The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the New Lebanon Central School District
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel
Girvin & Ferlazzo, P.C., attorney for respondent, Karen S. Norlander, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year. The appeal must be dismissed.
The student was 12 years old and had completed the sixth grade at Kildonan when the hearing began in July 2005. His prior educational history is described in Application of a Child with a Disability, Appeal No. 05-021, and will not be repeated here in detail. In addition to continuing to show previously identified deficits in phonemic awareness, short-term memory and working memory, the student's 2004 test results show that he has deficits in the areas of spelling, writing and reading (Tr. pp. 124-26). The student's eligibility for special education programs and services and his classification as a student with a learning disability are not in dispute (see 8 NYCRR 200.1[zz]).
The student completed fourth grade at respondent's elementary school and began attending Kildonan for fifth grade during the 2003-04 school year (Tr. pp. 344-45, 404, 543-44). Kildonan has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. During the student's fifth grade year, Kildonan staff prepared progress reports in November 2003 and February 2004 (Parent Exs. N, L), conducted testing in November 2003 and May 2004 (Parent Ex. J at p. 18), and completed interim reports in January and April 2004 (Parent Exs. M, K). In a June 2004 year end progress report, the student's language training instructor indicated that the student worked hard to improve his expressive language skills, but that he continued to need practice with expressive language tasks (Parent Ex. J at p. 1). She indicated that the student demonstrated the ability to write a five paragraph essay after generating and organizing a list of ideas (id.). The language training instructor further indicated that the student's writing had become more descriptive and interesting and that it reflected the improvement in his expressive language (id.). She commented that the student was "happy to read, and at times, it [was] difficult to stop him from reading when his tutoring session [was] over" (id.).
Toward the end of the 2003-04 school year, respondent's Committee on Special Education (CSE) began preparing for the student's annual review (Tr. p. 62). In May 2004, the CSE chairperson and the special education teacher who taught the student when he was in the fourth grade at the district's elementary school observed the student at Kildonan in a one-on-one and a small group setting (Tr. pp. 62, 739). In June 2004, the CSE obtained information from Kildonan and requested petitioners' consent to conduct further testing (Dist. Ex. 5). The CSE also obtained petitioners' consent to release their son's records to the Capital Region Board of Cooperative Educational Services (BOCES) Specialized Literacy Instruction Program (SLIP), a day program operated by Capital Region BOCES for students having a specific written language learning disability (Dist. Ex. 27, Parent Ex. X).
On July 13, 2004, respondent's school psychologist conducted an academic evaluation of the student (Dist. Ex. 10). Administration of the Woodcock Reading Mastery Test (WRMT) revealed a readiness cluster standard score of 100, a basic skills cluster standard score of 93 and a reading comprehension standard score of 96, resulting in a total reading cluster standard score of 93. The school psychologist reported that the student's overall reading performance on the WRMT indicated that he was reading "on a level indicative of a student in the sixth month of the fourth grade." The school psychologist described the student's reading readiness skills as sufficient, noting that the student was able to identify letters in various forms and styles, and associate visual stimuli with familiar words. He further reported that the student exhibited low basic skills for reading, indicating that the student had difficulty recognizing frequently used words in the English language. He noted, however, that the student was able to phonemically decode nonsense words on a level that exceeded his current grade expectations. The student's overall comprehension was in the "approximate average range," as was his performance on a measure of his capacity to read words and identify their antonym or synonym.
Toward the end of July 2004, the special education teacher who taught the student when he was in the fourth grade at the district's elementary school administered the Wechsler Individual Achievement Test-Second Edition (WIAT-2) to the student yielding a composite standard score in reading of 88, a composite standard score in written language of 79 and a composite standard score in oral language of 108 (Dist. Ex. 9). Subtest standard scores ranged from a low of 79 for written expression to a high of 117 for listening comprehension. The student achieved standard scores of 83 for word reading, 82 for spelling, 96 for reading comprehension, and 93 for pseudoword decoding.
Respondent's CSE met on July 22, 2004 for the student's annual review (Dist. Ex. 14). A representative from BOCES participated at the meeting by phone and explained the BOCES SLIP (Tr. p. 78). The CSE reviewed the results of the testing conducted in July, the student's present levels of performance, his behavior management needs, goals and objectives and accommodations and supports (Tr. pp. 79-80, 83). The CSE discussed the need for additional information from Kildonan in order to develop the student's goals and objectives for the 2004-05 school year, and decided to continue the meeting on August 12, 2004 in order to finalize the student's IEP (Tr. pp. 79-80, 84). Petitioners were provided a copy of the draft IEP discussed at the meeting and were asked to review it and contact the CSE chairperson with any suggestions or changes (Tr. p. 85).
At the beginning of August 2004, petitioners, accompanied by respondent's CSE chairperson, visited the out-of-district public school where the BOCES SLIP would be offered during the 2004-05 school year (Tr. pp. 390, 566-68). They met with teachers and discussed the program (Tr. p. 569-70).
On August 12, 2004, the CSE reconvened to finalize the student's IEP for the 2004-05 school year (Tr. p. 80). The CSE reviewed the information it received from Kildonan and modified the objectives on the July draft IEP (Tr. p. 89). It recommended that the student attend the district's elementary school and that he receive special class Language Arts five times per week, resource room five times per week, direct consultant teacher services twice per week for Science and Social Studies, and direct teaching assistant instruction for Science and Social Studies the remaining three days per week (Dist. Ex. 23 at p. 8). The CSE also recommended individual counseling once per week, as well as a variety of program modifications, accommodations, supplementary aids and services, and testing accommodations (Dist. Ex. 23 at pp. 8-10). The CSE further recommended a 30-day review to evaluate whether the district's elementary school "remains the appropriate placement" (Dist. Ex. 23 at p. 9). At the meeting, the CSE chairperson notified petitioners that the special education teacher who had previously taught their son and who was to implement his IEP during the 2004-05 school year had recently resigned (Tr. p. 90). She indicated that she was unsure who would replace the special education teacher (id.). The CSE chairperson scheduled another meeting for September 2, 2004 in the event a teacher qualified in "multisensory approach instruction" could not be found (Tr. p. 92). She explained that if a qualified teacher could not be found, the CSE would reconvene and change its program recommendation to the BOCES SLIP (id.). At the end of the August 2004 meeting, petitioners indicated that their son would be returning to Kildonan for the 2004-05 school year (Tr. p. 90).
By letter dated August 18, 2004 petitioners notified the CSE chairperson that they were rejecting the IEP proposed for the 2004-05 school year and that they were placing their son at Kildonan (Dist. Ex. 15). They explained that the proposed IEP was inappropriate for their son because the proposed program and placement does not meet his needs. They indicated that they intended to seek full tuition reimbursement and related transportation costs.
The CSE reconvened on September 2, 2004 with the student's father in attendance (Tr. p. 114). The CSE chairperson advised the student's father that a teacher had been hired (id.). The student's father again indicated that he was sending his son to Kildonan (Tr. p. 115).
In a letter dated September 2, 2004 to petitioners, the CSE chairperson outlined the recommendations developed for their son at the August 2004 CSE meeting and advised them that the recommendations would be reviewed by respondent (Dist. Ex. 21). By letter dated September 8, 2004, petitioners were advised that respondent had reviewed and approved the CSE's recommendations (Dist. Ex. 22).
The student returned to Kildonan for the 2004-05 school year. At the end of the school year, by letter dated June 21, 2005, petitioners requested an impartial hearing challenging the August 2004 IEP as "inappropriate due to repetitive programs that fail to address [their son's] individual needs" (Dist. Ex. 1). In their letter, they refer to an attached May 2004 request for an impartial hearing challenging the IEP developed for their son for the 2003-04 school year (id.). In July 2004, petitioners completed a "Due Process Complaint Notice" describing the nature of their concerns as "failure to thrive," "failure to acquire basic reading skills commensurate with abilities and appropriate peer group" and "failure of CSE to acknowledge [their son's] needs for an intensive, coordinated program" (Dist. Ex. 2). As a proposed solution, they suggested "provision of appropriate program for individuals with dyslexia (a scientifically proven curriculum for remediation of language based learning disabilities through a structured, sequential multisensory approach)" (id.).
The impartial hearing was held on July 28, 29, and on August 5, 2005. The impartial hearing officer rendered her decision on September 19, 2005. In her decision, she summarized the positions of the parties, indicating that petitioners did not agree with the IEP developed at the August 12, 2004 CSE meeting. She concluded that the IEP developed for the student for the 2004-05 school year was reasonably calculated to meet the student's unique needs and she denied petitioners' request for tuition reimbursement.
Petitioners appeal from the impartial hearing officer's decision. They seek recourse for the CSE's failure to "recommend an IEP and placement at the SLIP placement option in conformity with the recommendations of the CSE." With the exception of claiming that the CSE failed to recommend the BOCES SLIP, petitioners do not raise specific challenges to the August 2004 IEP. Rather, they assert that the "level of intervention" recommended for their son for the 2004-05 school year does not provide a free appropriate public education (FAPE).
The purpose behind the Individuals with Disabilities Education Act (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][A]; Schaffer v. Weast, 126 S. Ct. 528 ). 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2 A board of education may be required to reimburse parents for their expenditures for private 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 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 ). 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).
As noted above, the record shows that the student has deficits in spelling, writing, reading, phonemic awareness and short-term and working memory (Tr. pp. 124-26). The August 2004 IEP provides for daily Language Arts instruction in a separate location with two other students using a program recommended by a private evaluator who assessed the student in 2002 (Dist. Ex. 23 at p. 8; Tr. p. 143). In addition, the IEP provides for resource room services in a group of five once per day for 40 minutes (Dist. Ex. 23 at p. 8). The IEP also provides for direct consultant teacher services within the general education Science and Social Studies classes two days per week, with direct instruction from a teaching assistant the remaining three days of the week. Numerous program modifications, accommodations and supplementary aids and services are listed on the student's IEP including test items read as requested by petitioners (Dist. Ex. 23 at pp. 8-11; Tr. p. 130). The IEP further provides for a 30-day review to evaluate whether the recommended placement at the district's elementary school remained appropriate (Dist. Ex. 23 at p. 9).
The CSE chairperson testified that most of the student's needs remained the same as those identified in prior years (Tr. p. 124). She further testified that the CSE recommended that the student receive the same services for the 2004-05 school year that it had recommended for the student for the 2003-04 school year because he had made progress when the program was first implemented during the 2002-03 school year, the last year he attended school in the district (Tr. pp. 41, 154). Given the nature and extent of the student's disability, I find that respondent's CSE recommended a program that provided for the use of appropriate special education services. The recommended program, initially developed with the assistance of the private evaluator, provided for special education instruction in three academic subjects, with daily resource room services and variety of program modifications, accommodations, supplementary aids and services, and testing accommodations. Based upon my independent review of the hearing record and the evidence presented in this appeal, I find that the recommended program was reasonably calculated to enable the student to receive educational benefits. Accordingly, I find that the evidence demonstrates that respondent offered to provide a FAPE to the student for the 2004-05 school year. Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Kildonan was an appropriate placement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).
I must note that a number of petitioners' remaining claims pertain to the September 2, 2004 CSE meeting, including claims relating to the composition of the CSE, the development of an IEP and the recommendation of the CSE (Pet. ¶¶ 34 – 39). I have considered petitioners' claims and I find that they are not supported by the record. The record shows that when the CSE met in September 2004, the required members were present (Answer Ex. C). The record also shows that the CSE did not generate a new IEP at the September 2004 meeting (Tr. p. 315). I note that the student's mother testified that the August 2004 IEP was the final IEP (Tr. p. 549). In addition, as noted above, the record shows that the September 2004 meeting was scheduled in the event a teacher qualified in "multisensory approach instruction" had not been hired (Tr. p. 92). The CSE chairperson testified that when the CSE convened in September 2004, the meeting was "quick and to the point" (Tr. p. 114). She stated that she advised the student's father that a teacher had been hired and that the CSE would continue to recommend the August 2004 IEP (id.). The recommended placement on the student's August 2004 IEP is the district's elementary school (Dist. Ex. 23 at p. 11). The student's mother testified that for the 2004-05 school year, the CSE recommended that her son be placed at the district's elementary school (Tr. pp. 545, 551). The CSE chairperson repeatedly testified that the CSE recommended that the student be placed at the district's elementary (Tr. pp. 92, 111-112, 324). She explained that the BOCES SLIP was not a recommendation, but was always an option, and that it was being investigated in an effort to accommodate petitioners' preference for a more restrictive program and in the event a teacher could not be hired for the 2004-05 school year (Tr. pp. 76, 324, 335-36, 379, 715, 719-20). Contrary to petitioners' assertions, there is nothing in the record to support that the CSE recommended the BOCES SLIP, and, therefore, nothing in the record to support that the CSE changed its recommendation from the BOCES SLIP to the district's elementary school.
I have considered petitioners' remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
December 12, 2005
PAUL F. KELLY
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.
2 The term "free appropriate public education" means special education and related services that -