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

06-036

 

 

Application of the BOARD OF EDUCATION OF THE GLENS FALLS COMMON SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Hogan, Sarzynski, Lynch, Surowka, & DeWind, LLP, attorney for petitioner, Edward Sarzynski, Esq., of counsel

 

Andrew K. Cuddy, Esq., attorney for respondent

 

DECISION

 

Petitioner, the Board of Education of the Glens Falls Common School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's daughter during the 2004-05 and 2005-06 school years.  Respondent cross-appeals from that portion of the impartial hearing officer's decision that denied her request for "corrective" services.  The appeal must be sustained.  The cross-appeal must be dismissed.

 

            At the outset, I must address two procedural matters.  First, petitioner attaches the following documents not introduced into evidence at the impartial hearing to the petition: 1) the minutes from a special board meeting of the Glens Falls Common School District Board of Trustees; 2) correspondence from the Committee on Special Education (CSE) chairperson to respondent, dated March 16, 2006, regarding scheduling of a CSE meeting in order to further discuss the student's annual review for 2005-06; 3) correspondence from respondent to the CSE chairperson, dated March 18, 2006, in response to her March 16, 2006 memorandum; 4) correspondence from the CSE chairperson to respondent, dated March 23, 2006, in response to respondent's March 18, 2006 letter, regarding the continuation of the annual review meeting that began on January 26, 2006; and 5) correspondence from the CSE chairperson to respondent, dated April 6, 2006, notifying her that a CSE meeting has been scheduled for April 24, 2006 to continue the student's annual review which was initiated on January 26, 2006.  Respondent objects to petitioner's attempt to introduce new information, contending that the additional evidence that petitioner has submitted with the petition post-dates the hearing request by several months.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  The impartial hearing in this matter concluded on March 10, 2006.  Although each of the documents submitted by petitioner was created after the impartial hearing, and therefore, could not have been offered, they are not necessary for the rendering of this decision.  Therefore, the additional documentary evidence submitted by petitioner is not accepted.

 

            Second, as an affirmative defense, respondent asserts, without explanation, that the impartial hearing record is "defective," and as a result, this appeal must be dismissed.  Federal and State regulations require each school district to maintain an accurate record of the proceedings before an impartial hearing officer (34 C.F.R § 300.509[a][4]; 8 NYCRR 200.5[i][3][v]).  It is petitioner's obligation to furnish the Office of State Review with a complete hearing record (8 NYCRR 279.9).  In a letter to petitioner's attorney dated, April 20, 2006, the Office of State Review requested clarification of the record because it appeared that some of the exhibits were missing.  By letter dated April 27, 2006, petitioner's attorney, with a copy and enclosures provided to respondent's attorney, resubmitted the admitted exhibits and explained that where a document did not have a page number reference in the impartial hearing officer's exhibit index, the document had not been admitted into evidence.  He also provided an amended certification of the record, certifying that the record was complete.  Accordingly, the record is considered settled and complete and I decline to dismiss the petition on the bare assertion that the hearing record is "defective."

 

            At the time of the impartial hearing in March 2006, the student was 12 years old and enrolled in the sixth grade at petitioner's Abraham Wing Elementary School.  The student's prior educational history is described in Application of a Child with a Disability, Appeal No. 04-083, and will not be repeated here in great detail.  Briefly, she has profound hearing loss affecting her left ear, for which she wears a hearing aid, and has been diagnosed as having attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD) manifesting itself in disruptive classroom behavior (Dist. Ex. 3 at p. 2).  In September 2003, while in the fourth grade, the student transferred from the Glens Fall City School District to Abraham Wing Elementary School within petitioner's district (Parent Ex. E13 at p. 2).  The CSE met on September 18 2003, and decided to implement the recommendations of the Glens Fall City School District and that the student would attend regular education classes with counseling as a related service (Dist Ex. 3 at p. 3; Dist. Ex. 4).  On December 18, 2003, petitioner's CSE reconvened and developed the student's program for the 2003-04 school year, when the student was enrolled in the fourth grade at the Abraham Wing School (Dist. Ex. 6).  The CSE recommended a ten-month program for the student and classified her as other health impaired (Dist. Ex. 6 at p. 1).  The CSE also recommended related services that included weekly counseling, audiological services two times per year, and skilled nursing services (id.).  Program modifications included preferential seating (id.).

 

During the period of January 2004 through March 2004, petitioner conducted a number of evaluations of the student, which included psychiatric and psychological evaluations (Tr. p. 59).  In February 2004, per petitioner's referral, the student underwent a psychiatric evaluation (Parent Ex. E13).  The psychiatrist found that the student exhibited "superb academic achievement skills and that her intelligence reveals that she falls into the high average to superior range" (Parent Ex. E13 at p. 2).  He also concluded that she is a "girl with significant developmental as well as social emotional problems, [but that these problems] were not interfering with her overall academic achievements" (see Parent Ex. E13 at p. 3).  During this evaluation, the student was diagnosed as having ADHD, ODD, and an anxiety disorder, not otherwise specified (NOS) (id.).  The psychiatrist made a number of recommendations including that a plan created pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§701-796[l][1998]) be implemented for the student, in conjunction with a behavior plan (Parent Ex. E13 at p. 4).

 

In March 2004, petitioner's CSE determined that the student was no longer eligible for special education, and as a result, the parent commenced an impartial hearing challenging this determination (Dist. Ex. 3).  In April 2004, respondent referred her daughter back to the CSE (Parent Ex. W4).  In April 2004, respondent also requested that an independent neuropsychological evaluation be conducted at the district's expense (Parent Ex. AA148 at p. 1).

 

In May 2004, respondent requested an impartial hearing challenging her daughter's declassification (Parent Ex. W4).  As a result of her impartial hearing request, petitioner has been implementing the individualized education program (IEP) that was developed at the December 2003 meeting (Tr. pp.113-14, 384).  By decision dated September 14, 2004, an impartial hearing officer determined that the student's section 504 designation appeared to be appropriate (Parent Ex. W4 at p. 13).  He went on to hold that, given the student's section 504 designation, respondent was not entitled to an independent educational evaluation (IEE) (id.).  Respondent appealed the impartial hearing officer's decision to the State Review Officer (SRO).

 

Per a referral by respondent and the student's pediatrician, the student underwent another psychiatric evaluation in October 2004 (Parent Exs. E10, 10[A]).  The psychiatrist enumerated his findings in two different reports, both dated October 14, 2004 (id.).  In one report, he concluded that the student's "current classification by her CSE as 'otherwise health impaired' appears to give her sufficient access to supports that allow for good functioning at age level" (Parent Ex. E10 at p. 5).  However, in a separate report, also dated October 14, 2004, the psychiatrist concluded that the student "does have a handicapping condition (ADHD combined type and bipolar disorder, NOS, along with ODD) that is having a profound impact on her ability to learn in a traditional setting" (Parent Ex. E10[A] at p. 5).  He further opined that "she requires classification by her CSE as emotionally handicapped," and that "she would do best in a small, predictable 12:1:1 or 8:1:1 class that would allow for greater individualized care" (id.).  One report was given to respondent (Parent Ex. E10), while the other report was provided to petitioner's counsel (Parent Ex. E10[A]; Tr. pp.72-3).

 

On December 24, 2004, Application of a Child with a Disability, Appeal No. 04-083 was issued, which sustained the parent's appeal of the impartial hearing officer's September 15, 2004 decision, and ordered the decision "annulled to the extent that it found that the CSE properly declassified the child" (Dist. Ex. 3 at p. 8).  The SRO decision further ordered that the district reimburse the parent for the neuropsychological evaluation of the student and consider the neuropsychologist's report at the next CSE meeting (Dist. Ex. 3 at pp. 8-9).  In closing, the SRO decision remanded the matter to the district's "CSE to conduct a reevaluation of the child, including a consideration of any and all evaluations conducted pursuant to the order of the impartial hearing officer … to determine whether the 'student' should continue to be classified as a child with a disability"1 (Dist. Ex. 3 at p. 9).

 

In a letter dated January 2, 2005, respondent requested a CSE meeting (Parent Ex. AA198).  The CSE convened on January 27, 2005, pursuant to her request (Dist. Ex. 7).  According to the CSE minutes, petitioner was implementing the December 2003 IEP (Dist. Ex. 7 at p. 1).  With respect to modifying the December 18, 2003 IEP, respondent consented to reducing audiological services from twice a year to annually (Dist. Ex. 8).  Respondent presented one of the October 2004 psychiatric reports (Dist. Ex. at p. 1).  However, the CSE advised her that it needed time to review the report prior to any discussion of its contents (id).  The student's teacher also reported on the student's present levels of performance (id.).  No official IEP was generated as a result of that meeting (Dist. Ex. 7 at p. 5).

 

Shortly after the January 2005 CSE meeting, by letter dated January 30, 2005, respondent notified the CSE chairperson that she disagreed with everything that took place at the meeting and that she was "withdrawing all consent" that she signed during the meeting (Tr. p. 66; Dist. Ex. 9 at p. 3).  She objected to her daughter's present levels of performance (Dist. Ex. 9 at p. 3).  Respondent also complained that she "was not an equal member of the team," (Dist. Ex. 9 at p. 1).  She reminded the CSE chairperson that, per the December 2004 SRO order, her "evaluations" were to be considered at the next meeting and further expressed concern that the CSE did not review and discuss the psychiatrist's October 2004 report (id.).  Lastly, respondent notified the CSE chairperson that she would await her daughter's neuropsychological evaluation to be conducted before changing anything else on her IEP (id.).

 

By correspondence dated February 9, 2005, the CSE chairperson addressed the concerns raised in respondent's January 30, 2005 letter (Parent Ex. AA169).  She assured respondent that the CSE would review the October 2004 psychiatric report with her at a follow-up meeting (Parent Ex. AA169 at p. 1).  The CSE chairperson also noted that despite respondent's disagreement with her daughter's present levels of performance, "the present levels will stand" (Parent Ex. AA169 at p. 2).  She further characterized them as a "fair representation of what [her] daughter's teacher is currently seeing in regards to her academic performance" (id.).  The CSE chairperson also asked respondent to clarify which consents she was withdrawing (id.).  In closing, the CSE chairperson asserted that the CSE was trying to work with respondent as the parent of "a child with above average potential as well as special needs that warrant certain accommodations," and offered her an opportunity to schedule another CSE meeting (id.).

 

Per respondent's request, the CSE chairperson attempted to arrange a CSE meeting to take place on March 24, 2005, however, this meeting did not take place as scheduled, because petitioner was not available on that date (Parent Ex. AA150 at p. 1).  By letter dated March 21, 2005, the CSE chairperson proposed a number of dates in order to reschedule the meeting, which she described as a "requested review, for the purpose of later conducting a reevaluation of [her daughter]."  She explained that this review was required in order to "discuss [the student's] education program, as it relates to her upcoming reevaluation as remanded by the SRO."

 

The CSE chairperson scheduled another CSE meeting for April 14, 2005 (Dist. Ex. 13).  By memorandum to respondent dated April 1, 2005, the CSE chairperson explained that during the last CSE meeting in January 2005, respondent withdrew her consent and indicated total disagreement with any proposals set forth by the CSE.  Accordingly, she informed respondent that since no agreement was reached, an IEP was not generated during the January 2005 meeting, and that the last working IEP for the student was the IEP generated at the December 2003 meeting.

 

            On April 14, 2005, the CSE convened for a "requested review" (Dist. Ex. 16).  Respondent attended this meeting accompanied by a family friend, and a paralegal from respondent's attorney's office also participated in this meeting via conference call (Dist. Ex. 16 at p. 1.).  It was noted that the December 2003 IEP was "the last working IEP" (id.).  According to the CSE minutes, the CSE chairperson acknowledged that pursuant to the December 2004 SRO directive, the CSE was required to conduct a reevaluation (Dist. Ex. 16 at p. 2.).  The CSE determined that updated academic and psychological testing was required, and the student's present levels of performance needed to be updated (id.; Tr. p. 149).  The CSE also concluded that the two psychiatric reports provided by the psychiatrist were "very different and inconsistent," and the committee further observed that he "did not consult school personnel or review school records" in preparing his reports (Dist. Ex. 16 at p. 2).  Therefore, the CSE requested a new psychiatric evaluation of the student (Dist. Ex. 16 at p. 2).  The CSE presented a consent form to respondent allowing for an additional psychiatric evaluation of the student (id.).  In spring 2005, the CSE chairperson provided respondent with the names of three psychiatrists from which to choose for the additional psychiatric evaluation (Tr. pp. 89-90).  The CSE also agreed to pay for the neuropsychological evaluation, requested by respondent, provided that one had not been conducted already (Dist. Ex. 16 at p. 2).  Respondent confirmed that her daughter had not previously undergone a neuropsychological examination and she chose a neuropsychologist to conduct the examination (id.).  The record shows that in May 2005, respondent secured several appointments for her daughter to be evaluated by the neuropsychologist in December 2005 (Dist. Ex. 16 at p. 5).

 

The April 2005 CSE meeting minutes also show that respondent also requested additional evaluations including a speech-language evaluation and an occupational evaluation (Dist. Ex. 16 at p. 3).  A speech evaluation and occupational therapy evaluation were therefore included on the IEP generated as a result of this meeting (Dist. Ex. 16 at p. 3; Dist. Ex. 17 at p. 1).  Accordingly, the CSE gave respondent consent forms to conduct the neuropsychological evaluation, the additional psychiatric evaluation, a speech-language evaluation, and an occupational therapy evaluation (id.).  At the April 2005 meeting, the parties agreed to conduct these evaluations closer in time to the neuropsychological evaluation scheduled for December 2005 (Dist. Ex. 19 at p. 1; Tr. p. 118).

 

Counseling goals and objectives were also discussed at the April 2005 CSE meeting (Dist. Ex. 16).  The student's fifth grade teacher reported on the student's present levels of performance (id.).  She remarked that the student "was progressing well in her academics and that she is always on task in the classroom" (Dist. Ex. 16 at pp. 1-2).

 

Ultimately, the CSE agreed to create an IEP to reflect that counseling would continue on a weekly basis, audiological services would be provided to the student on a yearly basis, and that the student would also continue to receive skilled nursing services (Dist. Ex. 16 at p. 3; Dist. Ex. 17 at p. 1).  Although an IEP was developed as a result of the April 2005 meeting, respondent did not agree with its contents (Tr. pp. 150-51).

 

On April 21, 2005, respondent wrote to the CSE chairperson (Dist. Ex. 19).  She thanked her for holding the April 2005 CSE meeting and agreeing to provide the evaluation with by a neuropsychologist at the district's expense (Dist. Ex. 19 at p. 1).  Overall, respondent described the April 2005 meeting as "more productive than the meeting held on January 27, 2005" (Dist. Ex. 19 at p. 2).  Nevertheless, she "still felt [she] was not completely a full equal member of the team" (id.).  In her letter, respondent enclosed signed consent forms for the neuropsychological evaluation, the speech-language evaluations and occupational therapy evaluations and also asked that her daughter be scheduled for an evaluation to determine if she had a central auditory processing disorder (CAPD) (Dist. Ex. 19 at p. 2).

 

In August 2005, the student ultimately underwent a psychiatric examination by one of the psychiatrists recommended by the CSE (see Parent Ex. E2).

 

By letter dated May 10, 2005, the CSE chairperson informed respondent that the district was required to conduct an annual review (Parent Ex. C7).  She explained that, "as part of this annual review, the Committee will need to have updated achievement testing completed along with updated present levels of performance."  The CSE chairperson enclosed with her letter consent forms to assess [the student's] yearly progress using the Peabody Individual Achievement Test-Revised (PIAT-R).  On May 17, 2005, respondent signed the consent form to conduct the PIAT-R, however, she noted on the consent form that she wanted the results of the testing prior to the annual review, and that the results were to be used "solely for the purposes of annual review."

 

By letter dated May 28, 2005, respondent acknowledged that the student's annual review was scheduled to take place on June 16, 2005 (Dist. Ex. 25A at p. 2).  Despite having agreed at the April 2005 CSE meeting that the evaluations that she requested take place closer in time to the neuropsychological evaluation scheduled for December 2005, respondent requested completion of all of the evaluations that she had requested prior to the June 16, 2005 annual review meeting (id.; Tr. p. 155).  By letter dated June 7, 2005 the CSE chairperson indicated that during this meeting, in addition to the annual review, the CSE planned to develop an IEP for the student for the 2005-06 school year (Dist. Ex. 26).  She also explained that due to the student's unilateral hearing loss, the student was not a candidate for a CAPD evaluation (id.).  The June 16, 2005 CSE meeting did not take place as scheduled, because the parties agreed to postpone the meeting until after completion of the student's evaluations (Dist. Exs. 28, 29; Tr. p. 61).

 

By letter dated July 12, 2005, the CSE chairperson notified respondent that the speech-language and occupational therapy evaluations that she requested could not be conducted during the summer, therefore, the annual review meeting would likely take place sometime in September 2005 (Dist. Ex. 32).  The CSE chairperson's July 12, 2005 letter also set forth a number of proposed dates to hold a CSE meeting to develop an IEP for the 2005-06 academic year.  In closing, she gave respondent a July 18, 2005 deadline to respond to her letter.  She cautioned respondent that if she did not communicate with her by that date, then the CSE would proceed with the IEP developed as a result of the April 2005 CSE meeting.

 

On October 19, 2005, the student was evaluated for occupational therapy (Dist. Ex. 150).  During the evaluation, she was given the clinical observations of sensory integration and additional tasks to determine her ability to motor plan and her bilateral coordination (Dist. Ex. 150 at p. 1).  In general, the evaluator found that the student "performed well in all areas" (id.).  Based on the foregoing, the evaluator determined that the student did "not demonstrate any sensory, visual perceptual or motor based difficulty that would impair her functioning in class," and noted that she appeared "to be extremely functional in the school setting and [a] delight [with whom] to interact"  (Dist. Ex. 150 at p. 3).  In summary, she found that there was "no educational reason for occupational therapy services" (id.).

 

A speech-language evaluation was performed on October 20, 2005 (Dist. Ex. 151).  The speech-language pathologist determined that the student did not demonstrate a need for speech services at the time of the evaluation, in light of her strong academic performance, and her overall speech and language abilities (Dist. Ex. 151 at p. 3).  An audiologist observed the student in the classroom setting on October 20, 2005 (Parent Ex. E4).  The audiologist did not perceive that the student demonstrated difficulty hearing in the classroom setting (Parent Ex. E4 at p. 2).  The audiologist further opined that the student probably would not tolerate an FM system, in light of her discomfort wearing her hearing aid (id).  With respect to the need for an auditory processing evaluation, she noted that due to the student's hearing loss in one ear, "a full CAP evaluation cannot be performed and [it] would only be indicated if there was concern regarding academic performance, which was not reported at this time" (id.).

 

On November 17, 2005, the CSE met to review the speech-language evaluation report, the occupational therapy evaluation report and the audiological report (Dist. Ex. 60).  Respondent did not concur with the results of the audiological evaluation and requested an independent audiological evaluation (Dist. Ex. 60 at p. 1).  She also disagreed with the results of the occupational therapy evaluation and noted that she felt that "the evaluation was done in secret that there was no parent input" (id.).  As a result, she requested an independent evaluation for occupational therapy and organizational skills (id.).  In addition, respondent did not agree with the results of the speech-language evaluation, and requested another independent speech-language evaluation (Dist. Ex. 60 at p. 2).  The CSE also developed a proposed IEP as a result of this meeting for the remainder of the 2005-06 school year (Dist. Ex. 58).  The CSE recommended a ten-month program as well as weekly counseling and an annual audiological examination (Dist. Ex. 58 at p. 1).  The student was classified as other health impaired (id.).  Lesson accommodations included: checking for understanding of directions and use of visual cues when possible (Dist. Ex. 58 at p. 4).  Assignment accommodations allowed for modified homework assignments (id.).  Behavior accommodations provided that minor inappropriate behaviors displayed by the student would be ignored (id.).  The proposed IEP also provided for centralized seating and the avoidance of distracting stimuli (id.).  With regard to organization accommodations, the teacher agreed to contact respondent on a weekly basis (id.).  The proposed IEP also recommended affording the student reassurance and encouragement and suggested that the teacher compliment her positive behaviors and work, with emphasis on her talents and accomplishments (id.).  Lastly, the proposed IEP noted that counseling should be obtained when necessary (id.).

 

By letter dated December 5, 2005, respondent requested an impartial hearing (Dist. Ex. 1).  Respondent argued that petitioner denied her daughter a free appropriate public education (FAPE) during the 2004-05 and 2005-06 school years.  She raised approximately 30 issues in her impartial hearing request.  At the impartial hearing, respondent primarily focused on three areas of complaint: petitioner failed to conduct the evaluations that she requested, failed to conduct an annual review for the 2005-06 school year, and failed to treat her like an equal member of the team.

 

The student's neuropsychological evaluation commenced on December 7, 2005 and after six sessions, was completed on January 13, 2006 (Parent Ex. E1).  Based on her evaluation, the neuropsychologist diagnosed the student with ADHD, ODD, dysgraphia, and mood disorder, NOS, and noted her unilateral hearing loss (Parent Ex. E1 at p. 2).  She determined that all of these conditions "will impact her educationally" (id.).  Therefore, the neuropsychologist recommended that the student be classified as "emotionally handicapped" (id.).

 

On January 27, 2006, the student underwent an audiological evaluation at the district's expense (Parent Ex. E).  The evaluator noted that the student "has a long standing profound unilateral sensorineural hearing loss in the left ear and normal hearing in the right ear" (Parent Ex. E at p. 1).  The audiologist suggested that a "trial with an FM system for the [student's] right ear may be beneficial for her in the classroom setting" (id.).

 

The impartial hearing took place on March 9, 2006 and March 10, 2006.  By decision dated March 15, 2006, the impartial hearing officer concluded that "the parent's claims of procedural violations are well founded and that they were of a nature and number that resulted in a denial of parental participation in the IEP formulation, denied educational opportunity, and compromised the development of an appropriate substantive program" (IHO Decision at p. 6).  Thus, he found that the student was denied a FAPE for the 2004-05 and 2005-06 school years.  In support of his decision, he noted that petitioner failed to conduct a reevaluation of the student or present any IEP to the Board of Education since the December 2004 decision of the SRO.2  Lastly, he noted that, "it is unfortunate that the district has held fast to the concept that the 12/18/0[3] IEP could not be changed."

 

            On appeal, petitioner seeks an order that the impartial hearing officer's decision be annulled in its entirety.  Petitioner contends that by continually requesting additional evaluations, respondent frustrated the CSE's efforts to evaluate the student and to meet to develop an appropriate IEP for her.  Petitioner also argues that the evidence shows that the district was attempting to properly evaluate the student in accordance with respondent's concerns.  Petitioner argues that the parties agreed to postpone the annual review in light of the upcoming evaluations.  Further, petitioner contends that the record does not support the impartial hearing officer's finding that respondent was denied an opportunity to participate in the formulation of an IEP for her daughter.  Lastly, petitioner challenges the impartial hearing officer's statement that "it is unfortunate that the district has held fast to the concept that the 12/18/03 IEP could not be changed."  Respondent cross-appeals arguing that the impartial hearing officer erred by failing to award "corrective" services.

 

A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d])4.

 

A 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]).

 

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1][I]; see also 8 NYCRR 200.4[d][2][i][a].  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).

 

The impartial hearing officer's found that respondent's claims of procedural violations were well founded, and that they were of a nature and number that resulted in a denial of parental participation in the IEP formulation, denied educational opportunity, and compromised the development of an appropriate substantive program.  However, the IHO failed to specify the procedural violations to which he refers.  Given the circumstances of this case, where the record demonstrates, inter alia, good faith efforts by petitioner to evaluate the child and recommend appropriate programming, and the record reveals petitioner allowed meaningful parental participation and responded to the parent's input and concerns regarding her daughter's education, I find that none of the alleged procedural violations rose to the level of denying the student a FAPE (see Cerra v. Pawling Central School District, 427 F. 3d 186 [2d Cir. 2005]).

 

As to respondent's first primary issue of concern, that of timely evaluations, a review of the hearing record reveals that petitioner proceeded in good faith to ensure that the student was comprehensively evaluated. At the impartial hearing, respondent alleged that the student was denied a FAPE, because the evaluations that she requested were not performed in a timely manner.  However, respondent does not specify which evaluations were not completed.  The record shows that a number of evaluations took place during the 2004-05 and 2005-06 school years.  At the April 2005 CSE meeting, respondent asked for an evaluation for occupational therapy, and a speech-language evaluation in addition to the previously requested neuropsychological evaluation (Dist. Ex. 16).  Petitioner sought respondent's consent to obtain these evaluations (id.).  By letter dated April 21, 2005, respondent made an additional request that her daughter be evaluated for CAPD (Dist. Ex. 19).  In May 2005, respondent scheduled five appointments to take place in December 2005 for her daughter to undergo the neuropsychological evaluation at the district's expense (Dist. Ex. 24A).  The record also indicates that by letter dated June 7, 2005, the CSE chairperson advised respondent that her daughter could not be assessed for CAPD due to her hearing loss (Dist. Ex. 26).  The CSE chairperson also advised respondent that none of the evaluations that she requested could be completed over the summer (Dist. Ex. 32).  Moreover, pursuant to the parties' April 2005 agreement, the speech-language and occupational therapy evaluations were scheduled for fall 2005, to be held in close proximity with the independent neuropsychological evaluation that respondent scheduled for December 2005 (Tr. p. 118).  In accordance with the parties' April 2005 agreement, on October 19, 2005, the student underwent an evaluation for occupational therapy (Dist. Ex. 150).  The speech-language evaluation took place on October 20, 2005 (Dist. Ex. 151).  The record also shows that an audiological evaluation took place on October 20 2005 (Parent Ex. E4). 

 

In November 2005, the CSE met with respondent to review the reports generated as a result of the speech-language evaluation, the occupational therapy evaluation and the audiological evaluation (Dist. Ex. 58).  During this meeting, respondent noted that she disagreed with the results of the speech-language evaluation, the results of the occupational therapy evaluation and the results of the audiological evaluation (Dist. Ex. 58 at pp. 1-2).  She then asked for additional independent evaluations in each of these areas (Dist. Ex. 59).  The record shows that the district was amenable to providing further independent evaluations in speech-language therapy, occupational therapy and audiological therapy (Dist. Ex. 142 at p. 3).  Per respondent's request the record shows that an independent audiological evaluation was administered in January 2006 (Parent Ex. E).  With respect to each of the aforementioned evaluations, the record shows that the CSE authorized each evaluation as requested by respondent and petitioner obtained respondent's consent to conduct the evaluation, only to have her disagree with their contents and then request additional independent evaluations (Dist. Ex. 59; Dist. Ex. 60 at pp. 1-2).  Moreover, the evaluations took place in a manner that reflect petitioner's consideration of respondent's concerns.  The record demonstrates that petitioner was having the student evaluated, and doing so in collaboration with respondent.

 

Respondent also asserts that the CSE failed to conduct an annual review for the 2005-06 school year.  A student’s IEP must, at a minimum, be reviewed yearly (34 C.F.R. § 300.552(b)(1); 8 NYCRR 200.4[f]).  The purpose of the annual review requirement is to enable the school district and parent to monitor the student's progress, and if necessary, make revisions to the student's program or placement (Application of a Child with a Disability, Appeal No.01-065).  The record shows that the annual review was originally scheduled to take place on June 16, 2005 (Dist. Ex. 26).  Although respondent initially agreed in April 2005 to schedule the speech-language and occupational therapy evaluations that respondent requested closer in time to the December 2005 neuropsychological evaluation, by letter dated June 9, 2005, respondent demanded that a full speech-language and occupational therapy evaluation take place prior to any annual review (Tr. p. 118; Dist. Ex. 27 at p. 2).  In order to accommodate her request to conduct the evaluations prior to the annual review, the CSE chairperson offered to postpone the annual review until further notice (Dist. Ex. 28).  By letter dated June 16, 2005, respondent agreed to postpone the annual review until after the speech-language and occupational therapy evaluations were administered (Dist. Ex. 29).  After the June 2005 meeting was postponed, respondent was then advised that the annual review meeting probably would not take place until September 2005, because the evaluations that she requested could not be completed over the summer (Dist. Ex. 32).  On July 12, 2005, petitioner attempted to reschedule the annual review, and meet with respondent to address any of her concerns, yet respondent failed to answer her invitation (Dist. Ex. 32; Tr. p. 116).  The record establishes that in accordance with the parties' initial April 2005 agreement, the speech-language evaluation, the occupational therapy evaluation as well as the audiological evaluation were administered in October 2005 (see Dist. Exs. 150, 151; Parent Ex. E4).  The neuropsychological evaluation began in December 2005 and was not completed until January 2006 (Parent Ex. E1).  Although petitioner postponed the June 2005 annual review, the record shows that the CSE met in January 2005, April 2005 and November 2005 in order to develop an appropriate program for the student (Dist. Exs. 7, 16, 58).  Petitioner should have convened a CSE for the purpose of completing an annual review and developing a program for the 2005-06 school year.  Instead, petitioner acquiesced to respondent's request that no June 2005 annual review be held or finalized until additional evaluations were complete.  Given that CSE meetings were held in January 2005 and in April 2005 to review the student's progress and program, that a new IEP was proposed at the January and April meetings, that special education services were continually provided on an ongoing basis pursuant to the last agreed upon IEP, that the parent had ongoing access and input into the development of the student's program, that respondent had requested that no additional CSE meetings take place until all evaluations of the student were complete, and the evidentiary record does not support respondent's general allegations of substantive inadequacies in the student's special education program, I find that the failure to hold a third CSE meeting at the end of the 2004-05 school year did not result in a denial of FAPE to the student during the 2005-06 school year.5

 

In the instant case, the record amply demonstrates that at all times respondent actively participated in the development of several IEPs since January 2005.  The record shows that respondent attended each of the CSE meetings that took place on January 27, 2005, April 14, 2005, November 17, 2005 and January 26, 2006(see Dist. Exs. 7, 16, 60, 80).  Moreover, the record is replete with written communications between respondent and petitioner.  The CSE chairperson also indicated that within two or three days of a CSE meeting, respondent immediately disagreed with any proposed changes to the December 2003 IEP (Tr. p. 153).

 

I also disagree with the impartial hearing officer's observation that the district "held fast" to the December 2003 IEP which resulted in denial of FAPE for the 2004-05 and 2005-06 school years.  Upon a review of the record, it appears that petitioner was acting in good faith, took appropriate steps to comprehensively evaluate the student subsequent to the December 2004 SRO decision, and in doing so took into consideration parental concerns, and has offered revisions at CSE meetings to the December 2003 IEP.  In part, petitioner's responsiveness to accommodate respondent's demands has extended the reevaluative process.  Therefore, I encourage the parties to bring this process to closure as promptly as possible if they have not done so already.

 

Having determined that the student was not denied a FAPE during the second half of the 2004-05 school year and during the 2005-06 school year, I need not address respondent's cross-appeal seeking "additional" or "corrective" services.

 

            THE APPEAL IS SUSTAINED.  THE CROSS-APPEAL IS DISMISSED.

 

            IT IS ORDERED that the impartial hearing officer's decision is annulled in its entirety.

 

Dated:

Albany, New York

 

__________________________

 

May 31, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1. On April 5, 2005, by an amended complaint, respondent commenced an action against the Board of Education of the Glens Falls Common School District, the school superintendent, the CSE chairperson, the school psychologist, and other named individuals in the U.S. District Court, Northern District of New York, seeking attorney's fees, in addition to injunctive and monetary relief (Dist. Ex. 4 at pp. 14-15).  Specifically, in her amended complaint, respondent asserts that petitioner denied the student a FAPE during the 2003-04 and 2004-05 school years, and she seeks an order from the court that requires petitioner to immediately implement the SRO's order in Application of a Child with a Disability, Appeal No. 04-083 (Dist. Ex. 4 at pp. 13-14).  On April 25, 2005, petitioner submitted an answer to the amended complaint, appealing each and every part of the SRO's decision that was adverse to its position (Dist. Ex. 5 at p. 7).  The matter is pending.

2. The impartial hearing officer also found that petitioner failed to initiate an impartial hearing following respondent's demand for an independent neuropsychological evaluation.  However, since the record shows that the student has undergone an independent neuropsychological examination, and petitioner has agreed to provide additional evaluations requested by respondent, I find that this issue is moot. 

3.On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647 [2004]).  Since the relevant underlying events of this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEA 2004 do not apply and citations contained in this decision are to the statute, as it existed prior to the 2004 amendments.

4 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).

5  Respondent asserts that her daughter was denied a FAPE for the 2004-05 school year.  To the extent that she raises issues that occurred subsequent to the December 24, 2004 decision in Application of a Child with a Disability, Appeal No. 04-083, I find that she has not met her burden of persuasion demonstrating that special education services offered to the student were not appropriate.  I note that although approximately 30 issues were raised in respondent's due process complaint, very few issues were developed at the hearing.  To the extent that issues were raised in the due process complaint and not discussed above, I have considered all of respondent's contentions concerning the second half of the 2004-05 school year and the 2005-06 school year and find that the record does not support a determination that the student was denied a FAPE.