The State Education Department
State Review Officer

No. 05-004

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the East Meadow Union Free School District

 

 

Appearances:
John J. McGrath, Esq., attorney for petitioner

 

Jaspan Schlesinger Hoffman LLP, attorney for respondent, Carol A. Melnick, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's tuition costs at Lindamood-Bell, for the summer of 2003 and the 2003-04 school year.  The appeal must be dismissed. 

 

            At the commencement of the hearing, petitioner's son was eight years old (Tr. p. 41), and was about to begin fourth grade (Tr. p. 105) at the district's Barnum Woods School (Tr. pp. 1565, 1567).   The child's eligibility for special education services and classification as a student with a learning disability (LD) (Tr. p. 418; Dist. Ex. 49) are not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]). However, petitioner alleges that the child was not determined to be eligible for services in a timely manner and that her son was not offered a free appropriate public education during the summer of 2003 and the 2003-04 school year.

 

The child has a long-standing history of difficulty with reading (Dist. Exs. 22 at p. 1, 37 at p. 4). A school psychologist and a neuropsychologist found the child to have phonetic decoding difficulties (Dist. Exs. 22 at p. 4, 37 at p. 4, 44 at p. 3), and  a neuropsychologist found the child to be dyslexic and dysgraphic (Dist. Ex. 37 at pp. 4-5). An auditory processing evaluation dated August 7, 2003 revealed that borderline scores on speech-in-noise testing suggested that the student might have difficulty following auditorily presented information in an adverse listening environment, such as a classroom (Dist. Ex. 52 at p. 4).  A December 2, 2002 Optometric Evaluation Report concluded that the child had a significant visual motor deficiency which was contributing to his symptom of difficulty copying (text) from the (black) board (Dist. Ex. 26 at p. 4).  The visual processing dysfunction was also contributing to his academic difficulties (id.).  

 

A Kindergarten Intervention Entrance Criteria assessment indicated that the child was restless, missed directions given, needed individual attention and needed to gain confidence about his abilities (Dist. Ex. 2 at p.1).  In addition, it described him as being bright and having a great sense of humor (id.). Although the child was not classified in 1999-2000, during his kindergarten year, he received intervention services twice a week (Dist. Ex. 41) through the general education program (Tr. p. 36) due to his distractibility and need to be refocused and redirected (Tr. p. 38). Although his academic performance was noted to be average in all areas, it was recommended that the child participate in the "summer learning program" (Dist. Ex. 41).

 

During the 2000-01 school year, in his first grade year, the child received intervention reading services (Tr. pp. 52, 658; Dist. Ex. 41) four times per week for half an hour sessions in a group of approximately five (children) (Tr. pp. 663-64).  His first grade-reading teacher testified that he needed to develop a sight vocabulary and to develop his sound-symbol associations (Tr. p. 659).  She stated he needed to understand that when he read, there had to be a match between what he was saying and what was on the page, and that he had to be able to use meaning, grammar, and phonics to be able to decode (Tr. p. 659).  She also noted that he had an impulsive learning style (Tr. pp. 660-61), and good language (Tr. p. 660), vocabulary (Tr. p. 660), thinking skills (Tr. p. 660), but his use of contextual cues was poor (Tr. p. 662).  She further testified that the child was a little immature, but that he was very young for the grade (Tr. p. 660).  In March of his first grade year, according to her testimony, the child was reading similar to a child in the beginning of first grade (Tr. p. 669). 

 

March 2001 conference notes maintained by the first grade-reading teacher indicated that the child was over-relying on phonics and not using context enough (Dist. Ex. 7).  The first grade classroom teacher noted the child's reading level to be below average (Dist. Ex. 41).  The principal testified that the child's reading deficit of about a half a year to a year below grade level was not unusual for youngsters in first grade because of differing maturity rates (Tr. pp. 966-67).  He testified that children that are still part of the remedial program and that may be working below grade level go to the next grade (Tr. p. 967).

 

A "summer learning program" was recommended at the end of the child's first grade year (Dist. Ex. 41) by his first grade reading teacher and his first grade classroom teacher (Tr. pp. 671-72).  However, he did not attend summer school (Dist. Ex. 8).  Instead, petitioner hired a tutor, recommended by the first grade-reading teacher, from the district, trained in the reading recovery program (Tr. pp. 1039-40, 1080).  Petitioner's son was tutored twice a week, for an hour each time, through the summer (Tr. pp. 1039-40).

 

His first grade-reading teacher also taught him in second grade (Tr. p. 675) and tested him in September 2001, finding that he was reading "painfully slow" (Tr. p. 672) reading letter by letter (id.).  His teacher testified that when he would come to an unknown word, he would remain on that word and would attempt to sound it out letter-by-letter (Tr. p. 672), instead of using context (Tr. p. 673).  The second grade-reading teacher testified that this had not been taught to him at school (Tr. p. 672). He had also lost the strategies the second grade-reading teacher had worked with him on and was only using a phonics approach (Tr. p. 673). In September 2001 he had a developmental reading assessment level of eight (Tr. p. 671, Dist. Ex. 8) and was reading like a child in mid-first grade (Tr. p. 671).  The second grade classroom teacher assessed the child as reading six to eight months below grade level upon entering second grade (Tr. p. 876). When the child returned to the remedial program with the school, the private tutoring was reduced to once a week so the child would not be inundated with so much reading instruction (Tr. p. 1080). 

 

Notations on a summary scores sheet, dated September 24, 2001, indicated that the child had “regressed a lot", was very nervous, insecure, and needy, and had poor sight vocabulary (Dist. Ex. 8).  The second grade classroom teacher testified that the first three to four months of school were very upsetting to the child because of events that occurred outside of the classroom (Tr. pp. 878-80).  

 

            In October 2001, petitioner took her son to the Hofstra University Reading/Writing Learning Clinic to be evaluated (Tr. p. 1051; Dist. Ex. 11).  Holistic reading and writing instruction was recommended (Dist. Ex. 11 at p. 5).  In addition to other suggestions, the evaluation recommended the child's instruction in all three cuing systems: semantic, syntactic, and graphophonic (Dist. Ex. 11 at pp. 5-6).  The CSE Chairperson testified that the general education remedial reading program provided to the child used the syntax, phonemic, and semantic cuing systems (Tr. p. 208).

 

Parent teacher conferences were held on November 20 and December 6, 2001(Dist. Ex. 15).  On November 20, during the parent-teacher conference, the second grade teacher noted that the parents wanted to have their son tested and further noted that she would refer the child to the instructional support team (IST) (Dist. Ex. 15).  At the parent-teacher conference, the second grade teacher informed petitioner that they would meet again on December 6, 2001 to discuss the results of the IST meeting (Tr. p. 1052). 

 

The second grade teacher believed that the Hofstra testing was being conducted in November  (Tr. p. 948) and she made the IST referral on January 3, 2002 (Tr. pp. 939, 48).  The referral was made to determine whether the child should be evaluated for special education services (Tr. p. 1068).  The referral noted the child's reading difficulty in decoding, comprehension, and concepts/vocabulary, difficulty in understanding course content, inadequate study habits, incomplete assignments, poor organizational skills, and above ability coursework (Dist. Ex. 17 at p. 3).  The child was reported to be working on a first grade level, and was described as very impulsive and not taking the time to think things through (id.).  The work was noted to be very difficult for him and the child gave up easily (id.).  On February 4, 2002, the IST met for the first time (Tr. p. 940; Dist. Exs. 16, 17).   The IST recommended further testing, including Connors Scales administration, a pediatric neurologist consultation, and a psychological evaluation (Dist. Ex. 16 at p. 2), but it did not refer the child to the CSE (Tr. p. 942).  

           

At the end of February 2002, petitioner requested that the reading teacher stop working with the child (Tr. pp. 906, 1087). Petitioner then resumed her son's private tutoring at twice a week (Tr. 1087).  The child's reading level went from level 10 in February to level 16 at the end of the school year (id.).

 

During the summer after the child's second grade year, he was tutored twice a week by a instructor certified in Wilson multi-sensory instruction, who was also an out-of-district special education teacher (Tr. pp. 1096,1104-06).  In September 2002 (Tr. p. 1136), during his third grade year, the child began working with the third grade-reading teacher for remedial reading (Tr. pp. 831, 1133).  She testified that at the beginning of third grade, he was approximately a year behind in reading (Tr. p. 832).  From October through January (Tr. p. 832), the third grade-reading teacher provided the child with remedial reading services three days a week, for thirty minute sessions (Tr. p. 831), in a group of six youngsters (Tr. p. 832).  She combined decoding strategies, comprehension, and writing strategies and worked on listening skills (Tr. p. 832).  These strategies included but were not limited to utilizing the Preventing Academic Failure (PAF) reading program (Tr. pp. 491-92, 842).  The CSE chairperson testified that PAF is based on the Orton-Gillingham approach to reading, and is strictly a decoding and encoding program (Tr. pp. 114), which uses a multi-sensory approach (Tr. p. 115).  A resource room teacher testified that with PAF, a teacher utilizes different kinesthetic modalities to help reinforce different sounds, and to assist with reading, spelling, and writing (Tr. p. 491).   

 

            A December 2, 2002 SUNY Optometric Evaluation recommended vision, perceptual, and occupational (fine motor coordination) therapies, as well as small class instruction and the provision of the Orton-Gillingham method of reading (Dist. Ex. 26 at p. 4).

                       

Based on an evaluation conducted the prior June, the school psychologist contacted the CSE Chairperson in November or December of 2002 and indicated it would be appropriate to have a committee meeting (Tr. p. 35).  The CSE met on January 23, 2003 (Tr. p. 111).  The CSE found the child to be strong in comprehension (id.).  According to his classroom teacher, he was having difficulty with his decoding skills, although this was not reflected in the testing (id.).   At that time, the mother shared with the CSE that she was hiring a Wilson certified tutor to work with the child (Tr. p. 118).  The CSE Chairperson testified that there had been a lot of confusion as to what kind of services the child was getting through the mother (Tr. p. 199).  Issues included the stopping of services, not taking part in summer school, and the hiring of private tutors, as well as the type of systematic assistance program that was being used (Tr. pp. 199-200).  The CSE concluded that "lack of appropriate instruction could not be ruled out as an exclusionary factor" and recommended the child receive reading instruction utilizing the PAF method at the building level (Dist. Ex. 34 at p. 2).  It further recommended the monitoring of the child's progress and the reevaluation of his eligibility for special education services, at a future date (id.).  The child was not classified at that time (Tr. p. 199).  The CSE discussed reconvening in six weeks, but instead authorized an independent evaluation (Tr. pp. 113-14).  

 

The resource room teacher testified that the child used PAF strategies from January 2003 to June 2003 (Tr. pp. 601-02). His resource room teacher testified that in January the child’s reading was “somewhere in the first grade level probably about 1.5 or a little lower”(Tr. pp. 588-90).  In January, the third grade-reading teacher began to see the child on a one to one basis strictly for PAF instruction, in addition to small group instruction (Tr. pp. 842-43). Initially, the third grade-reading teacher worked together with the resource room teacher (Tr. p. 489) to teach the child through the use of the PAF program (Tr. pp. 526, 843).  

 

In January 2003, the child received resource room services three times a week, for 40-minute sessions (Tr. p. 518).  After the February break, the resource room teacher was able to rearrange her schedule so that she would see the child individually because she thought that he would do better working with one person (Tr. p. 526).  At the end of February, the resource room teacher started seeing the child five days a week, for 40-minute sessions (Tr. p. 518).  The majority of the time, he did not have a problem transitioning (Tr. p. 439).  The "ultimate aim" was to teach the child decoding and the ability to integrate (Tr. p. 523).          

 

         By letter dated February 10, 2003 petitioner's counsel requested an independent neuropsychological evaluation at school district expense (Dist. Ex. 35).  Petitioner's counsel indicated that petitioner was disputing the evaluation conducted by the school psychologist. (id.).  The private neuropsychological evaluation was conducted March 11 though April 4, 2003 (Dist. Ex. 37 at p. 1) at district expense (Dist Ex. 36).   The resulting report recommended LD classification and a structured, systematic, multi-sensory program to be provided on a daily basis throughout the summer (Dist. Ex. 37 at p. 5).  The evaluation also recommended resource room, help with class-work and homework execution, as well as test preparation, the use of multi-modal strategies to enhance recall, a computer with appropriate software to read teacher generated and textual material to the student, a calculator, and modifications regarding copying, writing, and  reading tasks in the classroom (id.).

              

            The child was classified as LD at the CSE meeting held on June 12, 2003 (Dist. Ex. 44 at p. 1).  For the 2003-04 extended school year, the CSE recommended that the student be enrolled in a 1:1 special reading program beginning July 14, 2003, for five hours per week, for a period of six weeks (id.).  Beginning September 15, 2003, the CSE recommended a general education program (Dist. Ex. 44 at p. 6) with 3:1 resource room services of five direct and two push-in 40-minute sessions per week (Dist. Ex. 44 at p. 1).  An intervention assistant was recommended for the student (Dist. Ex. 44 at p. 5). Regarding management needs, the CSE indicated that the student required preferential seating, a structured learning environment, a modified or adaptive curriculum, and the organization of school related materials (id.).  Recommended test modifications included time-and-a-half flexible scheduling, revised test directions, reading of questions/passages for exams, and the use of a multiplication chart (id.).  Recommended supplementary aids and services and/or program modifications included a modified spelling program and the pre-teaching of new concepts and vocabulary, as well as the provision of word banks, a multiplication chart, and Books on Tape (Dist. Ex. 44 at p. 6).

 

            Petitioner did not accept the CSE's recommended educational program (Tr. p. 1166).  At the June 12, 2003 CSE meeting (Tr. p. 1158; Dist. Ex. 44), petitioner objected to the recommended summer program (Tr. pp. 1162-63).  Petitioner further requested that her son be allowed to attend the Lindamood-Bell program at the district expense (Tr. p. 1165).  Petitioner testified that respondent's director of special education (Tr. p. 1155) denied her request to have the district pay for the Lindamood-Bell program because the director of special education believed the program offered by the district to be appropriate (Tr. p. 1166).  Upon conclusion of the CSE meeting, petitioner requested an impartial hearing. (id.). 

 

By letter dated June 23, 2003 to respondent's director of special education, petitioner's counsel requested that the student be immediately placed into the Lindamood-Bell Summer Program at district expense, and further requested that the student's attendance at Lindamood-Bell be continued during the school year until such time that the district could demonstrate that it could provide appropriate instruction to him (Dist. Ex. 47 at p. 5).  Through counsel, petitioner requested that her son be furnished with a laptop computer with software installed to effectuate the neuropsychologist's (id.) recommendation regarding assistive technology, and requested implementation of all of the neuropsychologist's recommendations (id.).  Petitioner's counsel concluded by requesting an impartial hearing, if such requests were not acceptable to the district (id.).   Beginning in July 2003, the child attended the Lindamood-Bell program for five days a week, two hours a day, for eight weeks of summer school (Tr. pp. 1169-70).

 

During the second day of the impartial hearing, on September 15, 2003, respondent's counsel informed the impartial hearing officer that the district had just been made aware of the child's unilateral morning placement in the Lindamood-Bell program (Tr. p. 230).   Petitioner stated that her son would be attending the Lindamood-Bell school from 8:00 to 9:30 in the morning, and returning to school at 9:45 (Tr. p. 233).  By letter dated September 24, 2003, petitioner's counsel notified the district that the child would be attending the Lindamood-Bell School for up to four hours per day, five days per week, for a total of 240 hours of reading instruction "to remediate his severe dyslexia" (Dist. Ex. 53 at p. 2).  A few weeks after the school year started, the child attended public school in the morning and was taken out of school from 11:00 am to 3:30 pm to attend Lindamood-Bell (Tr. pp. 567-68, 1570).  Petitioner requested that the district pay for up to and including 240 hours of specialized individual reading instruction, being provided by the Lindamood–Bell School, commencing on September 29, 2003 (Dist. Ex. 53 at p. 2).    During the impartial hearing, petitioner limited its request for reimbursement to the period commencing July 2003 and terminating January 2004 (Tr. p. 1001).   Transportation by the district to and from the Lindamood-Bell School was also requested (Dist. Ex. 53 at p. 2).    By letter dated September 26, 2003, the district had not received any written consent concerning implementation of the individualized educational program (IEP) (Dist. Ex. 54).  The district stated that it remained ready to implement the June 12, 2003 IEP in its entirety or any portion thereof (id.).  The district denied tuition reimbursement (id.).  During the hearing, the CSE Chairperson testified that to the extent that the IEP addressed the intervention assistant, classroom modifications and support, it was implemented.  Resource room services were not implemented (Tr. p. 333).

 

The impartial hearing commenced on July 29, 2003, and concluded on September 28, 2004, after nine days of testimony (IHO Decision, p. 2).  In a decision dated November 27, 2004, the impartial hearing officer found that the child's program for the 2003-04 school year was “carefully” designed to provide the child with educational benefit in the least restrictive environment, and that the district proved that the IEP developed by its CSE was appropriate under the first prong of the Burlington test (see Sch. Comm. of Burlington v. Dept. of Educ. of Mass., 471 U.S. 359 (1985), (IHO Decision, p. 46).  The impartial hearing officer found that the district had met its burden of proof, and that, had the parents permitted the implementation of the IEP, and had the child been fully in attendance at the Barnum Woods School during the 2003-04 school year, a FAPE would have been provided (IHO Decision, p. 47).  The district was directed to provide the child with a laptop computer, as recommended by the neuropsychologist (IHO Decision, pp. 47-48).  Tuition reimbursement was denied (IHO Decision, p. 47).

 

On appeal, petitioner asserts that the district failed in its child find responsibilities by failing to identify her son as a child with a disability prior to the CSE meeting of June 2003.  Petitioner also asserts that the district failed to offer her son a FAPE at the June 12, 2003 CSE meeting.  Petitioner asserts that the unilateral placement of her son at the Lindamood-Bell School was appropriate 

 

            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 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. 02-092).  In order to meet its burden, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. 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][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 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][2]; 8 NYCRR 200.4[d][2][iii][a] and [b]).  “Measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planning process used to develop and implement the IEP for each child with a disability” (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1).  Annual goals must also include evaluation criteria, evaluation procedures and schedules to be used to measure progress toward the annuals goals (8 NYCRR 200.4[d][2][iii]).

 

The impartial hearing officer concluded that the IEP offered to the student for the summer 2003 and the 2003-04 school year was reasonably calculated to provide educational benefit and offered a FAPE. I agree. A review of the record reveals that the IEP was based upon appropriate evaluations and properly identified the student’s special education needs and provided services to meet those needs (District Exs. 22, 26, 29, 37, 44).

 

With respect to the district's alleged failure to fashion an appropriate summer placement in 2003, the impartial hearing officer found that the CSE recommended a one- on-one “special” summer 2003 reading program comprised of five hours of reading remediation per day for six weeks beginning July 14, 2003 (Dist. Ex. 44;IHO Decision, p. 37). The impartial hearing officer noted that the district was planning to request a specified reading expert certified in the Wilson multi-sensory instructional method and certified to give instruction to others in teaching the Wilson Method, to tutor the child during the summer (id.). He determined that the CSE Chairperson never pursued the engagement of the reading expert because the mother was adamant that the child would be going to Lindamood-Bell that summer and that the parents refused to consent to the IEP, thus preventing the district from implementing the IEP (id.). The impartial hearing officer found that the district took all reasonable steps to provide the child with an appropriate 2003 summer remedial reading program, as recommended by the CSE  (IHO Decision, pp. 37-38). 

I agree with the impartial hearing officer’s conclusion that the summer program offered by respondent was reasonably calculated to provide educational benefit. The neuropsychologist testified that the child should receive multi-sensory reading services through the summer (Tr. p. 1472-74).    For the summer the district offered multi-sensory reading instruction. During the June CSE meeting, respondent offered the Wilson program for the summer (Tr. pp. 338-39), and offered a special reading program, five hours a week, for six weeks, on a one-to-one basis (Dist. Ex. 44 at p. 1), continuing with the PAF/Orton-Gillingham approach to reading (Tr. pp. 146-48). Both of these programs are formal, multi-sensory programs.  Moreover, the summer program was consistent with the resource room teacher's testimony that PAF was a successful teaching strategy for the child (Tr. pp. 507-15), and with the recommendations from the optometrist (Dist. Ex. 26 at p. 4) and neuropsychologist (Dist. Ex. 37 at p. 5).       

 

            Regarding the alleged inappropriateness of the IEP for the 2003-04 school year  and the alleged failure to provide the child with a FAPE, the parents argued that "no specific reading program was proposed or in place" and that "the district did not have an appropriate remediation program" for the child  (IHO Decision, p. 41).  The impartial hearing officer outlined the IEP's recommendations (IHO Decision, pp. 41, 45-46), and cited to the CSE Chairperson's testimony that the district planned remedial reading for the child using the PAF/Orton-Gillingham based method, during at least three of the seven resource room periods each week (IHO Decision p. 42).  The impartial hearing officer found that with the exception of its failure to recommend Lindamood-Bell for remediation, the CSE followed the recommendations of the neuropsychologist (id.).  The impartial hearing officer concluded that the reading program and entire academic plan recommended for the child were appropriate and were designed to permit the child to gain educational benefits (id.). 

 

I agree with this finding of the impartial hearing officer.  In the IEP, the district recommended an intervention assistant, who was a licensed teacher,  (Dist. Ex. 44 at p. 5) to help the child with reading and modifications, in the classroom on a full-time basis (Tr. pp. 153-54).  Additionally, remedial reading services using an Orton-Gillingham based program for at least three 40-minute resource room sessions a week, would be supplemented by at least another four periods a week to work on comprehension, writing skills, paragraph structure, and other deficit areas (Tr. pp. 342-43).  The CSE Chairperson testified that the Orton-Gillingham reading program that the district was going to be offering was comparable to Lindamood-Bell and appropriate, and would meet his decoding, encoding, writing, and organizational needs (Tr. p. 159).

  

              The child participated in the PAF/Orton-Gillingham program from January 2003 to June (Tr. pp. 601-02), prior to his participation in Lindamood-Bell (Tr. p.1001).  As discussed above, slow and steady progress was observed: he was retaining words reviewed through index cards and his writing was legible to his teacher; he was starting to internalize sound(s) and he was starting to apply what he was learning from the PAF instruction (Tr. pp. 507-14) in the resource room and classroom (Tr. pp. 514-15).  The resource room teacher testified that this was a successful strategy/methodology for the child (Tr. p. 515).  

 

I find that the program offered by the district was reasonably calculated to enable the child to receive educational benefits and find that the child was offered a FAPE for the 2003-04 school year.

           

The impartial hearing officer also found that for the 2003-04 school year, the CSE created for the child an educational program in the least restrictive environment, while providing necessary supports (IHO Decision, p. 44).  I agree.  Having determined that the IEP for summer 2003 and the 2003-04 school year was adequate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the summer and the 2003-04 school year. Having so found, there is no need to reach the issue of whether or not the Lindamood Bell services were appropriate; respondent is not entitled to tuition expenses, and the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

 

I have considered petitioner’s claim that respondent neither timely evaluated nor classified her son and I decline to make a determination on these issues given that the primary relief sought is a request for reimbursement for costs incurred after the child was determined eligible for special education services.

 

I have reviewed petitioner's remaining contentions and find them to be without merit.

 

THE APPEAL IS DISMISSED.

                                               

 

 

Dated:

Albany, New York

 

__________________________

 

March 2, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER