The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-104
 

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for petitioner, Hilary S. Steuer, Esq., of counsel

Legal Services for Children, Inc., attorney for respondent, Todd Silverblatt, Esq., of counsel

DECISION

            Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer, which found that it failed to offer a free appropriate public education (FAPE) to respondent's son and ordered it to pay the fees, tuition and necessary transportation for the child's attendance at the Sterling School (Sterling) for the 2005-06 school year.  The appeal must be sustained. 

            When the impartial hearing occurred on July 26, 2005, the child was nine years old and classified as a child with a learning disability (LD) (Dist. Ex. 2 at p. 1).  The child's eligibility for special education programs and classification are not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]). 

The child was born prematurely and experienced some delays in achieving his developmental milestones (Parent Ex. F at p. 1).  He received early intervention services for speech and language until age three (Parent Ex. G at p. 1).  The child was initially referred to petitioner's Committee on Special Education (CSE) in August 2003.  At that time, he attended a general education, second grade class at St. Rita's (St. Rita's) parochial school and had never attended public school (Parent Ex. B at p. 5B, Parent Ex. F at p. 1, Parent Ex. G at p. 1). 

In August 2003, petitioner evaluated the child using the Woodcock-Johnson Tests of Achievement III (WJ-III).  The resultant scores placed the child's decoding skills in the tenth percentile (1.0 to 1.3 GE) and reading comprehension skills in the sixth percentile (K.5 to K.9 GE) (Parent Ex. B at p. 3A).  Based on an informal evaluation, the child's writing/copying skills were characterized as "significantly delayed" (id.).  Petitioner provided tutoring to the child for three hours per week through the Sylvan Learning Center between January 2004 and May 2004, while the child completed his 2003-04 second grade school year at St. Rita's (Parent Ex. F at p. 1; Tr. p. 108). 

In April 2004, respondent sought evaluations of her son at Brookdale University Hospital and Medical Center (Brookdale) (Parent Exs. F, G, H).  The child underwent developmental/behavioral and educational evaluations (id.).  A developmental pediatrician, who conducted the developmental/behavioral evaluation, diagnosed the child with dyslexia and a coordination disorder (Parent Ex. F). According to the report, the child performed at the first grade level for decoding and at the third grade level for comprehension, as evaluated by the Spache Diagnostic Reading Scales (id.).  The report described the child's reading as "labored" and noted that he would become visibly nervous when reading (id.). The child's math skills were age appropriate, as measured by the Einstein Academic Readiness Scales (id.).  The report further noted that the child did not exhibit behavioral difficulties, except inattentiveness during reading class, and concluded that the child was an "excellent candidate for a full day educational program for dyslexia as he does not have secondary behavioral problems" (id.). 

A developmental disabilities specialist performed the educational evaluation in April 2004 (Parent Ex. G).  The evaluator reported that the child recently tested in the average range of intelligence (full scale IQ score – 97) on the Wechsler Intelligence Scale for Children-Third Edition (WISC-III). Administration of the Kaufman Test of Educational Achievement (KTEA) yielded the following subtest standard scores (SS) and general equivalent (GE) scores: math applications SS 109 (3.1 GE), reading decoding SS 84 (1.5 GE), spelling SS 86 (1.6 GE), reading comprehension SS 90 (1.8 GE), and math computation SS 117 (3.3 GE). The evaluator noted that the child scored above grade level on the math subtests, but scored one year below grade level on the vocabulary subtests. On the reading decoding subtest, the child identified letters, but had difficulty "phonetically deconstructing" words.  The child's performance on the spelling subtest revealed similar phonetic skill deficits.  The evaluator reported that the child became visibly frustrated and anxious when attempting to read and that his difficulty sounding out words and understanding their meaning hindered his comprehension. The evaluator concluded that the child would "need remedial work or tutoring so as not to fall further behind in his work."

On May 28, 2004—the same date that petitioner's CSE convened to develop the child's 2004-05 individualized education program (IEP)—a Brookdale developmental and behavioral pediatrician held a "team conference" regarding the child (Parent Ex. H).  The pediatrician prepared a summary, which noted that although the child demonstrated "difficulty with the phonics of decoding" and "visual perceptual delays," he was "creative and his comprehension level when a story is read to him is above age level."  The summary further noted that the child scored "at or below grade equivalent on the vocabulary subtests, but above grade level in math."  The team made the following recommendations:  "1. Refer to IEP Team with recommendations of placement in a class with techniques to remediate dyslexia.  2. Speech and audiology evaluations.  3. Books on tape for the dyslexia.  4. Social Work—2 months.  5. Developmental/ Behavioral Peds—10/04." 

As noted above, petitioner's CSE convened on May 28, 2004, to prepare the child's 2004-05 IEP (Parent Ex. B at p. 1).  A summary of the child's academic needs indicated that the child exhibited significant auditory and visual memory problems, visual motor integration problems, and very limited focusing abilities, which impacted his decoding, reading and listening comprehension skills, penmanship/copying and phonics skills (Parent Ex. B at p. 3A).  A May 2004 update from the child's teacher described him as frustrated and unwilling to participate in reading (id.).  The child was reportedly passing all subjects with Bs and Cs, except for reading (id.). 

 According to the May 28, 2004 IEP, the child functioned in the average range of intelligence with weaknesses in sequencing and remaining focused (Parent Ex. B at p. 3B).  The child was described as friendly and capable of engaging with others (Parent Ex. B at p. 4).  However, it was noted that he required encouragement, as he might give up easily and engage in avoidance behaviors when encountering difficulty (id.).  The child was described as having low to normal muscle tone, along with delays in fine motor skills, visual/perceptual skills and bilateral coordination skills (Parent Ex. B at p. 5B).

For the 2004-05 school year, the CSE recommended that the child be placed in a general education program with special education teacher support services (SETSS) and occupational therapy (OT) (Parent Ex. B at pp. 1, 12, Parent Ex. F at p. 1).  The CSE recommended he receive five periods weekly of direct SETSS instruction in a separate location and three periods weekly of direct SETSS instruction in the classroom (Parent Ex. B at pp. 1, 7).  In addition, the CSE recommended individual OT two times per week for 30 minutes (Parent Ex. B at pp. 2, 3A, 5A, 5B, 9).  The child's IEP contained goals and objectives related to reading, expressive writing, visual perceptual/perceptual motor skills, bilateral coordination, and fine motor skills (Parent Ex. B at pp. 6A-6D).  Testing accommodations included time extended (x1.5), special location, questions read aloud except on tests measuring reading comprehension skills, and directions read and reread aloud (Parent Ex. B at p. 9).  Although respondent testified that she provided petitioner with the Brookdale evaluation reports, there is no indication in the record that respondent shared the evaluation reports with petitioner's CSE at the May 28, 2004 meeting or at any time prior to that CSE meeting (see Tr. p. 107).

Respondent transferred her son to petitioner's P.S. 235 into the general education class placement as recommended in the May 28, 2004 IEP for the 2004-05 school year (Tr. pp. 5, 118).

At respondent's request, petitioner's CSE convened on November 10, 2004 (Tr. pp. 111-12; see Parent Ex. C).  Respondent testified that she wanted her son removed from the general education class placement because his classmates were teasing him (see Tr. p. 111).  The CSE changed the child's recommended services from a general education class with SETSS to placement in a 12:1+1 self-contained class in a community school (compare Parent Ex. C with Parent Ex. B).  The CSE terminated the SETSS, continued the individual OT twice weekly for 30 minutes, and modified the child's IEP to include the April 2004 KTEA results from the private testing obtained by respondent at Brookdale (Parent Ex. C at pp. 2, 3, 9). 

The November 10, 2004 IEP identified the child's present levels of performance as including "significant auditory and visual memory problems," which impacted on the child's "reading decoding skills, listening comprehension skills and written expression" (Parent Ex. C at p. 3).  The present levels of performance also noted that the child's difficulty "decoding and focusing impacts on his performance in math as well" (id.).  The CSE modified the child's testing accommodations to include time extended (x2), test questions read aloud, and directions read and reread aloud (Parent Ex. C at p. 9).  The child's goals and objectives remained the same (Parent Ex. C at pp. 6A-6D). 

By letter dated December 1, 2004, respondent, through her attorney, requested an impartial hearing, expressing concern that the child's delayed reading skills were beginning to negatively impact his math performance, specifically, understanding word problems (Dist. Ex. 10 at pp. 1, 2).   In the letter, respondent opined that based upon her observations of her son's classroom, the other children were reading at a much higher level and asserted that the child's 12:1+1 placement was not designed to provide the intensive remediation that he required in order to improve his reading skills (id. at p. 2).  Respondent claimed that without additional help, her son would fall further behind because "reading is a foundational skill for all other academic subjects" (id.).

Respondent's letter indicated that she found a certified special education teacher/Orton-Gillingham instructor from Sterling who would be available and willing to tutor her son "for the duration of his current IEP, through November 10, 2005, and longer if necessary" (Dist. Ex. 10 at p. 3).  Respondent indicated that she had arranged with the teacher to begin providing two hours of tutoring per week (id.). 

Respondent proposed the following as resolutions to the issues set forth in her impartial hearing request:  a finding by the impartial hearing officer that the Department of Education failed to offer the child a FAPE; a finding by the impartial hearing officer that three hours a week of tutoring by the parent's tutor was an appropriate remedial service for the child; an order that the Department of Education reimburse the parent for tutoring services procured prior to the start of the impartial hearing; an order that the Department of Education make direct payment to the parent's tutor for up to three hours per week of tutoring from the date of the impartial hearing through November 10, 2005; and finally, an order that the child's parent or guardian could, in the future, request payment for additional hours of tutoring in the event that further remediation was required to bring the child's reading skills up to grade level (Dist. Ex. 10 at p. 3).

In response to respondent's December 1, 2004 letter, the CSE convened on December 8, 2004 (Dist. Exs. 9, 5; Parent Ex. D; Tr. p. 26).  The CSE modified the child's IEP to include the addition of individual SETSS tutoring for three times 60 minutes per week (Dist. Ex. 9 at pp. 2, 7, compare Parent Ex. C with Parent Ex. D; Tr. p. 26).  The child's IEP indicated that he required a small full-time special class to address his academic delays, as well as OT as a related service, with the addition of some 1:1 remedial services (Dist. Ex. 9 at p. 3).  By letter dated December 9, 2004, the parties set forth their agreement as to the provision of additional tutoring services during the summer months of 2005 (Dist. Ex. 8).  By letter dated January 11, 2005, respondent withdrew her December 1, 2004 request for an impartial hearing, stating that the "issue of private tutoring has been resolved" (Dist. Ex. 7).  The child completed third grade in the 12:1+1 classroom with SETSS tutoring three times per week, 60 minutes per session, and OT two times per week, 30 minutes per session (see Tr. pp. 4-23).  

By letter dated March 4, 2005, respondent, through her attorney, requested that her son be referred to the Central Based Support Team for the purpose of locating an appropriate nonpublic school for the 2005-06 academic year (Dist. Ex. 5).  The request noted that the child's reading skills were approximately two years behind grade level and that his reading deficit was impacting his math performance, as he had difficulty understanding math problems.  According to the letter, the child's tutor reported that three hours per week of individual tutoring were insufficient to meet the child's delays because "he receives no reinforcement during the school day of the skills she has taught him."  Respondent's letter asserted that the child's current placement was "unable to provide the method of instruction necessary for [the child] to obtain an educational benefit and is therefore inappropriate."  Respondent's letter further indicated that the tutor believed that the child required a "full-day dyslexia program in order to close the achievement gap between his intelligence and his skill level." 

In April 2005, petitioner conducted a psycho-educational reevaluation of the child (Dist. Ex. 3). Petitioner's psychologist assessed the child's skills using the Wechsler Individual Achievement Test-Second Edition (WIAT-II), as well as clinical interview, behavioral observations, teacher interview, review of records, and sentence completion (Dist. Ex. 3 at p. 2). According to the report, the child demonstrated good attention and focusing skills, appeared motivated, and did not frustrate easily during formal testing (id.).  However, the child experienced difficulty during reading tasks, was unable to read many words, and sometimes lost his place while reading (id.).  The child's standard scores (SS) and grade equivalents (GE) on the WIAT-II were as follows: Word Reading SS 74 (1.6 GE), Reading Comprehension SS 76 (1.5 GE), Pseudoword Decoding SS 77 (K:3 GE), Spelling SS 84 (1.9 GE) and Written Expression SS 96 (3.0 GE) (Dist. Ex. 3 at p. 4). 

Petitioner's psychologist concluded that the child experienced significant delays in word reading, reading decoding, and reading comprehension (Dist. Ex. 3 at p. 3).  She indicated that the child's overall writing skills were slightly below grade level, while his math skills were at or above grade level (id.).  During the informal interview process, the child stated that he felt he was improving in reading (Dist. Ex. 3 at p. 1).

The child's teacher completed a report, comprised in part of a checklist regarding the child's academic performance, the results of which were referenced in the psycho-educational reevaluation report (Dist. Exs. 4, 3 at p. 1). The teacher described the child's academic performance as "average" relative to his classmates' performances (Dist. Ex. 4 at p. 1). She characterized the child as demonstrating  "serious problems" with basic reading skills, including sight vocabulary, word attack skills, decoding and general fluency (id.). The teacher noted weaknesses in writing and spelling; however, the teacher indicated that the child made "steady progress" in all of these areas (Dist. Ex. 4 at p. 3). The teacher characterized the child's difficulties relating to applied problems in math as "slight" and his problems related to written expression as "slight to serious" (Dist. Ex. 4 at p. 1). When compared to same age/gender peers, the teacher noted that the child exhibited weaknesses in fine motor skills and the neatness of his work (Dist. Ex. 4 at p. 2).  The child responded to praise and rewards more than most of his peers (id.).  The teacher noted that the child's math skills were strong and that although he grasped concepts taught, he had difficulty using the concepts to solve written word problems (Dist. Ex. 4 at p. 3).  According to the teacher's report, the child interacted well with teachers and peers, but sometimes he said things to peers that made them angry and he involved himself in other people's business (id.).

Petitioner's CSE conducted the child's annual review for the 2005-06 school year on May 4, 2005 (see Dist. Ex. 2).  The CSE recommended the child be placed in a 12:1+1 special education class in a community school for all subjects, that the child continue to receive OT, and that the child continue to receive SETSS (Dist. Ex. 2 at pp. 1, 2, 8).  The CSE modified the child's IEP to include extended school year (ESY) services consisting of three periods per week of SETSS instruction in the home and individual OT two times per week (Dist. Ex. 2 at pp. 1, 7, 9).  The child's IEP included the results of updated testing conducted by petitioner in April 2005 (Dist. Ex. 2 at p. 3).   The CSE continued the child's academic goals and objectives as set forth in his December 8, 2004 IEP (compare Dist. Ex. 2 at pp. 6A-6C with Dist. Ex. 9 at pp. 6A-6C).

By letter dated June 28, 2005, respondent learned that Sterling accepted her son for admission for the 2005-06 school year (Parent Ex. J).  By letter dated July 6, 2005, respondent requested an impartial hearing, alleging that petitioner failed to provide her son with a FAPE for 2005-06 and requesting that petitioner pay for tuition at Sterling for 2005-06 (Parent Ex. A).  Respondent's request for an impartial hearing noted that the child's most recent IEP demonstrated that he was "not making progress in his current educational setting" (id.).  Respondent's request also suggested that the child required "an intensive and focused learning environment to address his specific disability" (id.). 

The impartial hearing occurred on July 26, 2005 (Tr. p. 1).  A district representative appeared on behalf of petitioner, conducted petitioner's case at the impartial hearing, and testified on behalf of petitioner (Tr. pp. 24, 26-38).  Petitioner also presented the child's 12:1+1 special education teacher and petitioner's school psychologist as witnesses and entered documentary evidence into the record (Tr. pp. 4-23, 39-52; Dist. Exs. 1-11).  The special education teacher testified that the child made "a lot of progress with his reading over the year," noting that the child first started in her class in November 2004 (Tr. pp. 5-6).  In particular, she testified that based upon an "E class assessment" given to the child when he entered her class and, again, in May 2005, the child's reading level "had gone up one grade level" (Tr. p. 6).  She further testified that the child employed "many reading strategies," including self-correction and re-reading for understanding, and that the child was able to keep up with his fluency (Tr. pp. 6-7).  The special education teacher assessed the child's fluency by noting the child's miscues while he read (referred to as the "MIS II Analysis" in the record), which allowed the teacher to analyze the child's progress (Tr. p. 7). 

The special education teacher testified that she used the Wilson Reading Program (decoding and encoding) and other activities—such as shared reading, independent reading, and small group reading—in her classroom to address the child's reading difficulties (Tr. p. 7).  The witness testified that the Wilson program was appropriate for the child because his main deficiency was reading, especially decoding, and she noted that the child performed on grade level for math. 

The special education teacher also testified that the child spoke about his reading tutor and shared some of the strategies used by the tutor with the special education teacher (Tr. p. 9).  The witness confirmed that she implemented some of the same strategies in her classroom (id.).  The witness also testified that the child himself often used some of those strategies in the classroom (id.).  She testified that she attended the May 2005 IEP meeting; the CSE discussed the child's progress over the year, his reading and the strategies he learned in the classroom (Tr. p. 10).  She confirmed that the CSE expanded the child's SETSS tutoring and OT during summer 2005 (Tr. pp. 9, 113). 

The special education teacher testified that in her classroom, the child received approximately five hours per week of Wilson reading instruction in a 6:1 student to staff ratio group (one hour per day in the morning) and approximately two hours per week of individual reading instruction in the classroom (Tr. pp. 18-19, 22).  Under the child's IEP, he received a total of approximately ten hours per week of reading instruction:  five hours per week of Wilson reading instruction in a small group in class, two hours per week of individual reading instruction in class, and three hours per week of individual SETSS tutoring provided to the child outside the classroom (see Dist. Ex. 9).  

            Petitioner's school psychologist also testified at the impartial hearing (Tr. pp. 39-52).  The psychologist confirmed that she reevaluated the child to determine whether he was "making progress in the special ed class that he was placed in" (Tr. pp. 40-41).  The evaluation demonstrated that the child made "slight progress in reading" and "in math, he had made a lot of progress" (Tr. p. 40).  The psychologist testified that based upon her reevaluation, discussions with the child's teachers, and a discussion with the child, that she believed that the child's current placement was appropriate and that he was doing well in the class (Tr. p. 41). 

            The psychologist attended the May 4, 2005 CSE meeting to prepare the child's 2005-06 IEP (Tr. p. 42).  She testified regarding discussions that took place with the child's mother about the child's reevaluation and his progress in the classroom (id.).  She confirmed that the special education teacher discussed how the child had performed in her class, as well as what skills she had been working on with the child and the child's progress with those skills (id.).  The psychologist testified that the results demonstrated on the reevaluation were similar to those results reported by the special education teacher, except that the special education teacher felt that the child's actual progress in reading was not truly reflected in the testing results (id.).  The psychologist noted that it was not unusual for test results to differ from actual progress seen in the classroom, because the teacher "works on different things in the classroom that are not necessarily measured by just a test" and the teacher works with the child on a daily basis (Tr. pp. 42-43).  Furthermore, the psychologist testified that she would not be comfortable using standardized tests alone to assess the child's progress from one year to the next (see Tr. pp. 48-49).  The psychologist indicated that standardized tests would be used in combination with classroom observations, discussions with the child's teacher, and discussions with the child, to assess progress (see Tr. p. 49).

The psychologist also testified that the CSE discussed respondent's request for a nonpublic placement for the child for 2005-06; that the CSE determined that the child's needs were met in his current placement; that the child was making progress; and that the current placement was appropriate (see Tr. pp. 43-44).  The CSE continued the child's placement and program, as set forth in the December 8, 2004 IEP, and added SETSS tutoring and OT for summer 2005 (id.).  The psychologist testified that the parent member of the May 4, 2005 CSE meeting participated by telephone (Tr. pp. 46-48). 

            At the impartial hearing, respondent presented testimony from the director of Sterling, the child's mother, and the child's SETSS tutor (Tr. pp. 54-115).   The director testified about her qualifications, Sterling, including its programs and teachers, and her familiarity with respondent's son (see Tr. pp. 55-58).  The director became familiar with the child because one of the teachers at Sterling provided the child with his SETSS tutoring at Sterling after school (see Tr. pp. 57, 65).  The teacher told the director that the child "seemed to be progressing, but was progressing slowly" and that she believed he would be an appropriate candidate for Sterling (see Tr. p. 57). 

The director was not familiar with the child's public school placement, but described how she believed Sterling could meet the child's needs (see Tr. pp. 58-60).  With respect to reading, the director testified that the child would receive 1:1 remediation for approximately 45 minutes per day, as well as an additional language instruction group with a 4:1 student to staff ratio for another 45 minutes per day (see Tr. pp. 64-65, 66-67).  The director went on to testify that although she understood the child currently received three hours per week of individual reading instruction through SETSS tutoring after school, she believed that 1:1 remediation during school would be beneficial to the child because "it could be when he was fresher" as opposed to when the child was more tired at the end of the school day (Tr. pp. 65-66).  The director also testified that one type of remediation was not better than another, and that even though the child received the SETSS tutoring at the end of the day, it did not mean that the child was not benefiting from it (see Tr. p. 65).  Sterling offers a ten-month program (Tr. p. 60).   

At Sterling, the child would attend a multi-graded class of up to eight children (Tr. p. 56). All of the child's content area courses would be taught in a multi-modal manner (Tr. pp. 67, 68).  In summary, the child would receive a total of 7.50 hours per week of specialized reading instruction:  3.75 hours of individualized instruction and 3.75 hours of reading instruction in a 4:1 student to staff ratio group (see Tr. pp. 64-65, 66-67).

The child's SETSS tutor also testified for respondent (Tr. pp. 69-106).  The tutor, a Sterling teacher, testified regarding her qualifications which included two years of teaching experience and Orton-Gillingham experience and the assistance she provided to the child during his tutoring sessions, such as phonemic awareness, reading, spelling, and penmanship (see Tr. pp. 69-72, 85).  She began providing SETSS tutoring, using the Orton-Gillingham approach, on January 11, 2005 for three hours per week and testified she initially met the child on the first day of tutoring (see Tr. pp. 70-71, 87).  The tutor testified that when she first met the child, he had "all his consonant symbol sounds correspond except to x and he had a great deal of difficulty with the short vowel sounds" (Tr. pp. 70-71).   

The tutor testified that she observed improvement in the child's reading skills, but felt that his progress was "very slow going because it's so little, so late" (Tr. p. 71).  She also stated that she believed the child required a private school setting like Sterling because the child needed consistency and individual attention (Tr. pp. 73-74).  However, the tutor testified that the child was responding to her tutoring, specifically noting that the child, at the time of the impartial hearing, possessed the "sound symbol correspondence for x and some of his short vowels," as well as "more" (Tr. pp. 74, 89). 

When asked whether she had an opinion as to the child's improvement in reading since he began attending the special class and receiving SETSS tutoring, the tutor did not agree with the special education teacher's opinion that the child had progressed "a full grade level," but opined that the child had made a little more than "six month's progress" since he began in the special class in fall 2004 through May 2005 (see Tr. pp. 87-89).  The tutor also testified that although she expected to observe progress during summer 2005, she could not estimate the amount of progress because the rate of progress may vary (Tr. p. 96).  The tutor agreed that the same "slow down" in progress could occur with the child in school (id.).  The tutor did not know whether her approach to tutoring the child was being reinforced at school (Tr. p. 97). 

The child's mother also provided testimony (see Tr. pp. 107-115).  Respondent testified that she spoke with the child's special education teacher to address her concern that the child's progress was not "moving quickly enough" (Tr. pp. 107-08, 113).  She further testified that as a result of speaking with her son, he believed that he was not learning while he was in school, but did believe that he was learning and progressing with his SETSS tutor (see Tr. pp. 113-14). 

The impartial hearing officer rendered his decision on August 29, 2005 (IHO Decision, p. 5).  He concluded that petitioner was "not able to provide a FAPE to this particular student" and that although petitioner has been "extremely cooperative in providing services including SETSS at home[,]" the child has not "been able to overcome the dyslexia to date" (IHO Decision, p. 4).  In particular, the impartial hearing officer noted that, "testing results did not reflect that much progress.  In fact, the most recent IEP does not show significant progress in reading, especially the required subset of skills needed to make progress" (IHO Decision, pp. 2-3).  However, he also noted that a comparison of the test results from the December 2004 IEP and those set forth in the May 2005 IEP "cannot be considered as clear evidence of progress or the lack thereof.  Different tests were used and it was clear that the results of each test had to stand alone and it was not appropriate to make direct comparisons between them" (IHO Decision, p. 3).   

The impartial hearing officer concluded that "the program currently being offered is not meeting his needs and I am not aware of any other program within the district that will meet his needs" (IHO Decision, p. 4).  He, therefore, directed petitioner to "fund the fees, tuition and necessary transportation for the student at the Sterling School for academic year 2005/2006" (IHO Decision, p. 5).     

On appeal, petitioner alleges that it offered a FAPE to the child for 2005-06 and that the impartial hearing officer erred in the standard applied to his analysis of that issue.  Specifically, petitioner contends that under the Individuals with Disabilities Education Act (IDEA), and case law interpreting that statute, it is not required to maximize a disabled child's potential, but is only required to offer a program that is designed to provide educational benefit.  Petitioner alleges that the May 4, 2005 IEP meets that requirement in the least restrictive environment (LRE). 

In her answer, respondent argues that petitioner failed to offer the child a FAPE for 2005-06 and that Sterling is an appropriate placement.  Respondent further argues that the child has not made progress in the public school and that his lack of progress is supported by the results of standardized tests given to the child.  Respondent alleges that Sterling is appropriate, and therefore, the impartial hearing officer correctly directed petitioner to fund the child's attendance at Sterling for 2005-06.

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, ___ S. Ct. ___ 2005 WL 3028015 [U.S. Nov. 14, 2005]).  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]; 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 educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192  [2d Cir. Sept. 28, 2005]).  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).

A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][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, 346 F.3d at 383 [citation and internal quotation omitted]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

In the instant case, I find that petitioner offered respondent's son a FAPE for the 2005-06 school year. 

The record reveals that at the time petitioner's CSE developed the child's 2005-06 IEP, it was reasonably calculated to produce progress and not regression.  The appropriateness of the CSE's recommendation that the child's placement continue in a 12:1+1 special education class with three hours per week of SETSS tutoring and OT for the 2005-06 school year, with the addition of SETSS tutoring and OT throughout summer 2005, is supported by the evidence presented.  Although the witnesses may disagree about the amount of progress the child made from November 2004 through May 2005 as a result of the 12:1+1 special class, SETSS tutoring and OT, the testimony3 presented in this case indicates that the child made between six months' to one year's progress as a result of the services provided by petitioner during that time.

The record reveals that petitioner's CSE considered the reevaluation test results during the May 2005 meeting as a basis for its recommendation that the child continue in the 12:1+1 placement, with SETSS tutoring three times per week, 60 minutes per session, OT, and ESY services of SETSS tutoring and OT during summer 2005.  The record further reveals that the CSE discussed the child's reading, the reevaluation results, the skills being taught in the classroom, the child's progress on those skills, and the child's overall progress, as of that date, with respondent at the meeting.  The record reflects that the recommended placement was also discussed with respondent at the meeting.  

Respondent's argument that the child's standardized test scores fail to support petitioner's claim that the child made progress is unpersuasive.  I agree with the impartial hearing officer's determination that a comparison of the test results, in the circumstances presented here, "cannot be considered as clear evidence of progress or the lack thereof.  Different tests were used and it was clear that the results of each test had to stand alone and it was not appropriate to make direct comparisons between them" (IHO Decision, p. 3). 

Similarly, respondent's argument that the child was denied a FAPE because the child's progress was not "moving quickly enough" in the recommended placement is equally unpersuasive.  As set forth above, the IDEA requires an IEP to be reasonably calculated to enable the child to receive educational benefits; it does not require that "totally successful results" be achieved (C.B. v. New York City Dep't of Educ., 2005 WL 1388964, *17 [E.D.N.Y. June 10, 2005]). The impartial hearing officer therefore erred in his conclusion that respondent's child was denied a FAPE because petitioner's placement had not yet "overcome" the child's dyslexia.  A review of the record reveals that the IEP in dispute was a continuation of special education programming that had produced meaningful progress, that it was based upon sufficient evaluative information, and that it offered appropriate services to meet the child's needs for the 2005-06 school year. 

Having determined that the challenged IEP was appropriate, and that petitioner offered a FAPE to the child for the 2005-06 school year, I need not reach the issue of whether or not Sterling was an appropriate placement, and the necessary inquiry is at an end (Mrs. 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. 05-038; Application of a Child with a Disability, Appeal No. 03-058).

I have considered petitioner's and respondent's remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED.

Dated:

Albany, New York

__________________________

November 22, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

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

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) meets the standards 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); see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].

 

3  I note that although respondent raised unpersuasive arguments regarding the credibility of the special education teacher's testimony, it would have been of assistance in my determination of this matter if the documentary evidence, such as the "E-class assessments" and the "MIS-II Analysis," had been made part of the record by petitioner.