The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her requests that respondent pay for "intensive" intervention services for her daughter at the New York City Lindamood-Bell Learning Processes (Lindamood-Bell) and that respondent provide transportation for these services. Petitioner also appeals the impartial hearing officer's declination to award reimbursement for an independent educational evaluation (IEE). The appeal must be sustained in part.
At the time of the impartial hearing in May 2006, the child was 10 years old and attending fifth grade at Bronx Preparatory (Bronx Prep), a charter school in New York City (Tr. pp. 53-54, 59; Dist. Ex. 1 at p. 1). The child's eligibility for special education programs and services and classification as a student with a speech or language impairment is not in dispute at this hearing (see 8 NYCRR 200.1[zz]).
The record is sparse regarding the child's educational history. Petitioner testified that the child has had an individualized education program (IEP) since she was four or five years of age and has received speech therapy services since first grade while attending a public school (Tr. pp. 48-49). The record is unclear as to what specific special education services the child received in public school (see Tr. pp. 50-52). Petitioner described her daughter's progress as "slow" and that she has always been a year to a year and a half "behind" (Tr. p. 47). The public school the child attended only went through the fourth grade and after she completed fourth grade the child's mother enrolled her into Bronx Prep (Tr. pp. 58-59). During the 2005-06 school year, she received speech-language therapy two to three times per week, and special education teacher support services (SETSS) for 45-minute sessions five times per week in a separate location using the Lindamood-Bell program (Tr. pp. 46, 50-51, 70-72; see Dist. Ex. 1 at p. 11). In addition to the services contained in her IEP, the child received occasional tutoring sessions provided by her teacher (Tr. pp. 52-53, 70). Reportedly, the child exhibited difficulty processing information and was not functioning at grade level (Tr. pp. 52-53). The child's mother testified that the child's most recent fifth grade report card indicated that she had failed Math (Tr. pp. 53-54).
On December 20, 2005, respondent's Committee on Special Education (CSE) convened to review the child's educational program (Dist. Ex. 1). The child's mother was in attendance (Tr. p. 65). The resultant IEP contains December 2005 results administration of the Wechsler Individual Achievement Test-Second Edition (WIAT-II) (Dist. Ex. 1 at p. 4). The child achieved a reading decoding subtest score in the seventh percentile and a reading comprehension subtest score in the 61st percentile (id.). Her performance on the mathematics computation and problem solving subtests reportedly yielded scores at the 4.7 and 2.8 instructional level, respectively (id.). The December 2005 IEP stated the child's strengths were her reading comprehension skills and ability to use context, though her spelling skills and problem solving skills were delayed (id.). Her written language and expressive language skills were reportedly below grade level (id.). The CSE recommended that the child's instruction use multisensory approaches and it provided annual goals and short-term objectives in the areas of Math, Reading, Spelling, and Expressive/Receptive Language (Dist. Ex. 1 at pp. 4, 7-10).
The December 2005 CSE recommended that the child's program consist of general education with five days per week SETSS instruction in a group of eight and speech-language therapy three times per week in a group of three (Dist. Ex. 1 at pp. 1, 11, 13). Testing accommodations such as extended time, separate location and directions read/reread were also recommended (Dist. Ex. 1 at p. 13). The CSE determined that while by itself a general education program would not address the child's educational needs, a special class in a community school would be too restrictive for her at that time (Dist. Ex. 1 at p. 12). The child's mother testified that she informed the CSE that she believed her daughter needed more assistance and that the CSE provided her with a "P-3" letter, which she characterized as documentation that stated the child was eligible to receive extra services paid for by respondent (Tr. pp. 48, 65, 68). Despite petitioner's efforts, she was unable to obtain services via the P-3 authorization for the child (Tr. p. 48). The CSE reconvened on January 25, 2006 to change the child's promotional criteria (Tr. pp. 68-69; Dist. Ex. 1 at p. 2).
On January 17, 2006 petitioner obtained an evaluation of her daughter conducted by Lindamood-Bell (Tr. p. 18). The Peabody Picture Vocabulary Test (PPVT), Gray Oral Reading Test-Fourth Edition (GORT-4), Test of Problem Solving (TOPS) and the Slosson Oral Reading Test (SORT) were administered to the child, as were selected subtests of the Detroit Tests of Learning Aptitude-Second and Fourth Editions (DTLA-2, DTLA-4 respectively), Woodcock Reading Mastery Test (WRMT), Wide Range Achievement Test (WRAT) and Lindamood-Bell specific assessment materials (Tr. pp. 18-23). The child's "oral language processing" skills were assessed with five tests/subtests (Tr. p. 18; see Tr. pp. 19-20). On the PPVT, a measure of receptive vocabulary skills, the child achieved a score in the second percentile (Tr. p. 18). Administration of the DTLA-4 word opposites subtest, characterized in the record as a measurement expressive vocabulary skills, yielded a score below the first percentile and her score on the verbal absurdities subtest was equivalent to a mental age of 5.6 (Tr. p. 19). On the oral direction subtest of the DTLA-2, the child achieved a score in the first percentile (id.). The child's performance on the TOPS, which measures verbal problem solving skills, was below the third percentile (Tr. pp. 19-20).
The child achieved a score in the 19th percentile on the word attack subtest of the WRMT and a score in the 21st percentile on the SORT (Tr. p. 20). Administration of the GORT-4 yielded a rate subtest score in the 37th percentile, an accuracy subtest score in the 16th percentile, a fluency subtest score in the 25th percentile and a comprehension subtest score in the 37th percentile (Tr. p. 21).1 The child achieved a score in the 25th percentile on the WRAT spelling subtest and a score in the 70th percentile on the arithmetic subtest (Tr. p. 20). In addition, the child's score on the Lindamood Auditory Conceptualization Test was in the ninth percentile (Tr. p. 21). In testimony the clinic director of Lindamood-Bell concluded that the child's oral language comprehension skills were in the first to second percentile, and she was two to three years behind in her ability to sound out words, recognize words and spell words (Tr. p. 22). Lindamood-Bell staff recommended that the child receive 240 hours of Lindamood-Bell instruction (Tr. p. 23).
Petitioner's request for an impartial hearing dated February 28, 2006 asked that the child receive "intensive intervention services at Lindamood-Bell to address her speech/literacy delays; that respondent pay for said services and the evaluation conducted by Lindamood-Bell; and that respondent provide school bus transportation services to and from said services" (Pet. ¶ 19).2
The impartial hearing was held on May 3, 2006 (IHO Decision, p. 2). On June 1, 2006, the impartial hearing officer rendered her decision that the child was not entitled to individual Lindamood-Bell "tutoring" for four hours during the school day because it was not the least restrictive environment (LRE) and that level of tutoring would be impractical and disruptive to the child's routine (IHO Decision, pp. 4, 5). The impartial hearing officer ordered that "the District will pay for tutoring a (sic) one hour a day after school for five days at a rate of $75.00 per hour" (IHO Decision, p. 5).
On appeal petitioner requests the relief sought in the impartial hearing request. Petitioner alleges that the education and services provided by respondent in the "past six years" have proven inadequate and inappropriate and while not objecting or rejecting the services, objects to the adequacy and appropriateness of these services in meeting the needs of the child. Petitioner argues in essence, that the impartial hearing officer confused the "issues/terms/distinctions" of placement, services and evaluations,3 and violated her due process rights by precluding her from fully questioning a key witness and by denying petitioner the opportunity to call upon another key witness to testify. Petitioner disagrees with the impartial hearing officer's characterization of Lindamood-Bell as a school and petitioner's requested relief as a request for "tutoring". Petitioner also disagrees with the impartial hearing officer's conclusion that the Lindamood-Bell test results differed significantly from the evaluation scores reported on the child's IEP. Petitioner argues that the impartial hearing officer failed to understand that the services requested are for the purpose of closing the gap between the student's performance and ability. Petitioner further asserts that only petitioner presented a relevant witness to testify and that respondent's witness was neither familiar with the child or her district evaluation results.
A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)4 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (Frank G. v. Bd. of Educ., ___ F.3d ___, ___, 2006 WL 2077009, at * 13 [2d Cir. July 27, 2006]; see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 ; 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 written individualized education program (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).5 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 (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (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 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]).
An appropriate 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][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]). 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][xii]). 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]).
As a preliminary matter, I note that here the impartial hearing officer framed the instant dispute in terms of tuition reimbursement, but given the facts of this case, a tuition reimbursement analysis (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ) is not the most appropriate analysis for petitioner’s request for "intensive intervention service." The essence of petitioner's claim is that respondent did not offer appropriate special education services to the student for the past six years and that additional services at Lindamood-Bell are an appropriate compensatory remedy.
State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047).
I will first address petitioner's claim that the child was denied a FAPE. The decision of the impartial hearing officer does not determine whether or not the child was denied a FAPE for any of the years in question. The impartial hearing officer did not admit into the record three of petitioner's exhibits and two of respondent's exhibits, including the child's December 2005 social history report and psychoeducational evaluation report, as well as the January 2006 Lindamood-Bell evaluation report because the parties did not disclose the exhibits to each other five days prior to the hearing (Tr. pp. 5-11). State regulations provide that not less than five business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. An impartial hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party (8 NYCRR 200.5[j][xii]).
I note that although the child has been determined eligible for special education services as a student with a speech or language impairment, a speech-language evaluation report of the child was not introduced at the impartial hearing. Documentary evidence before me consists only of the December 2005 IEP and the child's mid-year report card from the 2004-05 school year, prior to her admission to Bronx Prep. There are no evaluation reports of the child in the record, which would have provided information about the child's speech-language needs, classroom skills/needs and cognitive ability. At the impartial hearing respondent's educational evaluator provided suggested program recommendations for the child based in part on the WIAT-II evaluation results contained in the child's IEP; however, she did not have the child's full educational evaluation report or any other report of the child in front of her while testifying at the impartial hearing, and was not familiar with the child or the WIAT-II (Tr. pp. 80-81, 88). Given the paucity of information in the record, petitioner failed to demonstrate that the December 2005 IEP was not reasonably calculated to provide the child with a FAPE.
Concerning the allegation of a denial of FAPE for the "past six" years preceding the impartial hearing, petitioner testified that the child has always "been behind" and that the child was never able to "catch up" when provided with the services recommended on her IEPs (Tr. p. 49). The record before me contains only the December 2005 IEP; therefore, I am unable to make a determination as to the validity of petitioner's claim regarding prior school years, including the portion of the 2005-06 school year preceding the December 20, 2005 IEP. I note also that the impartial hearing request was dated February 28, 2006, therefore, any claim petitioner had prior to February 28, 2004 was barred by the two-year statute of limitations.
I now turn to petitioner's request for intensive intervention services for the child provided by Lindamood-Bell. Testimony from the clinic director of Lindamood-Bell reveals that the center is open from 8:30 a.m. to 5:30 p.m. and "ideally" students attend Lindamood-Bell for four hours per day five days per week (Tr. pp. 23, 25). She stated the four hour per day schedule is for students who attend Lindamood-Bell during the summer (Tr. pp. 23-25). Although the four hour per day schedule can also occur during the school year, this would require arrangements with the school district (Tr. pp. 23-24). She stated that Lindamood-Bell also offers instruction two hours per day and students can attend after school (Tr. p. 24). At the time of the impartial hearing, however, the clinic director of Lindamood-Bell stated that it did not have the availability to provide services to the child in the afternoon (Tr. p. 25). Therefore, it appears that the child could not have received services provided by Lindamood-Bell outside the regular school day, as the impartial hearing officer determined (IHO Decision p. 4). The impartial hearing officer also made the determination that services at Lindamood-Bell would not be provided to the child in the LRE. As stated above, the insufficiency of the record precludes me from determining whether or not the student's special education needs required her to receive the level of "intensive" services recommended by Lindamood-Bell staff and requested by petitioner. Therefore, I must find that the record is inadequate to support the impartial hearing officer's determination that the services requested by petitioner would not be provided in the child's LRE.
As for petitioner's request for reimbursement for the January 17, 2006 evaluation conducted by Lindamood-Bell, federal and state regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5[g]; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027).
The impartial hearing officer did not make a finding regarding petitioner's request for reimbursement for the Lindamood-Bell evaluation of her daughter. The impartial hearing transcript revealed that the evaluation report was offered at the commencement of the impartial hearing; however, it was not made part of the record (Tr. p. 9). A review of the record reveals that respondent did not demonstrate that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. Based on the foregoing, I will order respondent to reimburse petitioner for the cost of the Lindamood–Bell evaluation upon proof of payment.
Petitioner alleges that the impartial hearing officer improperly prevented her from fully questioning a witness and allowing another witness to testify regarding the "feasibility" of providing the requested services within the framework of Bronx Prep's program. In the first instance, the impartial hearing officer did not allow additional testimony from the clinic director of Lindamood-Bell about other topics because the question before her regarded the child's evaluation and she testified she had no other information to provide (Tr. pp. 39-40). In the second instance, the impartial hearing officer denied petitioner's request to call a witness from Bronx Prep to testify that it would be "willing to collaborate with Lindamood-Bell" because she had the ability to order the school to send the child there if that was her determination (Tr. pp. 41-44). Regarding the second witness, I find the purpose of the testimony was to provide logistical information regarding how the child would obtain the Lindamood-Bell services in the context of her school day, not to support petitioner's contention that the child was denied a FAPE. In light of my determination that petitioner did not meet her burden in showing that respondent did not offer the child a FAPE, I find that testimony regarding the logistics of the Lindamood-Bell service provision unnecessary.
I am concerned that respondent's CSE authorized a P-3 letter for the child to obtain tutoring services; however, the record indicates that petitioner was unable to actualize its use. I will instruct the CSE to reconvene to determine the student's current needs, taking into consideration that services determined appropriate in the P-3 authorization letter were apparently not accessed since December 20, 2005. The impartial hearing officer ordered that respondent pay for tutoring for the child, "one hour a day after school for five days at a rate of $75.00 per hour" (IHO Decision, p. 5). Respondent does did not appeal this determination and to that extent the determination is final inasmuch as respondent has neither appealed nor cross-appealed from that part of the impartial hearing officer's decision, it is final and not subject to review (34 C.F.R. §300.510[a]; 8 NYCRR 200.5[j][v]; see also Application of a Child with a Disability, Appeal No. 06-008; Application of a Child with a Disability, Appeal No. 06-001; Application of a Child with a Disability, Appeal No. 05-070; Application the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 03-002; Application of a Child with a Disability, Appeal No. 03-024; Application of a Child with a Disability, Appeal No. 03-105; Application of a Child with a Disability, Appeal No. 02-097; Application of a Child with a Disability, Appeal No. 01-053). I find that the impartial hearing officer's order is unduly vague with regard to the timeframe respondent is obligated to provide payment for the child's tutoring services. To the extent that the impartial hearing officer's order lacks a date by which the child's tutoring services conclude, I will modify it to provide for a definitive expiration of the order.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it determined that the services requested by petitioner could not be provided consistent with LRE requirements;
IT IS FURTHER ORDERED that the impartial hearing officer's decision is hereby annulled to the extent it made no determination pertaining to petitioner's request for reimbursement for the Lindamood-Bell evaluation;
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of the Lindamood-Bell evaluation upon submission of proper proof of payment;
IT IS FURTHER ORDERED that within 30 days of receipt of this decision, unless the parties otherwise agree, the CSE shall reconvene to review existing evaluation data, identify what if any, additional data are needed, including a speech-language evaluation, and upon completion of the necessary evaluations recommend an appropriate program and placement for the child. In determining the child's current needs, the CSE shall also consider the time subsequent to the December 20, 2005 P-3 authorization that petitioner was unable to locate a service provider and did not receive services and;
IT IS FURTHER ORDERED that, unless the parties otherwise agree, the impartial hearing officer's award of tutoring services of one hour per day, five days a week shall run concurrently with the new IEP developed pursuant to this decision.
Dated: Albany, New
August 28, 2006 PAUL F. KELLY
STATE REVIEW OFFICER
1 In addition to the GORT-4, the clinic director of Lindamood-Bell testified that the child was administered "an old version" of the GORT but does not specify which version was used during the evaluation (Tr. pp. 20-21).
2 Petitioner's request for an impartial hearing dated February 28, 2006 is not contained in the hearing record or record on appeal.
3 Petitioner claims the impartial hearing officer failed to understand that Bronx Prep provided the child with SETSS using the Lindamood-Bell methodology and in citing the decision of the impartial hearing officer further alleges that she mischaracterized the program offered to the child in the December 2005 IEP (Pet. ¶¶ 9, 10). The impartial hearing officer found that the child was offered "a program with 8 students and 1 teacher," SETSS and speech-language therapy, and that the child's mother chose not to send the child to "an 8:1 program" but instead placed her in a charter school with 19 students and one teacher (see Tr. p. 78; IHO Decision pp. 3, 4). The recommended program and services including an indication of the class size are contained in a student's IEP (8 NYCRR 200.4[d][b][iv]). Class size is defined as the maximum number of students who can receive instruction together in a special class or resource room program and the number of teachers and supplementary school personnel assigned to the class (8 NYCRR 200.1[i]). Therefore, the 8:1 ratio contained on the child's IEP is not the general education class size ratio as purported by the impartial hearing officer but the ratio of students to teachers in the SETSS portion of the child's program. I agree with petitioner that the impartial hearing officer inaccurately described the child's current program in her decision, which suggests that the December 2005 IEP recommended a full-time 8:1 class. The record reflects that the child's program pursuant to the December 2005 IEP was regular education with daily SETSS in a separate location in a ratio of 8:1; services the child did receive (Tr. pp. 70; Dist. Ex. 1 at pp. 1, 11).