The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hastings-On-Hudson Union Free School District.
Law Offices of Skyer, Castro & Foley, attorney for petitioner, Jesse Cole Foley, Esq., of counsel
Girvin & Ferlazzo, P.C., attorney for respondent, Karen S. Norlander, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for their son's tuition costs at the Winston Preparatory School for the 2005-06 school year. The appeal must be dismissed.
At the time of petitioners' request for an impartial hearing on August 20, 2005, petitioners' son was 14 years old and about to begin high school (ninth grade) (Dist. Exs. 5, 7). The student has been classified as a student with a learning disability by respondent's Committee on Special Education (CSE) (Dist. Ex. 7; see 8 NYCRR 200.1[zz]).
Petitioners' son attended respondent's schools from kindergarten through eighth grade (Tr. p. 392). When petitioners' son was in third grade, his parents obtained a private psychoeducational evaluation (Tr. pp. 393-94, 285), which noted a history of receptive and expressive language problems and a recommendation of remedial reading intervention (see Parent Ex. D at p.1; Dist. Ex. 8 at p. 2). At the end of his fourth grade year, petitioners noted that their son seemed to be struggling in school, and they provided a copy of the private evaluation to their son's teacher (Tr. pp. 394-95).
In fifth grade, petitioners' son received one period of Language Arts support per week, and received private after-school tutoring in all subjects (see Parent Ex. D at p. 1; Dist. Ex. 8 at p.2). Sometime in the fall of his fifth grade year, the student's teacher referred petitioners' son to the district's child study team for evaluation, and in December 2001, the team referred the student to respondent's CSE (Tr. pp. 27, 396, 421). In January 2002, petitioners had their son evaluated privately by a clinical psychologist (Tr. p. 395), who reported that the student had verbal, performance and Full-Scale IQ scores in the average range (Parent Ex. D at p. 2), but had a language-based learning disability and attention problems that tended to undermine his performance (id. at p. 6). Specifically, the psychologist found that the student exhibited problems with language processing speed, and that weaknesses in his phonological awareness and in the formation of sound-symbol associations interfered with his phonetic decoding and encoding abilities (id. at p. 4, 6). His spelling and writing mechanics were described as poor, and his writing slow and laborious (id. at pp. 5, 3). His reading comprehension score on an untimed test was "strong," but the private psychologist opined that it was unlikely that the student would perform well on a timed, independent silent reading test (id. at p. 6). Overall, the psychologist noted that the student's reading errors were typical of students with dyslexia, his written work was far below grade-level and he had not memorized basic math facts (id. at pp. 4, 5). The psychologist also noted the student had low self-esteem and problems with social skills, as well as poor graphomotor abilities (id. at pp. 5-7, 3). He recommended that the student immediately be placed in a small special education classroom with direct instruction in reading and writing (id. at p. 7). A few months later, in March 2002, the CSE met and classified the student as a student with a learning disability (Tr. p. 27), and began providing him with special education services (Tr. pp. 27, 396; see also Dist. Ex. 8 at p. 1). Petitioners supplemented these services with private tutoring and counseling (Tr. pp. 397-98)
For sixth (2002-03) and seventh (2003-04) grades, respondent's CSE placed petitioners' son in self-contained special education classes for English and Math, and collaborative classes for Social Studies and Science; resource room services and occupational therapy were also provided (Tr. pp. 398-99). Self-contained classes contained only special education students and were taught by a special education teacher; collaborative classes contained special education and regular education students and were co-taught by both a special education teacher and a regular education teacher (Tr. pp. 86-87, 29). Petitioners reported that their son did fairly well in this program, but often seemed overwhelmed and reluctant to go to school, and that as the amount of reading and writing increased, they had to provide a great deal of assistance with his schoolwork at home (Tr. pp. 398-99).
On April 14, 2004, the CSE met to develop the student's individualized education program (IEP) for his eighth grade 2004-05 school year (Dist. Ex. 2). The student's seventh grade resource room teacher (see Tr. p. 408) reported petitioners' son had made some progress in seventh grade, especially in written expression and math, although he still had problems remaining focused and on task and, although diligent in completing all assignments, assignments were usually modified or deadlines extended to reduce anxiety and make the work more manageable for him (Parent Ex. E). She noted his self-confidence, self-esteem and social skills had noticeably improved (Parent Ex. E; see also Dist. Ex. 2 at p. 4). Petitioners disputed parts of her report which stated the student had strengths in reading comprehension, in writing logically sequenced cohesive paragraphs, and in prioritizing assignments (Tr. pp. 408-09). Although goals in counseling had reportedly been met, the student's father indicated that the student continued to exhibit an increasingly high degree of anxiety, and was receiving private counseling (see Dist. Ex. 2 at p. 4). The 2004-05 IEP continued to classify the student as a student with a learning disability and recommended placement of the student in respondent's middle school for eighth grade in 15:1 self-contained special education classes for English and Math, and in 15:1 collaborative classes for Science and Social Studies,1 with one period of resource room services for 40 minutes per day (Dist. Ex. 2). The IEP also included additional services of 6:1 counseling for 40 minutes twice per month, and individual occupational therapy for 40 minutes once per month (id.). Various program modifications and testing accommodations were also provided (id. at pp. 1-2), as well as goals and objectives in study skills, reading, writing, math, social/emotional/behavioral skills and motor skills (id. at pp. 4-6).
During the student's 2004-05 eighth grade year, his teachers and the school psychologist reported he made some progress academically and socially (see Dist. Exs. 10, 14, 15, 16, 17, 18, 19, 20 21, 29), however, his parents reported that he struggled greatly at home with homework, that his anxiety levels about school were escalating, he was having stomach problems, and he started exhibiting phobias (Tr. pp. 399-401). Halfway through the student's eighth grade year, in February 2005, in anticipation of their son's transition into high school the following year, petitioners had their son evaluated by a private psychologist, who conducted a comprehensive psychoeducational evaluation (Tr. p. 401; see Dist. Exs. 8, 9). The psychologist administered a variety of standardized tests designed to measure the student's cognitive abilities, his achievement levels and his ability to regulate his attention and impulsivity (see Dist. Exs. 8, 9). As part of this evaluation, administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV) yielded a Verbal Comprehension Index composite score of 112 (79th percentile); a Perceptual Reasoning Index composite score of 117 (87th percentile); and a Full-Scale IQ composite score of 99 (47th percentile). The student's performance also yielded a Working Memory Index composite score of 80 (9th percentile) and Processing Speed composite score of 73 (4th percentile) (Dist. Ex. 9 at p. 1). The psychologist indicated that the 32 point discrepancy between the student's Verbal Comprehension Index and his Working Memory Index, and the 44 point discrepancy between the his Perceptual Reasoning Index and the Processing Speed Index represented "significant weaknesses" for the student (Dist. Ex. 8 at pp. 3, 12). The psychologist also administered, inter alia, the Woodcock-Johnson Psychoeducational Battery-Third Edition (W-J III), the Test of Written Language–Third Edition (TOWL-3), Gray Oral Reading Tests-Fourth Edition (GORT-4), Gates-MacGinitie Reading Tests, and various tests that measured the student's ability to maintain attention (see Dist. Ex. 9). The psychologist noted that, due to the student's attention difficulties, some scores might be an underestimate of the student's abilities, and opined that the student's average Full-Scale IQ score of 99 was probably not a valid indicator of his potential (Dist. Ex. 8 at p. 3); therefore, in her analysis of test scores, she chose to use the student's Perceptual Reasoning Index score of 117 or his Verbal Comprehension score of 112 as the score to which all other scores were compared to determine areas of learning disability (id. at p. 3; Tr. pp. 294-96).
The evaluator concluded that the student possessed strengths in verbal comprehension and abstract reasoning, but these strengths were hampered by weaknesses in word retrieval and verbal fluency (Dist. Ex. 8 at pp. 4, 7, 12). The psychologist found that these results indicated that the student may become confused when words have multiple meanings, and will be slow to take in needed information from lectures, making note-taking "an impossibility" (id. at p. 5). Memory of verbally presented material was described as a significant weakness (id. at p. 5), and processing speed was seen as a "profound" weakness for petitioners' son (id. at p. 7). The psychologist opined that the student's slow processing speed and auditory memory difficulties would significantly affect test-taking and class discussions, as well as his ability to learn a foreign language (id. at pp. 5, 6). The psychologist interpreted petitioners' son's sight-word recognition, reading comprehension, reading speed and decoding abilities as low average or "significantly below expectations" (id. at pp. 7, 9). Reading, math, and writing speed were all slow, as evidenced by his low average standard scores of 85 (15th percentile) in reading fluency, 82 (12th percentile) in math fluency, and 85 (15th percentile) in writing fluency on the W-J III (Dist. Ex. 8 at pp. 9-10; Dist. Ex. 9 at p. 3). The psychologist noted that the student worked very slowly whether working on academic or nonacademic material (Dist. Ex. 8 at p. 12). The student's math abilities were described as adequate, with the exception of difficulties with word problems (id. at pp. 10, 12). The psychologist found that written expression, specifically word retrieval, sentence structure, organization, punctuation, and spelling were areas of great weakness for the student, interpreting the scores as showing "very significant" delays for his grade level (id. at p. 10). Throughout the evaluation, the student was described by the evaluator as very fidgety and as having to put forth "tremendous effort in order to stay focused" (id. at p. 7). The psychologist also described petitioners' son as socially immature, as suffering from specific phobias (id. at p. 10), and as having a low self-concept (id. at p. 11), which lead him to be easily overwhelmed (id. at p. 11).
In analyzing the test results, the psychologist concluded the student "is dyslexic" (Dist. Ex. 8 at p. 12); and in addition, using the student's Perceptual Reasoning and/or Verbal Comprehension score as the score for comparison purposes, found that petitioners' son met the criteria for the following disorders: "Mixed Receptive/Expressive Language Disorder, Attention Deficit Hyperactivity Disorder (Inattentive Type) [ADHD], Reading Disorder, Disorder of Written Expression, and a Learning Disorder NOS (Not Otherwise Specified) in Short-term Auditory Memory, Processing Speed, Verbal Fluency, and Academic Fluency" (Dist. Ex. 8 at p. 12). The psychologist also found that the student was socially immature, and met the criteria for a "Generalized Anxiety Disorder" and "Specific Phobias" (id. at p. 12).
Due to the student's attention, learning, and language disorders, the psychologist determined that petitioners' son would perform best in a highly structured environment where expectations were clearly defined (Dist. Ex. 8 at p. 11). The psychologist made 28 specific recommendations, including that the student be placed in a highly structured, self-contained special education class with remedial instruction in each subject, and that the student receive speech-language therapy, extended time on tests, copies of class notes, foreign language exempt status, books on tape, an extra set of books, preteaching, study and visual aids, multisensory instruction, story mapping of paragraphs, written expression instruction, use of a word processor, spell check, copies of assignments, shortened assignments, multiple choice format rather than essays for tests, directions simplified and read aloud, tasks broken down into segments, time management training, repetition of instructions, organizational skills training, preferential seating, use of chunking or mnemonic devices, allowance for breaks, use of calculator, counseling, summer services, and active resource room assistance (id. at pp. 12-21).
The following month, on March 23, 2005, the CSE met for a "reevaluation/annual review" of petitioners' son's program (see Dist Ex. 7 at pp. 5-6; Dist. Ex. 6 at p.1). At this meeting the committee reviewed teacher evaluation reports (Dist. Exs. 14-22, 29; Tr. p. 46), the recent psychoeducational evaluation report provided by the parents (Dist. Exs. 8, 9; Tr. p. 43), and other recent reports including an occupational therapy report (Dist. Ex. 11; Tr. p. 45), a social history (Dist. Ex. 12; Tr. p. 45), a physical examination (Dist. Ex. 23; Tr. p. 46), and a classroom observation report (Dist. Ex. 13; Tr. p. 46) (see Dist. Ex. 6). In addition, the psychologist who prepared the psychoeducational report for the parents participated in the meeting by phone (see Dist. Ex. 7 at p. 5).
The student's eighth grade teachers consistently described petitioners' son as a polite, quiet student with a positive, pleasant attitude (see Dist. Exs. 14, 16, 18, 19, 29). Almost all of the student's teachers commented that the student needed to be directed and refocused, with his social studies teacher noting that the student's main difficulty involved the "enormous amount of time it often takes him to complete tests, assignments, and other projects" (Dist. Ex. 16; see Dist. Ex. 15, 17, 18, 19, 20, 22, 22-A; but cf. Dist. Ex. 21). The social studies teacher reported that petitioners' son had made good academic improvement, and that he had benefited greatly from help from his resource room teacher, who was also the special education teacher in the collaborative social studies class (Dist. Ex. 16, 18). Socially, although quiet and having difficulties connecting with peers, some improvement was noted by the teachers in the student's social maturity level during the year (Dist. Exs. 14, 15, 16, 17, 18, 20). He sometimes participated in class activities and discussions (Dist. Exs. 18, 19, 29; see also Dist. Ex. 7 at p. 5). His Language Arts teacher reported that although his reading comprehension had improved, he continued to need significant support in reading and written expression skills (Dist. Ex. 19, 29). She also noted that he was hard-working, but worked at a slower pace (see Dist. Ex. 7 at p. 5), and that while his ability to stay focused had improved somewhat, he still required monitoring and refocusing (Dist. Ex. 29). The student's math teacher noted he had demonstrated improvement in math, and was better able to organize his assignments and understand new concepts quickly (Dist. Ex. 7 at p. 5; Dist. Ex. 21).
Other information considered by the CSE included the recent occupational therapy report, which revealed that petitioners' son had shown improvement in handwriting; letters were small, but were legible (Dist. Ex. 11 at p. 4; Tr. p. 45). The occupational therapist informed the committee that the student's fine motor skills were improving. His writing speed was slow and the student had difficulty with visual-spatial awareness tasks (Dist. Ex. 7 at p. 5). Since writing was a laborious process for the student, it impacted on his ability to take comprehensive notes in class (see Dist. Ex. 7 at p. 5). In a report of a classroom observation of the student conducted in his collaborative eighth grade social studies class, the observer described the student as taking very few notes and as very lethargic and unfocused during class, except when given a specific task in a group (Dist. Ex. 13). The CSE also reviewed the student's most recent report card and attendance report (see Dist. Ex. 7 at p. 6; Dist. Ex. 4). Lastly, the CSE reviewed the private comprehensive psychoeduational evaluation obtained by the parents and adopted its findings and test scores as valid and reliable (Tr. pp. 115, 213, 230-31), but disagreed with some of the private psychologist's conclusions about the scores, finding them 'overstated' leading to over-diagnoses (Tr. pp. 213-17, 230-31). After reviewing all of the information above, the CSE identified the student's greatest area of weakness as the amount of time the student needed to complete tasks (see Dist. Ex. 7 at p. 5). The CSE tentatively recommended placement in respondent's local high school with support in all academic areas, but adjourned to continue drafting the recommended services, modification and accommodations for the student's 2005-06 IEP (see Dist. Ex. 7 at p. 5; Tr. pp. 34-35).
The CSE reconvened on May 26, 2005 to complete the student's ninth grade 2005-06 IEP (Dist. Ex. 7). The private psychologist who conducted the February 2005 psychoeducational evaluation attended the meeting with the parents and discussed the results of her evaluation (see Dist. Ex. 7 at p. 5; Tr. p. 211). The student's year-end report card for the eighth grade revealed that the student achieved A's in his self-contained classes, B's in his collaborative classes, and a C and a D in his regular education elective classes; his final grade point average (GPA) was 3.18 (Dist. Ex. 4). Petitioners told the CSE they were concerned about their son's lethargy in class (Tr. p. 422), but his teachers reported that they had seen an increase in the student's energy level since the March CSE meeting (Dist. Ex. 7 at pp. 5-6; Tr. pp. 59-60, 104, 137-38, 166). Petitioners reported that the student required a tremendous amount of help at home, especially in his collaborative courses, and needed a lot of in-school modifications and accommodations in order to sustain his grades (Tr. pp. 405, 427-28). According to his year-end Individualized Education Plan (IEP) progress report, he was still progressing in most of his study skills and reading and writing objectives, and had achieved several of his occupational therapy and social skills objectives (Dist. Ex. 3). In a counseling summary report from April 2005 reviewed by the CSE (Tr. p. 44), the school psychologist who was treating the student reported that petitioners' son's academic skills had continued to improve (Dist. Ex. 10). The psychologist found that the student's broad reading and math development appeared in the average range, while his spelling and fluency continued to lag behind; the student also continued to struggle with his output, remaining very slow in his academic production (id.). He noted that the student relied heavily on resource room and collaborative instructors for support (id.). Socially, the psychologist reported that although still immature, the student had made great gains in eighth grade, developing greater self-confidence in his interactions with peers and adults (id.). The psychologist recommended that it was important for petitioners' son to be placed in collaborative classes in high school with non-disabled peers so as to aid in his social development, skills and maturity, but that he receive extensive support from the special education teacher and resource room teacher for all academic subjects (id.). He recommended one period of resource room for academic support, organization help, and re-teaching, but also suggested a second resource room period to focus on "his remedial instruction, particularly within the language-based areas (reading, writing)" (id. at p. 2). Lastly, the psychologist noted that the student would require "extensive program modifications to accommodate his learning and attention difficulties, as well as his slow output" (id.). Extensive testing accommodations were also recommended by the school psychologist.
The CSE reviewed all evaluative information before it, and in the resultant 2005-06 IEP noted that the student had delays in reading, decoding, math calculation, written expression, processing speed, and attentional skills which interfered with his ability to progress in the general curriculum (Dist. Ex. 7 at p. 2). Academically, the student was described as performing in the low average range in reading comprehension skills, as having trouble decoding, and his sight-word recognition was below grade level (id. at p. 2). He was also described as performing in the below average range in written expression; the act of writing was described as laborious, and weaknesses were noted in spelling and processing speed (id. at p. 3). Math was described as a relative strength, but he still required extra time for processing information (id. at p. 3). It was noted on the IEP that the student had difficulty with attending and staying focused which impeded his learning, and that he required refocusing, redirection and reteaching (id. at p. 3). The IEP also noted that the student was easily overwhelmed by schoolwork (id. at p. 4). Extended time was required for written assignments, with access to a word processor, and length of assignments decreased (id. at p. 4).
The 2005-06 IEP developed by the CSE placed petitioners' son in ninth grade in respondent's local high school in 15:1 collaborative classes for all academic subjects (Dist. Ex. 7). Although described as 15:1 classes on the IEP (Dist. Ex. 7 at p. 1), the collaborative classes in high school consisted of 20-25 students, out of which no more than 7 were classified for special education instruction (Tr. pp. 36, 238-40); as in middle school, the classes were co-taught by a special education teacher and a regular education teacher (id.; see Dist. Ex. 7 at p. 4). To provide continuity, one of the student's special education teachers from one of his collaborative classes would be assigned to be his resource room teacher (Tr. pp. 88, 246). The CSE also provided the student with the additional support of ten 40-minute 5:1 resource room periods per week (Dist. Ex. 7). The CSE chairperson explained that this would be broken into two separate resource room periods, one to assist the student in content of his core academic subjects (preteaching, study skills, etc.), and one to focus specifically on reading and writing (decoding, remediation, etc.) (Tr. pp. 36-37, 71-72, 88, 95; see also Tr. p. 126). In addition, the CSE recommended related services consisting of 40 minutes of 5:1 counseling twice per month, and 40 minutes of individual occupational therapy once per week (Dist. Ex. 7 at p. 1). The following program modifications were included on the IEP: modified curriculum, additional time to complete tasks, copy of class notes, use of word processor, and access to books on tape (id. at p. 1). Testing accommodations included extended time (2.0), flexible setting, spelling requirements waived, use of a calculator, directions and questions read and explained, and a scribe (id. at p.2). The student was determined to be exempt from the foreign language requirement, but ineligible for extended year services (id. at pp. 2, 1). Goals and objectives were developed to address deficits in study skills, reading, writing, mathematics, social/emotional/behavioral, and motor skills (id. at pp. 7-8).
Petitioners stated at the meeting that they had concerns about their son's anxiety about school, about his inability to remain focused, self-esteem issues, and his difficulties in reading comprehension and keeping up with regular school work (see Dist. Ex. 7 at p. 6). Both petitioners and the private psychologist expressed concerns that the student would need more specialized instruction than could be provided in a collaborative classroom (id.; Tr. pp. 307, 311, 333). The private psychologist noted that a speech-language evaluation of the student should be conducted, and the CSE agreed to schedule one in the fall (Dist. Ex. 7 at p. 6). The special education teacher, the regular education teacher, the CSE chair and the school psychologist all agreed that the program and placement contained in the 2005-06 IEP was appropriate to meet the student's needs (id.); petitioners and the private psychologist stated they disagreed with the program (Tr. pp. 36, 101, 123). Petitioners were advised of their due process rights (see Dist. Ex. 7 at p. 6).
On June 14, 2005, petitioners enrolled their son at Winston Preparatory School (Winston) for the 2005-06 school year (Parent Ex. A). Winston is a private school for students in grades 6 – 12 with learning disabilities that are predominantly language-based (Tr. pp. 340, 382); it is not currently on the list of schools approved by the Commissioner of Education as a school with which districts may contract for special education services (see 8 NYCRR 200.7). By letter dated August 22, 2005, petitioners informed respondent through their attorney that, because they believed that the district's recommended program for their son for the 2005-06 school year was inappropriate, they had enrolled their son at Winston, and requested an impartial hearing seeking relief in the form of tuition reimbursement (Dist. Ex. 5). Specifically, the complaint/request for an impartial hearing alleged that the recommended program was inappropriate because petitioners' son required a "full time special education program tailored to meet his needs" in order to make academic progress, and because the goals and objectives in the recommended program were vague, notmeasurable, insufficient to meet the student's areas of greatest need, and were merely repeated from the last two years' IEPs (Dist. Ex. 5 at p. 2). The hearing commenced on October 20, 2005, and concluded on December 2, 2005. In a decision dated January 13, 2006, after reviewing the facts and the positions of the parties, the impartial hearing officer made a very brief, conclusory finding that respondent had offered a FAPE to the student with sufficient supports in the least restrictive environment. He also summarily concluded in a few sentences that the program at Winston was not appropriate, without clearly giving reasons, other than that the testimony revealed that teachers at Winston create their own curriculum instead of relying on the New York State curriculum. The impartial hearing officer denied petitioners' request for tuition reimbursement, and ordered that the 2005-06 IEP be amended to provide for counseling services once per week instead of twice per month.
Petitioners appeal the impartial hearing officer's decision, contending that their son required a more intensive program that included smaller self-contained special education classes in all subjects in order for him to receive educational benefit. They also claim that the 2005-06 IEP is deficient in that it fails to identify their son's present levels of performance, and fails to take into account the results of the most recent private psychoeducational evaluation. Petitioners also allege that the resource room services would not be sufficient to address all of their son's needs. Lastly, they contend that the IEP's modifications and accommodations do not allow their son to learn how to develop his own skills in reading and writing, and that his grades are inflated and not a true reflection of his abilities.2 Petitioners request that the impartial hearing officer's decision be annulled, that the district's recommended program be found inappropriate, and that the district be ordered to reimburse petitioners for their son's educational costs at Winston for the 2005-06 school year (see Tr. pp. 417-19; Parent Ex. B).
One of the main purposes of 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][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ). 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). 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 (Burlington, 471 U.S. at 370-71). "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" (id.). 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).
The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies 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 (Rowley, 458 U.S. 176, 206, 207 ). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
In the instant case, petitioners do not raise any procedural issues, but instead argue that the substantive program developed by the CSE was not reasonably calculated to confer educational benefit to their son. Both the Supreme Court and the Second Circuit have noted that IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity for greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 06-005; 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, Section 1, Question 1).
Petitioners argue that the IEP is deficient in that it fails to identify their son's present levels of performance, and fails to take into account the results of the most recent private psychoeducational evaluation. Both of these assertions are without merit. In developing the IEP, the CSE relied on a variety of assessment techniques to determine the student's present levels of performance, including a recent occupational therapy report (Dist. Ex. 11; Tr. p. 45), a classroom observation report (Dist. Ex. 13; Tr. p. 46), the counseling summary by the school psychologist who was counseling the student (Dist. Ex. 10; Tr. p. 44), numerous teacher narratives describing the student's current classroom performance (Dist. Exs. 14-22, 29; Tr. p. 46), parental comments and observations (see Dist. Ex. 7 at pp. 5-6), current grades (see Dist. Ex. 7 at p. 6; Dist. Ex. 4), and the private comprehensive psychoeducational evaluation provided by the parents (Dist. Exs. 8, 9; Tr. pp. 115, 213-17, 230-31). Narrative descriptions in the IEP of the student's academic, social, physical, and management levels/abilities and needs (Dist. Ex. 7 at pp. 2-4) are consistent with the counseling summary written by respondent's school psychologist (Dist. Ex. 10), and with progress reported at various times during the school year by the student's eighth grade teachers (Dist. Exs. 16, 18, 19, 21). In addition, the descriptions of his present levels of performance are also consistent with the information contained in the independent psychoeducational evaluation. The IEP contains the student's subtest scores from all of the standardized tests administered to the student by the independent psychologist (Dist. Ex. 7 at p. 3). The IEP describes the student's abilities and needs as follows: low average range in reading comprehension skills; trouble decoding and below grade level sight word recognition; reads at a slow pace; overall below average in reading skills; good understanding of concepts in math but slow processing speed; below average in the area of written expression; the physical act of writing is laborious; spelling is an area of weakness; writing is simplistic and, given his slow processing speed it is usually brief; difficulty with attending and staying focused impedes his learning; and he requires refocusing and redirection when off task (Dist. Ex. 7 at pp. 2-3). All of these statements are consistent or identical with statements found in the independent psychoeducational evaluation obtained by the parents (see Dist. Ex. 8). The private psychologist and the CSE agreed that the student's main areas of weakness were in processing speed, short-term auditory memory, and staying on task, all of which are reflected in the IEP (Dist. Ex. 8 at pp. 3, 6-8; Tr. pp. 287; compare Tr. pp.121, 125, 212, 235; Dist. Ex. 7 at pp. 2, 3, 5, 6).
In addition, many of the recommendations described by the private psychologist in her psychoeducational report were comparable to those respondent recommended in the IEP. The private evaluator recommended remedial assistance and special accommodations included for each subject Dist. Ex. 8 at p. 13). In respondent's program, the recommended ten periods per week of resource room, would have been used for skill remediation in reading and writing, and assistance in content areas (Tr. pp. 36-7, 70-72, 87-8; see Dist. Ex. 7). Additional recommendations made by the private evaluator including extended time to complete tasks, extended time for tests, copies of notes, foreign language exemption, books on tape, availability of word processor in school, refocusing and redirection, reduction in the length of written assignment, directions simplified, read aloud and repeated, organizational skills training and resource room assistance, (Tr. pp. 218-19) had all been recommended by respondent in the past, and continued to be recommended for the student (Tr. pp. 218-19; Dist. Ex. 2 at pp. 1-4; Dist. Ex. 7 at pp. 1-4; compare Dist. Ex. 8 at pp. 12-21). The CSE also recommended that the student continue his participation in counseling two times per month, consistent with the private evaluator's recommendation that therapy for anxiety be continued (Dist. Ex. 7 at p. 1; compare Dist. Ex. 8 at p. 20). Moreover, although the CSE had before it the results from the independent comprehensive psychoeducational evaluation which included tests and subtests that provided levels of the student's abilities on several language-based skills such as decoding, word retrieval and phonemics, and also had descriptive reports from the student's teachers and the school psychologist on the student's language and reading needs, the CSE did agree to conduct a speech-language evaluation upon the suggestion of the private psychologist (see Dist. Ex. 7 at p. 6).
An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]).
Petitioners contend that their son required placement in fully self-contained special education classes for all subjects in order to receive educational benefit. In eighth grade, he had been placed in self-contained classes for English and Math and in collaborative classes for Science and Social Studies, with one period per day of resource room services (Dist. Ex. 2). The ninth grade IEP eliminated his two self-contained classes, and placed him in all collaborative integrated classes, and added an additional period of resource room services (Dist. Ex. 7). Petitioners point to the fact that their son was achieving A's in the self-contained classes, and B's in the collaborative classes (Tr. pp. 404-05), and also claim that their son was merely being 'socially promoted' from grade to grade (Tr. pp. 427-28). Respondent contends that the collaborative classes are the least restrictive environment for petitioners' son, and that his record shows he can benefit educationally in such a setting.
In determining the appropriate class placement, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][A]; see 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids or services (Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; see Application of a Child with a Disability, Appeal No. 05-010; Application of a Child with a Disability, Appeal No. 03-027: Application of a Child with a Disability, Appeal No. 03-009; Application of the Bd. of Educ., Appeal No. 02-081; Application of a Child with a Disability, Appeal No. 93-4). The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g., language and role modeling with no disabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]). In determining whether a special education class is appropriate, objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130). This is true even when the student has been educated in special education classes (Walczak, 142 F.3d at 130).
In the instant case, the record reveals that petitioners' son had a demonstrated history of receiving educational benefits from the district's collaborative class model. Teacher reports of student progress (Dist. Exs. 16, 18, 19, 21) and the student's eighth grade report card indicate that petitioners' son was able to make meaningful progress in an inclusion setting when provided with sufficient support (Dist. Ex. 4; Tr. p. 32). His eighth grade report card shows that he achieved a final grade of B+ in both his collaborative classes, Social Studies and Science (Dist. Ex. 4). The student's special education teacher reported that the student did very well in his collaborative classes, when he had the use of his program modifications and accommodations (Tr. p. 138). The teacher also stated that the student had done very well in math in eighth grade (Tr. p. 138), and that he was originally placed in the self-contained math class only because of his low energy level and need for additional time, the former of which had improved (Tr. p. 163). In addition, the student performed at level three on statewide tests measuring eighth grade performance in Mathematics (Dist. Ex. 26; Tr. p. 140), Social Studies (Dist. Ex. 28; Tr. p. 142) and Science (Dist. Ex. 27; Tr. p. 141), indicating that he met statewide standards for these subjects (Dist. Ex. 28). His score within level two for the English/Language Arts (ELA) statewide test was within five points of the score required to achieve the eighth grade performance standard of level three in ELA (see Dist. Ex. 30; Tr. pp. 142-143, 140).
At the impartial hearing, the private psychologist was unable to explain how the student could achieve these scores without having received some educational benefit from the collaborative classes (see Tr. pp. 334-336). She also later conceded that the student must have been gaining some educational benefit in the collaborative classes, since most of his scores on standardized testing had remained stable (Tr. pp. 332-33). Moreover, the state assessment test scores contradict petitioners' claim that their son was being "socially promoted" from grade to grade by his teachers without reference to the student's true abilities (Pet. ¶¶ 79-82; see Tr. pp. 404-05, 412, 427-28).
Due to his success in the collaborative classes, for ninth grade the CSE was recommending a change; that petitioners' son be placed in collaborative classes for all academic subjects, including English and Math (Dist. Ex. 7). To accommodate and provide sufficient support for the elimination of the two self-contained classes, the CSE doubled the amount of resource room time for the student, providing two resource room periods instead of one (id.; Tr. pp. 71-72). In eighth grade, the student had done most of his remediation and decoding work in the self-contained English class (Tr. p. 156), while his resource room period was often devoted to organizational skills and content area help (Tr. pp. 88, 95, 139). According to the testimony of the high school special education teacher and the CSE chairperson, in the student's new high school program, one resource room period would provide remediation in the language-based areas of reading and writing, including working on the student's decoding and written expression needs (Tr. pp. 70-71, 245, 247-48, 254, 255); the other period would concentrate on assisting the student in his content area courses, including organization, study skills, completing assignments, and preteaching and reteaching materials (Tr. pp. 245, 251-52, 253). As in eighth grade, to provide consistency, the student's resource room teacher would be one of the special education teachers in one of his content area courses (Tr. pp. 246-48, 88). The special education teacher in the collaborative class, as in prior years, would be responsible for prompting and refocusing the student and for making sure all of his program modifications and accommodations were followed (Tr. pp. 252-53), and that all of his IEP goals and objectives would be addressed in the collaborative classroom (Tr. pp. 239, 246, 251-255). The high school special education teacher stated that the collaborative classes contained no more than seven special education students (Tr. pp. 239-40), and primary responsibility of the special education teacher in the high school collaborative class was to take care of the needs of the special education students (Tr. p. 239).
The IEP indicates (Dist. Ex. 7 at p. 2) the CSE considered the independent psychologist's recommendation for an all self-contained classes program for the student (Dist. Ex. 8 at p. 13). The CSE rejected a special class option because it would have been overly restrictive for the student, and because his needs could have been met in the less restrictive environment (Dist. Ex. 7 at p. 2) of the collaborative classes, which are taught by both a regular education and a special education teacher (Dist. Ex. 7 at p. 4). The school psychologist, the student's special education teacher from eighth grade, and the CSE chairperson all stated that petitioners' son's exposure to regular education students and the regular education curriculum was important in order for petitioners' son to benefit socially, academically and emotionally (Tr. pp. 144, 229, 59-60; see Dist. Ex. 10). In addition, the school psychologist and the student's special education teacher opined (Tr. pp. 217, 129), and the private psychologist's testimony revealed that at times the private psychologist appeared to misunderstand the recommended placement, believing that the student would be placed in all regular education mainstream classes in high school instead of in collaborative classes (see Tr. pp. 304, 307, 311). She at times appeared not to recognize that in the recommended program the student would still be receiving special education support throughout the day in all of his classrooms, as well as in two resource room classes (id.; Tr. p. 217). She also opined that the student needed remedial reading instruction in every class or he would fail (Tr. p. 305), which is contradicted by the student's above average performance in both his Social Studies and Science collaborative classes in eighth grade, as well as his achievement of grade level performance on state assessments in those two subjects. She concluded, based on his low decoding scores, that the student would not be able to understand grade level textbooks (Tr. p. 303), yet the student's eighth grade resource room teacher testified that while the student's decoding skills were very delayed, he had witnessed that the student was able to read grade level text books with greater comprehension and at a higher grade level than he was decoding (Tr. p. 154-55). Additionally, many of the reading subtests selected by the psychologist were timed tests (e.g., Gates-MacGinitie Test; Gray Oral Reading Test; see Dist. Ex. 8 at p. 9; Dist. Ex. 9 at p. 4), where the student's scores were negatively impacted by his very slow processing speed, and not necessarily an accurate reflection of his comprehension of the material (Tr. pp. 298-99, 322-26; see also Parent Ex. D. at p. 6 [2002 psychoeducational evaluation in which another psychologist indicated that the student's comprehension was strong on untimed tests, but predicted he would not score as well on timed reading tests]). Notably, the IEP contained accommodations to compensate for the student's slow processing speed, such as double time for tests, copy of class notes, books on tape, and additional time to complete assignments (see Dist. Ex. 7 at p. 1). Likewise, while the student's attentional deficits impacted his learning, his special education teacher reported that with refocusing, the student was successful in understanding the concepts of the subject matter being taught in a collaborative classroom with the accommodations (Tr. p. 139). The student's high grades in his content area classes support these contentions (Dist. Ex. 4).
The private psychologist based her recommendation that the student needed to be placed in all special education classes solely on her interpretation of the results of the student's test scores (Dist. Ex. 8, 9); however, she admitted that she based her conclusions about the severity of the student's disabilities on her use of his high Perceptual Reasoning index score as a comparison for all other scores (Dist. Ex. 8 at p. 3; Tr. pp. 294-96). She admitted that she had never met the student before, and had never seen his schoolwork or observed his performance in class, and her only contact with him was for the three days of testing (Tr. pp. 314, 316, 326). While the school psychologist, the student's special education teacher, and the CSE agreed that the private psychologist's test scores were reliable and agreed with the areas of strengths and weakness identified in the testing (Tr. pp. 115, 125, 213, 230-31), the school psychologist disagreed about some of the conclusions about the scores, finding that the use of the Perceptual Reasoning score of 117 on the WISC-IV, the student's highest composite score, as the score against which all other scores were compared, led to "overstated" discrepancies and over-diagnosis (Tr. pp. 213-217, 230-31). For example, the school psychologist noted that the student's score of 92 on the retrieval fluency subtest of the W-J III Tests of Cognitive Ability was in the low average range, but he disagreed with the conclusion that it was "very significant" and the evaluator's conclusion that, based on that alone, the student should be classified as learning disabled, NOS (Tr. p. 214; see also Tr. p. 215). Although the student did demonstrate weakness in processing speed and rapid picture naming in formal testing (Dist. Ex. 9 at p. 2), his performance on the W-J III Tests of Cognitive Ability yielded standard scores ranging from 114 (83rd percentile) to 89 (24th percentile) on various subtests (Dist. Ex. 9 at p. 2), and his standard scores on subtests of the W-J III Tests of Achievement ranged between 103 (58th percentile) to 82 (12th percentile) (Dist. Ex. 9 at p. 3). These scores suggest that the student has areas of strength as well as areas of deficit, more consistent with the CSE's recommendation that the student could be appropriately placed in a general education setting in which support services would capitalize upon his strengths and provide support and remediation for his deficits. All of the educational professionals who were most familiar with the student's performance, his school counselor, his special education teacher, his resource room teacher, his collaborative regular education teachers, all agreed that the student would be appropriately placed in all collaborative classes with supports for the 2005-06 school year (Dist. Ex. 7; Tr. pp. 144, 173, 235).
For the foregoing reasons, I concur with the school psychologist (Tr. p. 219) and the other members of the CSE that the recommended collaborative classes with extra supports, modifications, and accommodations would have provided petitioners' son with the services he needed in a setting that was less restrictive than the self-contained classes recommended by the private psychologist, and would also have provided a higher level of instruction to meet the student's cognitive abilities. Objective criteria, including the student's prior performance in collaborative classes, his grades, teacher comments, state test results, and testimony describing the high school program all indicate that the 2005-06 IEP was likely to produce progress, not regression (Cerra, 427 F.3d at 195; Walczak, 142 F.3d at 130). As such, I find that the program and placement contained in the student's 2005-06 IEP was reasonably calculated to enable the student to receive meaningful educational benefit (Rowley, 458 U.S. at 200-203; see Walczak, 142 F.3d at 130; see also M.S., 231 F.3d at 105).4
Having determined that the challenged IEP adequately offered a FAPE to the petitioners' son for the 2005-06 school year, I need not reach the issue of whether or not Winston was an appropriate placement; petitioners are not entitled to tuition expenses, and the necessary inquiry is at an end (Voluntown, 226 F.3d at 66; Walczak., 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).5
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
April 6, 2006
PAUL F. KELLY
5 Petitioners ask that I accept an additional exhibit attached to their Petition (Parent Ex. F); respondent objects (see Ans. ¶ 97). 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. 06-005; Application of a Child with a Disability, Appeal No. 05-080). The proffered exhibit is a six-page Winter Progress Report on the student's progress at Winston since the close of the hearing. Due to the fact that I have found the district's program to be appropriate, the exhibit is not necessary to the analysis, and I, therefore, decline to accept it (see Application of a Child with a Disability, Appeal No. 05-089; Application of a Child with a Disability, Appeal No. 05-020).