The State Education Department
State Review Officer

 

No. 05-095

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pawling Central School District

Appearances:
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel

Girvin & Ferlazzo, P.C., attorney for respondent, Tara L. Moffett, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter’s tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year.  The appeal must be dismissed.

The impartial hearing began on May 19, 2005 and continued over five days until June 16, 2005.  Petitioners’ daughter was nine years old at the time of the impartial hearing and attending the fourth grade at Kildonan, where petitioners unilaterally placed her for the 2003-04 (third grade) and 2004-05 school years (Joint Exs. 2, 6, 20, 44; May 19, 2005 Tr. pp. 90; June 13, 2005 Tr. p. 758).  Kildonan is a private school for children with language-based learning disabilities (June 13, 2005 Tr. pp. 741-57).   Kildonan has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (June 13, 2005 Tr. p. 814).  The child’s eligibility for special education programs and services and classification as a child with a learning disability (LD) are not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]; Joint Exs. 2, 6).  The child has been the subject of a previous appeal, thus, her educational history and evaluations will not be repeated here in detail (see Application of the Bd. of Educ., Appeal No. 04-080; June 3, 2005 Tr. pp. 335-39).1

Petitioners enrolled their daughter in respondent’s school district for second grade for the 2002-03 school year (June 8, 2005 Tr. pp. 654-55).  After experiencing difficulties in her second grade class, and with petitioners’ consent, respondent placed the child in a first grade class and enrolled her in respondent’s Reading Recovery Program (June 8, Tr. pp. 654-59; see Application of the Bd. of Educ., Appeal No. 04-080).

By letter dated October 4, 2002, petitioners referred their daughter to respondent’s Committee on Special Education (CSE) for an individual evaluation and determination of eligibility for special education programs and services (Dist. Ex. 33).  After evaluating the child, the CSE convened on November 26, 2002 and determined the child ineligible for special education (Parent Ex. 46).  The child completed the 2002-03 school year in respondent’s first grade class.  In July 2003, petitioners’ privately obtained reading specialist, who had been hired by petitioners to tutor the child during the summer, reviewed report cards and documents previously submitted to the CSE, and she determined that petitioners’ child was “dyslexic” which ultimately led to the child’s unilateral placement at Kildonan for 2003-04 (Parent Ex. 44; June 8, 2005 Tr. pp. 662-63, 665-67).

By letter dated August 4, 2003, petitioners requested a re-evaluation or reconsideration by respondent’s CSE of their daughter’s need for an individualized education program (IEP) (Dist. Ex. 34).  By letter dated August 29, 2003, petitioners notified respondent that they had enrolled their daughter at Kildonan for the 2003-04 school year (Parent Ex. 44).  Petitioners requested an impartial hearing regarding issues of classification and tuition reimbursement and sought an immediate independent educational evaluation (IEE) at public expense in December 2003 (see Application of the Bd. of Educ., Appeal No. 04-080).2  The IEE was subsequently conducted in March 2004 (Joint Exs. 8, 9; June 8, 2005 Tr. pp. 670-71).

The March 2004 psychoeducational IEE included administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV), which yielded a full scale IQ score of 123 (superior range) (Joint Ex. 8, Table and Graphs Report for WISC-IV and WIAT-II, p. 1). Age-based sub-test results on the Wechsler Individual Achievement Test–II (WIAT-II) indicated that the child achieved standard (and percentile) scores of 89 (23) for word reading, 117 (87) for reading comprehension, and 101 (53) for pseudoword decoding (id. at p. 2).  She achieved subtest scores of 89 (23) for numerical operations, 119 (90) for math reasoning, and 67 (1) for spelling (id.). The evaluating psychologist determined that “[h]er learning pattern fits the profile for Specific Learning Disabilities also known as Dyslexia” and that the CSE should review her for classification as “Learning Disabled” (Joint Ex. 9 at p. 7). The evaluator concluded that her diagnosis was substantiated by the child’s academic history, discrepancies within the WISC-IV protocol and discrepancies between potential (WISC-IV) and achievement (WIAT-III) (id.).

On March 24, 2004, respondent’s Subcommittee on Special Education (Sub-CSE) met to perform an initial referral/review and to prepare an IEP for 2003-04 (Joint Ex. 8; May 19, 2005 Tr. pp. 111-12).  Respondent notified petitioners of the Sub-CSE meeting by letter dated March 11, 2004 (Joint Ex. 1).  Respondent’s notice of the Sub-CSE meeting indicated that the following people were expected to attend:  respondent’s director of special education, respondent’s psychologist, a special education teacher, a regular education teacher, petitioners, petitioners’ psychoeducational evaluator who performed the March 2004 IEE (to be available by phone), anyone petitioners wished to bring who had knowledge or special expertise about the child, and a teacher from Kildonan (Joint Ex. 1; May 19, 2005 Tr. pp. 113-14).

The Sub-CSE classified the child as LD and recommended placement in a regular education classroom for language-arts and math, indirect consultant teacher services for two hours per week, and specialized reading in the reading room for 40 minutes, five times per week, with a 5:1 student to staff ratio (Joint Ex. 2 at p. 1; May 19, 2005 Tr. pp. 114-42).  The Sub-CSE reviewed and considered a psychological report, an educational evaluation, a social history, a physical examination, and teacher reports from Kildonan (see Joint Ex. 2 at p. 5; Joint Exs. 8, 9, 10 (documents dated between November 26, 2003 and February 24, 2004); May 19, 2005 Tr. pp. 114-42).  Petitioner, the child’s mother, testified that she attended the initial referral/review meeting, which lasted approximately 2 1/2 to 3 hours (June 3, 2005 Tr. pp. 357-58; June 8, 2005 Tr. p. 625).  Petitioner testified that she had an opportunity to participate in discussions and in the development of the 2003-04 IEP (June 3, 2005 Tr. pp. 358-62, 367-74).  In addition, petitioner testified that the Sub-CSE read through the IEE report from March 2004 “word for word and . . . we lifted whole sections of it for recommendations and the teachers were identifying goals and objectives as best they could based on a lot, most of what [the evaluator] had said”  (June 3, 2005 Tr. p. 359).  Petitioner also testified that she agreed with the classification and that she did not object to the recommendations (June 3, 2005 Tr. pp. 374-79)

At the conclusion of the March 24, 2004 Sub-CSE meeting, the child’s mother was advised to review the 2003-04 IEP with Kildonan staff members to obtain input from individuals currently working with the child in order to incorporate any suggestions from those at Kildonan at the next meeting in May in the development of the child’s IEP for 2004-05 (May 19, 2005 Tr. pp. 142-43).  Petitioners received a copy of the 2003-04 IEP via certified mail on April 15, 2004 (IHO Ex. 15).  Petitioner testified that she reviewed the IEP with Kildonan staff and sought their input, which she then passed along to the members of the Sub-CSE at the next meeting, which occurred on June 23, 2004, to develop the 2004-05 IEP (June 3, 2005 Tr. pp. 363-66).

By letter dated May 19, 2004, respondent notified petitioners of the Sub-CSE’s intention to perform the child’s annual review for the 2004-05 school year on May 26, 2004 (Joint Ex. 3; May 19, 2005 Tr. pp. 143-48).  The letter identified the following as individuals expected to attend the meeting:  respondent’s director of special education, a regular education teacher, a special education teacher, respondent’s psychologist, the academic dean at Kildonan (via telephone), anyone petitioners wished to bring who had knowledge or special expertise about the child, and petitioners (Joint Ex. 3; May 19, 2005 Tr. pp. 143-48).  A copy of the Procedural Safeguards Notice accompanied the May 19, 2004 letter to petitioners (Joint Ex. 3; May 19, 2005 Tr. pp. 144-47).  The child’s mother cancelled the May 26, 2004 meeting due to her own illness, and the annual review was then rescheduled for June 23, 2004 (Joint Ex. 4; May 19, 2005 Tr. pp. 148-49).  Respondent’s director of special education testified that the academic dean at Kildonan was on the telephone on May 26, 2004 when the child’s mother called to cancel the meeting (May 19, 2005 Tr. p. 151).

The notice for the June 23, 2004 annual review, dated June 15, 2004, advised petitioners that the following were expected to attend the Sub-CSE meeting:  respondent’s director of special education, the chairperson, a regular education teacher, a special education teacher, respondent’s psychologist, petitioners, and anyone petitioners wished to bring who had knowledge or special expertise about the child (Joint Ex. 4).  Respondent’s director of special education testified that a member of Kildonan was invited to attend the meeting, but was unable to attend due to the fact that Kildonan was not in session at the time of the annual review (May 19, 2005 Tr. pp. 150-51).  The academic dean at Kildonan also testified that he would have been available for “roughly a week or so” after June 6, 2004, the end of the academic year at Kildonan, and would not have been able to attend a meeting after that time (June 13, 2005 Tr. p. 837).

The Sub-CSE met on June 23, 2004, to develop the child’s 2004-05 IEP with the following in attendance:  respondent’s director of special education, a regular education teacher, a special education teacher, the child’s mother and father and two individuals identified as respondent’s psychologist and respondent’s school psychologist (Parent Ex. 24).

The Sub-CSE used the 2003-04 IEP developed in March 2004 as a “stepping stone” to develop the child’s 2004-05 IEP (May 19, 2005 Tr. p. 150).  Respondent’s director of special education testified that the Sub-CSE “went through every single area of the 2003-2004 IEP, performance, the needs section. . . . And we just went through everything”  (id.).  In addition to reviewing the 2003-04 IEP, the Sub-CSE reviewed and considered a classroom observation of the child at Kildonan that had been conducted on May 26, 2004, and updated teacher reports, testing, and report cards from Kildonan (Joint Exs. 7, 10; May 19, 2005 Tr. pp. 150-58).  The Sub-CSE recommended a continuation of services as set forth in the 2003-04 IEP, including:  indirect consultant teacher services for two hours per week, placement in a regular education classroom for language-arts and math, and specialized reading in the reading room for 40 minutes, five times per week, with a 5:1 student to staff ratio (Joint Exs. 5, 6; May 19, 2005 Tr. pp. 152-67).  The Sub-CSE also recommended testing accommodations (Joint Ex. 6 at p. 1).

Respondent’s director of special education testified that both parents participated throughout the entire June 23, 2004 meeting, and the 2004-05 IEP reflected that “[a]mendments were made in response to concerns raised by the [parents]” (Joint Ex. 6 at p. 5; May 19, 2005 Tr. p. 154).  Petitioner, the child’s mother, testified that she had an opportunity to participate at the meeting and shared input from Kildonan staff (June 3, 2005 Tr. pp. 367-68).   Petitioner, the child’s father, also testified that he participated in the June 23, 2004 meeting and that both he and the child’s mother had an opportunity to ask questions and discuss the 2004-05 IEP (June 8, 2005 Tr. pp. 683-92, 696-99, 706-08; June 16, 2005 Tr. pp. 1025-26).  The child’s father testified that the June 23, 2004 meeting took approximately 1 1/2 to 2 hours (June 8, 2005 Tr. p. 685).

The completed 2004-05 IEP was sent to petitioners by letter dated August 5, 2004 (Joint Ex. 5).  By letter dated August 21, 2004, petitioners advised respondent that the child had been enrolled in the fourth grade at Kildonan for the 2004-05 school year and that petitioners rejected the 2004-05 IEP because it was not an appropriate placement and it did not “meet [the child’s] needs for systematic, intensive one-on-one multi-sensory remediation as provided in her current placement” (Parent Ex. 20).  Petitioners’ August 21, 2004 letter did not seek an impartial hearing with respect to the 2004-05 IEP (id.).

Respondent received a letter from petitioners on January 7, 2005, dated January 5, 2005, which stated:  “The delay of required payment, by [respondent], as to the funding of current placement (status quo) of our daughter . . . is unacceptable and now out of control.  The school district’s hold up in paying us tuition reimbursement for 2003-04 and tuition payments for 2004-05 have caused us tremendous hardship.  I have spoken with our counsel and we request an impartial hearing be scheduled to see these payments are expedited. Thank you”  (IHO Ex. 3).  An impartial hearing officer was appointed on March 10, 2005 in response to petitioners’ request for an impartial hearing (IHO Ex. 10 at tab 11).  A conference call between the parties on March 14, 2005 identified the issues, and the parties tentatively agreed to submit briefs on the issues regarding liability for the child’s 2004-05 tuition under the pendency provision of the Individuals with Disabilities Education Act (IDEA) (id.).  The impartial hearing officer sent a letter to the parties outlining what had taken place during the conference call and advising them of their legal rights (id.).

By form dated March 12, 2005, which respondent’s counsel received via facsimile on March 14, 2005, petitioners’ counsel alleged a denial of a free appropriate public education (FAPE) for 2004-05, an inappropriate IEP, and failure by respondent to support the child’s change in placement from a private school to public school (IHO Ex. 4).  The notice requested an appropriate IEP for the 2004-05 school year, an intensive educational placement, access to status quo at Kildonan and an order that Kildonan continues to be appropriate (id.).  On March 22, 2005, respondent appointed a second impartial hearing officer to hear the issues as set forth in the March 12, 2005 notice (IHO Exs. 1, 2).

Due to difficulties in scheduling briefing deadlines with respect to petitioners’ January 5, 2005 letter, the impartial hearing officer recused himself by letter dated March 18, 2005 (IHO Ex. 10 at tab 14).  Respondent immediately appointed a third impartial hearing officer on March 22, 2005 as a replacement (IHO Ex. 10 at tab 15).  After lengthy discussions at pre-hearing conferences, the parties agreed to allow the third impartial hearing officer to hear all issues pertaining to the 2004-05 school year (Apr. 1, 2005 Tr. pp. 6-29, 34-47).  Petitioners’ counsel then sent a form, dated March 30, 2005, to the third impartial hearing officer and respondent’s counsel, which was identical to the March 12, 2005 form, except for a new allegation that petitioners sustained a “denial of due process hearing within 45 days from request” (IHO Ex. 5).  The impartial hearing began on May 19, 2005.

Both parties presented testimonial and documentary evidence during the impartial hearing, which concluded after five days on June 16, 2005.  The impartial hearing officer granted petitioners’ counsel’s request for an extension until July 22, 2005 to close the record (June 13, 2005 Tr. pp. 732-33).  The impartial hearing officer rendered her decision on August 4, 2005,3 and the present appeal ensued (IHO Decision, p. 29).

In her decision, the impartial hearing officer held that although respondent violated the 45-day rule with respect to the initial appointment of a hearing officer, the procedural inadequacy did not impede the child’s right to a FAPE, it did not significantly impede petitioners’ opportunity to “participate in the decision-making process regarding the provision” of a FAPE, and it did not cause “a deprivation of educational benefits” (IHO Decision, pp. 16-18).

The impartial hearing officer further held that respondent complied with the procedural requirements of the IDEA “relating to the development of the student’s program for the 2004/05 school year,” noting the following: 

The testimony and documentary evidence shows that the District provided the parents with appropriate notice of CSE meetings; provided ample time to discuss the recommendations it made for the student; that the parents fully participated in the development of the IEP; that there was sufficient evaluative information upon which to make educational recommendations, including results of standardized testing provided by [petitioners’ privately obtained psychologist] and the Kildonan School, educational records from the Kildonan School, and a classroom observation of the student conducted at the Kildonan School by the District’s school psychologist, which were all relied upon by the Sub-CSE in making its educational recommendations; that the Sub-CSE was composed of all of the required members; that the recommendations for the 2004/05 school year were made in a timely manner; and that the parents were provided with copies of their due process rights (R. 154-159, 171-174, 358-99, 431-432, 526, 527-531, 626-627, 683-692, 696-699, 707-708, 1025-1032; Exs. J-3, J-4, J-5, J-6, J-7, J-8, J-9, J-10, J-11, SD-14, SD-15, P-24, P-27, P-36, P-37, P-41). 

(IHO Decision, pp. 18-19).

            The impartial hearing officer also held that the 2004-05 IEP was reasonably calculated to enable the child to receive educational benefits (IHO Decision, p. 19).  She opined that while she agreed that the recommended program was “not optimal,” the IDEA did not “require that schools develop IEPs that maximize the potential of disabled students or provide everything that might be thought desirable to loving parents” (id.).

The impartial hearing officer held that the 2004-05 IEP accurately reflected the results of evaluations to identify the child’s needs, and moreover, that petitioners’ testimony acknowledged that the child’s needs were accurately reflected in the IEP (IHO Decision, pp. 20-21).  Finally, the impartial hearing officer noted that the “final issue to be considered in determining whether the district has offered an appropriate IEP is whether the IEP provides for the use of appropriate educational services” (IHO Decision, p. 21).  She concluded, based upon testimony presented, that respondent’s recommended specialized reading program/small group reading instruction accurately addressed the child’s individual needs in reading, writing and spelling (IHO Decision, pp. 21-24), and that the inclusion classes for math and language-arts, with the special education support, accurately addressed the child’s needs in these areas of deficit (IHO Decision, pp. 24-25).

The impartial hearing officer then discussed, in detail and with support from the record, respondent’s recommendations for inclusion classes for math and language-arts, as well as respondent’s recommendations for indirect consultant teacher services, the use of a teaching assistant in those particular classes, and the methods respondent recommended to ensure that the curriculum was presented in a “manner responsive to the [child’s] needs” (IHO Decision, pp. 24-25).  She held that respondent’s recommendations were timely, appropriate and “would have afforded the [child] a reasonable opportunity of achieving her IEP goals and objectives (IHO Decision, pp. 25-27).  In so holding, the impartial hearing officer remanded to respondent’s Sub-CSE the issue of whether the child requires an extended school year, “in light of the information that was brought forth during the course of this hearing” (IHO Decision, pp. 26-27), and denied petitioners’ request for tuition reimbursement for the 2004-05 school year at Kildonan (IHO Decision, p. 27).

On appeal, petitioners contend the following issues:  1) respondent failed to obtain a classroom observation as required for an initial classification; 2) respondent failed to convene a properly composed CSE at any time and therefore, the 2004-05 IEP is a nullity; 3) respondent failed to include a representative from Kildonan at the CSE meetings in March or June; 4) respondent failed to include a parent member at the CSE meetings in March or June; 5) respondent’s regular education teacher, who participated in the March and June meetings, was inappropriate; 6) respondent failed to provide petitioners with notice of the proposed 2004-05 IEP until the end of August; 7) respondent failed to provide petitioners with requested information, such as class profiles and class sizes; 8) respondent failed to identify “through the IEP or otherwise” information requested by petitioners about the recommended reading program; 9) respondent denied petitioners access to the IDEA complaint process, to an impartial hearing, and the final decision within 45 days after receiving a request for a hearing; and 10) respondent failed to develop an appropriate IEP for 2004-05.

Respondent contends that the impartial hearing officer’s decision should be sustained in all respects and that respondent met its burden of proof regarding the provision of a FAPE to the child for 2004-05.

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]).4 A FAPE includes 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]).5 A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were 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, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-16 [1993]; Cerra v. Pawling Cent. Sch. Dist.,      F.3d    , 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000]).  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 (Carter, 510 U.S. at 14)).  The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; M.S., 231 F.3d at 102; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of the Bd. of Educ., Appeal No. 03-062).

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 [1982]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim, 346 F.3d at 381).  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 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]).

After carefully reviewing the entire record, I find that the impartial hearing officer, in a thorough, well-reasoned, and well-supported decision, correctly held that respondent sustained its burden of proving that it offered timely and appropriate recommendations for special education services for the 2004-05 school year, and therefore, provided the child with a FAPE for 2004-05 (IHO Decision, pp. 13-25, 27).  The impartial hearing officer applied the proper legal analysis in determining whether the child was offered a FAPE and whether the parents were entitled to tuition reimbursement.  The impartial hearing officer applied the correct standard to each of petitioners’ claimed procedural inadequacies (see IHO Decision, pp. 13-20).  She also applied the correct standard in that a district is not obligated under the IDEA to maximize the child’s potential but is obligated to provide meaningful access to education so as to allow more than merely trivial advancement (Rowley, 458 U.S. at 197; Walczak, 142 F.3d at 133, 124; Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]; see IHO Decision, pp. 19-27). The decision shows that the impartial hearing officer carefully considered all of the testimony and exhibits from both parties.  The record amply supports the impartial hearing officer’s conclusion that the child was provided with a program that was appropriate to her special education needs. In short, based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the hearing officer (34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]). I, therefore, adopt the findings of fact and conclusions of law of the impartial hearing officer, with the following clarifications (see Application of the Bd. of Educ., Appeal No. 03-085; Application of a Child with a Disability, Appeal No. 02-096).

Although they do not dispute their daughter’s classification and eligibility for special education programs and services, petitioners claim respondent failed to obtain a classroom observation as required for an initial classification.  A classroom observation in the student’s then “current educational placement” is required in an initial classification (34 C.F.R. § 300.533[a][1][ii]; 8 NYCRR 200.4[b][1][iv]), and, when appropriate, in any subsequent annual evaluation (34 C.F.R. § 300.533[a][1][ii]; 8 NYCRR 200.4[b][5][i]).   While a classroom observation is used to determine the child’s current levels of performance and to help develop goals and objectives, the record in this case demonstrates that respondent’s March 24, 2004 Sub-CSE relied upon sufficient evaluative information to make the initial classification, to develop goals and objectives, and to determine the child’s current levels of performance; furthermore, the record shows that petitioners agreed with and did not object to the classification, the recommendations, or the goals and objectives set forth in the 2003-04 IEP.  In addition, the record shows that respondent completed a classroom observation prior to the June 23, 2004 annual review and utilized the report to prepare the IEP (Joint Exs. 6, 7).  While the classroom observation did not take place prior to the initial classification on March 24, 2004, I find no evidence in the record that respondent’s failure to perform the observation prior to the initial classification resulted in a loss of educational opportunity, seriously infringed upon petitioners’ opportunity to participate in the process of formulating the IEP, compromised the development of an appropriate IEP in a way that deprived the child of educational benefits under the IEP, or  otherwise substantively rendered the eligibility evaluation inadequate.  The alleged failure to obtain a classroom observation does not, in this case, constitute a denial of a FAPE.

Petitioners also allege on appeal that respondent failed to convene a properly composed CSE by failing to include a representative from Kildonan at the CSE meetings in March or June, by failing to include an additional parent member at the CSE meetings in March or June, and by failing to include an appropriate regular education teacher in the March and June meetings.6

The record demonstrates that respondent convened a Sub-CSE meeting on March 24, 2004 to perform the initial classification and prepare the 2003-04 IEP7 and that respondent convened a Sub-CSE meeting on June 23, 2004 to perform the child’s annual review and prepare the 2004-05 IEP.  Under New York State law, such subcommittees have the authority to perform the same functions as the CSE, with the exception of instances in which a student is considered for initial placement in a special class, or a student is considered for initial placement in a special class outside of the student’s school of attendance, or whenever a student is considered for placement in a school primarily serving students with disabilities or a school outside of the student’s district (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]).  The subcommittees are required to evaluate each child with a disability at least annually and report to the CSE (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][6]).  In addition, the subcommittee must immediately refer to the CSE, upon written request of the parent, any matter in which the parent disagrees with the subcommittee’s recommendation concerning a modification or change in the identification, evaluation, educational placement, or provision of a FAPE to the student (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][5]).  Each subcommittee is required to include as members: the student’s parents; one regular education teacher of the student (if the student is or may be participating in the regular education environment); one special education teacher of the student, or, if appropriate, a special education provider of the student; a representative of the school district involved in special education; an individual who can interpret evaluation results; such other persons having knowledge or special expertise regarding the student as the school district or parents shall designate; if appropriate, the student; and a school psychologist whenever a new psychological evaluation is being reviewed or a change to a more restrictive program is being considered; and such other persons having knowledge or special expertise regarding the student (N.Y. Educ. Law § 4402[1][b][1][d]; see N.Y. Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[c][2]).

As noted above, respondent, in accordance with New York State law, convened a Sub-CSE, instead of a full CSE, to perform the child’s annual review on June 23, 2004.  Moreover, the record indicates that the Sub-CSE of June 23, 2004 was appropriately comprised and consisted of the following members:  respondent’s director of special education, a regular education teacher, a special education teacher, the child’s mother and father, respondent’s psychologist, and respondent’s school psychologist.  Since New York State law does not require the presence of an additional parent member on a subcommittee, respondent did not commit a procedural violation with respect to the Sub-CSE’s composition.

Although a Kildonan staff member was not in attendance, the record demonstrates that respondent made good faith efforts to encourage the attendance of the academic dean or other staff, and in fact, the academic dean was present by telephone at the May 26, 2004 meeting and would have participated but for the mother’s last minute cancellation.  Petitioners fail to present any persuasive argument that a Kildonan staff member was required to be in attendance or present persuasive evidence that the absence of a Kildonan staff member resulted in a loss of educational opportunity, seriously infringed upon petitioners’ opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the child of educational benefits under the IEP.

The record indicates that the regular education teacher, who participated in both the March 24, 2004 and June 23, 2004 Sub-CSE meetings, last taught the child when she attended respondent’s district in 2002-03 (see Joint Ex. 2 at p. 5).  Respondent’s director of special education testified that the regular education teacher in attendance at the meetings “had [the child] in class and could have been her teacher, her general Ed teacher” (May 19, 2005 Tr. p. 114).  New York State law requires that the Sub-CSE include “one regular education teacher of the student whenever the student is or may be participating in the regular education environment” (8 NYCRR 200.3[c][2][ii].  The regular education teacher of the student with a disability must, “to the extent appropriate, participate in the development, review and revision of the student’s IEP, including assisting in the determination of (1) appropriate positive behavioral interventions and strategies for the student; and (2) supplementary aids and services, program modifications or supports for school personnel that will be provided for the student…” (8 NYCRR 200.3[d]).  The regular education teacher must also “participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child’s involvement and progress in the general curriculum and participation in the regular education environment” (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member “should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child” (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

I find that the record supports the conclusion that the regular education teacher who participated in the March and June Sub-CSE meetings to develop the child’s 2003-04 and 2004-05 IEPs was a proper member of the Sub-CSE.  The record indicates that the regular education teacher taught the child in 2002-03 and was capable of being the child’s fourth grade teacher had petitioners’ daughter returned to the district in 2004-05.  Evidence also suggests that the regular education teacher actively participated in the meetings (see Joint Ex. 2 at p. 5, Joint Ex. 6 at p. 5).  Petitioners present no evidence that the participation of the regular education teacher at these meetings in any way resulted in a loss of educational opportunity, seriously infringed upon the petitioners’ opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the child of educational benefits under the IEP.  Therefore, I concur with the impartial hearing officer’s determination that respondent’s June 23, 2004 Sub-CSE was properly comprised with respect to the required regular education teacher member.

Petitioners also assert on appeal that respondent failed to provide petitioners with notice of the proposed 2004-05 IEP until the end of August and that respondent failed to provide petitioners with requested information, such as class profiles and class sizes.  Both arguments are without merit and are wholly unsupported by the record.  Evidence presented at the impartial hearing indicates that respondent mailed the completed 2004-05 IEP by letter dated August 5, 2004, well before the start of the 2004-05 school year (Joint Ex. 5).  Petitioners present no evidence that they failed to receive the IEP prior to the start of the school year.  Recent case law held that “school districts must only ensure that a child’s IEP is in effect by the beginning of the school year and that the parents are provided a copy” (Cerra v. Pawling Cent. Sch. Dist., 2005 WL 2381962, at *7 (2d Cir. (N.Y.) Sept. 28, 2005) (NO. 04-5370-CV) (citing 34 C.F.R. §§300.342[a], 300.345[f]).  In that case, the Second Circuit determined that the school district met its legal obligation by providing the IEP before the first day of school (id.).

In the same case, the Second Circuit held that the “District was not obligated to provide student profiles for [the student’s] special education classes, particularly when they did not yet exist” (id.).  Petitioners’ assertion, therefore, that they were not provided with class profiles is also without merit.

As to the allegation regarding class sizes, the record indicates that petitioners were provided information regarding class sizes at the June 23, 2004 Sub-CSE meeting (IHO Decision, p. 24).

In addition to the alleged procedural violations, petitioners also claim that the 2004-05 IEP was substantively inappropriate.  In particular, petitioners assert that respondent’s Sub-CSE failed to identify “through the IEP or otherwise” information requested by the parents regarding the reading program to be used, as it failed to identify the type of multisensory instruction it proposed to provide to the student (Pet. ¶ 12).

I have carefully reviewed the IEP developed for the child on June 23, 2004, and I note that, although a Sub-CSE is not required to identify specific methodology, this IEP offers singularly specific descriptions of proposed strategies for addressing each of the child’s areas of deficit.

The child has deficits in reading decoding, reading fluency, writing, spelling and math computation (Joint Ex. 6 at p. 2, Joint Ex. 32 at pp. 587-90).  In reading, she attempts to employ the sound/symbol relationships she has mastered to decode each word and reads word-by-word, tracking with her finger as she reads (Joint Ex. 6 at p. 3, Joint Ex. 9 at p. 4).  This method of reading, accompanied by limited word recognition, limited sight vocabulary and relative weaknesses in working memory, processing speed, and long-term memory for words, affects the child’s reading fluency (Joint Ex. 6 at p. 2, Joint Ex. 9 at p. 6).  The June 23, 2004 IEP addresses the child’s decoding deficits with a goal for decoding, which states that drill cards will be used for repetition and review (Joint Ex. 6 at pp. 2, 5).  Objectives for the decoding goal specify that in addition to phonics drill cards, the Slingerland Word List will be used and materials identified as “Angling for Words” and “How To Spell” workbooks will also be employed (Joint Ex. 6 at p. 5).  To provide additional direction to the teacher who would implement this goal, the IEP lists those sound/symbol relationships the child has mastered, as well as those she has yet to learn (Joint Ex. 6 at p. 3).  A goal to address the child’s difficulty with reading fluency indicates that the “Read Naturally” program will be used, and that pre- and post-tests from the Read Naturally program will be administered to monitor progress (Joint Ex. 6 at pp. 5-6).  A goal to address deficits in sight word recognition indicates use of the Dolch Basic Sight Word List and Fry’s 300 Instant Sight Word List (Joint Ex. 6 at p. 7).

To address the child’s need to learn to spell high frequency words, her spelling goal indicates that flash cards would be used, as well as a program identified as “Simultaneous Oral Spelling” (Joint Ex. 6 at p. 6).  The proposed writing skills goal specifies use of writing skills workbooks to teach the mechanics of writing (id.).

Math goals and objectives for the child specify use of teacher-made flash cards and manipulatives to address the child’s difficulties with calculations and computation (Joint Ex. 6 at pp. 2, 7).  Use of manipulatives is consistent with descriptions of the child’s skill in developing and interpreting pictures and charts, as described by petitioners’ private evaluator (Joint Ex. 9 at p. 6).

I have also reviewed previous testimony of the reading teacher who participated in the June 23, 2004 annual review and who assisted in the development of the child’s IEP goals and objectives (Joint Ex. 32 at pp. 585-87).  This teacher was identified by the child’s mother as likely to be the child’s reading teacher if petitioners returned their daughter to respondent’s school (June 3, 2005 Tr. pp. 448-49).  The reading teacher is certified to teach both special education and reading and has a master’s degree in reading, as well as 21 additional college credits in speech and language (Joint Ex. 32 at pp. 564-65).  In addition to her college-level training, the reading teacher participated in a 70-hour Orton-Gillingham teacher training program, conducted at Kildonan, where she received part of her instruction from the founder of the Kildonan School (Joint Ex. 32 at pp. 564-65, 570-71, 616).  She completed training at the associates’ level, qualifying her to provide Orton-Gillingham instruction; after completion of her initial 70 hours of training, the reading teacher had been employed by Kildonan’s summer program, Dunnabeck, as a reading tutor (Joint Ex. 32 at pp. 564-65, 570-71, 573, 575-76).

The reading teacher testified that she reviewed the child’s records, including the report by the petitioners’ private evaluator, and had also attended two Sub-CSE meetings for the child (Joint Ex. 32 at pp. 584-85, 587).  Based upon her review, the reading teacher testified that the child had deficits in phonics skills and fluency, that her reading was hindered by difficulty decoding and by lack of familiarity with certain spelling rules and patterns, and that she needed instruction in the mechanics of language for reading and writing (Joint Ex. 32 at pp. 588-89).  She opined that the student needed instruction using a multisensory approach, which used motor skills to enhance memory and reinforce learning (Joint Ex. 32 at pp. 589-90).

When asked to describe the program she would have implemented for the child, the reading teacher first noted that the child was “very intelligent” and “very creative” and indicated that she needed to receive a program that did not damage her self-esteem (Joint Ex. 32 at p. 590).  The reading teacher emphasized the need for the child’s goals to be skill-specific in order to allow her to develop skills and have the confidence to apply new skills in the content area curriculum (Joint Ex. 32 at p. 591).  The reading teacher described strategies she would have employed to address decoding, fluency and writing in a small-group setting and how push-in services in integrated classes would have allowed for continued monitoring of the child’s performance (Joint Ex. 32 at pp. 592-93).

Based upon my review of the June 23, 2004 IEP, as well as my review of the reading teacher’s testimony at a previous hearing, I find that respondent’s Sub-CSE developed a comprehensive program to address the child’s needs while capitalizing on her significant strengths.  The IEP contains remarkably specific information regarding proposed methodology.  Petitioners were both present at the June 23, 2004 meeting at which the 2004-05 IEP was developed.  Petitioners are familiar with the purpose and procedures at CSE meetings, and, at the time the IEP was developed, had been represented by counsel for the ongoing dispute involving the 2003-04 school year, and indicated in testimony that the IEP goals and objectives accurately reflected the child’s needs (IHO Decision, pp. 20-21).  Petitioners had access to the reading teacher, who was present at the June 23, 2004 annual review, and they could have asked for additional information about proposed methods.

I have considered petitioners’ remaining contentions and I find them to be without merit. 

 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

October  21, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

1, 2  Petitioners ultimately prevailed in Application of the Bd. of Educ., Appeal No. 04-080, with respect to their claims regarding classification and tuition reimbursement for the unilateral placement of their daughter in 2003-04 at Kildonan (see Application of the Bd. of Educ., Appeal No. 04-080; IHO Decision, p. 9).

3  Prior to the August 4, 2005 decision, the impartial hearing officer issued a pendency determination, dated May 9, 2005, which has not been appealed (IHO Ex. 11).  Inasmuch as neither party has appealed the May 9, 2005 decision and order, such determinations are not currently before me and 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).  

4  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.

5  The term "free appropriate public education" means special education and related services that --

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B)  meet the stands of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8).

6  Petitioners’ appeal raised, indirectly, the issue of whether “a District the size of [respondent]” could appropriately convene Sub-CSE meetings, as opposed to full CSE meetings (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c]).  A review of the entire record demonstrates that petitioners failed to raise this issue below, and therefore, it is not properly before me for consideration (see Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).

7  The March 24, 2004 Sub-CSE meeting and the corresponding 2003-04 IEP are not the subject of petitioners’ current appeal, which relates to the alleged denial of a FAPE for 2004-05.  However, to the extent that petitioners claim that the March 24, 2004 Sub-CSE improperly recommended the child’s initial placement into a specialized reading class (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]), petitioners do not allege any denial of educational opportunity or benefits, or infringement on meaningful parental participation, as a result of the procedural violation.  The child’s mother was an active and informed participant at the Sub-CSE’s March 24, 2004 meeting.  Although technically the Sub-CSE should not have recommended the specialized reading class and should have referred the matter to a CSE, I find that in this instance the error did not deny the child a FAPE.  I do, however, caution respondent to ensure in the future that recommendations of its Sub-CSE comply with the requirements of 8 NYCRR 200.3[c][4].