. 53 at Nov. 21, 2003; Dist. Ex. 58; Tr. p. 209). The following Monday the parent spoke to the CSE Chairperson by phone and again expressed her dissatisfaction (see Dist. Ex. 58; Tr. pp. 941, 943; see Tr. pp. 127, 205). On November 25th she sent a copy of the draft IEP to her attorney with her complaints noted on it (see Dist. Ex. 57 at 2-7; Tr. pp. 886-87, 121-22). On December 18, the parent left a copy of the draft IEP with her proposed changes at the school and reiterated in the daily home/school journal that she was still very unhappy with the proposed IEP, and stated that if the district cannot implement it as per the terms of the settlement agreement, then "other options need to be considered" (Dist. Ex. 53 at Dec. 18, 2003; see Tr. pp. 544, 942). The draft IEP with respondent's comments was apparently not given to the CSE Chairperson (Tr. pp. 127, 958), but he was aware that the parent had rejected it (Tr. pp. 204, 943). On December 23, 2003 the parent's attorney faxed another copy of the November 21 draft IEP with the parent's handwritten comments on it to the district (Dist. Ex. 57).
By letter dated January 6, 2004, the parent noted her several unsuccessful attempts to get the district to revise and finalize the November draft IEP, noted that she had requested that they go back to the hearing but nothing had been done (a fact disputed by the CSE Chairperson, see Tr. p. 205), and she notified the district of her intentions to place her son at Kildonan beginning January 19, 2004 and to seek tuition reimbursement (Dist. Ex. 58). Two days later the district sent a letter to the parent scheduling a CSE meeting for January 16, 2004 (Parent Ex. A). The parent advised by letter that she could not attend on that date, and requested an impartial hearing on tuition reimbursement (Dist. Ex. 59). On January 16, members of the CSE met and developed another "draft IEP" which added specific reading goals and objectives, with mastery rates and reporting schedules and more detailed descriptions of the student's present levels of performance to the draft IEP, and also specified that the reading class was "multisensory" and not to exceed five students (Dist. Ex. 56). Statements from the IEE were included in the draft IEP's present levels of performance and reading objectives sections (Dist. Ex. 56 at 1, 3). The CSE met with the parent on January 29, 2004 "in order to finalize the IEP that was drafted on November 13" (Dist. Ex. 61; Tr. p. 133). In the resultant final January 29, 2004 IEP, the individual goals and objectives were reviewed and refined as suggested by the parent (Tr. p. 134); four out of five of the IEE evaluator's recommendations were incorporated verbatim into the present levels of performance section, 12 out of 15 of the recommendations on the district's psychoeducational evaluation were added to the IEP, and, at the mother's request, an additional period of resource room focusing on study skills for 40 minutes five days per week was added back into the final IEP (Dist. Ex. 62; see Dist. Ex. 61; Tr. p. 139). Respondent's son remained enrolled at Kildonan for the remainder of the 2003-04 school year (see Tr. p. 891).
A new hearing officer was appointed in response to respondent's second due process hearing request, and Hearing 2 began on May 15, 2004. On July 31, 2004 the hearing officer rendered a decision finding that, based on an examination of the June 10, 2003 IEP, petitioner failed to offer the student a free appropriate public education (FAPE) for the 2003-04 school year, that Kildonan met the student's needs, and ordered petitioner to reimburse respondent for tuition costs from January 20, 2004 through the end of the 2003-04 school year. Petitioner appeals, arguing that the hearing officer in Hearing 2 erred by basing his decision on the wrong IEP and claims that the district did offer the student a FAPE in the program developed in the January 29, 2004 IEP. Petitioner further contends that Kildonan did not meet the student's needs, and that the hearing officer's order for reimbursement should be annulled.
As a preliminary matter, in reference to the effect of the prior settlement agreement on the instant due process request, there is no question that the district breached the settlement agreement by not having a new final IEP for the 2003-04 school year, with all the agreed upon elements from the settlement agreement, completed by November 21, 2003 at the latest (as extended by agreement of the parent). Settlement agreements and stipulations are favored by courts as a means of settling disputes, and they may not be lightly set aside (Application of a Child with a Disability, Appeal No. 03-044; Application of a Child with a Disability, Appeal No. 893-27; see D.R. v. East Brunswick Bd. of Educ., 109 F.3d 896 [3d Cir. 1997] cert. denied 522 U.S. 968 ; Hallock v. State of New York, 64 N.Y.2d 224, 230 ; Application of a Child with a Disability, Appeal No. 96-67). The CSE Chairperson testified that the CSE delivered a draft IEP instead of a final IEP to the parent on November 21 in an effort to incorporate the parentís comments before finalizing the IEP at some future CSE meeting (Tr. pp. 957-58, 126), but such efforts should have been made prior to the November 21 deadline, since the settlement agreement did not allow for this additional time. In any event, the end result is that the settlement agreement is now void, and, therefore, respondent is also no longer bound by her agreement to waive any claims relating to the districtís failure to provide her son with a FAPE for the 2003-04 school year, and her tuition reimbursement claim is herein reviewed anew without constraint.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ßß 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. ß 1400[d][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. ß 1401; 34 C.F.R. ß 300.13; see 20 U.S.C. ß 1414[d]). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).
To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 ). 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). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett 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 WL31521158 [S.D.N.Y. Nov. 14, 2002]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. ß 1412[a]; 34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the studentís 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. 04-046; 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 Suspected of Having a Disability, Appeal No. 93-9). Federal regulations require that an IEP include a statement of the studentís present levels of educational performance, including a description of how the studentís disability affects his or her progress in the general curriculum (34 C.F.R. ß 300.347[a]; see 8 NYCRR 200.4[d][i]). 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 studentís present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
In the instant case, at the start of the 2003-04 school year the district had offered and made available to respondentís son the program developed in the June 10, 2003 IEP (Dist. Ex. 47; Tr. p. 104); that was the only final IEP in existence on the 2003-04 school year prior to respondentís enrollment of her son in Kildonan on January 20, 2004, hence, that IEP is at issue in this proceeding. On January 29, 2004 a new IEP was developed and finalized, effective from January 29, 2004 until June 25, 2004 (Dist. Ex. 62). That January 29, 2004 IEP is at issue for the remainder of the student's attendance at Kildonan during the 2003-04 school year.
According to the studentís regular and special education teachers (Tr. pp. 266-68, 275, 326), the districtís psychoeducational evaluation (Dist. Ex. 39), and the IEE (Dist. Ex. 51), at the time of the June 10, 2003 IEP, the studentís ADHD had its most significant impact upon him in the areas of short-term memory, writing, organization, and study skills. His teachers reported that his main problem areas were in written language, organizational skills, and turning in homework (Tr. pp. 266-68, 275, 326, 455). Although he had been able to complete assignments at grade level in the classroom with assistance and had performed satisfactorily in sixth grade (Tr. p. 267), his teachers reported that the student benefited from assistance with organization of his work through use of folders, assignment books, and regular checking of his work (Tr. p. 535). The studentís mother reported that the student had difficulty completing homework assignments at home (Tr. p. 267). No behavioral difficulties were identified in the school setting (Tr. pp. 32, 65-66, 452-53). Standardized tests administered by the school psychologist in May 2003 noted continued weaknesses in written language skills, spelling, organization, focus, short-term memory and completing homework assignments (Dist. Ex. 39 at 2, 8; Tr. pp. 291, 286, 294, 339-41, 344). The independent evaluator likewise noted weaknesses in short-term memory and written language (Tr. pp. 600-04), and noted that teachers must keep the student refocused and on task (Tr. p. 613).1 An April 2003 speech-language evaluation also identified a "mild receptive language delay secondary to difficulty with verbal recall" and possible "mild difficulties with word retrieval" (Dist. Ex. 40).
The June 10, 2003 IEP accurately describes the studentís present levels of performance as reflected by the inclusion of the studentís most recent standardized test scores, descriptive narratives, strategies, and incorporation by reference to the more detailed May 2003 psychoeducational report (Dist. Ex. 47; see Dist. Ex. 39). The June 2003 IEP describes the student as having cognitive abilities in the average range based upon standardized tests conducted in April 2003 (Dist. Ex. 47). The IEP notes that the student tends to rush to complete tasks and does not always take time to edit his work, and that he responds well to verbal prompting (id. at 1). Under management needs, the IEP reflects this need by indicating the studentís need to become more independent in proofreading and editing (id. at 2). Spelling deficits are reflected in the identification of strategies to improve his skills as an independent speller (id. at 2). Difficulties with organization and completion of assignments are addressed through identification of his need to have long-term assignments broken down into short-term goals (id. at 2). Management needs addressing behavior reflect the studentís need for assistance in maintaining focus and completing assignments as well as his ability to respond to cues and positive reinforcement (id. at 2). Instructional strategies of checking work in progress and monitoring assignments also reflect his difficulties with task completion (id. at 2). Use of mnemonics as an instructional strategy addresses the studentís difficulties with short-term memory identified by both the school psychologist and the private evaluator (id. at 2). Access to a computer addresses the studentís need for assistance with organization of written work and access to a spell check addresses his spelling difficulties (id. at 2). As further support for the studentís management needs, the June 2003 IEP identifies provision of study outlines, folders to organize assignments, a daily homework list, assignment pad, a student planner, and the posting of classroom routines (id. at 2).
An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. ß 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. ß 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]).
To address the studentís organization, study skills and written language needs, the CSE recommended several related services in the June 2003 IEP. The CSE recommended that the student receive 40 minutes per day of direct instruction in a special inclusion class for English, staffed by both a regular and a special education teacher, which would address language arts skills (Dist. Ex. 47 at 5; see Tr. pp. 41, 531). It also recommended a specialized study hall for 30 minutes five days per week to assist the student with written assignments, organization, and study skills through direct instruction in a special education setting (Dist. Ex. 47 at 5; Tr. p. 186). Speech-language therapy was also recommended twice a week for 40 minutes, as recommended by the speech-language evaluation, to assist the student with his receptive language deficits (Dist. Ex. 47 at 5). In addition, although the student was reading at grade level (Tr. pp. 302-06, 445-46, 454-55, 464, 488), in order to address the concerns expressed by the studentís mother and, to a lesser extent, the school psychologist, the CSE recommended a general education remedial reading lab, as recommended by the studentís reading teacher, to offer additional reading support (Tr. pp. 464-65).
The June 2003 IEP also lists extensive test modifications which address the studentís written language deficits and his attentional deficits, including provision of a test location with minimal distractions, passages broken into segments, checking for understanding, no penalty for spelling, additional time allowed, and answers recorded in any manner (Dist. Ex. 47 at 2). Concerns about the studentís tendency to work quickly and without proofreading were addressed through various test modifications including provision of reminders to slow down and having tests reviewed by the student with a teacher or aide before they were to be handed in (id. at 2). In addition, in response to the motherís expression of concern regarding completion of homework assignments, the IEP also lists additional strategies for communication between home and school as well as recommendation of the development of an incentive plan to encourage the studentís independence in organization of his desk, locker and book bag (id. at 3).
An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the studentís needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the studentís other educational needs arising from the disability (34 C.F.R. ß 300.347[a]; see 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the studentís progress towards the annual goals will be measured and how the studentís parents will be regularly informed of such progress (34 C.F.R. ß 300.347[a]; see 8 NYCRR 200.4[d][x]).
Consistent with the studentís needs, the June 2003 IEP provides one goal and four objectives in organizational skills; one goal and two objectives in study skills; one goal and six objectives in writing; and one goal and three objectives in speech-language skills for the student (Dist. Ex. 47 at 3-4). While the organizational goal ("The student will increase organizational skills") (Dist. Ex. 47 at 3) and one of its objectives is vaguely stated, the remaining three organizational objectives provide sufficient specificity to allow a teacher to implement the objectives and adequately address the studentís areas of organizational need. These three organizational objectives address the very concrete skills of using an assignment notebook, maintaining assignments in folders and coming to class prepared with the appropriate materials, all of which are particularly important because the student was moving from a self-contained sixth grade general education class to departmentalized classes in the seventh grade mainstream. Each organizational objective was measurable as evaluated through teacher observations and recorded on checklists. The goal addressing study skills also suffers from vagueness, but its objectives of completing homework assignments on time and using note-taking strategies speak directly to the studentís needs and are measurable by teacher observation, tally, and checklists (Dist. Ex. 47 at 3). The goal addressing the studentís written language deficits is again rather vague in that it refers to the studentís application of "different strategies" to maintain a passing average in grade seven (Dist. Ex. 47 at 3). However, this writing goal has six objectives which address the studentís specific writing needs relating to use of graphic organizers, punctuation and grammar, use of spelling aides, organization of information and steps in the writing process. The written language objectives also offer sequential steps of increasing difficulty, progressing from the editing of final drafts to the correct use of writing mechanics in all written work. Evaluation was to be accomplished through review of homework assignments, reinforcing the other aspects of the IEP which address this concern, as well as thorough review of written work completed in the classroom. The speech-language goal is once again vaguely written ("The student will improve receptive and expressive language skills") (Dist. Ex. 47 at 4), but the accompanying objectives offer some specificity, and it is likely that the clinician who proposed them could have implemented them appropriately. Unfortunately, all three speech-language objectives are too broadly stated and do not allow for determination of progress by the CSE, or by anyone else working with the student without clarification by the clinician who was to implement them. The CSE is cautioned to require more specificity regarding all IEP goals, especially with respect to levels of performance and expectations in speech-language goals (see Sample Individualized Education Program and Guidance Document, VESID, December 2002, at pp. 54-61); however, given the overall thoroughness with which the CSE addressed the studentís educational needs related to his written language and attentional deficits, this weakness in the IEP is not sufficient to warrant a determination that the IEP in its entirety is inappropriate.
The parent argues that the student had reading difficulties that required multisensory instruction in reading and that specific reading goals and objectives needed to be included in the 2003-04 IEP (Tr. pp. 843-44; see Dist. Ex. 52). The school psychologist noted that on her earlier testing for the psychoeducational evaluation the student had scored in the low average range on reading comprehension, and although she did not think the student was a "severely deficient reader" (Dist. Ex. 46 at 2), she did have some concerns at the CSE meeting based on this test score. However, as noted, the testing portion of the psychoeducational report noted that the studentís low scores on the reading comprehension subtest may not be indicative of his true achievement level due to the studentís apparent lack of motivation that day on that particular subtest (Dist. Ex. 39 at 3; Tr. pp. 279-80, 289, 306). Moreover, two reading teachers were present at the June 10 2003 CSE meeting: the reading lab instructor, and the studentís sixth grade reading teacher (Dist. Ex. 46). The reading lab instructor informed the CSE that she had administered standardized tests to the student after the May 2003 psychoeducational evaluation and that the student had achieved average scores in reading comprehension and she did not think he had a reading disability (Dist. Ex. 46 at 2; Tr. pp. 100, 302-03, 305-06). The studentís regular education and special education teachers agreed that in class the student was currently in the average range in oral reading and comprehension, able to read and understand grade level books, and they saw no signs of a reading disability (id.). The studentís sixth grade reading teacher, who was a certified reading teacher and had been teaching the student for the last two years (Tr. pp. 410, 415), also agreed that the student was reading "very solidly right on grade level" with his peers in sixth grade (Tr. p. 455) and that he could read and follow regular textbooks in the classroom and had no problem in decoding words (Tr. pp. 445-46; 454-55, 464, 488). At the hearing, she produced three tests from her sixth grade resource room work with the student from April 2003 and May 2003 which showed the student was reading grade level material at a 99% accuracy level (Tr. pp. 515-16).2 While she saw the student as having a lack of focus, she did not think the student had a reading disability (Tr. pp. 457, 463), and she described his reading skills as "strong average" (Tr. p. 465). She testified that she hadnít prepared reading goals and objectives for the studentís 2003-04 IEP because she didnít feel they were necessary for the student anymore (Tr. pp. 458, 462, 519). The parentís evaluator stated that the remediation in reading that he believed the student required could be delivered in a public school setting and that either a resource room or a reading lab could be sufficient to improve the specific reading subskill areas that he had mentioned as weaknesses in the studentís evaluation (Tr. pp. 646, 607, 609).
As noted, the resultant June 2003 IEP included a remedial reading lab for the student through Academic Intervention Services (AIS) for 30 minutes every other day (Dist. Ex. 47 at 5; Dist Ex. 46 at 10; Tr. pp. 483-84, 100-101, 276). According to the CSE Chairperson, the student's reading lab would provide "a specific reading comprehension and multisensory reading approach" by a certified reading teacher (Tr. p. 101). The psychoeducational report, incorporated by reference into the IEP, suggested specific strategies and methodologies for use with the student in his reading lab (Dist. Ex. 39 at 15). In addition, the parentís reading concerns were further addressed by the CSE in the IEP through testing accommodations, which specified that tests be read to the student if they appeared to be above his reading level (Dist. Ex. 47 at 2). Based on the majority of the foregoing evidence indicating average performance in reading and the various provisions that were nevertheless made in the June IEP for continued reading support for the student, the fact that there were no reading goals or objectives in the 2003-04 IEP did not render the educational program contained in the June 10, 2003 IEP inappropriate. In sum, the June 10, 2003 IEP was reasonably calculated to enable the student to receive educational benefits.
A few days after the student began classes at Kildonan, the CSE met and finalized a new IEP for the remainder of the 2003-04 school year, effective January 29, 2004 through June 25, 2004 (Dist. Ex. 62). This January 29, 2004 IEP, based in part on the receipt of the subsequent IEE and in response to the parentís concerns, replaced the remedial reading lab with a reading resource room for 40 minutes five times per week while still retaining the organizational study hall for 40 minutes five times per week, added reading goals and objectives, added requirement for multisensory instruction in reading, and included large portions of both the IEE and the psychoeducational evaluations verbatim as part of the IEP to better describe the studentís needs and present levels of performance (Dist. Ex. 62). Standardized test scores from the IEE were added, recommendations addressing the studentís difficulties with completion of assignments were greatly expanded and, as noted, the IEP included twelve recommendations from the studentís May 2003 psychoeducational evaluation which had previously been referenced by incorporation into the June IEP, as well as four out of five recommendations from the IEE (Dist. Ex. 62). The IEP included one reading goal and seven objectives which are all specific and measurable (id.) and designed according to the IEE and the parentís specifications (Tr. p. 548). The resultant January 29, 2004 IEP provided a greater range of services and was more comprehensive than the June 10, 2003 IEP, which was adequate and provided a FAPE; therefore the January 29, 2004 IEP continued to provide the student with a FAPE for the remainder of the 2003-04 school year. Indeed, respondent concedes in her testimony that the January 29, 2004 IEP includes everything that she believed necessary in order to provide her son with an appropriate educational program for the 2003-04 school year (Tr. p. 946). Based on the foregoing, the district has met its burden of demonstrating that it offered an appropriate educational program for the student for the 2003-04 school year.
Having determined that the 2003-04 IEPs were adequate, petitioner has met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year, and there is no need to reach the issue of whether or not Kildonan was an appropriate placement; respondent 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).3
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled.
|Dated:||Albany, New York||__________________________|
|October 28, 2004||PAUL F. KELLY
STATE REVIEW OFFICER
1The studentís report cards and teacher testimony also verify that the student had a significant problem keeping track of homework assignments and turning them in during the first half of the 2003-04 school year (see Parent Ex. CC; Tr. pp. 534-35, 574).
2At the hearing, the studentís 2003-04 special education teacher/reading instructor also testified that during the studentís seventh grade 2003-04 school year she was using word lists on a sixth and seventh grade level with the student (Tr. pp. 569-70).
3Respondent attached to her Answer various documents pertaining to her sonís academic performance at Kildonan during Hearing 2 that were not previously admitted into evidence; namely, Kildonan report cards from April 23, 2004 and June 8, 2004, a writing sample from May 14, 2004, and results of standardized tests administered at Kildonan in May 2004 (see Answer). In its Reply, petitioner objects to the admission of these documents (see Reply). Generally, documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see generally, Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020). Although the hearing did not conclude until June 14, 2004, the dean of Kildonan testified that, as of June 11, 2004, the June report cards and May test results were not yet finalized (Tr. pp. 720, 741-45), therefore, they were unavailable at the time of the hearing; however, the April 23, 2004 report cards were available at the time of the hearing. All of these documents would be relevant and necessary in making a decision regarding the extent to which the educational program at Kildonan was meeting the studentís needs, but since the district did provide an appropriate program, the question of the appropriateness of the services at Kildonan is no longer an issue; hence, the evidence is not necessary in rendering a decision, and is, therefore, not accepted (Application of a Child with a Disability, Appeal No. 04-031).