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

No. 06-049


Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Yonkers


Skyer, Castro, Foley & Gersten, attorney for petitioners, Jesse Cole Foley, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, attorney for respondent, Ana I. Gonzalez, Esq., of counsel


            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Winston Preparatory School (Winston) for the 2005-06 school year.  The appeal must be dismissed.

            Petitioners' son was 16 years old and in the eleventh grade at Winston at the commencement of the impartial hearing on January 19, 2006 (see Tr. pp. 161, 206).  Winston has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).

The student has been diagnosed with an attention deficit hyperactivity disorder (ADHD) for which various medications have been prescribed (Parent Exs. J at p. 1; K at p. 1; F at pp. 1, 2; G at pp. 2, 3; M at p. 1; Dist. Exs. 2; 5 at p. 4).  Cognitive test results indicate that the student's intellectual ability is in the average range (Parent Exs. D at p. 2; F at p. 2; I at p. 1; J at p. 2), with relative strength in visual processing and relative weaknesses in short-term memory and cognitive efficiency (Parent Ex. J at p. 5).  A central auditory processing evaluation conducted in March 2002 identified deficits in tolerance fading memory, which results in difficulty blocking out background noise and attending to appropriate stimuli, and auditory decoding, which affects processing of auditory input and recall of information (Parent Ex. P at pp. 4-5).  Various evaluation reports and progress reports note that the student's distractibility and slow processing peed affect his ability to complete test items and school assignments (Parent Exs. D; F at p. 2; J at p. 5; M at p. 1; Y at p. 5).  The student's eligibility for special education programs and services as a student with an other health impairment (OHI) is not in dispute in this appeal (Dist. Ex. 1 at pp. 1, 5; see 8 NYCRR 200.1[zz][10]).

The student attended non-public schools from first through ninth grades (Parent Exs. B at p. 2; D; M at p. 1; H at p. 4; L; M at p. 1; Y at p. 4; Dist. Ex. 5 at p. 4; 44Tr. pp. 178, 184).  At petitioners' request, respondent's CSE reviewed the student's eligibility for special education programs and services in July 1997 and in February 2000 and determined that the student was not eligible for classification as a student with a disability (Parent Exs. B at p. 3; A at pp. 1, 2).  In July 2002, respondent's Committee on Special Education (CSE) classified petitioners' son as a student with an OHI and recommended that, for eighth grade during the 2002-03 school year, the student receive resource room services to address concerns relating to "poor decoding and sight word deficits, short-term memory problems, retrieval, organizational, and note talking skills" and also be provided various test accommodations and classroom modifications appropriate to address difficulties with attention and task completion  (Parent Ex. G at pp. 2-3).  For the 2002-03 school year, the student was enrolled in a non-public school (Parent Ex. F at pp. 1, 2).  During that school year, the student also received resource room services at respondent's Mark Twin Middle School (Parent Ex. F at pp. 1, 2).  During the second half of the 2002-03 school year, the student's resource room teacher reported that the student's progress was impeded by the limited and inconsistent provision of accommodations by his teachers at the non-public school and also noted that the student seldom received positive feedback at school, which had a negative impact on his confidence and self-esteem (see Dist. Ex. 2; see also Tr. pp. 75, 76, 77).  During the 2003-04 school year, petitioners declined the CSE's offer of resource room services and placed their son in the ninth grade at another non-public school where he reportedly received instruction in that school's inclusion program for "academically challenged students" and had difficulty being successful (Parent Exs. H at p. 1; L; Tr. pp. 184).

The CSE convened on April 23, 2004 to prepare a 2004-05 individualized education program (IEP) for the student's tenth grade year and recommended resource room services as well as various testing accommodations (Parent Ex. H at pp. 1-2).  Comments on the IEP developed on that date note that the student was encouraged to attend resource room for academic support at respondent's Gorton High School (Gorton), if he remained at the non-public school he was then attending (Parent Ex. H at p. 4).  The CSE reconvened at petitioners' request on July 15, 2004 to review the student's program (Parent Ex. Y at pp. 1, 4).  Comments on the IEP indicate that the student had failed three subjects in ninth grade and would not be returning to the same non-public school for the 2004-05 school year (Parent Ex Y at p. 4).  As a result of its July 2004 review, the CSE recommended that the student be placed in an inclusion program for the 2004-05 school year (Parent Ex. Y at pp. 1, 4).  Petitioners did not agree and believed that their son should be assigned to a self-contained class (Tr. p. 193).  Petitioners enrolled their son at Winston at the beginning of the 2004-05 school year (Parent Ex. M at pp. 1, 3; Dist. Ex. 1 at p. 4).

Respondent's CSE met on April 12, 2005 for the student's annual review to prepare an IEP for the 2005-06 school year, when the student would be in the 11th grade (Dist. Ex. 1 at pp. 1, 5).  The participants included a school psychologist, a regular education teacher from respondent's Lincoln High School, the student's "Focus" class teacher at Winston (by telephone), an additional parent member, and the student's mother (Dist. Ex. 1 at p. 4; Tr. pp. 18, 24-25).  The CSE considered the student's most current evaluations (Tr. pp. 25-26).  Based on those reports and other information, the CSE determined to continue the student's classification as a student with an OHI, recommended that he be placed in an inclusion program at one of respondent's high schools, and participate in a regular physical education program (Dist. Ex. 1 at pp. 1, 2, 5, 6).  The IEP developed by the CSE in April 2005 included annual goals and short-term objectives and/or benchmarks in study skills, reading, written language skills, and mathematics as well as recommendations for various supplementary aides and services and program modifications and supports including additional time to complete tasks, copies of class notes, homework sheets, preferential seating, refocusing and redirection, graphic organizers, and the use of a calculator (see Dist. Ex. 1 at pp. 1-2, 5-6).  Recommended testing accommodations included the use of a calculator, extended time (1.5) for tests, administration in small groups, directions explained, and a room with minimal distractions (Dist. Ex. 1 at p. 2).

By letter dated April 19, 2005, respondent's chairperson formally notified petitioners of its recommendations for their son, including placement at Gorton, and enclosed a consent form for petitioners to sign and return (see Parent Ex. N; Tr. p. 197).  The student's mother returned the form, without giving consent, noting that she did "not agree with the CSE's placement" and that her attorney would "be in touch" (Parent Ex. N at p. 2; Tr. pp. 197-99).  On July 21, 2005, petitioners sent a letter to respondent's CSE rejecting the placement offered by the CSE and indicating that their counsel would contact respondent (Tr. pp. 199-200; Parent Ex. O).

Petitioners' attorneys wrote to respondent's CSE chairperson by letter dated August 22, 2005 (see Parent Ex. P).  In that letter, petitioners' attorneys maintained that respondent had "failed to offer [the student] a free and appropriate public education on procedural as well as substantive bases" and requested an impartial hearing (Parent Ex. P at p. 1).  That letter also advised respondent's CSE that petitioners had placed their son at Winston and were seeking tuition reimbursement for the placement (id.).  Among other things, petitioners asserted that the IEP annual goals and short-term objectives were "generic and vague," that the CSE did not recommend services to address the student's socioemotional needs," and that the recommended program did not provide the student "with a suitable and functional peer group for instructional purposes" (Parent Ex. P at pp. 2-3).

The impartial hearing was held on January 19, 2006 and on January 24, 2006.  The impartial hearing officer rendered a decision on April 19, 2006 (IHO Decision, p. 24).  The impartial hearing officer found that respondent offered the student a FAPE for the 2005-06 school year.  Among other things, the impartial hearing officer concluded that "the goals and objectives set forth in the IEP were specific, measurable, and appropriate for the student;" that the IEP recommended the required support services, adequately identified the student's present levels of performance and individual needs (IHO Decision, pp. 18, 19); and that there was "nothing in the record to support the parents' contention that the CSE was not properly constituted" (IHO Decision, p. 19).  The impartial hearing officer concluded that the student would have been properly grouped by similarity of individual needs in the recommended class (IHO Decision, p. 20).  Additionally, the impartial hearing officer found that the record did not support the placement of the student at Winston, a school with no mainstreaming opportunities (Tr. p. 131), and concluded that petitioners' unilateral placement was therefore not appropriate (IHO Decision, p. 23).  Finally, the impartial hearing officer did not agree with petitioners that they had cooperated fully with the CSE.  She found that petitioners "did not ask to visit the recommended class until long after the commencement of the school year, when the student was already in attendance at Winston and the parents had already rejected the program" (IHO Decision, pp. 20-21).  The impartial hearing officer also concluded that "[t]he fact that the mother had visited the recommended school years before (see Tr. pp. 198-99, 204-206; see also Parent Exs. Q, R) was not a sufficient basis for her to make a good faith, informed decision as to whether the class was appropriate for the student for the eleventh grade" (IHO Decision, pp. 20-21).

Petitioners appeal on a number of grounds including that the inclusion class at Gorton did not meet the student's needs, that it would not provide the student with a free appropriate public education (FAPE), and that the student was not suitably grouped for instructional purposes in that class with students of similar individual needs.  They also contend that the student's 2005-06 IEP inadequately describes the student's needs in the areas of mathematics, written expression, reading comprehension, and in the integration and synthesis of materials and that it also does not adequately set forth the student's present levels of performance in those areas.  Petitioners further contend that the IEP made no reference to anxiety on the part of the student, did not include any goals and objectives relating to that, and did not recommend any related services to address anxiety.  Petitioners further assert that the math goals contain no criteria by which the relevant assessments and observations relative to the goals and objectives/benchmarks will be measured, and that its math and other goals and objectives/benchmarks are not sufficiently specific to guide instruction, evaluate the student's progress, or gauge the need for the continuation or revision of the objectives.  Petitioners also contend that the impartial hearing officer erred both in finding that Winston was not appropriate for the student based on least restrictive environment (LRE) considerations and in finding that equitable considerations did not favor tuition reimbursement.

A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 – 1487)1 is to ensure that students with disabilities have available to them a FAPE3 (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S.Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, at 370-71).  Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id.).

            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 the board of education's 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]).  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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  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 [2005]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal and state regulations require 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]; 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

            The record does not support petitioners' contention that the April 12, 2005 IEP recommended by respondent's CSE was inadequate.  When the IEP was developed, the CSE reviewed the following current documents: an April 23, 2004 teacher progress summary, an October 30, 2003 physical examination report, a June 26, 2004 psychological evaluation report, June 28, 2004 school reports, a June 26, 2004 social history, a March 23, 2005 classroom observation, an April 5, 2005 educational evaluation report, and school reports from April 11, 2005 (Dist. Ex. 1 at p. 5).  The record contains only one of these documents, the report from the April 5, 2005 educational evaluation of the student (Parent Ex. M).  This report contains the results of administration of the Woodcock-Johnson-III Tests of Achievement (Woodcock-Johnson-III), which includes standard, grade equivalent and percentile scores for all subtests (Parent Ex. M at p. 4).  Standardized test scores from a June 26, 2004 administration of the Wechsler Individual Achievement Test- II were also included on the IEP, as were the results of a June 26, 2004 administration of the Stanford Binet Intelligence Scale: Fifth Edition (id.).

The IEP's description of the student's difficulty with math calculation and application of concepts is consistent with the evaluator's description of the student's performance on the math subtests of the Woodcock-Johnson-III (Parent Ex. M at p. 2), and the objectives for the math goals on the IEP address both the student's identified lack of automaticity in computation as well as his need to learn to solve multi-step math problems beyond the simple two-step problems that the evaluator reported petitioner's son was able to perform successfully (Dist. Ex. 1 at p. 6).  Progress on objectives was to be measured by recorded observations, which would have allowed the student's special education teacher to monitor and document how the student approached each step of a problem (Parent Ex. M at p. 2).  Additionally, the evaluator's recommendation that the student be allowed to use a calculator is reflected in the IEP's recommendations for classroom modifications and test accommodations (Dist. Ex. 1 at pp. 1-2).

The April 5, 2005 educational evaluation report describes the student's difficulties with reading decoding and comprehension, noting that he was sometimes able to self–correct his decoding of multisyllable words when allowed sufficient time (Parent Ex. M at p. 2).  The IEP addresses the student's need for additional time by reflecting the evaluator's recommendation that he be allowed extended time for assignments and tests (Parent Ex. M at p. 3, Dist. Ex. 1 at pp. 1-2).

To address the student's deficits in reading comprehension, the IEP contains a reading comprehension goal with objectives which reflect his need to comprehend content area materials as well as his need to develop compensatory strategies which will allow him to interpret illustrations, charts and graphs in order to increase his comprehension, leading to independent reading of classroom assignments (Dist. Ex. 1 at pp. 5-6).  The objectives for teaching compensatory strategies reflect comments in the April 2005 educational evaluation indicating that the student's difficulties with reading comprehension arise from his difficulty with semantic and syntactic clues (Parent Ex. M at p. 2).

There is no standardized test score for writing on the student's IEP.  However, meeting notes indicate that the CSE reviewed recent school reports that stated that the student was able to use graphic organizers to organize a main idea and had difficulty with self-editing strategies including spelling and grammar checks and revision (Dist. Ex. M at p. 5).  These needs are addressed on the IEP through provision of use of graphic organizers as a classroom modification, noting that they would be used to help the student organize his thoughts to facilitate writing and through a writing goal with objectives addressing grammar, proof reading and revision, to be evaluated through portfolio review by the special education teacher (Dist Ex. 1 at pp. 2, 6).

Various evaluation and progress reports in the record which were prepared throughout the student's education history indicate that the student's primary difficulties are related to his attentional deficits, which reflect both his ability to remain focused as well as his ability to organize and complete academic assignments.  This primary area of need is addressed thoroughly in the April 2005 IEP thoroughly.  Extensive classroom and program modifications both describe the modifications to be implemented and, in most cases, describe the student's needs that require the modification (Dist. Ex. 1 at p. 1).  For example, the CSE recommended highlighting of key words and indicated that this was recommended to help the student understand what is being asked and to help him locate information (id.).  Copies of class notes were recommended to address his difficulty processing and copying simultaneously, a calculator was recommended because the student's multiplication and division facts were not yet automatic, and homework sheets were recommended to assist the student in planning for long-term assignments and tests (id.). 

The IEP goal to address the student's need to improve organizational and study skills and develop learning strategies (Dist. Ex. 1 at p. 5) contains objectives which are particularly suited to the needs of the student as identified in testimony by his focus teacher at Winston (Tr. p. 143) as well as by the April 2005 educational evaluation report, which notes that the student needs "constant encouragement to complete tasks" and that school reports indicated frequent concerns regarding incomplete and missing assignments (Parent Ex. M at p. 1).  The five objectives for this goal address organizing school assignments, demonstrating understanding of content area vocabulary, using study skills techniques such as flash cards and study guides, use of strategies such as categorization and associations to make connections between similar information from content area materials and use of various test-taking strategies such as saving difficult items until last and systematically narrowing choices (Dist. Ex. 1 at p. 5).  Progress was to be assessed at the end of each marking period through observation check sheets and structured interviews and the percentage of mastery expected on the objectives was set at either 85 or 90 percent, depending upon the level of difficulty of the objective (id.).

In the Petition (¶¶ 25-44), petitioner lists numerous alleged failures of the IEP to adequately describe the student.  I do not find any of these assertions to be persuasive.  The IEP contains standard scores of subtests and cluster standard scores from the Woodcock-Johnson-III Test administered on April 5, 2005, subtest and full scale scores of the Stanford-Binet Intelligence Scale: Fifth Edition administered on June 26, 2004 and standard scores of subtests of the Wechsler Individual Achievement Test-II administered on June 26, 2004.  In addition to these scores, the IEP contains narrative statements that supplement these scores and elaborate on the student's needs.  For example, the IEP notes that, in math, the student's "multiplication and division facts are not on an automatic level yet" and that he was learning "probability and statistics," but "demonstrated off-task behavior" during instruction in these subjects and also that he requires a calculator to assist with calculation.  In written language, the student's standard scores for spelling are supplemented by descriptions of his difficulty copying and processing information, for which a copy of class notes was to be provided, his ability to use graphic organizers that helps "organize his thoughts and facilitates paragraph and essay writing" and his "difficulty with self-editing strategies and supporting details such as, reading out loud, spelling and grammar checks, synonym building and rewriting" and noted that the student was learning to "draft and adjust his work."  The IEP contains a number of specific references to the student's difficulties with attention and organization, describing his delay in attention as "significant," providing an example of a situation in his math lessons on probability and statistics in which the student was noted to lose focus and including specific descriptions of strategies which are effective for the student, including highlighting key words to aid understanding, preferential seating to reduce distractions, and refocusing and redirection.

Based upon my review of the April 2005 IEP, I concur with the IHO's determination that the IEP identified and described the student's current performance levels in a manner sufficient to "give the student's service providers a clear understanding of the student's present levels of performance and individual needs" (IHO Decision, p. 19) and included goals and objectives that were "specific, measurable and appropriate for the student" (IHO Decision, p. 18).

I will now address petitioners' concern that the proposed IEP was inadequate because it did not mention the student's "anxiety."  Although there are references to the student's anxiety in the record, these references are not recent, do not include at any time a formal diagnosis of anxiety and do not appear to reflect either the student's current status or a level of anxiety sufficient to have required inclusion on an IEP at the time the IEP was formulated.  Projective testing conducted during a private psychological evaluation in March 2002 identified frustration and distress, but did not yield markers or indicators for anxiety (Parent Ex. D at p. 4).  An October 2002 psychological update conducted by respondent notes that projective data suggested feelings of inadequacy and insecurity regarding academics and described anxiety as of "moderate concern" (Parent Ex. F at p. 2).  In an undated 2002-03 status report from the student's resource room teacher, there is reference to the student's poor performance on tests, which the resource room teacher attributed to "anxiety and time constraints" (Dist. Ex. 2).  In testimony, this teacher opined that the student's anxiety at that time was due to his lack of success at the parochial school he attended in 2002-03 and not to his disability, and, when asked if the student required counseling, indicated that the student would have been successful during that school year if the parochial school had implemented the accommodations recommended in the student's 2002-03 IEP (Tr. pp. 78, 82-83).  There are no references to anxiety in any document in the record from the 2003-04 or 2004-05 school years, and the student's mother did not make any mention of her son's anxiety in testimony.  I concur with the opinion voiced by the resource room teacher who, as petitioner noted, was "the only School District witness who ever met [the student]" (Pet. ¶ 14), that the student's anxiety appears to be related to his academic performance, and I conclude that the extensive supports provided by the April 2005 IEP would have addressed any anxiety he may have exhibited in an inclusion setting by addressing the academic causes of the anxiety.

Further, contrary to petitioners' claim, the record does not show that the inclusion class that respondent's CSE recommended for their son did not meet the student's needs and that it would not provide him with a FAPE.  Petitioners argue that the student had participated in an inclusion program at the non-public school which he had attended during the 2003-04 school year and had failed three of his courses, which petitioners assert supports their claim that an inclusion program would not provide sufficient support for the student.  I have reviewed the record carefully.  Petitioners have not shown that the inclusion program at the non-public school was similar to the inclusion program at Gorton recommended by the CSE for the 2005-06 school year.  Moreover, the student's resource room teacher during the 2003-04 school year raised questions regarding the extent to which that non-public school had implemented all of the accommodations and modifications on the student's IEP for that school year (see Tr. pp. 73-75).  Petitioners also point to testimony of that resource room teacher that she "most likely" would have recommended that the student attend Saunders High School, that had a vocational, technical program offering more time for the student to explore his interests and not any of respondent's other high schools (see Tr. pp. 89-93).  With respect to this, however, the resource room teacher's testimony did not address the appropriateness of the recommended "inclusion class" program at Gorton.  Further, that teacher's testimony was based on her understanding of the focus of the different high schools' "magnet" programs during the 2003-04 and not the current school year (see Tr. pp. 91, 92).  In this regard, that teacher specifically testified that she had not seen the student "in three years so I don't know where he's at now, so I can't recommend for that" (Tr. p. 93).  The Gorton inclusion class was described as a regular high school general education class with a collaborative teaching model generally consisting of two teachers in the classroom (Tr. pp. 36, 37, 41-42, 53).  The Gorton inclusion class offered mainstreaming opportunity whereas the Winston program did not (Tr. pp. 36, 37, 131), therefore, between the two offered placements, Gorton was the less restrictive placement.  Moreover, the record does not demonstrate that petitioner's son would not have been suitably grouped with students for instructional purposes (Tr. p. 54).

Based upon my review of the record, I find that the record demonstrates that the April 12, 2005 IEP developed for the 2005-06 school year was reasonably calculated to enable the student to receive educational benefits and offered the student a FAPE.  I have considered petitioners' other contentions with respect to the adequacy of the IEP and the program recommended by respondent's CSE and find them to be without merit.

            Having determined that the record shows that respondent's son was offered a FAPE for the 2005-06 school year, the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]) and I need not reach the issue of the appropriateness of the unilateral placement of the student at Winston and whether equitable considerations support petitioners' request for an award of tuition reimbursement.



Dated:                    Albany, New York                                                                    __________________________

                                July 24, 2006                                                                                    PAUL F. KELLY
                                                                                                                                  STATE REVIEW OFFICER


1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute, as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply.  The citations to the New York State regulations are to those then in effect at the time of the April 12, 2005 CSE meeting.


2 The term "free appropriate public education" means special education and related services that--

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) 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); see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].