The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE PIONEER CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hodgson Russ LLP, attorney for petitioner, Jeffrey J. Weiss, Esq., and Meredith L. Bolton, Esq., of counsel
Andrew K. Cuddy, Esq., attorney for respondent
Petitioner, Board of Education of the Pioneer Central 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 for the 2004-05 and 2005-06 school years and ordered petitioner's Committee on Special Education (CSE) to reconvene to develop an appropriate program for the 2005-06 school year. The appeal must be sustained in part.
At the time of respondent's request for a hearing on September 19, 2005, respondent's daughter was 12 years old and was enrolled in regular education classes in the sixth grade at petitioner's middle school (Parent Exs. A, B). Respondent's daughter was born with congenital corneal opacities due to Peter's anomaly and later developed congenital glaucoma in both eyes; she is legally blind (Dist. Ex. 125). The student has been classified by petitioner's CSE as a student with a "visual impairment including blindness" (Parent Ex. B).
Respondent's daughter has attended general education classes in petitioner's school system since kindergarten (Tr. pp. 223-24). She has been receiving instruction in Braille from the district since approximately the first grade; she reportedly did well with grade 1 Braille (Tr. p. 790). According to her father, she repeated second grade due to her difficulty learning grade 2 Braille contractions (Tr. pp. 790-91; Dist. Ex. 104 at p. 3). In third grade there were emerging concerns regarding the student's progress in the area of reading (Dist. Ex. 136 at p. 1; see also Parent Ex. E4 at p. 3). The summer before her fourth grade year, a psychoeducational evaluation was conducted as part of her triennial evaluation which included administration of the Wechsler Intelligence Scales for Children – Third Edition (WISC-III). The student's overall performance on the Verbal Scale (IQ score: 87) placed her in the Low Average range of intellectual potential (Dist. Ex. 136 at p. 2). The student's scores on Vocabulary and Comprehension subtests, measuring expressive vocabulary and social reasoning abilities, fell significantly below the mean for her chronological age (id.). In addition, the student's performance on the verbal scales of the Wide Range Assessment of Memory and Learning (WRAML) yielded a Verbal Memory Index of 78 (7th percentile) (id.). The student had difficulty recalling longer messages such as sentences and paragraph-long stories, and her performance on delayed recall subtests suggested difficulty with long-term retention of learned materials (id.). The evaluator recommended administration of an individual achievement test in Braille (Dist. Ex. 136 at p. 3).
During her fourth grade year, a Braille Literacy Report on the student was prepared by the student's tutor (Parent Ex. E5). The tutor stated that while the student should know 95% of Braille contractions, she missed approximately one-third of the contractions in both reading and writing (Parent Ex. E5 at p. 1). The tutor opined that the student's lack of knowledge of the grade 2 Braille contractions was preventing the student from reaching a higher reading level (Parent Ex. E5 at pp. 1, 2). After the school year ended, two more Braille tests were administered to the student by a teacher of the visually impaired (Dist. Ex. 95 at p. 1). On the Informal Braille Competency Test the student read slowly, only six to eight words per minute, and had some difficulty answering comprehension questions, largely due to the slow speed of her reading (id.). On the Braille Code Recognition test the student scored 157 out of 176 items correctly (id.). The student made no errors in the writing of the Braille alphabet; however she did make a few errors when writing dictated words in grade 2 Braille (Dist. Ex. 95 at p. 2).
The CSE met on September 7, 2004 to finalize the student's individualized education program (IEP) for the 2004-05 (fifth grade) school year (Dist. Ex. 111). For the student's present levels of performance on Braille instruction, the IEP indicated that the student was continuing to learn the grade 2 Braille code, that she could read Braille contractions in isolation with 90% accuracy, but that she had difficulty recognizing the contractions in the context of her reading materials (Dist. Ex. 111 at p. 2). The IEP also indicated that the student was reading at a third grade level or above, that she was able to decode words at a fourth grade level, but that she had difficulty decoding at the fifth grade level (id.). The student's ability to decode words within the context of reading was characterized as "slow" and the IEP noted that sometimes the student would stay on one word for an excessive amount of time (id.). Relative to math, the IEP indicated that the student's use of the Nemeth Code to write numbers was improving and the student was able to use the abacus to perform addition and subtraction, as well as some basic multiplication and division problems (Dist. Ex. 111 at p. 3).
In the resultant 2004-05 IEP, the CSE recommended that the student be placed in fifth grade in regular education classes at petitioner's middle school with special education supports and services (Dist. Ex. 111 at p. 12), including push-in vision services in the classroom for English/Language Arts (ELA) and Math, five times per week for 90 minutes, for a total of 450 minutes per week (Dist. Ex. 111 at p. 9). In addition, the CSE recommended that the child receive individual orientation and mobility training two times per month for 60 minutes (id.). She was also assigned an individual aide to ensure her safety in school, promote her independence and ensure timely, accurate production of needed materials (e.g. Braille versions of assignments and materials) (id.). The student would receive adaptive physical education services within the regular physical education class setting (id.). Program modifications included use of a timer for timed tasks (Dist. Ex. 111 at p. 9; Parent Ex. D2 at p. 2). Supports for school personnel on behalf of the student included an aide five times per week for three hours to assist with Braille production (Dist. Ex. 111 at p. 10). The 2004-05 IEP also provided for home tutoring services in Braille, Nemeth Code, and abacus use, five times per week for 120 minutes for a total of 10 hours per week (Dist. Ex. 111 at p. 9). The student's IEP listed various assistive technology devices including BrailleNote BT 18, along with maintenance and accessories (see Tr. pp. 679-81); access to printer with parallel cable; access to Braille embosser; JAWS software; access to Book Port; and talking dictionary (Dist. Ex. 111 at pp. 9-10). Testing accommodations on the student's IEP included: BrailleNote; Braillewriter; manipulatives; phonetic spelling; test passages, questions, items and multiple choice responses read to student for exams that do not measure reading comprehension; extended time allotted to complete test; directions read to student; administered in several sessions/same day; use of Braille Edition; omit questions non-revisable/prorate credits; use of alternative test items such as Braille paper; answers recorded; markers to maintain place and tests; tests done on floppy disk on a computer with the use of JAWS or student is allowed to read test aloud with guided oral assistance; tests administered individually in a separate location, and questions read (Dist. Ex. 111 at pp. 10-11). The IEP indicated that orientation and mobility training was the only activity for which the student would not participate in the general education program (Dist. Ex. 111 at p. 11).
In addition, the student's 2004-05 IEP included goals and objectives related to increasing the student's knowledge and skill of reading and producing Braille and Nemeth Code; maintaining and improving the use of the abacus; increasing her ability to use computer technology and programs efficiently, improving writing skills using a variety of means available to the student; using organizational techniques to obtain more independence within the classroom and to finish homework and tests; becoming oriented to the middle school; increasing safety in an outdoor environment as well as in public, unfamiliar buildings; and safely participating with peers in a regular physical education class setting (Dist. Ex. 111 at pp. 6-8).
During the 2004-05 school year, various issues arose concerning the student's home vision service providers (see Tr. pp. 130-31, 133, 329-331; Dist. Exs. 101, 102, 103; Parent Ex. K27; Tr. pp. 128-131; Parent Ex. K24; Tr. pp. 133-34, 152; Dist. Exs. 90, 91; Parent Exs. K20, K21; Tr. pp. 134-36; Dist. Exs. 82, 83). A periodic review of the IEP was held on December 15, 2004 for the stated purpose of reviewing the student's vision services (Dist. Ex. 80; Parent Exs. C3, D1; Tr. p. 121). The student's school vision teacher suggested that it was difficult to measure the student’s progress toward her IEP goals because the teacher's time with the student was limited by the 2004-05 IEP to push-in sessions, when the student was required to pay attention in class to the regular education teacher (Dist. Ex. 73 at p. 1; Parent Ex. D1 at p. 1; Tr. pp. 299-301; see also Parent Ex. G2). The CSE discussed the student's reluctance to work with the vision teacher in school, except when she was alone with her (Dist. Ex. 73 at p. 2; Dist. Ex. 57 pp 2-3; Parent Ex. D1 at p. 2; Parent Ex. G2). As a result of these concerns, the student's IEP was revised to allow for approximately 1/3 of the student's vision services to be provided on a pull-out basis outside of the classroom for the remainder of the school year (Dist. Ex. 72 at p. 9; Dist. Ex. 73 at p. 2; Parent Ex. B1 at p. 9; Parent Ex. D1 at p. 2; Tr. pp. 144-47). Additional, minor changes were made to the student's IEP (Tr. pp. 125-26; Dist. Ex. 72 at pp. 9, 10; Dist. Ex. 73 at p. 2, Dist. Ex. 74; Parent Ex. B1 at pp. 9, 10). Respondent was also dissatisfied with the providers of home tutoring vision services that the district had obtained, and in March 2005 respondent "fired" the tutor and indicated that he should not return (Tr. pp. 135-37, 138-39, 849-51; Dist. Ex. 41). The parent and district discussed the issue at subsequent meetings but it was not resolved (Tr. pp. 141, 152, 161-63; Dist. Exs. 38, 39) and home tutoring was not provided for the remainder of the 2004-05 school year (Tr. pp. 151-52; 170).
During the 2004-05 school year, the district's Qualitative Reading Inventory (QRI) was administered to the student on two occasions (Dist. Ex. 157). The QRI is the district's timed curriculum-based assessment of reading speed and comprehension skills (see Tr. pp. 448, 450). The test measures a student's ability in sight vocabulary, fluency, answering questions, and writing summaries (Dist. Ex. 157). The sight vocabulary and fluency portions reportedly required timed one-minute oral responses, the summary and questions portions were also timed and required longer written responses (Tr. pp. 452, 462-63; see Dist. Ex. 157). During the 2004-05 school year, the student's performance on measures of sight vocabulary, fluency, and summaries improved between September 2004 and March 2005, although her scores fell well below her nondisabled peers (Dist. Ex. 157; Tr. pp. 382-86, 454-456, 457-59). On the comprehension portion, she answered one less question in March than she had in September, but her scores in both administrations were near the class average (Dist. Ex. 157; Tr. p. 461). When given extended time, the student's performance on the fluency portion of the QRI improved to within the average range for all fifth graders (see Dist. Ex. 8 at p. 2), and the number of sight words the student was able to recognize increased (id.).
The CSE met on May 11, 2005 to begin the annual review process (Dist. Exs. 30, 32). At the meeting, the updated assistive technology assessment and recommendations were fully discussed (Dist. Exs. 26, 27), the student's progress in orientation and mobility was reviewed, and there was considerable discussion regarding the student's reluctance to accept help in the classroom or to seem in any way different from her peers (Dist. Ex. 26). There was a consensus among committee members to adopt the orientation and mobility goals proposed for the 2005-06 school year (Dist. Ex. 26). The student's regular education teacher indicated that the recently administered May 2005 QRI showed the student making solid gains in reading and ELA (Dist. Ex. 26; see Dist. Ex. 8 at p. 2). Her teachers reported "strong academic growth" (Dist. Ex. 27 at p. 1).
The CSE reconvened on June 15, 2005 to continue developing the student's 2005-06 IEP (Dist. Exs. 16, 17; Tr. pp. 165-66). The CSE discussed the student’s assistive technology needs, and agreed that language calling for the use of a compatible visual display device at home would be denoted in the student's 2005-06 IEP (Dist. Ex. 16 at p. 1; Dist Ex. 17). There was disagreement among committee members as to the student's progress during the 2004-05 school year, specifically as it related to academics and Braille competency (Dist. Ex. 16 at p. 1). The student's parent and her advocate claimed that the student had regressed in some areas and had made progress in others only during the time period that the advocate had served as the student's home tutor for the first two months of the school year (id.); however, other committee members disagreed and noted that according to teacher reports the student was passing her academic subjects and doing well in the regular education curriculum (Dist. Ex. 16 at p.1; Tr. p. 169). The parent alleged that the district's vision staff was making repeated errors in Braille transcription (Dist. Ex. 16 at p. 1; Tr. pp. 166-67). At the conclusion of the meeting, the Director of Special Education indicated that he would modify aspects of the proposed present levels of performance as per the CSE discussions and develop a draft 2005-06 IEP which he would send to the parent for his input (Dist. Ex. 16 at p. 2; Tr. p. 172).
The student received the following final grades for the 2004-05 (fifth grade) school year: ELA: 86, Spelling: 81, Social Studies: 85, Math: 85, and Science: 85 (Dist. Ex. 15; Tr. pp. 114-16). The student's math teacher indicated that the student was performing above average work, while the student's science teacher indicated that the student’s work was excellent (Dist. Ex. 15). The student ended the year passing all of her courses, with a final grade point average of 86 (id.). Although not recommended for extended year services by the CSE, the district provided the student with a home tutor during summer 2005 to continue to work on Braille related skills (Tr. pp. 326-27; see also Tr. pp. 281-82).
By letter dated July 21, 2005, the Director of Special Education forwarded the draft of the proposed 2005-06 IEP to the student's father and indicated that the CSE would reconvene on August 2, 2005 to resume the student's annual review (Dist. Ex. 13 at p 1; Parent Ex. C). The student's father responded by letter dated July 25, 2005 questioning the student's reported reading progress (Dist. Ex. 12 at pp. 1, 4; Parent Ex. K at pp. 1, 4) and asserting that none of the goals and objectives from the student's 2004-05 IEP had been met (Dist. Ex. 12 at p. 1; Parent Ex. K at p. 1). In addition, the parent again questioned the competency of district staff providing the student's Braille instruction (Dist. Ex. 12 at p. 1; Parent Ex. K at p. 1) and transcription services (Dist. Ex. 12 at p. 4; Parent Ex. K at p. 4). Finally, the student's father opined that the provision of an individual aide during the 2004-05 school year had impeded the student's ability to achieve greater independence (Dist. Ex. 12 at p. 2; Parent Ex. K at p. 1). The parent proposed that the student’s vision goals and objectives from 2004-05 be carried over to the 2005-06 IEP, that vision services and tutoring be combined and provided in the home by a qualified, certified teacher; and that vision and Braille transcription services be provided through the board of cooperative educational services (BOCES) (Dist. Ex. 12 at p. 4; Parent Ex. K at p. 4).
The CSE met on August 2, 2005 and developed an IEP for the student for the 2005-06 (sixth grade) school year (Dist. Ex. 8; Parent Ex. B). For present levels of performance, the 2005-06 IEP cited results from the latest May 2005 administration of the QRI which indicated that the student's ability to read words from the fourth grade word list was at the independent level, however, her performance on the fifth grade word list fell below the instructional level (Dist. Ex. 8 at p. 2; Parent Ex. B at p. 2). When given extra time, the student was in the average range for fluency on a fifth grade passage (Dist. Ex. 8 at p. 2). The student was able to read a fourth grade level passage with only six miscues, placing her at the independent level (Dist. Ex. 8 at pp. 2-3; Parent Ex. B at pp. 2-3). The student's ability to answer questions about this same passage placed her in the instructional range for fourth grade comprehension (Dist. Ex. 8 at p. 3; Parent Ex. B at p. 3). The student's use of vital reading strategies to aid with interpretation was noted (id.). According to the IEP, the student's use of literary Braille contractions was inconsistent and at times she seemed to have difficulty remembering Braille contractions (Dist. Ex. 8 at p. 4; Parent Ex. B at p. 4). The 2005-06 IEP indicated that the student had consistently done well in math and science during fifth grade (Dist. Ex. 8 at p. 3; Parent Ex. B at p. 3). In math, the student demonstrated strengths reading and interpreting graphs; determining place value; adding, subtracting, multiplying and dividing whole numbers; and geometry (id.). The student had difficulty renaming mixed fractions to improper fractions and vice versa, and adding and subtracting unlike fractions (id.). The student was able to complete each of the required steps but had difficulty putting all of the steps together (id.). Although the student was able to apply Nemeth Code in a consistent manner she was inconsistent in dropping the number (Dist. Ex. 8 at p. 4; Parent Ex. B at p. 4). The student continued to need assistance employing the BrailleNote (id.). The IEP noted that although the student's independence should be encouraged there were times when the student would be helped more if she were open to relying on others (Dist. Ex. 8 at p. 3; Parent Ex. B at p. 3). The IEP indicated that the student would benefit more from pull-out vision services (versus push-in) and that, based on the goals she needed to achieve, individual one-to-one vision service would provide the student with more direct learning time and instruction (Dist. Ex. 8 at p. 5; Parent Ex. B at p. 5). The IEP further stated that with pull-out service new skills could be addressed in the school setting rather than after school home tutoring sessions (id.). According to the IEP, the student had done well with her mobility lessons but still needed frequent reminders to use her cane (id.).
In the resultant 2005-06 IEP, the CSE continued to recommend that the student be placed in regular education classes at the district's middle school with special education (vision) services and supports (Dist. Ex. 8 at p. 11; Parent Ex. B at p. 11). As in the student’s 2004-05 IEP, the CSE continued to recommend that the student receive adaptive physical education services within the regular physical education class setting 3 times per 6-day cycle and orientation and mobility training outside of general education twice monthly for 60 minutes (Dist. Ex. 8 at p. 9). The 2005-06 continued all of the student's assistive technology devices, and added a compatible visual display device for both home and school (Dist. Ex. 8 at p. 9; Dist. Ex. 9 at p. 2), which allowed others to monitor the student's work in Braille and provide her with assistance (Dist. Ex. 34 at p. 3). All of the student's extensive testing accommodations were also continued on the 2005-06 IEP (Dist. Ex. 8 at p. 10).
The 2005-06 IEP contained numerous goals and objectives, many that were carried over from the student’s previous 2004-05 IEP (compare Dist. Ex. 8 at pp. 6-8; Dist. Ex. 111 at pp. 6-8). These included goals and objectives related to increasing the student's knowledge and skill of reading and producing Braille; maintaining and improving the use of the abacus; increasing her ability to use computer technology and programs efficiently, improving writing skills; using organizational techniques to obtain more independence within the classroom and to finish homework and tests; and safely participate with peers in a regular physical education class setting (Dist. Ex. 8 at pp. 6-8; Parent Ex. B at pp. 6-8). New goals and objectives had been drafted by the CSE for inclusion in the 2005-06 IEP (Dist. Ex. 13; Parent Ex. F), but these were ultimately not used because at the CSE meeting the parent requested that many of the 2004-05 goals and objectives be carried over into the 2005-06 IEP (see, e.g. Dist. Ex. 9 at p. 2 [computer goals/objectives]; Dist. Ex. 9 at p. 3 [vision goals/objectives]; Parent Ex. T at pp. 13-14, 60-63). The IEP also contained goals related to orientation and mobility, most of which were revised or new (Dist. Ex. 8 at p. 6; Parent Ex. B at pp. 6-8).
Despite the similarity in goals and objectives, the 2005-06 IEP reflected several changes to the student's program. The CSE recommended restructuring the student's vision services so that all of the services would be provided on a one-to-one pull-out basis (Dist. Ex. 9 at p. 2; Tr. pp. 176-79; 181-85 187). In addition, because pull-out services would allow for more direct instruction, vision services were reduced from 900 to 600 minutes per two-week period (Tr. pp. 182-83) and the CSE consequently deemed home tutoring no longer necessary (Tr. pp. 173-74). The parent opined that the student’s vision services should be provided at home (Dist. Ex. 9 at p. 2) and disagreed with any plan for vision services during the school day (Dist. Ex. 9 at p. 3). In response to the parent's insistence that the individual aide was unnecessary and impeded his daughter's independence (see Dist. Ex. 12 at p. 2; Dist. Ex. 9 at p. 2), the CSE continued to recommend an individual aide, but the focus of the aide's role was changed from assisting the student to assisting the regular education teachers in meeting the student's needs, particularly related to Braille (Dist. Ex. 8 at p. 9; Dist. Ex. 9 at p. 2); the additional provision that existed in the 2004-05 IEP for an aide to assist with Braille production five times per week for three hours (see Dist. Ex. 111 at p. 10) was deleted in the 2005-06 IEP. The 2005-06 IEP indicated that orientation/mobility training and vision services were the only activities for which the student would not participate in the general education program (Dist. Ex. 8 at p. 11).
Respondent did not accept the CSE's recommended educational program for his daughter, and by letter dated September 19, 2005, through his attorney requested an impartial due process hearing concerning alleged deficiencies in the services provided to his daughter during the 2004-05 school year and challenging the appropriateness of her 2005-06 IEP. The hearing commenced on November 30, 2005 and concluded on February 14, 2006.1 In a decision dated April 7, 2006, the impartial hearing officer reviewed each of respondent's 18 allegations individually, and dismissed all but two. The impartial hearing officer found that petitioner had denied the student a free appropriate public education (FAPE) in 2004-05 on procedural grounds for failing to ensure that the student's service provider was properly certified in vision services prior to the start of the school year. The hearing officer also found that the district failed to provide the student with a substantive FAPE for both the 2004-05 and 2005-06 school years because the student's IEPs "failed to produce meaningful educational benefits or educational progress appropriate to [the student]'s cognitive or other abilities" (IHO Decision, pp. 15, 16). The impartial hearing officer annulled the 2005-06 IEP, and ordered the CSE to reconvene and develop an appropriate program which would allow the student to progress "appropriate to [her] cognitive and other abilities" (IHO Decision, p. 19). "In order that goals and objectives will be attained", she also ordered that the student's vision services be provided after school (on school premises) as well as during school hours (id.).
Petitioner appeals, requesting that the hearing officer's decision be reversed only insofar as it determined that the district committed procedural and/or substantive errors that cumulatively denied the student a FAPE for the 2004-05 and 2005-06 school years. Respondent does not cross-appeal, hence the hearing officer's individual determinations finding for the district and dismissing respondent's other 16 allegations are final and binding and shall not be reviewed; having failed to appeal from those determinations respondent is bound by them (see 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][ii]; Application of a Child Suspected of Having a Disability, Appeal No. 05-071; Application of a Child with a Disability, Appeal No. 04-061; Application of a Child with a Disability, Appeal No. 04-018; Application of the Bd. of Educ., Appeal No. 03-110).
Initially, an evidentiary matter must be addressed. Petitioner attaches an additional exhibit to the petition (Dist. Ex. 172) and requests that it be admitted as additional evidence. The document contains the student's test scores from the district's administration of the QRI in March 2006, after the hearing ended, and compares her scores to the September 2005 administration of the QRI (id.). 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 (Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-107; Application of a Child with a Disability, Appeal No. 04-074). In the circumstances presented herein, because the evidence was not available at the time of the hearing and respondent does not object to its submission, and because one of the main issues on appeal concerns whether or not the student's 2005-06 program was reasonably calculated to enable her to progress sufficiently, I will accept the additional evidence for whatever probative value it may have in enabling me to render a decision.
There is a threshold issue as to whether petitioner's claims relative to the 2004-05 school year have become moot with the passage of time. I note that respondent requested the underlying impartial hearing on September 19, 2005, several months after the 2004-05 school year had expired. Petitioner is seeking an annulment of the impartial hearing officer's order concerning the 2004-05 school year inasmuch as it found that petitioner failed to provide a FAPE to respondent's daughter. The reasons the hearing officer found a denial of FAPE were that the student's vision services teacher for that year allegedly was not properly certified until spring 2005,2 and also that the student allegedly failed to show enough progress under the 2004-05 IEP. Petitioner does not contest any part of the resultant relief order, which ordered the CSE to reconvene to develop a more appropriate program for the 2005-06 school year, which is partly due the hearing officer's additional finding that the 2005-06 IEP also denied a FAPE.
The dispute between the parties in an appeal must at all stages be "real and live" and not "academic," or it risks becoming moot (see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]). In general, appeals dealing with issues such as appropriateness of related services, desired changes in IEPs, specific placements, and implementation disputes are moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37). The Individuals with Disabilities Education Act (IDEA) requires a CSE to review and if necessary revise a child's IEP at least annually (see 20 U.S.C. § 1414[d][A][i]; 34 C.F.R. § 300. 343[c]), and each new IEP supersedes the prior IEP in addressing the child's needs (see Application of a Child with a Disability, Appeal No. 06-027; Application of the Bd. of Educ., Appeal No. 05-063); hence, administrative decisions rendered concerning school years long since expired may no longer appropriately address the current needs of the child (Application of a Child with a Disability, Appeal No. 04-007). A claim may not be moot, however, despite the end of a school year for which the child's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318 ; Lillbask, 397 F.3d at 84-85; Daniel R.R. v. El Paso Indp. Sch. Dist., 874 F.2d 1036 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 04-038).
In the instant case, in light of the absence of any controversy relating to relief, and in light of the fact that the 2004-05 school year is long over and a new IEP has been devised which has superceded the 2004-05 IEP and which is now also part of this appeal, I find that even if I were to make a determination that the student's prior program from a former school year did provide a FAPE, in this instance it would have no actual effect on the parties. A State Review Officer is not required to make a determination which will have no actual impact upon the parties (Application of a Child with a Disability, Appeal No. 02-086; see also Application of the Bd. of Educ., Appeal No. 04-006; Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 97-64). Moreover, while any inadequacies in the 2004-05 IEP might have been capable of repetition in the 2005-06 IEP, the very fact that part of this appeal concerns the 2005-06 IEP shows that such inadequacies would not and did not evade review. Accordingly, under these circumstances I decline to review the merits of petitioner's claim concerning the long expired 2004-05 IEP, and proceed to a review of the appropriateness of the superseding 2005-06 IEP more presently at issue (see Application of a Child with a Disability, Appeal No. 02-086).
In the instant case, the impartial hearing officer found that the student's 2005-06 IEP was substantively defective because the student failed to show sufficient progress; namely, because the student was still reading below grade level, had not met all of her IEP goals and objectives from the previous school year, and had shown very little progress in her Braille skills (see IHO Decision, pp. 15-16). Petitioner contends that the record reveals that that the 2005-06 IEP was substantively appropriate to meet the student's needs and reasonably calculated to enable the student to receive educational benefit and that in fact the student was receiving meaningful educational benefit from the 2005-06 IEP
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347). 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 (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 ). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (Schaffer v. Weast, 126 S.Ct. 528, 537 ).
The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child's right to a FAPE, (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (III) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 2005[j][ii]).
Both the Supreme Court and the Second Circuit have noted that the 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). Thus, a state satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). 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 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), in other words, likely to produce "meaningful" progress (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]).
The Supreme Court has noted that "[w]hen the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit" (Rowley, 458 U.S. at 207 n.28 [deaf student's ability to perform better than average child in class and her easy advancement from grade to grade indicated that she was receiving an appropriate education despite school district's failure to provide her with a sign language interpreter]). The Supreme Court noted that each child's academic progress must be viewed in light of the limitations imposed by the child's disability (Rowley, 458 U.S. at 202 ["It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between"]). The Second Circuit likewise has found that when a child with a disability is in regular education classes "the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress" (Walczak, 142 F.3d at 130), although it is not automatically indicative in every case of a provision of FAPE (see Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93-94 [2d Cir. 2003] [failing grades in mainstream classes are some evidence of a denial of FAPE, but failing grades alone are not dispositive and must be viewed in light of the evidence as a whole, where student's failing grade was due to his deliberate refusal to make a sufficient effort on a test]; M.S. v. Bd. of Educ., 231 F.3d 96, 103-04 [2d Cir. 2000] [passing grades in regular education setting, while ordinarily sufficient to show a FAPE was provided, are not dispositive where student's IEP failed to address several major areas of need, and student was below grade level and failed to improve in those areas]).4
An appropriate substantive program begins with an appropriate IEP. The IEP must 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][v][a]). 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][v][a]). In addition, any assistive technology and/or services necessary to provide a FAPE must be made available to the student and included in the student's IEP (34 C.F.R. § 300.308; see 8 NYCRR 200.4[d][v][b]). An IEP must also include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iii]).
In the case of a blind or visually impaired student, the IDEA specifically directs that the CSE shall provide for instruction in Braille unless the CSE determines after proper evaluation that instruction in Braille is not appropriate for the student (20 U.S.C. § 1414[d][B][iii]; 34 C.F.R. § 300.346[a][iii]). The U.S. Department of Education has issued guidelines which direct that the CSE must ensure "that the instructional time allocated for Braille instruction is adequate to provide the level of instruction determined appropriate for the child" and "that appropriate assistive technology is provided to facilitate necessary Braille instruction" and that the CSE "must include effective methods for teaching writing and composition, including the appropriate use of assistive technology in the IEPs" (Educating Blind and Visually Impaired Students; Policy Guidance; Notice, Vol. 65 Fed. Reg. No. 111, at p. 36589 [June 8, 2000]). Examples given of such technology include a personal computer with speech output or Braille display, cassette recordings, optical scanners, and reader services, as appropriate (id.). In addition, the IDEA provides that orientation and mobility services be provided as a related service to visually impaired students, where appropriate, as part of a FAPE to enable them to attain systematic orientation to and safe movement within their environments in school, home, and community (20 U.S.C. § 1401; 34 C.F.R. § 300.24[b]).
In the instant case, the student's 2005-06 IEP appropriately placed her in the least restrictive environment, a regular education classroom with her nondisabled peers. Her cognitive ability, her ability to achieve high grades in her academic subjects, and her consistent mastery of the regular education curriculum in the past demonstrated that she could and was succeeding in the regular education setting. Because the student's disability was a visual impairment, the 2005-06 IEP appropriately provided her with ample related vision services, and the CSE individually tailored these services to meet her needs. The student's vision services in the 2005-06 IEP were drafted as one-to-one pull-out vision services for 600 minutes every two weeks in order to minimize the student's feelings of being singled out in the classroom while still enabling her to progress in the general curriculum with her peers (Dist. Ex. 8). During these pull-out sessions she would be provided with individual instruction focusing on, among other things, her areas of weakness in Braille contractions, constructing sentences (Tr. p. 662) and Braille reading (Tr. pp. 665-666, 721-22, 724). In addition, the vision instructor would help the student with her areas of need in organizational skills (Tr. pp. 669-70), and in the use of assistive technology (Tr. p. 668). An individual aide was also assigned to assist the student’s regular education teachers in meeting the student’s needs, particularly related to Braille (Dist. Ex. 8 at p. 9; Dist. Ex. 9 at p. 2; Tr. p. 218). The IEP also appropriately provided her with orientation and mobility training for 60 minutes twice per month, and adaptive physical education with her peers. In addition, the 2005-06 IEP contained a wide array of assistive technology devices specifically designed for the visually impaired, and added a visual display device for home use that was compatible with school equipment so that the student could access Braille and other software programs from home. Extensive testing accommodations, such as extended time, directions read, and use of Braille assistive technology, all provided ample support for the student to enable her to progress in the general curriculum with her nondisabled peers. The goals on the 2005-06 IEP were all relevant to the student's continued areas of need in reading and writing Braille, use of abacus and Nemeth Code, use of computer technology/software, organizational skills, independence, orientation and mobility (Dist. Ex. 8 at pp. 6-8).
The educational program developed for respondent's daughter for the 2005-06 school year was in essence a continuation of the program she was placed in the prior year; i.e., placement in a regular education setting with vision services, supports, assistive technology and testing accommodations (compare Dist. Exs. 111, 8). Based on progress notes (Dist. Ex. 28) and report card grades (Dist. Ex. 15; Tr. pp. 114-17) it appears the student performed well academically during the 2004-05 school year in this setting with these supports. The student's teacher for math and science indicated that the student had consistently done well in those subjects (Parent Ex. G at p. 1). The teacher noted that the student scored at or above average on quarterly exams given in math and above average on unit tests (Parent Ex. G at p. 2). Further, the teacher reported that the student did especially well in science, and was an eager participant when it came to reading from the text and joining in on classroom discussions (Parent Ex. G at p. 3). The student's teacher for spelling, English, and social studies reported that the student had made strong strides as a reader in a number of areas (Parent Ex. G1 at p. 2). He cited the student’s progress on the QRI (Parent Ex. G1 at pp. 2-4) and noted that the student was using vital reading strategies to interpret the reading passages (Parent Ex. G1 at p. 4). The student's school vision teacher reported that, although the student still has trouble with Braille, she had become more proficient at using the BrailleNote in class for note taking and tracking assignments (Dist. Ex. 49). The student's teachers for adaptive physical education (Dist. Ex. 36) and orientation and mobility (Dist. Ex. 61) also reported gains. According to the Director of Special Education, although the student continued to struggle in some areas, at the time of the August 2, 2005 CSE there was a general feeling that the student was thriving (Tr. p. 174).
During the 2004-05 school year the record suggests the student continued to have difficulty mastering Braille contractions (Parent Exs. G2, G3). The student's difficulty reading Braille in 2004-05 appeared to be compounded by the fact that she was reluctant to work with her vision instructor when peers were present (Dist. Ex. 57 at pp. 2-3; Dist. Ex. 73 at p. 2) and was at times uncooperative with the staff attempting to provide her vision services (Parent Ex. G at p. 2; Parent Ex. G1 at p. 1; Parent Exs. G2, G3). In spite of this, the student was able to access the content of her courses and passed all of her academic classes in 2004-05 with an overall grade point average of 86 (Dist. Ex. 15), easily advancing to sixth grade. Based on these results it is reasonable to expect that the student was likely to continue to progress in the regular education curriculum if provided with similar supports and services during the 2005-06 school year, albeit with perhaps more individual attention in Braille skills.
The impartial hearing officer also based her finding of a denial of FAPE in part on the fact that many of the goals and objectives from the prior year's IEP were carried over into the 2005-06 IEP. Contrary to the impartial hearing officer's assumption, simply because a student has not achieved all of their IEP goals and objectives in a given school year does not necessarily equate to a per se denial of FAPE (see, e.g., Application of a Child with a Disability, Appeal No 01-051 [not a denial of FAPE where nature of disability required child to continue to work on same goals and objectives]; compare Application of a Child with a Disability, Appeal No. 06-014 [denial of FAPE where student's academic progress for several years steadily declined, yet CSE continued to use the same goals and objectives year to year]). In the instant case, respondent's daughter under both IEPs was receiving high marks in her academic courses, advancing from grade to grade, continuing to improve on the district's curriculum-based testing year to year, had mastered some of her IEP objectives, but needed to continue to work on her Braille objectives. The need to continue working on Braille objectives alone is not indicative of a denial of FAPE. Moreover, I note that in the instant case, petitioner had suggested revising the student's goals and objectives in Braille (see Dist. Ex. 12 at p. 9), but it was respondent who insisted that his daughter's Braille goals and objectives be carried over exactly from the previous school year (see Parent Ex. T at pp. 60-63; Tr. pp. 318, 320; see also Parent Ex. A at p. 3). Lastly, although the goals and objectives in Braille remained the same from the 2004-05 IEP, to help the student better attain her Braille goals and objectives in 2005-06 the district, as noted, adjusted the delivery of the student's vision services to provide more direct individual personalized Braille instruction to the student (see Tr. pp. 182, 184).
In short, I find that the 2005-06 IEP was substantively appropriate to meet the student's needs and was reasonably calculated to enable the student to receive educational benefit at the time it was formulated. The evidence demonstrates that the 2005-06 IEP was an appropriate continuation of an educational program that had been providing educational benefit. Her academic progress under prior IEPs, when considered together with the various individually tailored special education services, testing accommodations, and array of assistive technology devices that were offered to her in the 2005-06 IEP, amply demonstrates that she was offered a FAPE (see Rowley, 458 U.S. at 203 n. 25).
Despite this, I note that in the instant case the impartial hearing officer found that the district denied the student a FAPE because she found that the amount of progress the student was making under the district's program was not sufficient, relative to the student's cognitive abilities, to provide the student with a FAPE.5 Even assuming arguendo that evidence of the student's progress made subsequent to the CSE meeting which developed the IEP should be considered (see D.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 [2d Cir. 2006] ["This court, however, has not established whether, and to what extent, retrospective evidence of a student's progress-or the lack thereof-should be considered in determining the validity of an IEP in which the student is currently enrolled"] [remanded to determine the issue]), I disagree with the impartial hearing officer's conclusion and find that in this instance the record reveals that respondent's daughter was making sufficient progress under the district's program.
During the impartial hearing, the student was in the educational program recommended by the CSE in the 2005-06 IEP. For the first quarter of the 2005-06 school year the student received the following grades: ELA: 83, Spelling: 92, Social Studies: 82, Math: 89 and Science: 88 (Dist. Ex. 15a). The student's regular education ELA teacher reported that she assisted the student in the classroom by re-reading directions, making sure the student was on the correct page and helping the student individually (Tr. pp. 602-03). The student confirmed that her academic teachers helped her during and after class (Tr. pp. 1110, 1113, 1150-51, 1152-53, 1158). According to the ELA teacher, the student performed "pretty well" in ELA and social studies during 2005-06 (Tr. p. 614). She noted that the student had "fabulous" auditory skills, was passing her classes, participated in class, volunteered to read, and demonstrated good reading comprehension and understanding of the material in class (Tr. pp. 614-15; 618-19). The student's progress in Braille still remained slow in 2005-06; she was not reading at grade level (Tr. pp. 619, 713-14, 715), continued to demonstrate difficulty with spelling problems (Dist. Ex. 163 at p. 7; Tr. p. 736), and complained that she did not like to read because it was boring and made her tired (Tr. p. 1116); however, these areas of need were being directly addressed in pull-out individual vision services with a trained vision teacher, 300 minutes per week. During these sessions the student's vision instructor reported that she worked with the student on Braille contractions, constructing sentences (Tr. p. 662), Braille reading (Tr. pp. 665-666, 721-22, 724), Nemeth Code (Tr. p. 726), use of the abacus (Tr. pp. 667-68), use of assistive technology (Tr. p. 668), and organizational skills (Tr. pp. 669-70). Meanwhile the student was continuing to access the content of her courses in sixth grade, receiving solid passing grades in all of her general education classes (Dist Exs. 15a, 162; Tr. pp. 1044-45).
The student's scores on the QRI test also increased somewhat during the 2005-06 school year (see Dist. Exs. 157a, 172). In September 2005, the student scored in the slightly above average on the questions portion of the QRI but below her peers on the summary portion of the inventory (Dist. Ex. 157a; Tr. pp. 311-12). While the student's one minute sight vocabulary and fluency scores were more than two standard deviations below the mean (Tr. pp. 309-11), when given extended time the student's sight vocabulary and fluency scores improved relative to herself and her classmates (Dist. Ex. 157a).6 The student used a variety of strategies to break down words and correctly answer questions (Tr. pp. 467-69). On the March 2006 administration of the QRI, the student's question score (5.00) remained virtually at the class average (5.55), and her summary scores from September 2005 rose from 12 to 14 (class average 16 to 17) (Dist. Ex. 172), indicating that, although she may read slowly, she understands what she is reading, which is consistent with the testimony of district witnesses (Tr. pp. 276, 302-03, 385, 617-618, 755).
Under the Rowley standard, the district must offer a program which provides the child with meaningful access to an education with "sufficient educational benefit" (Rowley, 458 U.S. at 202), which constitutes "more than mere trivial advancement" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]; see Walczak, 142 F.3d at 130; see also M.S., 231 F.3d at 105). The IDEA does not require school districts to maximize the potential of each child with a disability (Rowley, 458 U.S. at 199), or provide the best possible program (see Walczak, 142 F.3d at 130), it simply requires school districts to provide access to specialized instruction and related services which are individually designed to provide educational benefit to the child (Rowley, 458 U.S. at 200-201). I find in this instance the district has done this. In the instant case respondent's daughter was able to, with the proper supports and services, despite her disability, be educated alongside her nondisabled peers, access the same regular education curriculum, achieve high marks and advance from grade to grade. In the instant case, the evidence taken as a whole reveals that the 2005-06 IEP was likely to produce progress, not regression, and the nature of the progress was more than mere trivial advancement. Accordingly, respondent has not met his burden of demonstrating that the IEP developed by its CSE for his daughter for the 2005-06 school year failed to provide her with a FAPE.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that petitioner failed to provide an appropriate program for respondent's daughter for the 2005-06 school year and remanded the matter to the CSE to develop a new program for 2005-06.
Albany, New York
June 23, 2006
PAUL F. KELLY
1 I note that the record in this case (consisting of over 172 district exhibits; over 158 parent exhibits; and over 1,280 pages of transcript testimony) is unduly cumbersome, containing many duplicate or irrelevant exhibits. I remind impartial hearing officers of their responsibilities pursuant to state regulations which require that, prior to the hearing, the impartial hearing officer, wherever practicable, "shall enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties" and that the impartial hearing officer "shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" (8 NYCRR 200.5[j][xii][b], [c]).
2 The "modified temporary license" that the teacher received in March 2005 stated that she was certified to serve as a teacher of the blind and visually impaired retroactively from September 1, 2004 through August 31, 2005 (Dist. Ex. 159).
3 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since most of the relevant underlying events in this appeal occurred subsequent to that date, all references to the IDEA used herein refer to the newly amended provisions of the IDEA, unless otherwise specified.
4 When a child is not in mainstream classes but is instead in self-contained special education classes, although test scores, grade advancement, and similar objective criteria can still be used as some evidence of academic progress, it becomes especially important to view a child's progress or lack of progress in light of the limitations imposed by the child's disability (compare Walczak, 142 F.3d at 130, 142 [failure to still not perform at grade level not in and of itself indicative of a denial of FAPE where child in self-contained special education classes is making progress commensurate with her abilities]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997] [failure to advance from grade to grade indicated a failure to provide an adequate FAPE where child in self-contained special education classes, despite average intelligence, regressed and failed to meet IEP objectives]).
5 I note that the impartial hearing officer admitted she could not point to any deficiency in either of the IEPs, which resulted in what she perceived as a lack of progress commensurate with the student's cognitive abilities (see IHO Decision, p. 16 ["The evidence presented is insufficient for me to reach any conclusions about specific defects in the IEPs or in the District-provided services or supports…that caused or continue to cause (the student)'s slow rate of academic progress"] [emphasis in original]).
6 Notably, on administrations of the QRI during both 2004-05 and 2005-06, the student performed within the average range on the question portion of the inventory, however on the sections that measure word recognition and fluency the student performed significantly below her peers (Dist. Exs. 157, 157a; Dist. Ex. 172). The student's performance in these areas improved when she was given extended time (Dist. Exs. 157a, 172). The school psychologist testified that there is a considerable gap between the average reading speeds of print and Braille readers (Tr. pp. 441, 447, 469, 476), and that Braille is much more complex and takes longer to process than sighted reading (Tr. p. 418, 448). Information from the American Printing House for the Blind, Inc. (APH) suggests that it takes 2 1/2 times longer to read Braille than print (Dist. Ex. 164 at p. 13, Dist. Ex. 164a at p. 1). This suggests that the student's consistent low scores on the fluency and sight vocabulary portions of the district's standardized test in comparison to her nondisabled peers may be in part due to the limitations of her disability, rather than any deficiency in petitioner's program (Application of a Child with a Disability, Appeal No. 03-101).