The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the East Islip Union Free School District
Berger & Brandow, LLP, attorney for petitioner, Deborah Berger, Esq., of counsel
Guercio & Guercio, attorney for respondent, Randy Glasser, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the determination of respondent's Committee on Special Education (CSE) that petitioner's son should not be classified as a student with a disability for the 2004-05 school year. The appeal must be dismissed.
Petitioner's son was eight years old, and in third grade at the John F. Kennedy Elementary School, at the commencement of the impartial hearing on June 3, 2005 (Tr. pp. 6-7). The child was in a general education class where he received accommodations pursuant to a Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l]) (section 504) plan (Dist. Exs. 13C, 21B). The child's program accommodations according to the most recent finalized 504 plan included preferential seating, extended time to complete assignments, refocusing and redirection, access to a computer for assignments for homework and an additional set of books (Dist. Ex. 21B). The child also received the testing accommodation of extended time (Dist. Ex. 21B). He exhibited difficulty with working memory, graphomotor skills, reading fluency, and automaticity and fluency in the recognition of numbers, letters, and orthographic word forms (Dist. Ex. 49 at pp. 3-7). During the 2004-05 school year the child demonstrated organizational problems, which included difficulty bringing home correct homework materials and completing assignments (Dist. Ex. 53 at pp. 2, 4, 13; Tr. pp. 833-34). Also that year, petitioner reported concerns regarding the excessive amount of time the child spent on daily homework (Dist. Ex. 53 at pp. 16, 37-38). The child's eligibility for special education services and classification as a student with a learning disability (LD) or as a student with an other health impairment (OHI) are in dispute (see 8 NYCRR 200.1[zz], ).
The child attended a private parochial school for pre-kindergarten and kindergarten (Tr. p. 1979). Petitioner reported that her son's kindergarten teacher indicated that the child had difficulty correlating the relationship between letters and sounds of the alphabet (Tr. pp. 1979-80). During the 2002-03 school year, while in first grade, the child attended respondent's "reading recovery," a pull-out remedial reading program for first graders (Tr. pp. 95-96, 131; Dist. Ex. 47 at p. 2). In April 2003, due to difficulty noted with reading and math, petitioner requested that respondent test her son to determine if he exhibited a learning disability (Dist. Ex. 34). The child's spring 2003 performance on administration of the Riverside Multiple Assessment Series for the Primary Grades did not qualify him to receive remedial reading services for the upcoming school year (Tr. pp. 188-90; Dist. Ex. 47). A June 2003 Child Study Team (CST) report stated that the child's reading level was "probably where he needs to be: he's made a lot of progress since the beginning of the year" (Dist. Ex. 54). The CST also reported that the child's writing was "weak" and he was uncooperative when he did not want to complete the work (id.). During summer 2003, the child attended respondent's two-week "Jump Start" program, a program designed for academic preparation or transition to the next grade level (Tr. p. 95; Parent Ex. P). The child's summer teachers commented that he appeared to benefit from a structured environment with defined limits for completing classroom tasks and activities (Parent Ex. P).
In September 2003, at the beginning of the child's second grade school year, petitioner requested that respondent conduct a full psychoeducational battery of the child to rule out a learning disability (Dist. Ex. 1). Petitioner referred her son to respondent's CSE on October 7, 2003 due to her concerns that he had a learning disability (Dist. Ex. 5 at p. 1). The CSE referral indicated that his teacher estimated the child's reading, math and language skills to be below average and that the child received extra help and one-to-one support in the classroom (Dist. Ex. 5). At the beginning of the school year the child was assigned a "homework buddy," another student who helped him check to make sure he had what he needed to take home (Tr. p. 2133). Petitioner reported that she implemented homework, spelling and reading modifications with the child at home (Tr. pp. 2127-28). During the 2003-04 school year, the child participated in a twice weekly Homework Club, an after school program for students who needed assistance with homework and organization (Tr. pp. 502-03).
During October and November 2003, respondent's CSE conducted a psychological evaluation, speech-language evaluation, and an educational evaluation of the child (Dist. Exs. 22, 23, 24). A social history (Dist. Ex. 4), classroom observation (Dist. Ex. 60), and physical examination (Dist. Ex. 29C) were also completed for the 2003-04 school year.
Respondent's psychological report dated November 7, 2003 stated that the child's intellectual functioning was within the average range (Dist. Ex 23 at p. 9). His overall verbal comprehension, perceptual reasoning abilities and processing speed were within the average limits of functioning. The child's overall working memory abilities were within the low average range. Visual-motor integration abilities assessment was inconsistent, ranging from low to average depending upon the assessment tool used.
Administration of the Woodcock-Johnson III Tests of Achievement (WJ-III) to the child in November 2003 by respondent's educational evaluator revealed average performance in the broad written language, broad mathematics, and broad reading achievement clusters (Dist. Ex. 22). The evaluator suggested that the child attend extra help sessions with teachers in the academic areas where there was a need, and that peer tutoring and cooperative learning strategies might facilitate the child's access to the general education curriculum.
Also in November 2003, respondent's speech-language pathologist conducted a speech and language evaluation of the child (Dist. Ex. 24). Administration of the Test of Language Development-Primary: Third Edition (TOLD-P:3) revealed subtest scores in the average range with the exception of the sentence imitation subtest, which was in the ninth percentile. The child's overall linguistic abilities were in the average range, and included a below average organizing quotient and an above average speaking quotient. Informal measures of the child's articulation revealed age appropriate skills, and his vocal quality, rate and speech fluency were judged to be "within normal limits."
Prior to the initial CSE meeting held on December 17, 2003, petitioner met with respondent's school psychologist to review the child's evaluation results (Tr. pp. 2006, 2008; Dist. Ex. 7D). At the initial meeting, the December 2003 CSE determined that the child did not evidence a specific learning disability and that there was not a severe discrepancy between his achievement and intellectual ability (Dist. Ex. 29B at pp. 1-8). The child's teacher reported that he was "progressing well" (Dist. Ex. 7D). The December 2003 CSE recommended that the building team meet to discuss possible support services for the child (id.). On December 17 and 19, 2004, petitioner requested that respondent conduct evaluations of the child in the areas of "dyslexia," visual-motor integration, occupational therapy, executive function and memory (Dist. Ex. 35; Parent Ex. Z). By letter dated January 13, 2004, respondent's director of special education agreed to conduct an occupational therapy evaluation and an independent speech-language evaluation of the child (Dist. Ex. 36 at p. 1). Respondent's school psychologist also agreed to administer the Connors' Teacher Rating Scale-Revised: Long Version (CTRS-R:L) and the Connors' Parent Rating Scale-Revised: Long Version (CPRS-R:L) to further examine "attentional issues" (id.). The director of special education stated that she would arrange for the evaluations when the consent form included with the letter was signed and received from petitioner (id.).
By letter dated January 29, 2004, petitioner notified respondent's director of special education that the additional tests suggested in her January 13, 2004 letter would not address all the areas of her concern and specifically requested, among other things, that a neuropsychological evaluation be conducted as well as administration of the Detroit Tests of Learning Aptitude (DTLA) to the child (Dist. Ex. 37). Respondent denied petitioner's requests for administration of the DTLA, stating that the child had already been appropriately evaluated for "dyslexia," and the DTLA would not yield any significant information beyond what had already been provided to the CSE as a result of prior testing (Dist. Ex. 40). Respondent agreed to conduct a neuropsychological evaluation of the child, if the independent speech-language pathologist recommended an evaluation (id.).
On February 6, 2004 a private speech-language pathologist conducted a speech language evaluation of the child to review his memory for language issues and determine whether further central auditory processing testing should be administered (Dist. Ex. 27 at p. 4). Based on results from the administration of the Test of Auditory Processing Skills-Revised (TAPS-R) and Clinical Evaluation of Language Fundamentals-4 (CELF-4), the speech-language pathologist concluded that the child demonstrated weak auditory memory for number repetition, while memory for auditory/verbal information was within the average range. Testing for phonological awareness skills revealed the child to be "above criterion" for his age and ruled out phonological processing difficulties. Results from the Goldman-Fristoe Test of Auditory Discrimination revealed the child's difficulty discriminating speech in quiet and in the presence of noise. The speech-language pathologist recommended that the child receive preferential seating in class.
At the end of February and the beginning of March 2004, the child underwent an occupational therapy evaluation at the Eastern Suffolk Board of Cooperative Educational Services (Dist. Ex. 26). The occupational therapist noted in her report that the child was cooperative and exhibited adequate attending behaviors, but that his verbalizations during testing increased the time he needed to complete the task (Dist. Ex. 26 at p. 3). She opined that the child's tendency to interrupt testing with verbalizations could have a negative outcome in the classroom and could affect his ability to attend to task (id.). Administration of the Test of Visual Perceptual Skill-Revised, a non-motor test of visual perceptual skills, yielded scores at or above age level on six of seven areas measured (Dist. Ex. 26 at p. 3). The occupational therapist noted that the child's decreased score on the last subtest appeared to be more of a reflection of test fatigue rather than dysfunction (id.). The occupational therapy evaluation report stated that the child's fine motor skills were functional and consistent with his age level educational peers (Dist. Ex. 26 at pp. 3-4). The occupational therapist stated that the child's graphomotor skills evidenced significant delays (Dist. Ex. 26 at p. 4). The child exhibited letter omission and reversal, as well as difficulty with sizing and spacing between letters, words and lines (Dist. Ex. 26 at pp. 4-5). The occupational therapist indicated that the child's significant delay in graphomotor skills impacted his functional school performance. She recommended individual occupational therapy once per week to remediate this difficulty, and to address his need to refocus to the task at hand (Dist. Ex. 26 at p. 6).
Also at the beginning of March 2004, respondent's school psychologist compiled a psychological addendum report which included results from administration of the CTRS-R:L and the CPRS-R:L (Dist. Ex. 28 at pp. 1, 2). Analysis of the child's CTRS-R:L scores suggested that the child was rated as having an "above average correspondence" with the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV) diagnostic criteria for an attention deficit hyperactivity disorder- inattentive type (ADHD-I) (Dist. Ex. 28 at p. 2). The results of both Connors' Rating Scales suggested "significant difficulty with regard to . . . [the child's] ability to maintain his attention" (Dist. Ex. 28 at p. 3). The school psychologist stated that a full assessment for ADHD needed to include multiple sources of information, including but not limited to, more extensive ratings and observations within the context of concern (id.).
A March 3, 2004 CSE meeting was held at petitioner's request (Dist. Ex. 9C). At the meeting, the school psychologist discussed the results of the CTRS-R:L and the CPRS-R:L, and reviewed the child's pediatric neurologist's unsigned evaluation letter dated December 2003 (Tr. p. 2052; Dist. Ex. 9C). Respondent's school psychologist stated that the CSE did not consider the letter from the pediatric neurologist to be a formal diagnosis of ADHD (Tr. pp. 88-89). The March 2004 CSE requested that petitioner obtain additional information from the neurologist to determine if, in fact, the child was diagnosed with ADHD and if a treatment plan had been developed (Tr. p. 687; Dist. Ex. 9C). Comments from the March 2004 CSE meeting indicated that the child's teacher reported that although the child was inattentive at times, he was making progress and his needs were being met in the classroom (Dist. Ex. 9C). The March 2004 CSE found the child to be ineligible for special education and indicated that it would reconvene on April 21, 2004 to discuss the reports of the evaluations that had been received (id.). Petitioner did not supply the CSE with the information from the pediatric neurologist requested at the March 2004 CSE meeting (Tr. pp. 2149-50).
The CSE reconvened on May 12, 2004 to review additional evaluation reports of the child (Dist. Ex. 11C). After review of the occupational therapy and speech-language evaluation reports, the CSE concluded that the child was not eligible for special education services (id.). In light of recommendations contained in the occupational therapy evaluation report, the child was referred to respondent's section 504 Committee (Tr. p. 2076; Dist. Ex. 11C). The child did not meet the criteria necessary to qualify him for remedial reading, but respondent placed the child in its remedial reading program during the third quarter of the school year in response to petitioner's concerns about his reading skills (Tr. pp. 189, 2141; Dist. Exs. 30 at pp. 2, 47).
An initial section 504 Committee meeting was held in June 2004 (Tr. p. 221; Dist. Ex. 13C at p. 1). The section 504 Committee indicated that the child's diagnosis of ADHD-I impacted his ability to learn such that he was eligible for a section 504 accommodation plan (Dist. Ex. 13C at p. 2). The section 504 Committee recommended that for fall 2004 the student receive a trial of individual occupational therapy once weekly (Tr. p. 1490; Dist. Ex. 13C at p. 2). The child was also determined to be eligible to receive the testing accommodation of extended time (Dist. Ex. 13C at p. 1). Recommended program modifications of preferential seating, extended time to complete assignments, and the provision of refocusing and redirection were included in the child's plan (id.). The section 504 Committee agreed to re-evaluate the child on or before January 7, 2005 on which date the services and accommodations were scheduled to end (Dist. Ex. 13C at pp.1, 2).
The child's final report card at the end of the 2003-04 school year indicated that the child achieved a designation of either "3" ("usually meets expectations") or "4" ("consistently meets expectations") on a scale of 1-4 in the majority of areas assessed in Math, Social Studies, Science, and Reading (Dist. Ex. 30). The child received designations of "2" ("working to meet expectations") in the majority of areas assessed in Writing (Dist. Ex. 30 at p. 2). Petitioner declined respondent's invitation to have her son attend the summer Jump Start program because he would miss part of the program due to a previously scheduled vacation (Tr. p. 1991). During summer 2004 petitioner hired a private tutor for the child, a special education teacher who saw him twice weekly for instruction using the Wilson Reading System (Wilson) (Tr. pp. 1579-81, 2091), a multisensory reading program that involves spelling, decoding and reading fluency (Tr. p. 1578).
At the beginning of the 2004-05 third grade school year, petitioner decreased the services of the child's private Wilson tutor from twice to once per week (Tr. p. 2092). The private tutor's schedule conflicted with additional reading assistance offered by respondent, such that the child was not able to attend respondent's after school extra reading help sessions (Tr. p. 2093). Extra math help sessions held one morning per week before the school day started were offered to the child, but petitioner did not consistently send her son to these sessions (Tr. pp. 2196-97). During the school year, the child received additional support services in reading and math during the school day (Tr. pp. 513-14). Twice weekly, the child attended "math lab" and reading instruction outside the regular classroom with four other third grade students from his class (Tr. pp. 513-14, 608). The child's remedial reading teacher stated the child did not qualify for remedial reading based upon reading test scores from the end of his second grade year; however he was placed in remedial reading by petitioner's request (Tr. p. 609). Petitioner modified the child's homework assignments by reducing the number of problems he was required to complete and typing his writing assignments (Tr. pp. 2235-36, 2275-76).
Late September 2004 CST notes regarding petitioner's son indicated that the child had exhibited frustration "the first couple days" of school, but had made "huge" improvements since that time (Dist. Ex. 15). The CST also reported that the child participated in Homework Club and that note taking was challenging (Tr. pp. 108-09; Dist. Ex. 15). The child's teacher met with petitioner in October 2004 and arranged for modifications and accommodations in addition to those specified in the child's section 504 plan, including an extra set of books for home and modified spelling homework (Tr. pp. 2187-92; Dist. Ex. 53 at pp. 4, 5). The child's teacher reported that the child exhibited focusing difficulties, however, with reminders, he was "very capable" (Dist. Ex. 53 at p. 4). In November 2004, the child's occupational therapist informed petitioner that the child received individual occupational therapy once weekly to work on improving his fine motor and visual-motor skills (Parent Ex. MM at p. 1). The occupational therapist stated that the child had made the most improvement in his handwriting, including the sizing and spacing of letters, and in fine motor function (id.).
A CSE review meeting was held on November 30, 2004 (Dist. Ex. 18D). After a review of the private neuropsychological evaluation report and reports from the child's teacher that he had made progress in all academic areas since September, the November 2004 CSE concluded that the child was not eligible for special education.
Respondent's February 10, 2005 section 504 Committee meeting added access to a computer for assignments and homework, as well as an additional set of books to the child's section 504 plan (Dist. Ex. 21B). The occupational therapist's report stated the child's teacher reported no difficulty in the child's classroom function regarding occupational performance, and that he was able to keep up with the class in writing and fine motor activities (Dist. Ex. 32 at p. 3). She also indicated that the child had met all of his occupational therapy goals and that occupational therapy services were not indicated (Dist. Exs. 21B, 32 at p. 3). At the February 10, 2005 section 504 Committee meeting, the Committee decided to discontinue the child's trial occupational therapy services (Tr. pp. 282-83). By letter dated February 11, 2005 to the section 504 Committee Chairperson, petitioner stated that her two biggest concerns regarding her child were the issues of homework, and the child's feelings about school (Parent Ex. T at p. 1).
By letter dated April 6, 2005, petitioner requested due process proceedings (IHO Ex. 1). Petitioner stated that the child needed to be classified under the Individuals with Disabilities Education Act (IDEA)1, to be provided with the procedural safeguards that result from such classification, and to receive special education and related services (IHO Ex. 1 at p. 8).
By letter dated May 11, 2005, petitioner's attorney amended petitioner's request for an impartial hearing (IHO Ex. 2). The amended request for was brought pursuant to section 504, the IDEA, and Article 89 of New York Education Law (IHO Ex. 2 at p. 1). Petitioner requested an independent evaluation conducted by a certified audiologist to determine if the child had intermittent conductive hearing loss that could be affecting his education and to determine if the child had a central auditory processing disorder (id.). Petitioner further requested an independent occupational therapy evaluation because of termination of the child's occupational therapy services. In addition to requesting reimbursement for private tutoring services petitioner provided to her son, petitioner requested an order directing respondent to provide additional educational services based on respondent's failure to provide the child with a free appropriate public education (FAPE)2 (IHO Ex. 2 at p. 2). Petitioner also requested an order directing respondent to provide the child with a FAPE pursuant to the IDEA and section 504 (id.).
The child's final report card for the 2004-05 school year indicated that he received designations of "3" or "4" in the majority of areas of Math and Writing (Dist. Ex. 62). He received either a grade of "3" or "4" in all areas of Social Studies, Science, Reading and Word Study (id.). By the end of the 2004-05 school year, the child's teachers had documented his progress in the reading continuum from an "early transitional" to an "expanding" designation (Dist. Ex. 57, 62 at p. 2). The child's writing skills remained in the "early transitional" range throughout the school year (Dist. Ex. 57 at p. 3, 62 at p. 2).
In September 2005, at the beginning of the child's fourth grade year, respondent notified petitioner that her son was eligible for additional support services in reading, which he received twice weekly for 30 minute sessions (Tr. p. 2762; Parent Ex. OO). Early in the school year, the child's teacher and petitioner decided to modify the child's spelling tests by decreasing the amount of words per week upon which he would be tested (Tr. pp. 2716-17). The child's teacher modified the child's class work by reducing the amount required in all subjects (Tr. pp. 2821, 2853-55). The child had access to a computer in the classroom and, when requested, received copies of notes written by other students (Tr. pp. 2714-15, 2733-34). Petitioner modified the amount of homework that the child completed in all subjects (Tr. pp. 2791-92).
On October 12, 2005, the CST met to review the child's section 504 plan and prepare for his upcoming section 504 Committee meeting (Tr. pp. 2730, 2751). At the CST meeting, the child's teacher reported the child was not keeping up with the rest of the students (Tr. p. 2751). After the meeting, the child's teacher noted that he completed less class work and appeared less motivated (id.). The child's teacher stated that the child was not organized and that the majority of the time he did not stay on task (Tr. pp. 2753, 2755).
At an October 27, 2005 section 504 meeting, the child's teacher stated that the child acted "defiant[ly]" towards her when she asked him for an assignment or to complete a task (Tr. pp. 2757-58, 2856). The section 504 Committee discussed the possibility of conducting a functional behavioral assessment (FBA) of the child (Tr. pp. 2436, 2440-42). The child's teacher reported that the section 504 Committee considered developing a behavior plan to help the child "get on task" and become more motivated (Tr. p. 2759). The section 504 Committee also discussed additional accommodations for the child (Tr. pp. 2442-44).
An impartial hearing was convened on June 3, 2005 and concluded on November 22, 2005, after 14 days of hearings. By decision dated January 4, 2006 the impartial hearing officer found that the evidence did not demonstrate that the child should have been classified as a student with a disability under IDEA (IHO Decision, p. 25). The impartial hearing officer also found that respondent appropriately met the child's educational needs by developing and implementing a section 504 plan. He determined that respondent properly evaluated the child, and obtained consent for the independent occupational therapy and speech-language evaluations at issue. In addition to finding that respondent did not improperly terminate the child's occupational therapy services, the impartial hearing officer found that the evidence did not demonstrate that the child was entitled to additional educational services and/or reimbursement for private tutoring services. However, the impartial hearing officer found that the child's attitude and achievement declined during the first quarter of fourth grade and he therefore directed the CSE to meet "without delay" to reevaluate the child, utilizing appropriate evaluative tools, including a comprehensive neuropsychological evaluation and an occupational therapy evaluation to be paid for by respondent.
On appeal, petitioner asserts that, during the 2004-05 school year, the child should have been classified as a student with a disability pursuant to the IDEA and Article 89 of New York Education Law. She further asserts that the State Review Officer should find that respondent failed to: 1) properly evaluate her son because of its failure to conduct a classroom observation and an FBA; 2) obtain proper consent for the occupational therapy and speech-language evaluations conducted by the private speech-language pathologist; and 3) comply with procedural requirements regarding the determination of a learning disability classification. Petitioner also requests an order: 1) awarding her the right to select the neuropsychologist and occupational therapy evaluators for her child; 2) directing respondent to pay for an independent central auditory processing evaluation which occurred because of deficiencies in the private speech and language evaluation due to lack of parental consent, input, and participation; 3) awarding the child additional services to be determined by the CSE or State Review Officer; and 4) awarding petitioner reimbursement for private special education tutoring services she provided to her child.
Respondent asserts that: 1) respondent's CSE appropriately found the child to be ineligible to be classified as a student with a learning disability, other health impairment, or speech-language impairment; 2) it offered the child a FAPE in accordance with section 504 and had substantial evidence to support its decision to discontinue occupational therapy services provided to the child on a trial basis pursuant to section 504; 3) the CSE performed all necessary evaluations when the child was referred on December 17, 2003, the sole date of referral; 4) respondent performed the independent evaluations requested by petitioner; 5) the impartial hearing officer correctly found that petitioner consented to the occupational therapy and speech-language evaluations; 6) the impartial hearing officer correctly found that respondent was not obligated to reimburse petitioner for the cost of tutoring services; 7) petitioner failed to meet her burden of proving that the child is entitled to additional educational services; 8) the issues of the lack of a behavioral intervention plan (BIP) and additional observation raised in petitioner's closing statement were neither brought before the CSE, nor included in the impartial hearing request and should be disregarded by the State Review Officer; 9) the State Review Officer lacks jurisdiction to review the section 504 claim; 10) even if the State Review Officer had jurisdiction over the section 504 claim, the child is not entitled to section 504 additional services; and 11) since the issue of petitioner's request to select the occupational therapy and speech-language evaluations was not raised or addressed at the impartial hearing, the State Review Officer should disregard petitioner's request. Respondent seeks confirmation of the impartial hearing officer's findings of fact and decision, and dismissal of the petition in its entirety.
A purpose behind the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3 A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). [S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals 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]; 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 student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1). An IEP must include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iii]).
Petitioner and respondent assert that a State Review Officer lacks jurisdiction to review section 504 claims. Both parties are correct. New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in section 504 hearings and a State Review Officer does not review section 504 claims (Application of the Bd. of Educ., Appeal No. 05-033; Application of a Child Suspected of Having a Disability, Appeal No. 03-094; Application of a Child with a Disability, Appeal No. 00-051; Application of a Child with a Disability, Appeal No. 00-010; Application of a Child with a Disability, Appeal No. 99-10). Therefore, to the extent that the impartial hearing officer did not conclude that respondent improperly terminated the child's occupational therapy services arising from his section 504 plan, I have no jurisdiction to review that determination.
Petitioner asserts that respondent failed to properly evaluate her son, because of its failure to conduct an FBA and a classroom observation. Respondent alleges that the issues of the lack of a BIP and additional observation as raised in petitioner's closing statement were neither brought before the CSE, nor included in the impartial hearing request and should be disregarded by the State Review Officer. Respondent further alleges that during the course of a 16-month period, there were four CSE meetings held, but only the first CSE meeting held on December 17, 2003 constituted an initial referral, and that the CSE performed all necessary evaluations when the child was initially referred.
Although petitioner and respondent referred to the FBA and/or BIP in their pleadings on appeal, the record reflects that issues related to the child's behavior were raised below in the context of the child's section 504 plan (Tr. pp. 2432, 2436, 2759). Therefore, as discussed above, it is not within my jurisdiction to review these claims (Application of the Bd. of Educ., Appeal No. 05-033; Application of a Child Suspected of Having a Disability, Appeal No. 03-094; Application of a Child with a Disability, Appeal No. 00-051; Application of a Child with a Disability, Appeal No. 00-010; Application of a Child with a Disability, Appeal No. 99-10).
Respondent conducted a classroom observation of the child as part of the eligibility evaluation during the child's second grade year. Petitioner asserts that respondent should have conducted another observation of the child in his third grade placement prior to making a determination regarding eligibility at the November 2004 CSE meeting. By letter dated September 22, 2004, petitioner sent the private neuropsychological evaluation report to the school psychologist (Dist. Ex. 49 at p. 1). As a result of petitioner submitting this additional evaluative information, the CSE scheduled a "follow-up review" for October 19, 2004; however it was rescheduled at petitioner's request on November 30, 2004 (Dist. Exs. 16, 17, 18D). The record reflects that this CSE meeting was not considered by respondent as an initial review of the child, and that anything brought to the CSE meeting after the initial referral in September 2003 was additional information (Dist. Ex. 5; Tr. p. 261). The school psychologist testified that the CSE did not deem another classroom observation to be needed (Tr. p. 239). Attendees at the November 30, 2004 CSE meeting included petitioner, the child's father, his current third grade teacher as well as respondent's school psychologist and speech-language pathologist, both of whom had evaluated the child the previous school year (Dist. Ex. 18D). The record reflects that petitioner presented specific concerns to the CSE and these concerns were discussed at the meeting (Dist. Ex. 18C; Parent Ex. U; Tr. pp. 743-44). The child's teacher discussed the child's performance in her classroom, noting that he followed classroom routines, made academic progress and she was happy with what she was seeing in the classroom (Tr. p. 733; Parent Ex. U). Although the impartial hearing officer did not address this particular issue, I find, under these circumstances, that it would have been appropriate for an additional classroom observation to have taken place during the third grade year prior to the CSE meeting. The November 2004 CSE considered evaluation procedures, tests, records, and/or reports which included the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), the WJ-III, the TOLD-P:3, a physical examination, a social history, and the second grade classroom observation (Dist. Ex. 18F). However, because the child's classroom teacher (Dist. Ex. 18D) participated in the November 30, 2004 CSE meeting and was available to discuss the child's needs with the CSE members (Parent Ex. U), I find, in these circumstances, that the lack of additional classroom observation data did not render the CSE's eligibility conclusion invalid.
To the extent that respondent may have not fully compiled with the documentation requirement pertaining to the CSE's determination of eligibility for a child suspected of having a specific learning disability (34 C.F.R. § 300.543[a]), I find that this does render the CSE's eligibility conclusion invalid. The information report the CSE generated (Dist. Ex. 18D) did provide relevant information pertaining to the basis for the eligibility determination. The November 30, 2004 CSE meeting information report indicated the names of the CSE members, included amongst its evaluations the evaluations reviewed subsequent to December 17, 2003 (Dist. Ex. 18D), and included three detailed overviews/opinion statements submitted by the parents (Dist. Ex. 18C). The report indicated that: 1) the child's classroom teacher reported that petitioner's son followed the classroom routine and had made progress in all academic areas since September; 2) respondent's psychologist reviewed the private neuropsychological evaluation; and 3) the child still did not evidence a "handicapping condition" (Dist. Ex. 18D).
Petitioner further asserts that respondent failed to obtain proper consent to conduct the occupational therapy (Dist. Ex. 26) and speech-language evaluations (Dist. Ex. 27). Respondent contends that the impartial hearing officer correctly found that petitioner consented to these evaluations. Given the apparent confusion between the parties concerning whether written consent had been provided, I see no need to modify the determination of the impartial hearing officer on this issue.
Petitioner also contends that the child should have been classified as a student with a disability. Petitioner seeks additional services and reimbursement of private special education tutoring costs. In order to be classified as a child with a disability under federal regulation (34 C.F.R. § 300.7[a]) or its state counterpart (8 NYCRR 200.1[zz]), a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student's educational performance to the extent that he or she requires special services and programs (Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-36).
State regulations in place at the time of the relevant events in the instant case defined a learning disability as:
a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability. (8 NYCRR 200.1[zz]; see 34 C.F.R. §§ 300.7[c], 300.541).3
In an unsigned letter dated December 2, 2003 to the child's pediatrician, a private pediatric neurologist recommended that specific learning disabilities in the areas of reading be ruled out, particularly in the light of the child's decoding difficulties (Dist. Ex. 25 at pp. 1, 4-5). He stated that the fact that the child reversed letters at this age was still age appropriate (Dist. Ex. 25 at p. 4). The pediatric neurologist indicated that "testing for dyslexia may be indicated if the child continues to demonstrate letter and number reversals past the age of eight or of there is any evidence of mirror writing or persistent inability to successfully progress with reading skills" (id.).
On June 17 and August 4, 2004, the child underwent a private neuropsychological evaluation (Dist. Ex. 49). Administration of the Wechsler Abbreviated Scale of Intelligence yielded a verbal IQ score of 109, a performance IQ score of 107 and a full scale IQ score of 109, which the neuropsychologist characterized as "solidly within the average range" and slightly but not significantly higher than the child's WISC-IV results (Dist. Exs. 23 at p. 2; 49 at pp. 5, 11). Assessment of the child's sustained attention and persistence measured by the Test of Variables of Attention indicated that the child's scores were significantly below average regarding omission and commission errors and his response speed was variable across the course of the test (Dist. Ex. 49 at p. 5). Measures of the child's speech-language, academic achievement, and graphomotor skills yielded results commensurate with prior evaluations (Dist. Ex. 49 at pp. 5, 7).
The neuropsychologist opined that the child was relatively young to make the diagnosis of a learning disorder, and that the child did not present with academic achievement deficits that were significantly discrepant from his general intellect when compared against age level norms (Dist. Ex. 49 at p. 7). The neuropsychologist stated that it was only when the child was compared to grade norms on the Wechsler Individual Achievement Test- Second Edition, because he was relatively young for his grade, that he manifested difficulty (id.). The neuropsychologist also stated that the "most sensible diagnosis" for the child is Learning Disorder-Not Otherwise Specified, a DSM-IV diagnosis based on the child's deficits in the areas of automaticity and fluency in reading, processing speed, and graphomotor skills (Tr. pp. 1331-32; Dist. Ex. 49 at p. 7). In testimony, the neuropsychologist identified this diagnosis as a medical categorization rather than a classification pursuant to New York State regulations (Tr. p. 1332). Recommendations for the child included continuing reading support with a focus on automaticity/fluency processes and multisensory instruction in sound-symbol relationships (Dist. Ex. 49 at p. 8).
Although the child's educational history revealed his weaknesses in graphomotor, writing, reading, organization, and attending skills, as discussed above, evaluative data and testimony do not support the child's classification as a student with a learning disability for the 2004-05 school year, when the child was in third grade. In an audio recording of the November 2004 CSE meeting, the classroom teacher reported that the child's writing was "limited," but he was able to complete writing assignments as long as he understood them (Parent Ex. U). She discussed the child's writing progress with the occupational therapist who provided the trial occupational therapy (id.). The occupational therapist reported to the teacher that the child was improving and making "quick" progress toward handwriting goals (id.). The classroom teacher indicated that the child's writing and reading skills were at a beginning third grade level, which was "where he should be," and that he "loves to read" (id.). The classroom teacher reported that the child had made progress in all academic areas, based on teacher observation and tests (Tr. p. 349; Parent Ex. U). She agreed with the CSE's recommendation not to classify the child because he was making progress across the curriculum in his current placement (Tr. pp. 350-51).
Even though the child's classroom teacher stated that her biggest concern was the child's writing, she testified that the child's performance in note taking had improved from the beginning of the 2004-05 school year, and he was able to complete writing assignments in class (Tr. p. 331; Parent Ex. U). By the end of the school year, the classroom teacher reported that the child was able to complete note taking "in its entirety" (Tr. p. 348). She testified that the child's handwriting was legible if the spelling was correct, and stated that the child did not need a computer to complete class work assignments (Tr. pp. 356-57, 424-25, 818). The classroom teacher stated that she believed the child could complete his homework in writing rather than by email transmission (Tr. pp. 405-07). She testified that the child was "capable of writing what I write" (Tr. p. 408). The child received modifications to his spelling assignments and tests; however, based on her observation in the classroom, the classroom teacher stated that the child did not need modifications (Tr. pp. 2875-77). The child's word study skills were characterized as improving from "working to meet expectations+" to "usually meets expectations+" over the course of the school year (Dist. Ex. 62).
Petitioner testified that her son liked to read to her and that he "definitely made improvements in reading," including the speed of his reading, which had been identified by the private neuropsychologist as an area of deficit (Tr. p. 2199; Dist. Ex. 49 at pp. 6-7). The record reflects that the child made progress in reading over the course of the 2004-05 school year and his classroom teacher opined that reading was his favorite subject (Tr. p. 343; Dist. Ex. 62 at p. 2). The child's remedial reading teacher testified that by January 2005, the child was "on grade level" and by June 2005 he was "where we would want a third grader to be at this point in the year (Tr. pp. 629-31, 635). The classroom teacher testified on June 14, 2005 that the child was on grade level, complied with what she taught him that year, and was able to master most concepts (Tr. p. 427). Petitioner did not demonstrate that her son had a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which exhibited a severe discrepancy between expected achievement and actual achievement. Based on a review of the record, I agree with the impartial hearing officer, and I find that the child is not eligible for classification as a student with a learning disability (8 NYCRR 200.1[zz]; see 34 C.F.R. §§ 300.7[c], 300.541).
Similarly, the record does not support the child's eligibility to be classified as a student with an other health impairment. State regulations define other health impairment as:
having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance (8 NYCRR 200.1[zz]; see 34 C.F.R. § 300.7 [c]).
In a written overview/opinion statement dated November 30, 2004 and made a part of the CSE meeting information, petitioner informed respondent's November 2004 CSE that the child had a "chronic health problem (ADHD) that results in limited alertness" (Dist. Ex. 18C at p. 1). By letter dated December 2, 2003 to the child's pediatrician, the pediatric neurologist stated that the child's "history as presented by the mother is consistent with attention deficit hyperactivity disorder of the predominantly inattentive subtype" (Dist. Ex. 25 at p. 4; Tr. p. 80). However, the pediatric neurologist's letter did not provide petitioner a formal diagnosis of ADHD-I (Tr. pp. 88-89, 1319, 2684; Dist. Ex. 25), and suggested administration of the Connors' Continuous Performance Test (CCPT) to assess the variables of attention (Dist. Ex. 25 at p. 4-5). A clinical neuropsychologist (Tr. p. 1266) who also evaluated the child (Dist. Ex. 49) testified that the CCPT is used to determine the presence of an attention deficit disorder (ADD) or ADHD (Tr. p. 1320). In addition, the clinical neuropsychologist (Tr. p. 1266) testified that he could not clearly diagnose the child as having ADHD (Tr. p. 1340).
Multiple exhibits in the record document the child's inattentive behaviors and difficulty with organization (Dist. Exs. 28, 33, 53). Respondent's section 504 Committee determined that the child was eligible for a section 504 plan to address these deficits and to provide him with modifications and accommodations in the classroom (Dist. Exs. 13C, 21B). The child's teacher implemented the child's section 504 plan accommodations, including preferential seating, refocusing, and extended time for tests, to address these concerns (Tr. pp. 327, 356). She testified that once the child received a reminder, he was able to stay on task (Tr. p. 355). The teacher stated that the child also benefited from reminders and redirection regarding organization and, to further assist the child, she implemented a peer "buddy" (Tr. pp. 386-87, 395-96). She testified that the child's need for peer assistance and reminders from her about organization diminished as the school year progressed (Tr. pp. 386-87, 396). Although it was not a part of the child's section 504 plan at the beginning of the school year, the teacher offered the child an additional set of books for use at home (Tr. p. 357). She concluded that the child was ineligible for special education services based on what she observed as a teacher and based on the progress the child made in his general education placement (Tr. pp. 350-51).
In the November 2004 CSE meeting, the child's classroom teacher reported that the child exhibited challenges with the classroom routine early in the year (Parent Ex. U). At the time the CSE convened in November 2004, she was very pleased with his progress since the beginning of the year (id.). The classroom teacher reported that the positive reinforcement and prompting she used in the classroom worked well with the child (id.). She stated that her greatest concern regarding the child was his writing, which caused him to exhibit anxiety in the classroom (id.). An unidentified CSE member noted that many recommendations made by the private neuropsychologist were already implemented in the classroom as part of the child's section 504 plan (Tr. p. 119; Parent Ex. U).
The audiotape of the meeting reflected that petitioner and the child's father participated in the meeting by asking questions and discussing their concerns (Parent Ex. U). Throughout the discussion, the November 2004 CSE chairperson stated that the child did not qualify for special education services under the classification of a student with a learning disability or having an other health impairment (Tr. p. 736; Parent Ex. U). She noted that the child had a section 504 plan and stated that the child's classroom teacher reported that his section 504 plan was "working quite well" (Tr. p. 735). At the conclusion of the meeting, the November 2004 CSE made plans to convene a CST meeting in December in preparation for a section 504 meeting in January (Parent Ex. U). The November 2004 CSE Chairperson stated that if the section 504 Committee had concerns regarding the child at that point, it could request that the CSE reconvene (id.).
Although the CSE did not meet again for the remainder of the child's third grade school year, the section 504 Committee met in February 2005 to discuss the child's section 504 plan and added modifications which were discussed at the November 30, 2004 CSE meeting (Dist. Ex. 21B; Parent Ex. U). The child's section 504 plan was implemented throughout the school year (Tr. pp. 356, 358). Based on evaluative data and teacher reports regarding his performance in the classroom, the November 30, 2004 CSE determined that the child was not eligible for special education services under other health impairment classification (Parent Ex. U).
I agree with the impartial hearing officer's determination that the child is not eligible for classification as a student with an other health impairment (8 NYCRR 200.1[zz]; see 34 C.F.R. § 300.7[c]). In addition to the inability of the child's clinical neuropsychologist to clearly diagnose the child with ADD or ADHD (Tr. pp. 1317-20, 1340) and petitioner's failure to provide written documentation of this diagnosis (Dist. 25 at p. 4), the record does not support a finding that the child exhibited limited strength, vitality or alertness with respect to his educational environment.
As the child is not eligible for classification as a student with a disability, petitioner's request for additional services and reimbursement of tutoring costs is denied. The remedies of tuition reimbursement (Application of a Child Suspected of Having a Disability, Appeal No. 05-090) and additional services (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030) are available for a student who is entitled to receive a FAPE pursuant to IDEA.
Petitioner seeks an order directing respondent to pay for an independent central auditory processing evaluation (CAPE) based on deficiencies in the private speech and language evaluation due to lack of parental consent, input, and participation. Respondent contends that it conducted the independent evaluations requested by petitioner. Federal and state regulations provide that a parent has a right to an independent educational evaluation (IEE) at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g]). Nevertheless, the right to an independent evaluation at public expense is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation or that the evaluation does not meet the school district criteria (34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g][iv]). However, I concur with the impartial hearing officer that the evaluative data in the record, particularly the results of the private speech-language evaluation (Dist. Ex. 27) demonstrate that a CAPE is not warranted (IHO Decision, p. 15). The private speech-language pathologist determined that the child's overall processing ability was in the average range, his phonological awareness was above criterion for his age and that although on auditory discrimination tasks he performed better in noise than in quiet, he did not exhibit the "red flags" which would indicate that a central auditory processing evaluation was indicated (Tr. pp. 446-48). She specifically testified about "clues" she would look for which would indicate that a central auditory processing battery was appropriate and that the child did not exhibit these features (Tr. pp. 448-53). The speech-language pathologist stated that the child's inconsistent performance on some tasks "speaks of attentional issues" rather than a central auditory processing problem (Tr. pp. 452-53). She further indicated that she felt the testing that had been performed addressed the issues raised by the child's family, and that at that point in time there was no need for further testing (Tr. p. 457).
Petitioner seeks an order awarding her the right to select the neuropsychologist and occupational therapy evaluators for her child. Respondent asserts that this issue was not raised or addressed at the impartial hearing, and that the State Review Officer should disregard petitioner's request. Upon the conclusion of the impartial hearing, the impartial hearing officer ordered the CSE to re-evaluate the child as soon as possible, using such evaluative tools "as it, with the parent's input, feels is appropriate" (IHO Decision, p. 24). Respondent was directed to provide neuropsychological and occupational therapy evaluations at public expense (IHO Decision, pp. 24-25). I find the impartial hearing officer's decision regarding this issue to be reasonable. However, if the parties are unable to agree to the evaluative tools needed to appropriately assess the child, petitioner is reminded that her remedy is to request an independent evaluation at public expense (see 34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g]).
I have considered petitioner's and respondent's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
April 12, 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.