The State Education Department
State Review Officer

No. 05-020

 

 

 

 

 

 

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 Penfield Central School District

 

 

Appearances:
Harris Beach, LLP, attorney for respondent, David W. Oakes, Esq., of counsel

 

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which determined that respondent was not required to reimburse petitioner for the cost of a private tutor for her son for the second half of the 2003-04 school year and for the 2004-05 school year, and remanded the matter to respondent's Committee on Special Education (CSE).  The appeal must be sustained in part.

            At the outset, I must address a procedural matter. Respondent attached to its Answer correspondence from petitioner to respondent, dated February 11, 2004 and February 12, 2004, that was not made part of the impartial hearing record and is now offered for consideration on review (Appendix-1). Petitioner objects to the admission of the documents.  Petitioner contends that they are irrelevant and that the correspondence should not be accepted without direct testimony and additional correspondence providing context.

            Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary to enable the State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-064). While the documents were not available at the time of the hearing, they are not necessary for my review and, therefore, I will not accept them (Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-083).

            The impartial hearing was conducted in October and November 2004, and included six days of testimony, which concluded on November 23, 2004.  At the time of the impartial hearing, petitioner's son was 14 years old and attending ninth grade in respondent's high school. His eligibility for special education as a student with an other health-impairment (OHI) is not in dispute (Dist. Ex. 3; Tr. p. 189; see 8 NYCRR 200.1[zz][10]).

 

            The student and his family moved to respondent's district in December 1998 and petitioner’s son was placed in a supported third grade class  (Tr. p. 790).  Toward the end of the student’s sixth grade year, as part of the student’s triennial reevaluation, an interdisciplinary team review of the student’s program was conducted producing an evaluation report dated May 15, 2002 (Dist. Ex. 67).  The report, written by a special education teacher, school psychologist, and speech-language therapist, indicated that, as early as second grade, the student exhibited difficulties in reading and writing which continued to be an area of concern (Dist. Ex. 67 at pp. 1, 6).  However, the report noted that the student had made a successful transition to the middle school, had been academically successful, and was reported to exhibit positive behavioral/learning characteristics (Dist. Ex. 67 at p. 2).   The report indicated that a psychological evaluation was completed in January 1998 (Dist. Ex. 67 at p. 2) in which administration of the Wechsler Intelligence Scale for Children–III (WISC-III) yielded a verbal IQ score of 112, a performance IQ score of 94, and a full scale IQ score of 104 (id.).  The evaluator noted that the student's intellectual abilities revealed high average verbal reasoning skills and average nonverbal reasoning abilities (id.).  Additionally, assessment with Wide Range Assessment of Memory and Learning (WRAML) in January 1998 revealed significant and pervasive memory deficits to the extent that the discrepancy between the student's verbal and nonverbal reasoning abilities and his pervasive memory deficit were considered significant contributors to the student's learning deficits (id.).

 

            An educational evaluation was conducted in April 2002 as part of the triennial reevaluation (Dist. Ex. 67 at pp. 2-4).  On the Woodcock Johnson Tests of Achievement III–Revised (WJR-III), the student achieved standard (and percentile) scores of 94 (33rd) for Broad Reading, 93 (32nd) for Broad Math, and 92 (29th) for Broad Written Language (Dist. Ex. 67 at p. 3).  His teacher reported that the student's reading skills fell in the average range overall, but error analysis indicated that as items became more difficult the student appeared to substitute or omit words when reading short passages (id.). The teacher further reported that while he relied on context, the word substitutions and/or deletions that the student was making changed the meanings of the passages (id.).  The teacher also indicated that within the classroom setting the student was able to read and comprehend fifth to sixth grade level content materials when given extra time and support to identify unknown words (id.). The student often asked for help decoding content words (id.). He sometimes changed the meaning of the test question by misreading the question, which caused him to incorrectly answer when he knew the right answer to the question (id.).  The student was also administered WJ-R subtests in Math Fluency, Calculation, and Applied Problems and achieved in the low-average to average range (Dist Ex. 67 at p. 3).

 

            A speech-language evaluation was conducted on April 24, 2002 as part of the triennial reevaluation (Dist. Ex. 67 at pp. 4-5).  Administration of the Test of Auditory Perceptual Skills: Upper Level (TAPS-UL) (Dist. Ex. 67 at p. 4) revealed that the student scored in the average range on all subtests except the subtest of Auditory Interpretation of Directions, in which the student obtained a below average score (Dist. Ex. 67 at p. 5).  The evaluator also noted that the student scored above average on the subtest of Auditory Processing (thinking and reasoning) suggesting that the student had good ability to use common sense and ingenuity in solving common thought problems (id.).  The phonemic awareness subtests of the Woodcock Johnson Tests of Cognitive Abilities (WJTCA-III) (Dist. Ex. 67 at p. 4) were administered and revealed that the student demonstrated average auditory processing skills as measured by the standardized tests given (Dist. Ex. 67 at p. 5).  The evaluator noted that the evaluation failed to reveal the previously noted memory deficits and the assessment in the area of reading suggested "adequate decoding skills" with the student having been observed to "employ a variety of reading comprehension strategies" (id.). 

 

            The triennial reevaluation report concluded, among other things, that the student continued to maintain growth across all academic areas (Dist. Ex. 5 at p. 5), that overall he fell within the average range in academic achievement, spelling, writing samples, writing fluency, editing, and math calculation, and progressed in the area of speech and language (Dist. Ex. 67 at pp. 5-6).

 

            Although the record is somewhat unclear, it appears that the student was provided direct instruction utilizing a decoding strand of respondent’s Corrective Reading Program as a supplement to his Developmental Reading Program class in sixth grade (Tr. pp. 342, 476, 481, 1049-50).  At the hearing, respondent’s reading department chairperson (Tr. p. 472) described the Corrective Reading Program as sequential, systematic, multisensory direct instruction containing decoding components and well as comprehension components (Tr. p. 476).  The student’s reading teacher described the Corrective Reading Program as a phonics-based approach, targeting sounds and symbol relationships in a repetitive manner (Tr. pp. 339-40).  She testified that the program had comprehension and writing components, but did not go into critical thinking, abstract thinking, vocabulary acquisition, and the ability to use context (Tr. p. 340).  Respondent’s Corrective Reading Program was further described as the intermediate and secondary level of the "SRA Mastery Reading Program" (Tr. pp. 519-20).

 

For seventh grade, the student continued in the Developmental Reading Program because, according to respondent’s reading department chairperson, although he performed up to his grade level, the student still had weaknesses in decoding (Tr. pp. 342-43). The Developmental Reading Program concentrated more on comprehension strategies, vocabulary development, the use of strategies in comprehending content area materials and critical thinking skills than in the separate skills area (Tr. pp. 473, 1049). Similar to the Corrective Reading Program, the Developmental Reading Program also offers word analysis and word skill components (Tr. p. 474).  Respondent’s Developmental Reading Program was described by the student’s seventh grade reading teacher as including instruction in comprehension strategies, word identification strategies, writing strategies, critical thinking, and vocabulary acquisition (Tr. pp. 262, 64). Neither the sixth grade 2001-02 nor the seventh grade 2002-03 individualized education programs (IEPs) reflected the student’s participation in the regular education Developmental Reading Program (Dist. Exs. 76, 46; Tr. p. 336).  The 2001-02 IEP provided for consultant teacher services for reading and contained an annual instructional goal for reading (Dist. Ex. 76). The 2002-03 IEP provided for resource room services for reading and also contained an annual instructional goal for reading  (Dist. Ex. 46).

 

            In a report dated February 27, 2003 the student's seventh grade reading teacher noted that the student’s progress was excellent and that he was extremely attentive and he applied learned strategies to complete academic assignments (Dist. Ex. 40 at p. 3). The student's seventh grade language arts teacher reported that the student was making "slow but steady progress" in all areas of English, but still had difficulty with inferential questions, written expression, and was weak in areas of elaboration and mechanics (Dist. Ex. 40 at p. 7).  The student's science teacher indicated the student was making good academic progress, but there still was a concern with the student's reading interpretation and writing (Dist. Ex. 40 at p. 1). 

 

In March 2003 the student’s seventh grade special education teacher indicated in a “teacher observations” report that the student received consultant teacher services and resource room special education to support core classes, participated in a reading program, and received testing modifications (Dist. Ex. 38 at p. 1).  The student was noted to have weaknesses, mainly concerning areas of reading and writing (id.).  Decoding and comprehension difficulties were reportedly addressed in his reading program (id.). The student's teachers reported written expression to be the area of most concern but described the student as enthusiastic about writing (id.).  The report noted that his teachers regularly report in a very positive manner about his academic performance and behavior in the classrooms. The report revealed that the team was recommending that the student no longer be considered eligible for special education and that he be given “declassification” services that would include a continuation of testing, modifications, and monitoring by the special education teacher for core classes (Dist. Ex. 38 at p. 2). 

 

            In a psychological report dated March 13, 2003 (Dist. Ex. 39), the student was observed to need extra time to process information and be very diligent in the decisions that he made (Dist. Ex. 39 at p. 2).  Administration of the WISC-III yielded a verbal IQ score of 108 (70th percentile) and a performance IQ score of 95 (37th percentile) (id.), revealing that the student had significant differences between his verbal and nonverbal reasoning abilities, even though both reasoning abilities were noted to be in the average range of intellectual functioning (Dist. Ex. 39 at p. 4).  The evaluator indicated that the student's nonverbal reasoning skills were impacted greatly by time constraints (id.).  The evaluator also noted that memory deficits were not found as previously reported (Dist. Ex. 39 at p. 1), that the student was able to express his ideas and give details to his answers and that he had a wealth of background knowledge and general information (Dist. Ex. 39 at p. 4).   The school psychologist recommended that the student be determined ineligible for special education services, but continue to have extra time to process information and output that information as part of a declassification support plan (Dist. Ex. 39 at p. 5).

 

            On March 28, 2003 respondent's CSE continued to classify the student as OHI and recommended that for the 2003-04 eighth grade school year the student receive consultant teacher services five times a week for two hours in an integrated setting for language arts, math, science and social studies (Dist. Ex. 34 at p. 1).  The IEP indicated a delay in reading decoding, reading comprehension, and written expression and included instructional goals for word recognition and decoding, reading comprehension and written expression (Dist. Ex. 34 at p. 3). The CSE also recommended that the student receive testing accommodations including extended time, simplified language in directions, having directions reread, and having a spell checker and calculator available for the student (id.).  Not reflected on the IEP was that petitioner’s son was to participate in the Developmental Reading Program class.

 

            In the fall of 2003, petitioner conveyed an interest to respondent in removing her son from the Developmental Reading Program class. By electronic mail dated November 3, 2003 (Parent Ex. 125), the student's eighth-grade special education teacher (Tr. p. 21) responded to petitioner and stated that she agreed with petitioner that the student needed resource room services (Parent Ex. 125). The special education teacher recommended that the student’s reading class be maintained and that the student modify his schedule by withdrawing from technology class (id.). She also noted that the student’s reading specialist (Tr. p. 262) had serious reservations about removing the student from reading class (Parent Ex. 125).  However, petitioner wanted her son to continue with the technology class and withdraw from the Developmental Reading Program class despite teacher recommendations (Tr. pp. 50-54, 60, 297-98, 815).  By letter dated November 5, 2003, petitioner corresponded with the department chairperson for reading (Tr. p. 472), asking that a meeting be scheduled to discuss the student's declining test scores and to look into further remediation relating to his participation in the reading and writing class (Parent Ex. 126; Tr. p. 819).  Petitioner testified that she asked respondent to have other alternatives to reading because the student had not made progress in the reading and writing program over the two years he had been participating in the program and that he was helped previously by resource room services (Tr. pp. 817-18).

 

On November 18, 2003, the CSE convened and added resource room five times per week for 40 minutes to the IEP for the 2003-04 school year (Dist. Ex. 30 at pp. 1, 7).  The CSE continued the recommendations of consultant teacher services and testing accommodations, as had been a part of the IEP for the 2002-03 school year (Dist. Ex. 30 at p. 1, Dist. Ex. 34 at p. 1).  Although the record reflects that technology, art, home and careers, or chorus could have been removed from the student's schedule to accommodate resource room services (Tr. pp. 50-51), petitioner expressed a desire to maintain these courses and remove the student's reading class from his schedule (Tr. pp. 52, 817). The student's reading class was removed from his schedule to make room for resource room services as petitioner requested (Tr. pp. 53, 297-298). As did the March 28, 2003 IEP, the November 18, 2003 IEP identified a delay in reading decoding abilities affecting the student’s involvement and progress in the general education curriculum and requiring continued support (Dist. Ex. 34 at pp. 1-2, Dist. Ex. 30 at p. 2).

 

            By letter dated January 20, 2004, petitioner notified respondent that she and her husband had obtained a private tutor who utilized the Wilson Reading Method (Wilson) of instruction and requested that the district "provide the same, identical program or reimburse them for the costs" (Dist. Ex. 28).  A CSE convened on February 12, 2004 and again recommended consultant teacher services, resource room, and testing accommodations (Dist. Ex. 20 at p. 1).  The February 12, 2004 IEP reflected that the student needed continued support with decoding (Dist. Ex. 20). No decision was made regarding reimbursing petitioner for the student's private tutoring at that time (Dist. Ex. 23 at p. 1).  At the CSE subcommittee meeting, petitioner agreed to have the student assessed for placement in the Corrective Reading Program (Tr. p. 1085; see Dist. Ex. 1 at p. 5).

 

An independent educational evaluation was conducted on April 27, 2004 and the results of the evaluation were reported May 10, 2004 (Dist. Ex. 19).  The report stated that the student had weaknesses in his knowledge of phonics and word analysis at the intermediate and advanced levels of word learning (Dist. Ex. 19 at p. 4).  The evaluator noted that the student had problems with simultaneous processing (visualization) and spatial analysis or reasoning rather than problems with successive or sequential processing and verbal learning (Dist. Ex. 19 at p. 8).     The evaluator recommended that the student "participate in a strong multisensory phonics, spelling and word learning program at the intermediate and advanced levels of skills to improve his knowledge and use of phonics and word analysis and his knowledge of the Alphabetic Orthography.  Programs such as the Wilson Language Program, the Intermediate and Secondary Level Word Learning Activities from Project Read, Words Their Way, or the SRA Mastery Program (Direct Instruction) are examples" (Dist. Ex. 19 at p. 8; see Tr. p. 955).

 

            On June 23, 2004 a subcommittee of the CSE convened and recommended that the student attend its ninth grade general education program for the 2004-05 school year (Dist. Ex. 10 at pp. 1, 2).  The June 23, 2004 IEP provided that the student was to receive 40 minutes of individual reading support five times per week (Dist. Ex. 10 at p. 2).  The IEP does not identify decoding as a need but minutes of the meeting state that that the student was to “have a Reading class - Corrective Reading – every day” (Dist. Ex. 14 at p. 2). The minutes also reflect that the student's parents were not in agreement with the IEP and recommendations (Dist. Ex. 14 at p. 3).

 

            By letter dated August 19, 2004 (Dist. Ex. 15), respondent denied petitioner's request for reimbursement of cost of the private tutoring and stated that while it was understood that petitioner preferred that the student be instructed using the Wilson methodology, instruction in the Corrective Reading Program would be appropriate for the student (Dist. Ex. 15).  By letter dated September 2, 2004, petitioner sought due process and requested mediation (Dist. Ex. 1 at p. 5). By electronic mail and completion of a Request for Due Process Proceedings, dated September 8, 2004, petitioner requested an impartial hearing for the purposes of obtaining reimbursement for the cost of a private tutor from January 2004 forward (Dist. Ex. 1).  By electronic mail, dated August 27, 2004, petitioner directed respondent to delete corrective reading from her son’s schedule and add chorus (Dist. Ex. 8).

 

            Another CSE subcommittee convened on September 20, 2004 and recommended continued classification as OHI and, among other things, individual reading support five times a week in forty-minute sessions (Dist Ex. 3 at p. 2). Comments on the IEP stated that after much discussion of the student’s need for decoding instruction, “it was determined the reading specialist with input from parents will develop proposed goals and objectives surrounding decoding skills to be considered by the CSE” (Dist. Ex. 3 at p. 4).

 

A prehearing conference was held on September 20, 2004 via telephone, when it was determined that petitioner was seeking reimbursement for the cost of a private tutor from January 2004 through the conclusion of the 2004-05 school year (IHO Decision, pp.1-2; IHO Exs. I-IV).  The impartial hearing officer rendered a decision on January 20, 2005 finding that respondent failed to adequately address the student's decoding difficulties from January 2004 through the end of the 2003-04 school year and the services selected by the parent were appropriate (IHO Decision, p. 12).  However, he also determined that equitable considerations did not support petitioner's reimbursement claim and denied reimbursement for the cost of the private tutoring because it was at petitioner’s request that services to address reading needs, which were offered by respondent, where not provided after November 18, 2003 (id.). The impartial hearing officer also determined that equitable considerations did not support petitioner's reimbursement claim because petitioner failed to give respondent written notice prior to commencing private tutoring for the student (IHO Decision, pp. 13, 15). 

 

The impartial hearing officer also found no basis to award petitioner reimbursement for tutoring during the summer of 2004 as compensatory education (IHO Decision, p. 14). He determined that for the 2004-05 school year, respondent offered to provide the student an appropriate program, and thus, he denied petitioner's claim for reimbursement for the cost of a private tutor for the 2004-05 school year (IHO Decision, p. 13).  The impartial hearing officer determined that it was important for an annual goal of decoding to be added to the student's IEP in the event that the Corrective Reading Program was added to the student's schedule and remanded the matter to the CSE (IHO Decision, p. 15).

 

            On appeal, petitioner contends that the impartial hearing officer erred in finding that equitable considerations did not support petitioner's reimbursement claim from January 2004 through the end of the 2003-04 school year, erred in finding that petitioner did not give appropriate notice with regard to seeking a private tutor, and erred in finding that respondent offered the student an appropriate program for the 2004-05 school year (Pet. ¶¶ 20-22). 

 

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][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. 04-008). 

 

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 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).  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]).

 

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. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

 

An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]). 

 

An IEP must also include measurable annual goals, including 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]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).        

 

 Inasmuch as neither side has appealed that portion of the impartial officer’s decision that determined that respondent did not adequately address the student’s decoding difficulties from January 2004 to the end of the 2003-04 school year and that petitioner prevailed on the first two prongs of the Burlington/Carter analysis regarding the 2003-04 school year, those portions of the decision are final and not subject to review (34 C.F.R. §300.510[a]; 8 NYCRR 200.5[i][4][v]; Application of a Child with a Disability, Appeal No. 04-015; Application of a Child with a Disability, Appeal No. 02-073; Application of a Child with a Disability, Appeal No. 01-053).  Therefore the issue that remains, pertaining to the 2003-04 school year, is petitioner’s contention that the impartial hearing officer erred in determining that equitable considerations did not support an award of reimbursement for private tutoring services obtained during that time period. I find that he did not.  

 

The final criterion for an award of tuition reimbursement is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist, 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, at n.9; Application of a Child with a Disability, Appeal No. 04-029; see generally Application of a Child with a Disability, Appeal No. 04-045).

 

I agree with the impartial hearing officer’s findings that educational reports, testing, and assessments demonstrated that petitioner’s son showed improvement and progress in reading as a result of reading services provided by respondent during the 2001-02, 2002-03 and into the 2003-04 school years prior to the selection of private tutoring services  (IHO Decision, pp. 10-11; Dist. Exs. 16, 27, 51, 56, 59, 61, 69). The services provided by respondent over that time period included reading programs, resource room, and consultant teacher services. In formulating the November 18, 2003 IEP (Dist. Ex. 30) the CSE identified a delay in reading decoding, reading comprehension, and written expression as needs, offered consultant teacher services to support language arts (written expression), science (vocabulary concepts) and social studies (written expression) instruction, offered supportive resource room services, and offered test and program modifications, all to be provided in combination with a regular education Developmental Reading class (Dist Ex. 30). The impartial hearing officer concluded that respondent intended to address the student’s decoding problems and would have adequately done so during the period between January 2004 and the end of his eighth grade school year had the Developmental Reading Program class not been removed from the student’s schedule on November 18, 2003. I concur with respondent’s assertion that it might be faulted for accommodating petitioner’s demand to discontinue the reading class in November 2003 (Respondent Memorandum of Law at p. 5), however I also concur with the impartial hearing officer that it would be inequitable to order reimbursement to petitioner for obtaining private services to replace adequate services that she requested not be provided. I find petitioner’s actions to be unreasonable.

 

I now turn to the question of whether petitioner is entitled to reimbursement for private tutoring expenses obtain during the 2004-05 school year. The June 23, 2004 and September 20, 2004 IEPs failed to appropriately identify reading decoding, reading comprehension, and written expression needs affecting involvement and progress in the general education curriculum, and failed to provide instructional goals and objectives to address these needs (Dist Exs. 3,10).  Existing evaluative data at the time required the identification of these need areas with appropriate corresponding instructional goals and objectives in the student IEPs. I find that the failure to formulate IEPs that adequately identified the student’s needs with appropriate goals and objectives denied the student educational benefits and resulted in a program that substantively was not reasonably calculated to provide educational benefits (Application of the Bd. of Educ., Appeal No. 03-062).  Moreover, I adopt the impartial hearing officer’s finding that the private services obtained by petitioner were appropriate to meet the student’s needs (IHO Decision, pp. 8-10), and I further conclude that equitable considerations preclude an award of reimbursement to petitioner for private services obtained during the 2004-05 school year. I find petitioner’s actions, directing that respondent delete corrective reading from her son’s schedule and add chorus (Dist. Ex. 8), to be unreasonable and not supportive of an award of reimbursement.

 

I have considered petitioner's remaining contentions and I find them to be without merit. I have considered respondent’s affirmative defenses and need not address them any further given the discussion and my determinations above.

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

            IT IS ORDERED that the impartial hearing officer’s decision is hereby modified to the extent that it determined that respondent offered petitioner’s son a FAPE for the 2004-05 school year.

 

 

 

Dated:

Albany, New York

 

__________________________

 

April 6, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER