The State Education Department
State Review Officer
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 Lawrence Union Free School District
Law Offices of Deusdedi Merced, P.C., attorney for petitioners, Steven L. Goldstein, Esq., of counsel
Ehrlich, Frazer & Feldman, attorney for respondent, Laura A. Ferrugiari, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter’s tuition costs at Kulanu Torah Academy (Kulanu) for the 2004-05 school year. Respondent, the Board of Education of the Lawrence Union Free School District, cross-appeals from that portion of the impartial hearing officer’s decision which found that equitable considerations would have supported petitioners' claim for tuition reimbursement. The appeal and cross-appeal must be dismissed.
At the time of the impartial hearing, beginning in March 2005, petitioners' daughter was 13 years old (Tr. p. 595), classified as a student with multiple disabilities (Dist. Ex. 4 at p. 1; Tr. p. 596), and attending seventh grade at Kulanu (Tr. p. 595). Kulanu is a private special education school (Tr. p. 353) that is located within a private general education school, the Hebrew Academy of the Five Towns and Rockaway (HAFTR) (Tr. pp. 354, 595). Kulanu has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (8 NYCRR 200.7). The student's eligibility for special education services and classification as a student with multiple disabilities (8 NYCRR 200.1[zz]) are not in dispute (Tr. p. 11).
As a child, petitioners' daughter exhibited developmental delays for which she received early intervention services and preschool special education services (Parent Ex. M at p. 1; Tr. p. 595). The student attended respondent's elementary school in kindergarten where she was classified and placed in a special education program (id.). In February 1999, at the age of six, the student underwent a private evaluation conducted by a pediatric neurologist (Parent Ex. M), who found that the student exhibited significant learning disabilities and developmental delays (Parent Ex. M at p. 3). The student attended a private school for first and second grade (Tr. pp. 598-99). In 2001-02, the student attended third grade in respondent's district (Dist. Ex. 8 at p. 1).
In September 2000, the student was evaluated by a physician at the New York University Child Study Center (Parent Ex. L). At that time petitioners described their daughter as exhibiting socially inappropriate behavior, inflexibility, disorganization and difficulty with attention span (Parent Ex. L at p. 2). The physician offered a diagnoses of pervasive developmental disorder, not otherwise specified (PDD-NOS), an attention deficit hyperactivity disorder (ADHD) and anxiety symptoms (Parent Ex. L at p. 4). The physician recommended that the student receive cognitive behavioral therapy and that her parents consider medication to help with symptoms of anxiety (Parent Ex. L at p. 5). The student was not due for a triennial review until spring 2001, however, the physician recommended that respondent's CSE conduct a psychoeducational evaluation sooner in order to better understand her educational and cognitive needs (Parent Exs. L at p. 5, see S at p. 1).
Respondent conducted psychological, educational achievement, and speech-language evaluations of the student in October 2000 as part of her triennial review (Parent Exs. Q, R, S). At that time, the student was attending a 12:1+1 self-contained, special education program at the Torah Academy for Girls (TAG) Yeshiva (Parent Ex. Q at p. 1) where she received occupational therapy (OT), speech-language therapy and counseling services (Parent Exs. Q at p. 1, S at p. 1). The student also attended a weekly social skills class and received weekly tutoring for math and reading (Parent Ex. Q at p. 1).
Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) to the student on October 20, 2000 yielded a verbal IQ score (and percentile) of 63 (1), a performance IQ score of 52 (0.1) and a full scale IQ score of 53 (0.1), indicating cognitive functioning in the intellectually deficient range (Parent Ex. Q at p. 3). The student demonstrated a relative strength in abstract reasoning and relative weaknesses in social judgment and mathematical calculation (Parent Ex. Q at pp. 3-4). As part of the evaluation, the student's parent completed the Vineland Adaptive Behavior Scales-Interview Edition, Survey (Vineland), which revealed adaptive levels of functioning in the low range in communication and daily living skills and an overall adaptive behavior composite in the low range (Parent Ex. Q at p. 4). The evaluator noted that while the student "lag[ged] behind her same age mainstream peers, [she exhibited] a relative strength in her ability to socialize" (id.). The examiner concluded that results from the Vineland and WISC-III suggested that the student's performance "fit the criteria for the diagnosis of mental retardation" (Parent Ex. Q at pp. 4-5), which was consistent with results of cognitive testing conducted that same month by respondent's educational evaluator (see Parent Ex. S at p. 1). Projective testing revealed that the student was relatively happy, however suggested that she experienced anxiety and was somewhat impulsive and inattentive at times (Parent Ex. Q at p. 5). The psychologist recommended that the student be placed in a special education program that could address her cognitive, adaptive behavior, OT and speech-language deficits as well as provide her with social opportunity for peer involvement (id.).
The student attended elementary school in respondent's district for third, fourth and fifth grade, where at some point she was placed in a life skills program to address her socialization needs (Tr. pp. 600-1). A subcommittee of respondent's committee on special education (CSE subcommittee) convened on May 2, 2003 (Dist. Ex. 3 at p. 4) and recommended that the student be placed in a 12:1+1 life skills class with related services of one counseling session per week in a group of up to five students, OT individually once per week and once weekly in a group, and speech-language therapy twice per week individually and twice weekly in a group of up to five students (Dist. Ex. 3 at p. 1). It also recommended extended school year services (ESY) consisting of a 12:1+1 special class with one session of individual OT and one session each of individual and group speech-language therapy weekly during summer 2003 (Dist. Ex. 3 at p. 1). The individualized education program (IEP) contained annual goals and short-term objectives addressing reading, writing and mathematics, as well as speech-language, social-emotional, motor and cognitive/daily living skills (Dist. Ex. 3 at pp. 4-9). The student attended sixth grade at respondent's Lawrence Middle School during the 2003-04 school year (Dist. Ex. 3; Tr. pp. 601, 604).
An educational evaluation of the student was conducted by respondent in June 2003 (Dist. Ex. 7). The student's broad reading standard (and percentile) score of 77 (6) on the Woodcock Johnson Tests of Achievement III was in the low range of reading ability (Dist. Ex. 7 at p. 1). Her standard score of 82 (12) for broad written language was within the low average (id. at p. 2). In mathematics, the student achieved a broad math score of 64, which was in the first percentile and in the very low range (id.). The evaluation report recommended several program modifications and strategies to address writing difficulties (Dist. Ex. 7 at p. 4).
In June 2003 a psychoeducational evaluation of the student was conducted by a school psychologist in respondent's district (Dist. Ex. 8). The evaluator described the student as happy and interested in the classroom curriculum with the additional support of a classroom behavioral management program (Dist. Ex. 8 at p. 3). Administration of the WISC-III yielded a verbal IQ score of 60, a performance IQ score of 49 and a full scale IQ score of 51 (Dist. Ex. 8 at p. 1). The evaluator indicated that these test results were consistent with testing conducted in October 2000 (see Parent Ex. Q at p. 3). The Vineland Adaptive Behavior Scales: Classroom Edition was completed by the student's teacher and indicated that the student performed within the low range in the communication and daily living skills domains (id.). Tasks identified in these domains included personal hygiene, time, money and classroom skills (id.). The student's scores in the socialization domain were within the adequate range, indicating that she possessed the ability to follow rules to simple games, share and talk about experiences outside of school (id.).
The Clinical Evaluation of Language Fundamentals-III (CELF-III) was conducted as part of a speech-language evaluation of the student in June 2003 (Parent Ex. K). The student's receptive, expressive and total language scores were at the first percentile (Parent Ex. K at p. 2). Based on the student's performance on the receptive portion of the evaluation, the speech-language pathologist noted that the student might not have the ability to understand and follow directions in class, see relationships among words and their meanings, form word associations, and make inferences (id.). Expressively, the student exhibited difficulty producing sentences for conversations, recalling statements verbatim and using grammar flexibly (Parent Ex. K at p. 3). Expressive and receptive vocabulary testing revealed scores in the first percentile (id.). The speech-language pathologist stated in her report that the student's below age level skills may result in difficulty understanding vocabulary used in the classroom (Parent Ex. K at p. 4). The student's speech dysfluencies were characterized as mild to moderate sound prolongations, and initial part and whole word repetitions (Parent Ex. K at p. 1). The evaluator indicated that the student had made progress in therapy and had become more independent during sessions. The evaluator recommended that the student continue to receive speech-language therapy in the upcoming school year (Parent Ex. K at p. 4).
During the 2003-04 school year the student was a sixth grader and attended respondent's life skills class in respondent's middle school (Tr. pp. 34, 73). The student's classroom teacher developed an educational review of the student's program, abilities and needs in March 2004 (Dist. Ex. 10). In reading, the student was described as able to sound out most unfamiliar words and words with consonant blends independently, and could provide the beginning, middle and ending sounds of words upon request (Dist. Ex. 10 at p. 1). Her decoding ability was judged to be at a fourth to fifth grade level; however, her comprehension skills were "significantly lower," characterized by difficulty sequencing and making inferences while reading, and an inability to identify the main idea or a passage or retell the story in her own words. The student reportedly spelled five and six letter words independently with 90-100% accuracy. However, she had difficulty writing complete sentences due to errors in syntax. The teacher noted that the student was able to use a calculator independently to check her work, use a number line to add and subtract, and was making progress in addition/subtraction with regrouping, telling time, money skills and problem solving with basic computation. The report indicated that the student required redirection due to her impulsivity in order to avoid math errors. The student was described as exhibiting "fairly good" in-seat behavior and the ability to copy material off the blackboard and complete assigned work with assistance. Although the student's visual-perceptual delays persisted, the teacher reported that her handwriting had improved to the extent that she was writing in cursive (Dist. Ex. 10 at p. 2). Socially, the teacher characterized the student as well mannered, and although she liked to "take charge" of other students, was genuinely concerned for the well being of others (Dist. Ex. 10 at p. 1). The teacher recommended that the student continue in the life skills program with related services as "this environment best meets [the student's] academic, social and management needs in the least restrictive environment" (Dist. Ex. 10 at p. 2).
A speech-language progress report dated March 2004 (Dist. Ex. 11) indicated that the student had met some of her IEP goals and objectives during the year and demonstrated progress toward goals in the areas of speech fluency, auditory processing, writing, vocabulary, memory and pragmatic skills. The speech-language pathologist reported that during individual therapy sessions the student focused on improving easy onset of speech skills and breathing techniques in order to facilitate speech fluency. Within a group setting, the sessions focused on following directions, improving memory, categorization, classification, and vocabulary skills, as well as written communication. The speech-language pathologist recommended that the student continue speech-language therapy during the 2004-05 school year.
Respondent's CSE subcommittee convened on March 2, 2004 for an annual review of the student (Dist. Ex. 4). The service providers of the student reviewed their respective reports and provided copies to the student's parents (Tr. pp. 72, 330). Her special education teacher stated that she identified what the student had mastered and what she still had difficulty with (Tr. pp. 72-73). The resultant 2004-05 IEP offered to continue the student in the 12:1+1 life skills program with one counseling session per week in a group of up to five students, occupational therapy (OT) individually once per week and once weekly in a group, and speech-language therapy twice per week individually and twice weekly in a group of up to five students (Tr. pp. 317-18; Dist. Ex. 4 at p. 1).
Petitioners did not accept the CSE subcommittee's recommended educational program for the 2004-05 school year. By letter dated August 19, 2004 (Dist. Ex. 1), petitioners informed respondent that the student would be enrolled in Kulanu and requested transportation and an impartial hearing for the purpose of obtaining tuition reimbursement (Dist. Ex. 1 at p. 3). By letter dated January 11, 2005, petitioners amended their impartial hearing request (Dist. Ex. 2) and alleged that respondent not only denied the student a FAPE for the 2004-05 school year, which is the basis for the tuition reimbursement claim for that school year (Dist. Ex. 2 at p. 2), but additionally alleged that the student was denied a FAPE for the 2003-04 school year as well (Dist. Ex. 2 at p. 4), and requested compensatory education for up to three years beyond the school year in which the student becomes 21 years old (Dist. Ex. 2 at p. 5).
The impartial hearing commenced on March 3, 2005 and concluded on June 7, 2005 after five days of testimony. On August 13, 2005, the impartial hearing officer rendered his decision finding that respondent had met its burden of proving that it offered to provide a FAPE to the student during the 2004-05 school year (IHO Decision, p. 24). More specifically, the impartial hearing officer found that the CSE subcommittee's recommended life skills program, that combined functional academics with activities of daily living, was an appropriate program offered in the least restrictive environment (LRE) (IHO Decision, pp. 23-24). Although the impartial hearing officer found that the student was offered a FAPE for the 2004-05 school year, he further found that the services selected by petitioners at Kulanu were not appropriate because the petitioners' daughter was not appropriately grouped with other students with similar abilities, she did not have any "role models" within the class, she was the only student within the classroom who could consistently respond to a topic in context, and the other students' limitations impeded her ability to progress in that environment (IHO Decision, p. 24). The impartial hearing officer further determined that equitable considerations would have supported petitioners' claim for tuition reimbursement (IHO Decision, p. 25). I note that the impartial hearing officer did not address petitioners' contention with respect to their compensatory education claim (see Dist. Ex. 2 at p. 5)
On appeal, petitioners request to be reimbursed for their daughter’s tuition costs at Kulanu for the 2004-05 school year and compensatory education services for respondent's alleged failure to offer to provide the student a FAPE for the 2003-04 school year. Petitioners allege that their daughter was not suitably grouped for instructional purposes with children having similar needs and abilities in the 2003-04 school year because: 1) the children in the student's class were not chronologically grouped within 36 months of one another; 2) the children in the student's class were not functionally grouped; and 3) the children in the student's class were not appropriately grouped in terms of their social development and management needs, which led to an incident where petitioners' daughter was physically attacked. Petitioners also allege that their daughter only "realized" one of the 12 annual goals in the 2003-04 IEP and that the student did not have an opportunity to interact with "her typically developing peers" during the 2003-04 school year. As for the 2004-05 school year, petitioners contend that the March 2, 2004 IEP was procedurally and substantively flawed and allege that: 1) their daughter was not suitably grouped for instructional purposes with children having similar needs and abilities; 2) 12 of the 14 annual goals and short-term objectives for the 2004-05 school year did not contain objectively measurable criteria; and 3) the student's program was not offered in the LRE. Petitioners also allege that the March 2, 2004 CSE subcommittee was not duly constituted and that petitioners were denied meaningful participation in the IEP development process. In addition, petitioners contend that Kulanu was an appropriate placement and that they are not appealing that portion of the impartial hearing officer's determination that equitable considerations would have supported their claim for tuition reimbursement. Respondent cross-appeals contending that equitable considerations do not support petitioners' claim for tuition reimbursement because petitioners failed to give respondent ten business days notice of their rejection of the proposed program for the 2004-05 school year as required by IDEA (see 20 U.S.C. 1412[a][C][iii]).
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]).1 A FAPE includes special education and related services designed to meet the child's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., F.3d, 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]; Application of the Bd. of Educ., Appeal No. 03-062). 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. 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. 05-091). To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
While school districts are required to comply with all IDEA procedures, 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]). A denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see, Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 659 [S.D.N.Y. 2005]; 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 compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, 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]). To do this, the record must be examined for "any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 [2d Cir. 2003] [citation and internal quotation omitted]; 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).
State and federal regulations require that the student be assessed in all areas related to the suspected disability (20 U.S.C. § 1414[b][C]; 34 C.F.R. § 300.532[g]; 8 NYCRR 200.4[b]). 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). Regulations require 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]; 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 also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the child's needs arising from his or her disability to enable the child to be involved in and progress in the general curriculum, and meeting the child's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the child's progress towards the annual goals will be measured and how the child's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][x]).
I will first address petitioners' contentions with respect to the 2003-04 school year. On appeal, petitioners contend that their daughter was not suitably grouped with other students pertaining to their age range. State regulations require that in special classes students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a], 200.1[ww][i], 200.6[g]; Application of a Child with a Disability, Appeal No. 03-023; Application of a Child with a Disability, Appeal No. 01-084). The similarity of abilities and needs may be demonstrated through the use of a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 94-7). The chronological age range among the students within special classes of students with disabilities who are less than 16 years of age is limited to 36 months (8 NYCRR 200.6[g]).
A review of respondent's 2003-04 class profile (Dist. Ex. 5) revealed that the oldest student in the classroom had a birth date of October 6, 1990, the youngest student in the classroom had a birth date of September 27, 1992, and petitioners' daughter’s birth date was in between these student's birth dates. Thus, District Exhibit 5 demonstrates that the students in their daughter's 2003-04 school year were appropriately chronologically grouped.3 Further, all of the children in the student's 2003-04 school year class had severe academic needs and, with the exception of one student who's IQ score was in the low average range, functioned cognitively within the deficient range (Dist. Ex. 5). Reading scores ranged from a low of less than 0.1% to 11%, all of which were below average (id.). Math scores ranged from the first to below the first percentile (id.). Testimony from the CSE subcommittee chairperson revealed that the student's cognitive deficits were similar to those of other students in the program, and the curriculum was modified to meet her reading and math levels (Tr. pp. 335-36). The student's teacher stated that although the student's decoding skills were at a higher level than some children in the class, "in all other aspects of her academic functioning she was right in there with the life skills population," and with the exception of decoding "all the other school work that she was doing in the classroom, she was struggling at her level as much as the other kids were struggling" (Tr. p. 190). The 2003-04 class profile reflects that students were placed into the life skills class based on their cognitive ability, academic needs, physical needs, and management needs. After considering the age, cognitive ability, social and physical development, and management needs of the student in relation to the parallel characteristics of the students in the 2003-04 class (Dist. Ex. 5; 8 NYCRR 200.6[a][i-iv] and 200.6[g]), I find sufficient similarities among the students to conclude that appropriate groupings had been recommended (Application of a Child with a Disability, Appeal No. 03-023; Application of a Child with a Disability, Appeal No. 01-020; Application of a Child with a Disability, Appeal No. 00-065).
Petitioners allege that their daughter only "realized" one of the 12 annual goals in her 2003-04 IEP. The student's sixth grade life skills program in 2003-04 consisted of eight students, one teacher and two teacher aides (Tr. pp. 34, 49). The life skills class was described as a program that combined functional academics with activities of daily living (Tr. p. 34). The students were described as primarily multiply disabled, and functioning on a lower level than their peers in more than one domain (Tr. pp. 34-35). Academically, life skills students performed three or more years below grade or age expectation and were in the borderline or deficient range of cognitive functioning (Tr. p. 36). These students were taught daily living skills such as cooking, hygiene, laundry and interacting with peers (Tr. p. 35). The classroom contained a refrigerator, stove, microwave, washer and dryer (Tr. p. 48). The students were assessed individually in content areas and placed in small groups for instruction based on their needs (Tr. pp. 48-52).
A summary of the student's progress toward her IEP goals and objectives for the 2003-04 school year indicated that as of the fourth marking period, she had either completed or demonstrated progress toward all academic goals and objectives that had been initiated with the exception of two math objectives related to multiplication and division (Dist. Ex. 12). The student's teacher stated that these activities had not been started earlier in the school year as the student did not exhibit prerequisite skills (Tr. pp. 212-15). The student also demonstrated "some progress" toward all speech-language goals and objectives, and "progress" toward all social-emotional, and motor goals and objectives (Dist. Ex. 12 at pp. 8-12). Limited progress was reported for objectives related to tying knots, bows and shoes (Dist. Ex. 12 at pp. 16-17).
With the exception of skills related to knot, bow and shoelace tying the student either completed or made at least some progress toward all annual goals and short-term objectives that were initiated during the 2003-04 school year (Dist. Ex. 12). The student was able to demonstrate consistent mastery of some IEP objectives in the first quarter of the 2003-04 school year and for those she did not master at that time, she made "nice progress" according to the testimony of respondent’s special education teacher (Dist. Ex. 12; Tr. p. 91). Respondent’s speech-language therapist stated that the student demonstrated some progress toward all individual and group speech-language goals during the 2003-04 year (Tr. pp. 248, 259-60, 268: Dist. Ex. 12). Although the student did not master social emotional goals, respondent’s social worker indicated that she made progress and responded positively toward them (Tr. p. 313; Dist. Ex. 12). Thus, the record demonstrates that overall petitioner’s daughter made meaningful progress in areas related to her needs during the 2003-04 school year.
Additionally, petitioners contend that the student did not have an opportunity to interact with "her typically developing peers" during the 2003-04 school year. The IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][A]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998] ("[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs"]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc], 200.4[d][ii]).
The test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with the use of supplemental aids and services, and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 [5th Cir. 1989]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Warton v. Bd. of Educ., 217 F. Supp. 2d 261, 274 [D. Conn. 2002]; A.S. v. Norwalk, 183 F. Supp. 2d 534, 542 n.8 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 985 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 05-010; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24).
As to the first prong of whether respondent has complied with the LRE, whether the student can be educated in a regular classroom with the use of supplemental aids and services, the record demonstrates that education in a regular classroom with the use of supplemental aids and services was not appropriate. The record does not reflect any suggestion that a regular education placement was appropriate. The student's special education teacher testified that in the hierarchy of special education services provided by respondent, one step above the life skills program was Transitional Learning Program (TLP), a 15:1+1 self-contained class which was generally for students with learning disabilities or who were functioning at a lower level than their peers and who had significant needs in reading, math and other areas (Tr. pp. 38-39, 124). Students in the TLP program were taught using grade level curriculum and worked toward the same state standards as children in regular education, however received instruction at a slower pace with 1:1 intervention (Tr. pp. 39-40, 128).
The student's special education teacher testified that the TLP program was discussed with the team of people who worked with the student including her parents, and determined that placement in TLP would not be "the best situation" (Tr. p. 128). The special education teacher stated that she thought that the work pace would be too quick for the student and that she would become frustrated (Tr. p. 129). She further testified that placement in TLP for reading was considered given the student's skills in that area, however "it was in agreement that we didn't feel that TLP would be good for [the student]" (Tr. p. 188). In order to accommodate the student's higher level decoding skills, her special education teacher acquired reading material from the TLP class (Tr. p. 73). The CSE chairperson testified that the student would have experienced difficulty keeping up with the academic demands of that class because it "parallel[ed] the mainstream curriculum" and despite modification, it would not be modified to the extent that the student would be successful with it (Tr. p. 336). She further stated that given the discussion about the student's academic abilities, "those abilities did not suggest she was ready for a TLP program" (Tr. p. 337). The student's speech-language therapist stated that the children in the TLP program exhibit higher abilities than the student, including the ability to retain information that they have heard in the classroom and understand information that they have read in textbooks, and therefore it would not be appropriate for her (Tr. p. 284). However, to the maximum extent appropriate, respondent used material from a less restrictive environment. The student's teacher testified that since petitioners' daughter could decode at a higher level than some of the children in her life skills class, she acquired reading material that was on a sixth grade curriculum from the class that was "the next higher up level from [the student's] class, which was the TLP (Tr. pp. 38, 73). The CSE subcommittee did not recommend that the student attend the TLP class for reading because the student's teacher "had to take the questioning and the comprehension questions and things like that quite slowly so that [the student] was able to absorb what she was reading" (Tr. pp. 73, 188).
As to the second prong of whether respondent has complied with the LRE, whether respondent has mainstreamed the student to the maximum extent appropriate, the record reflects that the student's life skills program offered opportunities for students to participate in mainstream activities during lunch, holiday parties and recess (Tr. pp. 126, 130, 139, 180, 219-20). Further, students in the life skills class were described by her speech-language therapist as "very much a part of the whole school environment. They are very well known throughout the building. They socialize with many of the adults and the kids in school" (Tr. p. 287). The student's teacher stated that she tried to encourage the students in the life skills class to socialize with general education students at lunch and play time (Tr. p. 126). The students in the life skills classes had the opportunity to attend all school functions with typically developing peers such as school dances, night time activities, assemblies, sports nights, special Olympics and dinners (Tr. pp. 130-31). During school activities teacher aides facilitated interaction between students from the life skills class and general education students (Tr. pp. 180, 219-20). The student's social skills group included a sixth grade general education student (Tr. p. 309). Discussion, role-plays, and therapeutic games/activities were utilized during the sessions to promote development and maintenance of peer relationships (Dist. Ex. 13). Respondent’s social worker indicated that the student was cooperative, appeared to be more comfortable with activities in the sessions as the school year progressed, and sought out the general education student from the social skills group in the cafeteria (Tr. p. 312). Thus, the record demonstrates that respondent offered an educational program that met the student’s special educational needs in the LRE for the 2003-04 school year with petitioners' daughter being mainstreamed to the maximum extent appropriate.
Next I turn to petitioners' contentions with respect to the 2004-05 school year. Petitioners contend that the March 2, 2004 CSE subcommittee was not duly constituted in that the assistant principal of the student's school who chaired the meeting was not an appropriate district representative, alleging that she was not knowledgeable about the general curriculum and the availability of the resources of the school district, including the composition of the classes in the various placements in which respondent might seek to place a student. The Regulations of the Commissioner of Education require that the CSE subcommittee include a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district and further provide that the district representative may also be the same individual designated as the special education teacher or the special education provider of the student or the school psychologist (see 8 NYCRR 200.3(a)(1)(v); see also 34 C.F.R. § 300.344[a]). The CSE subcommittee chairperson provided credible testimony about her experience in supervising special education instruction and her knowledge of curriculum and resources (Tr. pp. 324-28). I find petitioners' contention that the CSE subcommittee was not duly constituted to be without merit.
Petitioners also contend that they were denied meaningful participation in the IEP development process because goals and objectives were drafted before the CSE subcommittee meeting and petitioners were not afforded the opportunity to discuss them at the meeting. The record reflects, however, that petitioners participated at the March 2, 2004 CSE subcommittee meeting (Tr. pp. 67-68, 78) and were involved in a discussion of proposed goals and objectives at the meeting (Tr. pp. 78-79). Furthermore, district staff indicated that the parents actively participated in discussing and questioning some of the proposed goals at the meeting (Tr. pp. 78-79, 240, 333) and that the CSE subcommittee could change goals if "the parents have concerns" (Tr. p. 79). Petitioners’ contention that they were denied meaningful participation in the IEP development process is not supported by the record.
Upon review of petitioners' contentions as they relate to the 2004-05 school year, I note that petitioners' contentions are similar to those of the 2003-04 school year in that they allege that their daughter was not suitably grouped for instructional purposes with children having similar needs and abilities and that the student's program was not offered in the LRE. A review of respondent's 2004-05 class profile (Dist. Ex. 6) revealed that the oldest student in the proposed class had a birth date of May 17, 1989, the youngest student in the proposed class had a birth date of February 13, 1993, and petitioners' daughter’s birth date was in between these students' birth dates. Although the chronological age range among the students within the special education class exceeds 36 months, all of the children in the student's proposed class for the 2004-05 school year had severe academic needs and, with the exception of one student whose IQ score was considered low average and another student whose IQ score was considered mildly deficient, functioned within the deficient range (Dist. Ex. 6). Reading scores ranged from a low of less than 0.1% to 11%; however, these scores are all considered below average (id.). The 2004-05 class profile reflects that students were grouped accordingly by cognitive ability, academic needs, physical needs, and management needs (id.). After considering the age, cognitive ability, social and physical development, and management needs of the student in relation to the parallel characteristics of the students in the proposed class for 2004-05 school year (Dist. Exs. 5, 6; 8 NYCRR 200.6[a][i-iv] and 200.6[g]), I find sufficient similarities among the students to conclude that appropriate groupings had been recommended (see Application of a Child with a Disability, Appeal No. 00-065 [slightly excessive age range does not negate appropriateness where students are otherwise "suitably grouped for instructional purposes"]; see also Application of a Child with a Disability, Appeal No. 01-020; Application of a Child with a Disability, Appeal No. 98-21.4
Petitioners claim that the annual goals and short-term objectives in the March 2, 2004 IEP are not objectively measurable and/or realistic based on the materials considered by the CSE subcommittee. I have carefully reviewed the goals and objectives, as well as the reports reviewed by the CSE when developing the IEP and testimony from the clinicians who participated in the development of the document. The IEP has two reading goals which specify that the student will master objectives at a fifth grade level (Dist. Ex. 4 at p. 5), which is consistent with descriptions of her present performance level in reading (id. at p. 3). Corresponding objectives address decoding, fluency and comprehension and are consistent with descriptions of the student's performance provided in testimony by the special education teacher who had taught the student during the 2003-04 school year (Tr. p. 41) as well as in the teacher's March 2, 2004 written progress report, which was reviewed by the CSE at which the IEP was developed (Dist Ex. 10 at p. 1; Tr. p. 88). A math goal and the two writing goals on the IEP do not specify a levels of mastery, but corresponding objectives are consistent with the student's performance levels as articulated by the teacher in testimony and in her March 2004 progress report, reflect the student's needs as described in the academic performance levels of the IEP, and include objectives addressing needs identified by these sources (Dist. Exs. 4 at pp. 3, 5-6; 10 at p. 1; Tr. p. 83). A life skills goal with objectives for tying shoelaces includes behavioral descriptions and measurable benchmarks (Dist. Ex. 4 at p. 9). In testimony, the special education teacher described strategies she used to implement objectives (Tr. pp. 56, 82, 95, 102, 145), and described methods she used to document progress, such as tallies, dated notes of observations and homework charts (Tr. pp. 565, 95).
The March 2, 2004 IEP contains two speech-language goals, each with four objectives, all reflective of needs identified in the IEP statement of the student's present performance levels (Dist. Ex. 4 at pp. 3, 6-7). The objectives are behaviorally stated and provide clarification as to what is required for the student to master the goal. One of the speech-language objectives states that the student will be able to follow three-step directions in sequence, and includes sufficient information to allow for measure of progress. In testimony, the speech therapist who had provided services to the student described the student's performance level related to these three objectives at the time the goal was developed (Tr. pp. 260-61, 274-77, 279-80), and provided examples of how the student performed (Tr. pp. 276-77).
The IEP has four OT goals addressing the student's difficulties with handwriting, sensory processing, and motor planning (Dist. Ex. 4 at p. 8). Handwriting difficulties are identified in the IEP description of the student's present performance levels as well as on the March 2004 teacher progress report reviewed by the CSE on March 2, 2004 (Dist. Ex. 4 at p. 3, Dist. Ex. 10). The goal for improved legibility has behaviorally stated objectives which include measurable criteria. The goals for sensory processing and motor planning do not reflect any clearly-stated need, although the student is identified as having a "moderate delay in fine motor skills" (Dist Ex. 4 at p. 4) and one objective addresses previously-identified handwriting difficulties. The goal addressing keyboarding skills has objectives which are vague and not measurable and do not reflect an identified need in this area. Given the student's difficulty with handwriting and recommended access to a computer, goals to teach use of a word processor appear to be appropriate, but it is not clear from the IEP how this goal was developed.
The IEP indicates that the student has a "moderate delay in social skills with peers, due in part to her delays in speech fluency" (Dist. Ex. 4 at p. 3). Two social skills goals on the IEP address cooperative play and socially acceptable behaviors, but some of the objectives for these goals do not reflect information in the record regarding the student's needs, and none of the objectives provide criteria for measurement. Testimony by the social worker who provided social skills training to the student (Tr. pp. 308-319) and a progress report by that social worker (Dist. Ex. 13) do not provide clarification.
Upon review of the IEP and supporting information in the record, I find that the IEP contains sufficient information to allow for measurement of progress in most of the student's areas of need. Those goals and objectives which lack clarity and specificity are supported in part by testimony and by narrative progress reports, but I strongly encourage respondent to ensure that all service providers work to develop more specific language for describing measurement criteria. The inadequacies in the goals and objectives do not rise to the level of requiring a conclusion that the child was not offered a FAPE.
Having reviewed the record, I find that respondent offered petitioners' daughter a FAPE for the 2003-04 and 2004-05 school years. Having determined that respondent has met its burden of proving that it offered to provide a FAPE to the child during the 2004-05 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether Kulanu was an appropriate placement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058). Accordingly, there is also no need to reach respondent's cross-appeal as to whether equitable considerations would have supported petitioners' claim for tuition reimbursement.
Petitioners also assert that their daughter is entitled to compensatory educational services for respondent's alleged failure to offer the student a FAPE. 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]; Application of a Child with a Disability, Appeal No. 05-057; Application of a Child with a Disability, Appeal No. 04-074; Application of the Bd. of Educ., Appeal No. 02-047). There is no evidence of either in the record. Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction. At the time of the hearing, the student was 13 years old and had not yet received a high school diploma.
While compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded additional 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). Here, the student was offered a FAPE for the 2003-04 and 2004-05 school years. Accordingly, I decline to award additional services in the instant matter.
In light of this determination, it is not necessary that I address the remaining issues raised by the parties.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
November 10, 2005
PAUL F. KELLY