The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his 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
Neal Howard Rosenberg, Esq., attorney for petitioner
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied his request to be reimbursed for his son's tuition costs at the Lowell School (Lowell) for the 2005-06 school year. The appeal must be dismissed.
At the time of the hearing in this proceeding in October 2005, the student was days away from turning 12 years old and was in the sixth grade at Lowell as a result of petitioner's unilateral placement of the student. Lowell is 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 student is classified as a student with a learning disability (LD) (Dist. Exs. 2, 3). The student's classification is not in dispute.
Regarding the student's educational history, the student was evaluated and began receiving early intervention services, consisting of speech therapy and occupational therapy, when he was between the ages of two and one-half and three years as a result of late developmental milestones, including speaking and walking (Dist. Ex. 10 at p. 1). The student attended a special education preschool until he was five years old (id.). Upon entering kindergarten and through second grade, the student was enrolled in respondent's modified instructional services – IV (MIS-IV) program, in which special education was provided in a classroom with a student-to-staff ratio of 12:1:1 at PS 144, and he was also receiving related services of speech and occupational therapies (Dist. Ex. 10 at p. 1; Tr. p. 19). The student repeated the second grade (2001-02) in an inclusion class with continued support services in place (Dist. Ex. 10 at pp. 1-2).
In spring 2002, the student was seen for a private neuropsychological evaluation (Dist. Ex. 10 at p. 2). At that time, results of the Wechsler Intelligence Scale for Children - III (WISC-III) indicated that the student had a verbal IQ of 92, a performance IQ of 98, and a full scale IQ score of 94, with his overall intellectual functioning found to be in the average range (id.). Scatter skills and weakness in his language and fine motor abilities resulted in a diagnosis of a learning disability (id.). The student also met the criteria for having an attention deficit hyperactivity disorder (ADHD) (id.).
For the third, fourth and fifth grades, the student attended a Collaborative Team Teaching (CTT) class (Tr. p. 6) at PS 99, with related services of speech therapy, occupational therapy, and counseling (Dist. Ex. 10 at p. 2).
Respondent's Committee on Special Education (CSE) conducted an annual review for the student on October 18, 2004 (Dist. Ex. 3) for the remainder of the 2004-05 (5th grade) school year, and for the portion of the 2005-06 (6th grade) school year that would transpire until the next annual review (Dist. Ex. 3 at p. 2). Recommendations noted on the student's IEP that was developed at the CSE annual review include the student's continuation in a CTT class (Dist. Ex. 3 at p. 1). Related services include speech and language therapy in a separate location two times per week for 30 minutes and in a group of three to one, individual occupational therapy in a separate location two times per week for 30 minutes, and counseling in a separate location one time per week for 30 minutes in a group of three to one (Dist. Ex. 3 at p. 19). Testing modifications were extended time (double) and questions read aloud to the student. Supplementary aids and services were special education teacher services, direct instruction and team teaching (Dist. Ex. 3 at p. 17). The IEP indicates that the student would fully participate in school activities such as lunch, assemblies, trips, and/or other school activities with non-disabled students (Dist. Ex. 3 at p. 19).
The October 18, 2004 IEP noted that for the time between the annual review meeting in October 2004 and the end of the 2004-05 school year in June 2005 when the student was in fifth grade, the student would be held to the standard criteria for promotion except for modifications where the student was expected to meet 75 percent of the third grade English Language Arts (ELA) standards and 75 percent of the third grade math standards, both as evidenced by his work, teacher observation and assessments and grades (Dist. Ex. 3 at p. 20). For the portion of the 2005-06 school year until the next annual review that was projected to occur on October 19, 2005 (Dist. Ex. 3 at p. 2), when the student would be in sixth grade, the CSE recommended that the student be held to the standard criteria for promotion except for modifications where the student was expected to meet 50 percent of the fourth grade ELA standards and 50 percent of the fourth grade math standards, both as evidenced by his work, teacher observation and assessments and grades (Dist. Ex. 3 at p. 20).
At the end of the first marking period of fifth grade during the 2004-05 school year, when the student was attending the recommended CTT class, the student's promotion to sixth grade was in doubt (Parent Ex. B). The CTT special education teacher testified that the student received ones and twos on his report card (Tr. p. 110) for reading and math (Tr. p. 136), ratings that indicate that the student was far below grade level standards if rated with a "one" and approached grade level standards if rated with a "two" (Parent Ex. B). The CTT general education teacher testified that she and the CTT special education teacher met with the student's parents quite often, and that they suggested to the parents that the student should have a thorough medical examination because he appeared to be very distracted (Tr. pp. 161-62, 180, 195). The parents had the student examined and he began taking medication to address his attention difficulties in February 2005 (Dist. Ex. 10 at p. 2; Tr. pp. 100, 162). Despite an allegation that the student's teachers "asked for [the student] to be put on medication" (Pet. ¶ 42), petitioner's testimony is clear that the teachers suggested only a medical examination, and it was in fact the private doctor who examined the student who suggested medication (Tr. pp. 298-99, 319, 326).
In February 2005, when the student was 11 years old, the parents obtained a psychological evaluation of the student (Dist. Ex. 10). Petitioner testified that, pursuant to respondent's request for copies of any private evaluations, he shared the results of the private psychological evaluation with the CSE in June 2005, prior to the June 21, 2005 CSE meeting (Tr. p. 332). Formal administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV) was conducted during this evaluation, by which time the student was receiving medication for the ADHD, and resulted in a verbal comprehension index score of 91, a perceptual reasoning index score of 96, a working memory index score of 94, a processing speed index score of 78, and a full scale IQ score of 87, placing overall intellectual functioning in the low average to average range (Dist. Ex. 10 at pp. 3, 5). Inter-test and intra-test scatter skills were noted on the WISC-IV, particularly in the student's nonverbal skills for abstract stimuli and in his processing speed, and were considered to be due in part to attention factors (Dist. Ex. 10 at p. 4). The student's arithmetic skills were considered to be one of his strengths, in comparison to his weaknesses in decoding of spelling of words, reading, and writing skills (id.). The scatter demonstrated in the test results was considered to be consistent with the student's previous diagnosis of having a learning disability (Dist. Ex. 10 at p. 5).
Administration of the abbreviated version of the Wechsler Individual Achievement Test-II (WIAT-II) resulted in significant variability in the student's performance in academic areas and was consistent with his aforementioned diagnosis of having a learning disability (Dist. Ex. 10 at p. 2). On the numerical operations subtest, the student achieved a standard score of 100, at the 50th percentile, with an age equivalent of 11.0 years, and a grade equivalent of 5.6 (Dist. Ex. 10 at p. 4). His performance on the word reading subtest yielded a standard score of 85, at the 16th percentile, with an age equivalent of 9.0 years, and a grade equivalent of 3.6 (id.). On the spelling subtest, the student achieved a standard score of 82, in the 12th percentile, with an age equivalent of 8.4, and a grade equivalent of 2.8 (id.).
Reading comprehension as assessed by the Diagnostic Reading Scales, was on a grade level of 5.5, a level expected for his age (Dist. Ex. 10 at p. 5). This was a two and one-half year improvement of the student's reading comprehension within a four-month period of time, and after the student had already been on medication for the ADHD. (Tr. pp. 321-22).
In view of the results of the private psychological evaluation, the evaluator recommended remedial instruction in a small, structured special education program in a private school setting for children with learning disabilities, speech therapy, occupational therapy, and counseling, and extended time on tests to accommodate the student's slow processing speed for information, which may be due to his attention difficulties (Dist. Ex. 10 at p. 5). No rationale for placement at a private school setting was provided in the evaluation report.
According to the private psychological evaluation report (Dist. Ex. 10 at p. 2), and petitioner's testimony, by March 2005 the student demonstrated improved ability to focus after being medicated (Tr. p. 301). The student's teachers also reported that the medication seemed to be working (Tr. p. 319). Petitioner testified that in March 2005, the teachers told him that his son's chances of promotion to sixth grade looked brighter (Tr. p. 304).
A CSE meeting was held on June 21, 2005 and the IEP produced at that meeting is the IEP in dispute on this appeal. Minutes of the June 21, 2005 CSE review meeting reflect that at the CSE meeting the parents had concerns about which they asked questions or commented, but they did not express dissatisfaction with the recommended placement (Dist. Ex. 4). The student's mother asked if the student could obtain a word processor to help him with his writing, resulting in an immediate explanation from the CSE regarding how the parent could make a formal request for an evaluation regarding the word processor (Dist. Ex. 4 at pp. 3-4). The social worker discussed the procedure for appealing the CSE's recommendations, including the parents' right to request an impartial hearing (Dist. Ex. 4 at p. 4). Notably, petitioner did not testify that he ever told the school he wanted to take his son off medication and the school psychologist present at the CSE meeting did not believe that petitioner made such a pronouncement (Tr. p. 39).
The IEP developed on June 21, 2005 reflects the student's history of a seizure disorder for which he no longer took medication, and that he did take medication at home for attention issues (Dist. Ex. 2 at p. 1). Recommendations for the 2005-06 school year remained the same as the recommendations made at the CSE annual review that occurred in October 2004, with the addition of separate location for testing, and directions read and reread aloud to the student except for tests measuring reading comprehension (Dist. Ex. 2 at pp. 2, 18). The modified criteria for promotion indicates that the student would be expected to meet 40 percent of the sixth grade reading standards and 50 percent of the sixth grade math standards, both as measured by his work, teacher observation and assessments and grades (Dist. Ex. 2 at p. 18).
Petitioner requested an impartial hearing on September 6, 2005 (Dist. Ex. 1). The impartial hearing was held on October 3, October 11, and October 20, 2005. Petitioner argued that the progress that the student made in fifth grade was largely attributable to the fact that he began receiving medication for ADHD in February 2005, and that he should not have to be medicated in order to make progress. In addition, petitioner noted that the student's classroom teachers participated for a relatively short period of the CSE meeting and participated over the telephone. Petitioner also noted that the promotional standards noted on the June 21, 2005 IEP relate to sixth grade reading and math standards, although the student's goals in reading and mathematics are based on fifth grade reading and mathematics levels (Dist. Ex. 2). Respondent asserted that the CTT classroom was appropriate for petitioner's son and that the smaller classroom environment that petitioner sought was too restrictive in light of the student's progress.
The impartial hearing officer issued a decision dated November 14, 2005 and held that respondent had made an appropriate recommendation for the student's sixth grade year, that any arguable procedural defects did not play a significant role and that petitioner was not entitled to tuition reimbursement for Lowell (IHO Decision, pp. 6-7). She determined that the student had made progress in fifth grade for both reading and math, as well as in speech and language (IHO Decision, p. 5). This progress was noted to be "significant" and was considered to be the result of the special education services provided in school and not solely as the result of medication (IHO Decision, pp. 5-6).
Petitioner appeals and asserts that the CSE meeting held on June 21, 2005 was procedurally defective due to insufficient participation by the student's teachers who participated by telephone conference call. Petitioner also asserts that the program offered to the student for the 2005-06 school year was not appropriate because the student allegedly experienced only trivial advancement in the 2004-05 school year, because the least restrictive environment (LRE) for the student should not require medication, and because petitioner believes the student requires full time special education services in a small class. Petitioner seeks tuition reimbursement for his unilateral placement of the student at Lowell for the 2005-06 school year.
I concur with the impartial hearing officer that the June 21, 2005 IEP was reasonably calculated to offer the student a FAPE for the 2005-06 school year, when the student would be in sixth grade (Dist. Ex. 2).
First, the CSE was properly composed and the record establishes that each of the appropriate members participated to an adequate extent. The record establishes that three members of the CSE, the student's regular and special education teachers and the school psychologist who had performed an observation of the student, participated together from an off-site location by telephone, and, while their telephone did not have speaker phone capabilities, their comments were heard by all of those present at the CSE meeting in person, where a speaker phone was used (Tr. pp. 183-84, 201; Dist. Exs. 2 at p. 2, 7).
Petitioner cites a June 1992 State Education Department field memo entitled, The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), which provides, in pertinent part, that: "Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting" and "…individuals who participate through teleconferencing must have access to the same material available to all others involved in this process….". This field memo does not have the force and effect of a regulation (Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child with a Disability, Appeal No. 00-043).3
The record establishes that these members participating by telephone participated adequately and that the amount of time of their participation, the exact amount of which is unclear from the record, was sufficient (Tr. pp. 24, 48, 183-84). The school psychologist present in person at the meeting testified that, before each member got off the telephone, he checked to see if there were any questions (Tr. p. 48). Additionally, he noted that the off-site CSE members could have been called back had a question later arisen (id.). Petitioner never objected to the telephone participation (Dist. Ex. 4) and although petitioner now speculates that the telephone participants may not have had all the documents that were available at the CSE meeting, there is no evidence to substantiate this and it is clear that the telephone participants did have documents in front of them (Tr. pp. 23-24).
Even if the telephone conference participation took place in a manner not consistent with the guidance provided in the 1992 field memo referenced above, under the circumstances of this case I find that the telephone participation at the CSE meeting allowed for appropriate participation by all parties, including the parents. A denial of FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, seriously infringes upon the parent’s opportunity to participate in the process of formulating the IEP, or compromises the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). I concur with the impartial hearing officer that any arguable procedural defects did not affect the fact that the student was offered an appropriate education (IHO Decision, p. 6). The record reflects consistency in terms of the student's strengths and needs in accord with current evaluation results reflected in the IEP (Dist. Ex. 2 at p. 3), and in how his teachers addressed the student's needs in the classroom, by placing the student in small groups (Tr. p. 104), providing prompts (Tr. p. 59) and verbal refocusing, seating him in the front of the room, and having other students assist him when necessary (Tr. p. 60). The present levels of academic performance on the June 21, 2005 IEP reflect the student's scores on the WIAT-II and the Reading Diagnostic Series obtained during the private psychological evaluation (Dist. Ex. 10 at p. 5). Descriptive present levels of performance regarding the student's speech and language, fine motor, and social-emotional needs are included in the IEP (Dist. Ex. 2 at pp. 4, 5, 7). IEP goals and objectives targeted the student's writing, visual motor, math computation and problem solving, word recognition, speaking and listening, reading comprehension, receptive and expressive language, and social-emotional needs (Dist. Ex. 2 at pp. 8-15). There are multiple goals and objectives that address the student's reading and math needs as indicated in the present performance, needs, and goals and objectives sections of the IEP (Dist. Ex. 2 at pp. 3, 9-12).
Second, the impartial hearing officer accurately noted that the student exhibited "significant" progress in the 2004-05 school year and that respondent's recommendations on the June 21, 2005 IEP offered the student a FAPE in the LRE for the 2005-06 school year (IHO Decision, pp. 5-7).
Both of the student's CTT classroom teachers testified that he progressed in his fifth grade year (Tr. pp. 92-93, 95, 146-47, 149, 164-65, 209-10, 212). Report cards reflect scores of the citywide tests administered to the student between 2003 and 2005 and demonstrate that the student made consistent progress in both ELA and math (Parent Exs. A, B; Tr. p. 80). On the 2003 citywide examinations, the student scored 599 at level two, approaching grade level standards for ELA, and scored 558 at level one, far below grade level standards for math (Parent Ex. A at pp. 1-2). On the 2004 citywide examinations, the student scored 626 at level two, again approaching grade level standards for ELA, and scored 635 at level two, now approaching grade level standards for math (Parent Ex. B at p. 2). On the 2005 citywide examinations, the student's scores of 673 for ELA and 666 for math are both at level three, meeting grade level standards for each subject area (Parent Ex. B at pp. 1-2, Dist. Ex. 7; Tr. p. 164). The fifth grade report card demonstrates overall progress in reading, writing, listening and speaking, mathematics and social studies (Parent Ex. B). Also, for the second and the final marking periods, there are no checkmarks in the boxes that connote that the student's promotion is in doubt, as there is after the first marking period (Parent Ex. B at pp. 1-2).
Clarifying the student's scores on the citywide tests, the CTT general education teacher testified that in 2004, the student scored nineteen points below a level three standard on the ELA citywide exam (Tr. pp. 164, 208). Both the special education teacher and the general education teacher testified that the student's reading scores in 2005 went up seventeen points above a level three on the ELA examination (Tr. pp. 94, 164, 208). On the standardized math examination, the student scored two points below a level three in 2004, and in 2005 he scored two points above a level three (Tr. pp. 95, 165).
Regarding an alleged inconsistency between the goals and the criteria for promotion as listed on the October 18, 2004 and the June 21, 2005 IEPs (Dist. Exs. 3 at p. 20, 2 at p. 18), where the standard for promotion appears to be higher than the goals, the minutes of the June 21, 2005 CSE meeting reflect that the student's performance on the citywide tests was better than his class performance (Dist. Ex. 4 at p. 3). Also, by the end of fifth grade, the student met grade level standards on the citywide ELA and math examinations (Parent Ex. B). The minutes indicate that academically the student was still not functioning on the fifth grade level (Dist. Ex. 4 at p. 3). The student's academic and social emotional needs were addressed appropriately in his CTT placement and in the objectives on the June 21, 2005 IEP (Dist. Ex. 2 at pp. 8-15). The progress that the student made in fifth grade was a reasonable basis upon which the CSE developed the IEP for 2005-06.
Additionally, I also concur with the impartial hearing officer's determination that the student's progress could not be attributed solely to the fact that he was on medication for his ADHD from February to June 2005 (IHO Decision, pp. 5-6). As also detailed above, the record contains evidence of the student's progress over the years, which occurred prior to when he began taking medication (Tr. p. 33). Further, the record does not establish that the student would require a smaller class if he was not on medication because he was already in a small class environment within his CTT class, as also noted by the impartial hearing officer (id.). Testimony by the CTT general education teacher indicates that the CTT class consisted of sixteen general education students and ten special needs students (Tr. p. 160). The student spent fifty to seventy-five percent of his time in a small group of five or six students (Tr. pp. 218-19). The teacher testified that prior to the student beginning medication for ADHD, she redirected the student every five to ten minutes (Tr. pp. 217-18). An occupational therapist also was available to assist the student in organizing himself, and to refocus and redirect him (Tr. p. 217). In addition, a private school questionnaire filled out by the student's special education teacher on February 28, 2005 indicates that the student sat near the front of the classroom to improve his attention, and that students assisted him when necessary (Dist. Ex. 9 at pp. 1-2). The CTT special education teacher testified that there is also a paraprofessional in the classroom (Tr. p. 99). The school psychologist testified that the private psychologist report's findings in fact supported the program recommended by respondent (Tr. p. 40).
The special education teacher opined that the parents were not dissatisfied with the program at PS 99, but that they wanted something better for their son (Tr. pp. 124-25). Notably, petitioner testified that he was looking for a placement in a private school for his son because, "I thought it was the best place to put him, I thought that was really - it fit him. He has a lot of disabilities and I thought the more attention you can get, the better off" (Tr. p. 318). An IEP must be reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. 176, 206-07). However, it is well established that school districts are not mandated to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199). Petitioner argues that it was "not a viable alternative" to take his son off the ADHD medication in public school (Tr. p. 319), but the record establishes that the evidence of progress preceded the start of his son's medication, as set forth above. Based on the information before the CSE, the student was exhibiting more than trivial progress, which could not be attributed solely to medication, and the recommendation to continue the student in the CTT classroom for the 2005-06 school year was appropriate.
In light of the above analysis, I concur with the impartial hearing officer that the June 21, 2005 IEP offered the student a FAPE as set forth above.4
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
February 24, 2006
PAUL F. KELLY
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) meets the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.