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

 

No. 05-106

 

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 Scarsdale Union Free School District

 

Appearances:
Keane & Beane, P.C., attorney for respondent, Stephanie M. Roebuck, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Windward School (Windward) for the 2004-05 school year and expenses related to tutoring, educational evaluations, and the Fast ForWord program.  The appeal must be dismissed.

Before reaching the merits of petitioners' appeal, I must address two procedural issues.  A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). The petition for review, which initiates the review (8 NYCRR 279.4), must be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the period (id.).  A State Review Officer, in his or her sole discretion, may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The reasons for the failure to timely seek review shall be set forth in the petition (id.).

The impartial hearing officer’s decision is dated August 27, 2005 and was mailed to the parties. Petitioners served the notice with petition and petition for review on respondent on October 19, 2005 (Pet. ¶¶ 8-9). Under the applicable provisions of 8 NYCRR 279.2(b), petitioners did not timely serve these documents upon respondent.1

In their petition, petitioners request that the delay in service of the notice of petition and petition for review be excused for several reasons, including that they proceeded without counsel (although one of the petitioners is an attorney),2 that the hearing record was “dense,” and that petitioners’ available time to pursue the appeal was constrained by, including among others, commitments to professional obligations and the birth of a new daughter (Pet. ¶ 8).

I am not persuaded that the reasons for delay set forth by petitioners amount to good cause to excuse the untimely service of the petition for review, particularly given the extent of the delay.  The petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 05-048; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

Upon the facts before me, I find that the August 27, 2005 decision is the final determination of the issues from which petitioners seek review, and that such decision on those issues became final in the absence of a timely appeal.

Despite dismissing the petition as untimely, I have reviewed the merits of petitioners' appeal.

A second procedural issue must be addressed.  On appeal, petitioners request that I consider Exhibit A, which is attached to their petition and which was not submitted at the impartial hearing (Pet. Ex. A).  Exhibit A consists of the student's 2005-06 individualized education program (IEP) devised at a July 7, 2005 Committee on Special Education (CSE) meeting.  Respondent objects to petitioners' submission of the additional exhibit.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 05-020; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-068).  While the document was not available at the time of the hearing, it is of little probative value pertaining to the issues on appeal because it has not been subjected to examination at the hearing below (8 NYCRR 200.5[i][3][xii]).  Moreover, although the document was created after the conclusion of the hearing, it is submitted, in part, to introduce information contained within the document that was available at the time of the hearing. The document is not necessary for my review and, therefore, I will not accept it (Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-031).

At the time the impartial hearing began in April 2005, petitioners' daughter was eight years old, classified as a student with a learning disability (LD) (Dist. Ex. 1 at p. 1), and attending second grade at Windward (Tr. pp. 502-03) where she had been unilaterally placed by her parents (see Dist. Ex. 4 at pp. 1-2).  Windward was described as a private school that specialized in special education of students with language-based learning disabilities (Tr. p. 594).  Windward has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The child has identified deficits in phonological and auditory processing, phonological awareness (Dist. Ex. 15 at p. 9, Dist. Ex. 19 at p. 2), visual motor integration (Dist. Ex. 14A at p. 13), and attending and organization skills (Dist. Ex. 14A at p. 14), which affect her reading (Dist. Ex. 15 at p.10), written language, and understanding of basic mathematical concepts (Parent Ex. A at p. 1).  The child's eligibility for special education services and classification as a student with LD (8 NYCRR 200.1[zz][6]) are not in dispute (Tr. p. 35).

Petitioners' daughter was initially identified as a preschool child with a disability and she received special education services through the Committee on Preschool Special Education (CPSE) (Dist. Ex. 13 at p. 1; Tr. p. 89).   As a preschooler, she received special education itinerant teacher (SEIT) services, occupational therapy (OT) (Dist. Ex. 13 at p. 1) and speech-language therapy (Tr. p. 604) to address an articulation delay (Dist. Ex. 12 at p. 1).  Respondent's CSE convened in June 2002 in preparation for the child's entry into kindergarten for the 2002-03 school year (Tr. p. 605).  At the June 2002 meeting, the committee reviewed recommendations from the child's preschool service providers, who indicated that petitioners' daughter was functioning at or above age expectancy and did not require special education services (Tr. p. 31).  The SEIT who had provided preschool services to the child suggested that the child be declassified (Tr. p. 607).  The CSE determined that the child should be declassified upon entering kindergarten because she had progressed, that she was functioning at or above age expectancy (Tr. pp. 31, 404-05; see Dist. Ex. 13 at p. 1) and that she would be monitored in kindergarten and would receive support "within the building" if necessary (Tr. pp. 405, 606).  Petitioners agreed with the CSE's June 2002 recommendation to declassify their daughter (Tr. p. 431).  No special education services were provided during the child's kindergarten year (Tr. pp. 89-90).  The child was screened by respondent's speech pathologist prior to entering kindergarten and was found to have language skills within age appropriate limits, with intelligibility affected by articulation deficits, which the evaluator determined to be the result of developmental errors  (Dist. Ex. 12 at p. 1).  She was screened again at the beginning of her kindergarten year and determined to be improving (id.).  In November 2002 the child began receiving small group instruction twice per week in respondent's "Learning Resource Center" (LRC) (Tr. pp. 166, 608; Dist. Ex. 13 at p. 1), consisting of a general education program that emphasized basic readiness skills such as following verbal directions, phonemic awareness, concepts of print, letter recognition, sound-symbol association, and development of story elements (Dist. Ex. 13 at p. 1; Tr. p. 90).

In March 2003 the child's kindergarten and LRC teachers reported to petitioners that their daughter was having difficulty with reading and that she was copying answers from other children (Tr. pp. 609-10).  The child's kindergarten teacher suggested to petitioners that they consider referring their daughter to the CSE (Tr. pp. 610-11).  After obtaining private evaluations of the child to assess her hearing, vision and general health (Dist. Ex.  22; Tr. p. 612), petitioners referred her to the CSE, indicating that they were concerned about her attention, her ability to follow directions, her social interactions and her level of confidence (Dist. Ex. 13 at p. 1; Tr. pp. 623-24).

The child was evaluated by the CSE during May and June of 2003 (see Dist. Exs. 11, 12, 13).  A speech-language evaluation was performed on May 22, 2003 (Dist. Ex. 12).  The child demonstrated average to above average performance on the Test of Language Development P:3, with scores ranging from the 50th to the 95th percentile (Dist. Ex. 12 at pp. 2-3).  The Test of Auditory Perceptual Skills-Revised yielded scores in the average range for word discrimination, rhyming, and segmenting skills (id.).  The evaluator concluded that the child presented with average auditory perceptual skills and average to above average linguistic skills (Dist. Ex. 13 at p. 3).

A psychological evaluation was performed on May 24, 2003 and May 26, 2003 (Dist. Ex. 11).  Administration of the Wechsler Preschool and Primary Scale of Intelligence (WPPSI-III) yielded a verbal IQ score of 124, a performance IQ score of 101, a processing speed score of 110, and full scale IQ score of 117 (Dist. Ex. 11 at p. 1), which placed the child within the superior range of verbal ability and within the average range of "perceptual-motoric-constructive" ability (Dist. Ex. 11 at p. 2).  On the Wechsler Individual Achievement Test (WIAT) the child achieved standard (and percentile) scores of 103 (58) in basic reading, 108 (70) in mathematics reasoning and 102 (55) in spelling (id.).  Overall, petitioners' daughter scored within the high average range of ability (Dist. Ex. 11 at p. 3).

An educational evaluation was conducted on June 2, 2003 when the child was five years, nine months old and completing her kindergarten year (Dist. Ex. 13).  On the Woodcock-Johnson Tests of Achievement-III, the child achieved standard (and grade equivalent) scores of 107 (1.8) for story recall and 118 (3.2) for understanding directions (Dist. Ex. 13 at p. 4).   The evaluator noted that petitioners' daughter had made academic progress during kindergarten and was prepared for first grade, but also recommended that she continue in the LRC program twice per week (Dist. Ex. 13 at p. 2).

After the evaluations were completed, the CSE convened to review the results and determined that the child was not eligible for classification (Tr. pp. 31-32, 624).  It recommended that for first grade during the 2003-04 school year, petitioners' daughter continue to receive reading instruction in the LRC and that she also receive speech-language services and have access to the school psychologist as needed (Tr. p. 624).  Petitioners secured private tutoring in reading for their daughter in fall 2003 (Tr. p. 628).

During the 2003-04 school year petitioners' daughter received LRC small group instruction within the classroom, using an Orton-Gillingham program, which is a sequential and multisensory approach to language skills, as well as the Lindamood-Bell program to address her oral expression and comprehension needs (Tr. p. 167).  The child's 2003-04 first term report card indicated she had adjusted well to first grade and was making progress (Dist. Ex. 23 at p. 3).  She was beginning to use strategies to decode unknown words (Dist. Ex. 18 at p. 1), but concerns were noted regarding her knowledge of sight words and ability to manipulate letters and sounds (Tr. p. 343).  The fall 2003 LRC progress report also noted that the child continued to progress, but that she was distracted by classroom noises and activities (Dist. Ex. 18 at p. 1).  The record reveals that several modifications were required in the general education classroom to reduce the child's distractibility during her LRC group instruction, and that the group was moved to the LRC classroom in May 2004 (Tr. p. 379).  At the end of the 2003-04 school year, the child was reportedly able to comprehend stories using both pictures and text; was using pictures, context, and word configuration to decode unknown words; was able to work on a story over a period of days; her writing was becoming more decipherable; and she was able to generalize the idea that 2 + 2 could be transferred to 20 + 20 and 200 + 200 (Dist. Ex. 23 at p. 3).  However, she continued to have difficulty with decoding words in isolation, as well as difficulty with math concepts and computation of basic operations (Dist. Ex. 18 at p. 2).

            Petitioners arranged for a private educational evaluation of their daughter in December 2003, when she was six years, seven months old (Dist. Ex. 19).  Administration of the Comprehensive Test of Phonological Processing (CTOPP) yielded a wide range of results, with composite scores in the 73rd percentile in phonological awareness, the 58th percentile in phonological memory and in the 35th percentile in rapid naming (Dist. Ex. 19 at p. 2).  Since results of the Gray Oral Reading Tests, Third Edition (GORT-III) indicated that the child’s decoding skills were weak, the evaluator did not administer an assessment of her independent reading comprehension (id.). On the Gibson Cognitive Test Battery, the child's performance indicated a relative weakness in auditory analysis (age equivalent 5-0) and selective attention (age equivalent 5-0) (Dist. Ex. 19 at pp. 2-3).  The evaluator’s recommendations included completion of the Fast ForWord program, use of a multi-sensory approach for instruction such as Orton-Gillingham or Lindamood-Bell, a speech and language evaluation, and academic support from a private learning specialist (Dist. Ex. 19 at p. 4).   Subsequent to the completion of the education evaluation, the child began private tutoring sessions with the evaluator (Tr. pp. 631-633).

            A private speech-language evaluation was conducted in January 2004 when the child was six years, six months old and in first grade (Dist. Ex. 15).  Administration of the Clinical Evaluation of Language Fundamentals-4 (CELF-4) yielded subtest scores in the average to low average range and identified a relative weakness in performance on subtests administered with only auditory stimuli (Dist. Ex. 15 at pp. 2, 5).  The Token Test for Children identified relative weakness in the child's ability to interpret linguistic concepts involving temporal, spacial, and sequential commands (Dist. Ex. 15 at p. 6).  The child's total language standard score of 94 on the Test of Children's Language (TOCL) was in the 35th percentile, but her writing quotient standard score of 85 on the TOCL was in the 16th percentile (Dist. Ex. 15 at p. 3).  Administration of the Illinois Test of Psycholinguistic Abilities (ITPA) yielded scores ranging from the 16th percentile to the 75th percentile on the spoken subtests, with poorest performance on subtests measuring sound deletion (16th percentile) and rhyming sequences (16th percentile) which the evaluator noted were specific to auditory processing of linguistic information (Dist. Ex. 15 at pp. 4, 9).  The evaluator concluded that the child’s profile was consistent with a "significant" language-based learning disorder and recommended language therapy and comprehensive psychological and educational evaluations (Dist. Ex. 15 at p. 10).  Petitioners' daughter began to receive speech-language services from the evaluator and also completed the Fast ForWord program with this evaluator (Tr. p. 654).  Completion of the Fast ForWord program required that the child be dismissed early from school on a daily basis for six weeks (Tr. p. 634).

            A clinical psychologist privately evaluated petitioners' daughter in February and March 2004 (Dist. Ex.14A; Tr. p. 490).  Administration of the Wechsler Intelligence Scale for Children–IV (WISC-IV) yielded composite scores of 119 in verbal comprehension, 108 in perceptual reasoning, 107 in working memory, 103 in processing speed, and a full scale IQ score of 114 (Dist. Ex. 14A at p. 4).  The child’s standard scores on the WIAT-II, also administered by this evaluator, were consistent with results of previous testing by respondent's school psychologist in May 2003 (compare Dist. Ex. 11 at p. 2 with Dist. Ex. Ex. 14A at p. 9).  Her composite scores from a re-administration of the CTOPP were in the 45th percentile for phonological awareness, the 35th percentile for phonological memory, and in the 8th percentile for rapid naming (Dist. Ex. 14A at pp. 14-15).  These scores were not consistent with the scores achieved during the private evaluation of the child conducted in December 2003, which yielded higher percentile scores in all three areas (Dist. Ex. 19 at pp. 1-2).  In a report dated May 31, 2004, the private psychologist concluded that the child presented with an "underlying dyslexic pattern" and that results of the Conner’s Teacher Rating Scale were significant for an attention deficit disorder, inattentive type, although parent rating scales completed by the child's mother yielded results within normal limits (Dist. Ex. 14A at pp. 11, 15).  The private evaluator recommended that the child receive "intensive remedial support" in an individual or small group setting of "intellectual peers" taught by a learning specialist certified in "special education methodology" using a "structured, sequential curriculum" such as Orton-Gillingham (Dist. Ex. 14A at p. 15).

            At a parent-teacher conference in April 2004, the child's teachers reported that the child was beginning to exhibit difficulties in math which appeared to be related to her difficulties with the language used in respondent's math curriculum (Tr. pp. 644-45).  Petitioners' daughter was not referred to the LRC in math; however, respondent's LRC teacher and speech-language therapist began to incorporate math vocabulary in the child's sessions (Tr. pp. 346-47).  At this time, petitioners completed an application for Windward and had the child placed on a waiting list for enrollment (Tr. p. 652).

            In June 2004, petitioners requested a CSE meeting and consented to the CSE's evaluation of their daughter (Dist. Ex. 27 at p. 4).  Testing was completed in June 2004 (Dist. Ex. 10).  The child achieved a standard score of 103 on the basic reading skills cluster of the Woodcock-Johnson Tests of Achievement–III (Dist. Ex. 10 at p. 2).  Performance on subtests indicated a relative weakness in sound awareness (standard score 85) (id.).  Administration of the Stanford Diagnostic Mathematics Test yielded a total score in the 12th percentile (Dist. Ex. 10 at p. 1).  The Test of Early Written Language yielded a global writing score in the 37th percentile with substantial subtest scatter, including a score in basic writing in the 77th percentile and a contextual writing subtest score in the 9th percentile (id.).

            A July 16, 2004 educational report from the child's LRC special education teacher indicated that the child presented as shy and needing reassurance, and that she appeared nervous prior to reading or answering questions (Parent Ex. A at pp. 1-2).  The child had demonstrated progress in reading decoding in 2004-05 but her teacher reported "internal and external distractions seem to be an obstacle for more substantial progress" (Parent Ex. A at p. 2).  In the last months of the 2003-04 school year, the child had reportedly become a "nonmotivated learner" who did not appear to be comfortable in small group instruction, and her challenges had begun to affect her performance in math (id.).  The LRC special education teacher opined that the child's profile as a student had changed, as had her needs (id.).  The LRC special education teacher recommended increased LRC services; individualized instruction in reading, writing, and math; continuation of a multisensory approach; and use of Orton-Gillingham instruction (id.).

            A June 2004 progress report from the child's first grade teacher noted that the child had responded well to the routines and expectations of first grade and that she was very social with her classmates (Dist. Ex. 16 at p. 1).  Her attending skills had reportedly increased during group activities and she was more independent in social situations and with work habits (id.).  At the time of the June 2004 report, the child had a basic sight word vocabulary of 85 to 100 words; used pictures, context, and word configuration for decoding; was able to sound out and blend simple words when prompted; was able to write simple stories that had a beginning, middle, and end; and her writing was decipherable (id.).  The child demonstrated occasional word substitutions when writing, had trouble sequencing sounds/letters in order; needed support to solve multi-step word problems; did not understand place value for beginning fractions; and her computation was not always accurate (id.).  The teacher also reported that the child sometimes "depended upon others to take over for her"  (Dist. Ex. 16 at p. 2) and "often totally gave up and copied from classmates or waited for the correct answer to be provided" (Dist. Ex. 16 at p. 1). Petitioners reported that their daughter had difficulty with homework assignments, especially with problem solving, applying multistep directions, and directions "requiring assimilation of new information" (Dist. Ex. 17).  Petitioners also reported that their child had "low self-esteem due to her lack of abilities when compared to the other [students] in her class" and that she had said that her "classmates/friends make fun of her because she [required] extra help" (id.). 

            The CSE convened on July 21, 2004 (Dist. Ex. 3)3 and considered results of the private evaluations obtained by petitioners, including a neurological evaluation report, results of formal testing conducted by respondent's evaluators, written reports from the LRC special education teacher, the classroom teacher, and input from the child's mother (Dist. Ex. 3 at pp. 3-6).  The child's private speech pathologist attended the meeting and reviewed the results of her own evaluation as well as the evaluation and recommendations of the private psychologist who had evaluated the child (Tr. p. 272).  The private speech pathologist reported that test results suggested that the child was able to perform grade level work when tasks were broken down into smaller units and she was provided with enough time (Dist. Ex. 3 at p. 5).  Respondent's psychologist observed that the profile of the child as presented in the private evaluation conducted in February and March 2004 was much the same as the profile described in respondent's evaluation conducted in May 2003.  Respondent's psychologist disagreed with the private evaluator's conclusion that responses on the Conner's Teacher Rating Scale indicated an attention deficit disorder (Dist. Ex. 3 at p. 4).  The CSE also reviewed the reports of the December 2003 private educational evaluation and the March 2004 private psychological evaluation of the child and discussed the discrepancy in the CTOPP scores from the two evaluations (Dist. Ex. 3 at p. 5).  The July 21, 2004 CSE recommended that the child be classified LD (Dist. Ex. 3 at p. 1).  For the 2004-05 school year the committee recommended individual resource room services two times per week for 40 minutes, group resource room services three times per week for 40 minutes, and group speech-language therapy two times per week for 30 minutes, and also recommended various test accommodations and program modifications (Dist. Ex. 3 at pp. 1-2).  Meeting minutes in the comments section of the July 21, 2004 IEP indicated that goals for the child's IEP were reviewed and discussed at the July 21 meeting (Dist. Ex. 3 at p. 5).  The minutes also noted that the child's father disagreed with the program recommended by the CSE for 2004-05, stating the proposed classroom setting was too large, the child would be spending too much time out of the classroom, the program would not provide the child with the multisensory approach she required, and that the program would "stress" the child (id.).  He asked that the CSE meeting not conclude and that he be given time to consider his options and to speak with the child's private evaluators (id.).  The minutes also indicated the child's father was advised that he could request another CSE meeting and that the IEP would be sent to him for his consideration and could be used as a "springboard for further dialogue" (id.). 

            After receiving the child's July 21, 2004 IEP, petitioners rejected the CSE's recommended program and informed the CSE chairperson, by letter dated August 5, 2004, that they were enrolling their child at Windward for the 2004-05 school year because they did not believe the proposed IEP was adequate to meet their child's needs (Dist. Ex. 4 at p. 1) and that they would be seeking tuition reimbursement and reimbursement for private evaluations, the Fast ForWord Program and tutoring expenses (Dist. Ex. 4 at p. 2).

            The CSE reconvened on September 1, 2004 and amended the child's IEP by increasing resource room instruction from 40 minutes three times per week in a small group and 40 minutes twice times per week individually to individual resource room instruction one hour per day and special class instruction in a small group for one hour per day (compare Dist. Ex. 3 at p. 1 with Dist. Ex. 7 at p. 1).  Services in the special education class were added to provide the child with small group instruction in math by a special educator (Dist. Ex. 7 at p. 6).  Goals and objectives were not changed (compare Dist. Ex. 3 at pp. 6-8 with Dist. Ex. 7 at pp. 7-9).  Petitioners indicated that they would consider the CSE's recommendations (Dist Ex. 7 at p. 6). They expressed concern that their daughter would have to make many transitions for pull-out services and that she was already stigmatized by the other students in the school for needing special services (id.).  In a letter dated September 3, 2004, the parents rejected the September 1, 2004 IEP (Dist. Ex. 8).

            By letter dated February 11, 2005, petitioners requested an impartial hearing for the purpose of obtaining tuition reimbursement (Joint Ex. 2).  The impartial hearing commenced on April 25, 2005 and concluded on June 30, 2005 after five days of testimony.  On August 27, 2005, the impartial hearing officer rendered his decision finding that respondent had offered to provide a free appropriate public education (FAPE) to the student during the 2004-05 school year (IHO Decision, p. 1).  More specifically, the impartial hearing officer found that the CSE's recommended July 21, 2004 IEP (Dist. Ex. 3) and September 1, 2004 IEP (Dist. Ex. 7) offered the child a FAPE in the least restrictive environment (LRE) (IHO Decision, p. 3).  The impartial hearing officer also found that there was no evidence presented at the impartial hearing that the evaluations completed by respondent was either inappropriate or inadequate (IHO Decision, p. 3).  Thus, the impartial hearing officer denied petitioners' request to be reimbursed for their daughter's tuition costs at Windward for the 2004-05 school year and expenses related to the educational evaluations obtained by the parents (IHO Decision, p. 4).  In addition, the impartial hearing officer denied reimbursement for tutoring and the Fast ForWord program because respondent had offered the child a FAPE in the LRE (id.).

            On appeal, petitioners request to be reimbursed for their daughter's tuition costs at Windward for the 2004-05 school year and expenses related to tutoring, private educational evaluations and the Fast ForWord program.  Petitioners also allege that respondent failed its "child find" obligations by failing to evaluate and provide services to their daughter in the 2002-03 and 2003-04 school years.  Petitioners further allege that the September 1, 2004 CSE meeting was improperly constituted, petitioners were not allowed to be meaningful participants in the CSE process, and the resultant 2004-05 IEP contained vague goals and objectives.  Petitioners contend that respondent failed to offer their daughter a FAPE for the 2004-05 school year, Windward was an appropriate placement, and equitable considerations favor their claim for reimbursement.  In addition, petitioners allege that the impartial hearing officer slept "for extended periods of time on repeated occasions each day of the testimony" and was biased.

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)4 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [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][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).5  A board of education may be required to reimburse parents for their expenditures for private 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).

            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]).

            I will address petitioners' claim of hearing officer bias first.  Petitioners claim that the impartial hearing officer questioned their expert witness "in an offensive and insulting manner."  An impartial hearing officer must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice (Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 04-018; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 03-071, Application of a Child with a Disability, Appeal No. 01-046).  Inappropriate remarks by a hearing officer may afford a basis for concluding that the hearing officer was biased (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 98-55).  I have carefully reviewed the entire transcript of the impartial hearing, including the hearing officer's interaction with the parties and the text of his decision, and I find no evidence to support petitioners' contention.  Although petitioners may disagree with the conclusions reached by the impartial hearing officer, that disagreement does not provide a basis for finding actual or apparent bias by the hearing officer (Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75).  In addition, given the interaction between the impartial hearing officer and the parties and witnesses reflected in the transcript, I find no evidence to support petitioners' claim that the impartial hearing officer repeatedly slept during the impartial hearing.

            Petitioners allege that respondent failed to evaluate and provide special education services to their daughter during the 2002-03 and 2003-04 school years.  Petitioners' daughter was declassified prior to entering kindergarten during the 2002-03 school year, and was not reclassified until the July 21, 2004 CSE meeting which addressed the 2004-05 school year.  The IDEA's "child find" provision places on school districts an affirmative obligation to identify, locate, and evaluate all disabled youth who reside in the district (see 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.125; § 300.300(a)(2); 8 NYCRR 200.2[a][1]; Application of a Child Suspected of Having a Disability, Appeal No. 05-069; Application of a Child with a Disability, Appeal No.04-054). A student suspected of having a disability shall be referred in writing to the chairperson of the district's CSE or to the building administrator of the school which the student attends for an individual evaluation and determination of eligibility for special education programs and services (8 NYCRR 200.4[a]; Application of a Child with a Disability, Appeal No. 03-050).

            State regulations also require that each board of education establish a plan and policies for implementing school wide approaches and pre-referral interventions in order to remediate a student's performance prior to referral for special education (8 NYCRR 200.2[b][7]; see also N.Y. Educ. Law § 4401-a [3], [5]; Application of a Child Suspected of Having a Disability, Appeal No. 05-069).  The CSE met in June 2002 (Tr. p. 605).  The SEIT who had provided preschool services to the child suggested that the child be declassified (Tr. p. 607).  The CSE determined that the child should be declassified upon entering kindergarten because she had progressed and was functioning at or above age expectancy (Tr. pp. 404-05; see Dist. Ex. 13 at p. 1), and that she would be monitored in kindergarten and would receive support "within the building" if necessary (Tr. pp. 405, 606).  Petitioners did not challenge the CSE's June 2002 recommendation to declassify their daughter (Tr. p. 431).  Although she was not classified when she entered kindergarten in the 2002-03 school year, petitioners' daughter received "building level services," consisting of small group instruction in the LRC (Tr. pp. 166, 608; Dist. Ex. 13 at p. 1).  The child was described by her kindergarten teacher as being a "pre-emergent" reader at the start of the 2002-03 school year and as progressing to "emergent"  (Tr. pp. 341-43).  In March 2003 the child's kindergarten and LRC teachers reported to petitioners that their daughter was having difficulty with reading and that she was copying answers from the other children (Tr. pp. 609-10).  The child was evaluated by the CSE during May and June of 2003 (see Dist. Exs. 11, 12, 13).  Although most of these evaluations yielded scores in the average to above average range, the speech-language evaluation of the child yielded some subtest scores in the low average range (id.) and respondent's educational evaluator recommended that petitioners' daughter continue in the LRC program (see Dist. Ex. 13 at p. 2).  The CSE that convened to review these results determined that the child was not eligible for classification at that time, but recommended that for first grade during the 2003-04 school year, petitioners' daughter continue to receive reading instruction in the LRC and that she also receive speech-language services and have access to the school psychologist as needed (Tr. p. 624).  I have reviewed the impartial hearing record along with petitioners' claims regarding respondent's alleged failure to evaluate and provide special education services to their daughter in 2002-03 and 2003-04 school years and find this contention to be without merit. Moreover, any claim that arose prior to one year before petitioners' February 11, 2005 hearing request is barred as untimely by application of the one-year statute of limitations in effect at the time of petitioners' hearing request (Application of a Child with a Disability, Appeal No. 05-029; Application of the Bd. of Educ., Appeal No. 02-119)

            Petitioners allege that the September 1, 2004 CSE meeting was improperly constituted and that they were not allowed to be meaningful participants in the CSE process.  The CSE that convened on July 21, 2004 consisted of the CSE chairperson, the child's school principal, school psychologist, regular education teacher, LRC teacher, as well as respondent's speech specialist, the child's parents, the parents' private speech therapist, and a parent member (Dist. Ex. 3 at p. 4).  The July 21 CSE meeting notes relating to the IEP developed on that date, consisting of almost two full pages, include a very detailed summary of discussion about the child's program that occurred at the CSE meeting (see Dist. Ex. 3 at pp. 4-5).  The summary states that the child's private speech pathologist attended the July 21 meeting and reviewed the results of her own evaluation as well as the evaluation and recommendations of the private psychologist who had evaluated the child (Tr. p. 272).  The private speech pathologist reported that test results suggested that the child was able to perform grade level work when tasks were broken down into smaller units and she was provided with enough time (Dist. Ex. 3 at p. 5).  The district psychologist observed that the profile of the child was much the same as the profile described in respondent's evaluation conducted in May 2003.  Respondent's psychologist disagreed with the private psychologist's conclusion that responses on the Conner's Teacher Rating Scale indicated an attention deficit disorder (Dist. Ex. 3 at p. 4).  The July 21 CSE also reviewed the reports of the December 2003 private educational evaluation and the March 2004 private psychological evaluation of the child and discussed the discrepancy in the CTOPP scores from the two evaluations (Dist. Ex. 3 at p. 5).  The child's goals and short-term objectives were discussed at the July 21, 2004 CSE meeting (Dist. Ex. 3 at p. 5).   The summary also notes that the child's father disagreed with the program recommended by the CSE for 2004-05 and asked that the CSE meeting not conclude and that he be given time to consider his options and to speak with the child's private evaluators (id.).  He was advised that he could request another CSE meeting and that the IEP would be sent to him for his consideration and could be used as a "springboard for further dialogue" (id.).  I find that petitioners were meaningful participants in the CSE process during the July 21, 2004 CSE meeting.   The CSE reconvened on September 1, 2004, and responded to petitioners' concerns with the July IEP, that their daughter required more intensive instruction, by amending the child's IEP, to increase resource room instruction from 40 minutes three times per week in a small group and 40 minutes twice times per week individually to individual resource room instruction one hour per day and special class instruction in a small group for one hour per day (compare Dist. Ex. 3 at p. 1 with Dist. Ex. 7 at pp. 1, 4-6).  Services in the special class were added to provide the child with small group instruction in math by a special educator (Dist. Ex. 7 at p. 6).  Although goals and objectives were not changed at the September 1, 2004 meeting, the goals were again reviewed (compare Dist. Ex. 3 at pp. 6-8 with Dist. Ex. 7 at pp. 7-9) and the CSE responded to petitioners' concern that the recommendations made by their private psychologist were not included in the IEP by explaining how the IEP goals and objectives reflected each of the private psychologist's recommendations (Dist. Ex. 7 at p. 6).  At the impartial hearing, the CSE chairperson testified that the CSE "went through each and every concern listed in the evaluations, [the private evaluations], our own evaluation and the concern the teacher had with regard to [the child's] performance in class and [the CSE] matched up the area[s] of weakness and developed goals and objectives that correlated with those areas of weakness" (Tr. pp. 74-75).  The CSE chairperson further testified, "there was no objection to any of the goals and objectives that were established on either date, at the July meeting or the September meeting" (Tr. p. 76, see Tr. p. 285). Given the level of parental participation and respondent’s consideration and responsiveness to parental input, I find that petitioners meaningfully participated in the CSE process at the July 21, 2004 CSE meeting and the September 1, 2004 CSE meeting.

Petitioners also contend that their daughter's September 1, 2004 IEP contained vague goals and objectives.  I have carefully reviewed the goals and objectives on the September 1, 2004 IEP and find that they are behaviorally stated, measurable and reflect the child's needs as identified by the members of respondent's staff who worked directly with the child as well as needs identified by petitioners' private evaluators.  I note that, at the impartial hearing, the LRC teacher who would have provided instruction to the child in second grade testified to the appropriateness of each of the IEP goals and described the direct relationship of the objectives to the child's identified deficits and to the recommendations presented by the evaluators (Tr. pp. 277-81).  She further testified that objectives corresponding to the reading goals were based on the information received from the private psychological evaluation report and "would be following an Orton Gillingham reading program, specifically Recipe for Reading" with goals that follow the phonetic sequence that was part of that specific reading program and that this was explained at the July 21, 2004 CSE meeting at which the goals and objectives were initially reviewed (Tr. p. 279).  While some of the annual goals do not indicate the level at which the child is expected to achieve, the objectives and benchmarks within these goals are sufficiently specific to have given guidance to the student's teachers (Application of the Bd. of Educ., Appeal No. 00-045; Application of a Child with a Disability, Appeal No. 99-7). 

I am persuaded that the record amply demonstrates that respondent offered an educational program that met the child's special educational needs in the LRE with its July 21, 2004 and September 1, 2004 IEPs being reasonably calculated to confer educational benefit to the child.  Having determined that respondent has 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 issues of whether Windward was an appropriate placement and whether petitioners' selection of private tutoring was appropriate for their daughter (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).

            The impartial hearing officer denied petitioners' request for reimbursement for the cost of the privately obtained evaluations, tutoring and Fast Forward program. Upon review of the hearing record, I find that there is no need to modify the impartial hearing officer’s decision regarding the independently obtained evaluation, services, and program.

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

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

December 14, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

Petitioners assert that a timely notice of intention to seek review (8 NYCRR 279.2) was timely served upon respondent on September 23, 2005 (Pet. ¶ 8). The purpose for requiring petitioning parents to serve a notice of intention to seek review is to ensure that the hearing record is provided to the State Review Officer, and provided in a timely manner (Application of a Child with a Disability, Appeal No. 02-009). The notice of intention to seek review requires a respondent board of education to forward the hearing record to the Office of State Review within ten days after service of the notice (8 NYCRR 279.2[a]). It is the notice of petition and petition for review that initiates the review of hearings for students with disabilities (8 NYCRR 279.4). Petitioners also assert that the impartial hearing officer’s decision was received on September 6, 2005, ten days after the date of the decision (Pet. ¶ 8). Even taking into consideration that the decision was received outside the regulatory exclusion of the date of mailing plus four subsequent days in calculating time for service, the notice of petition and petition were still untimely filed.  Moreover, petitioners assert that respondent consented to the late initiation of review (Pet. ¶ 8), however, state regulation does not permit the parties to extend the regulatory timeline to initiate review.

Petitioners were represented by counsel at the impartial hearing.

3 I note that the record contains a discrepancy as to whether the student's July 21, 2004 IEP was actually admitted in evidence as District Exhibit 1 or District Exhibit 3 (Tr. pp. 35, 137, 256; IHO Decision, p. 3).  For the purposes of this decision, I will refer to the student's July 21, 2004 IEP as District Exhibit 3 because the record reflects that there is no District Exhibit 1 or District Exhibit 2 in evidence (Tr. p. 137).

4 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647 [2004]). Since the relevant underlying events of this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEIA do not apply, and citations contained in this decision are to the statute as it existed prior to the 2004 amendments.

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

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

(B)  meet the 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).