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

 

No. 05-114

 

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 Sayville Union Free School District

 

Appearances:

Pamela Anne Tucker, Esq., attorney for petitioners

Guercio & Guercio, attorney for respondent, Gary L. Steffanetta, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which determined that the educational program respondent's Committee on Special Education (CSE) had recommended for their daughter for the 2005-06 school year and summer 2005 was appropriate.  The appeal must be dismissed.

At the outset, I must address a procedural issue.  Respondent seeks dismissal of the petition asserting that petitioners failed to provide factual support in their petition for the issues they raised on appeal (8 NYCRR 279.4[a]; see also 8 NYCRR 275.10). I have reviewed the petition, and I find that it sufficiently states facts supporting petitioners' claim to enable respondent to prepare its answer to the petition.  I will therefore address the merits of the petition (Application of a Child with a Disability, Appeal No. 03-106; Application of a Child with a Disability, Appeal No. 95-75).

At the commencement of the impartial hearing in May 2005, petitioners' daughter was 12 years old and attending sixth grade in a 15:1 self-contained class at respondent's middle school (Dist. Ex. A at p. 1).  Pursuant to her March 15, 2005 individualized education program (IEP), she was also provided a shared aide and was receiving occupational, physical, and speech-language therapies and counseling (id.). The student's eligibility for special education services and classification as a student with multiple disabilities (see 8 NYCRR 200.1[zz][8]) are not in dispute in this appeal.  Although the March 15, 2005 IEP provided for speech/language services during summer 2005, petitioners complain that the CSE did not recommend academic extended school year services (ESY) that had been provided the previous summer. During the pendency of the current complaint, by agreement of the parties, the student did receive academic and related services during summer 2005 (IHO Decision p.8).

Petitioners' daughter has multiple disabilities as the result of a stroke at the age of four months resulting in a left hemiparesis, an intractable seizure disorder, and cognitive deficits (June 7, 2005 Tr. p. 303).  She has also been diagnosed with cerebral palsy and an immune deficiency, and she wears bilateral orthotics to support her lower extremities (Parent Ex. 4 at p. 1, Dist. Ex. Z at p. 1).  The student underwent a right fronto-parietal resection in 2002 to control her seizure disorder (Parent Ex. 4 at p. 1).  Recent testing indicated that the student's cognitive abilities are within the borderline/impaired range (Parent Ex. 4 at p. 3).  She has identified deficits in fine and gross motor skills, balance and coordination, visual motor skills, and in expressive and receptive language which significantly affect her reading comprehension, understanding of math concepts, written expression, and motor abilities (Dist. Exs. A at p. 3, L, N at p. 3, Z at p. 1).  The record also reflects social/emotional deficits affecting her ability to interact appropriately with peers (Dist. Ex. A at p. 4).

There is little in the record documenting the student's early educational history.  She reportedly began receiving early intervention services in 1993 and began as a kindergarten student via a video link due to multiple health concerns (Dist. Ex. X at p. 2). The student's mother testified that the student has resided in respondent's school district the entire time that she has been school aged and that she has always been a special education student (June 7, 2005 Tr. p. 311).  Administration of the Wechsler Preschool and Primary Scale of Intelligence-R (WPPSI-R) in December 1998, when the student was five years ten months old, yielded a verbal IQ score of 65, a performance IQ score of 75 and a full scale IQ score of 68 (Dist. Ex. X at p. 1).  Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) in August 2000, yielded a verbal IQ score of 63, a performance IQ score of 63, and a full scale IQ score of 60 (Dist. Ex. X at p. 1).  In April 2001, the student achieved a total score in the sixth percentile on the Stanford Diagnostic Math Test and a total score in the 18th percentile on the Stanford Diagnostic Reading Test.  Administration of the Clinical Evaluation of Language Fundamentals-3 (CELF-3) in February 2002, when the student was nine years old, yielded subtest scores (ss) in the moderate to severe range (concepts and directions (ss 4), word classes (ss 4), semantic relations (ss 5), formulated sentences (ss 5), recalling sentences (ss 5), listening to paragraphs (ss 5).  A re-administration of the CELF-3 in February 2003 yielded subtest scores in the average to severe range with significant improvement noted in word classes (ss 7) and semantic relations (ss 9) and a relative regression noted in listening to paragraphs (ss 3) (Dist. Exs. G at p. 3, F at p. 3).

The student’s IEPs from school years 2002-03 and 2003-04 indicate that the student's special education program had been provided in a self-contained special class, and that she received individual occupational therapy (OT) three times per week for 30 minutes, individual physical therapy (PT) two times per week for 30 minutes, and speech-language therapy in a small group three times per week for 30 minutes, as well as various test accommodations and program modifications (Dist. Exs. C, E-G).  The IEPs also indicate that petitioners' daughter participated in respondent's general education physical education (PE) program (id.).  Her IEP for the 2002-03 school year contained one goal and one objective to address her needs in study skills, two reading goals with a total of six objectives, two writing goals with a total of four objectives, a mathematics goal with four objectives, a speech-language goal with fourteen objectives, and eight motor skills goals with a total of twenty-one objectives (Dist. Ex. G at pp. 4-8).  Her IEP for the 2003-04 school year contained one goal and four objectives to address her needs in study skills, two reading goals with a total of seven objectives, two writing goals with a total of four objectives, a mathematics goal with four objectives, a speech-language goal with twenty-three objectives, seven motor skills goals with a total of twenty-four objectives and one goal with twenty-three objectives to address her basic cognitive/living (Dist. Ex. F at pp. 4-9).  The record indicates that the student's rate of progress during the 2002-03 and 2003-04 school years was slow and inconsistent (Dist. Ex. G at p. 3).  She required frequent reinforcement and repetition to gain understanding of concepts and had significant academic deficits in reading, mathematics/numerical concepts, and writing (id.).  For the 2002-03 school year, the student was provided an individual aide in the classroom.  During the 2003-04 school year, the IEP was amended to provide a shared aide for the student during recess and PE for the 2003-04 school year (Dist. Ex. F at p. 1).  For both the 2002-03 and 2003-04 school years, petitioners' daughter received ESY services consisting of a full-time self-contained special class with individual OT two times per week for 30 minutes, individual PT two times per week for 30 minutes, and speech-language therapy in a small group two times per week for 30 minutes (Dist. Exs. C, E-G).

Administration of the WISC-II in September 2003, when the student was ten years seven months old and in respondent's fifth grade, yielded a verbal IQ score of 65, a performance IQ score of 75, and a full scale IQ score of 68 (Dist. Ex. B at p. 4).  Relative strengths were found in the student's psychomotor speed and ability to rapidly learn a code, as well as her short-term auditory memory (Dist. Ex. X at p. 3).  Administration of the Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI) yielded a standard score of 77 (sixth percentile) and was commensurate with her nonverbal abilities as measured by the WISC-III (Dist. Ex. X at p. 2).  An education evaluation was conducted by the student's fifth grade teacher on various dates between October 2003 and December 2003 (Dist. Ex. W).  On the Test of Written Language-3 (TOWL-3), the student achieved an overall standard score of 73 for writing, which is in the poor range, with a composite score of 77 for contrived writing and subtest scores ranging from average for vocabulary and spelling (ss 8) to poor for style and logical sentences (ss 5) (Dist. Ex. W at p. 2).  Her composite score for spontaneous writing was 70 and her subtest scores ranged from below average for contextual conventions and contextual writing (ss 6) to poor for story construction (ss 4) (Dist. Ex. W at p. 2).  On the Woodcock-Johnson III Tests of Achievement, the student achieved a broad reading standard score of 81 with standard scores of 87 in subtests measuring basic reading, 83 in letter word identification, 86 in reading fluency, and 93 in word attack, 77 in reading comprehension, 81 in passage comprehension, and 79 in reading vocabulary (Dist. Ex. W at p. 4).  The student achieved a broad math score of 51 with subtest scores of 72 in calculation, 78 in math fluency, and 32 in applied problems (id.).  The CELF-III was administered by the student's speech-language pathologist in February 2004 (Dist. Ex. T).  The student achieved scores ranging from the average to the severe range (concepts and directions (ss 4), word classes (ss 6), formulated sentences (ss 8), recalling sentences (ss 5), listening to paragraphs (ss 4)) (Dist. Ex. T).  Her scores remained relatively unchanged from scores achieved in 2003 (Dist. Exs. G at p. 3, F. at p. 3, T).

In September 2004, the student entered sixth grade in respondent's middle school.  Her special education program was provided in "departmentalized" self-contained classes and she was provided a shared aide for PE and for passing in the halls (Dist. Ex. D at pp. 1-3).  She received counseling in a small group one time per week for 42 minutes, OT in a small group one time per week for 30 minutes, individual OT one time per week for 30 minutes, individual PT one time per week for 30 minutes, speech-language therapy in a small group five times per 10 day cycle for 42 minutes (Dist. Ex. D at p. 1).  She participated in adaptive PE and was provided with various test accommodations and program modifications (Dist. Ex. D at pp. 2-3).  The student's 2004-05 IEP, devised on February 24, 2004, described her rate of progress as slow and inconsistent, requiring frequent reinforcement and repetition to gain understanding of concepts and noted continuing significant academic deficits in reading, mathematics/numerical concepts, and writing (Dist. Ex. D. at p. 3).  She also was determined eligible to receive ESY services consisting of a full-time self-contained special class with OT in a small group one time per week for 30 minutes, individual PT one time per week for 30 minutes, and speech-language therapy in a small group two times per week for 30 minutes (Dist. Ex. D at p. 2).

The student's 2004-05 IEP contained three goals and seven objectives to address her needs in study skills, two reading goals with a total of four objectives, two writing goals with seven objectives, a mathematics goal with five objectives, a speech-language goal with 12 objectives, six motor skills goals with a total of 19 objectives, one social/emotional/behavior goal with four objectives, and one basic cognitive/living skills goal with three objectives (Dist. Ex. D at pp. 5-9).  In October 2004, the CSE convened at petitioners' request to consider an individual aide for the student due to petitioners' concerns about her daughter's safety in the school hallway (Dist. Ex. D at p. 5).  The student's physical therapist reported that the student was able to safely negotiate around other students in the hallways and the classroom teacher had shown the student the "less traveled" hallways (Dist. Ex. D at pp. 5).  The CSE determined that the student would continue to receive services of a shared aide (Dist. Ex. B at p. 5).

The student's fourth quarter progress report of the 2004-05 school year shows her quarterly grades in academic subjects were in the high 80's and 90's with the exception of math for which her grades were in the 70's (Dist. Ex. H).  Her “core” teacher testified that "grades are based on homework, class work, class participation, and tests; even if she does poorly on a test, she is not going to fail the class" (May 24, 2005 Tr. p. 38).  The student's third quarter "goals and objectives report" for 2004-05 indicate that at the end of the first quarter the student had met or showed progress in five of her seven objectives in study skills, four of her twelve objectives in speech-language, ten of her nineteen objectives in motor, and two of her three objectives in basic cognitive/daily living skills (Dist. Ex. I at pp. 1-8).  At the end of the second quarter the student had mastered or showed progress in all of her objectives in study skills, three of her four objectives in reading, three of her seven objectives in writing, eight of her twelve objectives in speech-language, all of her objectives in social/emotional/behavior, sixteen of her nineteen objectives in motor, and two of her three objectives in basic cognitive/daily living skills and that she continued to need review in all of her objectives in mathematics (Dist. Ex. I). 

A February 2005 OT annual review report reported that petitioners' daughter had made steady progress through the 2004-05 school year (Dist. Ex. N at p. 1).  The evaluator stated that activities requiring the student to use both hands remained difficult for her, but she had compensated sufficiently for the limited use of her left arm and hand to function efficiently within the classroom (Dist. Ex. N at p. 2).  On the Test of Visual Motor Skills-Revised (TVMS-R), the student achieved a standard score of 90 (25th percentile) (Dist. Ex. N at p. 2).  The therapist reported that there had not been any observable regression in the student's upper extremity motor skills after an extended school break and recommended a decrease in services for the 2005-06 school year (id.).

The student's speech-language pathologist reported in March 2005, when the student was 12 years old, that the student had shown progress in the areas of rote memory for sentences and numbers; however, she continued to exhibit weakness in the areas of following directions, recalling facts in order to answer questions, vocabulary, and verbal expression (Dist. Ex. L).  The Clinical Evaluation of Language Fundamentals-Fourth Edition (CELF-IV) was administered and the student's scores were essentially the same as scores she achieved on the CELF-III administered in 2004, with relative progress shown in recalling sentences (id.).  The speech pathologist reported that the student exhibited substantial regression in the language areas after a vacation or break in services (id).  She recommended ESY speech-language services for summer 2005 (id.).

The student's physical therapist conducted an annual review in January 2005 and reported that the student had made a good transition into the middle school (Dist. Ex. O at p. 1).  The student was able to ambulate independently and safely throughout the school, including stairwells, accommodating for obstacles or people in her path (id.).  The therapist opined that the student's gains in strength and motor control appeared to have reached a plateau and recommended a decrease in services for the 2005-06 school year (id.).

At the time of the student's annual review on March 15, 2005, her teachers had reported that her memory for sight words and her math scores had improved, that she was working from a sixth grade spelling list with accuracy and using capitalization/punctuation, and that there appeared to be no evidence of regression of skills after illness or vacation (Dist. Ex. DD at pp. 3-4).  However, they reported that her academic skills continued to be below average in all areas  (id.).  At the impartial hearing, her core teacher testified that for the summer of the 2005-06 school year, the student's special education team recommended that the student's program "concentrate on her area of deficiency, which is speech/language and math" (May 24, 2005 Tr. p. 43).  The core teacher opined that for other than speech-language and math, "she would not regress substantially based on her functioning through the school year" (May 24, 2005 Tr. p. 44).  Respondent's CSE determined that the student did not require a special education program for an extended school year but that she was eligible for related services during the months of July and August 2005 (Dist. Ex. A at p. 1).  Her recommended program for the 2005-06 school year was for "departmentalized" self-contained special class with a shared aide for passing in the halls, PE swimming class, and technology training in keyboarding skills.  The CSE further recommended that for the 2005-06 school year the student receive counseling in a small group one time per week for 42 minutes, OT in a small group one time per week for 30 minutes, speech-language therapy in a small group five times per 10 day cycle for 42 minutes (id.), as well as adaptive PE and various test accommodations and program modifications (Dist. Ex. A at pp. 2-3).  Recommended support for school personnel included bimonthly PT consultation to monitor her ability to continue to safely navigate the school environment (Dist. Ex. A at p. 2).  The CSE also recommended that the student receive speech-language therapy in a small group two times per week for 30 minutes during July and August 2005 (id.).  The minutes of the March 15, 2005 CSE meeting reflect that the student's mother rejected the recommended 2005 ESY program and declined the recommended counseling services (Dist. Ex. A at pp. 1, 5).  The minutes also reflect that it was suggested to the mother that she meet with the student's special class teachers to review her progress during the 2004-05 school year (Dist. Ex. A at p. 5).  At the impartial hearing, respondent's CSE Chairperson testified that she "thought it would be important for [the parent] to hear from everybody how well [the student] was doing, and after that, the committee would reconvene to determine if it would be appropriate to have consultant services or a half-day program or what level of services would be required, if any, over the summer" (May 31, 2005 Tr. p. 225).  The record also reflects that there was discussion at the March 15, 2005 meeting regarding the student's upcoming medical appointment and that the CSE had requested that the parent provide the committee with any documentation arising from the visit (Dist. Ex. II; May 31, 2005 Tr. p. 289). 

Petitioners did not accept the CSE's recommended part-time ESY services for the 2005-06 school year.  On March 19, 2005, petitioners requested an impartial hearing for the purpose of obtaining full-time academic ESY services for summer 2005 (IHO Decision, p. 1).  Subsequent to the filing of the request, petitioner met individually with the student's special class teachers but she did not ask the CSE to reconvene (June 21, 2005 Tr. p. 24).

On March 21 and 22, 2005, the student was evaluated by a private neurologist and neuropsychologist, both of whom had been monitoring her since her right partial hemespherectomy in March 2000, when she was seven years old (Parent Ex. 4 at p. 1, Parent Exs. 5, 6).  The neurologist determined that an increase in the student's seizure activity was evident, and was of the opinion that she demonstrated poor short-term memory and would demonstrate significant regression in skill development without a 12-month educational program (Parent Exs. 5, 6).  The private neuropsychologist evaluated the student on March 22, 2005 (Parent Ex. 4).  He conducted extensive testing of the student, including administration of the WISC-IV, the Wechsler Individual Achievement Test-Second Edition (WIAT-II), a Developmental Neuropsychological Assessment (NEPSY), the Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI), the Peabody Picture Vocabulary Test-Third Edition (PPVT-IIIA), the Expressive Vocabulary Test, and the Wide Range Assessment of Memory and Learning-Second Edition (WRAML2 select subtests) among others (Parent Ex. 4 at p. 2).

Administration of the WISC-IV yielded scores in the borderline/impaired range of overall intellectual functioning with a full scale IQ score of 73, verbal IQ score of 75, perceptual reasoning IQ score of 71, working memory IQ score of 88, and processing speed IQ score of 83 (Parent Ex. 4 at p. 3).  The neuropsychologist opined that the student's overall intellectual functioning had remained relatively stable since his evaluation of her in 2002.  He reported that select areas had declined, including her visual perceptual discrimination abilities, her rapid coding of digits and symbols, her right hand fine motor dexterity and speed, and her phonemic verbal fluency (Parent Ex. 4 at pp. 3, 4, 5, 7).  He also reported that since he evaluated her in 2002, the student demonstrated improvement in immediate auditory attention and on a measure of cognitive ability and set shifting (Parent Ex. 4 at pp. 4, 5, 7).  The neuropsychologist concluded that the student presented with persistent symptoms of an attention deficit/hyperactivity disorder (ADHD), predominantly inattentive type (Parent Ex. 4 at p. 7).  His recommendations included that the student continue in a special education placement to maximize learning and academic performance and continue to receive PT, OT, and speech-language therapy on a year-round basis (id.).

A prehearing conference was held on May 4, 2005 (IHO Decision, p. 2) and the impartial hearing commenced on May 24, 2005.  On June 7, 2005, the impartial hearing officer ordered respondent's CSE to reconvene to consider the medical information that petitioners' obtained after the March 15, 2005 CSE meeting and make a determination only as to the provision of ESY services (June 7, 2005 Tr. p. 297).  Respondent's CSE reconvened on June 22, 2005 to reconsider provision of the recommended ESY services in light of petitioners' submitted medical information (Answer ¶ 13).  However, respondent's CSE did not amend its recommendation providing for part-time ESY services for the summer 2005 (Answer ¶ 13; Pet. Memorandum of Law, p. 2). 

After six days of testimony, the impartial hearing officer rendered her decision on October 5, 2005, finding that respondent had offered to provide a free appropriate public education (FAPE) to the student for the 2005-06 school year (IHO Decision, p. 25).  More specifically, the impartial hearing officer found there was no evidence in the record to conclude the student would substantially regress in academic areas without the provision of full-time academic ESY services and that the student's March 15, 2005 IEP was reasonably calculated to enable the student to receive educational benefits (IHO Decision, p. 22).  Therefore, the impartial hearing officer denied petitioners' request for modification of the ESY services for the 2005-06 school year (IHO Decision, p. 25).

            On appeal, petitioners request full-time academic ESY services for their daughter be ordered, presumably for summer 2006. Petitioners allege that: 1) the CSE failed to develop an appropriate IEP by recommending placement before developing goals and objectives; 2) the impartial hearing officer erred in failing to "include the testimony" of the clinical neuropsychologist and pediatric neurologist based upon her finding that the CSE meeting participants did not have access to the information at the time of the March 15, 2005 CSE meeting; 3) the impartial hearing officer erred in finding that the recommended goals and short-term objectives in the 2005-06 IEP were appropriate even where the goals and short-term objectives "had been repeated for seven years and even less difficult goals were included in the most recent IEP;" 4) the impartial hearing officer erred in finding that there was no reasonable basis to conclude that regression would not occur without the provision of academic ESY services; and 5) the impartial hearing officer erred in failing to consider the results of the final examinations taken by the student, which indicate that the student is unable to retain information and comprehend language.

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, 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]).2

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]).

A student's IEP must indicate whether the student is eligible for a special service or program on a 12-month basis (8 NYCRR 200.4[d][2][x]). Eligibility for such program or service is determined by the CSE in accordance with the criteria set forth in 8 NYCRR 200.6(j)(1).  The relevant portion of that regulation reads as follows:

(j)  Twelve-month special service and/or program. (1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their needs to prevent substantial regression, if they are:

 

* * *

(v)  Students…who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.

 

The term "substantial regression" is defined by the Regulations of the Commissioner of Education to mean:

 

a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.

 

(8 NYCRR 200.1[aaa]).

 

            The record reflects that the CSE which convened on March 15, 2005 it considered the amount of time that it takes a student to "get back into the routine of things after extended illness and vacations" (May 31, 2005 Tr. pp. 233-34).  Respondent's CSE Chairperson, who attended the student's March 15, 2005 CSE meeting (Dist. Ex. A at p. 5), testified that an "inordinate" period of review after a summer vacation would be eight to twelve weeks of review (May 31, 2005 Tr. pp. 267-68).  This is consistent with guidelines that suggest that a review period of eight weeks or more would indicate that substantial regression has occurred (see VESID, "Extended School Year Programs and Services Questions and Answers," Question 1 [2005]).3 

       In preparation for the student's annual review, the student's special education teachers were asked to review the student's progress and to develop draft goals and objectives to be brought to the March 15, 2005 CSE meeting (May 31, 2005 Tr. at p. 241).  An annual report packet, dated February 16, 2005 was prepared for the CSE by the student's core teacher/case manager and included the latest progress report on the student's IEP goal, which addressed the first and second quarters of the 2004-05 school year, the student's most recent report card, reports from each of the student's special education teachers, as well as reports from each of the student's related service providers (Dist. Ex. DD).  Although the student's academic status was reported as below average, improvement was noted in all academic areas and "no regression [was] evident after an illness or vacation" (Dist. Ex. DD at pp. 1-4).  The student's occupational therapist reported that there had not been any observable regression in the student's upper extremity motor skills after an extended school break (Dist. N. at p. 2).  Additionally, each of the student's academic teachers testified that the student easily resumed learning after an extended school break.  The student's mathematics teacher testified that it "takes her a day or two to get back up to speed after vacation" (May 31, 2005 Tr. at p. 204).  When asked how long it took the student to resume her school routine after school breaks, her science teacher testified "by the time she gets to me third period, I feel as if she is settled into the routine.  It's never occurred to me there was a difference for her" (May 31, 2005 Tr. p. 180). In testimony, the student's core teacher reviewed each of the school breaks that had occurred during the 2004-05 school year and indicated that upon return to school the student "was fine, right back into the routine" (May 24, 2005 Tr. at pp. 39-42).  The student's core teacher further testified that the student needed a summer program in her deficit areas of speech-language and math; however, she opined that based on the student's functioning throughout the year, she would not regress in other areas without a 12-month program (May 24, 2005 Tr. p. 44).  In addition the student's core teacher testified that at the start of the school year "all teachers start their classes from the beginning again," and answered affirmatively when she was asked if the self-contained classrooms spent September and October on review (May 31, 2005 Tr. pp. 136-37).  The student's speech-language pathologist reported that the student exhibited substantial regression in the language areas after a vacation or break in services and recommended summer services (Dist. Ex. L).  The student's progress report for the second quarter of the 2004-05 school year showed her grades in academic subjects to be in the high 80's and 90's with the exception of math for which her grades were in the 70's (Dist. Ex. P at p. 2).  At the time of the student's annual review in March 2005, she had mastered or shown consistent progress in 70 percent of her objectives with the exception of her mathematics objectives, which continued to require review (Dist. Ex. I at pp. 1-8).  I find that the record supports the March 15, 2005 CSE's determination that petitioners' daughter was not eligible to receive the extent of ESY services that petitioners requested for summer 2005 (Application of a Child with a Disability, Appeal No. 01-064). It should be noted however, that this finding does not preclude a CSE from recommending academic extended school year services for summer 2006. 

            Petitioners also allege that the CSE failed to develop an appropriate IEP by recommending placement before developing goals and objectives.  The student has been a special education student in the respondent's school district throughout her school career (June 7, 2005 Tr. p. 311).  A review of the student's IEPs for the 2002-03, 2003-04, and 2004-05 school years confirm that the student's educational program had been consistently provided in a self-contained special class with related services of PT, OT, speech-language therapy and some level of ESY (Dist. Exs. B-F, G at pp. 1-2).  In each of those years, the student was described as having severe academic deficits requiring frequent reinforcement and repetition, and demonstrating progress at a slow and inconsistent rate (Dist. Exs. B, C, D, E, F, G at p. 3).  Each school year's IEP has also reflected improvements in the student's classroom abilities such as increased independence in 2002-03 (Dist. Ex. G at p. 4), improved willingness to attempt classroom tasks and improved comprehension of verbal information in 2003-04 (Dist. Ex. F at p. 4), and development of strengths in reading decoding in 2004-05 (Dist. Ex. D at p. 5).  The student's recommended IEP for the 2005-06 school year reflects more academic growth than had been reported in previous IEPs (Dist. Ex. A at pp. 3, 5).  She was described as more independent and assertive and assuming more of a leadership role (Dist. Ex. A at p. 5).  She had improved her sight word recognition, was working on a sixth grade spelling list with accuracy, and was using strategies she had been taught to decode words (id.). Her academic deficits were no longer described as "severe" and although her rate of progress was still described as slow, it was now consistent (Dist. Ex. A at p. 3).

The record suggests that the student has been successful in her placements since at least the 2002-03 school year.  There is no indication in the March 15, 2005 CSE meeting minutes or in the hearing transcript that petitioners believed that an alternate placement for the 2005-06 school year should be explored.  The CSE minutes of the March 15, 2005 reflected that it was suggested to the mother that she meet with the student's special class teachers to review her progress during the 2004-05 school year (Dist. Ex. A at p. 5).  At the impartial hearing, respondent's CSE Chairperson testified that she "thought it would be important for [the parent] to hear from everybody how well [the student] was doing, and after that, the committee would reconvene to determine if it would be appropriate to have consultant services or a half-day program or what level of services would be required, if any, over the summer" (May 31, 2005 Tr. p. 225).  The CSE recommended placement in a self-contained special class with related services and a part-time ESY program.  While both a program and placement were recommended at the March 15, 2005 CSE meeting, the record does not demonstrate that the student's placement was recommended prior to the development of goals and objectives.

       Petitioners further allege that impartial hearing officer erred in finding that the recommended goals and short-term objectives in the 2005-06 IEP were appropriate even where the goals and short-term objectives "had been repeated for seven years and even less difficult goals were included in the most recent IEP" (Pet. ¶ 4).  Petitioners also assert that the goals and objectives were developed without parent input.  Respondent's CSE Chairperson testified that a significant amount of time was spent at the March 15, 2005 CSE meeting discussing the student's present level of performance and her needs and the 2005-06 IEP goals and objectives resulted from that discussion (May 31, 2005 Tr. pp. 240-241).  The CSE chairperson further testified that parents should have input into the goals prior to the CSE meeting, but can give input at the meeting as well (May 31, 2005 Tr. p. 242), that parents are provided a copy of the draft IEP at the meeting and "we make it clear that this is just a draft, and as a result of the meeting, it would be amended and changed as appropriate" (May 31, 2005 Tr. p. 241).  Such a practice does not necessarily violate statute or regulation, provided that the student's parents are not deprived of the opportunity to discuss the draft goals at the CSE meeting (34 C.F.R. Part 300, Appendix A, Section IV, Question 32; Application of a Child with a Disability, Appeal No. 02-029; Application of a Child with a Disability, Appeal No. 01-073; Application of a Child with a Handicapping Condition, Appeal No. 90-13).  Based on the record before me, I find that petitioners had the opportunity to discuss with the CSE the IEP goals recommended for their daughter.   

       The core teacher testified that a student's goals for the following year are based on what was completed the year before, what was mastered by the student, and what goals are part of the next year's curriculum (May 31, 2005 Tr. p. 127).  She also testified that certain goals are on petitioner's daughter's 2005-06 IEP even though they had been mastered the prior year because they pertain to reading and the reading would be at a new level in the 2005-06 school year (May 31, 2005 Tr. pp. 127-31), stating "next year the reading is going to get more difficult" (May 31, 2005 Tr. p. 130).  The CSE Chairperson also testified that as children go through the grade levels expectations are increased (May 31, 2005 Tr. p. 240).  A particular goal may be repeated in the following year's IEP because it is being addressed in a more difficult curriculum (id.).  She stated, "The goal in print looks the same but you are changing the expectations because the curriculum is more difficult.  The IEP is curriculum driven but what the child is supposed to do is more difficult" (id.).  She testified that at the request of respondent's attorney, she had reviewed the goals on the student's 2004-05 IEP and compared them to the 2003-04 IEP and "there were several math goals that were new goals for this year, there were social emotional goals that were not previously on the IEP and there were several in the areas of reading and writing as well" (May 31, 2005 Tr. pp. 230-31).

I have reviewed the student's IEPs for the 2003-04, 2004-05 and 2005-06 school years and compared the goals and objectives on each document to ascertain what changes had occurred from year to year.  The 2004-05 IEP had changes in all areas except basic cognitive/living.  In all other areas, either new goals had been added, old goals deleted, or objectives had been changed.  The changes in the objectives were substantive, not merely changes in mastery levels.  The 2005-06 IEP reflected similar kinds of changes in goals and/or objectives in all areas.  For example, the student's 2003-04 IEP contains a broad goal in the area of mathematics for the student to "demonstrate an improvement in mathematical concepts, reasoning, and computation necessary to develop problem-solving skills and to utilize mathematics to address everyday problems" and four objectives (Dist. Ex. F at p. 5).  For the 2004-05 school year, the student's IEP contains the same broad math goal and five objectives; one repeated from the 2003-04 IEP and 4 new objectives in higher-level concepts, for example "multiply single digit numbers with a calculator" was changed to "multiply multi-digit numbers" (Dist. Ex. D at p. 7).  For the 2005-06 school year, the student's IEP again contains the same broad math goal and three new objectives involving higher-level concepts, for example "complete prime factorization of composite numbers" (Dist. Ex. A at p. 7).  I find that that the recommended annual goals and short-term objectives in the 2005-06 IEP were appropriate and that the student's March 15, 2005 IEP was reasonably calculated to enable the student to receive educational benefits.

            Although not raised as an issue on appeal, I note that the record reflects the student's need for a summer program in her deficit areas in math as well as in speech-language (May 24, 2005 Tr. pp. 43-44). Testimony from the student's core teacher indicated that the student's classroom team had recommended that the child receive a speech-language summer program two or three days a week and math resource room (May 24, 2005 Tr. pp. 43-44) and that summer support for math in a resource room had been discussed at the CSE meeting (May 24, 2005 Tr. pp. 96-97).  The student's mother testified that "[the CSE] talked about a possible resource room format [for math] one or two days a week" (June 7, 2005 Tr. pp. 363-64) and further testified that when she met with the math teacher following the March 15, 2005 CSE meeting he indicated to her that he was under the impression that the student was to get summer services in math (June 7, 2005 Tr. p. 341).  However, there is no ESY math instruction reflected on the student's 2005-06 IEP (Dist. Ex. A at p. 2).  Since the summer of 2005 has passed, I encourage the CSE, when reviewing eligibility for summer 2006 services, to also consider whether the student is eligible for ESY math instruction

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

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

December 19, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

1 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 in this appeal pertaining to the development of the IEP in dispute 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 and corresponding regulations as they existed prior to the 2004 amendments.

2 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).

3 Office of Vocational and Educational Services for Individuals with Disabilities (VESID), "Extended School Year Programs and Services Questions and Answers," at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2005.htm.