The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-005

 

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 Carmel Central School District

 

Appearances:
Family Advocates, Inc., attorneys for petitioners, RosaLee Charpentier, Esq., of counsel

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for respondent, Jeffrey J. Schiro, Esq., of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Kildonan School (Kildonan) for the 2005-06 school year.  The appeal must be sustained in part.

Petitioners attach to their Petition the following documents not introduced into evidence at the impartial hearing: 1) correspondence from May and September 2005 from respondent and respondent's attorney regarding class profile information; 2) hospital records showing treatment on October 14, 2005 for petitioner mother; 3) the student's 2004-05 individualized education program (IEP); and 4) correspondence from Kildonan dated September 9, 2005 regarding payment of tuition.  Additionally, petitioners submitted an affidavit of the Kildonan Academic Dean, sworn to November 9, 2005, with the following documents annexed:  1) the Academic Dean's curriculum vita; 2) a Kildonan brochure; and 3) various Kildonan school records and test results from May 2003 through June 2005 pertaining to the student's academic performance at Kildonan.   Respondent objects to petitioners' attempt to introduce new information, asserting that petitioners had the opportunity to present the information to the impartial hearing officer.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  The impartial hearing concluded on October 14, 2005, and all of the above documents would have been available at the time of the hearing with the exception of the October 14, 2005 hospital records and the November 9, 2005 Affidavit of the Academic Dean of Kildonan.  Neither the hospital records nor the affidavit are necessary for the rendering of my decision.  Therefore, the additional documentary evidence submitted by petitioners is not accepted.

At the time of the impartial hearing in the fall of 2005, petitioners' daughter was thirteen years old and attending eighth grade at Kildonan.  The Commissioner of Education has not approved Kildonan as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The student's eligibility for special education services and classification as a student with a learning disability  (see 8 NYCRR 200.1 [zz][6]) are not in dispute.

            The student's prior educational history is described in Application of a Child with a Disability, Appeal No. 05-063 and will not be repeated here in detail.  Briefly, the student experienced vision problems at an early age which were reportedly addressed through surgery and corrective lenses (Tr. p. 254).  The student was initially reviewed and classified as learning disabled by the respondent's Committee on Special Education (CSE) in December 1998 when she was attending first grade (Tr. p. 13).  According to psychological testing, the student's overall intellectual functioning fell within the average range; however, she demonstrated deficits in reading, math, and spelling (Tr. pp. 13-14).  She received varying levels of special education services throughout her elementary school years. 

            The student's mother testified that when her daughter was to transition to the fifth grade in respondent's middle school, she became concerned about the size of the school and her daughter's ability to move from class to class in a typical middle school schedule (Tr. p. 282).  Petitioners enrolled the student in a private school, identified in the record as Crossroads School, for the 2002-03 school year (Tr. pp. 16, 283) and in April 2003, referred her back to respondent's CSE for evaluation (Dist. Ex. 1 at p. 2).  Respondent administered the Woodcock-Johnson III Tests of Cognitive Abilities (WJ-III COG) and the Woodcock-Johnson III Tests of Achievement (WJ-III ACH) (Dist. Ex. 1 at p. 2).  The student achieved test scores in the average range in mathematics and written expression, and the low average range in broad reading (Dist. Ex. 1 at p. 2).  Her subtest scores in basic reading skills, math calculation skills, and written language skills were also in the low average range (Dist. Ex. 1 at p. 2).  There were no discrepancies identified among the student's cognitive and achievement abilities (id.). 

            In September 2003, petitioners unilaterally enrolled the student in Kildonan, which she attended for the 2003-04 school year (id.).  In August 2004, respondent's CSE met for the student's annual review and to develop her IEP for the 2004-05 school year when the student would be in seventh grade (Dist. Ex. 1 at p. 3).  Petitioners rejected the CSE's recommended program, unilaterally enrolled their daughter in Kildonan for seventh grade, and requested an impartial hearing seeking tuition reimbursement for the 2004-05 school year (Tr. p. 17; Dist. Ex. 1).

            The impartial hearing related to the 2004-05 school year commenced on January 18, 2005 and concluded on April 15, 2005 (Dist. Ex. 1 at p. 4).  An impartial hearing officer rendered a decision on May 19, 2005, holding that respondent had failed to offer petitioners' daughter a free appropriate public education (FAPE) for the 2004-05 school year because the CSE had been improperly composed, the evaluations considered were deficient, and because the goals and objectives on the IEP were inadequate and failed to properly account for the student's present levels of performance (id.).  He further found that petitioners' unilateral placement of the student at Kildonan met the student's needs and allowed her to progress, and that equitable considerations supported granting tuition reimbursement to the parents for the 2004-05 school year (id.).  Respondent subsequently filed a petition for review to a State Review Officer, resulting in a decision being issued on August 10, 2005 upholding the impartial hearing officer's decision and dismissing the appeal (Application of a Child with a Disability, Appeal No. 05-063).

Regarding the student's academic abilities, testing conducted during the 2004-05 school year revealed a relative weakness in the student's ability to analyze and synthesize abstract visual stimuli (Dist. Ex. 9 at p. 4).  In addition, the student performed in the low average range on measures of numerical operations, math reasoning, and spelling (Dist. Ex. 10 at p. 1).  March 2005 progress reports from Kildonan indicated that the student was performing satisfactorily (Dist. Ex. 8).  Narrative reports from the student's teachers at Kildonan indicate that as of March 2005 the student's weaknesses included the mechanical aspects of writing and inconsistent class participation (Dist. Ex. 8 at pp. 3, 5-6).  The Kildonan instructor who provided individual language training tutorials to petitioners' daughter during the 2004-05 school year reported that the student was working on more advanced phonemic concepts, including learning the Latin roots for words, and was continuing to work with expanded paragraphs (Dist. Ex. 8 at p. 3).  In mathematics, she was reported to have a thorough understanding of the material presented in class (Dist. Ex. 8 at p. 4).

            On April 3, 2005, respondent conducted psychological and educational evaluations of the student as part of her triennial review (Dist. Exs. 9, 2).  Administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV) yielded a verbal comprehension score of 100, a perceptual reasoning score of 102, a working memory score of 110, a processing speed score of 100, and full scale IQ score of 105, which placed the student in the average range of cognitive functioning (id.).  The evaluator reported that there was no significant discrepancy between any of the composite scores and that "her profile did not differ significantly from her previous assessment" (Dist. Ex. 9 at pp. 5-6).  On the Wechsler Individual Achievement Test-II (WIAT-II), the student achieved standard (and percentile) scores of 108 (70) in reading, 81 (10) in mathematics, 89 (23) in written language, 133 (99) in oral language, and a total composite score of 101 (53) (Dist. Exs. 10, 2).  Relative strengths were noted in oral expression, reading comprehension, and listening comprehension with notable weaknesses identified in spelling, numerical operations, and math reasoning (Dist. Ex. 10 at p. 5).

            On May 17, 2005, while the decision of the impartial hearing officer was still pending regarding the 2004-05 school year, respondent's CSE met for the student's annual review and to develop her individualized education program (IEP) for the 2005-06 school year (eighth grade), which is the IEP in dispute in this proceeding (Dist. Ex. 2).  Both parents and an additional parent member were present (Dist. Ex. 2 at p. 4).  CSE meeting notes reflect that respondent's CSE considered the results of psychological and educational evaluations conducted in April 2005, the assistive technology evaluation conducted in June 2004, the student's April 2004 interim report card and reports from her teachers at Kildonan, and results of a classroom observation of the student conducted in May 2005 (id.).  For the 2005-06 school year (eighth grade), the CSE recommended that the student be placed in a special class for reading and mathematics, and attend general education classes with consultant teacher support for social studies, science, and English (id.).  Counseling was also recommended (id.).  Recommended program modifications included refocusing and redirection, preferential seating, copy of class notes, extended time for in class assignments, and Books on Tape (Dist. Ex. 2 at p. 2).  Assistive technology devices and services included AlphaSmart trials, access to a word processor, books on tape, and an unspecified assistive technology consultation (Dist. Ex. 2 at p.2).  The student was afforded the following testing modifications:  extended time (1.5), directions read/explained, clarification of test questions, special location, and spelling requirements waived (id.).  The proposed IEP contained goals and objectives related to study skills, reading, writing, mathematics, and social emotional needs (Dist. Ex. 2 at pp. 4-7).

Petitioners were mailed the proposed IEP on August 9, 2005 (Dist. Ex. 22) and by letter dated August 18, 2005, they rejected the CSE's recommended program, gave notice of their unilateral enrollment of their daughter at Kildonan for the 2005-06 school year, and requested an impartial hearing seeking tuition reimbursement for the 2005-06 school year (Dist. Ex. 23).

            The impartial hearing was held on August 30, October 7, and October 14, 2005.  At the impartial hearing, petitioners asserted that the IEP prepared at the May 17, 2005 CSE meeting failed to offer their daughter a FAPE for the 2005-06 school year.  Respondent asserted that the recommendations contained within the May 17, 2005 IEP were made after considering updated evaluations and that they offered the student a FAPE.  Respondent asserted that all procedural requirements were met and that the substantive program was appropriate and that therefore petitioners should be denied tuition reimbursement.

The impartial hearing officer issued a decision dated November 23, 2005 and held that respondent had made an appropriate recommendation for the student's eighth grade year (IHO Decision, pp. 15, 28, 41).  She determined that the goals and objectives "may appear to have stayed the same" as the prior IEP, but that the student's "knowledge in each of these areas will grow" and that the goals were capable of implementation and were reasonably calculated to confer educational benefit (IHO Decision, pp. 15, 41).  She concluded that the academic levels and goals and objectives in the IEP were appropriate, and that therefore petitioners were not entitled to tuition reimbursement for Kildonan (IHO Decision, p. 41).

            On appeal, petitioners make the following assertions: 1) they were denied their due process right to present a complaint to the impartial hearing officer; 2) the CSE was improperly constituted due to the presence of a seventh grade regular education teacher as opposed to an eighth grade regular education teacher; 3) the recommended program that would have been provided was not reflected on the IEP; 4) the CSE had insufficient information about the student; 5) the goals and objectives were inappropriate and identical to the goals and objectives found deficient in a prior appeal regarding the 2004-05 IEP; 6) the IEP contained a typographical error; and 8) the evaluations conducted by the district did not support a change in the student's program from full time special education to part time special education and support in general education.  On appeal, petitioners seek an annulment of the impartial hearing officer's decision and tuition reimbursement for their daughter's 2005-06 school year at Kildonan.  Respondent submitted an answer with affirmative defenses disputing petitioners' assertions above, and also asserting that petitioners' failure to properly litigate the case before the impartial hearing officer precludes them from relitigating the matter on appeal to the Office of State Review.

            First, I will address petitioners' argument that they were denied their due process right to present their special education complaint at an impartial hearing.  Petitioners argue that the impartial hearing officer improperly terminated the impartial hearing and denied the parents an opportunity to present testimony by either their independent evaluator or representatives of Kildonan.  I disagree.  As set forth in more detail below, the impartial hearing officer granted multiple adjournments of the impartial hearing and any failure of petitioners to present evidence was not due to any improper actions or inactions of the impartial hearing officer.

            The hearing was conducted in a manner consistent with the requirements of due process (34 C.F.R. 300.510[b][2]; Education Law 4404[2]).  The timeframe for impartial hearings, as set forth in the IDEA implementing regulations, are as follows:  "The public agency shall insure that not later than 45 days after the receipt of a request for a hearing - (1) A final decision is reached in the hearing; and (2) A copy of the decision is mailed to each of the parties."  (34 C.F.R. 300.511[a]; see also Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236 [S.D.N.Y. 2000]).  New York regulations set forth the 45 day timeframe, but also allow an impartial hearing officer to grant extensions of time beyond the 45 days if requested by a party (8 NYCRR 200.5[i][4]).1  Specific factors for an impartial hearing officer to consider prior to granting an extension are also set forth (8 NYCRR 200.5[i][4][ii]). 

The impartial hearing officer may grant a request for an extension only after fully considering the cumulative impact of the following factors:

 

            (a)       the impact on the child's educational interest or well-being which might be occasioned by the delay;

            (b)       the need of a party for additional time to prepare or present the party's position at the hearing in accordance with the requirements of due process;

            (c)       any financial or other detrimental consequences likely to be suffered by a party in the event of a delay;

            (d)       whether there has already been a delay in the proceeding through the actions of one of the parties.

(8 NYCRR 200.4[i][4][ii]).  Additionally, the regulations provide that agreement of the parties is not a sufficient basis for granting an extension, and further that "[a]bsent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted because of school vacations, a lack of availability resulting from the parties' and/or representatives' scheduling conflicts, settlement discussions between the parties or other similar reasons." (8 NYCRR 200.4[i][4][iii]).

            In the present case, the hearing was initially scheduled for August 30, 2005 and September 9, 2005 (IHO Ex. 1).  The first day of the hearing was held on August 30, 2005 as planned and the district presented their case and rested (Tr. p. 211-12).  The impartial hearing officer noted at the conclusion of the day on August 30, 2005 that on September 9, 2005 it would be the parents' turn to present their case and that "if they are going to have a witness from Kildonan to make sure that this witness appears on the 9th ..." (Tr. p. 212).

            On September 7, 2005 petitioners' attorney sent a letter to the impartial hearing officer, requesting an adjournment of the September 9, 2005 hearing date on consent due to unavailability of parent witnesses due to the first week of school (IHO Ex. 2).  Respondent's attorney noted in a later letter on the same date that she had only agreed to an adjournment if a date certain could be set in the next few weeks (IHO Ex. 3), which condition was not included in the letter to the impartial hearing officer (IHO Ex. 2).  The impartial hearing officer scheduled a new date certain of October 7, 2005, granting close to the maximum extension permissible under state regulations (30 days) (8 NYCRR 200.4[i][4][i]), and warning that there would not be further extensions (IHO Ex. 4).

            A few days prior to the October 7, 2005 scheduled date certain, staff from petitioners' law firm contacted the impartial hearing officer to request an extension due to attorney scheduling conflicts due to a family emergency with one attorney and a court appearance for the other attorney in the firm representing petitioners (IHO Exs. 5, 6).  The impartial hearing officer neither granted an adjournment nor advised petitioners' attorneys that the October 7, 2005 hearing date was cancelled (Tr. pp. 300-01). However, staff at petitioners' law firm reportedly believed that the hearing date was cancelled and immediately cancelled the parent witnesses (IHO Ex. 6).  Respondent's attorneys objected to this adjournment in light of the date certain that had been set and the detrimental financial consequences that would be suffered because respondent was paying for petitioners' daughter's private school during the pendency of the proceedings (IHO Ex. 5).  The impartial hearing officer ordered the hearing to proceed on October 7, 2005 (IHO Ex. 7).

            On October 7, 2005, the impartial hearing officer listed her reasons for continuing the hearing on that day, noting that petitioners' law firm has two attorneys, that such a last minute adjournment would affect the schedules of many other attorneys and witnesses, and that the financial obligation of respondent for the pendency placement is continuing, all in addition to the 45 day timeline set for hearings (Tr. pp. 231-33).  Petitioners' attorney indicated on the October 7 hearing date that their independent evaluator and a Kildonan representative had been available but their appearances that day had been cancelled by petitioners' law firm, and that upon being re-contacted by the firm 2 hours later, they were both unavailable (Tr. pp. 245-46).  Petitioner mother began her testimony on October 7, 2005, but had to leave early for work because she had believed the hearing had been cancelled after being so informed by her law firm (Tr. pp. 250-51, 294).  The impartial hearing officer offered to take any exhibits that petitioners' attorney could offer into evidence, but petitioners' attorney indicated that he did not have exhibits to introduce with him (Tr. pp. 301-02).   Over respondent's objection, the impartial hearing officer granted one further extension of five business days, setting October 14, 2005 as the final day of the hearing (IHO Ex. 8). 

            On October 12, 2005, petitioners' attorney requested an extension of the October 14, 2005 date to November 1, 2005, citing unavailability of witnesses as the reason (IHO Ex. 9).  The impartial hearing officer denied the request for a further extension and reminded petitioners' attorney that witnesses could appear by phone (IHO Ex. 8).  On October 14, 2005, petitioners did not have their independent evaluator or a Kildonan representative ready to testify and petitioner mother was unable to continue her testimony due to her own medical problem (Tr. pp. 331-32).  Petitioners' attorney did not offer any exhibits to be entered into evidence (Tr. pp. 325-44).  After considering all of the circumstances, including the best interests of the student, and the history of the proceedings, the impartial hearing officer closed the hearing on October 14, 2005 (Tr. p. 340-43). 

            The impartial hearing officer was well within her discretion to close the hearing and stop granting extensions in light of the circumstances and history of this case as detailed above.  Notably, the October 7, 2005 date would have proceeded with petitioners' private evaluator and Kildonan representative, except for the fact that petitioners' own law firm erroneously cancelled their appearances and reportedly could not re-engage them 2 hours later (Tr. pp. 245-46).  While recognizing that circumstances may arise that warrant consideration of a hearing extension, it must be noted that the granting of extensions is constrained by regulation, as the impartial hearing officer herein was aware.  Although one of petitioners' attorneys suffered a family emergency and one of the petitioners had a medical problem for one day of the hearing, these situations do not mitigate the unrelated last minute requests for extensions, the inaccurate information circulated by petitioners' law firm (IHO Exs. 2, 3, 6; Tr. pp. 300-01) and the expressed lack of preparation for the hearing by petitioners' law firm.2  The impartial hearing officer properly gave consideration to the factors listed in state regulations and acted appropriately in her correspondence with the parties regarding extensions and with her granting and denial of extensions.  Therefore, petitioners' due process claim is dismissed.

            Next, I will address petitioners' claim that the goals and objectives on the 2005-06 IEP were inappropriate and identical to the goals and objectives found deficient in a prior appeal regarding the 2004-05 IEP (Application of a Child with a Disability, Appeal No. 05-063).  Although I find that the CSE had sufficient evaluative information for the student, I agree that the goals and objectives on the 2005-05 IEP were inappropriate and failed to offer the student a FAPE, and in light of this, I do not reach petitioners' remaining assertions that CSE composition was improper; that the recommended program that would have been provided was not reflected on the IEP; that the IEP contained a typographical error; and that the evaluations conducted by the district did not support a change in the student's program. 

A purpose behind the IDEA (20 U.S.C. 1400 - 1487)3 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]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]).4  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 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). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002] [quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  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 student 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; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]). 

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, Section 1, Question 1).

            In April 2005, respondent conducted psychological and educational reevaluations of the student in preparation for her annual review.  Administration of the WISC-IV yielded a verbal comprehension score of 100, a perceptual reasoning score of 102, a working memory score of 110, a processing speed score of 100, and full scale IQ score of 105; which placed the student in the average range of cognitive functioning (Dist. Exs. 9, 2).  On the WIAT-II, the student achieved standard (and percentile) scores of 108 (70) in reading, 81 (10) in mathematics, 89 (23) in written language, 133 (99) in oral language, and a total composite score of 101 (53) (Dist Exs. 10, 2).  Relative strengths were noted in oral expression, reading comprehension, and listening comprehension with notable weaknesses identified in spelling, numerical operations, and math reasoning (Dist. Ex. 10 at p. 5).  The CSE chairperson testified that the student's scores on the WISC-IV were in the average to high average range and opined that her cognitive ability to access learning and participate in the learning environment was very strong (Tr. p. 151).  He further testified that based on the results of the psychological and educational assessments the CSE felt that the student would be able to "keep pace with her class" (Tr. p. 152).

            Although testimony indicates that the results of these evaluations were fully considered at the May 17, 2005 CSE meeting, the 2005-06 IEP developed by the CSE on May 17, 2005 fails to reflect this and does not adequately or accurately describe the student's present levels of performance.  The 2005-06 IEP contains global statements similar to those found to be deficient in the student's 2004-05 IEP (Dist. Ex. 1 at p. 10).  Statements such as "[the student's] cognitive abilities are average with the exception of processing speed" and "[the student's] reading and writing skills are below average," do not provide a meaningful description of the student's abilities or needs, or suggest specific deficits that need to be addressed (Dist. Ex. 2 at p. 3).  For example, the May 2005 IEP indicates that the student needs to improve her reading and writing skills; however, it does not identify the student's specific areas of weakness to be addressed.  Descriptions of the student's present performance levels on the IEP do not indicate if the student needs to improve her decoding skills, reading comprehension skills, spelling, penmanship or some other aspects of reading and writing such as fluency or paragraph development (Dist. Ex. 2 at p. 3).  Additionally, these statements appear to be discrepant with the record, which indicates that the student's processing speed score and reading composite score were in the average range (Dist. Ex. 9 at p. 2; Dist. Ex. 10 at p. 2; Tr. p. 145).  Despite the CSE having sufficient current evaluative information to detail the student's present levels of performance and individual needs, the IEP as written contains an inadequate and inaccurate baseline from which to develop goals and objectives.  The present levels of performance and individual needs outlined on a student's IEP serve as the foundation on which the CSE builds to identify goals and services to address the student's individual needs (see 34 C.F.R. Part 300, Appendix A, Section 1, Question 1; see also Office of Vocational and Educational Services for Individuals with Disabilities (VESID), "Sample Individualized Education Program and Guidance Document," p. 40 [December 2002]). 

            The student's specific needs are neither articulated accurately nor addressed appropriately in the May 17, 2005 IEP.  For example, the IEP contains one goal and five short term objectives related to reading comprehension despite the fact that the student achieved a score in the superior range for reading comprehension when evaluated in April 2005 (Dist. Ex. 2 at p.5; Tr. pp. 146-47) and the evaluator who conducted the April 2005 educational and psychoeducational evaluations of petitioners' daughter reported that the student was able to decode the words in the passages she read, respond to questions requiring factual information and had no difficulty when required to draw an inference from the material read (Dist. Ex. 9 at p. 6).  Additionally the CSE chairperson testified that the student's "really strong reading comprehension scores" were a factor in determining her ability to succeed in the general education classroom for English, social studies and science (Tr. p. 152).  The IEP also contains a goal and a corresponding objective related to decoding, which is not consistent with the student's score in the 68th percentile on the pseudoword decoding subtest of the WIAT II in April 2005 or with the evaluator's report that "[the student] has well developed phonetic skills" (Dist. Ex. 10 at pp. 1, 3).

            Another area of discrepancy can be seen in the objectives for proposed written language goals for the student, specifically those short-term objectives developed to address paragraph writing (Dist. Ex. 2 at p. 6).  The CSE chairperson testified that the student had shown evidence of a "good foundation" to go into the next grade level in writing, which he described as "going into now three to five paragraph essays" (Tr. p. 160).  The student's March 2005 report card from Kildonan indicates that she was beginning to compose five paragraph essays (Dist. Ex. 8 at p. 3), however the 2005-06 IEP contains an objective to "write a short paragraph that includes a topic sentence" (Dist. Ex. 2 at p. 6).

            In the area of mathematics, the 2005-06 IEP appropriately contains objectives related to word problems, consistent with statements in the April 2005 educational evaluation report indicating difficulty in this area (Dist. Ex. 10 at p. 3).  However, the objectives as written do not contain sufficient specificity by which to guide instruction, evaluate the student's progress or gauge the need for continuation or revision of the objectives (Dist. Ex. 2 at p. 6).  For example, one objective states that the student will "understand the language necessary to solve word problems" with mastery at the 80 per cent level, but does not describe how the student would demonstrate this understanding (id.).  All of the objectives for the student's math goal indicate that evaluation will be conducted using "recorded observations, as assessed by the special education teacher" but do not provide any criteria by which these assessments and observations would have been measured (id.).  In addition, although the evaluator noted that the student's performance on the numerical operations subtest of the WIAT-II suggested that "her addition and subtraction math facts are automatic," the IEP continues to include objectives related to addition and subtraction (Dist. Ex. 10 at p. 3; Dist. Ex. 2 at p. 6).

            The student's 2005-06 IEP also contains a study skills goal with one objective to address attending skills (Dist. Ex. 2 at p. 5).  Lack of attention was not reported as a problem by any of the student's teachers and the student achieved a score in the high average range on the working memory index of the WISC-IV (Dist. Ex. 9 at p. 5). 

            In the area of social emotional skills, the IEP contains a goal with objectives related to initiating and maintaining social interaction with both peers and adults (Dist. Ex. 2 at pp. 6-7), inconsistent with reports in the record indicating that the student "easily engaged in conversation about a variety of topics both adult and self selected" and "should work on eliminating private conversations with her friends during class time" (Dist. Ex. 9 at p. 1; Dist. Ex. 8 at p. 3).  However, progress reports from the student's teachers at Kildonan consistently indicated that the student needed to participate more in class and add her own insights to the class discussions (Dist. Ex. 8), and respondent's CSE chairperson also testified that the student was reluctant to participate in class discussions (Tr. p. 155), yet the IEP does not contain goals and objectives which specifically address this identified need.

            Overall, the goals and objectives in the 2005-06 IEP do not accurately reflect the student's needs and her present levels of performance.  Additionally, the goals are not measurable and are too vaguely stated to meet the requirements set forth in state and federal regulations.  For example, the goals recite generally that the student should "demonstrate an improvement . . ." (Dist. Ex. 2 at pp. 4-7) without articulating criteria or standards of measurement to assess improvement.  The impartial hearing officer's conclusion that the goals were capable of implementation and blanket statement that the student's knowledge would grow is not supported is not supported by the record because the goals were not based upon an accurate statement of the student's needs, and because the goals and objectives are not only vague but inaccurate and not aligned with the student's actual needs.  I disagree with the impartial hearing officer's conclusion that the IEP was reasonably calculated to confer educational benefit because, based upon the current evaluative data in the record, the goals and objectives are not reflective of the student's present levels of performance and are not aligned to address those needs.  As a result the IEP is not reasonably calculated to enable this student to receive educational benefit (see Rowley, 458 U.S. at 206, 207).  Although it is suggested in the record that the recommended program would have addressed many of the student's needs, without a detailed description of the student's present functioning and appropriate goals and objectives, it is not possible to conclude what specific instruction would have been provided to her.  I conclude that the 2005-06 IEP failed to offer petitioners' daughter a FAPE.5

Having determined that petitioners' daughter was not offered a FAPE by respondent for the 2005-06 school year, I must now consider whether petitioners established that Kildonan offered an educational program which would meet the student's special education needs during that school year  (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 05-015).  In order to meet that burden, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

            There is sufficient evidence in the record to conclude that the student's special education needs were met during her 2004-05 school year at Kildonan and to anticipate that they would continue to be met during the 2005-06 school year.  While noting that petitioner mother provided limited testimony at the impartial hearing and was the only witness for petitioners, as discussed above, I also note the test scores and Kildonan records that are a part of the record.

            On testing conducted during the 2004-05 school year, the student performed in the low average range on measures of mathematics skills, and written language skills (Dist. Ex. 10).  The evaluator reported that when reading aloud, the student read slowly and frequently lost her place, and often placed emphasis on the wrong syllables of words (Dist. Ex. 10 at p. 3).  Additionally she exhibited difficulties in the areas of spelling, math reasoning, and numerical operations such as multiplication, division, and fractions (Dist. Ex. 10 at p. 1).

            The record demonstrates that the Kildonan placement was appropriate to meet the student's needs at the time placement was effectuated and that the student's academic needs were in fact addressed by the private school.  At Kildonan, the student participated in a one-to-one tutorial designed to address her strengths and weaknesses in the areas of reading, writing, and spelling (Tr. p. 292; Dist. Ex. 8 at p.3).  Petitioner mother testified that the student's tutoring was "at her pace" and that the tutor provided review of information as required (Tr. p. 292).  Notes from the tutor in March 2005 indicate that during language training sessions the student worked on handwriting, phonetic concepts, spelling, fluency, sentence structure, and writing paragraphs (Dist. Ex. 8 at p. 3).  The student practiced typing as well as handwriting her compositions, which included expanded paragraphs (Dist. Ex. 8 at p. 3).  Notes from the student's seventh grade math teacher in March 2005 indicate that instruction focused on multiplying and dividing, as well as prime and composite numbers and factorizations (Dist. Ex. 8 at p. 4) although respondent's CSE chairperson testified that the CSE questioned whether a standard math curriculum was utilized at Kildonan (Tr. pp. 159-60).  An observation of the student at Kildonan was conducted by the district special education department chairperson in March 2005.  The observation occurred in a history class and the chairperson reported that the teacher was teaching in a lecture style and had distributed typed "fill in the blank" notes for the students to complete while he read them aloud (Dist. Ex. 12 at p. 2).  Petitioner's daughter was reported to be prepared with the necessary materials, attentive, answering questions, and interacting with her teacher and the other students (id.). 

Based upon the record and under the circumstances of the present case, I find that Kildonan was an appropriate placement for this student for the 2005-06 school year.  The program selected by the parents was appropriate to meet the student's special education needs for the 2005-06 school year.

The final criterion for an award of tuition reimbursement is that the parents' claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  The record reveals that petitioners attended and participated in the CSE meeting and there was no evidence of any lack of cooperation with respondent's CSE in the student's evaluations and in preparing the student's IEP.  In the absence of any other equitable factor, I find that petitioners' claim for tuition reimbursement is supported by equitable considerations.

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

Dated:

Albany, New York

__________________________

March 1, 2006

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 The New York regulation regarding the 45 day limit was one of a group of regulations that were alleged to violate procedural due process in a complaint in the District Court of the Southern District of New York, however the court held that such regulations were in fact contemplated by IDEA (Does v. Mills, 2005 WL 900620 (S.D.N.Y.). 

2 Application of a Child with a Disability Appeal No. 05-086 determined that an impartial hearing officer properly declined to grant a request by petitioner's counsel for an adjournment made at the hearing after earlier in the day acceding to petitioner's counsel's demand for a hearing "that day" and driving two hours to preside at the evening hearing. Petitioner's counsel in that matter is the same as petitioner's counsel in the instant case.  A petitioner should not request an impartial hearing and then impede the impartial hearing process (see generally, Application of a Child with a Disability, Appeal No. 04-105; Application of a Child with a Disability, Appeal No. 04-010)).

On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

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.

20 U.S.C. 1401[8]; see also 34 C.F.R. 300.13; 20 U.S.C. 1414[d].

5   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).