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The State Education Department
State Review Officer

No. 04-093

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pine Plains Central School District

 

Appearances:
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel

Shaw and Perelson, LLP, attorney for respondent, Garrett L. Silveira, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Kildonan School (Kildonan) for the 2003-04 school year.  The appeal must be dismissed.

            At the time of the hearing request, petitioners’ son was 13 years old (see Tr. p. 619).  Petitioners' son attended kindergarten through second grade in the Poughkeepsie City School District (Tr. pp. 620-22, 627), where petitioners, after noticing some learning difficulties in first grade, initially referred their son to Poughkeepsie's Committee on Special Education (CSE) for evaluation (Tr. pp. 622-24; Parent Ex. N).  The Poughkeepsie CSE classified him as a child with a learning disability and developed an individualized education program (IEP) which provided him with daily resource room reading services for second grade (Tr. pp. 555, 625-26; see Parent Ex. C).  In 1999 petitioners moved into respondent's school district and enrolled their son in third grade at respondent's elementary school for the 1999-2000 school year (Parent Ex. Q; Tr. pp. 56, 595, 627).  Respondent's CSE evaluated petitioners' son, also classified him as a child with a learning disability, and placed him in regular education classes with daily resource room and multisensory reading/language services (Tr. p. 61; see Parent Exs. JJ, KK at 5).  In fourth grade, the student's IEP characterized him as having "a severe reading disability" complicated by difficulty in focusing attention (Parent Ex. JJ at p. 3).  The IEP placed the student in regular education classes with remedial reading four times per week for 30 minutes (later reduced to 20 minutes), in-class remedial writing instruction, and resource room services, with various test modifications (Parent Exs. JJ, KK). The district also agreed to begin reimbursing petitioners for additional private reading tutoring sessions using the Orton-Gillingham2 multisensory instruction method for one hour after school two to three times per week (Tr. pp. 65-68; see Parent Ex. M). 

            Standardized testing completed in the beginning of fifth grade revealed that the student achieved a performance IQ score of 102, a verbal IQ score of 111, and a full scale IQ score of 107 (high end of the average range) as measured by the Wechsler Intelligence Scale for Children - III (WISC III) (Dist. Ex. 6 at 2, 3); however, scores in reading and language were below grade level expectations (id. at 3).  The fifth grade IEP placed the student in regular education classes, with 30 minutes per day of 15:1 reading instruction, 60 minutes twice per day of 15:1 resource room services, and 30 minutes once per month of 1:1 speech-language therapy services (id.). Various test modifications were also provided (id.). The IEP indicated that the student’s homework assignments were to be reduced and study guides, additional books, spellchecker and word bank were to be provided as accommodations (id.).  The student continued to receive daily reading instruction at school, as well as private reading tutoring after school (Tr. pp. 759-60, 76).  The student's IEP progress report for the end of the fifth grade indicated some progress in all areas, although, excluding speech-language where all objectives were mastered, only 1 out of the 29 remaining objectives was listed as "excellent" or "completed" (Parent Ex. E). By March 2002, the student's private reading tutor found that the student had made marked progress in areas such as encoding and decoding (see Dist. Ex. 10), and testing administered by her in January or February 2002 reportedly found that the student no longer had a two-year discrepancy between his grade and his reading score (Tr. p. 78). Petitioners and school officials both agreed that the student had a "strong" fifth grade year (Tr. pp. 70, 76, 759).

            On March 11, 2002, the CSE met to develop the student's program for entry into junior high school for the student's sixth grade 2002-03 school year (Dist. Ex. 13; see also Dist. Exs. 14, 17).  The CSE noted in the IEP that the student "has a significant delay in reading decoding and language skills which inhibits progress in the general education curriculum" (Dist. Ex. 13 at 1). It was noted that the student's significant delays required additional special education support in the regular education classroom, requiring a small teacher-to-student ratio in order for him to progress academically (Dist. Ex. 13 at 4).  His cognitive abilities were described as average to above average, reading was inconsistent but improving, writing skills were described as needing a lot of support; difficulties were noted in organizational skills and significant difficulties were noted in attention (Dist. Ex. 13 at 2, 4). The sixth grade IEP placed the student in respondent's junior high school in an inclusion class for all academic subjects, which was staffed by a regular education teacher, a special education teacher, and a teacher's assistant (Dist. Ex. 13; Tr. pp. 84-85).  The IEP also listed related services consisting of 1:5 multisensory reading instruction once per week for 42 minutes, and 1:5 writing instruction once per week for 42 minutes (Dist. Ex. 13; Tr. pp. 85-86). The multisensory reading class was taught using the Orton-Gillingham method of instruction, and was developed in consultation with the student's private reading tutor (Tr. pp. 243-245, 274-75).  Program modifications were listed as "Additional Set of Books, Study Guides, Word Bank; Benefit from small group instruction; Reduce length of assignments; Homework/Assignments on assignment pad daily; Multiplication Tables; Spellchecker" (Dist. Ex. 13 at 1). Testing accommodations included extended time (2.0), directions read and explained, and tests administered in small groups in a separate location with minimal distractions (Dist. Ex 13 at 1). Goals and objectives were provided in the areas of study skills, reading, and writing (Dist. Ex. 13 at 4-6).

            An independent neuropsychological/educational evaluation was performed on the student in May 2002 (Dist. Ex. 16; Tr. pp. 95-97).  The Developmental Neuropsychological Assessment test (NEPSY) showed an inconsistency in sustained attention (Dist. Ex. 16 at 2) and overall low average scores in reading, writing, and math skills, with moderate variability in specific skill areas (Dist. Ex. 16 at 3); however, the student's verbal and nonverbal reasoning abilities were in the high average range (Dist. Ex. 16 at 5).  The evaluator reported that the student's present test results indicated a clinical diagnosis of dyslexia (Dist. Ex. 16 at 5), and that there was a "significant discrepancy between [the student's] measured cognitive abilities and his basic reading, written language and math computation skills" (Dist. Ex. 16 at 5).  The evaluator noted that the student's reading speed scores were below average (Dist. Ex. 16 at 4), that his reading rate was "slow and labored" (Dist. Ex. 16 at 6), and that unless the student's reading speed increased he would likely not be able to keep up with all the reading assignments as he transitioned into junior high school, and that alternative methods of exposure to course material would be necessary (Dist. Ex. 16 at 6).  The evaluator recommended repetition and breaking material down into smaller segments (Dist. Ex. 16 at 5), as well as access to a computer, calculator, and copy of class notes (Dist. Ex. 16 at 6), and the need for specialized individualized reading instruction using a structured, sequential program (Dist. Ex. 16 at 6). 

            The CSE reconvened on July 24, 2002 to amend the 2002-03 IEP to incorporate the results of the independent neuropsychological/educational evaluation (Dist. Ex. 14).  As recommended by the independent evaluator, program modifications were expanded to include copies of class notes, direction to repeat, reteach, and break down assignments into smaller segments, use of methods other than reading to expose the student to course content (Dist. Ex. 14 at 1), and the use of a calculator and word processor (Dist. Ex. 14 at 2).  Goals and objectives remained essentially the same (Dist. Ex. 14 at 5-7).  At the parents' request, "inclusion class" was changed to a "resource room" period, five days per week for 42 minutes (Dist. Exs. 14, 17; see Tr. pp. 95-100, 772).  Later, also at the parents' request, the evaluator's finding that the student had "significant difficulty with attention" (Dist. Ex. 14 at p. 5) was deleted from the IEP (Dist. Ex. 17 at 4; Tr. p. 780).

            When the student began sixth grade in September 2002, the services provided to him varied somewhat from the 2002-03 IEP document.  Although the IEP stated that the student was to receive one 42-minute reading class and one 42-minute writing class per week (see Dist. Exs. 13, 14, 17), the CSE had instead reportedly intended to provide the student with a daily 42-minute multisensory reading class which would incorporate writing instruction, since both were included in the Orton-Gillingham program (Tr. pp. 117, 94, 262).  Accordingly, the student began the sixth grade year receiving a daily multisensory reading class and no separate writing class (Tr. pp. 84-86, 93-94, 252, 770-71, 774). Against the reading instructor and assistant superintendent's1 advice, in November 2002 petitioners requested that their son be enrolled in a separate writing class and requested that it be alternated every other day with his reading class, rather than his art or technology electives, and respondent reluctantly complied with their request (Tr. pp. 252-254, 118-126, 130-32, 143-44, 770-71, 786-88; see Dist. Exs. 25, 23).  In addition, although the IEP had been changed in July 2002 to delete the inclusion class in order to accommodate the parents' request that the student be given resource room services (see Dist. Exs. 14, 17), the assistant superintendent believed, as did the nonparent members of the CSE, that the student needed more support in regular education than one 42 minute resource room period per day, so the student was enrolled in an inclusion class for all academic subjects in sixth grade (Tr. pp. 95-100, 451-52, 772).  To accommodate the parents' request for a resource room period, the special education teacher agreed to provide resource room services during the student's study hall (Tr. pp. 126-27).  The district also continued to reimburse petitioners for private tutoring for reading for two hours per week, although it was not an IEP service, but informed the parents that it would discontinue paying for this service the following year (Tr. pp. 135-36). Also, despite the modifications listed on the IEP, in October 2002 petitioners requested that the student's homework assignments not be reduced, and respondent complied with that request (Dist. Ex. 21; Tr. p. 382). In addition, in January 2003 petitioners asked that their son be exempt from attendance in an after school study hall for students who needed help with homework, and the district complied (Dist. Ex. 38; Tr. pp. 113-14, 381, 405-08, 806-07, 809; Parent Ex. BB at 10). Although school staff reported that the student did well in the beginning of his sixth grade year (Tr. pp. 115, 150, 254), both the parents and school staff agreed that the student was struggling during the latter half of the year and had regressed in reading (Tr. pp. 775, 115, 151, 153, 254-55; see Dist. Exs. 35, 44). The assistant superintendent, the student's reading teachers, and his regular and special education teachers attributed the student's regression to two factors: the decrease in reading services to every other day as requested by the parents (Tr. pp. 166, 253-55, 318; Dist. Ex. 44 at 3) and incomplete or missing homework assignments (Tr. pp. 151-53, 183, 196-97, 338, 354, 376-81, 388, 413). 

            On March 18, 2003, the CSE met to discuss and develop the student's IEP for the seventh grade 2003-04 school year (Dist. Ex. 44; Parent Ex. BB). Prior to the meeting, the special education teacher had drafted goals and objectives with the student's reading teacher (Tr. pp. 256-57), then had met with the parents at their home for their review and approval (Tr. pp. 168-69). The CSE reviewed recent testing which revealed that learning deficits continued to exist in the areas of reading, writing and spelling, with significant delays in reading decoding and language skills (Dist. Ex. 44 at 4; see Dist. Exs. 45, 60 at p. 1).  The student’s special education teacher reviewed scores from a recent Terra Nova evaluation and stated that the student's reading score (4.4 GE) was a slight regression from the previous year's score (Dist. Ex. 44 at 1).  She also stated that the student’s math and language scores showed improvement (id.).  The student's reading teacher stated that the student required daily instruction in multisensory reading in order to receive benefit from his program, rather than alternate days (Dist. Ex. 44 at 1, 3; Parent Ex. BB; Tr. pp. 256-58, 289).  It was agreed that in 2003-04 that the student would receive a daily period for reading instruction and a daily period for writing instruction, instead of alternate days (Dist. Ex. 44). The daily multisensory reading class would continue using the Orton-Gillingham method of instruction (see Tr. p. 256). The issue of IEP accommodations was discussed, and it was pointed out that the parents had made requests to discontinue various homework and testing IEP modifications which were affecting the student's program (Dist. Ex. 44; Parent Ex. BB). The CSE chair concluded at the end of the meeting that the resultant 2003-04 IEP would recommend that the student be placed in an inclusion class for all academic subjects, with a daily multisensory reading class and a daily writing class (Dist. Ex. 44 at 8; Parent Ex. BB; see Dist. Ex. 49 at 2). A few days later, petitioners submitted an application and promissory note to Kildonan for their son's attendance for the 2003-04 school year (Tr. pp. 991-93; Dist. Ex. 64). Kildonan is a private school exclusively for children with learning disabilities that uses the Orton-Gillingham method of instruction (Parent Ex. WW); it has not been approved by the Commissioner of Education as one of the schools with which school districts may contract to instruct students with disabilities.  From March 2003 to June 2003, the student continued to fail to complete his homework assignments and was absent from school at least 19 times (Tr. pp. 197, 997).

            By letter dated May 9, 2003 respondent informed petitioners that their son was in danger of failing sixth grade and explained that according to district policy, if a student fails two or three core subjects he or she is only eligible to be promoted to the next grade if they successfully complete a summer school program (Dist. Ex. 48).  At the end of the school year, the student failed English  (62 percent) and social studies (62 percent), and barely passed reading (67 percent) (Dist. Ex. 59; Tr. pp. 185, 187).  On June 19, 2003 the assistant superintendent sent petitioners a letter with a copy of their son's schedule for the 2003-04 school year stating that since the student had failed two subjects, the daily reading and writing classes were based on the assumption that the student would successfully complete summer school and advance to seventh grade (Dist. Ex. 49).  On July 7, 2003, the first day of summer school, the assistant superintendent tried to call the parents to urge them to enroll their son in summer school, advising them that, since he had failed at least two subjects, according to board policy he would have to be retained in sixth grade if he did not enroll (Dist. Ex. 52).  The letter informed the parents that if their son did not begin summer school by July 10, 2003 an IEP would be forwarded to them reflecting a sixth grade placement for the 2003-04 school year (id.; see also Dist. Ex. 53). Petitioners did not enroll their son in summer school (Tr. p. 821). On July 27, 2003 petitioners obtained an independent evaluation at their own expense by an evaluator not approved by the district (Parent Ex. HH; see Dist. Ex. 46). The evaluator conducted testing on the student, compared results from prior years' testing, claimed that the student had not progressed as he should have, and recommended "significant increased remediation in reading and writing" (id. at 6). 

            On August 6, 2003 a copy of the student's 2003-04 IEP was sent to the parents, modified to reflect the fact that the student had not met the criterion for promotion to seventh grade, and recommending that the student be retained in sixth grade for the 2003-04 school year as per school board policy (Dist. Ex. 60 at 4; see Dist. Ex. 56).  As per the assistant superintendent's letter, the daily writing class was changed to every other day to accommodate the student's sixth grade schedule (Dist. Ex. 60); the student would also reportedly receive writing instruction in his daily reading class using the Orton-Gillingham methodology (see Tr. pp. 262, 117, 94).  Everything else remained as discussed at the March 18, 2003 CSE meeting. The IEP classified the student as a child with a learning disability in the areas of reading, spelling and writing (id. at 1). It noted that the student had weaknesses in decoding, completion of homework assignments, auditory processing, and reading fluency rate (id. at 3).  The student was placed in a 1:15 inclusion class for all academic courses, with a daily 1:5 multisensory reading class and a 1:10 writing intervention class every other day (Dist. Ex. 60).  Program modifications included using multisensory and visual techniques, books on tape, study guides, word bank, spell checker, access to computer, use of calculator and multiplication tables (Dist. Ex. 60 at 1-2). Test accommodations included extended time (2.0), repetition, and directions read and explained (id. at 2-3).  Goals and objectives were provided in the areas of study skills, reading, and writing that were expanded from the previous year (id. at 4-6) and pre-approved by the parents (Tr. pp. 169, 458-59).  The IEP specifically identified the student's need that assignments be "short concise and broken-down into manageable parts" (id. at 3). It also included a study skills objective of completion of homework assignments with 80 percent mastery by the end of the year, using recorded observations assessed by the service provider (id. at 4).

            Petitioners sent a letter dated August 11, 2003 to respondent objecting to the 2003-04 IEP, informing them that they were enrolling their son at Kildonan for the 2003-04 school year, and requesting tuition reimbursement (Dist. Ex. 1). Petitioners based their decision on allegations that the student’s reading achievement scores showed regression in the 2002-03 school year under a program similar to the one the district was recommending for 2003-04, and that his IEP accommodations were never provided consistently (id.).  Respondent received a completed form from petitioners on August 28, 2003 requesting a due process hearing (Dist. Ex. 2).

            The hearing was held on seven separate days beginning on October 27, 2003 and concluding on June 3, 2004, and resulted in over 1100 pages of transcript and over 127 exhibits. The hearing officer’s decision, dated September 7, 2004 with a corrected date of September 24, 2004, found that the student’s poor performance in sixth grade under the 2002-03 IEP was due to the fact that multisensory reading classes were not in actuality provided daily and assignment modifications were stopped, both at the parents' request (IHO Dec. at p. 51).  The hearing officer found that since the 2003-04 IEP provided an increase in both reading and writing objectives to address the regression, stated that the student’s multisensory reading instruction was to be provided daily, and included all needed modifications, that the 2003-04 IEP offered the student an appropriate program (see IHO Dec. at p. 51).

            Petitioners argue that the hearing officer's decision be annulled and tuition reimbursement granted on the following grounds: (1) that the hearing officer violated the 45-day rule by not issuing a timely decision, (2) that the district failed to offer an appropriate program for the student for the 2003-04 school year, (3) that the district violated regulations concerning proper procedures on evaluations, and (4) Kildonan provided a program which met the student's needs.

            First, petitioners assert that the hearing officer's decision be annulled because it was untimely.  State and federal regulations require an impartial hearing officer to render a decision within 45 days of the board of education's receipt of a request for a due process hearing (8 NYCRR 200.5[i][4]; 34 C.F.R. § 300.511[a]), unless an extension has been granted at the request of either party (8 NYCRR 200.5[i][4][i]; 34 C.F.R. § 300.511[c]).  In the instant case, respondent received petitioners' request for a due process hearing on August 28, 2003 (Dist. Ex. 2).  The hearing officer's decision is dated September 7, 2004, with a "corrected" date printed underneath it by the hearing officer of September 24, 2004 (IHO Dec. p. 52). Petitioners state that they received the decision on September 27, 2004 (Pet. ¶ 31). The reason for the corrected date is not explained in the decision; however, the hearing officer did note that time extensions had been requested by both sides and granted multiple times during the hearing, and that after the hearing close date of August 23, 2004, the parties had requested additional extensions at least up until September 7, 2004 in order for the hearing officer to complete his decision, which were granted (IHO Dec. n. 1, pp. 42-3).  Although there is no record of a request for an extension for the additional unaccounted for two weeks, I find that the two-week delay in issuing the decision in this case does not provide a basis upon which to annul the decision (Application of a Child with a Disability, Appeal No. 02-058; Application of a Child with a Disability, Appeal No. 99-48). However, it is noted that the length of the actual hearing, approximately one year, even with proper requests for extensions, appears to be well beyond that reasonably contemplated by the IDEA. One of the main policies behind the IDEA is to encourage the prompt resolution of disagreements about the education of children so that such children will not be harmed by long delays before being placed in appropriate educational settings (see 121 Cong. Rec. 37416 [1975] [remarks of Senator Williams]), and to prevent the child from falling hopelessly behind in his education (Janzen v. Knox Co. Bd. of Educ., 790 F.2d 484, 488 [6th Cir. 1986]; Dep't of Educ. of the State of Hawaii v. Carl D., 695 F.2d 1154, 1157 [9th Cir. 1983]; see also Evans v. Bd. of Educ., 930 F Supp. 2d 83, 94 [S.D.N.Y. 1996] ["The Act …was intended to ensure prompt resolution of disputes regarding appropriate education for disabled children"]).  "[T]he IDEA's carefully structured procedure for administrative remedies, [is] a mechanism that encourages parents to seek relief at the time that a deficiency occurs and that allows the educational system to bring its expertise to bear in correcting its own mistakes" (Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2001]).  Although under the regulations, parties may request extensions of time for hearings under certain limited circumstances, "[n]onetheless, the brevity of the 45-day requirement indicates Congress's intent that children not be left indefinitely in an administrative limbo while adults maneuver over the aspect of their lives that would, in large measure, dictate their ability to function in a complex world" (Engwiller v. Pine Plains Cent. Sch. Dist., 110 F.Supp.2d 236, 240 [S.D.N.Y. 2000]; see Evans, 930 F.Supp. at  94; Application of a Child with a Disability, Appeal No. 04-018 ["In granting an adjournment, a hearing officer should consider the requirement to complete the hearing and issue a decision within mandated timelines"]).  Hearing officers are strongly advised that compliance with the state and federal 45 day timeliness requirement is mandatory (8 NYCRR 200.5[i][4]; 34 C.F.R. § 300.511[a]), as well as compliance with all recently enacted state regulations now requiring the careful granting and written documentation of any extensions of time and the reasons why they were granted, as well as the inclusion of such documentation as part of the record on appeal (see 8 NYCRR 200.5[i][4][i]-[iv]).3

            Turning to the merits of petitioners' claim, the purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 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 [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]).  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 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

            To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]).  The Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            After carefully reviewing the record and the hearing officer's thorough and well-reasoned 52-page decision, I find that the hearing officer applied the proper legal analysis to the facts in determining that petitioners did not meet the criteria for an award of tuition reimbursement under the Burlington analysis.  Any award of tuition reimbursement must first be based upon a predicate finding that the district failed to offer an appropriate program and thereby denied the student a FAPE (see Burlington, 471 U.S. 359;  M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142F. 3d at 134).  The hearing officer in the instant case correctly placed the burden of proof on respondent school district to show that it had provided an appropriate program for the student in the 2003-04 IEP (see M.S., 231 F.3d at 102), and then correctly determined that respondent met this burden. 

            In his decision, the hearing officer first appropriately found that the student's educational deficits and special education needs as identified on the 2003-04 IEP were consistent with available evaluation data, report cards, teacher reports, and standardized tests, then he carefully examined and correctly applied recent administrative rulings to determine that the CSE had conducted a proper review of the student's progress before developing and finalizing the student's 2003-04 IEP. The hearing officer then examined the record and properly determined that the student's 2003-04 IEP corrected for any failings in the 2002-03 program and addressed the student's areas of regression in reading by requiring the student to attend a multisensory reading class every day as well as a writing instruction class every other day, by expanding the student's goals and objectives for reading and writing, and by placing the student in an inclusion class for all academic subjects as the LRE for the student; services that had been altered in the previous 2002-03 IEP at the parents' request.4  In addition, the hearing officer noted that the 2003-04 IEP recommended that homework assignments be broken down, which had been discontinued midway through the prior school year at the parents' request.  The hearing officer reasonably found that the majority of credible testimony supported a finding that one of the major reasons why the student's grades had declined during the prior school year was the student's inability to complete homework assignments, and the parents' refusal to allow the student's teachers to either modify his assignments or allow their son to stay after school for a homework study hall (see IHO Decision, p. 47). The parents agreed at the hearing that the student's regression in reading was due to the decrease in reading services (Tr. p. 788), which was initiated at their request, and that "it was a battle" for the student to do homework (Tr. p. 1034).  The hearing officer properly concluded that the deficiencies in the student's program for the 2002-03 school year were adequately addressed and corrected in the 2003-04 IEP.  The hearing officer applied the proper standard under Rowley to the facts of the case and concluded that the student's 2003-04 IEP was reasonably calculated to enable this student to receive educational benefits.

            The hearing officer also properly applied the IDEA LRE provision, which requires school districts to educate children with disabilities in the least restrictive environment by providing them with supports and services to enable them to participate in the general education environment "to the maximum extent appropriate" before removing them to a more restrictive self-contained class or school (20 U.S.C. § 1412[a][5]; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]). The decision shows that the hearing officer carefully considered the testimony and evidence from both sides on this issue.  He made credibility findings supported by the record which, based on errors found in petitioners' expert's testimony and her independent educational evaluation (IEE) report, discredited petitioners' expert's findings concerning the student's performance on standardized testing, and her opinion that the student needed to be in a more restricted environment (IHO Dec. pp. 49-50). The record amply supports the hearing officer's conclusion that respondent provided the student with a program that was appropriate to the student's special education needs in the LRE. Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the hearing officer that respondent offered an appropriate program and that, for the reasons stated therein, petitioners are not entitled to tuition expenses (34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]).  I, therefore, adopt the findings of fact and conclusions of law of the hearing officer below (see Application of a Child with a Disability, Appeal No. 04-009; Application of a Child with a Disability, Appeal No. 03-084). 

            I have considered petitioners’ remaining contentions and I find them to be without merit.

            THE APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

December 8, 2004

 

PAUL F. KELLY
STATE REVIEW OFFICER

1  The superintendent's full title is Assistant Superintendent for Pupil Personnel Services; he is responsible for all special education and academic intervention programs in the district (Tr. p. 52).

2  The Orton-Gillingham methodology is a structured, sequential approach to reading and language arts which employs multisensory teaching strategies (see Tr. pp. 249-51).

3  In a related issue, respondent requests that the petition be dismissed as untimely because, when using the original September 7, 2004 date of the decision, the petition was served on respondent beyond the time prescribed by state regulations (see 8 NYCRR 279.2[b]).  However, as noted, the record shows that the actual date of the decision as corrected by the hearing officer was September 24, 2004, in which case, service of the petition on respondent on October 27, 2004 (Ans. ¶ 28) was timely.

4  The parties are reminded that although the IDEA requires that "the parents of a child with a disability are expected to be equal participants along with school personnel in developing, reviewing and revising the IEP for their child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 5), the Office of Special Education Programs of the U.S. Education Department has interpreted this provision as follows: "we recognize that the desired consensus among equal participants is not always possible. Where an open discussion does not lead to agreement on the contents of the IEP, the local educational agency has the ultimate responsibility for crafting [an appropriate] IEP.  An IEP with which a parent disagrees then forms the basis for a due process hearing" (Letter to Simon, 211 IDELR 436 [1987]; see, e.g., Application of the Bd. of Educ., Appeal No. 98-6).