The State Education Department
State Review Officer
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 New York City Department of Education
Advocates for Children, attorney for petitioner, Randee J. Waldman, Esq., of counsel
Hon. Michael A. Cardozo, attorney for respondent, Thaddeus Hackworth, Esq., of counsel
††††††††††† Petitioner appeals from the decision of an impartial hearing officer which denied her request for 364 hours of tutorial services for her son at the Huntington Learning Center (Huntington).† The appeal must be sustained in part.
††††††††††† Petitionerís son was 17 years old and attending the Occupational Training Center (OTC) in Manhattan (see Dist. Ex. 1 at p. 2; Tr. p. 30) when the May 5, 2005 impartial hearing was held.†† He was also receiving speech-language therapy (Tr. p. 8; Dist. Ex. 11 at p. 11).† The studentís eligibility for special education programs and services and his classification as a student with mental retardation (8 NYCRR 200.1[zz]) are not in dispute in this appeal.
During the 2003-04 school year the student received special education services as a student with a speech or language impairment, and for the first half of the year his program consisted of a MIS-I classroom with speech therapy as a related service at the George Washington Complex (Dist. Ex. 4 at p. 1; Tr. p. 26).
††††††††††† In September 2003 petitioner requested that the student be evaluated to determine an "appropriate program" for him (Tr. p. 31).† An evaluation of the student was conducted in December 2003 by a bilingual school psychologist, who administered the Stanford-Binet Intelligence Scale-Fourth Edition (Stanford-Binet), the Woodcock-Johnson Tests of Achievement-Third Edition (WJ-III), the Vineland Adaptive Behavior Scales Interview Edition (Vineland) and the Reading-Free Vocational Interest Inventory (Dist. Ex. 4).† The student was assessed in English and the evaluator stated that although the student's language skills in both English and Spanish were delayed, his language proficiency was more developed in English (Dist. Ex. 4 at p. 2).† Administration of the Stanford-Binet yielded a test composite score of 45 (mentally retarded range), which the evaluator indicated was a fair estimate of the student's intellectual functioning.†
††††††††††† However, the evaluator concluded in his December 12, 2003 report that the student was not mentally retarded but in fact "intellectually delayed" due to his mother's responses to the Vineland questionnaire which indicated that the student could function independently to an "acceptable extent" (Dist. Ex. 4 at p. 3).† A 1996 neuropsychological examination report and 2001 psychological evaluation report described the student's cognitive skills as being in the moderately mentally retarded range (Dist. Ex. 8 at p. 2; Dist. Ex. 9 at p. 3).†††††
††††††††††† Also as part of the 2003 evaluation, the student's academic skills were measured by administration of the WJ-III, which revealed well below average scores between 5.7 and 6.5 in age equivalency and between kindergarten to first grade in grade equivalency† (Dist. Ex. 4 at p. 4).† In addition to significant delays in math and reading, the evaluator reported that the student, who was almost 16 years old at the time of the assessment, did not consistently tell time correctly or demonstrate knowledge of the letters of the alphabet.† The student's spelling and phonemic awareness were reportedly weak (id.). A vocational assessment of the student referenced in the report indicated an interest in automotive work and animal care. Projective testing results suggested that the student exhibited an acceptable variety of emotions, however, his learning disability, speech and language delay and intellectual delay negatively affected school learning and social development.† The evaluator also reported that the student was a "pleasant, talkative, likable youngster" with a "very nice personality."† Recommendations from this assessment included a classification of speech or language impaired with speech-language therapy, and a program that addressed the student's academic needs as well as marketable vocational skill development and training (Dist. Ex. 4 at p. 5).† Individualized instruction in reading, writing and math was suggested.†
The Committee on Special Education (CSE) met on December 16, 2003 and the resultant individualized education program (IEP) offered the student a 12:1:1 special class in a special school placement with the related service of speech-language therapy twice weekly for 30-minute sessions in a group of eight and a classification of speech or language impaired (Dist. Ex. 3 at pp. 1, 9).† The IEP reported that the student's academic performance measured by the WJ-III indicated that his decoding, reading comprehension, math computation and math problem solving skills were at a first grade level (Dist. Ex. 3 at p. 3).† His reading skills were described on the IEP as "significantly delayed" and he exhibited difficulty recalling the visual configuration of letters, sounds and meaning of words. Although the CSE reported that the student's intellectual functioning was "significantly below average,Ē results of the Vineland indicated the student was not mentally retarded (id.).† According to the IEP, the student's behavior reportedly did not interfere with the instructional process, and he did not have a behavioral intervention plan (BIP) (Dist. Ex. 3 at p. 4).† As a result of the recommendations made by the evaluator in his report, in February 2004 the student was transferred to the OTC, a program that offered "more adult intervention" and vocational training (Dist. Ex. 1 at p. 2; Tr. pp. 20, 26).†
An impartial hearing regarding aspects of the student's special education program was held in January 2004 and pursuant to a stipulation, respondent agreed to authorize two tutoring sessions weekly for the student for the remainder of the 2003-04 school year (Dist. Ex. 1 at p. 2).† The parent sought a second hearing, held in May 2004, to obtain enforcement of the prior stipulation with which respondent admittedly did not comply (Dist. Ex. 1 at pp. 2-3).† The impartial hearing officer in the May 2004 hearing ordered respondent to provide 34 one-hour private tutoring sessions, including the registration and diagnostic evaluation fees (Dist. Ex. 1 at p. 5). The impartial hearing officer also ordered the CSE to re-evaluate the student within 10 days of notification of the studentís completion of the tutoring sessions, and to reconvene to determine if additional tutoring was warranted (Dist. Ex. 1 at pp. 4-5).†††
Huntington staff conducted an initial assessment of the student on December 9, 2004 (Dist. Ex. 10 at p. 1). His performance on a visual motor performance and sentence copying test was "poor" (id.). The evaluation summary stated that the student had not demonstrated mastery of recognition of a variety of phonemes, and he recognized only 6 out of 20 words on a kindergarten level site word recognition test† (Dist. Ex. 10; Tr. p. 40).† Academic achievement skills measured by the California Achievement Test at the kindergarten level revealed that the student's vocabulary skills were in the 22nd percentile, reading comprehension was in the 14th percentile and mathematic skills were in the 13th percentile (Dist. Ex. 10 at p. 1).† In addition to the diagnostic testing, documentation from Huntington stated that the student received 34 hours of individual instruction between December 20, 2004 and January 12, 2005 (Parent Ex. A). At Huntington the student received tutoring services in math and reading (id.). The director of Huntington indicated that the student's initial tutoring sessions began at the kindergarten level in both subjects.† His "verbal program" consisted of instruction in visual discrimination, phonics and sight word memorization, while he received math tutoring focusing on basic addition of whole numbers. †††††
The CSE met on March 15, 2005 for an annual review (Dist. Ex. 11 at pp. 1, 2).† The CSE offered a 12:1:1 special class in a special school from March 29, 2005 to March 15, 2006 with the related service of speech-language therapy twice weekly in a group of eight for 45-minute sessions (Dist. Ex. 11 at pp. 1, 2, 9).† The CSE changed the classification of petitionerís son from a student with a speech or language impairment (see Dist. Ex. 3 at p. 1) to a student with mental retardation (Dist. Ex. 11 at p. 1).† Of note is that the record does not reflect that a psychologist or speech-language pathologist, who may have provided input as to the appropriateness of the change, was present at the CSE meeting (Dist. Ex. 11 at p. 2).† The parent's attorney indicated that she was not aware of the change in the student's classification until the day before the hearing when she received the IEP (Tr. p. 24) and the board of education representative at the hearing testified that no testing was conducted prior to the change in classification (Tr. p. 21).† Although petitionerís attorney stated that petitioner disagreed with the student's change in classification she did not request that the impartial hearing officer make a ruling on that issue at the hearing (Tr. p. 26).† The student continued to attend OTC (see Tr. pp. 27, 30).
Petitioner requested an impartial hearing on April 7, 2005, seeking "remedial tutoring"† (IHO Decision, p. 2).† The impartial hearing was held on May 5, 2005.† At the impartial hearing petitioner asserted, inter alia, that: 1) her son was not progressing academically at OTC because it had not provided her son with the individualized instruction in reading, writing, and mathematics; 2) that the March 2005 IEP was not appropriate; and 3) that the student needed additional tutoring to address his delayed skills (Tr. pp. 26-28, 30, 61-62).† Petitioner more specifically asserted that the March 2005 IEP did not reflect the results of the studentís evaluations, did not establish annual goals relating to his needs, and did not provide for all appropriate special education services (Tr. pp. 61-62).† Petitioner requested that respondent be ordered to provide payment for 364 hours of additional tutoring at Huntington (Tr. pp. 27-28; see Parent Ex. A).† Respondent asserted that petitionerís impartial hearing request was limited to a request for tutoring and did not raise issues relating to the appropriateness of his program or IEP, and that petitionerís claim was for compensatory education (Tr. pp. 11-12, 66).† It also contended that the OTC program and IEP were appropriate (see Tr. pp. 10-16, 65, 66).†
The impartial hearing officer rendered her decision on May 23, 2005.† Consistent with the framing of the issue by petitioner, the impartial hearing officer viewed petitionerís claim as one for reimbursement for educational services and denied petitionerís request for payment of 364 hours of tutoring (see Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359 ).1† She concluded that respondent did not meet its burden of demonstrating the appropriateness of the program recommended by its CSE (IHO Decision, p. 5).† She based this determination on the failure of respondent to present evidence concerning the program in which the student was enrolled and whether that program met the studentís identified special education needs in the least restrictive environment (LRE).† However, she also concluded that petitioner did not meet her burden of showing that the requested program at Huntington would address the studentís special education needs. She further concluded that there was insufficient justification for 364 hours of tutoring (IHO Decision, p. 6).† The impartial hearing officer ordered the CSE to reconvene on or before June 15, 2005, to consider the appropriateness of the studentís program, and if necessary, create a new IEP (id.).
Petitioner appeals the impartial hearing officerís denial of the requested tutoring.† She claims that respondent has failed to provide her son with an appropriate program, that the requested hours of tutoring at Huntington are appropriate, and that the equities support her request.† Respondent asserts that the impartial hearing officer erred in deciding the matter using the Burlington analysis, that the issue presented actually involves a request for compensatory services and, further, that an award of compensatory services to petitionerís son is not appropriate.† Alternatively, respondent contends that, utilizing the Burlington criteria, petitioner did not show that the requested tutoring was appropriate and, therefore, the impartial hearing officerís decision should not be annulled.†
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ßß 1400 - 1487) is to ensure that students with disabilities have a FAPE available to them (20 U.S.C. ß 1400[d][A]).2† 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. ß 1401[D]; 34 C.F.R. ß 300.13; see 20 U.S.C. ß 1414[d]).† 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 ; 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 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 ).† 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]; Briere 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 LRE (20 U.S.C. ß 1412[a][A]; 34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]).
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. ß 300.347[a]; see also 8 NYCRR 200.4[d][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 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. ß 300.347[a]; see 8 NYCRR 200.4[d][iii]).
I concur with the impartial hearing officer that respondent did not meet its burden of demonstrating that the March 15, 2005 IEP was reasonably calculated to confer educational benefit.† I find that the March IEP was based upon inadequate evaluative data and was inadequate in terms of required content and substance.
The record does not demonstrate that the CSE had sufficient evaluative data when it formulated the March IEP.† Notwithstanding that the speech-language evaluation indicated that petitionerís son exhibited "severe auditory processing delays" and that his IEP stated he "processes information slowly" (see Dist. Exs. 6, 11 at pp. 2, 3), there is no evidence that respondent conducted an evaluation of the studentís auditory processing skills.† Further, respondentís most recent evaluation stated that the studentís speech and language delay appear to affect his cognitive development "pervasively and negatively" (Dist. Ex. 4 at p. 3) and a speech report showed ďa severe and serious expressive and receptive language deficitĒ (Tr. p. 22).† The most recent speech-language evaluation in the record was conducted in July 2001 (Dist. Ex. 6).† There is no information to suggest that one has been done since.† Moreover, that evaluation described petitionerís son as "functioning severely below average in all areas of communication" (id.).†† In order to make an appropriate recommendation, it is necessary to have adequate and sufficient evaluative information (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ., Appeal No. 02-008).† The CSE should obtain and review the results of an auditory processing skills evaluation and a speech-language evaluation of the student.
The March IEP does not contain adequate statements of the studentís present level of performance. The IEP's present levels of performance and descriptions of the student's needs contain cursory statements and global descriptions (see Dist. Ex. 11 at pp. 3-4) and as such do not provide the information required by 8 NYCRR 200.4(d)(2)(i) and 34 C.F.R. ß 300.347(a)(1).† For example the statement: "[the student] shows difficulty with understanding concepts and problem solving" (Dist. Ex. 11 at p. 3) does not tell the reader what specific concepts (time, money, prepositions, etc,) and what kinds of problems (math, social situation, verbal, nonverbal) cause the student difficulty.† The present levels of performance do not discuss the student's abilities in math, phonemic awareness and orientation skills (time concepts) that were identified as areas of deficit on the most recent comprehensive evaluation of the student (Dist. Ex. 4 at p. 4).† There is also insufficient information about his present levels of performance pertaining to reading skills (see Dist. Ex. 11 at pp. 3, 4), which is another area of significant need (see Dist. Ex. 4 at p. 4).
There is insufficient information regarding the student's speech and language skills, with the exception of the fact that the student "processes information slowly" and "can follow simple 2 step directions independently" (Dist. Ex. 11 at p. 3) which could be interpreted as comments that speak to his receptive language skills.† However, these statements are not sufficient to present an adequate picture of the student's receptive language abilities. There is no information about the student's expressive language skills, except a comment that he "likes to participate in social conversations" (Dist. Ex. 11 at p. 4), however, this does not provide the reader with a sense of the student's success with those conversations, or any specific information regarding his expressive language abilities.† Given that the most recent comprehensive evaluation states repeatedly that the student exhibits speech delays that among other things "appears to affect his cognitive development pervasively and negatively" (Dist. Ex. 4 at pp. 2-4), and the most recent speech-language evaluation in the record states that the student is functioning "severely below average in all areas of communication" (Dist. Ex. 6 at p. 2), the March IEP should have addressed this domain more adequately.
The statements regarding the student's academic management, social-emotional and health/physical management needs are equally vague (Dist. Ex. 11 at pp. 3-5).† One statement regarding the student's social development needs indicates that "[the student] requires adult attention in a setting with a 12:1:1 ratio," however does not state why (Dist. Ex. 11 at p. 4). There is no information contained in the student's social emotional present level of performance statement that identifies why the student requires this level of adult attention.† Although the previous IEP stated that the parent reported to the CSE that the student has Soto Syndrome (Dist. Ex. 3 at p. 5), this condition is not included in the March 2005 IEP.† Additionally, the needs statement under health/physical management needs does not explain why the student requires a 12:1:1 adaptive physical education class (Dist. Ex. 11 at p. 5).†
††††††††††† In addition, there are no mathematic annual goals or short-term objectives contained in this IEP, despite this domain identified as an area of need per the most recent comprehensive evaluation of the student (Dist. Ex. 4 at p. 4).†
As to the studentís speech and language needs, the studentís IEP indicated that he would receive speech and language therapy twice per week for 45 minutes with each session in a group of eight (Dist. Ex. 11 at p. 9).† The most recent speech-language evaluation contained in the record from July 2001 recommended twice weekly 30-minute sessions in a group of two, and one individual speech session per week for the student (Dist. Ex. 6 at p. 2).† The evaluator that assessed the student described him as "functioning severely below average in all areas of communication" (id.).† Given that the studentís speech and language delay appeared to affect his cognitive development "pervasively and negatively" (Dist. Ex. 4 at p. 3) and the most recent speech-language evaluation in the record recommended individual and smaller group speech therapy (Dist. Ex. 6 at p. 2), it appears that the studentís speech and language needs have not been adequately addressed by this IEP.
††††††††††† Moreover, under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including higher education, if appropriate, employment, and independent living (20 U.S.C. ß 1401; see 34 C.F.R. ß 300.29; N.Y. Educ. Law ß 4401; 8 NYCRR 200.1[fff]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11).
††††††††††† In October 2003 the parent requested that the student be placed in a program that offered "life skills" (Tr. p. 10) and the board of education representative at the hearing testified that his current placement offered "a little vocational" programming (Tr. p. 14). The most recent vocational assessment information contained in the record from December 2003 indicated that the student likes to work with his hands and would like to work with motor vehicles and/or with animals (Dist. Ex. 4 at p. 4). The school psychologist stated that the student continued to need vocational guidance, instruction and knowledge (id.), and further noted that the world of work and independent living are approaching for this student (Dist. Ex. 4 at p. 5).† Nevertheless, the March 2005 IEP fails to contain an adequate statement of the student's individualized post-transition needs, taking into consideration his preferences and interests (Dist. Ex. 11 at p. 10). This IEP does not identify specific transition service needs, or provide for a specific coordinated set of transition activities in instruction, related services, community experiences, development of employment and other post-school adult living objectives.† Finally, the parent is listed as the sole responsible party for the student's independent living goal of investigating new and unfamiliar leisure/recreational activities, however, resources and support services provided to the parent in order to accomplish this goal are not specified (Dist. Ex. 11 at p. 10).††
††††††††††† I find that the proposed transition plan does not reflect the student's individual needs, specifically his communication delays and cognitive deficits (Dist. Exs. 4, 6).† Nor does it reflect the student's strengths, such as his social nature (Tr. pp. 10, 39; Dist. Ex. 4 at p. 2, Dist. Ex. 11 at p. 4), positive response to verbal praise as a motivator (Dist. Ex.† 4 at p. 2, Dist. Ex. 11 at p. 3) or stated interests in motor vehicles and animals (Dist. Ex. 4 at p. 4). A more thorough discussion of these factors, coupled with an updated vocational assessment would have enabled the March 2005 CSE to recommend more specific transition activities related to developing vocational skills. The limited vocational assessment information in the record from December 2003 is not reflected in the March 2005 IEP.†
For the reasons listed above, I agree with the impartial hearing officer that respondent did not meet its burden of showing that the recommended program was reasonably calculated to confer educational benefit (IHO Decision, p. 5).† In addition, I do not believe that the record contains enough information regarding the student's present levels of academic performance or a description of his current program sufficient to determine what level of additional services are appropriate to remedy the denial of a FAPE.
I agree with respondentís contention, given the facts of this case, that the Burlington analysis is not the most appropriate analysis for petitionerís request for remedial tutoring, as the essence of petitionerís claim is that respondent did not provide a FAPE to the student at OTC and that additional tutoring services at Huntington are an appropriate remedial remedy.3† I will now consider respondentís argument with respect to ďcompensatory services.Ē† Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.† It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).† In this case, there is nothing to indicate that there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.† Here any deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction (Application of the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 01-094).† State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).† In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047).† As explained above, respondent has failed to demonstrate that it offered petitionerís son a FAPE through its March 15, 2005 IEP.† However, I concur with the impartial hearing officerís determination that the award of tutoring services requested by petitioner be denied.† The record does not contain sufficient information relating to the studentís needs, present levels of academic performance, and his program at OTC to determine what additional services he would need to remedy the deprivation of services caused by the denial of a FAPE.† Accordingly, I am unable to determine what additional services may be warranted in this case.† However, I will direct the CSE to reconvene and consider what additional services are necessary to compensate for respondentís failure to provide petitionerís son a FAPE.† Because of the evidence with respect to the studentís speech-language needs (Dist. Ex. 4 at pp. 2, 3, Dist. Ex. 6, Dist. Ex. 9 at p. 4) and the significant disparity between the frequency and type of speech-language services provided to him at OTC and that recommended by the most recent speech-language evaluation (Dist. Ex. 6), pending the CSEís review of the speech-language evaluation provided for herein, I will order that respondent provide petitionerís son with 30 minutes of individual speech-language therapy once a week and 30 minutes of speech-language therapy in a group of two, twice a week.
I have considered the partiesí remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent indicated;
IT IS FURTHER ORDERED that, unless the parties otherwise agree, respondent shall convene a CSE meeting within 30 days from the date of this decision, and determine whether the student is in need of additional services because of the denial of a FAPE as discussed above and prepare an appropriate IEP consistent with the requirements of 8 NYCRR 200.4;
IT IS FURTHER ORDERED that if the CSE determines that the student is in need of additional services because of the denial of a FAPE, those services shall be provided to the student; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, prior to the CSE meeting ordered above, respondent shall obtain an evaluation of the studentís auditory processing skills, a speech-language evaluation, an adaptive behavior assessment, and conduct an appropriate vocational assessment; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, pending the CSEís recommendation regarding appropriate speech-language therapy which takes into account the results of the speech-language evaluation ordered above, respondent shall commence immediately to provide petitionerís son with 30 minutes of individual speech-language therapy once a week and 30 minutes of speech-language therapy in a group of two, twice a week.
Albany, New York
August 24, 2005
PAUL F. KELLY
STATE REVIEW OFFICER
1† The impartial hearing officer also concluded that petitioner failed to establish a claim that would merit an award of compensatory education.
2† 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.
3 †To the extent that a Burlington/Carter analysis does apply, I concur with the impartial hearing officerís determination that petitioner has not met her burden of demonstrating that the services sought are appropriate to the studentí needs.