The State Education Department
State Review Officer

No. 05-009

 

 

Application of the BOARD OF EDUCATION OF THE MASSAPEQUA UNION FREE SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Guercio & Guercio, attorney for petitioner, Randy Glasser, Esq., of counsel

Skyer, Castro and Foley, attorney for respondent, Sonia M. Castro, Esq., of counsel

DECISION

            Petitioner, the Board of Education of the Massapequa Union Free School District, appeals from the decision of an impartial hearing officer, which found that it failed to offer an appropriate educational program to respondents' daughter for the 2004-05 school year and ordered it to reimburse respondents for expenses incurred for privately obtained reading instruction.  Petitioner also appeals from the decision of the impartial hearing officer, which ordered it to reimburse respondents for the cost of a psychoeducational evaluation.  The appeal must be dismissed.

            Respondents' daughter was 13 years old and had completed the seventh grade in an inclusion classroom at the commencement of the impartial hearing in July 2004.  She has been medically diagnosed with congenital muscle hypotonia and has had strabismus repair to an eye (Parent Ex. 2 at p. 1; Dist. Ex. D at p. 1; Tr. pp. 505, 525-26, 663-64).  She is eligible for special education as a student classified with an “other health impairment” (OHI) (see 8 NYCRR 200.1[zz][10]) and has received speech/language, occupational therapy, physical therapy, and resource room services (Dist. Exs. D,F;Tr. pp. 667, 673).    The student’s classification is not in dispute.

            Respondents’ daughter attended petitioner’s Berner Middle School (Berner) for the 2003-04 school year when she was in the seventh grade (see Dist. Ex. A at p. 2).  According to the student’s 2003-04 individualized education program (IEP), services included placement in integrated regular education classes for English, social studies, mathematics, science, Spanish; a daily 41 minute resource room period with four other students; speech-language therapy in a group of five students for five days in a 10 day cycle for 41 minutes; occupational therapy in a group of five students once a week for 30 minutes; and individual physical therapy twice a week for 30 minutes (Dist. Ex. A at p. 5). The IEP also provided that respondents’ daughter would receive a 41-minute special class in reading for five days in a 10-day cycle with an assigned student to staff ratio of 12:1 (id.). 

The 2003-04 IEP  (Dist. Ex. A at pp. 5-12), which was prepared in June 2003, reported that the student’s rate of progress was erratic and below average (Dist. Ex. A at p. 2). In describing levels and abilities, it noted that the student had a multi-sensory learning style and experienced difficulty understanding the concept of problem solving and was functioning below grade level (id.). It further stated she had difficulty with written expression, reading comprehension, word identification, and reading vocabulary, and she did not demonstrate grade appropriate organizational and study skills (Dist. Ex. A at p. 6). Structured learning patterns that involved re-teaching, refocusing, and redirection were also identified as needed. The IEP also noted that the student required intensive supervision to function in the educational setting within a structured environment, that she needed to improve attention to task, and that at times she demonstrated inconsistent social judgment which inhibited her interaction (Dist. Ex. A at p. 8).  The student also demonstrated poor balance and gait as well as poor fine motor skills (id.). 

Respondents’ daughter continued to have difficulty and show significant needs during the 2003-04 school year.  In a progress report dated April 19, 2004, the student’s resource room teacher reported that she had “had a difficult time this year” in her inclusion program, “particularly in Science and Math” (Dist. Ex. B at p 11).  The teacher advised that the concepts were often too difficult for her and that she demonstrated significant weaknesses in the areas of problem solving and reading comprehension (id.).  The resource room teacher also reported that the student was very inattentive, had to be brought back “on task” often and she required repetition and reinforcement of new concepts (id.). A March 2003 psychological report noted that inattention was a significant problem (Dist. Ex. D at pp. 1, 3-4).  In January 2004, the resource room teacher administered achievement tests from the Woodcock-Johnson – Third Edition (WJ-III) (Dist. Ex. B at pp. 4, 10).  Respondents’ daughter received standard scores of 98 in spelling (45th percentile); 91 in word attack (27th percentile); 88 in calculation (20th percentile); 86 in spelling of sounds (18th percentile), in letter-word identification (17th percentile), and in writing samples (17th percentile); 79 in passage comprehension (ninth percentile); and 67 in applied problems (first percentile) (Dist. Ex. B at pp. 4, 10).

The annual report by the student’s speech-language teacher in April 2004  indicated that respondents’ daughter continued to demonstrate significant weaknesses in her expressive and receptive language skills and that she was making “gradual yet steady progress” (Dist. Ex. B at p. 12).  She reported that the student could be easily distracted by her surroundings or peers and her ability to stay focused in class often fluctuated but she was able to be redirected (Dist. Ex. B at pp. 12, 13).  The teacher also reported growth in the area of pragmatic language and that the student was attempting to use strategies and suggestions taught to her to improve her word retrieval and auditory recall skills (Dist. Ex. B at p. 13). The speech-language teacher recommended continued speech-language therapy (id.).  A physical therapy annual review for that year measured the student’s overall gross motor skills at the first percentile according to the Brunnicks-Oseretsky test (BOT) (Dist. Ex. B. at p. 15; see Dist. Ex. A at. p.18).  That review stated that respondents’ daughter continued to show improvement in gross motor skills from year to year (Dist. Ex. B at p. 16).  It also indicated that the student’s physical education teacher had reported that the student had great difficulty performing in class and frequently did not participate (Dist. Ex. B at p. 15).  The evaluating physical therapist recommended that the student’s physical therapy continue and opined that she would benefit from an adapted physical education class (Dist. Ex. B at p. 16).  A March 2004 occupational therapy evaluation indicated that respondents’ daughter had difficulty attending in the classroom (Dist. Exs. A at p. 20, B at p. 14).

Petitioner’s Subcommittee on Special Education (CSE subcommittee) met on April 19, 2004 for the student’s annual review (Dist. Ex. B at p. 1).  The CSE subcommittee agreed that respondents' daughter should continue to be classified as a student with a disability (Dist. Ex. B at p. 6).  The CSE subcommittee chairperson testified that her test scores and progress in reading using the Wilson program were reviewed at that meeting (Tr. pp. 54, 57, 63-64, 74).  During the discussion of the student’s program for the next school year, respondents expressed concern about their daughter’s progress in reading and the recommended reading program, and asked whether she could receive Lindamood-Bell reading instruction (Tr. pp. 52, 54, 55, 60, 61, 72, 687-88).  The CSE Subcommittee chairperson advised respondents that their request regarding instruction needed to be discussed by petitioner’s Committee on Special Education (CSE) (Tr. pp. 55, 689).      

Respondents subsequently contacted petitioner’s CSE chairperson and requested a meeting to consider participation in the Lindamood-Bell reading program for their daughter (Tr. pp. 88-90, 690-91).  Respondents had their daughter tested by Lindamood-Bell personnel in April 2004 (Tr. pp. 595, 687, 701, 707; see Parent Exs. 3, 4).  Respondents provided the CSE chairperson with material from the Lindamood-Bell program including its report relating to their daughter and the results of reading tests given to her (Tr. pp. 88-89, 701).

At a June 9, 2004 CSE meeting (Dist. Ex. E at p. 1), respondents advised petitioner that they wished to enroll their daughter in a Lindamood-Bell summer reading program which provided daily instruction (Tr. p. 110).  The Director of the local Lindamood-Bell Learning Processes Center (Tr. pp. 583, 585, 586-87) attended the meeting with respondents (Dist. Ex. E at p.1; Tr. p. 606).  At the meeting, she explained the Lindamood-Bell program, went over the results of the program’s test scores for the student and recommended that respondents’ daughter attend the program. The Lindamood-Bell program was described at the meeting as an intensive program, which the student would attend for four hours a day five days a week, geared to increasing reading skill markedly or significantly (Dist. Ex. E at p. 1; Tr. pp. 117-18, 618-19, 624-25, 701).    

During the meeting, petitioner CSE members expressed the opinion that respondents’ daughter had made progress with the Wilson reading program during the past year and pointed to percentile increases in certain achievement test scores in the January 2004 testing when compared with the previous year’s testing (Tr. pp. 122, 184-85).  Respondents and the Lindamood-Bell representative disputed that, presented the Lindamood-Bell test results which suggested that respondents’ daughter, a seventh grade student, was reading at the third grade level and below, and respondents asserted that petitioner had an inadequate understanding of the student’s cognitive ability (Tr. pp. 124-25, 607-10; 703-05, 706-07; see Parent Exs. 3, 4). Because of this disagreement, as well as respondents’ concern about the decline in the student’s fifth and sixth grade reading levels as measured by the Terra Nova Multiple Assessments (Terra Nova) test, respondents asked the CSE for an independent educational evaluation (Dist. Ex. E at p. 2; Tr. pp. 124-25, 611-12, 705; see Dist. Ex. C).   At the end of the meeting, the CSE agreed to consider an independent educational evaluation (Dist. Ex. E at p. 2). Respondent had also requested that the CSE chairperson review the Lindamood-Bell program and other options before the next meeting (id.)

Petitioner’s CSE met again on June 24, 2004 (Dist. Ex. F at p. 3). The CSE recommended a 12-month program that included a summer reading program (Dist. Ex. F at pp. 7, 11). The CSE recommended that the student receive one-hour 1:1 reading instruction three days a week from July 6 through August 13, 2004 (Dist. Ex. F at p. 7).    The CSE also recommended that from September 8, 2004 through June 24, 2005 the student be placed in the District’s integrated class for English, math, science, social studies and Spanish, which is taught by a regular education teacher and a teacher assistant assigned to up to five students in the class, with resource room teacher consulting; resource room five times per week, 5:1, forty minutes per session; group occupational therapy one time per week, 1:1 physical therapy two times per week; speech language therapy, 5:1, five times every ten day cycle; and a special class for reading 5:1, five times in a ten day cycle, forty-one minutes per session. Compared to the 2003-04 IEP, the 2004-05 IEP increased participation in petitioner’s reading program from every other day with a 12:1 student teacher ratio during the 2003-04 school year, to every other day with a 1:1 student to teacher ratio during the 2004-05 school year. The 2004-05 IEP also provided for summer reading services whereas the 2003-04 IEP did not (Dist. Ex. F at pp. 3, 7).  The 2004-05 IEP indicated that the expected diploma for the student is a Regents diploma (Dist. Ex. F).  

Petitioner concluded that its recommended 2004-05 program was appropriate based on the progress it believed that the student had made during the 2003-04 school year as shown by the improvement in the student’s Woodcock-Johnson III achievement test scores in letter word identification, word attack, reading comprehension, and spelling of sounds (Dist. Ex. F at pp. 7, 8, 18; Tr. pp. 132-33, 155-57, 184-86).

The student’s resource room teacher testified that prior to the time of the June 24, 2004 CSE meeting, the student’s team of teachers had recommended that respondents’ daughter be placed in self-contained mathematics and science classes for the 2004-05 school year (Tr. p. 225).  The student failed both science and mathematics at the end of the 2003-04 school year (Tr. pp. 135, 224-25, 262-63).  At the June 24, 2004 CSE meeting, the guidance counselor reported that the student had received F’s in math all year and as a final grade (Dist. Ex. F at p. 7).  The science teacher reported that the student seemed overwhelmed by certain aspects of the curriculum, and encouraged respondents to consider a self-contained science class for the student (Dist. Ex. F at p. 7; Tr. p. 139). Respondents objected to the suggested classroom changes, and the CSE recommended that the student remain in an integrated/inclusion classroom for both subjects. The CSE also recommended that a CSE reconvene at the first marking period of the 2004-05 school year to assess the student’s progress and consider a more restrictive setting if indicated (Dist. Ex. F at p. 7; Tr. pp. 135-37).   Respondents indicated that they agreed with the instructional goals at that time (Tr. pp. 140, 159, 776).  The CSE agreed at the meeting that respondents could obtain an individual educational evaluation and also that it would provide up to $250.00 for that purpose (Dist. Ex. F at pp. 8, 14).

At respondents’ request, the Supervisor and Director of Pediatric Psychology and Neuropsychology at the Rusk Institute of Rehabilitation at New York University Medical Center evaluated the student on June 26 and July 10, 2004 (Parent Ex. 2 at p. 6; Tr. p. 485). The evaluator holds masters and doctorate degrees in clinical psychology, is a diplomate of the American Board of Psychology with a specialty in neuropsychology, and is licensed to practice psychology in New York State (Tr. pp. 485, 487, 518).  The neuropsychologist reviewed documents and school records provided by respondents, including IEPs, the student’s Terra Nova scores, test results and recommendations from the Lindamood-Bell program, and petitioner’s March 2003 psychological report (Tr. pp. 493, 496, 497, 520). The evaluator also tested the student, and interviewed respondents. His testing included the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), the Comprehensive Test of Nonverbal Intelligence (CTONI), and several subtests of the Weschler Individual Achievement Test – Second Edition (WIAT-II) (Parent Ex. 2 at pp. 7-8). On July 10, 2004, the evaluator retested the student on the word reading and pseudoword decoding subtests of the WIAT-II, which he had tested the student on June 26, 2004 (Parent Ex. E at pp. 1, 4).  

            The neuropsychologist noted, in his psychoeducational evaluation, that the student presented with a history of learning difficulties in areas of speech and language, processing, and complex problem solving which have negatively impacted her academic achievement, especially in reading development (Parent Ex 2). He noted that the student’s medical history was significant for a mild form of cerebral palsy and strabismus repair (Parent Ex. 2 at p. 1; Tr. at pp. 525-26).  He observed that in speech and language respondents’ daughter evidenced some word finding difficulties and distractibility and noted that she responded well to redirection and encouragement (Parent Ex. 2 at p. 2).  During his one to one testing, he found her attention and concentration skills to be within normal limits but with some variability depending on the executive and language demands of the task (Parent Ex. 2 at p. 3) and that she was motivated and enthusiastic (Parent Ex. 2 at p. 4).  He reported that administration of the WISC-IV yielded a composite verbal comprehension score of 87 (19th percentile) which was “solidly in the low average range” as well as a composite perceptual reasoning score of 75 (fifth percentile), which was in the borderline range of functioning (Parent Ex. 2 at p. 2).  He also reported that the student’s WISC-IV subtest scores (which ranged from the second to the 37th percentile) were variable (Parent Ex. 2 at pp. 2, 7).  The evaluator concluded that because of the difference between the student’s verbal comprehension composite and her perceptual reasoning composite and the variability in the WISC-IV subtest scores, the student’s Full Scale IQ score was not “an accurate reflection of her abilities” and that her IQ scores underestimated  “her true cognitive potential” (Parent Ex. 2 at p. 2).  A psychological report prepared in March 2003 by petitioner’s psychologist indicated that respondents’ daughter received a standard score of 72 on the General Intellectual Ability test (Dist. Ex. D at pp. 1, 5).  The neuropsychologist concluded that this score was “not an accurate measure for her” (Tr. p. 557).  He “predicted” that the student’s intellectual potential fell within the low average range (Parent Ex. 2 at p. 2).  On the CTONI, the neuropsychologist concluded that respondents daughter “demonstrated abilities that were consistently average” and that she “clearly demonstrates at least average potential when her intelligence is measured nonverbally and the tasks do not require more complex executive functioning or processing speed skills” (Parent Ex. 2 at p. 3). 

The neuropsychologist concluded that the student had acquired some basic academic skills but that she had not made significant progress despite a variety of interventions (Parent Ex. 2 at p. 4).  The evaluator also reported that the student, who had completed seventh grade at the time of the testing, scored at the 3.1 grade level (third percentile) in a sight reading subtest of the WIAT-II, that her performance on a phonetic decoding subtest of that test was at the 2.2 grade level (eighth percentile), and that her reading score was at a mid third grade level (third percentile) (Parent Ex. 2 at pp. 4, 8).  He also reported that the student was “unable to complete a writing task on the WIAT-II” but that she demonstrated stronger, fifth grade skills in spelling and numerical calculation  (Parent Ex. 2 at pp. 4, 8).  He also concluded that the student’s reading scores were “all below an expected level based on her verbal comprehension score” and that they “did not demonstrate appropriate progress given her supports and services” (Parent Ex. 2 at p. 4).  Based on his review, he concluded that “past testing demonstrated periods of small gains and sometimes a drop off of skills” and that a comparison of test results demonstrated a regression in her decoding skills from the past two district evaluations” (Parent Ex. 2 at p. 4).

The evaluator made a number of recommendations. He recommended that the student continue with the Lindamood-Bell program  (Parent Ex. 2 at p. 5).  He reported that his retesting on the second day of his evaluation showed that the student had made significant gains in the short time since she had begun that program (Parent Ex. 2 at p. 5). The evaluator reported that his retesting “clearly demonstrated the benefits of the Lindamood-Bell intervention” for the student (Parent Ex. 2 at p. 4). He reported that the student’s performance on the WIAT-II decoding test increased to the average range (45th percentile) with a grade equivalent of 5.8 and that her performance on the WIAT-II sight reading test “improved almost one grade level” (id.).  The report also noted that he observed the student carrying over the strategies she was taught at the program (id.).  He suggested that participation in a language based social skills group might be helpful to increase her communication skills and interaction (id.).  Further, he recommended that the student should be enrolled in a small, highly structured classroom because of her difficulties with complex language skills, auditory processing, and executive functioning; that such a special education classroom should be for children with low average and average potential and abilities; and that she should continue in extracurricular peer activities to help promote social growth and development (Parent Ex. 2 at p 5).  The neuropsychologist also recommended specific classroom accommodations to address the student’s auditory processing  difficulties, and recommended continued occupational therapy, speech-language therapy, and periodic re-evaluation of her cognitive and educational needs, the latter which would begin, he suggested, with a comprehensive neuropsychological and academic update after the completion of the Lindamood-Bell program (Parent Ex. at p. 6).

By letter dated June 28, 2004, respondents requested an impartial hearing (Parent Ex. 1).  The letter requested that petitioner pay for the student’s enrollment in a summer Lindamood-Bell reading program and reimbursement for the neuropsychological evaluation (id.).  Respondents’ daughter attended the Lindamood-Bell program during the summer of 2004 (IHO Decision, p. 13).    At the hearing, respondents also argued that the every other day one to one special class in reading instruction recommended by the CSE for the September through June portion of the 2004-05 school year was not appropriate for the student.

The  impartial hearing commenced on July 14, 2004.  It continued on August 18, August 20, September14, and concluded on October 6, 2004.

The impartial hearing officer rendered her decision on December 8, 2004.  She determined that during the 2003-04 school year the student made small gains in reading and referenced evidence of the following:  during that school year, the student’s Wilson reading group had mastered that program to level 3.4 of 12 levels, the student had achieved several of her IEP reading goals, and a review of the Woodcock-Johnson Achievement testing from 2003 to 2004 showed that her scores had increased from the 15th percentile to the 17th percentile in letter word identification, from the 24th percentile to the 27th percentile in word attack, from the sixth percentile to the ninth percentile in reading comprehension, and from the fourth percentile to the 18th percentile in spelling of sounds (IHO Decision, pp. 9, 16; see also Dist. Ex. F at pp. 5, 18).    She found that the student's progress during the 2003-04 was “incremental at best” (IHO Decision, p.  19).  She noted that based on the testimony of the teacher who taught the student reading during the 2003-04 school year, “the Wilson program may take a number of years before the student would be able to read fluently” (IHO Decision, p. 19; see also Tr. pp. 397, 405-06) and that the student, now in the eighth grade, “did not have a number of years and requires immediate remedial services” (IHO Decision, p. 19).  The impartial hearing officer determined that the CSE was aware of the student’s limitations and the increasing complexity of her schoolwork, that she failed her 2003-04 math and science courses, and that the 2004-05 IEP should therefore have recommended a change of placement to small self-contained math and science classes (IHO Decision, pp. 18-19, 20).  She found that petitioner failed to establish that its recommended program was reasonably calculated to confer an educational benefit to the student, that the student required an intensive reading program, and that respondents had met their burden of establishing that the summer educational program and services they obtained for the student were appropriate and that equitable considerations favored respondents (IHO Decision, pp. 19-20). 

The impartial hearing officer also determined that petitioner had authorized an independent evaluation and that it provided an impartial description of the student's deficits to both parties.  Accordingly, the impartial hearing officer ordered that petitioner reimburse respondents for the tuition expenses incurred for the summer Lindamood-Bell program and reimburse them for the costs associated with obtaining the psychoeducational evaluation.  She also ordered petitioner's CSE to reconvene to discuss providing the student with the Lindamood-Bell reading program and a more restrictive math and science class (IHO Decision, p. 21).  

Petitioner appeals. It contends that its summer 2004 and 2004-05 regular school year reading programs were appropriate. It also appeals the impartial hearing officer’s determination that it should pay for the cost of the private psychoeducational evaluation.

Neither party appeals the hearing officer’s order that the CSE reconvene to discuss providing the Lindamood-Bell reading program to the student and placing the student in a more restrictive mathematics and science class setting. I note however, that the impartial hearing officer only directed the CSE to consider such issues and did not require petitioner to implement a particular methodology for instructing the student in reading (see Application of the Bd. of Educ., Appeal No. 04-049) nor direct petitioner to change the student’s placement.

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][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][D]; 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]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed that for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 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).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

I concur with the conclusion of the impartial hearing officer that the 2004-05 IEP is inadequate. Although petitioner increased the student’s reading services from the 2003-04 IEP, I find that the level of reading services for the 12 month program to be inadequate to meet the student’s needs as indicated by the discrepancy between her academic performance and her abilities (Parent Ex. 2 pp. 2, 3, 4; Tr. p. 516). At the time the 2004-05 IEP was formulated, the student was 13 years old and was preparing to enter the 8th grade. The testing that petitioner relied upon to show that she had made progress indicated that the student’s reading scores were significantly below her grade level.  When measured by the 2004 Woodcock-Johnson III Achievement Tests, she was more than four and one half years behind others her age in reading skills related to word attack, almost four and one half years behind reading skills related to passage comprehension, four years behind in reading skills related to the spelling of sounds, and more than three years behind in reading skills related to letter word identification (see Dist. Ex. F at pp. 3, 5).  Moreover, WIAT-II testing in June of 2004 measured the student’s performance in reading comprehension, word reading, and pseudoword decoding at the 3.5 grade level (third percentile), the 3.1 grade level (third percentile), and the 2.2 grade level (eighth percentile), respectively (see Parent Ex. 2 at pp. 4, 8). Given the level of need, the level of reading services offered were inadequate and not reasonably calculated to provide educational benefit. I find that petitioner did not meet its burden of proving that it offered an appropriate program to respondent’s daughter. 

Having determined that petitioner did not meet its burden of proving that the June 24, 2004 IEP provided respondent’s daughter a FAPE, I must now consider whether respondents have met their burden of proving that the privately obtained summer services were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).


         I concur with the impartial hearing officer's finding that the summer program obtained by the respondents for their daughter was appropriate. The focus on the student’s significant deficits in decoding and sight reading were appropriate. Its goal of improving reading fluency and accuracy was also appropriate for the student.  It appropriately targeted phonemic awareness as a problem area (Tr. p. 507) and the frequency was appropriate (Tr. p. 516). Further, testing conducted after the start of the program indicated that the student made significant progress during her initial attendance at the program (Parent Ex. 2 at pp. 4, 5, 8; Tr. pp. 507-10).  Progress update reports provided by the program’s director also showed that the program was appropriate for the student’s needs and that she progressed  (see Parent Ex. 5).  I find that respondents have met their burden of proving that the summer reading services they provided to their daughter were appropriate.

The impartial hearing officer found that equitable considerations support respondents' claim for tuition reimbursement because they cooperated fully with petitioner's CSE.  Petitioner makes no specific argument against this conclusion and I concur with the determination of the impartial hearing officer.

The final matter for review is whether petitioner should reimburse respondents for the cost of the independent evaluation they obtained for their daughter.  Federal and state regulations provide that a parent has a right to an independent educational evaluation (IEE) at public expense if the parent disagrees with an evaluation obtained by the school district (see 34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g][1]). Nevertheless, the right to an independent evaluation at public expense is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation or that the evaluation does not meet the school district criteria (see 34 C.F.R. § 300.502[b][2]; 8 NYCRR 200.5[g][1][iv]). If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may obtain an independent evaluation, but not at public expense (see 34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5 [g][1][v]).

In this case, respondents disagreed with the results of, and the conclusion to be drawn from, petitioner's January 2004 educational testing.  Because of that dispute they sought out a private neuropsychologist and requested an IEE of their daughter.  They subsequently requested that petitioner pay for the cost of that independent evaluation (Parent Ex. 1).  Under these circumstances, petitioner was required to pay for the examination or show at an impartial hearing that its own evaluation was appropriate or that the evaluation obtained by the parent did not meet relevant school district criteria.  Here, petitioner does not persuasively argue that its own evaluation was adequate.  Nor does it claim that respondents’ independent evaluation provided no important, useful, or relevant information relative to the student and her educational program not otherwise contained in its own evaluations.  The evaluation is not duplicative of any evaluation in the record. It provides important, useful and relevant information regarding the student’s measured achievement in the context of her cognitive abilities, particularly given the variable test results and contradictory conclusions evidenced in the record.  It advises among other things that the student’s IQ scores are an underestimate of her true cognitive potential (Parent Ex. at p. 2); that the student’s reading scores were below her expected level notwithstanding her participation in the Wilson group reading program during the 2003-04 school year (Parent Ex. 2 at p. 4); that her decoding skills may have regressed (id.); and that her attention and concentration skills were found to be within normal limits with some variability depending on tasks  (Parent Ex. 2 at p. 3).    

 I find petitioner’s arguments on appeal relative to the IEE to be unpersuasive and find that petitioner has not shown the cost of the evaluation to be unreasonable given this student’s unique circumstances, i.e. the prior conflicting interpretations of evaluative data and the variability of the data itself (see Office of Vocational and Educational Services for Individuals with Disabilities [VESID], “Individual Evaluations and Determinations For Students with Disabilities,” at p. 17 [August 2000]). Petitioner is required to reimburse respondents for the cost of the psychoeducational evaluation minus any amount charged by the evaluator for testimony at the hearing (see Tr. p. 519).

THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

March 14, 2005

 

PAUL F. KELLY
STATE REVIEW OFFICER