The State Education Department
State Review Officer

No. 04-082

 

  

 

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Southold Union Free School District

 

 

Appearances:
Ingerman Smith, L.L.P., attorney for respondent, Christopher Venator, Esq., of counsel

 

 

DECISION

 

 

            Petitioners appeal from the decision of an impartial hearing officer, which determined that respondent offered to provide a free appropriate public education (FAPE) to their daughter for the 2002-03 and 2003-04 school years and denied their requests for reimbursement of one independent educational evaluation (IEE) and for privately obtained reading instruction during the summer of 2003.  The appeal must be sustained in part.

 

            Initially, two procedural matters must be addressed.  Respondent has requested that petitioners' reply not be considered for failure to comply with the Regulations of the Commissioner of Education.  Petitioners' reply raises additional allegations in response to respondent's answer.  Pursuant to section 279.6 of the Commissioner's Regulations, their reply is limited to any procedural defenses interposed by respondent or to documentary evidence included with the answer.  Consequently, I have not considered those allegations raised by petitioner in his reply which do not respond either to procedural defenses interposed by respondent or address additional documentary evidence included with the answer (Application of a Child with a Disability, Appeal No. 04-064; Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 98-37).

 

Secondly, petitioners have submitted an auditory and language processing evaluation dated September 3, 2004 and request that it be considered in this appeal.  In its Answer, respondent objects to the admission of this document.  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).  Respondent objects to the evaluation being considered on appeal and asserts that it was not before the impartial hearing officer and “subjected to cross-examination.”  The central issue in this appeal is the appropriateness of the program recommended by respondent's Committee on Special Education (CSE) at the child's annual review held June 13, 2003.  It is not necessary that the evaluation be considered on review because the evaluation was performed some 14 months after the child's 2003 annual review and it does not reflect the child’s needs at the time the CSE conducted the annual review in dispute and formulated the child’s program.  Moreover, the evaluation, has not been considered by the CSE, reviewed by the impartial hearing officer, or subjected to examination at the hearing below (8 NYCRR 200.5 [i] [3][xii]), and is therefore of limited probative value pertaining to the issues on appeal.  I decline to consider the document.

 

When the hearing began on June 11, 2004, petitioners' daughter was nine years old and was receiving services in accordance with an individualized education program (IEP) for the 2003-04 school year dated December 10, 2003 (Parent Ex. 26).  The child was initially determined to be a preschool child with a disability in 1994 by a Committee on Preschool Special Education (CPSE) (IHO Decision p.1).  On August 10, 1999, a combined CPSE/CSE determined the child to be ineligible for special education services, although speech services continued (id.).  The child was subsequently classified as having a learning disability (LD) by respondent's CSE on September 12, 2002 (Dist. Exs. 3, 4, 5) following discontinuation of a Section 504 Accommodation Plan on June 12, 2002 (Parent Exs. 34, 35).  The child's classification is not in dispute (8 NYCRR 200.1[zz][6]).

 

A psychoeducational evaluation was completed on August 22, 2000 (Parent Ex. 4).  The school psychologist reported that the child's overall intellectual ability was within the average range with nonverbal abilities slightly higher than verbal abilities (Parent Ex. 4).  The school psychologist also reported that the child's visual perception and rote auditory memory were weak (id.).  A neuropsychological evaluation was completed on July 25, 2002 (Dist. Exs. 1, 2).  The evaluator reported that testing indicated that the child's intellectual functioning was within the average range and stated that testing "results are highly consistent with the results obtained two years ago via the school psychologist" (Dist. Ex. 1).  The neuropsychologist recommended classification as LD and classroom and testing modifications (id.).  On September 12, 2002, respondent's CSE met and reviewed the neuropsychologist's evaluation as well as the child's prior evaluations completed in 2000 (Dist. Exs. 4, 5).  Respondent's CSE recommended LD classification, a regular education classroom, transitional support services of resource room and group remedial reading for 39 minutes each daily over a six day cycle, testing accommodations of extended time (2.0), a separate location or small group at the teacher's discretion (Dist. Ex. 5).  The child's IEP also indicated that her rate of progress was below average.  She was described as eager to learn and highly motivated.  The child reportedly demonstrated average cognitive potential with weaknesses in reading and math fluency as well as some problems with manual dexterity (id.). 

 

            The child's annual review was held on June 13, 2003 (Dist. Ex. 17).  For the 2003-04 school year, respondent's CSE recommended that petitioners' daughter receive resource room services daily for 39 minutes per day over a six day cycle in a 5:1 non-integrated setting, remedial reading services daily for 39 minutes per day over a six day cycle in a 5:1 integrated setting, testing accommodations of extended time (2.0), and administered in a separate location or in a small group at the teacher's discretion (Dist. Ex. 17).

 

According to the minutes of the annual review, the child's teachers indicated that the child had shown significant improvement in "comfort level and self-esteem" with an observable decrease in anxiety (Dist. Ex. 16).  The child demonstrated improvement in phonemic awareness.  She was reading independently at the second grade level and required instruction at the beginning fourth grade reading level (id.).  The minutes also reflect that the child's writing had improved.  During the meeting on June 13, 2003, the parent requested that the CSE recommend a summer reading program, which employed the Lindamood-Bell method of instruction (Lindamood-Bell).  The CSE did not recommend extended school year (ESY) services for petitioners' daughter, nor did they recommend that the Lindamood-Bell program be offered at public expense (Dist. Ex. 16).

 

According to the June 13, 2003 IEP, the child exhibited significant delays in reading and writing fluency.  She was performing at grade level in mathematical operation skills, mathematical numeration skills, mathematical application skills and spelling (Dist. Ex. 17).  The IEP indicated that she needed to continue developing reading skills, strategies with emphasis on phonemic awareness development and reading fluency.  The IEP further indicated that the child required a multi-sensory instructional approach to improve written expression, her ability to generate ideas while writing, decoding skills, reading comprehension, reading fluency and writing fluency (Dist. Ex. 17).   

 

            During the summer of 2003 the child simultaneously attended both respondent's summer academic intervention and learning (SAIL) program and the Lindamood-Bell program (Parent Exs. 18, 20).  The SAIL program is a non-special education summer school program offered at public expense (Tr. pp. 142-43).  The child attended the Lindamood-Bell program at petitioners' expense.  According to the child's SAIL progress report dated August 5, 2003, she used visualization to positively affect reading comprehension (Parent Ex. 18).  The child's SAIL teacher who was also her special education teacher for the 2002-03 school year testified that there was overlap between the two programs (Tr. pp. 55-56). 

 

The CSE convened on October 14, 2003 to update the child's IEP (Dist. Ex. 19).  At this meeting, the CSE chairperson informed the parent that her daughter was not receiving the frequency of services recommended in the IEP dated June 13, 2003 (Dist. Ex. 19).  The child was receiving resource room and remedial reading services three days per six-day cycle rather than daily.  The CSE recommended and the parent agreed to reduce the frequency of services to three days per six-day cycle and the IEP was updated to reflect that change (Dist. Ex. 20).  Also at this meeting, the parent requested reimbursement for the Lindamood-Bell summer program (Dist. Ex. 19).  The CSE also recommended that an occupational therapy (OT) evaluation be conducted (Dist. Ex. 19).  The CSE planned to reconvene to review the OT evaluation when it was completed (Dist. Ex. 18).

 

By letter dated November 5, 2003, petitioners' requested a CSE meeting and "prior written notice" (Parent Ex. 55).  On November 14, 2003, respondent received an undated letter from the parent requesting reimbursement for both the Lindamood-Bell summer program and related costs (Dist. Ex. 21, Parent Ex. 38).  By letter dated November 14, 2003, respondent's superintendent denied the parent's request for reimbursement (Dist. Ex. 39). 

 

On December 10, 2003, the CSE reconvened to review the OT evaluation (Parent Ex. 25).  At this meeting, the parent requested additional 1:1 resource room and remedial reading services (Parent Ex. 25).  The CSE did not recommend any changes to the IEP and the IEP dated December 10, 2003 is identical to the IEP dated October 14, 2003 (Parent Ex. 26).  By letter dated December 23, 2003 respondent's director of special education notified petitioners of the recommendations made by its CSE at the December 10, 2003 meeting (Parent Exs. 40, 56).  Also by letter dated December 23, 2003, the parent requested "prior written notice" from the president of the Board of Education (Parent Ex. 41).  On January 5, 2004, respondent's CSE convened and agreed to pay for an independent educational evaluation (IEE), and denied the parent's request for 1:1 reading instruction (Parent Ex. 27).  No changes were made to the child's IEP (id.).  On January 27, 2004, respondent received an undated letter from petitioners relative to the denial of reimbursement for the Lindamood-Bell summer program (Parent Ex. 42).  According to the New York Statewide Testing Program dated February 4, 2004, the child was performing at level 3 for English Language Arts (Dist. Ex. 24). 

 

The CSE convened on February 5, 2004.  No changes were made to the child's IEP, but the minutes reflect she was reading at the fourth grade level (Parent Exs. 23, 28).  By letter dated February 6, 2004, respondent's superintendent denied petitioners' request for reimbursement for the Lindamood-Bell summer program (Parent Ex. 43).  By letter dated March 18, 2004, respondent's director of special education approved petitioners' request for an IEE at public expense (Parent Ex. 52).  By letter dated April 12, 2004, respondent's director of special education informed the parents of the school district's IEE policy (Parent Exs. 53, 54).  By letter dated April 20, 2004, the parent notified respondent's director of special education that she had not been advised that a CSE meeting had been scheduled for April 19, 2004 (Parent Ex. 46).  By letter dated May 25, 2004, petitioners requested an impartial hearing seeking reimbursement for the Lindamood-Bell summer program and related costs (Dist. Ex. 22).  By letter dated June 14, 2004, the parent declined the school district's Academic Intervention Service (AIS) program for the summer of 2004 (Parent Ex. 58). 

 

            The hearing began on June 11, 2004.  Testimony was heard for five days and the hearing concluded on August 2, 2004.  By decision dated September 9, 2004, the impartial hearing officer dismissed petitioners' claims relative to the 1999-2000, 2000-01, 2001-02 school years on the ground of laches.  The impartial hearing officer considered petitioners' claims relative to the 2002-03 and 2003-04 third and fourth grade school years on the merits and found respondent had offered to provide a FAPE to petitioners' daughter.  Therefore, the impartial hearing officer denied petitioners' request for tuition reimbursement and related costs for the child's placement in a Lindamood-Bell summer reading program.  The impartial hearing officer ordered respondent to reimburse the parents for one IEE,1 but denied the parents request for reimbursement of a second IEE.  The impartial hearing officer further found that respondent failed to implement the 2003-04 IEP until October 2003 and awarded the parents "compensatory time" for services not provided. 

 

            In this appeal, petitioners seek reimbursement for the 2003 Lindamood-Bell summer program and related costs, reimbursement for the second IEE, and allege the impartial hearing officer exhibited bias toward them.  Since neither party appeals from that part of the hearing officer's decision, which awarded the parents "compensatory time" for services not provided until October 14, 2003, I do not review it (20 U.S.C. § 1415[i][1][A]; N.Y. Educ. Law § 4404[1]; 34 C.F.R. § 300.510; 8 NYCRR 200.5[i][4][ii]).

 

Petitioners challenge the impartiality of the hearing officer on the grounds that his decision misconstrued the facts, misinterpreted the testimony of witnesses, and that he was unfair in his treatment of the petitioners (Pet. ¶¶ 10, 13, 17, 47-49).2 

 

            An impartial hearing officer must be fair and impartial and must avoid giving even the appearance of impropriety or prejudice (Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 03-071; Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 00-063).  Hearing officers also must conduct hearings as expeditiously as possible, and may limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Disability, Appeal No. 96-71), while ensuring that there is an adequate record upon which to premise their decisions and permit meaningful review of the issues (Application of a Child with a Disability, Appeal No. 00-021; Application of a Child with a Disability, Appeal No. 97-62; Application of the Bd. of Educ., Appeal No. 94-35).  An impartial hearing officer may assist an unrepresented party by providing information relating only to the hearing process and may ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (8 NYCRR 200.5[3][vii]).

 

I have carefully reviewed the transcript and the impartial hearing officer's decision, and I find that there is no evidence of any actual bias against petitioners (Application of the Bd. of Educ., Appeal No. 03-015; Application of the Bd. of Educ., Appeal No. 01-043; Application of a Child with a Disability, Appeal No.00-063; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 98-51).  A thorough review of the record reveals that the impartial hearing officer was fair in his treatment of witnesses, unbiased in his rulings and appropriately informed petitioners during the course of the hearing (Tr. pp. 6-10, 14-15, 61, 65, 70, 71, 72, 74, 76, 77, 78, 80, 82, 84, 85, 88, 91, 92, 93, 95, 97, 98, 101, 105, 111, 118, 121, 122, 123, 132, 133, 147, 154, 155, 164-65, 190, 205, 211, 222, 226-28, 230, 231, 232, 234, 236-38, 274, 278, 284, 289-93, 294-98, 305, 309, 310, 311, 313, 314-15, 319, 320, 322-25, 326-27, 337-38, 350-53, 355-58, 360, 363-64, 366-71, 374, 379-80, 412-13, 418-21, 468-69, 609-612).  I find there is no basis in the record to annul the impartial hearing officer's decision on the ground of bias.

 

Petitioners assert that each of the education plans in place for the 1999-2000, 2000-01, 2001-02, 2002-03 and 2003-04 school years were deficient and that they had “legitimate grounds for bringing the case forward after four years after the original issue (declassification) because the denial of FAPE and procedural violations were ongoing, therefore no time limit is established" (Pet. ¶ 19).

 

            The impartial hearing officer found that petitioners' claims for the 1999-2000, 2000-01, 2001-02 school years (kindergarten through second grade) were barred by the doctrine of laches.  In August of 2000, the child's mother requested that the child be evaluated for "learning problems" (Parent Ex. 4).  Respondent's school psychologist opined that the child was not LD (Parent Ex. 4) and respondent's Section 504 Committee convened and offered an accommodation plan (Parent Ex. 30).  The child received services pursuant to a Section 504 Accommodation Plan for the 1999-2000 school year and again for the 2000-01 school year (Parent Ex. 30).3  The Accommodation Plans indicate that the parents received notice of their due process rights (id.).  On June 12, 2002, respondent's Section 504 Committee recommended that the Accommodation Plan be discontinued (Parent Ex. 34).  The parent consented to discontinuing the 504 plan and acknowledged receipt of her due process rights (Parent Ex. 35).  On September 12, 2002, respondent's CSE convened and recommended classification as LD, resource room services and remedial reading services (Dist. Ex. 5).  Petitioners consented to the CSE's recommendations and acknowledged receipt of their due process rights (Dist. Ex. 3).  On June 13, 2003, the CSE convened and recommended continuing classification as LD, resource room services and remedial reading services (Dist. Ex. 17).  The CSE minutes indicate that the parent requested that the school district pay for the child's attendance at the Lindamood-Bell reading program during the summer of 2003 (id.).  The CSE determined that the child did not meet the criteria for "summer instruction through the Special Education Department" (Dist. Ex. 17). 

 

The record reflects that the parents received notice of their due process rights on August 23, 2000 (Parent Ex. 30), December 21, 2000 (id.), June 12, 2001 (id.), June 12, 2002 (Parent Ex. 35), September 12, 2002 (Dist. Ex. 3), October 14, 2003 (Dist. Ex. 18), and January 5, 2004 (Parent Ex. 27).  The child's mother also stated on the record that she was aware of her rights each time "when we have CSE meetings" (Tr. p. 8).  Petitioners requested an impartial hearing on May 25, 2004 (Dist. Ex. 22). Petitioners allege that a denial of FAPE occurred because of an assortment of procedural and substantive deficiencies in the child’s educational program, the first occurring in the 1999-2000 school year and the last occurring in the 2003-04 school year. Petitioners contend that these inadequacies give rise to the "continuing violation" doctrine which would toll the statute of limitations for the prior school years.

 

"Few courts have considered the propriety of applying [the] continuing violation doctrine to claims for the infringement of federal educational rights" (Berkhout v. New York City Dep't of Educ., 2004 WL 1586500 *6 [S.D.N.Y.]).  In New York, only two district courts have considered the continuing violation doctrine in the context of IDEA claims and both have rejected it (id. [use of continuing violation doctrine would undercut IDEA's carefully structured procedure for administrative remedies that encourages parents to seek relief at the time that a deficiency occurs] quoting Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2002]; Butler v. South Glens Falls Cent. Sch. Dist., 106 F. Supp.2d 414, 418 [N.D.N.Y. 2000] [denying plaintiff's request to toll the statute of limitations because administrative remedies were available at the time of the injury, "plaintiff is not entitled to sit idly by and contest the decision in a later lawsuit.  He is required to pursue available remedies."]; see also Vandenberg v. Appleton Area Sch. Dist., 252 F.Supp.2d 786, 789-93 [E.D.Wis. 2003] [application of the continuing violation doctrine to IDEA claims would not advance the IDEA's policy of fostering expeditious review and amelioration of disabled students' learning conditions]; but see Hammond v. District of Columbia, 2001 WL 34360429 at *4-6 [D.D.C. 2001]; Jeffery Y. v. St. Marys Area Sch. Dist., 967 F.Supp. 852, 855-56 [W.D.Pa. 1997]).

 

In Berkhout, the district court rejected use of the continuing violation doctrine as contrary to the intent of the IDEA to expedite claims through administrative remedies (Berkhout, 2004 WL 1586500 *7).  The district court also determined that even if the continuing violation doctrine did apply, the alleged violations of the IDEA were discrete acts, not one continuous violation,

 

[t]he [school district's] alleged failures to implement different IEPs from different years were each discrete, actionable offenses.  The plaintiff's claims are not based on the accumulation over several years of the DOE's failure to implement services, rather, the plaintiffs have separate claims for each IEP that the DOE failed to implement after receiving orders from an IHO

 

(Berkhout, 2004 WL 1586500 *8).

 

            The court’s reasoning persuades me to decline to apply the continuing violation doctrine to claims brought for review pursuant to section 4404(2) of the Education Law.

 

            Even if the continuing violation doctrine did apply to IDEA claims, it would not apply in the instant case. Petitioners claim that their daughter was denied a FAPE beginning in 1999 and continuously throughout each school year up until the 2003-04 school year.  They claim that several separate and distinct procedural and substantive violations occurred during each school year from 1999 through 2004 which resulted in a denial of FAPE to their daughter for each school year.  Here, the violations alleged by petitioners occurred during each school year from 1999 through 2004 and were each discrete, actionable offenses and therefore the continuing violation doctrine does not apply.  I therefore find that petitioners' claims are subject to the timeline in which a request for a due process hearing must be made.  

 

Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, I have applied a one-year time period in light of recent case law requiring me to adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); (Application of the Bd. of Educ., Appeal No. 02-119; Application of the Bd. of Educ., 03-062).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when petitioners knew or should have known of the injury involved, in this case for example, petitioners allege there was no exit review before services were discontinued on June 12, 2002, and the regular education teacher was missing from the September 12, 2002 CSE (M.D., 334 F.3d at 221).  The record shows that petitioners knew of their due process rights on August 23, 2000 and knew of each violation when it allegedly occurred, but did not request an impartial hearing until May 25, 2004.  Thus, because petitioner requested an impartial hearing on May 25, 2004, those claims that arose prior to May 25, 2003 are untimely under the one-year statute of limitations and are dismissed (Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 02-119).

 

I now turn to the merits of petitioners' remaining claims.  These claims focus primarily on the 2003-04 school year. 

 

A board of education may be required to pay for educational services obtained for a child 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 [1985]).  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 [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]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

The purpose of the Individuals with Disabilities Education Act is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]).  A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13).  To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the child's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The child's right to a FAPE has been affected when the procedural violation results in the loss of the child's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the child's IEP (see Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of a Child with a Disability, Appeal No. 02-092).

 

The child's recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-105).  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the child's needs arising from his or her disability to enable the child to be involved in and progress in the general curriculum, and meeting the child's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]).  In addition, an IEP must describe how the child's progress towards the annual goals will be measured and how the child's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]).

 

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 child, as well as a statement of the program modifications or supports for school personnel that will be provided to the child (34 C.F.R. § 300.347[a][3]).  Such education, services and aids must be sufficient to allow the child to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]).

 

Petitioners request reimbursement for tuition expenses and related costs for the Lindamood-Bell program their daughter attended during the summer of 2003.  Petitioners also request reimbursement for an IEE dated July 1, 2003. 

 

The child's annual review for the 2003-04 school year was held on June 13, 2003 (Dist. Ex. 16).  The parent requested the Lindamood-Bell reading program for the summer.  The CSE found that the child did not qualify for ESY services and did not recommend special education services for the summer of 2003.  The child enrolled in a voluntary, non-special education summer school program called SAIL.  The child simultaneously attended the Lindamood-Bell program at petitioners' expense.  Petitioners contend that the impartial hearing officer erred in analyzing their reimbursement claim as a request for ESY services and cite to SRO Appeal No. 03-103 for the proposition that the Lindamood-Bell summer program was not an ESY service (Tr. pp. 676-77; see  Application of the Bd. of Educ., Appeal No. 03-103).  Petitioners further contend that they were required to obtain this service for the child to be prepared for the 2003-04 school year. 

 

Whether the Lindamood-Bell program was denied for the 2003-04 school year or denied as an ESY service, the central issue is whether respondent offered an appropriate program to petitioner's daughter.  In order for the CSE to have appropriately recommended the Lindamood-Bell program for the summer of 2003 as an ESY service, the CSE would have to first find that the child was eligible for ESY services by reviewing her progress during the 2002-03 school year (see 8 NYCRR 200.6 [j]).  The relevant portion of that regulation requires a showing that there would be a substantial regression in a child’s skills if ESY services were not provided to the child.

 

For the 2002-03 school year, respondent's CSE recommended LD classification, a regular education classroom, transitional support services of resource room and group remedial reading for 39 minutes each daily over a six day cycle, testing accommodations of extended time (2.0), a separate location or small group at the teacher's discretion (Dist. Ex. 5).  The child's IEP also indicated that her rate of progress was below average. 

 

Additional modifications included modified homework and class work at the teacher's discretion. Present levels of performance, strengths and needs were clear and specific for academic, social, physical, and management domains.  The district did use objective measures in assessing the child's progress.  The child's special education teacher testified that progress was measured objectively by administration of the Qualitative Reading Inventory (QRI) (Dist. Ex. 10, Tr. p. 43) and Diagnostic Reading Assessment (DRA) (Tr. p. 45) in September (Tr. p. 65), midyear, and in April, May, and June (Tr. p. 98).  In addition, the child demonstrated average performance on the Terra Nova test (Dist. Ex. 7) when compared nationally to her grade level peers (Tr. p. 37).  Additional measures of progress were based on the child's daily class work, and the mastering of tasks (Tr. pp. 95-6).

 

The child demonstrated progress during the 2002-03 school year.  The child's special education teacher who essentially spent the entire day with the child (Tr. p. 32) testified that she provided pull-out resource room and reading services to the child for approximately 90 minutes each day (Tr. pp. 31-32).  In addition, the special education teacher was the inclusion teacher in the classroom.  She provided support for the child and modified work, as needed throughout the day (Tr. p. 32).  The special education teacher testified that she reviewed the IEP (Dist. Ex. 5) prior to beginning working with the child.  She found the child's academic skills to be consistent with the present levels of performance as reflected on the IEP (Tr. p. 33). 

 

In June 2003, the diagnostic reading form (Dist. Ex. 8) indicated that the child's decoding, comprehension and reading fluency was at an early third grade level, and that she was able to decode 99 percent of the words presented (Tr. p. 39).  The special education teacher testified that this evidenced progress because when the child entered third grade she had been assessed at a different level in the beginning of the year, and progressed up to the third grade level by the end of the school year (Tr. p. 40).  The child also demonstrated progress in hearing sounds and words.  In May 2003, she was able to hear 55 out of 64 phonemes in a word (Dist. Ex. 12).  In June 2003, the child was able to hear 59 out of 64 words (Dist. Ex. 13; Tr. pp. 45-46).  The special education teacher stated that the child made progress throughout the school year with no indication of regression (Tr. p. 47).

 

The child's progress in recommended goals and objectives for 2002-03 was reported quarterly (Tr. p. 49), as documented on the progress note grid (Dist. Ex. 14).  The notations  "SP" (some progress), "GP" (good progress), "AC" (almost completed) (Tr. p. 51), and "CM" (completed or mastered) (Tr. p. 50), offered the parents opportunity to see that the child made consistent progress, and except for one objective where she continued to be rated as  "P" (progressing), generally earning the next higher rating in each progressive quarter. There is no indication at all that the child ever achieved "NP" (no progress).

 

The record reflects that the child progressed during the 2002-03 school year and had not demonstrated substantial regression during that year.  Therefore, the CSE had no cause to recommend ESY services for the summer of 2003 at the child's annual review. 

 

The parents contend that the Lindamood-Bell program was required in order for the child to be successful during the 2003-04 school year.  Again, the central issue remains the appropriateness of the recommended program for the 2003-04 school year, based upon the information that the CSE had available to it at the annual review on June 13, 2003. 

 

For the 2003-04 school year respondent's CSE recommended that petitioners' daughter receive resource room services daily for 39 minutes per day over a six day cycle in a 5:1 non-integrated setting, remedial reading services daily for 39 minutes per day over a six day cycle in a 5:1 integrated setting, testing accommodations of extended time (2.0), and administered in a separate location or in a small group at the teacher's discretion (Dist. Ex. 17). 

 

According to the minutes of the annual review, the child's teachers indicated that the child had shown significant improvement in "comfort level and self-esteem" with an observable decrease in anxiety (Dist. Ex. 16).  The child demonstrated improvement in phonemic awareness.  She was reading independently at the second grade level and required instruction at the beginning fourth grade reading level (id.).  The minutes also reflect that the child's writing had improved.  According to the IEP, the child exhibited significant delays in reading and writing fluency.  She was performing at grade level in mathematical operation skills, mathematical numeration skills, mathematical application skills and spelling (Dist. Ex. 17).  The IEP indicated that she needed to continue developing reading skills, strategies with emphasis on phonemic awareness development and reading fluency.  The IEP further indicated that the child required a multi-sensory instructional approach to improve written expression, her ability to generate ideas while writing, decoding skills, reading comprehension, reading fluency and writing fluency (Dist. Ex. 17).

 

The 2003-04 IEP was reasonably calculated to confer educational benefit.  The CSE considered the available evaluative data at the annual review (id.).  The child's needs were identified and the resulting goals and objectives were appropriate to address those needs.  At the time of the annual review, the child did not have any social or physical needs.  The child's management needs were described as requiring additional time to complete classroom assignments, a structured environment, resource room and to develop a sense of responsibility for bringing materials to school. The child's management needs were addressed by her study skills goals and objectives.  The child's academic needs were addressed by reading goals and objectives, writing goals and objectives and mathematics goals and objectives.  Each goal and its corresponding objectives addressed the child's need for a multi-sensory instructional approach, to improve written expression, to improve ability to generate ideas while writing, to improve decoding skills, and to improve reading comprehension.  The CSE also recommended reading remediation to improve reading fluency and resource room services to improve writing fluency.  Each of the objectives was behaviorally specific and measurable.  The various skills noted in each specific objective relate to each other and build upon each previously learned skill. All goals and objectives appear to address the child's functioning across the curriculum. 

 

Having determined that respondent's CSE appropriately found petitioners' daughter ineligible for ESY services, and that the recommended program for the 2003-04 school year was appropriate, it is not necessary to determine whether petitioners have met the other criteria for an award of reimbursement.

 

 Lastly, petitioners seek reimbursement for an IEE dated July 1, 2003.  Federal and state regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district.  Nevertheless, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation.  If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5 [g]).

 

The impartial hearing officer denied petitioners' request because the existence of this IEE was first disclosed at the hearing and was not made part of the record.  In addition, it has never been shared with the school district.  I find that the present record would not support a finding by either the hearing officer or me with respect to the IEE. Accordingly, I must annul that portion of the hearing officer's decision, which denied reimbursement and remand the matter to the CSE to review the IEE.  Respondent may then choose to reimburse petitioners or initiate a hearing to establish the appropriateness of its evaluation (Application of a Child with a Disability, Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 02-021). 

 

I have considered petitioners' remaining claims and find them to be without merit.          

 

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent it denied petitioners' request for reimbursement of an independent educational evaluation; and

IT IS FURTHER ORDERED that this matter is remanded to respondent's CSE in order to review the evaluation and either reimburse petitioners or initiate a hearing in accordance with federal and state regulations.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

December 1, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  Neuropsychological report dated July 25, 2002.

 

2  The petition contains two paragraphs numbered 48, the first paragraph 48 is referred to as paragraph 47 in this decision.

 

3  The child's Section 504 Accommodation Plan for the 2001-02 school year is not part of the record.