The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Educational Advocacy Services, attorney for petitioner, Mary C. Tucker, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Abigail Goldenberg, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request for payment of her daughter's tuition costs at the St. Cecilia School (St. Cecilia's) for the 2005-06 school year. The appeal is sustained in part.
At the commencement of the impartial hearing on August 5, 2005, the child was almost 10 years old (Dist. Ex. 3 at p. 1) and was enrolled in a special education program at respondent's P.S. 213 (Pet. ¶ 2). The child was in fourth grade during the 2004-05 school year (Parent Ex. F at p. 1). Petitioner unilaterally placed the child in St. Cecilia's for the 2005-06 school year where, she is repeating fourth grade (Sept. 2, 2005 Tr. pp. 75-76; Parent Ex. U; Pet. ¶ 2). St. Cecilia's has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7). The child is classified as a student with a speech or language impairment (see 8 NYCRR 200.1[zz]) (Dist. Ex. 3 at p. 1).
The child is bilingual in English and Spanish (Dist. Ex. 3 at p. 1). She has difficulty with reading comprehension and word problems in math, although she reads fluently (Parent Ex. F at p. 1). Results of speech and language testing conducted on January 20, 2005 revealed significant receptive and expressive language delays (Parent Ex. G at pp. 1, 3). Auditory processing testing suggested that the child has an auditory processing disorder (APD) in the areas of auditory decoding, auditory integration, and temporal patterning (Parent Ex. F at p. 3). Presenting problems included the child's demonstrated distractibility and difficulty focusing, difficulty following multi-step directions and completing homework, and compromised academic performance (Parent Ex. F at p. 1). The child's medical history includes hypothyroidism, for which she receives medication (Parent Ex. F at p. 1) and asthma (Sept. 2, 2005 Tr. p. 63).
Petitioner testified that during the 2000-2001 school year, the child's kindergarten year, the child was evaluated and began receiving special education services at respondent's P.S. 213 (Sept. 2, 2005 Tr. p. 51). The child attended first grade during the 2001-02 school year (Parent Ex. P at p. 2). Administration of the Wechsler Abbreviated Scale of Intelligence (WASI) by respondent on April 8, 2002 yielded a verbal I.Q. score of 84, a performance I.Q score of 88, and a full scale I.Q. score of 84 (Parent Ex. P at p. 3). All composite scores were in the low average range of intellectual functioning (id.). Results from the Woodcock-Johnson Tests of Achievement-Third Edition (WJ-III) administered to the child on April 17, 2002, when she was in first grade (Parent Ex. O at p. 2), revealed that the child had acquired rote academic skills at grade level and above (Parent Ex. O at p. 6). Her performance on reading subtests of the WJ-III yielded an overall standard score of 97 in reading, which was in the 43rd percentile (id.). The child's math calculation subtest score of 109 was in the 73rd percentile (Parent Ex. O at pp. 2, 6), but her math fluency and applied problems subtest scores of 77 were in the 6th percentile (Parent Ex. O at p. 6). Both oral comprehension and academic knowledge subtest standard scores of 83 were in the 13th percentile (Parent Ex. O at p. 2). Respondent's speech and language progress report, dated April 19, 2002, stated that the child exhibited below average receptive and expressive language delays, as indicated by her performance on the Oral and Written Language Scales (OWLS) and the Language Processing Test (LPT) (Parent Ex. Q at p. 1).
Petitioner disagreed with respondent's evaluation results (Parent Exs. O, P, Q) and obtained private evaluations of the child's academic, speech-language, and auditory processing skills (Sept. 2, 2005 Tr. p. 51). A January 12, 2005 report from a speech and language evaluation conducted at Hofstra University noted that an auditory processing evaluation on July 15, 2002 "revealed significant receptive and expressive language deficits involving spoken language, organization, and syntactic, semantic, and listening skills" (Parent Ex. F at p. 1). Use of an FM unit was recommended as an acoustic modification in the classroom to help the child cope with auditory processing deficits (Parent Ex. F at pp. 4-5).
Petitioner testified that she immediately provided the 2002 auditory processing and speech-language evaluation results, including the recommendation for an FM unit, to respondent (Sept. 2, 2005 Tr. p. 55). Although the child's July 30, 2002 individualized education program (IEP) indicates that an FM unit was recommended for the child's use, commencing September 2002 (Parent Ex. L at pp. 1-2), petitioner testified that the child did not receive the FM unit until January 2003 (Sept. 2, 2005 Tr. p. 52). Petitioner indicated that during the 2002-03 school year, the FM unit was not made available to the child on a daily basis because her teacher did not see a difference in the child's performance when the teacher used the unit (Sept. 2, 2005 Tr. pp. 57-60; Parent Ex. G at p. 1).
Limited classroom-based information is available in the record for the 2003-04 school year, when the child was in third grade. Petitioner stated that she paid for private tutoring in math and reading at the Sylvan Learning Center (Sept. 2, 2005 Tr. pp. 66-67; Parent Exs. I at p. 2, K at p. 4) for the period commencing October 2003 and terminating August 2004 (Sept. 2, 2005 Tr. p. 78). According to petitioner, this tutoring was discontinued because she could no longer afford to pay for it (Sept. 2, 2005 Tr. p. 67).
In fourth grade, during the 2004-05 school year, the child attended a 12:1 self-contained special education class at P.S. 213 (Parent Ex. F at p. 1; Pet. ¶ 2). During the 2004-05 school year, the FM unit was used in the classroom, although the teacher reportedly believed its effectiveness was questionable (Parent Ex. G at p. 1). According to petitioner's testimony, the child did not receive the speech-language therapy recommended on her 2004-05 IEP (Sept. 2, 2005 Tr. p. 66). Petitioner testified that the child did not benefit from placement in the public school because her IEP was not implemented as recommended (Sept. 2, 2005 Tr. pp. 61-62).
A pediatric neurologist at Schneider Children's Hospital evaluated the child in 2004 (Parent Ex. G at p. 1). Medications were prescribed to address the child's difficulties with attention, focusing, and comprehension, but no significant improvements were noted. In January 2005, the child was no longer taking medication.
On January 11, 2005, a private auditory processing evaluation was conducted by a clinical audiologist at Long Island Jewish Medical Center Speech and Hearing Center (LIJ) (Parent Ex. F). The evaluation report dated January 12, 2005, indicated that the child's evaluation was initiated because she had been experiencing difficulty in school (Parent Ex. F at p. 1), and because petitioner had requested an update to August 2, 2002 testing at Hofstra University regarding a possible APD (id.). The evaluation report noted audiological findings from previous audiometric testing conducted at LIJ on November 24, 2004, which determined that the child's hearing was within normal limits, with excellent speech recognition bilaterally and normal middle ear functioning (Parent Exs. F at p. 2; C). Results of the January 12, 2005 evaluation confirmed the child's normal middle ear functioning (Parent Ex. F at p. 2), but suggested an APD in auditory decoding, auditory patterning and temporal decoding, as well as an APD in auditory integration and temporal patterning (Parent Ex. F at p. 3). The evaluator indicated that test results reflected language processing as well as auditory processing difficulties, and that cognitive deficits (for example, memory) also affected the child's performance, likely impacting her performance in school (id.). The evaluation report also indicated that the child's reported distractibility, language problems, difficulty following directions, and reading problems might be at least partially related to auditory decoding deficits (id.).
Recommendations for remediation of the child's auditory decoding and phonemic awareness deficits included the use of auditory training programs such as Katz's Phonemic Synthesis Program, Sloan and/or Lindamood-Bell programs, Earobics, and Fast ForWord (Parent Ex. F at p. 4). Recommended classroom modifications included the use of an FM system, or preferential seating if the FM system was not functioning or if needed to optimize visual cues, as well as frequent checks for comprehension, sequential processing of auditory and visual information, repetition and simplification of directions, review of task demands, preteaching of material, positive reinforcement, avoidance of auditory fatigue, test administration in a quiet environment, extended time, the provision of a note taker and a structured hands-on environment (Parent Ex. F at pp. 4-5). Individual or small group instruction was also recommended (Parent Ex. F at p. 5).
Petitioner privately obtained a speech and language evaluation that was conducted on January 20, 2005 at LIJ (Parent Ex. G at p. 1). The evaluator indicated that while improvements had been noted from a previous speech and language evaluation conducted in August 2002, the child continued to exhibit deficits in vocabulary knowledge and use, word finding, recall abilities, sentence assembly, and reading comprehension, which were reported to be significantly affecting the child's communication abilities and possibly impacting her continued academic performance (Parent Ex. G at p. 3). The evaluator concluded that the prognosis for improvement was good, based on the availability of appropriate services (id.). She recommended short term goals to improve skills in vocabulary knowledge and use, grammar, syntax skills, auditory memory, word retrieval, phonemic awareness skills related to decoding information, and reading comprehension skills, and also recommended that additional goals be established by the child's therapist (id.). Petitioner testified that she pays for speech therapy at Hofstra University to address the child's auditory processing needs (Sept. 2, 2005 Tr. pp. 66-67).
Respondent's Committee on Special Education (CSE) convened on May 25, 2005 for the child's annual review and to develop an IEP for the 2005-06 school year (Dist. Ex. 3 at p. 1). The May 2005 IEP notes teacher estimations that the child was performing at a third grade instructional level in reading, writing, and math (Dist. Ex. 3 at p. 3-1). A description of the child's present academic performance levels on the May 25 IEP noted auditory processing delays and referred to the January 2005 LIJ evaluation report (id.). No formal educational testing update for the May 2005 annual review appears in the record, with the exception of the child's score of two on the February 3, 2005 fourth grade English Language Arts examination (ELA) (id.). April 2002 WASI (Parent Ex. P), and WJ-III (Parent Ex. O) and May 2003 WJ-III (Dist. Ex. 1) results are a part of the record, but do not appear on the May 2005 IEP.
The CSE's recommendations for the 2005-06 school year included the child's continued classification as a student with a speech or language impairment and her placement in a 12:1 self-contained special class with one period per week in mainstream music class (Dist. Ex. 3 at p. 7). Individual speech and language therapy in a separate location, one time per week for 30 minutes, and small group speech and language therapy in a separate location, one time per week for 30 minutes were also recommended (Dist. Ex. 3 at p. 9). Extended time for testing was recommended as a testing accommodation (id.). Recommended management needs included the continued use an FM unit (Dist. Ex. 3 at pp. 5, 7), curriculum adaptations (Dist. Ex. 3 at p. 3-2), and the use of manipulatives in mathematics instruction (id.). A small, structured, academic setting was recommended (id.). Evaluations reviewed by the CSE included, inter alia, the January 2005 LIJ speech and auditory processing evaluations (Dist. Ex. 3 at p. 3-1).
By letter dated July 28, 2005, petitioner requested that the child's May 25, 2005 IEP be amended to include a multi-sensory reading program that used the Orton-Gillingham methodology, testing accommodations to include time extended from one and one-half time to double time, a spelling waiver, and a provision for directions to be read and explained (Parent Ex. R).
Petitioner unilaterally placed her daughter at St. Cecilia's (Parent Ex. S). By letter dated July 29, 2005, petitioner informed the Regional CSE Chairperson that her daughter would be attending St. Cecilia's beginning in the September 2005-06 school year (id.). Petitioner was notified by letter dated August 29, 2005 that St. Cecilia School had a placement for the child in September 2005, where she would be entering fourth grade (Parent Ex. U). Petitioner testified that she requested that the child repeat fourth grade at St. Cecilia's because she believed that the child was not academically prepared for fifth grade (Sept. 2, 2005 Tr. pp. 75-76; Parent Ex. S).
By letter dated July 28, 2005, petitioner requested an impartial hearing, seeking payment of tuition costs at St. Cecilia's for her daughter for the 2005-06 school year (IHO Ex. I).
An impartial hearing convened on August 5, 2005 and concluded on September 2, 2005, after a pre-hearing conference and two days of hearings (Aug. 5, 2005 Tr. p. 3; Aug. 18, 2005 Tr. p. 5; Sept. 2, 2005 Tr. p. 33). By decision dated October 15, 2005, the impartial hearing officer found that the lack of respondent's testimony regarding the proposed program and placement and insufficient evaluations precluded a finding that respondent offered the child an appropriate program and placement for the 2005-06 school year (IHO Decision, p. 6). Specifically, the impartial hearing officer found that respondent: 1) failed to offer any testimony regarding the child's recommended IEP and proposed placement at P.S. 213; 2) failed to describe the P.S. 213 program and show that the child would be appropriately grouped according to her social, physical, academic and management needs; 3) failed to show that the CSE ever considered a physical examination, classroom observation, social history, or recent educational and psychological evaluations, including the 2003 educational and psychological evaluations respondent offered as exhibits, regarding the child; and 4) relied almost exclusively on teacher estimates in the preparation for the child's most recent IEP, with the exception of the review of a 2005 speech and language evaluation and the fourth grade ELA exam results (id.).
The impartial hearing officer stated that testimony and documentary evidence offered on behalf of petitioner were not sufficient to support a finding that the program at St. Cecilia's was meeting the child's special education needs (IHO Decision, p. 7). Specifically, the impartial hearing officer found that: 1) there was no testimony from school staff, nor was there sufficient testimony from the parents regarding the manner in which the program would meet the child's special education needs; 2) the school brochure submitted as evidence was too general to establish how St. Cecilia's would meet the child's special education needs; 3) the pediatrician's letter was based on the school brochure and, similarly, not probative as to whether St. Cecilia's would meet the child's special education needs; and 4) no information was provided in the record regarding the child's grouping, classes, and instruction.
Having found that it had not been established that St. Cecilia's met the child's special education needs, the impartial hearing officer did not address whether equitable factors would support tuition reimbursement. The impartial hearing officer denied petitioner's request that respondent pay for the cost of the child's tuition at St. Cecilia's for the 2005-06 school year (IHO Decision, p. 7), but directed respondent to provide the child with an FM unit for the remainder of the 2005-06 school year (IHO Decision, p. 8).
Petitioner appeals from that part of the impartial hearing officer's decision that held that it had not been established that St. Cecilia's was appropriate to meet the child's special educational needs, and denied petitioner's request for payment of tuition costs. Petitioner asserts that: 1) her due process rights were "fatally" affected by the absence of an interpreter during each stage of the proceedings; 2) an interpreter should have been provided to petitioner at the CSE annual review meeting; and 3) the impartial hearing officer erred by precluding petitioner from arguing the inappropriateness of the child's classification. Petitioner seeks payment of tuition costs for the 2005-06 school year, and an order directing respondent's CSE to reconvene to review the child's recent evaluations and develop an appropriate IEP for her.
Respondent asserts that the lack of a translator did not deprive petitioner of due process and that petitioner failed to demonstrate that the private placement was appropriate.
A purpose behind the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) (20 U.S.C. §§ 1400 - 1482)1 is to ensure that children with disabilities have available to them a free appropriate public education (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 child's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2 A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a child 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]). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
A FAPE is offered to a child, when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the child 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 child'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 child, 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 child 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]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a child with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132)
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the child'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 child's present levels of educational performance, including a description of how the child's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the child's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).
Petitioner asserts that she was denied due process of law at the impartial hearing by the absence of an interpreter at each stage of the proceedings. The Regulations of the Commissioner of Education require that an interpreter fluent in the parent's native language be provided at district expense at all stages of the proceeding "where required" (8 NYCRR 200.5[j][vi]). Petitioner speaks Spanish and, with a lesser degree of fluency, English (Sept. 2, 2005 Tr. pp. 48-49; Dist. Ex. 3 at p. 1). By letter dated August 2, 2005, respondent's counsel requested a prehearing conference to clarify the issues for the impartial hearing (Aug. 5, 2005 Tr. p. 4; IHO Ex. II). A brief prehearing conference took place on August 5, 2005, with the parent and a school district representative participating by telephone (Aug. 5, 2005 Tr. p. 3). During the telephone conference petitioner clearly represented that she did not agree with the placement respondent had offered to her daughter and was seeking respondent's payment of tuition costs (Aug. 5, 2005 Tr. pp. 7-8). She stated that there were too many issues to discuss and preferred to discuss them on the day of the impartial hearing (id.). The impartial hearing officer repeated information when necessary (Aug. 5, 2005 Tr. pp. 4, 6, 10-11). The impartial hearing officer noted that petitioner had requested an interpreter for the impartial hearing, but not for the prehearing conference, which petitioner confirmed (Aug. 5, 2005 Tr. p. 5). Petitioner indicated at various stages of the prehearing conference that she understood the information conveyed to her by the impartial hearing officer (Aug. 5, 2005 Tr. pp. 8-11).
During the impartial hearing, petitioner was assisted by an advocate who spoke Spanish (Aug. 18, 2005 Tr. p. 6; Sept. 2, 2005 Tr. p. 33). With respect to the August 18, 2005 impartial hearing date, the record reflects that an interpreter had been requested, but that the translation company had no record of the request and failed to send an interpreter to the impartial hearing (Aug. 18, 2005 Tr. pp. 5-6). Petitioner's advocate translated procedural matters and opening statements for those present at the August 18, 2005 impartial hearing date (Aug. 18, 2005 Tr. pp. 9-20). The impartial hearing officer indicated her understanding that the parents could not testify without an interpreter and that a subsequent hearing date would be established (Aug. 18, 2005 Tr. pp. 23-25). The impartial hearing officer provided frequent opportunities for the advocate to translate for petitioner (Aug. 18, 2005 Tr. pp. 8-9, 13, 17, 18, 20). Neither party produced witnesses (Aug. 18, 2005 Tr. pp. 14, 24). A new date of September 2, 2005 was set for the impartial hearing to facilitate witness availability and to obtain documents (Aug. 18, 2005 Tr. p. 26).
Testimony pertaining to the merits of the hearing request took place on September 2, 2005. The impartial hearing officer noted difficulty with the telephone system on the hearing date (Sept. 2, 2005 Tr. p. 33). The child's father appeared by telephone and testified with the assistance of an interpreter (Sept. 2, 2005 Tr. pp. 35-36). After petitioner's advocate apprised the impartial hearing officer of the interpreter's inaccuracy in translating the father's testimony, the impartial hearing officer noted, as a result of an off the record agreement, that the parents had "jointly determined to proceed with the rest of the hearing without any interpreter" (Sept. 2, 2005 Tr. p. 48). The impartial hearing officer further stated that if at any point petitioner "is not understanding what's happening in the proceeding, she can go off the record and speak to her advocate in Spanish (id.). The parties' representatives agreed to proceeding in this fashion (Sept. 2, 2005 Tr. pp. 48-49). The impartial hearing officer offered to continue the impartial hearing on another day in order to secure another interpreter (Sept. 2, 2005 Tr. p. 49). Petitioner testified that she wanted to finish that day (id.). The impartial hearing officer noted that the only testimony that remained was that of petitioner and that petitioner knew enough English to be able to testify in English, as long as the questions were asked slowly and she were given adequate time to answer (Sept. 2, 2005 Tr. pp. 48-49). With one exception due to the need for an explanation regarding financial need and funding mechanisms (Sept. 2, 2005 Tr. pp. 86-87), the record reflects that petitioner testified without the aid of an interpreter (Sept. 2, 2005 Tr. pp. 50-91). In the petition, petitioner's counsel cites examples of instances at the impartial hearing which she asserts showed petitioner's lack of understanding (Pet. ¶¶ 39, 40; Sept. 2, 2005 Tr. pp. 50, 53, 54, 79). After a careful review of the record, I do not find that these examples are representative of the understanding demonstrated by petitioner at the impartial hearing. In view of the advocates interpretation, the rephrasing of questions as necessary and the understanding demonstrated by petitioner, with respect to the impartial hearing of September 2, 2005, I find petitioner's assertion that her due process rights were violated due to the absence of an interpreter to be without merit.
A review of the hearing record shows that petitioner was able to effectively testify at, and participate in, the impartial hearing. Upon the record before me, I find that there is no basis for annulling the impartial hearing officer's decision based on the assertion that petitioner was deprived of her due process rights by the absence of an interpreter during each stage of the proceedings (see Application of a Child with a Disability, Appeal No. 00-019).
Petitioner next asserts that an interpreter should have been provided to her at the CSE annual review meeting. I find that this issue was not raised at the hearing, and is, therefore, not properly raised in this appeal (Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 99-60).
Petitioner contends that the impartial hearing officer erred by precluding her from arguing the inappropriateness of the child's classification because the issue was not cited on petitioner's request for an impartial hearing. The impartial hearing record shows that petitioner's advocate raised the issue of services related to auditory processing needs during closing arguments (Sept. 2, 2005 Tr. pp. 91, 93), and, in doing so, misused the term "classification" (Sept. 2, 2005 Tr. pp. 93-95). After the impartial hearing officer explained the proper use of the term "classification" (Sept. 2, 2005 Tr. pp. 93-95), petitioner's advocate stated, "Okay. I'm going to move forward from there" (Sept. 2, 2005 Tr. p. 95). I find that the issue of classification was not raised at the impartial hearing, and is, therefore, not properly raised in this appeal (Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 99-60).
In its answer, respondent states that the impartial hearing officer properly determined that, although it was not demonstrated that respondent's recommended program was appropriate, the appropriateness of petitioner's unilateral placement was also not proven (see IHO Decision, pp. 6, 7). Respondent does not appeal the impartial hearing officer's determination that respondent failed to provide the child with a FAPE. Pursuant to federal and state law, an impartial hearing officer's decision is binding upon both parties unless appealed to the State Review Officer (8 NYCRR 200.5[j][v]; see 20 U.S.C. 1415[i][A]; 34 CFR 300.510[a]). Having failed to appeal from the impartial hearing officer's decision, respondent is bound by that decision (see Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ., Appeal No. 98-7). Accordingly, I find that petitioner has prevailed on the first criterion for an award of tuition reimbursement. As such, I will not disturb the impartial hearing officer's determination with respect to the appropriateness of respondent's recommended program, the first criterion of the three-prong Burlington test (see Burlington, 471 U.S. 359).3
Having determined that respondent failed to offer a FAPE to the child, I must determine whether St. Cecilia's is an appropriate placement. With respect to petitioner's contention that St. Cecilia's is appropriate to meet the child's educational needs, the impartial hearing officer found that the testimony and documentary evidence provided by petitioner failed to demonstrate that the private placement would meet the child's special education needs. I agree. Nor can I make a determination in the instant case regarding the adequacy of St. Cecilia's program and services based on the testimony provided by either parent (see Application of a Child with a Disability, Appeal No. 97-80). While the letter from St. Cecilia's principal states that St. Cecilia's would be able to provide the child with "all the services as per her IEP dated May 25, 2005, including the auditory processing therapies" (Parent Ex. U), it does not provide specific information, as noted by the impartial hearing officer, regarding what services St. Cecilia's would provide to address the child's unique special education needs (see Application of a Child with a Disability, Appeal No. 05-008).
I concur with the impartial hearing officer and find that petitioner has not demonstrated that the services provided by St. Cecilia's were appropriate, and, therefore, the second criterion of the Burlington analysis has not been met (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 04-028). Having so found, I need not determine whether the equities weigh in favor of petitioner, the third prong of the Burlington analysis (see Burlington, 471 U.S. 359). Based upon my review of the entire hearing record, I find that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determinations of the impartial hearing officer, including her order pertaining to the provision of a FM unit for the student.
I have considered petitioner's a request for an order directing respondent's CSE to reconvene to review the student''s recent evaluations and develop an appropriate IEP for her. Although this relief was not specifically requested below at the impartial hearing, I am concerned, as was the impartial hearing officer, with the adequacy of the evaluations of this student. I will therefore direct that respondent's CSE convene to review and consider any recent evaluations and to ensure that the evaluation of the students needs are as comprehensive and as current as required by 8 NYCRR 200.4. Petitioners remaining contentions have been considered and found to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's determination is modified to the extent that, unless the parties otherwise agree, within 30 days of the date of this order a CSE shall convene and shall a) review and consider any recent evaluations of the student; b) ensure that the evaluation of the student's needs are as comprehensive and as timely as required by 8 NYCRR 200.4; c) develop an appropriate IEP for the student; and d) if it has not done so already, the CSE shall provide the student with an FM unit for the remainder or the 2005-06 school year.
Albany, New York
February 6, 2006
PAUL F. KELLY
1 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA apply and the citations contained in this decision are to the newly amended statute.
3 This determination would remain if during the administrative hearing the burden had been placed on the parents, the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S. Ct. 528, 537 (2005) (see Application of the Bd. of Educ., Appeal No 05-120).