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

No. 06-028

 

 

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 Hewlett-Woodmere Union Free School District

 

Appearances:
Erlich, Frazer & Feldman, attorney for respondent, Jacob S. Feldman, Esq., of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Lindamood-Bell Center and for the cost of a private reading teacher for the 2004-05 school year.  The appeal must be dismissed.

At the commencement of the impartial hearing on March 30, 2005, petitioners' son was ten years old and attending fifth grade at Yeshiva of South Shore (YSS).1  He is described in the record as exhibiting difficulty with distractibility and class work initiation/completion (Dist. Exs. 1 at p. 1, 8 at p. 1).  The child functions in the average range of cognitive ability and exhibits deficits in reading decoding, comprehension, spelling, punctuation and capitalization skills (Dist. Ex. 7).  His eligibility for special education programs and services and his classification as a child with an other health impairment (OHI) are not in dispute (see 8 NYCRR 200.1[zz][10]).

            The child has been attending YSS since first grade (Tr. p. 784).  While in first grade during the 2000-01 school year, respondent provided the child with resource room services, occupational therapy (OT) and speech-language therapy (Tr. pp. 792-93).  The child received private special education teacher services to address deficits in letter recognition, handwriting, sound symbol recognition and reading (Tr. pp. 560-61, 564-66).  During first grade, a psychosocial evaluation was conducted of the child due to his teacher's concerns regarding his reading ability (Tr. pp. 784-85).  According to the child's mother, the examiner who conducted the evaluation diagnosed the child with an inattentive type attention deficit disorder for which she recommended medication (Tr. pp. 785, 787-88).  The child's mother reported that a neurologist had also evaluated her son and had diagnosed him with "dyslexia" (Tr. pp. 788-89).  The child's mother stated she did not believe the child was making progress in the resource room during the 2000-01 school year and she obtained a neuropsychological evaluation of the child (Tr. p. 790).  According to the child's mother, the neuropsychologist who diagnosed the child's attention deficit disorder also diagnosed the child as having a receptive language disorder and an auditory processing disorder, and identified deficits in his fine motor abilities (Tr. pp. 790-91).  The neuropsychologist recommended that the child undergo an OT evaluation (Tr. p. 791).  She also recommended the child receive speech therapy assistance for his dyslexia as well as behavior modification, psychological support, and resource room services (id.).

The child received resource room services, OT and speech-language therapy in second grade during the 2001-02 school year (Tr. pp. 794-95).  From May 2002 through summer of that year, petitioners arranged for private tutoring of their son by the special education teacher who had worked with him during the 2001-02 school year (Tr. pp. 568, 799).

While in third grade during the 2002-03 school year, the child received resource room services five days per week and OT and speech-language therapy twice weekly (Tr. p. 798).  Respondent's Committee on Special Education (CSE) met at least twice during the child's third grade year to discuss his progress, including a CSE annual review meeting held in April 2003 (Tr. pp. 800, 803; Parent Ex. A).  The child's April 2003 individualized education program (IEP) for his fourth grade year recommended a classification as OHI and resource room services, individual reading instruction, group speech-language therapy and individual "keyboarding support" (Parent Ex. A at pp. 1, 10, 12).  The child's IEP also recommended extended school year (ESY) services, testing accommodations, and program modifications (Parent Ex. A at p. 10).  The child was determined eligible for an FM unit, computer or laptop and textbooks on tape (id.).  An evaluation report noted that the child had made progress in OT and his subtest scores of the Developmental Test of Visual Perception were "within the normal range" and the CSE recommended discontinuing direct OT services for the child in fourth grade (Parent Ex. A at p. 12).  For approximately five weeks at the end of the 2002-03 school year, the child received instruction in reading three times per week from a reading teacher at YSS (Tr. p. 805).  During summer 2003, the child received resource room services five days per week and received a service described by the child's mother as an "auditory integration therapy" (Tr. p. 806).

            The record contains three IEPs pertaining to the child's fourth grade special education program (Parent Exs. A, B, C).  During the 2003-04 school year, the child attended YSS and received instruction in Hebrew studies in the morning and academic studies in the afternoon (Tr. pp. 19-20).  Respondent's resource room teacher provided three individual pull-out and two individual push-in sessions to the child at YSS each week (Tr. p. 78).  Although respondent's CSE did not find the child eligible for extended day services, the child received three resource room sessions before the school day at the mother's request so the child would not miss portions of his Hebrew studies (Tr. pp. 133-34).  During the secular portion of the child's school day, two push-in resource room sessions were (Tr. p. 78).  During fourth grade, the child was recommended to receive twice weekly speech-language therapy, twice weekly OT, and reading instruction three times per week (Tr. pp. 806-07; Parent Ex. B at p. 10).  In late November 2003 and continuing through summer 2004, a private special education teacher provided the child with instruction in English and Hebrew studies (Tr. pp. 571-73, 615).

            In January 2004, respondent's psychologist conducted an evaluation of the child (Dist. Ex. 8).  Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded the following composite index standard scores (SS): verbal comprehension 104, perceptual reasoning 102, working memory 99, and processing speed 100 (Dist. Ex. 8 at p. 4).  The psychologist reported the child's full-scale IQ SS of 103 was in the average range of cognitive ability (id.).  Assessment of the child's visual-motor integration skills revealed a delay in his ability to accurately reproduce designs (Dist. Ex. 8 at pp. 6, 8).  Analysis of projective testing indicated that the child exhibited a good imagination, but the psychologist stated in her report that the child's imagination may "carry him away" at times (Dist. Ex. 8 at p. 7).  The psychologist also reported that the child frequently interrupted tasks and required firm guidance in order to regain focus on an activity (Dist. Ex. 8 at p. 9).

            Respondent conducted an educational evaluation of the child in February and March 2004 (Dist. Ex. 7).  Administration of the Woodcock Johnson III Tests of Achievement (WJ-III), yielded a broad reading SS (percentile) of 75 (5), a broad math SS of 97 (43) and a broad written language SS of 86 (18), and a total achievement SS of 85 (15) (Dist. Ex. 7 at p. 2).  The educational evaluation report stated that the child's performance on subtests which measured his math reasoning and written expression skills yielded results in the average range; his subtest scores in basic reading skills, math calculation skills and basic writing skills, including spelling subtest scores, were in the low average range; and reading comprehension and fluency subtest scores were in the low range (Dist. Ex. 7 at pp. 2-4).  The evaluator concluded that the child demonstrated "a great deal of difficulty" decoding words, which had a severe impact on his independent reading comprehension (Dist. Ex. 7 at p. 5).  The evaluator identified the child's math skills as an area of strength (id.).  The child's writing demonstrated a need for improvement in spelling, capitalization and punctuation skills, but the report concluded that he was able to formulate and write grammatically correct sentences (id.).

            In February 2004, the child's classroom teacher at YSS completed a report for respondent regarding the child's academic performance, skill deficit and behavior/social functioning (Dist. Ex. 6).  The report indicated that the child's academic performance was "non-existent" and that he "does nothing" (id.).  The classroom teacher indicated that the child exhibited deficits in all areas, that he "cannot read" and lacked self-motivation (id.).  To address these difficulties, the classroom teacher reported she provided the child with "special" help, rewards and "prodding" (id.).  That same month, respondent's staff developed a behavior intervention plan for the child to address his difficulty initiating and completing assignments in the classroom (Dist. Ex. 3).  The plan indicated that the child's classroom teacher at YSS and respondent's resource room teacher were responsible for implementing the plan (id.).

            In March 2004, the child's resource room teacher reported that the child was working on improving his reading, writing and math skills (Parent Ex. D).  Although his decoding skills had improved, the resource room teacher stated that the child tended to lose the meaning of what he was reading because of decoding difficulties (id.).  The child worked on writing in complete sentences, editing his written work and improving his knowledge of multiplication tables while in resource rooms (id.).  The resource room teacher reported that the child's confidence level was "low" and with "prodding and assistance" he was able to complete his work and achieve some success (id.).  She also stated that the child enjoyed talking about many different topics, but he needed to learn the appropriate time to have discussions (id.).

In June 2004, the child was privately evaluated as a participant in a research project on learning and attention at the Yale University School of Medicine and a report was developed (Yale report) (Parent Ex. F).  The child was evaluated in the areas of individual ability, achievement and language (Dist. Ex. F at p. 1).  Administration of the Wechsler Abbreviated Scale of Intelligence (WASI) yielded the following estimated IQ scores: verbal 110 (high average range), performance 109 (average) and full-scale 111 (high average) (Parent Ex. F at pp. 1-2).  Selected subtests of the Woodcock Johnson Psychoeducational Battery-III were administered to the child (Parent Ex. F at p. 2).  Analysis of subtest results indicated that the child's performance in reading achievement was substantially below average, with weaknesses in sight word identification, decoding and comprehension (Parent Ex. F at p. 3).  The Yale report indicated that the child's below average skills in spelling and understanding of sound-symbol relationships were consistent with a phonological impairment (id.).  The child's performance on math subtests revealed a weakness in numerical computation (id.).  The Yale report stated the child's performance on the Test of Word Reading Efficiency (TOWRE) further emphasized his phonological deficit and reading disability identified by results of the Woodcock Johnson Psychoeducational Battery-III (Parent Ex. F at p. 4).  The child's performance on the Gray Oral Reading Test-Fourth Edition (GORT-4) revealed his substantial difficulty in reading passages aloud as evidenced by errors in word substitution, omission, addition, repetition and mispronunciation (Parent Ex. F at p. 5).

The Yale report concluded that analysis of measures of the child's behavior and attention as reported by the child's parent and teacher "confirm[ed]" the child's previous diagnosis of "attention deficit/hyperactivity disorder, predominantly inattentive type" (Parent Ex. F at p. 7).  Due to his below average performance in the areas of decoding, encoding, context reading and math, the Yale report recommended a reevaluation of the child's special education program and that it be "intensified" to include consistent, sequential, scientifically based instruction (id.).  The Yale report recommended that the child practice using decoding strategies in oral reading activities to develop reading fluency, and that he be provided with paired reading opportunities and specific commercial reading programs (Parent Ex. F at pp. 7-8).  Additional strategies to improve the child's spelling, writing, math and organizational skills were included in the Yale report (Parent Ex. F at pp. 8-10).

Respondent's CSE convened in June, July and August 2004 for annual reviews of the child and to develop summer 2004 and 2004-05 school year IEPs (Parent Ex. E; Dist. Ex. 1 at pp. 1, 13).  Petitioners did not provide a copy of the Yale report to the CSE prior to the August 12, 2004 CSE meeting at which the child's 2004-05 school year IEP was finalized (Tr. pp. 221-22; Dist. Ex. 1).  At the June 2004 CSE meeting, the classroom teacher at YSS reported that the child completed minimal class work and she recommended a small group setting for the child (Parent Ex. E at p. 11).  The CSE discussed the possibility of placing  the child  in an inclusion class for the 2004-05 school year, but the CSE did not make a final placement determination at the June 2004 meeting (id.).  At the July 2004 CSE meeting, the child's present levels of performance, needs and goals were reviewed and amended (Dist. Ex. 1 at p. 13).  A final determination regarding the child's program was not made at the July 2004 CSE meeting because a speech-language pathologist was not present to determine if continued speech-language therapy was necessary (Tr. p. 255; Dist. Ex. 1 at p. 13).  Respondent's executive director for special education and respondent's out-of-district placement manager met with petitioners' advocate in July or early August 2004 to discuss the recommended inclusion classroom description and class profile (Tr. pp. 154, 234, 256-57, 750-51).  The child's mother was invited to the meeting, but did not attend (Tr. p. 256). The child received reading services from respondent during summer 2004 (Tr. p. 813; Parent Ex. E at p. 11).

At the August 12, 2004 CSE meeting, the CSE discussed the child's need for speech-language therapy services and modified/added testing accommodations to the proposed IEP (Dist. Ex. 1 at p. 13).  The resultant IEP included annual goals and short-term objectives addressing the child's needs in math, writing, reading, occupational therapy and speech-language therapy (Dist. Ex. 1 at pp. 5-9).  The IEP recommended that the child receive 150 minutes of daily direct consultant teacher services in a general education/inclusion model setting at Ogden, one of respondent's elementary schools (Dist. Ex. 1 at pp. 10, 13).  A written description of the proposed inclusion classroom was provided to the CSE and respondent's school psychologist discussed the program at the August 2004 CSE meeting (Tr. pp. 164-65).  The child's reading program included three sessions per week of individual reading instruction in a special class at Ogden (Dist. Ex. 1 at p. 10).  The CSE also recommended that the child receive twice weekly OT and speech-language therapy (id.).  Recommended program modifications included a modified curriculum to exclude spelling tests, copies of class notes, an extra set of science and social studies textbooks, preferential seating and refocusing/redirection in all subjects (id.).  The proposed IEP also recommended the child utilize Kurzweil, a computer or laptop, and FM unit (Dist. Ex. 1 at p. 10).  Testing accommodations provided for in the August IEP included questions read, a scribe, access to a word processor, tests read, tests in large print, recorded answers in test booklet, directions read/explained, spelling requirements waived and flexible setting for test administration (Dist. Ex. 1 at p. 11).

During the 2004-05 school year the child attended fifth grade at YSS and his educational program consisted of Hebrew and secular instruction in a non-special education class of 24 students (Tr. pp. 40, 42, 45, 137-38).  The Hebrew instruction portion of the child's day was from 9:00 a.m. until 1:00 p.m. and the secular studies portion of the school day was from 1:00 p.m. until 4:15 p.m. (Tr. pp. 628, 630).  The child received resource room services three days per week in a group of four, and two days per week the resource room teacher went into the child's classes to provide services (Tr. pp. 41-42).  During the 2004-05 school year, the child received resource room services during the Hebrew studies portion of the school day (Tr. p. 99).  At his mother's request, the child was instructed in reading three times per week prior to the school day to avoid pull-out from Hebrew instruction (Tr. pp. 178-79).  The child also received reading instruction, OT and speech-language therapy (Tr. pp. 48, 813).  The resource room teacher reported that she needed to use a behavior modification system with the child during group sessions, and that the plan was shared with his secular YSS teachers (Tr. pp. 46-48).  A private special education teacher provided the child with instruction in Judaic studies during his fifth grade year (Tr. pp. 593, 603).

In early December 2004, staff at the Lindamood-Bell Center in Roslyn, Long Island conducted a "pretest" evaluation of the child at his mother's request (Tr. pp. 438-39; Parent Ex. J).  The clinic director at the Lindamood-Bell Center reviewed the Yale report on the same day that staff conducted the pretest evaluation of the child (Tr. p. 465).  Based on the results of assessments of the child conducted at the Lindamood-Bell Center, staff concluded that the child's reading abilities ranged from a late first grade to beginning third grade level (Tr. pp. 440-41).  Lindamood-Bell staff recommended that the child receive a total of 200-240 hours of individual instruction in the Lindamood Phonemic Sequencing program and Seeing Stars program four to five days per week for four hours per day (Tr. pp. 440-41, 458).  A Lindamood-Bell specific math program was also recommended based on the child's performance on a Wide Range Achievement Test-3 arithmetic subtest (Tr. p. 441).

A January 10, 2005 CSE meeting was held at the mother's request (Tr. p. 271; Dist. Ex. 2 at p. 12).  The child's mother requested that the CSE consider providing Lindamood-Bell reading instruction to the child for four hours daily for 10-12 weeks (Dist. Ex. 2 at p. 12).  After reviewing the child's current levels of performance, goals and objectives, the CSE did not recommend the child receive instruction from Lindamood-Bell (Tr. pp. 52-54; Dist. Ex. 2 at p. 12).  At that meeting the CSE discontinued the child's speech-language therapy services and added one session of individual counseling per week to the child's program to address his task avoidance and work refusal (Tr. pp. 271, 275; Dist. Ex. 2 at p. 12).  The child's mother declined the recommended counseling services (Dist. Ex. 2 at p. 12).

Beginning in February 2005, petitioners unilaterally removed the child from his afternoon studies at YSS on Monday through Thursday to attend Lindamood-Bell's reading program from 1:30 p.m. to 5:30 p.m. (Tr. pp. 181, 458).  At the end of May 2005, the child began to receive math instruction at the Lindamood-Bell Center (Tr. p. 486).  By the end of May 2004, the child had completed 200 hours of instruction at the Lindamood-Bell Center and Lindamood-Bell staff reevaluated him with the same test battery he was administered in December 2004 (Tr. p. 488).  The clinic director of the Lindamood-Bell Center reported that with the exception of the child's performance on spelling and reading rate tests, "all reading measures were testing above the 25th percentile," and that he was independently reading fifth grade level material (Tr. pp. 488-89).  Based on the child's progress in the area of reading, the clinic director recommended that the child no longer receive instruction in the Lindamood Phonemic Sequencing program, but recommended that the child continue for another 100-120 hours of instruction with the Lindamood-Bell Seeing Stars program to improve his spelling and reading rate (Tr. p. 490).

            Petitioners requested an impartial hearing in February 2005 (Pet. at p. 1).  Petitioners requested reimbursement for tuition and transportation costs for Lindamood-Bell and the cost of a reading teacher for the 2004-05 school year (IHO Decision, p. 2).

The impartial hearing was held over the course of eight days, beginning on March 30, 2005 and ending on November 4, 2005.  In a 44-page decision dated February 8, 2006, the impartial hearing officer found that the IEPs developed on August 12, 2004 and January 10, 2005 for the 2004-05 school year were reasonably calculated to provide educational benefit and offered a free appropriate public education (FAPE) (IHO Decision, p. 40).  She also found that the program designed by the CSE was intensive and appropriate because it would have provided a continual, multi-sensory reading instruction throughout the school day, inside and outside the classroom, in the LRE for the child (IHO Decision, pp. 40-41).  She determined that the CSE recommended program was consistent with the proposals made in the Yale report obtained by petitioners, which recommended that the child's special educational program be reevaluated and intensified and that he receive consistent, sequential, scientifically-based instruction (IHO Decision, p. 41).  She determined that the recommended inclusion class would have provided this instruction (id.).  The impartial hearing officer further determined that the record established that Lindamood-Bell was inappropriate (IHO Decision, p. 42).  She determined that even if she had found the child's 2004-05 IEP to be inappropriate, she would have been compelled to deny tuition reimbursement for petitioners' unilateral placement of their son at Lindamood-Bell because it was not appropriate to meet the child's academic, social-emotional and behavioral needs related to his disability (IHO Decision, p. 43).

On appeal, petitioners request that the impartial hearing officer's decision be reversed and reimbursement be awarded for the 2004-05 school year for Lindamood-Bell and the reading teacher hired by petitioners.  Petitioners assert the impartial hearing officer erred in finding that the IEPs developed by respondent's CSE for the 2004-05 school year were reasonably calculated to provide educational benefit and offered the child a FAPE and that the program obtained for the child by petitioners was inappropriate.  Petitioners contend that the program recommended by the CSE was inappropriate, that the child made progress in the private program for which they are seeking tuition reimbursement and that respondent's recommendations were inconsistent with the recommendations received through the Yale report.  Respondent contends that the decision of the impartial hearing officer was proper in all respects; that the impartial hearing officer correctly found that the August 2004 and January 2005 IEPs were appropriate; that the recommended inclusion program was appropriate; and that petitioners unilateral placement of their son at Lindamood-Bell was inappropriate.

            A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[8][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 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

            A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).  The student's recommended program must also be provided in the LRE (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

            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][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, 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][2]; see 8 NYCRR 200.4[d][2][iii]).       

            The impartial hearing officer found that the August 2004 IEP and January 2005 IEP were reasonably calculated to enable the child to receive educational benefits during the 2004-05 school year.  I agree.  I will initially address the August 2004 IEP.  A series of CSE meetings were held during summer 2004 which resulted in the child's 2004-05 IEP dated August 12, 2004 (Dist. Ex. 1 at p. 13).  Petitioners do not allege respondent did not conduct appropriate evaluations of the child nor do they dispute the present levels of performance contained in the  2004-05 IEPs .  The record reflects that the child's mother and her educational consultant participated in the June, July and August 2004 CSE meetings in which the child's present levels of performance, annual goals and short term objectives were developed (Tr. pp. 32-35, 53-54, 378-83, 656-58, 730-34; Dist. Ex. 1 at p. 13).  Testimony from respondent's school psychologist and petitioners' educational consultant reveals that by the end of the August 2004 CSE meeting the CSE was in consensus regarding the child's annual goals and short-term objectives (Tr. pp. 380-81, 731-34).  Petitioners do not challenge respondent's inclusion class profile presented to petitioners' educational consultant in July 2004 (Tr. pp. 669-70; see Dist. Ex. 5).  In testimony regarding the inclusion class profile petitioners' educational consultant stated that the students were "functioning at the same level" and that the students in the class exhibited delays in the same areas (Tr. pp. 669-70).  In July 2004, respondent's staff met with petitioners' educational consultant to clarify any concerns or questions petitioners had regarding the proposed inclusion class program (Tr. pp. 256-57, 669-70).  A description of the proposed inclusion class was discussed at the August 2004 CSE meeting which petitioners attended (Tr. pp. 383-84; Dist. Ex. 1 at p. 13).  Petitioners do not dispute the development of the 2004-05 IEP or their ability to effectively participate in the process.

            Respondent's recommended program for the child during the 2004-05 school year was an inclusion class consisting of 20 students, five of whom would receive consultant (special education) teacher services for 150 minutes per day, a full-time general education teacher and classroom aide (Tr. pp. 36, 188, 250-51; Dist. Ex. 4).  The inclusion class was designed to provide small group and individualized instruction (Tr. pp. 123, 251).  The role of the special education teacher in the inclusion class was to focus on reading, language arts and math (Tr. pp. 188-89).  Reading skills would also be taught through content areas of science and social studies while the special education teacher was in the classroom (Tr. pp. 270, 311; Dist. Ex. 4).  The special education teacher would work with the students who were classified in providing them with appropriate approaches to learning, as well as share special education teaching strategies with the general education teacher and classroom aide for continuity of service while she was not in the room (Tr. pp. 39, 189).

            Instructional strategies used in the recommended inclusion class included a multi-sensory approach with visual, verbal and "hands on" teaching methods (Tr. p. 254).  The special education teacher would be trained in presenting academic material in a variety of ways, including use of graphic organizers, writing, film, classroom discussion, and projects (Tr. p. 422).  The inclusion class used differentiated instruction, described in the record as modifications to the curriculum to meet the needs of an individual child (Tr. p. 192).  In addition, "movement breaks" were built into the inclusion class schedule to accommodate students who needed to move (Tr. p. 254).  In the inclusion class, student self-esteem was addressed throughout the day (id.).  The configuration of the classroom consisted of five tables with four students per table with the general and special education teachers and classroom aide circulating among them (Tr. p. 251).  The inclusion class provided small group or pair learning situations in which general education students were included (Tr. pp. 252-54).  The small group instruction the students received was "compliant" with their IEP goals and objectives (Tr. p. 192).  Respondent's staff would target the child's IEP reading goals and objectives, which would be addressed throughout the school day (Tr. pp. 224-25). 

            In addition to the services provided to the child in the inclusion class, his August 2004 IEP recommended that he receive individual reading instruction three times per week for 45-minute sessions (Dist. Ex. 1 at p. 10).  The reading instruction was to be provided by a teacher certified in both special education and reading, who also had a background in Orton-Gillingham training (Tr. pp. 124, 312).  The child's recommended individual reading instruction would have occurred in the afternoon so he would not be pulled out of the small group language arts/reading instruction that would have been provided in the morning (Tr. pp. 270-71).  Respondent's executive director of special education stated that the reading instruction recommended for the child would not require him to be removed from the daily curriculum (Tr. p. 339).  In the afternoon, the child would also receive pull out speech-language therapy and OT (Tr. pp. 390-91).

            Respondent's school psychologist stated that the recommended program for the child met his reading needs because the IEP proposed a combination of individual skill based reading instruction and opportunity for reading instruction in the classroom in content areas such as science and social studies (Tr. pp. 391-92).  He opined: "I felt very confident that [the child] could gain a lot in reading from both what would be done in the classroom what the special education teacher would do in language arts in the morning and then in combination with some pull out time to do some specific just reading in isolation, out of context time.  I think the whole package made a lot of sense" (Tr. p. 392).

            Petitioners argue that the program recommended by respondent is inappropriate because the child's reading level was below the fifth grade level, which was the grade level of the proposed inclusion class.  Respondent's psychologist stated that due to the nature of the inclusion class, in which three adults were available to work with 20 students, the special education teacher would have the ability to help the child on a level that he could comprehend (Tr. pp. 407-08).  The school psychologist further stated that the inclusion class provided instruction from a special education teacher trained in how to break down information in a variety of ways, to help "circumvent" the child's reading problem (Tr. pp. 408-09).  The inclusion class was designed to teach the child to read by way of the special education teacher providing language arts instruction for two and a half hours per day based on each child's IEP, as well as through coordination with the child's pull-out reading instruction (Tr. p. 409).  The school psychologist stated the child would have made progress in learning the mechanics of reading in the inclusion class because the child already exhibited some decoding skills (Tr. p. 410).  He concluded that the child would have been motivated by the reading instruction provided in the context of academic lessons within the inclusion class and by the support of the special education teacher (Tr. pp. 410-11).  Based upon my review of the record, including the testimony of respondent's special education teacher, school psychologist and other members of the CSE, I concur with the impartial hearing officer in finding that the recommended special education program would have addressed the child's reading needs in the LRE.

            The record reflects that during the 2003-04 fourth grade school year at YSS the child exhibited behavioral concerns including work refusal, limited initiative to complete work and decreased self-motivation, to the extent that in February 2004 respondent developed a behavior intervention plan for him  (Tr. pp. 23, 26-30; Dist. Exs. 1 at p. 13, 3, 6, 8 at p. 1).  The proposed inclusion class was designed so that the special education and general education teacher worked together to provide instruction and to develop individual programs for students who require improvement in behavior management, attention, motivation and social skills (Tr. pp. 40, 265; Dist. Ex. 4).  The classroom aide would provide support in the form of student redirection, management program monitoring and in assisting students with academic reinforcement tasks (Tr. p. 189; Dist. Ex. 4).

            The child's February 2004 behavior intervention plan was not contained in the August 2004 IEP (Tr. p. 160; see Dist. Ex. 1).  Testimony from respondent's special education teacher indicated that the inclusion class recommended for the child was a very structured program consisting of an aide for "exactly the reasons that are on [the child's] behavior plan" (Tr. p. 160).  The aide was in the inclusion class to refocus and redirect the students in the class who required it and, because the class was so structured, the special education teacher opined that the child would not need a behavior intervention plan (id.).  The school psychologist stated it would have been inappropriate to "handcuff the teacher and the student with a preset plan before this program was even tried" (Tr. p. 387).  The special education teacher testified she did not want to assume the child would need a behavior plan given the structure the inclusion class provided (Tr. p. 160).  Respondent's executive director of special education testified that students did not necessarily need individual behavior intervention plans entering the program; rather the student needs were determined once they were in the classroom (Tr. pp. 262-63).

            At the August 2004 CSE meeting, the CSE indicated that because positive reinforcements were built into the recommended inclusion class, an individual behavior plan for the child was not necessary (Tr. pp. 264-65).  The executive director of special education testified that in-class reinforcement and behavior charting would be attempted first.  If a student required a plan to address behaviors, the school psychologist could conduct a functional behavioral assessment on an individual basis (Tr. p. 266).  Respondent's special education teacher, executive director of special education and school psychologist testified that a behavior plan would be added to the child's existing program if needed (Tr. pp. 160, 266, 387).  Although petitioners allege the IEP did not include annual goals and short-term objectives to address their son's resistance to instruction, I find that the program contained in the child's August 2004 IEP addressed this need in the context of the proposed inclusion class.

            I find the record demonstrates that the child's August 12, 2004 IEP was reasonably calculated to enable the child to receive educational benefit and petitioners' son was offered a FAPE in the LRE for the 2004-05 school year. 

I now turn to the January 10, 2005 IEP.  The CSE reconvened at petitioners' request on January 10, 2005 to consider provision of the Lindamood-Bell program to the child (Dist. Ex. 2 at p. 12).  As with the development of the August 2004 IEP, the record reflects that the child's mother and her educational consultant had opportunities to participate in the development of the January 2005 IEP (Tr. pp. 50-54, 769-71).  Respondent's special education teacher testified the child's present levels of performance, goals and objectives were reviewed and agreed upon by the CSE (Tr. pp. 52-54).  The child's January 2005 IEP includes annual goals and short-term objectives related to his need to become a more active class participant and his need to take on more responsibility for his academic progress (Dist. Ex. 2 at pp. 5-9).  At the January 2005 CSE meeting, the CSE recommended that counseling once per week be added to the child's program (Dist. Ex. 2 at p. 9).  Testimony from petitioners' educational consultant indicates that at the January 2005 CSE meeting she did not object to the development of counseling goals and objectives for the child; however, petitioners did not accept the CSE's recommendation of counseling services (Tr. pp. 895-96; Dist. Ex. 2 at p. 12).  The January 2005 CSE recommended that the child's speech-language therapy services be discontinued and that his occupational therapy services be changed from twice weekly individual sessions to one time per week individual, one time per week group sessions (Tr. pp. 271, 275; Dist. Exs. 1 at p. 10, 2 at pp. 9, 12).  The record reflects that although the January 2005 CSE made modifications to the child's program, it continued to recommend daily direct consultant teacher services in a general education/inclusion model setting and three times per week individual reading instruction for the child, as originally recommended in the August 2004 IEP (Dist. Ex. 2 at p. 9).

            With the exception of the modifications made to the January 2005 IEP described above, the child's inclusion class program and reading instruction level of service recommended by the CSE was essentially the same as the program recommended by the August 2004 IEP.  The child would have received reading instruction during the inclusion portion of the day as well as individual reading instruction.  The addition of once per week counseling would have addressed the child's resistance to instruction.  Petitioners also assert that respondent's recommendations were inconsistent with the recommendations contained in the Yale report.  The record reflects that petitioners did not make the Yale report available to the entire CSE until the January 2005 CSE meeting (Tr. pp. 221-22).  During the 2003-04 school year prior to the June 2004 Yale evaluation, the child received five times per week resource room services, three times per week individual reading instruction and related services (Tr. pp. 806-07; Parent Ex. B at p. 10).  The Yale report recommended that the child's special education program be re-evaluated and "intensified" (Parent Ex. F at p. 7).  The Yale report recommended the use of "consistent, sequential, scientifically-based instruction" and provided instructional strategies and commercial programs that may also benefit  the child (Parent Ex. F at pp. 7-10).  The record reflects that respondent's CSE assessed the child's needs in August 2004 and January 2005, resulting in the 2004-05 school year recommendation for the inclusion class and to continue the child's individual reading instruction; resulting in a more "intensive" program than had been offered the prior school year.  I note that a school district is not required to utilize a particular teaching methodology or instructional program but it is required to provide an appropriate program of instruction (see Application of the Bd. of Educ., Appeal No. 04-049, Application of a Child with a Disability, Appeal No. 96-62).

I find the program recommended in the January 2005 IEP was reasonably calculated to enable the child to receive educational benefit and petitioners' son was offered a FAPE for the 2004-05 school year in the least restrictive environment (LRE).  I concur with the impartial hearing officer that both IEPs recommended a comprehensive program carefully designed to ensure that the child's social, physical, academic and management needs would be met (IHO Decision p. 40).  Therefore, I find that the evidence below amply demonstrates that the child was offered a FAPE for the 2004-05 school year.

            Having determined that the challenged IEPs adequately offered a FAPE to the petitioners' son for the 2004-05 school year, I need not reach the issue of whether or not Lindamood-Bell instruction was appropriate; petitioners are not entitled to reimbursement, 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).

            I have considered petitioners' remaining contentions, as well as respondent's affirmative defense based on 8 NYCRR Part 279, and find them to be without merit.

            THE APPEAL IS DISMISSED.

Dated:

Albany, New York

__________________________

April 28, 2006

PAUL F. KELLY
STATE REVIEW OFFICER

1   The name of the private school the child attended is referred to in the record as South Shore Yeshiva, Yeshiva of South Shore, South Shore Hebrew Academy and Yeshiva Toras Chaim (Tr. pp. 138, 140, 429, 627-28, 784, 806; Dist. Exs. 1, 8; Parent Exs. A, B).  The record clarified on April 18, 2005 that the name of the school the child attended during the 2003-04 and 2004-05 school years is Yeshiva of South Shore (Tr. p. 429).

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

3   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) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. 1401(8).