The State Education Department
State Review Officer

No. 04-078

 

 

 

 

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 Wappingers Central School District

 

Appearances:
Linda A. Geraci, Esq., attorney for petitioners

Donoghue, Thomas, Auslander & Drohan, attorney for respondent, James P. Drohan, Esq., of counsel

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their sonís tuition cost at the Shawangunk Ridge School (Shawangunk), formerly know as Sunwise, for the 2003-04 school year. The hearing officer determined that respondent, the Board of Education of the Wappingers Central School District, offered to provide the student with a free appropriate public education (FAPE) during that school year, further determined that Shawangunk failed to provide the student with an appropriate educational program, and, therefore, denied tuition reimbursement. The appeal must be sustained in part.

        Petitioners' son was almost 17 years old at the time of the hearing and attending 11th grade at Shawangunk, where his parents unilaterally placed him for the 2003-04 school year. Shawangunk is a private school that has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities (Tr. p. 514). The student's classification as other health impaired (OHI) is not in dispute. Petitioners' son displays signs of dysgraphia, anxiety (Dist. Ex. 10 at p. 2), obsessive-compulsive disorder (OCD) (Dist. Ex. 5 at p. 1) and has a medical diagnosis of attention deficit hyperactivity disorder (ADHD)1 (Dist. Exs. 9, 10 at p. 2).

        It appears that petitioners' son attended public school in respondent's district through ninth grade. The student reportedly was successful in an inclusion classroom in third grade (Tr. p. 311). The student's mother testified that she referred him to the district's Section 504 Committee in the seventh grade due to anxiety and difficulty completing writing assignments (Tr. pp. 312-313).

        A psychological evaluation was conducted on April 25, 2000 (Dist. Ex. 6) during the student's seventh grade year. Based on the results of the Wechsler Individual Achievement Test (WIAT) and the Kaufman Brief Intelligence Test (K-BIT), the evaluator concluded that the student did "not appear to be academically discrepant and require formal special education support at [that] time" (Dist. Ex. 6 at p. 3). The Section 504 Committee provided the student with an accommodation plan that included extended time and special location for tests (Tr. p. 318).

        For the 2000-01 school year, the student reportedly continued to qualify for services and accommodations under Section 504. His Section 504 plan consisted of placement on an inclusion team as a nonhandicapped student, assignment to a learning center and assignment of a teaching assistant to check the student's assignment planner daily (Dist. Ex. 10 at p. 4). Occupational therapy (OT) was added to the student's Section 504 plan subsequent to an OT evaluation that revealed handwriting deficits (Tr. p. 321; Dist. Ex. 20 at p. 2).

        The student's mother reported that his academic performance was "starting to slip" in seventh and eighth grades (Tr. p. 322). The student's sleep difficulty became increasingly apparent during his ninth grade year (Tr. p. 320). By letter dated October 31, 2001, respondent's school district notified petitioners that their son was arriving to school tardy (Parent Ex. H). The student's mother reported to respondent's school district that her son was not sleeping at night and he was extremely difficult to wake up in the morning (Parent Ex. H; Tr. pp. 319-320). The student's January 25, 2002 progress report notes that the student was absent 12 times, with 6 illegal absences, and tardy 12 times (Dist. Ex. 12 at p. 2). By the next marking period, the student's March 12, 2002 progress report notes that the student was absent a total of 16 times, with 9 illegal absences (Dist. Ex. 18 at p. 4). Both progress reports indicate that the student demonstrated inconsistent and/or unsatisfactory effort, had been assigned work that had not been completed, had missed work due to his absences and was in danger of failing his classes (Dist. Exs. 12 at p. 2, 18 at p. 4). By letter dated April 4, 2002, respondent's staff requested a Section 504 Committee review meeting (Dist. Ex. 12 at p. 1) that resulted in the student continuing to have testing modifications, copies of class notes and outlines where appropriate, and added one period of resource room daily and the use of a daily travel sheet (Dist. Ex. 16 at p. 2). The student was also referred to the Committee on Special Education (CSE) for a full psychological evaluation (Dist. Ex. 16 at p. 2). The student began attending resource room on April 10, 2002 (Tr. p. 129). The resource room teacher's notes indicate that she was in contact or attempted to be in contact with petitioners over 10 times between April 10, 2002 and June 13, 2002 (Dist. Ex. 22 at p. 1-6). According to the resource room teacher, the student attended approximately 25 out of a possible 42 resource room sessions by the end of the 2001-02 school year (Tr. pp. 136-137).

        Respondentís school district completed behavioral and psychological testing in April and May 2002 (Dist. Exs. 7, 8). Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) on April 24, 2002 yielded a verbal IQ score of 107, a performance IQ score of 103 and a full scale IQ score of 106 (although also reported as a full scale IQ score of 105 on page 4 of the psychological report), placing the student in the average range of intellectual development (Dist. Ex. 8 at pp. 2, 4). The evaluator reported that the student's teachers indicated that he has normal peer relationships; however, he shows inconsistent effort in class and has difficulty completing assignments (Dist. Ex. 8 at p. 4). Attendance issues were also noted by the evaluator in the psychological report (id.).

        As part of the school district's psychological assessment, the student's mother was asked to complete the Behavior Assessment System for Children (BASC) (Dist. Ex. 7). The results of the BASC revealed clinically significant scores on scales measuring aggression, anxiety, somatization, and attention problems (Dist. Exs. 7 at pp. 4-5, 8 at p. 4). In addition, the student performed in the "at-risk" range on measures of hyperactivity, conduct problems and atypicality (Dist. Ex. 7 at pp. 4-5). The report states that, "any score in the [c]linically [s]ignificant range suggests a high level of maladjustment. Scores in the [a]t-[r]isk range identify either a significant problem that may not be severe enough to require formal treatment or a potential of developing a problem that needs careful monitoring" (Dist. Ex. 7 at p. 6).

        An independent neuropsychological evaluation was conducted between May and June 2002 (Dist. Exs. 10, 11). The WISC-III was re-administered on May 30, 2002 by this evaluator, who obtained slightly higher scores, but with the same four-point discrepancy as the April 2002 administration (compare Dist. Exs. 8 at p. 2, 11 at p. 1). The scores obtained by the private evaluator were in the high average range, but in her summary she reported that the student's intellectual ability was in the superior range (Dist. Ex. 10 at p. 11). The private evaluator included the April 2002 WISC-III results (Dist. Ex. 8 at p. 2) in her report (Dist. Ex. 10 at p. 5), but did not offer an explanation regarding her re-administration of the same test one month later. The evaluator concluded that the student exhibited significant processing deficits in "executive" functions associated with attention, mental tracking, auditory tracking and visual scanning, planning, organization and monitoring of responses, as well as retrieval of information from memory (Dist. Ex. 10 at p. 11). She noted that petitioners' son exhibited deficits in social functioning, including social perception, causal reasoning and mental flexibility and indicated there was evidence of anxiety with some obsessive-compulsive and phobic tendencies (id.). She recommended increased educational support with a more individualized program including a strong behavioral component with a high level of intellectual challenge (Dist. Ex. 10 at p. 12).

        Respondent's school district requested a psychiatric evaluation of the student and it was conducted on July 12, 2002 (Tr. p. 47; Dist. Ex. 5). The psychiatrist noted that despite the treatment for ADD/ADHD, the student continued to exhibit a constellation of difficulties falling under the spectrum of OCD, ADD, and pervasive development disorder not otherwise specified (PDD-NOS) (Dist. Ex. 5 at p. 3). He opined that these disorders were complicated by the student's disorderly sleep patterns and chronic disorganization, which would adversely impact his ability to function successfully in school. The psychiatrist further noted that the student "appear[ed] to be eligible for classification as [OHI] given [his] clinical conditions" (id.).

        It appears the student was offered the same Section 504 plan for the 2002-03 school year that was created in April 2002 (see Dist. Ex. 16), despite evaluations suggesting at that time that the student would meet the criteria for a classification of OHI based on his diagnoses of ADHD, OCD, PDD-NOS, disordered sleep and chronic disorganization (Dist. Exs. 5, 8, 10). Petitioners did not accept respondent's recommended Section 504 plan, enrolled their son in Shawangunk for the 2002-03 school year, and requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for the 2002-03 school year. Subsequently, the parties entered into a stipulation of settlement where the student would be classified as OHI; respondent would reimburse petitioners for the tuition costs incurred at Shawangunk for the 2002-03 school year; respondent would also reimburse petitioners for the transportation costs incurred prior to the date of the stipulation and for the independent neuropsychological evaluation; and the parties specifically agreed that the parents' unilateral placement at Shawangunk did not constitute the student's pendency placement under the Individuals with Disabilities Education Act (IDEA) (Parent Ex. A).

        Respondent's CSE convened for an initial review meeting on February 24, 2003 to develop petitioners' son's individualized education program (IEP) for the remainder of the 2002-03 school year (Dist. Ex. 3 at p. 1). The student was classified as OHI, however, there was no mention of his medical diagnoses on his IEP. The CSE recommended that the student be educated in a regular education setting with one period of non-integrated resource room daily (Dist. Ex. 3 at p. 1). Test accommodations of extended time and a special location were also offered (id.). The student's IEP also included portal-to-portal transportation to Shawangunk for the remainder of the 2002-03 school year (Dist. Ex. 3 at p. 1).

        A CSE subcommittee comprised of the CSE chairperson, school psychologist, district special education teacher, regular education teacher from the private school and the studentís mother met on June 11, 2003 for the purpose of developing an IEP for the 2003-04 school year (Dist Ex. 1 at p. 3). Two subcommittee members, the special education teacher and the private school teacher participated in the meeting by telephone (Tr. pp. 40-41, 138). Although the private school teacher did not have the studentís February 24, 2003 IEP in front of her at the time of the meeting she reportedly had received a copy from the school district and recalled having seen it (Tr. p. 119). The subcommittee recommended that the student be enrolled in its 11th grade regular education program with one period of resource room daily (Dist. Ex. 1). The studentís June 11, 2003 IEP also provided that the student have testing accommodations including extended time and use of a special location (Dist Ex. 1 at p. 1). The studentís regular education teacher from the private school did not testify at the hearing and there is some dispute as to whether she was still on the phone at the time the subcommittee made program recommendations (Tr. pp. 91-92, 341-342). Although the parent verbally objected to the proposed IEP after the CSE subcommittee meeting, the CSE chairperson testified that he did not attempt to convene the CSE to address the parentís concerns (Tr. pp. 90-91).

        By letter dated August 11, 2003, petitioners informed respondent that the student was re-enrolled in Shawangunk for the 2003-04 school year, and by letter dated March 12, 2004, requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Parent Exs. B, I). The hearing began on May 19, 2004 and testimony was heard over five days, concluding on August 5, 2004. The hearing officer rendered his decision on September 7, 2004 finding that respondent offered to provide the student a FAPE and that petitioners did not meet their burden of proving that the services provided to the student by Shawangunk were appropriate. The hearing officer denied petitioners' request to be reimbursed for the cost of their son's tuition at Shawangunk for the 2003-04 school year.

        Petitioners contend on appeal that: 1) the June 11, 2003 CSE subcommittee meeting was improperly composed; 2) the June 11, 2003 IEP fails to adequately describe present abilities and needs in social and emotional functioning; 3) the goals listed in the student's June 11, 2003 IEP were not developed with parental input at the CSE subcommittee meeting and do not address the student's social and emotional needs; 4) the student's placement in a regular education program within a large school would lead to regression; and 5) the student's proposed resource room would not be comprised of students who have similar management, academic, physical and social needs.

        The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. ß 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. ß 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 Co. 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. ß 1412[a][5]; 34 C.F.R. ß 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, 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. ß 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. ß 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. ß 300.347[a][7]; 8 NYCRR 200.4[d][2][iii] and [x]).

        First, I will address petitioners' contention that the June 11, 2003 CSE subcommittee meeting was improperly composed because the regular education teacher, who was from Shawangunk and participated by telephone, was not present for the entire meeting and did not have immediate access to the documents that were being reviewed. In New York State, a CSE subcommittee must include the parent of the child, at least one regular education teacher of the child if the child is, or may be participating in the regular education environment, at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (8 NYCRR 200.3[c][2]).

        A June 1992 State Education Department field memorandum entitled The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (IEP) provides, in pertinent part, that: "Participation in Committee meetings through teleconferencing is a permissible alternative to having all members convene in a face-to-face meeting unless the parent objectsÖ" The memorandum further provides "Öindividuals who participate through teleconferencing must have access to the same material available to all others involved in this processÖ." This field memorandum does not have the force and effect of a regulation (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child Suspected of having a Disability, Appeal No. 03-063; Application of a Child with a Disability, Appeal No. 00-043), nonetheless, I find that it is consistent with the policies underlying the IDEA and Article 89 of the Education Law. The preparation of a student's IEP by an informed multidisciplinary team is at the heart of both statutes.

        The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. ß 1414[d][1][B][ii]; see 34 C.F.R. ß 300.344[a][2]; see also 8 NYCRR 200.3[c][2][ii]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). The child's regular education teacher's membership in the CSE is particularly important to meeting the statutory requirement that the IEP explain how the child's needs will be met so that the child can be involved in and progress in the general curriculum (64 Fed. Reg. 48, p. 12583). In addition, it is critical that at least one regular education teacher of the child be a member of the CSE and provide input on appropriate supplementary aids and services, including program modifications and supports for school personnel given the IDEA's emphasis on, to the maximum extent appropriate, educating children with disabilities in regular classes with nondisabled children with appropriate supplementary aids and services (64 Fed. Reg. 48, p. 12591). The Regulations of the Commissioner of Education regarding CSE subcommittees require that a CSE subcommittee also include "one regular education teacher of the student whenever the student is or may be participating in the regular education environment" (8 NYCRR 200.3[c][2]).

        With respect to the June 11, 2003 CSE subcommittee meeting, I note that the regular education teacher participating by telephone was from Shawangunk and that although she was given the student's February 24, 2003 IEP prior to the June 11, 2003 CSE subcommittee meeting, she did not have this IEP in front of her at the time of the meeting (Tr. p. 119). However, the CSE chairperson testified that although the regular education teacher recalled seeing the February 2003 IEP, each section of that IEP was reviewed with her during the CSE meeting (Tr. p. 119). Under the circumstances, I need not determine whether reviewing the February 2003 IEP over the telephone during the meeting with the regular education teacher amounted to sufficient access to the materials being reviewed by the CSE subcommittee, because I find that the teacherís participation in the meeting was not adequate for a different reason. The regular education teacherís participation was not adequate because she left the meeting prior to the final discussion of the appropriateness of the IEP and placement for the upcoming school year. Because of the regular education teacherís truncated participation in the meeting, I find that respondent has failed to establish that it complied with the terms of the guidelines for teleconferencing at the June 11, 2003 CSE subcommittee meeting (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 00-043). In addition, the limited participation of the private school education teacher resulted in her missing discussion of integral aspects of the 2003-04 IEP to the extent that her participation was not adequate (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24). As a result, I find that respondent has not demonstrated it complied with its obligation to have a regular education teacher present during the IEP formulation process (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]; Application of the Bd. of Educ., Appeal No. 04-072; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-096; Application of a Child with a Disability, Appeal No. 01-083).

        It is well established, however, that the existence of a procedural flaw in the formulation of a student's IEP does not automatically require a finding of a denial of a FAPE (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 02-015). Rather, a denial of a FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon the parents' opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (id.).

        The parties agree that the studentís regular education teacher from Shawangunk provided the committee with information regarding the studentís progress toward his IEP goals and objectives during the 2002-03 school year (Tr. pp. 63, 119-120, 232, 262-263, 340-342, 396-397). There is nothing in evidence or testimony to describe the regular education teacherís input regarding the proposed placement. In fact, the studentís mother testified that the private school regular education teacher was not on the phone at the time the CSE made the recommendation for resource room for the 2003-40 school year (Tr. pp. 341-343). When questioned about the June 2003 CSE subcommittee meeting worksheet (Dist. Ex. 2), the CSE chairperson testified he completed the section regarding placement at the meeting; however, he did not recall if the section regarding the proposed placement was filled out while the private school teacher was still on the phone (Tr. pp. 91-92). He also testified he did not recall if the private school regular education teacher commented one way or another regarding the districtís proposed placement (Tr. p. 92). The participation of a regular education teacher in the development of the studentís 2003-04 IEP was extremely important as the student was being recommended for full participation in the general education curriculum, coupled with resource room services. As resource room by definition provides a student with supplementary instruction, given the recommendations of the subcommittee a regular education teacher would be responsible for providing the studentís primary academic instruction.

        Respondent did not demonstrate that a regular education teacher adequately participated in a CSE subcommittee meeting regarding a student participating in the regular education environment. I find that given the record before me, this failure seriously infringed upon the parents' opportunity to participate in the process of formulating the IEP and compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 5).

        With respect to the 2003-04 IEP, even if it had been formulated properly, I am constrained to find that it was substantively inadequate. There are no social-emotional needs or goals and objectives listed on the student's June 11, 2003 IEP (Dist. Ex. 1 at pp. 2-3) despite comments from both respondent and private evaluators that "behavioral observations, student interview, projective testing (H-F-D [human figure drawing]) and a review of the records does suggest the presence of some oppositional and aggressive tendencies, as well as some anxiety and attention difficulties at times" (Dist. Ex. 8 at p. 4), "[the student] continues to exhibit a constellation of difficulties which fall under the spectrum of Obsessive Compulsive Disorder and motor tic disorder", and "[c]omplicating the above are his disordered sleep patterns and chronic disorganization which have adversely impacted on his ability to function successfully in school" (Dist. Ex. 5 at p. 3). In addition, the record reflects the student has needs in managing his tendency toward distractibility in the classroom (Tr. pp. 488, 497, 511; Dist. Ex. 23 Fall Progress Report 2003 at p. 1) and exhibiting appropriate classroom behavior (Tr. 521; Dist. Ex. 23 Fall Progress Report 2003 at p. 1, Fall Report January 2004 at p. 1). The CSE failed to adequately identify the student's present level of performance and needs in the social emotional realm (8 NYCRR 200.4 [d][2][i]). In addition, the student had a significant attendance problem while in ninth grade at respondent's school district (Tr. pp. 164, 419; Dist. Exs. 8 at p. 4, 18 at p. 4), but the 2003-04 IEP does not mention goals, strategies or counseling to address the student's attendance issues should they arise during the 2003-04 school year. I, therefore, find that the June 11, 2003 IEP was not reasonably calculated to provide the student with a FAPE.

        Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to petitioners' son during the 2003-04 school year, I must now consider whether petitioners have met their burden of proving that the services provided to their child during that school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 04-045; Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, petitioners must show that Shawangunk offered an educational program that met their sonís special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20).

        Regarding the appropriateness of the 2003-04 parental placement, I concur with the impartial hearing officer's findings and determination that the private school placement did not meet the studentís special education needs. The record revealed the student's cognitive abilities to be in the average range (Dist. Ex. 8 at p. 2). His academic skills were described by the neuropsychologist as "generally strong", and his performance on academic achievement tests revealed test scores that were all within grade expectations (Tr. pp. 566, 577). In the June 2002 neuropsychological evaluation report, the neuropsychologist recommended that the student be placed in a "more individualized program, with a strong behavioral component as well as a high level of intellectual challenge" (Dist. Ex. 10 at p. 12). The record indicates Shawangunk did not offer the student an appropriate academic program. The student had completed Earth Science and passed the Earth Science Regents examination with a score of 84 at respondent's school district in the 2001-02 school year, when he was in ninth grade (Dist. Ex. 21). However, he repeated Earth Science at Shawangunk during the 2003-04 school year (Parent Ex. L at p. 4). Although the director of Shawangunk testified that the classes were duplicative, he noted the only other option for the student was an independent study (Tr. pp. 506-507, 516). Based on the student's difficulty completing homework due to inconsistent effort, difficulty with organization, and withdrawal from a previous independent study course (Parent Ex. L at pp. 1, 3, 5; Tr. p. 518), I am not convinced independent study was a viable option for this student. The director acknowledged that it was possible that the student was "bored" taking Earth Science a second time (Tr. p. 517). The global studies teacher indicated that the student "often seems bored" (Parent Ex. L at p. 5); to which the director of Shawangunk testified that the comment signified the student was not being challenged adequately (Tr. p. 527).

        The record also indicates that the student took Math A for the entire 2002-03 school year at Shawangunk (Dist. Ex. 23 Autumn/Winter Report January 2003 at pp. 3-4, Spring Report June 2003 at p. 3). Although he passed Shawangunk's Math A course during the 2002-03 year (Dist. Ex. 23 Spring Report June 2003 at p. 3), the student failed the Math A Regents examination in June 2003 (Tr. p. 498). The student then repeated and passed the Math A course during the 2003-04 school year (Parent Ex. L at p. 3). Still, he was scheduled to "take the rest" of the Math A course in September 2004 (Tr. p. 502), resulting in his fifth consecutive semester of Math A at Shawangunk (Tr. p. 502). In addition, the private school did not provide the student with resource room services and the staff believed the testing accommodations listed on the studentís IEP were unnecessary (Tr. pp. 492, 501, 532). I find that Shawangunk did not offer the student a program appropriate to meet his academic needs.

        Despite the very small class size of about five students at Shawangunk (Tr. pp. 473, 485), the student experienced difficulty putting forth consistent effort and focusing on his work during the 2003-04 school year (Parent Ex. L at p. 1). In addition, the director of Shawangunk testified that the student's organizational skills "get in the way sometimes" despite the fact he is in a class with three to four other students (Tr. p. 513). The director further indicated distractibility was a "small factor" in the student's ability to achieve in the Math A course (Tr. p. 513). The student's Literature, Math A, Earth Science and Global Studies teachers commented on his decreasing attention and organization toward the end of the 2003-04 school year (Tr. p. 525; Parent Ex. L at pp. 3-5). The director of Shawangunk testified to this as well (Tr. pp. 482-483). He indicated that the student continued to exhibit difficulty turning in his homework assignments (Tr. p. 523) and completing non-academic tasks that were assigned to the student (Tr. p. 530).

        Although some of the student's teachers reported information to the contrary, the record reflects the student did exhibit difficulty with appropriate classroom behavior during the 2003-04 school year at Shawangunk (Tr. pp. 528, 530; Dist. Ex. 23 Fall Report January 2004 at p. 1). His Global Studies teacher reported the student spent time "cracking jokes and playing at bravado to amuse the other students" rather than spending time on a project (Parent Ex. L at p. 5). The director testified that the student did not have a formal behavior plan and opined that the student's needs could be addressed within the context of the classroom (Tr. pp. 480, 511). However, lacking additional information regarding classroom strategies used to address the student's attending and management difficulties, I cannot conclude that the private school met the studentís needs in this area.

        Finally, the parents have not met their burden of establishing that the private school placement was appropriate to address the student's social-emotional needs. The director of Shawangunk testified that the school does not have any personnel certified as a social worker, counselor, psychologist or psychiatrist on staff (Tr. p. 536). He further indicated the student exhibited "moodiness" that was problematic when the student began at Shawangunk (Tr. p. 536). Shawangunk's management of this moodiness was to allow the student to "call us whenever he wants if he's got issues" (Tr. p. 536). The lack of sufficient services or programming to address the studentís social-emotional needs was inappropriate.

        Having determined that petitioners have not met their burden of proof as to the appropriateness of the studentís placement at Shawangunk for the 2003-04 school year, I need not address equitable considerations in this regard (Application of a Child with a Disability, Appeal No. 04-028; Application of the Bd. of Educ., Appeal No. 01-014).

 

        I have reviewed petitionersí remaining contentions and find them to be without merit.

 

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

        IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that he found that respondent offered to provide the student an appropriate educational program for the 2003-04 school year.

 

 

 

Dated: Albany, New York   __________________________
  November 18, 2004   PAUL F. KELLY
STATE REVIEW OFFICER

 

 

1 Diagnoses of both attention deficit hyperactivity disorder (ADHD) and attention deficit disorder (ADD) are contained in the record (see Dist. Exs. 5, 9, 10).