The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE EASTPORT SOUTH MANOR 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
Guercio & Guercio, attorney for petitioner, Randy Glasser, Esq., of counsel
Wasserman Steen, LLP, attorney for respondents, Lewis M. Wasserman, Esq., of counsel
Petitioner, the Board of Education of the Eastport South Manor 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 respondents' son and ordered it to reimburse respondents for their son’s tuition and transportation costs at the West Hills Montessori School (West Hills) for the 2003-04 school year, and awarded respondents reimbursement for a psychiatric evaluation. Respondents cross-appeal, asserting that the impartial hearing officer erred in permitting certain testimony and refusing to receive into evidence certain documents. The appeal must be dismissed. The cross-appeal must be dismissed.
Preliminarily, I will address two procedural issues raised in this appeal. In their answer, respondents assert that the notice of petition and petition were not personally served upon one of the respondents, the student’s mother, in a timely manner as required by the Regulations of the Commissioner of Education, and that the petition should be dismissed (see 8 NYCRR 279.1[a], 279.2, 275.8[a]). Petitioner asserts that the student’s father was served with multiple copies of the notice of petition and petition at respondents’ home and that the student’s mother was aware of the appeal as evidenced by her November 5, 2004 affidavit of verification annexed to respondents’ verified answer and cross-appeal that was served in a timely fashion. Given that appeals are generally not dismissed for procedural irregularities and that the student’s mother was given notice of the appeal as evidenced by the fact that she responded in a timely fashion, I decline to dismiss the petition.
The second procedural issue is respondents’ request that I consider certain documents that the impartial hearing officer refused to accept into evidence. Respondents purport that these documents establish a recommendation made by a CSE in June 2004 as to the student’s classification and as to the student’s entitlement to a 12-month program. In its verified reply and answer to cross-appeal, petitioner objects to the submission of these documents. It asserts that respondents had the opportunity to request that the impartial hearing officer consider the documents and further asserts that the documents should not be considered because the hearing continued into the 2004-05 school year.
Documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision if such evidence were unavailable at the time of the hearing or when such evidence is necessary to enable a State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ., Appeal No. 02-024).
The documents accompany a letter dated August 25, 2004 from respondents to the impartial hearing officer requesting their inclusion in the record of the proceeding. They are described in that letter as a July 21, 2004 letter to respondents, an individualized education program (IEP) resulting from a June 9, 2004 Committee on Special Education (CSE) meeting, minutes of a June 9, 2004 CSE meeting, an IEP resulting from a July 14, 2004 CSE meeting and minutes of a July 14, 2004 CSE meeting. The impartial hearings were held on numerous days beginning on September 18, 2003 and concluding on July 28, 2004. The impartial hearing officer rendered his decision on September 21, 2004. The information in the documents was available to respondents at the time of the hearing and is not necessary for me to render a decision. Therefore, I will not accept them.
When the impartial hearing began on September 18, 2003, the student was 13 years old. During the previous school year, he had competed sixth grade in a 12:1+1 self-contained special education class at Eastport Elementary School (Eastport), where he was mainstreamed for physical education and specials (Dist. Ex. B at p. 3). He is described as functioning cognitively below age level and as having delays in expressive and receptive language as well as having auditory processing deficits (Dist. Ex. A at p. 7). Socially, the student is described as "immature" (Tr. p. 421), but he had reportedly made progress in establishing friendships with peers (Tr. pp. 1773-74). The student was initially classified as speech impaired (Tr. p. 268) and remained so classified at the time of the parents' request for an impartial hearing. His classification has been a matter of dispute, however, it appears from the record that this dispute was resolved when a CSE convened on June 9, 2004 and recommended changing the student's classification to autism as requested by respondents (Tr. pp. 1397, 1495).
The student was first evaluated by a psychologist at the St. Charles Educational and Therapeutic Center (St. Charles) in March 1992 when he was 18 months old (Dist. Ex. MM). The psychological evaluation report noted that the student exhibited significant deficits in all aspects of speech and language development. The student subsequently received early intervention services at St. Charles and attended the St. Charles preschool program beginning in September 1992. In a second evaluation by the same psychologist at St. Charles in January 1993, the evaluator reported that the student continued to display significant delays in both receptive and expressive language, but that his nonverbal cognitive abilities "appeared to be within age-appropriate limits." The same psychologist conducted a third evaluation in June 1995, when the student was four years, ten months old. The psychologist reported that the student came readily to each testing session, readily cooperated with all tasks, and "spontaneously engaged in interactions with the examiner, often laughing and smiling in response to playful exchanges." However, the student's ability to comprehend the demands of tasks presented was limited, particularly when verbal instructions were required, and he was not able to complete most items which required verbal responses. Administration of the Wechsler Primary and Preschool Scale of Intelligence–Revised yielded a performance IQ score of 72, which is in the borderline range of cognitive functioning. His standard score of 84 on the Leiter International Performance Scale was in the low average range. His adaptive behavior composite score of 82 on the Vineland Adaptive Behavior Scale completed by the parent yielded an age equivalent of four years, one month. The same scale completed by his teacher resulted in an adaptive behavior composite score of 64 and an age equivalent of three years.
The student began kindergarten in the district (Tr. p. 627) and although the student's mother reported that district staff were "really supportive" (id.) and made considerable effort to ensure a successful kindergarten experience, he was transferred to a Board of Cooperative Educational Services (BOCES) program before the end of the 1995-96 school year, reportedly due to frequent temper tantrums and delayed language skills (Tr. pp. 627-28). The student was placed in a BOCES class which implemented strategies of Applied Behavioral Analysis (ABA), a methodology which relies upon use of stimulus and response in a one-to-one setting (Tr. pp. 628-29). The student remained at BOCES until the 2000-01 school year, when he was transitioned to fourth grade in a combined third and fourth grade class at Eastport (Tr. pp. 635-36, 884). The record indicates that the student entered kindergarten with a classification of speech-language impaired and that he maintained this classification throughout his tenure at BOCES and at Eastport (Dist. Ex. G; Tr. p. 268).
In April 1999 when the student was eight years, four months old and attending the BOCES program, he was evaluated by a neurologist at Schnieder's Children's Hospital (Dist. Ex. X). The neurologist noted that the student had been referred for evaluation of "possible pervasive developmental disorder" and further noted that the student had previously been evaluated at Columbia Presbyterian Hospital, where he was “diagnosed with having some features of pervasive developmental disorder.” There is no evaluation report from Columbia Presbyterian Hospital in the record.
The neurologist who evaluated the student at Schneider's Children's Hospital reported his clinical impression of "significant features of pervasive developmental delay and macrocephaly" and recommended further testing, including a "fragile-X DNA study" (Dist. Ex. X). The record does not contain the results of a DNA study to determine presence or absence of fragile-X, or indicate whether this study was conducted.
In spring 2000, while the student was still attending a BOCES program, preparations were made to transition him to a self-contained special education class at Eastport (Tr. p. 1824). A BOCES consultant coordinated this transition between the two programs by observing the student in his BOCES placement and by visiting the Eastport classroom, where she took photographs of the physical setting for a social story which she used with the student to prepare him for his new school (Tr. pp. 1824-25). The consultant also identified the skill levels of the other students in the Eastport class to assist in determining what skills training should be emphasized with the student in the BOCES class in preparation for his transition (Tr. pp. 1824-25). Prior to his transition, the student was reportedly unable to unpack his backpack and place his personal items in his cubby without verbal prompting (Tr. p. 1826). He was able to engage in spontaneous speech involving a few words, copy sentences from the board into his notebook, and develop one or two sentences for his journal with assistance from a classroom aide (Tr. p. 1827).
The BOCES consultant observed the student again in fall 2000, after he had transitioned to the Eastport fourth grade, and also conferred with the student's fourth grade teacher (Tr. pp. 1827-28). During the observation, the teacher directed the students to get their textbooks and prepare for a lesson, and the student was the only child in the class who was unable to do so independently (Tr. p. 1828). The teacher prompted the student to watch the other children and, upon doing so, the student went to get his book (id.). The consultant noted that this method of cueing raised the level of the student's independence by allowing him to look around him instead of relying upon direction from an adult, and that this was a higher level skill (Tr. pp. 1828-29).
The BOCES consultant returned to the student's fourth grade class on two more occasions during the first few months of the 2000-01 school year (Tr. pp. 1830-31). On those two occasions, the BOCES consultant recommended strategies for use with the student and also discussed with the student's special education teacher strategies which the teacher had successfully implemented (Tr. pp. 1829-31). The record indicates that, when he entered the fourth grade, the student was assigned a one-to-one aide but this service was discontinued when the parents and staff agreed that the student did not require an aide (Tr. pp. 639-40).
During the 2001-02 school year, the student was placed in a 12:1+1 self-contained fifth grade special education program in a combined fifth and sixth grade class (Dist. Ex. B; Tr. p. 289).
In January 2002, an educational evaluation was conducted for the student's triennial review (Dist. Ex. G). The evaluator, who was also the student's fifth grade special education teacher, described the student as "very cooperative during testing" and also noted that he "tries hard to pay attention in class" and "likes to please his teachers" (id.). On the Woodcock-Johnson Tests of Achievement–Revised (WJ-R), the student's percentile (and grade equivalent) scores were 30 (4.2) for letter-word identification, 18 (3.1) for passage comprehension, 32 (4.5) for total reading, 46 (5.3) for math calculation, 10 (2.8) for qualitative concepts, 14 (3.4) for math reasoning and 27 (4.0) for total math (id.). His performance in spelling as measured by the Wide Range Achievement Test – 3 (WRAT-3) was at the third grade equivalent (id.). The teacher reported that these scores were consistent with the student's classroom performance (id.). In March 2002, administration of the Clinical Evaluation of Language Fundamentals–R (CELF-R) yielded an age equivalent score of five years, four months (Dist. Ex. B at p. 7). The record indicates that a psychological evaluation was not conducted for the student's triennial because the student's parents refused consent for any evaluations which "may result in an IQ score" (Dist. Exs. L, QQ; Tr. p. 1708). Although the school psychologist stated that a current psychological evaluation "would have been helpful" to the CSE, the committee "chose not to make it an issue" because the student was experiencing success in his program at that time (Tr. pp. 1713, 1742). The student's mother later explained that she had refused to consent to cognitive testing because of her concern that her son's language deficits might result in a lower IQ score, and that she believed her son might receive a lower level of services if his scores indicated performance in the mentally retarded range (Tr. p. 727).
The CSE convened on April 24, 2002 to develop the student's IEP for the 2002-03 school year (Dist. Ex. B at p. 2). It recommended continued classification as speech impaired, 10-month placement in a 12:1+1 sixth grade special education class, and related services of speech-language therapy five times per week and counseling once per week (id.). Mainstreaming was recommended for physical education, specials, lunch and assemblies. For summer 2002, the CSE recommended the related service of speech-language therapy twice per week for 30 minutes, once individually and once in a group (Dist. Ex. B at p. 4). The student's parents supplemented the student's related services during the summer with private tutoring conducted by the special education teacher who had been the student's fifth grade teacher, and who would also become his sixth grade teacher in 2002-03 (Tr. p. 289). In addition, the student attended a summer 2002 remedial program, which was open to both general and special education students and was not designed to meet special education needs (Tr. p. 84).
The record indicates that the student's 2002-03 experiences in the sixth grade of a combined fifth and sixth grade 12:1+1 class were positive (Tr. p. 419). His special education teacher noted that the student was comfortable in the classroom routine, and no longer required prompts to be ready for lessons (id.).
The CSE convened on May 6, 2003 to develop the student's 2003-04 IEP (Dist. Ex. A). The committee reviewed the student's progress in 2002-03, including a March 2003 speech-language therapy evaluation report which noted that the student's performance on the CELF-3 yielded an age equivalent of eight years, compared to an age equivalent of five years, four months in March 2002 (Dist. Ex. H). The student's speech-language therapist reported that the student had made excellent progress in vocabulary, auditory memory for digits, and auditory processing, and that he worked very hard to improve his language skills (Dist. Ex. A at p. 4). The student's special education teacher reported that the student's standardized scores in speech and language did not adequately reflect the student's significant progress in this area (Tr. p. 305). She reported to the CSE that the student's percentile (and grade equivalent) scores on the WJ-R increased in one year from 18 (3.1) to 23 (4.2) in reading passage comprehension and from 46 (5.3) to 46 (6.7) for math calculation (Dist. Ex. F). On the WRAT-3, his grade equivalent score in spelling increased from 3.0 to 7.0 (id.).
When the CSE convened on May 6, 2003 to develop the student's 2003-04 IEP, the district was preparing to open a new junior high school building, which was still under construction (Tr. p. 297). The CSE developed an IEP recommending that the student remain in the combined fifth-sixth grade at Eastport (Dist. Ex. A). The special education teacher indicated that she had, in the past, recommended other students for a third year in her class (Tr. p. 422), and considered this an acceptable option for this student because of concerns regarding social immaturity (Tr. p. 421). The school psychologist who had provided counseling to the student in 2002-03 opined that, if the student was to be transitioned to the new junior high school, he would require counseling services to assist with this transition. If the student remained at Eastport, counseling would not be required because of the progress the student had made, and could instead be provided on an as-needed basis (Dist. Ex. NN). Although the student had a history of difficulty with transitions, his special education teacher indicated that he was able to transition successfully, and opined that an effective plan for his transition to the new junior high school in 2003-04 could have been developed (Tr. pp. 393, 398-99).
For the 2003-04 school year, the CSE recommended that the student continue to be classified speech impaired, be placed in a self-contained 12:1+1 combined fifth and sixth grade class for language arts, reading and math, and be mainstreamed for specials and for physical education (Dist. Ex. A). It also recommended speech-language therapy as a related service five times per week for 40-minute sessions, three times in a small group and twice per week individually.
At the May 6, 2003 meeting, the CSE also recommended that the student be placed in an inclusion class at the sixth grade level for social studies and science, five times per week for 40 minutes each, with direct consultant teacher services for both classes (Dist. Ex. A; Tr. pp. 293, 452). The student’s mother testified that she advised the other Committee members that she was "unsettled" about the student’s educational plan did not include seventh grade work (Tr. p. 787).
The CSE did not recommend an extended school year for the student in 2003-04, as his teacher and his speech therapist had never observed any evidence of regression when the student returned to school after holidays and school breaks during either the 2001-02 or the 2002-03 school years (Tr. pp. 83, 315, 316, 318). The CSE did, however, discuss the possibility of the student participating in a district supplemental summer reading program, which operated four days per week but was not a special education program and was not designed to address students at risk of regression (Dist. Ex. P; Tr. pp. 313-14).
At the conclusion of the May 6, 2003 CSE meeting, the student's mother indicated that she was considering a change in her son's classification from speech impaired to autism (Tr. pp. 309, 1766). The CSE chairperson informed the mother that an autism classification would require documentation of a diagnosis of autism (id.). The student’s mother testified that she believed that the district had sufficient information to make a classification of autism at that time (Tr. pp. 790-91).
Significantly, no written IEP or goals and objectives were developed at the May 6, 2003 CSE meeting (Tr. pp. 787-88). The student’s mother testified that she was told at the CSE meeting by the CSE Chairperson that the goals and objectives would be developed after the meeting and would not be discussed at the meeting (Tr. pp. 665-66). The CSE Chairperson testified that it is the district’s practice to have teachers write and develop goals and objectives after CSE meetings (Tr. pp. 104-07, 271).
On June 12, 2003, when the student was 12 years old, he was evaluated by a private psychiatrist at the Cody Center at Stony Brook University (Cody Center) (Parent Exs. 1-G, 10). In his report, the psychiatrist noted that the student had been "diagnosed with Pervasive Developmental Disorder–Not Otherwise Specified (PDD-NOS)…through Long Island Jewish Medical Center in Hyde Park, New York" (Parent Exs. 1-G at p. 3, 10 at p. 3), referring to the April 30, 1999 neurological evaluation in which that evaluator had reported the presence of "significant features of pervasive developmental delay" and had recommended that a "fragile-X DNA study" be conducted (Dist. Ex. X), but which did not state that the student had a diagnosis of PDD (Tr. p. 1644). The psychiatrist at the Cody Center described the student as a "pleasant" student with whom rapport was easily established and as "generally compliant and cooperative" during evaluation, making appropriate verbal responses and using appropriate eye contact and facial expressions (Parent Exs. 1-G at p. 3, 10 at p. 3).
The psychiatrist at the Cody Center concluded that the student "presents as a child with an Autism Spectrum Disorder" and that his "current behavior and developmental history are in accordance with the educational classification of 'Autism' as set forth by the New York State Department of Education" (Parent Exs. 1-G at p. 4, 10 at p. 4). He suggested that the CSE consider reevaluation of the appropriateness of the student's classification as speech impaired. He also recommended a comprehensive psychological evaluation to identify the student's strengths and needs, and a neuropsychological evaluation to identify the student's learning style, noting that anecdotal evidence suggested a "significant discrepancy in his ability to perform language-based tasks vs. visual tasks" and that "[t]his discrepancy denotes a learning disability."
The Cody Center psychiatrist recommended that the student be placed in a structured program which provided a systematic approach to instruction. If the student was not to be placed in a program specifically designed for students with autism spectrum disorders, the psychiatrist indicated that "it would be beneficial" for the student to receive three to five hours per month consultation services from a "trained professional who has experience with autism spectrum disorders" (Parent Exs. 1-G at p. 4, 10 at p. 4). The psychiatrist further recommended continued speech-language therapy, social and play skills training, frequent communication between home and school to encourage generalization, "[v]isual supports such as visual schedules to compensate for auditory processing deficits and to capitalize on strong visual learning skills," and 12-month programming to address the student's need for consistency and because the student "presents a high risk for regression" (Parent Exs. 1-G at pp. 4-5, 10 at pp. 4-5).
The psychiatric evaluation report from the Cody Center was first received by the district with a request made by the parents, dated July 3, 2003, for an impartial hearing (Tr. p. 1695). The student’s mother testified that she received the psychiatric evaluation report in the beginning of July 2003 (Tr. p. 1004)
At the end of the 2002-03 school year, the student's sixth grade class was scheduled to participate in a "stepping up" ceremony as part of the student’s transition to junior high school. In an undated memo, the student's father advised the student's special education teacher that he wished to have his son participate in this ceremony (Dist. Ex. J).
On July 14, 2003, the parents unilaterally enrolled their son in the "I Am I Can" program operated by the West Hills Montessori School (West Hills) (Dist. Ex. Z). West Hills is a special education program for children with neurobiological disorders (Tr. p. 1516). It has an enrollment of approximately 32 students, approximately 75 percent of whom have autism spectrum disorders (Tr. pp. 1095, 1158, 1310). The program uses seventh grade textbooks and follows New York State curriculum standards, modified to student ability levels (Tr. pp. 1367, 1373). West Hills has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (Tr. pp. 939, 1443).
By letter dated July 3, 2003, the parents requested an impartial hearing (Answer p. 2). The impartial hearing was held on September 18, 2003, continued for a total of eleven days, and concluded on July 28, 2004 (IHO Decision, p. 2). The impartial hearing officer rendered his decision on September 21, 2004 (IHO Decision, p. 9).
The impartial hearing officer found that the school district’s evaluation of the student was "superficial" and that had a full educational and psychological workup been performed, the district would have previously changed the student’s classification to autism (IHO Decision, p. 5). He further found that repeating the sixth grade program as recommended by the district was not in the best interests of the student because it lacked the structure necessary for a student with autism, that district staff was caring and supportive but lacked necessary training, and that no "autism consultant" was readily available. He determined that the CSE should change the student’s classification to autism and that the parents should be reimbursed for the fees they paid at the Cody Center because the use of the "materials" from the Cody Center were necessary to obtain the correct diagnosis and classification of the student.
The impartial hearing officer determined that the district did not offer the student a free appropriate public education (FAPE) for the 2003-04 school year (IHO Decision, p. 6). He further determined that the IEP was not appropriate because it contained inadequate goals and objectives (id.) and because it was not developed for a student with autism (IHO Decision, p. 5). He concluded that the district’s proposed placement in the sixth grade special class was one of convenience and not in the student’s best interests for a proper education (IHO Decision, p. 6). He found that the parents’ placement in West Hills was proper because the program was designed for students with neurological disorders including autism spectrum disorders and the student was "…placed in a seventh grade class, modified, where he belonged." He also found that both the parents and the West Hills staff had demonstrated the appropriateness of the program for children on the autism spectrum similar to respondents’ son. He concluded that the student was not offered a FAPE and that placement at West Hills met the student’s needs. He also concluded that "[n]o one will question that the parents were totally involved and offered complete cooperation during the entire process" and that equitable considerations favored an award of tuition reimbursement and other costs to respondents (id.).
The impartial hearing officer further concluded that all "ancillary services" provided to the student during the 2002-03 school year should have been continued during the 2003-04 school year, citing the testimony of "the autism experts" contending that counseling services were needed. He further concluded that speech and language services should be continued on a 12-month spectrum to avoid any regression and he ordered the school district to transport the student to and from West Hills at the district’s expense.
During the school year that the hearing was in progress, the student attended seventh grade at West Hills (Tr. p. 1324). He was placed in a self-contained class with a total of eight students, five of whom were autistic (Tr. pp. 1159-60). Staff in the class consisted of one teacher, one teacher assistant, three teacher aides providing one-to-one services to other students in the class, and an additional teacher aide who assisted in the student's class on a part-time basis because the aide was assigned to more than one classroom (Tr. pp. 1190, 1415).
On October 27, 2003, the CSE reconvened to review the June 12, 2003 psychiatric evaluation report from the Cody Center which was provided to the district by the parents with their hearing request in July 2003 (Tr. p. 460). No classification change was recommended at that time. The CSE instead recommended obtaining a neuropsychological evaluation of the student.
A neuropsychological evaluation recommended by the CSE on October 27, 2003 was conducted on February 5, 2004 and March 3, 2004 by a psychologist employed by the Cody Center (Parent Ex. 6). The psychologist who conducted the evaluation described the student as easy to engage and appearing to participate "to his fullest extent" (Parent Ex. 6 at p. 4). The psychologist assessed the student's cognitive ability using the Leiter International Performance Scale–Revised (Leiter), which he noted was administered because the student’s father expressed a preference for that assessment tool (Tr. p. 1679). The student's performance on the Leiter yielded a full IQ score of 92, indicating average reasoning skills (Parent Ex. 6 at p. 2).
The psychologist also administered a Wechsler Individual Achievement Test (WIAT) on which the student obtained standard (and grade equivalent/percentile) scores of 72 (3.9/3) for reading comprehension, 86 (5.8/3) for numerical operations, 56 (2.8/0.2) for math reasoning and 99 (7.6/47) for spelling (Parent Ex. 6 at p. 4). These test scores indicate gains in spelling when compared to the student's score at the third grade equivalent on the WRAT administered in January 2002 when he was in the fifth grade.
Results of the comprehensive battery of standardized assessments completed in the Cody Center neuropsychological evaluation identified deficits in language processing and executive functioning (Parent Ex. 6 at pp. 6-7). The evaluator offered extensive recommendations, including reclassification as a student with autism, a 12-month program with a small student to staff ratio, and, should the student return to his home school, an "autism consultant (60-minutes/month) [to]monitor his school program and assist school personnel with academic and behavioral programming" (Parent Ex. 6 at pp. 7-8).
In his report, the psychologist from the Cody Center stated that the student had a "medical diagnosis of Pervasive Developmental Disorder from Schneider's Children's Hospital" (Parent Ex. 6 at p. 1), but he later acknowledged that the Schneider's Hospital report did not specifically state that the student had a diagnosis of PDD (Tr. p. 1644). The psychologist concurred with the conclusion of the psychiatrist at the Cody Center (Tr. p. 1605) that the student should have an educational classification of autism (Tr. p. 1620), and explained the distinction between a diagnosis based upon the Diagnostic and Statistical Manual (DSM), and an educational classification in that the "educational code is somewhat broader" (Tr. pp. 1609, 1618-19). The psychologist opined that the student did meet the DSM diagnostic criteria for an autism spectrum disorder, but noted that the neurodevelopmental evaluation he conducted of the student "wasn't a diagnostic assessment for autism, it was a separate kind" intended to assess functional skills and cognitive processes (Tr. pp. 1623-24). In his report of the results of his standardized testing of the student, the psychologist stated that "[a]s a diagnostic battery, results suggest that [the student] presents with the neuropsychological impairments that are frequently observed in children with autism spectrum disorders" (Parent Ex. 6 at p. 6).
On March 8, 2004, when the student was 13 years, 7 months old and in the seventh grade at West Hills, a speech-language therapy report described him as a "very friendly, social child" who had a good relationship with his therapist and appeared eager to attend speech therapy sessions (Parent Ex. 8 at p. 1). The therapist administered the Clinical Evaluation of Language Fundamentals–4 (CELF-4), on which the student's receptive language standard score of 64 was in the first percentile and his expressive language standard score of 71 was in the third percentile.
The CSE convened on June 9, 2004 and recommended changing the student's classification to autism (Tr. pp. 1397, 1495).
Petitioner appeals from the impartial hearing officer's decision. It argues that the IEP developed at the May 6, 2003 CSE meeting was appropriate, that its CSE recommended an appropriate program for the child for the 2003-04 school year, that the program offered at West Hills was not appropriate, that equities do not favor respondents and that respondents are not entitled to receive reimbursement for tuition and other costs. Petitioner further argues that the classification of speech impaired by the May 6, 2003 CSE was correct and respondents are not entitled to reimbursement for the Cody Center evaluation. Respondents cross-appeal contending that the impartial hearing officer erred by permitting testimony relating to the 2004-05 school year and by refusing to receive into evidence certain documents relating to a June 2004 CSE meeting.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 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 individualized education program (20 U.S.C. § 1401; 34 C.F.R. § 300.13; see 20 U.S.C. § 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. 02-092).
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 ). 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 WL 31521158 [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. § 1412[a]; 34 C.F.R. § 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 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. 04-029; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must include measurable annual goals, with benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][iii][a] and [b]). Goals must be specific in order to provide sufficient guidance to a student's teachers and parents with respect to the CSE's expectations for the student's performance (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 98-14), and they must be measurable (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][iii]). An IEP is inadequate where the goals and objectives lack specificity (Application of a Child with a Disability, Appeal No. 00-058).
The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 ). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401(11); 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]).
The Supreme Court has defined the IEP as the centerpiece of the IDEA's educational delivery system (Honig v. Doe, 484 US 305, 311 ). "The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 [2d Cir. 2002]). An IEP is not just a description of the services to be provided to a child; it also must include "measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs" (34 C.F.R. Part 300, Appendix A, Question 1). Hence, service providers must refer to the IEP continuously throughout the year in order to gauge its effectiveness in meeting short-term goals and benchmarks and make appropriate revisions where necessary (see id.).
With respect to the first criterion for an award of tuition reimbursement, petitioner bears the burden of demonstrating that it offered an appropriate program. I concur with the impartial hearing officer’s determination that because of the inadequate goals and objectives petitioner failed to meet its burden of demonstrating that it offered to provide an appropriate program to the student for the 2003-04 school year. The district's IEP for the 2003-04 school year did not offer the student a FAPE. Specifically, the goals and objectives do not include adequate criteria with which to measure progress.
The 2003-04 IEP describes the student as functioning cognitively below his chronological age. The IEP does not include current scores from standardized cognitive testing (Dist. Ex. A at p. 4). Descriptions of the student provided by staff reports and also in staff and parent testimony indicate that the description of the student's cognitive functioning as below age level was sufficient to develop an appropriate program.
Academically, the student was described as able to demonstrate math skills if provided moderate support, consistent with the CSE's recommendation for placement in a special education class for math (Dist. Ex. A at p. 4). In language arts, the student was described as able to model language arts skills with moderate support and able to learn best when models and examples are provided (id.). The student's language abilities were described as below chronological age level (id.). The IEP also noted that the student was able to express simple ideas (id.). Recent standardized test scores in math, language arts and speech-language included on the IEP were consistent with these descriptions (Dist. Ex. A at p. 7).
Socially, the student was described on both the 2002-03 IEP and on the 2003-04 IEP as having made an appropriate social adjustment to school, family and community in the district, responsive to adult attention and able to initiate social interaction with adults, considerate of others, able to engage in cooperative play in a small group, and an active participant in class (Dist. Exs. A at pp. 5, 6, B at p. 5). He was described on the IEP as functioning below his chronological age. His identified social needs as listed on the 2003-04 IEP include the need to decrease his dependence on adults, to react appropriately to the emotions of others, to be more tolerant of criticism, to express his needs and wants more effectively, to increase social interactions, and to learn how to communicate in social situations (Dist. Exs. A at pp. 5, 6).
The student's management needs as articulated on the 2003-04 IEP included the need for a structured environment with a structured instructional approach to encourage organization and independent academic skills, and with frequent reinforcement and encouragement (Dist. Ex. A at p. 5). These management needs were carried over from the student's 2002-03 IEP (Dist. Ex. B at pp. 4, 5). Additional management needs added to the student's 2003-04 IEP include the need for part-time placement in a general education environment with significant special education support (Dist. Ex. A at pp. 6-7). The 2003-04 IEP also identifies new management needs for 2003-04 which reflect higher levels of skill than the student demonstrated during the previous school year, including the need to develop organizational and problem-solving skills as well as the need for monitoring and checking for understanding of directions (Dist. Ex. A at pp. 4, 5). The record indicates that the student had been successfully mainstreamed for specials in 2002-03 and that he was an active participant in mainstream classes (Tr. pp. 418, 594-95). The CSE recommended that, for 2003-04, the student receive services from a consultant teacher and participate in inclusion in general education social studies and science classes five days per week (Dist. Ex. A at p. 3).
To address the student's academic needs in language arts and math, the IEP included a recommendation for placement of the student in a self-contained 12:1+1 special education class for language arts and math with the related service of speech-language therapy five times per week (id.). The IEP has goals and objectives for language arts and math. It also has goals for speech-language therapy, including a goal to address auditory processing deficits which is an area of need identified in testing and included on the student's IEP (Dist Ex. A at pp. 12, 13). Another speech-language goal, addressing pragmatic language, has four objectives addressing language in social settings (Dist Ex. A at p. 12).
While the goals and objectives on the IEP target areas of identified need, the goals and objectives themselves are inadequate because they provide no criteria by which to measure progress. The IEP has 14 goals, most of which state that the student will perform the skills described in the goals at his "functional level" (Dist Ex. A at pp. 8-15). While the student's functional level could, for some goals, be determined by examining the student's standardized test scores, it would have been more appropriate to state within each goal the level of performance expected of the student when the goal is mastered.
Of greater significance is the failure of every goal and objective on the 2003-04 IEP to identify any criteria for mastery. For example, reading and language arts objectives include objectives indicating that the student will "write a descriptive paragraph," use relevant details during writing activities," and "use descriptive words" (Dist Ex. A at pp. 8-10). None of these objectives specifies the level of writing skill expected, the amount of assistance the student will be provided, or the percentage of accuracy required to establish mastery. Speech-language objectives state that the student will, among other skills developed, "improve auditory sequence of verbal messages," "improve vocabulary and semantics through definitions," and "develop critical listening skills" (Dist. Ex. A at pp. 10-13). No criteria are provided and no percentage of accuracy is included for any of these objectives. Likewise, math objectives include statements that the student will "solve mathematical problems using more than one step," "use factoring techniques to determine common denominators," and "develop graphing skills," but do not in any way indicate the level of assistance he will be afforded, the breadth of skill expectations, or the percentage of accuracy required for mastery (Dist Ex. A at pp. 13-15). Each objective is behaviorally stated and related to identified needs, but each objective is incomplete because no criteria are included. Goals and objectives which cannot be measured are inadequate. They offer no guidelines for the teacher to determine the success of teaching strategies over time, and, equally important, they offer no means by which a parent can determine if progress has been made.
Moreover, the goals and objectives were developed without adequate parental participation.
The failure to have an IEP that contained adequate goals and objectives directly resulted in a loss of educational opportunity for this student. The failure to have adequate goals and objectives in the IEP in the instant case afforded respondents an educational program in which monitoring of the child's progress or revision of the program would be impeded, thus depriving the child of a critical component of his educational program, and resulted in a loss of educational benefit. Moreover, the educational program offered was developed without adequate parental participation in the development of the goals and objectives. I find that the inadequacies in the district's recommended program for the child for the 2003-04 school year not only seriously infringed on the parents’ ability to participate in the IEP formulation process and denied educational benefit, but produced an IEP that was substantively flawed and not reasonably calculated to enable the child to receive educational benefits, and thus denied respondents’ son a FAPE (see Rowley, 458 U.S. at 206-07).
Turning to the second prong of the Burlington analysis, it must be decided whether respondents have met their burden of proving that the services provided to the student by West Hills during the 2003-04 school year were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, respondents must show that West Hills offered an educational program which met their son’s special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).
The impartial hearing officer determined that the parents’ placement of the student at West Hills, in a seventh grade modified class, was appropriate. In his decision, the impartial hearing officer stated that he was persuaded by the testimony of the parent and of the West Hills staff that the West Hills program is appropriate for respondents’ son. I note that there is much conflicting evidence in the record and that the parties appear genuinely concerned about the appropriateness of the student’s educational program. Under the circumstances, with the impartial hearing officer having found the testimony of the parent and the staff of West Hills to be persuasive, I decline to conclude that such a determination is incorrect, upon a reading of the record as a whole. I, therefore, defer to the determination of the impartial hearing officer as to the credibility of this testimony. I find that there is an insufficient basis in the record for me to substitute my judgment for that of the hearing officer's judgment regarding witness credibility (Application of a Child with a Disability, Appeal No. 01-019).
Testimony has revealed the following in terms of the academic, social and behavioral needs of the student that were met at West Hills: West Hills specializes in the education of children with neurobiological disorders (Tr. pp. 1310-1313, 1410-13, 1436, 1482-83); the student is placed in a seventh grade program with state certified special education teachers in which he has made progress academically and socially/emotionally (Tr. pp. 1324-25, 1344, 1347-48, 1353-54, 1366-67, 1370, 1027, 1373-74); and the student’s class size and adult-student ratio were appropriate to the student’s needs at West Hills (Tr. pp. 1319-21, 1415-16, 1445, 1446). The social worker at West Hills testified that in September, the student had been unable to leave the classroom independently and needed an escort to the bathroom (Tr. p. 1040) and now he no longer needs an escort (Tr. 1065). Based on his performance, his levels of anxiety have decreased (Tr. p. 1063). The student is now more tolerant of noise and is an active participant in group activities, he goes from class to class independently, walking with his peers (Tr. pp. 1066-67). Episodes of withdrawal were occurring less often (Tr. p. 1077). In December, he started coping better and interacted more with his peers (Tr. pp. 1079-80). When asked to describe the student’s progress, the social worker opined he had made a great deal of progress in his overall social adjustment to school (Tr. p. 1094). The director of special education testified that the student had difficulty at the beginning of the school year but in February he began to show signs of success and improvement (Tr. pp. 1328-29). He testified that when asked to do something, the student is able to follow through, is more open to taking direction and has made progress in self-management (Tr. pp. 1341, 1344). The director testified that at the beginning of the year, the student had no peer interaction or peer relationships but that started to initiate more conversations and gravitated towards his peers, interacting with almost all his classmates and engaging in give and take conversations (Tr. pp. 1347, 1348). When asked if the student made adequate progress in the seventh grade curriculum, he indicated he had made slow but steady progress based on his ability (Tr. pp. 1373-74).
In addition, the student’s mother testified as to the student’s needs that are being addressed at West Hills and the progress that she has observed. She testified that prior to attending West Hills, the student had to be accompanied to the restroom by his father when outside the school environment, that West Hills includes toileting skills in its vocational and social skills training and that the student has become independent in that regard when out (Tr. pp. 735-37). She stated that West Hills provides training in the use of money and that she has seen some attempts on the student’s part to be independent in the use of money (Tr. p. 741). She also observed that the program at West Hills addresses children who are neuropsychologically disordered and are entering puberty, that she believes is very important for her son (Tr. p. 745). The mother also believes it is important that at West Hills, the student is being introduced to different careers (Tr. p. 751) and how to take public transportation (Tr. p. 743). With regard to eating, the mother testified that before West Hills the student refused to eat vegetables, he had a limited diet which included mainly hamburgers and he would not eat chicken, however, at West Hills, this is being addressed as a part of his life skills training and the student is trying new foods and "actually eating salads" (Tr. pp. 750-51).
In light of the foregoing, I find that West Hills was an appropriate placement for this student. The placement the parents selected was appropriate to enable the student to receive educational benefits, and the testimony offered by staff members from West Hills afforded sufficient evidence from which to conclude that the student's needs were being met (Rowley, 458 U.S. 176, 207). Although West Hills is a more restrictive placement, given the circumstances of this case, I decline to find that it is an inappropriate placement (M.S. v. Bd. of Educ., 231 F.3d at 105, citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir.1999] ["(T)he test for the parents' private placement is that it is appropriate, and not that it is perfect"], and also citing Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 399-400 [6th Cir.1998] [holding private placement's failure to meet IDEA's mainstreaming requirement does not bar parental reimbursement]).
The third and final Burlington criterion for an award of tuition reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 ). In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.
Regarding the final prong of the Burlington analysis, I find no reason to disagree with the finding of the impartial hearing officer regarding the cooperation of the parents during the entire process. Consequently, I find that the equities support an award of tuition reimbursement.
Petitioner asserts that the impartial hearing officer erred in awarding respondents reimbursement of the cost of the psychiatric evaluation dated June 12, 2003 because respondents "concealed" the evaluation from the district and failed to notify the district of their disagreement with the CSE’s 2003-04 recommendation (Pet. at pp. 5-6). The impartial hearing officer found that the evaluation was necessary for the district to obtain the correct classification of the student’s disability and directed that respondents be reimbursed for the cost of the evaluation (IHO Decision, p. 5). I concur with the finding of the impartial hearing officer insofar as the district’s utilization of the report led to a change in classification. The assistant superintendent for pupil personnel and special education testified that the district convened a CSE meeting after receipt of the report (Tr. pp. 458-60). The CSE reviewed the report and decided to obtain further information based on the report’s recommendation that a complete neuropsychological evaluation be conducted (id.). Information in the June 12, 2003 report aided in the determination of a new classification for the student. I find that the district properly considered the evaluation and that the evaluation assisted the district in determining an appropriate classification for the student, and, as such, it is not inappropriate here to direct the district to reimburse the parents for the cost of the evaluation.
Given the circumstances of this case, I find the award of reimbursement to respondents for their son’s tuition and transportation costs at West Hills for the 2003-04 school year, as well as reimbursement for the June 12, 2003 evaluation as ordered by the impartial hearing officer to be appropriate.
I have considered the parties’ remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
December 15, 2004
PAUL F. KELLY
STATE REVIEW OFFICER