The State Education Department
State Review Officer

 

No. 05-052

 

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

 

 

Appearances:
Stein & Schonfeld LLP, attorney for petitioner, Nancy A. Hampton, Esq., of counsel

Ingerman Smith, L.L.P., attorney for respondent, Lawrence W. Reich, Esq., of counsel

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her daughter's tuition costs at the Riverview School (Riverview) for the 2004-05 school year.  The appeal must be sustained in part.

            The student was 15 years old and enrolled in the ninth grade at Riverview when the hearing began on October 6, 2004.  The student has been classified as multiply disabled by respondent's Committee on Special Education (CSE) (Dist. Ex. 17 at p. 1).  Petitioner's daughter has diagnoses of cerebral palsy and Attention Deficit/Hyperactivity Disorder (ADHD) (Parent Ex. A at p. 1; Tr. pp. 25, 38).  The student's classification is not in dispute (Tr. p. 23).  Riverview, described as an independent, co-educational, residential school for students with lifelong difficulties with academic achievement and the development of friendships (Parent Ex. L at p. 1), has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. 

During winter and early spring 2004, the student was evaluated in preparation for her triennial review (see 20 U.S.C. § 1414[a][2][A]; 34 C.F.R. § 300.536[b]; N.Y. Educ. Law § 4402[3][d]; 8 NYCRR 200.4[b][4]).  An occupational therapy (OT) summary report dated February 11, 2004, which included a Functional Skills Assessment that was performed on February 4, 2004 (Dist. Ex. 14 at pp. 2-3), recommended that OT be discontinued for the 2004-05 school year (Dist. Ex. 14 at p. 4).  The evaluator indicated that the student presented with low tone and poor strength throughout her trunk and upper extremities (id.).  The student was described as requiring cues to remain on task especially when there were distractions present in her environment (id.).  The evaluator opined that the student had made progress and further stated that she could then sit in a chair without falling and was able to maintain her balance during tabletop activities (Dist. Ex. 14 at p. 4).  The evaluator also stated that the student's needs could be appropriately met by the supports she received in resource room and recommended that OT services be discontinued for the 2004-05 school year (id.).  

On February 27, 2004, a psychological evaluation was conducted (Dist. Ex. 16 at pp. 15-22).  The Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV) was administered (id.).  Testing yielded a full-scale IQ score of 58, which indicated that the student was functioning within the extremely low to borderline range of intellectual functioning (Dist. Ex. 16 at p. 17).  The evaluator noted that the significant difference between her verbal comprehension index and working memory index indicated that the student's ability to apply verbal skills was significantly better developed than her abilities to hold and process information in memory (Dist. Ex. 16 at p. 19).  The student's perceptual reading index and processing speed index both fell within the extremely low range with no significant differences between the indexes, suggesting that the student's non-verbal abilities were evenly developed (Dist. Ex. 16 at pp. 19-20).  According to the evaluator, subtest analysis revealed that the student's area of greatest strength was in abstract verbal ability, which fell in the low average range (Dist. Ex. 16 at p. 20).  Word knowledge and short-term auditory sequential recall both fell in the borderline range (id.).  The student's rote learning and memory, attention, encoding and auditory processing were better developed than her sequencing, mental manipulation, attention, short-term auditory memory, visuospatial imaging and processing speed skills, which involved active working memory (Dist. Ex. 16 at p. 20).  The student displayed the greatest weakness in the areas of comprehension, factual knowledge, nonverbal concept formation, categorical reasoning, auditory working memory, computational skills used to solve mental arithmetic problems and selective attention (id.).  The Scales of Independent Behavior – Revised (SIB-R) was used to measure the student's functional independence and adaptive functioning in school, home, employment and community settings (Dist. Ex. 16 at p. 20).  The student's motor skills placed her in the very low functioning range, indicating that motor skills were a limited area for the student and age-level motor tasks would be very difficult for her to perform (Dist. Ex. 16 at p. 20).  The student's social interaction, communication and personal living skills, placed her in the low average range also indicating that age-level tasks would be difficult (Dist. Ex. 16 at pp. 20-21).  The student's community living skills placed her in the very low range, indicating that age-level tasks would be very difficult for her (Dist. Ex. 16 at p. 21).  The student’s broad independence full-scale score of 63 was within the very low range, indicating that the student had limited independence (id.). 

A speech-language evaluation was completed on April 16, 2004 (Dist. Ex. 16 at pp. 11-14).  The student was assessed using the Clinical Evaluation of Language Fundamentals - Fourth Edition (CELF-4) (id.).  The evaluator administered four core language subtests, three receptive language subtests, three expressive language subtests, three language content subtests and two language memory subtests (Dist. Ex. 16 at pp. 12-13).  The student's scores placed her in the very low range of functioning for receptive language and in the borderline range of functioning for core language, expressive language, language content and language memory (Dist. Ex. 16 at pp. 12-13).  The evaluator recommended that speech-language services be continued for the 2004-05 school year (Dist. Ex. 16 at p. 14). 

The student's special education teacher prepared an anecdotal report on April 16, 2004, which summarized the 2003-04 school year (Dist. Ex. 16 at p. 1).  The teacher reported that the student's achievement testing revealed deficiencies in all areas, with the exception of spelling and writing mechanics (id.).  The teacher indicated that the student demonstrated good decoding skills, but reading comprehension was very difficult for her unless she had someone to assist her in implementing strategies and making connections with what she was reading (id.).  The teacher further reported that the student had an excellent memory and a good sense of humor (id.).  The student has used many prewriting techniques such as graphic organizers and outlines to assist her in organizing her thoughts and information (id.).  According to her teacher, she had difficulty independently expressing her ideas in an organized and coherent manner (id.).  However, with assistance she was able to remain focused on a topic throughout the assignment and  otherwise her thoughts were scattered, unorganized and unrelated to the task (id.).  The teacher opined that the student needed to continue working on improving her reading comprehension, written expression and math skills (Dist. Ex. 16 at p.1). 

A subcommittee of respondent's Committee on Special Education (CSE) convened on April 16, 2004 for the student's annual review and recommended continuing her classification as multiply disabled for the 2004-05 school year (Dist. Ex. 17 at p. 1).   The student's May 15, 2004 individualized education program (IEP) reflected that the subcommittee also recommended a ten-month 7:1 inclusion classroom for the academic subjects of English, Science and Social Studies, each daily for a 40-minute period (Dist. Ex. 17 at p. 1).   The subcommittee further recommended a self-contained 6:1 special education classroom for Math and a 5:1 resource room, each daily for a 40-minute period (id.).  According to the IEP, the subcommittee recommended the related services of group speech-language therapy in a separate location twice per week for 30-minute sessions (id.).  The IEP includes recommended testing accommodations of administering in a small group in a separate location, directions explained, extended time (2.0), and use of a word processor (Dist. Ex. 17 at pp. 1-2).  The subcommittee also recommended program modifications of checking for understanding, copies of class notes, additional time to complete tasks, texts on tape, modified curriculum and use of a calculator (Dist. Ex. 17 at p. 2).  The student was described as having a significant delay in reading, math concepts, written expression and language skills which affects the student's involvement and progress in the general curriculum (Dist. Ex. 17 at p. 3). 

 The April 16, 2004 IEP includes a general statement that the student’s academic “rate of progress is slow but steady” but there is little in the IEP demonstrating what progress had been made or suggesting how the progress was measured.   (Dist. Ex. 17 at p. 3).  She was described as having a multi-sensory learning style, demonstrating difficulty with generating ideas in writing, specifically with writing paragraphs (id.).  The IEP indicated that the student had good decoding skills, but demonstrated difficulty with inferential reading comprehension (id.).  The student required a multi-sensory learning approach, and needed to develop mathematical numeration skills, develop mathematical application skills, improve her understanding of mathematical concepts, improve her written expression, improve her ability to generate ideas while writing, demonstrate the ability to write sufficient details, improve her ability to write essays, improve her inferential comprehension, and improve her understanding of concepts  (id.).  The student's present levels of performance in the social domain indicated that classroom behavior did not interfere with instruction, but the student had occasional problems relating to peers in and out of the classroom (Dist. Ex. 17 at p. 4).  The IEP indicated that the student needed guidance in making friends, and guidance to participate in large groups when she was not feeling confident (id.).  The student's present levels of performance in the management domain reflected significant delays (id.).  The IEP reflected her need for a small teacher-to-student ratio with minimal distractions for certain subjects, additional time to complete classroom assignments, and additional assistance to function in an educational setting (id.).  No physical needs were reflected on the IEP (Dist. Ex. 17 at p. 4).

Petitioner was not in agreement with the recommendations for the 2004-05 school year made by the CSE subcommittee on April 16, 2004, and notified respondent by letter dated April 20, 2004, that she would be unilaterally enrolling her daughter in a private school and seeking tuition reimbursement (Dist. Ex. 18).  By letter dated April 21, 2004, petitioner clarified her position by rejecting the proposed IEP and requesting an impartial hearing (Dist. Ex. 19).

The impartial hearing began on October 6, 2004.  Testimony was heard for five days and concluded on February 2, 2005.  The impartial hearing officer rendered her decision on April 20, 2005, finding that respondent had offered to provide petitioner's daughter a FAPE in the least restrictive environment (LRE) (IHO Decision, p. 42). 

            In this appeal, petitioner alleges that the impartial hearing officer erred in denying her request for tuition reimbursement for the 2004-05 school year because respondent did not offer her daughter a FAPE.  Petitioner contends that respondent's recommended program was not appropriate because it failed to recommend OT services, failed to develop a math curriculum to address the student's needs and did not include the student's present levels of performance in math on the IEP, the IEP contained goals and objectives that had been repeated for three years, and also the student's math teacher did not attend the annual review and did not administer any achievement testing.  Petitioner also contends that the impartial hearing officer erred in failing to order respondent to provide OT services and an OT evaluation, and in finding that Riverview was too restrictive for the student's needs.

            I note that petitioner's request for an OT evaluation was not raised at the impartial hearing and is therefore not properly raised in this appeal (Application of the Bd. of Educ., Appeal No. 04-041; Application of a Child with a Disability, Appeal No. 02-092).

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])1.  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 the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 05-005; Application of a Child with a Disability, Appeal No. 04-021).  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 according to the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111). However, this must be balanced against the requirement that each child with a disability receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).

An appropriate 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 (20 U.S.C. § 1414[d]; Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 05-005; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 01-105).  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 appropriate program is provided when school districts create an IEP that is tailored to meet the unique needs of each child with a disability and includes personalized educational services that are likely to produce progress rather than regression (Rowley, 458 U.S. at 181, 197; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 346  [5th Cir. 2000]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379, 383 [2d Cir. 2003]; Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]; see also, E.S. v. Indep. Sch. Dist., 135 F.3d 566, 569 [8th Cir. 1998]; Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247-48 [5th Cir. 1997]; Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 511-12 [E.D.N.Y. 1996]; Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 04-101).  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 LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

Petitioner raises several challenges to her daughter's IEP.  First, petitioner claims that the recommended program was inappropriate because: 1) respondent's CSE failed to develop a math curriculum to address the student's needs and did not include the student's present levels of performance in math on the IEP, 2) the student's math teacher did not attend the annual review and did not administer any achievement testing, and 3) the IEP contained goals and objectives that had been repeated for three years.

Achievement testing had last been conducted in spring 2003 and was reported in the form of a progress report by the student's special education teacher at the time (Dist. Ex. 7; Tr. p. 10).  The student was administered the Brigance Diagnostic Comprehensive Inventory of Basic Skills (Brigance) (id.).  Testing results indicated that the student was performing at or below first grade level for nearly all of the skills assessed (id.).  Subtests from the Stanford Achievement Test (SAT) and the Writing Process Test were administered as a pre-test in spring 2002 and again as a post-test in spring 2003 (id.).  Testing results reported in May 2003 indicated that the student's scores remained in the third percentile for reading comprehension, and that the student had made minor gains in reading vocabulary (pre-test second percentile, post-test fourth percentile) and listening (pre-test tenth percentile, post-test 16th percentile) (id.).  On the Writing Process Test, however, the student's pre-test performance reportedly placed her in the sixth percentile and her post-test performance placed her in the fifth percentile in development (id.).  The student's pre-test performance placed her in the 28th percentile and her post-test performance placed her 16th percentile in fluency (id.).  Although the student was performing at the first grade level in math, according to the Brigance, no standardized testing results were included on the student's 2003-04 IEP in the content area of mathematics (Dist. Ex. 10 at p. 3).  Prior to this testing, the student was administered the SAT in May of 2001 (Dist. Exs. 1 at p. 1, 3 at p. 2).  For the math portion, the student was administered two subtests (Dist. Exs. 1 at p. 1, 3 at p. 2).  The student's scores placed her in the second percentile for problem solving and the fourth percentile for procedures (Dist. Exs. 1 at p. 1, 3 at p. 2).  The student was also administered the reading comprehension subtest on the SAT (Dist. Exs. 1 at p. 1, 3 at p. 2).  Her score placed her in the 24th percentile for reading comprehension (Dist. Exs. 1 at p. 1, 3 at p. 2).

A psychological evaluation was completed on February 27, 2004 (Dist. Ex. 16 at pp. 15-22).  The evaluator assessed the student using the WISC-IV and the Scales of Independent Behavior – Revised (SIB-R) (id.).  No achievement testing in the content area of mathematics was conducted for the student's annual review (Dist. Ex. 17 at p. 3). 

Petitioner's neuropsychologist testified that the student functions at the mid-first grade level in math (Tr. pp. 626, 645).  The IEP dated April 16, 2004 contains goals and objectives that purport to address the student's needs in reading, writing, mathematics, speech-language, basic cognitive/daily living skills, and career and vocational skills.  Although petitioner primarily objects to the CSE subcomittee's recommendations in the content area of mathematics, a review of the IEP reveals that the goals and objectives across all domains are not measurable.  They do not specifically identify what the student would need to demonstrate as a behavioral and measurable indicator of improvement or understanding to determine any level of mastery for each domain.  For example, the IEP contains the writing goal: "[d]emonstrate an improvement in written language skills necessary to write for information, understanding, and written expression" (Dist. Ex. 17 at p. 5).  This goal is broad and not measurable.

The short-term objectives though measurable, do not clearly define the expected behaviors necessary for the student to exhibit progress.  It is unclear what was specifically expected of this then-ninth grade student whose expressive writing level was described as at a beginning fourth grade level (Tr. p. 647).  For example, the IEP does not articulate what is required of the student in order to demonstrate an ability to "write descriptive paragraphs, involving related sentences," "write a multi-paragraph composition or report," or "write a coherent summary about a previously read book" (Dist. Ex. 17 at p. 5). This same objective could be written for any student with a writing difficulty.  There is no specific behavioral expectation for progress and it is not individually tailored to this student's needs.  Although the IEP does not reflect current math achievement testing, the record indicates that mathematics is the student's greatest area of need as she performs at the mid-first grade level (Dist. Ex. 7; Tr. p. 645).  The student's sole mathematics goal broadly indicates that she will "demonstrate an improvement in mathematical concepts, reasoning and computation necessary to develop problem-solving skills and to utilize mathematics to address everyday problems" (Dist. Ex. 17 at p. 5).  One short-term objective indicates that the student will "demonstrate an understanding of number concepts and place value with 65% mastery, evaluated by utilizing portfolio materials…" (id.).  This objective does not specify how the student would demonstrate that she does understand place value at any level of progress. 

Petitioner further claims that the recommended program is inappropriate because it does not include OT services, and that an OT evaluation has not been completed for the student's annual review.  The student was last evaluated by respondent's occupational therapist on February 28, 2003.  At the time of the student's annual review she was receiving a monthly OT consult.  A Functional Skills Assessment was conducted on February 4, 2004 by respondent's occupational therapist for the student's annual review (Dist. Ex. 14 at pp. 2-3).  Respondent was not required to conduct a triennial evaluation until February 2006 (20 U.S.C. § 1414[a][2][A]; 34 C.F.R. § 300.536[b]; N.Y. Educ. Law § 4402[3][d]; 8 NYCRR 200.4[b][4]).  The record reflects that petitioner's daughter received OT services during the 2002-03 school year, and a monthly OT consult during the 2003-04 school year (Dist. Exs. 2, 4, 14). 

 According to an OT evaluation dated February 28, 2003, the student had made little progress in both areas assessed by standardized testing, but was functionally exhibiting better problem solving abilities, improved motivation to write, better fine motor control and improved writing skills (Dist. Ex. 4 at pp. 4-5).  The evaluator administered the Developmental Test of Visual-Motor Integration (VMI).  The student's standard score of 78 placed her in the seventh percentile.  On the Test of Visual Perceptual Skills – Revised (TVPS-R), the student's score placed her in the first percentile in visual discrimination, spatial relationships, form constancy, and visual closure.  The student's score placed her in the fourth percentile in sequential memory and in the fifth percentile in visual memory.  Her best performance was on the figure ground subtest wherein her score placed her in the tenth percentile.  The evaluator described the student as motivated and cooperative, presenting with poor proximal stability and poor shoulder girdle stability.  The evaluator noted that the student continued to make progress in spite of her areas of weakness.  The evaluator recommended discontinuing OT for the 2003-04 school year based upon her belief that appropriate support could be given through resource room to help further the student's academic skills. 

According to the 2003-04 IEP, OT services would be continued through June 2003 and the CSE recommended a monthly OT consult for the 2003-04 school year (Dist. Exs. 9, 10 at pp. 1, 3-4, 7).  The parent indicated she objected  to this IEP (Tr. p. 736).  She signed the committee multidisciplinary report and did not request an impartial hearing for discontinuation of direct OT services.(Dist. Ex. 10 at p. 7; Tr. p. 736). 

According to a summary report for the 2003-04 school year, the student has difficulty with spatial awareness of direction and has poor body awareness, which causes her to bump into objects, sit awkwardly and move around in her seat (Dist. Ex. 14 at p. 4).  The student also has difficulty spacing handwriting and typed work (id.).  She has good typing skills despite her spacing difficulties (id.).  The student reportedly writes with hard force (id.).  She writes very quickly and forms large letters (id.).  The student was described as requiring cues to remain on task especially where there are distractions present in her environment (id.).  The evaluator opined that the student had made progress and could then sit in a chair without falling and was able to maintain her balance during tabletop activities (Dist. Ex. 14 at p. 4).  The evaluator also stated that the student's needs could be appropriately met by the supports she received in resource room and recommended that the OT monthly consult be discontinued for the 2004-05 school year (id.).

At the hearing, petitioner's expert testified that discontinuing OT was inappropriate and commented on the modifications that she believed should have been made (Tr. pp. 389-90).  The impartial hearing officer expressed concern but ultimately found that discontinuing OT did not deny petitioner's daughter a FAPE for the 2004-05 school year (IHO Decision, p. 47).  The impartial hearing officer did not credit the expert's testimony because the expert was not an occupational therapist (id.).  The impartial hearing officer also stated that the record revealed ongoing problems with the student's handwriting and low muscle tone, but that there was inadequate evidence in the record of the need for OT and inadequate evidence to refute respondent's evaluation in 2003, the Functional Skills Assessment in 2004, and the summary reports from both school years that recommended discontinuing OT (id.).  I agree with the impartial hearing officer's determination.  The record indicates that the student was functionally performing all but 12 of the skills assessed on February 4, 2004 (Dist. Ex. 14 at pp. 2-3).  The student was able to perform three skills at or above age level and only performed nine skills poorly (id.).  There is no evidence in the record that indicates the student requires OT services to benefit from her educational program.

Based upon the foregoing, I find that the IEP for the 2004-05 school year need not include OT services for the student to receive educational benefit.  I further find that the IEP developed for the 2004-05 school year was inappropriate because respondent failed to evaluate and identify the student's needs in the area of mathematics, and also failed to create an IEP that would meet the unique needs of the student.  Because I have determined that respondent failed to offer to provide a FAPE to petitioner's daughter, I need not address petitioner's remaining claims relative to her daughter's specialized mathematics program. 

Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year, I now consider whether petitioner has met her burden of proving that the services provided to the child by Riverview during that school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No.  05-031; Application of the Bd. of Educ., Appeal No. 05-015; Application of the Bd. of Educ., Appeal No. 03-062).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private educational services obtained by the parents were appropriate to the child's special education needs (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Muller v. Committee on Spec. Educ., 145 F.3d 95, 104-105 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

The anecdotal report for annual review, developed by the special education teacher, reflects that the student has deficiencies in all academic areas (Dist. Ex. 16 at p. 1). She requires guidance in the social/emotional domain (Dist. Ex. 17 at pp. 3-4).  The record also reflects that the student's program at Riverview includes individualized course objectives to address English/Language Arts (Parent Ex. N at p. 1), reading (id. at p. 2), Math (id. at p. 3), History/Social Science (id. at p. 4), Science (id. at p. 5), social skills/work habits (id. at p. 6), and speech-language (id. at p. 7). 

Although not all the objectives set forth by Riverview are clearly measurable, they are behaviorally specific.  Each subject area includes a comment section that describes what the student has worked on for the first term and/or the student's progress, and may include a level of accuracy achieved by the student.  For example, in English/Language Arts, objectives specifically indicate that the student "will gather two to three relevant details for compositions through interviews with various people," "will organize information about a topic into a coherent paragraph with a main idea, relevant details, and a concluding sentence using a paragraph organizer and a word bank," and "will correctly spell eight out of ten appropriate high frequency words on weekly quizzes" (Parent Ex. N at p. 1).  The student's reading objectives require her to "read at least 150 words per minute with 98 percent accuracy" and "will answer five comprehension questions about a passage with 80 percent accuracy" (Parent Ex. N at p. 2).  Math objectives include: "after locating key words and phrases in a word problem choose the correct computational process, estimate a sensible answer, and check answer with a calculator," and "will pay with the appropriate denomination and make change up to ten dollars" (Parent Ex. N at p. 3).  In the area of social skills/work habits, objectives include "will set personal academic and social goals by identifying two areas of strength and two areas of improvement," and "will remain on topic during class discussions by contributing pertinent material" (Parent Ex. N at p. 6).

In addition, anecdotal comments written by the student's teachers in Riverview at the end of the first term in November 2004 indicate that:  the student willingly utilizes strategies taught for improving editing and spelling skills and averages 80 percent or better on daily oral language activities (Parent Ex. N at p. 1); the student's number of words per minute for a two minute timed oral reading passage averages between 220 and 240 words with two to three errors (Parent Ex. N at p. 2); the student averages 86 percent on lesson review vocabulary and comprehension tasks that are completed independently (id.).

According to the student's progress report from Riverview, the student's math instructor reported that the student participates enthusiastically in all activities and completes all assignments (Parent Ex. N at p. 3).  The instructor reportedly focuses on real life problems related to money and time.  The student is able to complete single-step word problems requiring addition or subtraction; and is able to complete two-step problems by responding to guided questions.  The progress report also indicated that the student had shown consistent progress in locating key words and phrases in word problems, choosing the correct computational process, estimating a sensible answer, and checking the answer with a calculator.  The student reportedly required review and reinforcement with problem solving that involves money and time, and had shown limited progress using addition and subtraction for computation of two-digit numbers with renaming (id.).  Although the student's progress was deemed limited by her instructor at Riverview, I note that the record indicates that as of the last mathematics achievement testing, the student's computation skills had been below the first grade level (Dist. Ex. 7).

The record also reflects that the student needed the support of a 1:1 teaching assistant in respondent’s inclusion science class during the 2003-04 school year (Dist. Ex. 11).  According to the first term progress report from the student's science instructor at Riverview, the student was always on task and added to each classroom discussion and project (Parent Ex. N at p. 5).  She further described the student as a leader, and reported that the student had successfully completed a unit on Biology, in which she mastered a number of concepts related to structures and functions of plants, single-celled organisms, and animal cells (id.).  The progress report also indicated that the student had shown consistent progress towards all but one of her five course objectives (id.).  

The student's first term progress toward course objectives at Riverview in the area of speech-language was reported as requiring review and reinforcement (Parent Ex. N at p. 7).  The student's instructors indicated that the focus of the first term had been conversation skills in a structured small group setting.  The student was described as demonstrating difficulty with limiting the amount of information shared per conversational turn.  The student reportedly benefited from the use of visual cues to assist her in turn-taking and enabling her to limit the amount of information shared and has responded favorably to verbal and visual cues to lower the volume of her voice, reduce the speed of her speech and raise her awareness about questions and comments she spontaneously adds during conversation. 

In the instant case, given the nature of the student's disabilities and areas of need, the record reveals that Riverview, at the time the placement decision was made, did offer an appropriate program, and moreover, she did derive educational benefits from the instructional program provided by Riverview. I share the concern regarding the change from an inclusion program to a restrictive placement located a good distance from home, however given the circumstances of this case, I do not find that the parents’ unilateral placement of the student at Riverview inconsistent with the LRE requirement. As such, the parent has met her burden of proof in demonstrating that Riverview has met her daughter's special education needs (see Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 03-108).

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 [2d. Cir. 2000]; see Carter, 510 U.S. at 16). In the instant case, the record reveals that the parent attended and participated in the CSE meetings and cooperated with respondent's CSE in the student's evaluations and preparing the student's IEP.  In the absence of any other equitable factor, I find that the parent's claim for tuition reimbursement is supported by equitable considerations.

I have considered petitioner's remaining contentions and I find them to be without merit.  I do encourage the CSE to investigate and consider placements that offer small group instruction closer to the student’s home.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent it found that respondent had offered to provide a free appropriate public education to petitioner's daughter; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her daughter's tuition at the Riverview School for the 2004-05 school year upon petitioner's submission of proof of payment for such expenses.

 

Dated:

Albany, New York

 

__________________________

 

August 11, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.