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

No. 06-071 

 

 

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Mamaroneck Union Free School District 

 

 

Appearances:
Marsh Menken & Weingarden, PLLC, attorney for petitioners, James R. Marsh, Esq., of counsel

Shaw & Perelson, LLP, attorney for respondent, Lisa S. Rusk, Esq., of counsel

 DECISION

 Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Windward School (Windward) for the 2003-04, 2004-05, and 2005-06 school years.1   Respondent cross-appeals from that part of the impartial hearing officer's decision which found that equitable considerations supported petitioners' claim for tuition reimbursement for the 2004-05 school year.  The appeal must be dismissed.  The cross-appeal must be dismissed.

 

At the commencement of the impartial hearing on November 9, 2005, the student was 11 years old (Dist. Ex. 10) and attending sixth grade at Windward (Tr. p. 10; Parent Ex. 18), a non-public school for children with language based learning disabilities (Tr. pp. 1023-24).  The Commissioner of Education has not approved Windward as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  In addition to demonstrating deficits in the areas of math calculation and concepts, reading comprehension, and written expression, the student has exhibited anxiety (Dist. Ex. 10 at pp. 2, 3).  The student's eligibility for special education as a student with a learning disability (8 NYCRR 200.1[zz][6]) is not in dispute in this appeal (Tr. pp. 18-19; Dist. Ex. 4 at p. 1).

 

 Before reaching the merits of petitioners' appeal, I will address two procedural issues. Petitioners' first request consideration of the student's academic testing results from Windward released in June 2006.  These testing results were unavailable at the time of the impartial hearing, and are attached to the petition.  Respondent opposes consideration of the additional evidence annexed to the petition because it relates to the appropriateness of 2005-06 school year services which were not at issue before the impartial hearing officer.  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. 05-001; Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020. The document is not necessary for my review because it includes information that was either already part of the record or that pertains to the 2005-06 school year, which, due to the framing of claims by petitioners, was not an issue before the impartial hearing officer; therefore, I will not accept petitioners' document summarizing the student's academic test scores released by Windward in June 2006 (Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068).

 

 Petitioners also request leave to file a late appeal.  A petition for review to a State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  A petition for review must be served upon a school district within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the period (id.).  A State Review Officer, in his or her sole discretion, may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The reasons for the failure to timely seek review must be set forth in the petition (id.).

 

 The impartial hearing officer's decision was dated May 31, 2006 and was mailed to the parties.  Petitioners served the notice with petition and petition for review on respondent on July 12, 2006.  Under the applicable provisions of section 279.2(b) of the Commissioner's regulations, petitioners did not timely serve these documents upon respondent.  The petition for review should have been served on July 10, 2006.  In their petition for review, petitioners request that the delay in service of the notice of petition and petition for review be excused based on the small size of counsel's firm and office caseload, staff illnesses, and scheduling concerns involving vacations and the Fourth of July holiday.  I am not persuaded that the reasons for delay set forth by petitioner's amount to good cause to excuse the untimely service of the petition for review.  The petition for review is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 05-098; Application of a Child with a Disability, Appeal No. 05-048; Application of a Child with a Disability, Appeal No. 04-103.  Upon the facts before me, I find that the May 31, 2006 decision is the final determination of the issues from which petitioners seek review, and that such decision on those issues became final in the absence of a timely appeal (20 U.S.C. 1415[i][1][A][2004]; 34 C.F.R. 300.510[a]; 8 NYCRR 200.5[j][5][v]; Application of a Child with a Disability, Appeal No. 05-078; Application of a Child with a Disability, Appeal No. 05-022).

 

 Despite dismissing the petition as untimely, I have reviewed the merits of petitioners' appeal and, as set forth below, I concur with the impartial hearing officer's determinations that the record demonstrates that respondent properly implemented the individualized education program (IEP) its Committee on Special Education (CSE) developed for the student's 2003-04 school year, and that respondent offered an educational program which was reasonably calculated to confer educational benefits to petitioners' daughter for the 2004-05 school year, and therefore, neither tuition reimbursement nor compensatory education are warranted.

 

 Petitioners' daughter began preschool at the age of two, three mornings per week, without significant separation difficulties (Dist. Ex. 20 at p. 2).  She spent two more years in preschool, attending full time (id.).  At age four, there were no expressed concerns with developing cognitive, language, or social skills (id.).  The student attended a private day school for kindergarten and first grade (Tr. pp. 612, 615).  She encountered difficulties with the academic program at the private school she attended in kindergarten and first grade, which her mother attributed to the pace of the program causing her daughter to become overwhelmed (Tr. p. 616).  In March 2000, the student was evaluated by a private psychologist due to petitioners' concerns regarding her academic progress (Tr. p. 609; Dist. Ex. 20 at p. 2).  In the resulting undated neuropsychological evaluation report, the private psychologist stated that the student had deficits in the areas of verbal recall, spatial perception, and organization (Dist. Ex. 20 at p. 15).  Recommendations included the completion of neurological and occupational therapy evaluations, in addition to the provision of language therapy (Dist. Ex. 20 at p. 16).  Private speech therapy services were attempted during the student's kindergarten year, but she resisted going to the sessions and the services were discontinued (Tr. pp. 613-14).

 

Petitioners enrolled their daughter at respondent's Murray Avenue Elementary School (Murray Avenue) for second grade and requested that she be evaluated (Tr. pp. 619-20).  The student's mother testified that her daughter was classified as "speech and language impaired" during her second grade year (Tr. p. 621).  The student received special education and related services at Murray Avenue during her second, third, and fourth grade years.  During those years, petitioners supplemented their daughter's special education services with the services of a private tutor (Tr. pp. 625-26).

 

Respondent's CSE convened on April 10, 2003 for the student's annual review.  The 2003-04 IEP developed as the result of the April 10, 2003 meeting noted that the student had difficulty with listening comprehension and was performing below age level in expressive language, but that her rate of progress was slow but steady (Dist. Ex. 10 at p. 2).  The April 10, 2003 CSE reviewed evaluation reports which indicated that the student's cognitive functioning was in the average range and that the student's subtest scores on the Woodcock-Johnson III Tests of Achievement, administered on April 4, 2003, were in the average range (Dist. Ex. 10 at pp. 2-3).  The April 10, 2003 CSE meeting notes indicate that the student's language weakness and her anxiety level were discussed (Dist. Ex. 10 at p. 3).  The April 10, 2003 CSE meeting notes also indicate that petitioners' daughter was beginning to employ strategies that she had been taught, and that she had shown progress in reading, writing and math (id.).

 

The April 10, 2003 CSE recommended that the student continue to be classified as a student with a speech-language impairment (Dist. Ex. 10 at p. 1).  For the 2003-04 school year, the April 10, 2003 CSE recommended the student's placement in a regular education class with resource room services to be provided three hours a week, in a group of up to five children, and speech-language therapy two times per week, in a small group (id.).  The student was also to be provided indirect psychological consultation services once per month for one hour (id.).  The April 10, 2003 CSE recommended that the student receive classroom modifications, including the reteaching of materials and use of a word processor, as well as various testing accommodations (id.).  The IEP includes goals and objectives to address reading comprehension and mechanics, math concepts, problem solving, and multistep problems, as well as speech-language goals to address deficits in expressive and receptive language (Dist. Ex.10 at pp. 3-4).

 

A private psychological evaluation was performed in July and August 2003, when the student was nine years old and had completed third grade (Dist. Ex. 11 at p. 1). The private psychologist's evaluation report (private psychological report) noted that petitioners described their child as conscientious and hard working, but stated that she did not feel successful academically and often refused to read by herself (id.).  The private psychological report also noted that petitioners believed that their daughter's academic difficulties had become the source of emotional distress and low self-esteem.  Results of the Conners' Parent Rating Scale and the Brown Attention-Deficit Disorder Scales completed by petitioners indicated no significant difficulties for the student (Dist. Ex. 11 at pp. 1-2).

 

The private psychological report indicated that the student was clearly not pleased to be evaluated and required encouragement to begin the evaluation (Dist. Ex. 11 at p. 2).  She also insisted on her mother's presence for most of the sessions (id.).  On the Wechsler Intelligence Scale for Children-III (WISC-III), the student obtained a verbal IQ score of 115 and a performance IQ score of 115/116 (id.).  Subtest scores identified relative weaknesses in working memory and impulsivity, in addition to continuing difficulty with expressive language (Dist. Ex. 11 at p. 3).  Administration of the Wechsler Individual Achievement Test-II (WIAT-II) yielded standard scores of 89 in word reading, 92 in spelling, 84 in pseudoword decoding, 96 in math reasoning, 89 in numerical operations, 103 in listening comprehension, 114 in oral expression and 94 in written expression (Dist. Ex. 11 at p. 4).  The private psychologist opined that these and other tests confirmed the presence of a language based learning disability and that petitioner's daughter required a program of intensive remedial intervention (Dist. Ex. 11 at p. 7).  For the development of the student's academic skills and her general happiness, he recommended a school setting that specialized in the education of children with disabilities, such as Windward (id.).

 

At petitioners' request, the student's instructional team convened in December 2003 to review the results of the private psychological report (Tr. pp. 26, 229, 285-87, 354).  After review of the private psychological report, members of the team did not recommend that the CSE reconvene, as the team members believed that the needs identified by the private evaluator were already being addressed by the student's IEP (Tr. pp. 287, 354-55, 489).

 

In a report developed on May 9, 2004 for the 2004-05 CSE, respondent's speech-language therapist indicated that the student demonstrated a significant working memory deficit and retrieval weakness that affected her verbal communication (Dist. Ex. 12 at p. 1).  Though the student functioned in the average range in many areas of language, she could become "overloaded" linguistically when oral directions increased in length and complexity (id.).

 

On the New York Statewide Testing Program (NYSTP) for fourth grade students administered on February 4, 2004, the student's English Language Arts (ELA) score of 630 was in the upper portion of level 2 of a four level test scoring rubric (Dist. Ex. 16).  On the May 12, 2004 administration of the NYSTP for fourth grade students, the student's mathematics score was 658, which was in the middle of level 3 of a four level test scoring rubric (Dist. Ex. 15).

 

Respondent's CSE convened on June 10, 2004 for the student's annual review to develop her IEP for the 2004-05 school year and recommended her placement in a general education program at Murray Avenue with resource room and related services (Dist. Ex. 9).  Petitioners participated in the meeting.  Resource room services were recommended for 45 minutes per day in a group no larger than five children, and for 15 minutes per day on a one-to-one basis (Dist. Ex. 9 at p. 1).  The June 10, 2004 CSE also recommended that the student receive speech and language services one time per week in a small group and one time per week individually, in addition to counseling one time per week (Dist. Ex. 9 at p. 1).  At the June 10, 2004 CSE meeting, the student's classroom teacher indicated that petitioners' daughter was still behind in reading, but was making progress in both decoding and comprehension (Dist. Ex. 9 at p. 4).  Writing was still very difficult for the student (id.).  The language of math also remained very difficult for her, although her basic skills were improving (id.).  The student had increased ability to rebound from frustrating experiences and was now able to express her feelings (id.).  Her cognitive functioning was noted to be within the high average range, with variable skills from the average to superior ranges.

 

By letter dated August 30, 2004, petitioners informed respondent that the IEP proposed by its CSE for the 2004-05 school did not appropriately meet their daughter's educational needs and that they would be seeking reimbursement for expenses related to obtaining necessary and appropriate educational services which met her minimum educational needs (Dist. Ex. 19).  In an electronic transmission to respondent dated September 1, 2004, petitioners notified respondent that their daughter would not be returning to Murray Avenue for fifth grade in September 2004 (Dist. Ex. 21).  By letter dated September 23, 2004, petitioners advised respondent of their dissatisfaction with their daughter's 2004-05 IEP and her unilateral placement at Windward for the 2004-05 school year (Dist. Ex. 7, Document 1).  An impartial hearing to consider the issues of tuition reimbursement and transportation was also requested (id.).  By letter dated October 27, 2004, petitioners' counsel withdrew the September 23, 2004 request for an impartial hearing (Dist. Ex. 7, Document 2).  Petitioners' counsel reserved the right to request an impartial hearing and "maintain[ed] [their] application" for the student's private school tuition reimbursement (id.).  By letter dated December 17, 2004, petitioners' counsel stated that the student was attending Windward and advised respondent that petitioners wanted to initiate settlement negotiations (Dist. Ex. 7, Document 3).  None of the communications discussed above from petitioners or petitioners' counsel to respondent provided a description of the nature of the problem with the IEP, or identified facts relating to the problem or the basis for petitioners' assertion that the IEP was inappropriate.

 

On September 13, 2005, petitioners requested an impartial hearing (Dist. Ex. 1).  Without identification of the school years challenged, petitioners alleged that respondent denied their daughter a free appropriate public education (FAPE) by its failure to develop or implement adequate IEPs (Dist. Ex. 1 at p. 3).  Petitioners asserted that respondent's IEPs were inadequate because they failed to produce progress (Dist. Ex. 1 at p. 2).  In addition to asserting that respondent failed to meaningfully consider each of the student's educational needs resulting from her disability (Dist. Ex. 1 at p. 6), petitioners claimed that respondent did not consider strategies and supports to address their daughter's behavioral needs (Dist. Ex. 1 at pp. 4-6).  Petitioners advised respondent that a "valid 10 day notice" was transmitted by facsimile to respondent on August 30, 2004 (Dist. Ex. 1 at p. 7).  In addition, petitioners informed respondent of their intent to continue their daughter's enrollment in a private school at public expense for the 2005-06 school year (Dist. Ex. 1 at p. 7), and sought compensatory education in the form of tuition reimbursement for all expenses incurred for their daughter's attendance at the Windward School for the 2004-05 and 2005-06 school years (Dist. Exs. 1 at p. 7; 4 at p. 1).

 

An impartial hearing convened on November 9, 2005 and concluded on March 13, 2006, after seven days of hearings.  By decision dated May 31, 2006, the impartial hearing officer noted that petitioners had waived, by stipulation, their challenge to the appropriateness of the April 10, 2003 IEP recommended by respondent, but continued to object to the manner in which the program was implemented (IHO Decision, p. 33).  The impartial hearing officer found that petitioners' impartial hearing request to challenge the April 10, 2003 IEP was time-barred because it had not been asserted until September 2005, more than two years subsequent to the date of the April 10, 2003 IEP (IHO Decision, pp. 32-33).  He also found that that the student was offered appropriate placements for 2003-04 and 2004-05 school years (IHO Decision, p. 33)  In addition, he found that the student was not denied or excluded from educational services for any substantial period of time.  The impartial hearing officer denied petitioners an award of compensatory education for the 2003-04 and 2004-05 school years in the form of tuition reimbursement for the 2005-06 school year (IHO Decision, pp. 35-36; Dist. Ex. 4 at p. 1).  Tuition reimbursement requested for the 2004-05 school year was not awarded (IHO Decision, p. 36).

 

On appeal, petitioners contend that respondent erred when it failed to revise their daughter's IEP in December 2003 based upon the results of the private psychological evaluation, and that respondent failed to provide the student with special education and related services which were based on peer-reviewed research.  Petitioners also argue that the impartial hearing officer erred by failing to base his decision on substantive grounds, failing to adequately consider petitioners' compensatory education claim, and ignoring documentary evidence relating to petitioners' request for tuition reimbursement. 

 

In its cross-appeal, respondent asserts that petitioners' failure to provide proper notice of their intent to enroll their daughter at Windward at public expense should result in a determination that equitable considerations do not support an award of tuition reimbursement.

 

I will first address the timeliness of petitioners' assertions with respect to claims arising from the 2003-04 school year.  Petitioners' wrongly rely on the State and federal regulations governing the State complaint procedure (34 C.F.R. 300.662[c]; see 8 NYCRR 200.5[l][1][iii][a][2] [formerly 8 NYCRR 200.5[k][1][iii][a][2]) in support of their compensatory education claim.  Effective July 1, 2005, Congress amended the IDEA to include a provision specifically creating a two-year statute of limitations period for filing a due process hearing request, unless a state has an explicit time limitation set by state law (20 U.S.C. 1415[f][3][C]; see Application of a Child with a Disability, Appeal No. 06-075).  At the time the hearing request was made on September 13, 2005 (Dist. Ex. 1 at pp. 9, 10), the two-year statute of limitations was in effect.  Claims that accrued within two years prior to petitioners' impartial hearing request of September 13, 2005 are timely under the two-year statute of limitations.  Petitioners' challenge to the implementation of their daughter's 2003-04 IEP and related claim for compensatory education as related to events subsequent to September 13, 2003 are timely.

 

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 – 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Bd. of Educ., ___ F.3d ___, ___, 2006 WL 2077009, at * 13 [2d Cir. July 27, 2006]).  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]; 34 C.F.R. 300.347).3  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 parents' 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]).  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, 471 U.S. 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.).

 

The first step is to determine whether the district offered to provide a FAPE to the student (see M.C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).  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, 206-07 [1982]).  The student's recommended program must also be provided in the least restrictive environment (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 (see Schaffer, 126 S. Ct. at 537).

 

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 Walczak142 F.3d at 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 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 the Bd. of Educ., Appeal No. 06-029; 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).

 

Initially I note that petitioners do not raise any procedural issues with respect to the CSE composition for the 2003-04 and 2004-05 school years (see IHO Decision, p. 32).  With respect to the 2003-04 school year, petitioners waived their challenge to the appropriateness of the IEP developed by respondent's CSE at its April 10, 2004 meeting (Tr. p. 9; Dist. Ex. 10).  The appropriateness of the 2004-05 IEP developed by respondent's CSE on June 10, 2004 is, however, at issue (Dist. Ex. 9 at p. 1).  In addition to petitioners and an additional parent member, respondent's CSE Chairperson, school psychologist, regular education teacher, speech-language therapist, and special education teacher participated at the June 10, 2004 CSE meeting (Dist. Ex. 9 at p. 4).  The committee meeting information generated from the June 10, 2004 CSE meeting noted that petitioners were in agreement with the CSE's recommendations (Dist. Ex. 9 at pp. 4-5).

 

I will first review petitioners' assertions regarding the student's 2003-04 school year and initially address petitioners' allegation that respondent improperly failed to revise the student's IEP at the December 10, 2003 team meeting, at which the private psychological report was considered.  The student's mother requested the team meeting that was held on December 10, 2003 in order to discuss her daughter's private psychological report and her difficulties in the classroom, and to determine whether her needs could be more adequately addressed (Tr. pp. 354, 707).  Participants at this team meeting included respondent's school psychologist, speech-language therapist, special education teacher, CSE Chairperson in her capacity as the Assistant Director of Special Education, and petitioners (Tr. pp. 286, 353).  The student's fourth grade classroom teacher participated by telephone (Tr. pp. 286, 353).  The student's mother testified that during the meeting, the team discussed her daughter's language and reading disabilities, in addition to her  daughter's lack of self-confidence (Tr. p. 709).  The mother also testified that the student's classroom teacher indicated that she would modify some of the student's work, and that the school psychologist stated she would monitor the student's emotional status(Tr. p. 710). 

 

Respondent's school psychologist testified that nobody at the team meeting suggested that a change needed to be made to the student's current IEP (Tr. pp. 354-55).  Both the school psychologist and the special education teacher testified that the team reviewed the private psychological report, and determined that the student's needs were being met in the program developed for the 2003-04 school year and that there was no need to reconvene the CSE (Tr. pp. 287, 488-89).  The record does not document that a request was made to reconvene the CSE, nor does it demonstrate, in the circumstances of this case, any substantive harm to the student's program by not convening a CSE and amending the student's IEP.  Moreover, I note that although the private psychological report noted that the student would "flourish" at a placement such as Windward, it also noted that the student was then currently making progress.  Under the circumstances, respondent, after considering the private psychological report, was not obligated to amend the IEP. 4

 

Petitioners also assert that the student's 2003-04 IEP was not properly implemented.  With respect to the 2003-04 school year, respondent's April 10, 2003 CSE recommended that the student participate in all general education programs (Dist. Ex. 10 at p. 2).  It recommended that the student also receive resource room with a push-in/pull-out component in response to the student's occasional reluctance to be pulled from the classroom for support, and a psychological consultation one time per month to facilitate communication between the private therapist and the "school backed team," and speech-language therapy (Dist. Ex. 10 at pp. 1, 3).  Recommended testing accommodations and supports included:  directions read, "flexible setting" on State mandated tests, language of directions simplified, listening section repeated as many times as needed, test administered in a small group in a separate location, and extended time (Dist. Ex. 10 at p. 1).  Recommended support included the reteaching of materials and the use of a word processor (Dist. Ex. 10 at p. 2).

 

The student's classroom teacher provided support to help the student manage her classroom work, including appropriate modification of assignments, extra teacher time, one-on-one explanations after whole group lessons, extra practice and reinforcement with new concepts, organizational help, and a lot of positive reinforcement (Tr. pp. 417, 710; Dist. Ex. 17 at pp. 2, 4).  The classroom teacher described how she collaborated with the special education teacher in 2003-04 to create lessons and devise strategies for the student, and how she assisted the student by reteaching after a lesson (Tr. pp. 417-19).  With respect to the writing program, the student participated as her classmates did, except to the extent that she was provided additional support, when necessary, through the collaboration of the classroom teacher and resource room teacher (Tr. p. 437).  The classroom teacher also structured the student's assignments in order to help her with her organizational needs (Tr. pp. 437-38).  She testified regarding the types of instructional strategies she implemented, such as the use of preteaching and graphic organizers (Tr. pp. 438-39).  With regard to the student's emotional needs, the classroom teacher worked in consultation with the school psychologist, and supported the student emotionally (Tr. pp. 461, 1086).

 

The student's resource room teacher testified that she worked closely with the student's classroom teacher in 2003-04 and indicated that they communicated on a daily basis (Tr. pp. 481, 501).  The resource room teacher noted that, although the student's IEP indicated that she was to receive resource room services three hours per week, the resource room teacher was in the student's general education classroom five hours per week and was available to the student during those hours (Tr. p. 503).  She provided services to the student on a push in/pull-out basis, after discussing the unit lesson requirements with the classroom teacher, and based on the student's needs (Tr. p. 566).  During the administration of the fourth grade science testing and the NYSTP math and ELA testing, the resource room teacher provided accommodations which included: directions read, "flexible setting," language of directions simplified, listening section repeated as many times as needed, test administration in a small group and separate location, and extended time (Tr. pp. 574-75). 

 

With respect to the student's academic needs, the student had deficits in the areas of math calculation and concepts, written expression, and reading comprehension (Dist. Ex. 10 at p. 2).  The resource room teacher testified that she was certified in reading and general education as well as in special education, and that she had been trained in the implementation of various instructional methodologies for reading, including Orton-Gillingham, Lindamood-Bell (LIPS), and Preventing Academic Failure (PAF), the modified Orton-Gillingham program offered at Windward (Tr. pp. 478-79).  The resource room teacher testified that she had tried different approaches, including Orton-Gillingham and LIPS, to address the student's decoding deficits during 2003-04 (Tr. pp. 492, 506), and indicated that the student had responded to this instruction (Tr. p. 510).  She described specific strategies she implemented in instructing the student, including identifying specific elements that the student found difficult and preteaching the vocabulary of those elements in isolation, and noted that she collaborated with the student's speech-language therapist to identify the student's language needs (Tr. pp. 512-14).  She also described how she used manipulatives for preteaching math concepts before introducing the language of the concepts, and provided a detailed description of how she would break down writing assignments for the student's classroom teacher to assist the student with completing written work (Tr. pp. 530, 533).  The resource room teacher's individual and small group work with the student led to the addition of a non-integrated, individual, daily, 15-minute consult in the resource room for decoding (Tr. pp. 461, 530, 555-56).  This was a resource room service that was uniquely provided to the student, based on her needs (Tr. pp. 559-60).

 

With respect to speech-language therapy, the student received the services recommended on her 2003-04 IEP, that is, two times per week for 30 minute-sessions, in a group setting (Tr. p. 183, Dist. Ex. 10 at p. 1).  The speech-language therapist who worked with the student during the 2003-04  school year (Tr. p. 183) testified regarding the student's reluctance to come to therapy sessions (Tr. p. 228) and described how she worked with the student's teachers to place the student in different therapy groups in order to overcome this reluctance.  The speech-language therapist testified that, once the student was in the therapy room, she participated and was successful (Tr. p. 259).  She described strategies implemented to address the student's deficits in short-term memory, noting that although the private evaluator had described this deficit as a "significant weakness," formal testing indicated functioning in the mild range for this area of deficit (Tr. p. 247).  Respondent's school psychologist testified regarding the student's reluctance to participate in counseling and described how services were provided as consultations (Tr. p. 279).

 

As discussed above, the hearing record demonstrates that the 2003-04 IEP was adequately implemented.  Moreover, the record shows that at no time during the 2003-04 school year did petitioners raise concerns about not having a CSE meeting to revise the student's IEP or raise concerns about implementation of the IEP.

 

Petitioners also argue that the impartial hearing officer erred when he found the student's June 10, 2004 IEP to be appropriate.  Specifically, petitioners assert that the June 10, 2004 IEP was insufficient to meet the student's needs because intensive remediation rather than classroom supports were necessary to address the student's learning disability, and because respondent failed to appropriately address the student's "emotional shutdowns" or emerging emotional disturbance.

 

With respect to the sufficiency of the 2004-05 IEP, the record shows that the June 10, 2004 CSE recommended that the student be placed in a general education fourth grade classroom and receive resource room services 45 minutes per day in a small group in an integrated setting, and receive resource room services on an individual basis 15 minutes per day in a non-integrated setting (Tr. p. 96; Dist. Ex. 9 at pp. 1, 5).  The additional 15 minutes of resource room services was recommended to provide the student with individual instruction in reading (Tr. pp. 295, 491).  The June 10, 2004 CSE also recommended that the student continue to receive speech-language therapy twice per week as she had in 2003-04, but recommended that in fourth grade, one of these two sessions be provided on an individual basis (Dist. Ex. 9 at p. 1).  The individual session was recommended to allow the student to learn specific strategies, and the group session was maintained to provide her with experience in group situations (Tr. pp. 194-95).  Counseling services were recommended once per week in a group integrated setting, consistent with reports that, during the 2003-04 school year, the student had become more receptive to seeking assistance (Tr. pp. 292, 462; Dist. Ex. 9 at pp. 1, 4).  Consistent with recommendations made in the private psychological report (Dist. Ex. 11), the June 10, 2004 CSE recommended that the student's classification be changed to learning disabled (Tr. p. 18; Dist. Ex. 9 at p. 1).

 

The section of the June 10, 2004 IEP describing the student's current academic performance notes that the student's cognitive functioning is in the average to superior range, consistent with the results of cognitive testing conducted in August 2003, which are included on the IEP (Dist. Ex. 9 at p. 3).  She is described as demonstrating variability in her performance, having difficulty in listening comprehension, in following oral directions, in expressive language and in working memory, and her progress is described as slow but steady (id.).  In reading, the student was described as having weak sound/symbol associations and needing to improve skills in decoding, and in reading comprehension, the student was described as demonstrating difficulty with inferential reading comprehension (id.).  Her math application skills were described as below grade level, and the student was described as having difficulties with both the mechanics of writing and with generating ideas when writing (id.).  Descriptions of the student's academic performance levels were supplemented by detailed and specific descriptions in the IEP meeting notes, which described the student's need for intensive support in writing, her frustration when attempting to put thoughts on paper, and her difficulty with the language of math (Dist. Ex. 9 at p. 4).

 

For the 2004-05 school year, the June 10, 2004 CSE recommended goals and objectives to address each identified academic need. A word-recognition and decoding goal includes objectives addressing sound/symbol relationships, and also includes objectives to address spelling deficits (Dist Ex. 9 at p. 5).  This goal is supplemented by a program accommodation allowing the student to use a word bank (Dist. Ex. 9 at p. 1).  A reading comprehension goal includes two objectives to address the student's difficulties with inferences and predictions of outcome, with an expansion of objectives from the previous school year for the student to predict the outcome of a reading selection at grade level (Dist. Ex. 9 at p. 5).  In addition to a writing goal for the mechanics of writing, the June 10, 2004 CSE recommended an additional writing goal for written expression, with objectives for constructing sentences and short paragraphs and for proofreading and editing (id.).  The recommended math goal includes objectives for learning math facts as well as continued objectives for understanding the language of math and solving multistep problems (Dist Ex. 9 at p. 6).  It also includes an objective for the understanding of geometric concepts (id.).

 

A speech-language goal supports the student's academic needs through continuation of objectives addressing the retention of a sequence of multistep directions and the comprehension of verbally presented information (Dist. Ex. 9 at p. 6).  It includes an objective addressing the need to differentiate between relevant and irrelevant information, as well as objectives to teach the student strategies for word retrieval and auditory recall (id.).  A speech-language objective for extended explanations and detailed descriptions was continued, to address the student's difficulties with expressive language, and was supplemented by an objective addressing both expressive language and memory deficits through the retelling of paragraphs just heard in appropriate word and sentence order (id.).  Goals and objectives are supplemented by program modifications, including preteaching to introduce concepts and reteaching to assist with recall (Dist. Ex. 9 at p. 1).  Recommended testing accommodations to assist the student with comprehension and recall include directions read, language of directions simplified and having a listening selection repeated as many times as necessary (Dist. Ex. 9 at p. 2).  I agree with the impartial hearing officer and I find that the goals and objectives were adequate (IHO Decision, p. 34).

 

With respect to petitioners' assertion that their daughter required intensive remediation rather than respondent's provision of classroom support, petitioners' private psychologist supplemented his report and testimony recommending intensive phonologically based remedial intervention (Tr. p. 1013; Dist. Ex. 11 at p. 7) by testifying that he was not aware if Murray Avenue provided Orton-Gillingham, Lindamood Bell or the Slingerlands methods, phonologically based interventions, to petitioners' daughter (Tr. pp. 962-63).  As noted above, respondent's resource room teacher testified that in addition to having been certified in reading, general education, and special education, she had been trained in the implementation of various reading methodologies, including Orton-Gillingham, among others (Tr. pp. 478-79).

 

With regard to the intensity of the remediation, the private psychologist testified that whether in an individual or group setting, the exact number of hours a day a student needs to overcome her reading disability has not been absolutely determined by researchers (Tr. pp. 1005-06).  He stated that the intervention programs that have been studied, tested, and included in the "National Standards for Teaching" typically provide students with one or two hours a day of individual or small-group reading instruction, and that finding is the basis of the standard (id.).  Respondent's June 10, 2004 IEP recommended one hour per day of resource room (Dist. Ex. 9 at p. 1) in addition to the 90-minute daily literacy block for reading and writing instruction (Tr. p. 1076), also noted by the impartial hearing officer (IHO Decision, p. 34), which would have used preteaching and reteaching strategies, as required (Dist. Ex. 9 at p. 1). 

 

With respect to the student's emotional shutdowns or emerging emotional disturbance, I agree with the impartial hearing officer's determination that the record does not support a finding of emerging emotional disturbance.  The school psychologist stated that the student's emotional reactions were a result of her academic struggles (Tr. pp. 291, 366).  The school psychologist testified that the student had "some fragility," but did not have an emotional disturbance (Tr. p. 365).  Her determination supported the private psychologist's assessment that the student's emotional adjustment did not indicate serious problems of emotional development (Dist. Ex. 11 at p. 6) and that the student did not demonstrate an emotional disturbance (Tr. pp. 987-88).  As Windward does not enroll children who have significant behavioral or emotional concerns (Tr. p. 1023), the student's acceptance and subsequent attendance at Windward for the 2004-05 and 2005-06 school years is also consistent with these assessments. 

 

Similarly, the school psychologist testified that the student was never a behavior or disciplinary problem while she attended Murray Avenue (Tr. p 291).  In the June 10, 2004 IEP's statement regarding the student's social and emotional needs, the student is described as well liked by peers and adults, but her emotional vulnerability is also described (Dist. Ex. 9 at p. 3).  The June 10, 2004 IEP notes that the student actively participates in class and is "visibly happy" but becomes inaccessible to learning when she is frustrated or feels she is not going to be successful (Dist. Ex. 9 at pp. 3-4).  The June 10, 2004 IEP also notes that in the past school year the student had become more willing to act as a self-advocate and would seek out assistance both emotionally and educationally, but that she continued to exhibit some behaviors that indicated anxiety (id.).  This description was supplemented by meeting notes which further described the student's emotional ability and its effect on her willingness to seek assistance (id.).  The meeting notes described her increased ability to recover from frustrating experiences, and also noted that the student was now able to express her feelings and would ask for assistance before becoming immobilized by her frustration (id.).  A counseling goal was added to the June 10, 2004 IEP, with objectives to address the student's need to verbalize her expectations and to develop and implement strategies to deal with her frustration (Dist. Ex. 6 at p. 6).  The counseling goal and its supporting objectives are reflective of testimony from respondent's school psychologist, who described the student's need to have realistic expectations of herself as a learner (Tr. pp. 299-300).

 

In addition, the impartial hearing officer reviewed the record in view of LRE requirements.  He noted that the resource room teacher testified that a self-contained class was not appropriate for petitioners' daughter (Tr. p. 576).  She further testified that the student did not require a full day program of small group instruction, and benefited from role modeling provided by her nondisabled peers in the classroom (Tr. pp. 567-68).  I agree with the impartial hearing officer's determination that the student's recommended placement in the general education setting comports with LRE requirements (IHO Decision, p. 34).

 

After a thorough review of the record, I find that the June 10, 2004 IEP accurately reflects evaluation reports and provides sufficient information about the student's learning deficits with which to plan and implement an appropriate program.  I also find that the level and scope of services recommended by the CSE for the 2004-05 school year were appropriate to address those needs.

 

Based upon the information before me, I find that the June 10, 2004 IEP, at the time it was formulated, was reasonably calculated to enable the student to receive educational benefit (Viola , 414 F. Supp. 2d at 382 [citing to J.R. v. Bd. of Educ. of the City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 n.13 [S.D.N.Y. 2004]; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 05-021).  I, therefore, find that respondent offered the student an appropriate program for the 2004-05 school year.  Having determined that the student was not denied a FAPE for 2004-05 school year, it is not necessary for me to consider the appropriateness of the program petitioners obtained for their daughter, or whether the equities support their claim for tuition reimbursement (see Voluntown, 226 F.3d at 66).

 

Finally I will address petitioners' claim that the impartial hearing officer erred by failing to adequately consider petitioners' compensatory education claim.  Although petitioners do not clearly frame this allegation, in his decision, the impartial hearing officer characterized petitioners' position as seeking compensatory education for the 2003-04 and 2004-05 school years in the form of tuition reimbursement for the 2005-06 school year (IHO Decision, p. 36).  Compensatory education is a remedy that is available to students who are no longer eligible for instruction.  However, 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 the Bd. of Educ., Appeal No. 03-075; 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).

 

Petitioners argue that the impartial hearing officer erred by failing to adequately consider compensatory education claim.  They assert that their daughter's lack of progress in respondent's special education program evidenced a denial of FAPE which warrants compensatory education.  I disagree.  The impartial hearing officer found that the student made progress based on the student's satisfaction of at least two speech-language objectives, her math and science scores on fourth grade standardized tests, her improved writing skills, and the decrease in the frequency of her "emotional shutdowns" during the 2003-04 school year (IHO Decision, pp. 35-36).  As a result of this determination, the impartial hearing officer did not order an award of compensatory education.

 

In addition to agreeing with the impartial hearing officer's determination and findings regarding the student's progress, there is further support in the record of the student's growth.  The school psychologist cited examples of the student's behavior which indicated that strategies employed during the 2003-04 school year had been successful, as the student appeared more confident and more accessible for learning, was seeking help more readily, was beginning to work successfully on group projects, appeared more pleased with her successes, had developed coping mechanisms, and had become more of a self-advocate (Tr. pp. 288, 292, 310, 342).  As a result of the change in the student's behavior, more services were provided to the student (Tr. p. 134).  The CSE Chairperson testified that the student was then "available" to receive direct counseling services for which she had previously shown resistance (Tr. pp. 134-35).  Similarly, the speech-language services recommended for the student's 2004-05 school year were increased because the student appeared to be more "available" to do the work (Tr. pp. 194-95).  Based on her observations and conversations with the student's classroom teacher and resource room teacher, the speech-language therapist testified that by the end of the 2003-04 school year, the student started to be somewhat more open to participating in the classroom, as evidenced by the student raising her hand to participate in class, and by her willingness to share some of her writing projects (Tr. p. 241). 

 

The school psychologist testified that when comparing educational testing completed by two private evaluators, the student showed growth in the areas of verbal comprehension, vocabulary, and mental arithmetic (Tr. pp. 282-84).  She also stated that there was growth in the test areas of similarities, general fund of information, and comprehension, and that these scores would be affected by the language and academic support that the student received (Tr. p. 283).  This is consistent with testimony from the student's classroom teacher which indicated that the student progressed in many of her basic skills (Tr. p. 418).  Although the student's performance remained below grade level in the classroom, the classroom teacher stated that the student showed improvement in her basic math skills and mental math (Tr. pp. 418-19).  She noted improvement in the student's decoding skills with respect to reading and in her comprehension skills as a result of her participation in book discussions (Tr. p. 419).  The resource room teacher testified that at the beginning of the school year, the student had trouble reading short passages and short story books, but toward the end of the year she was able to read books that were much more grade appropriate (Tr. pp. 484-85).  In addition, the resource room teacher stated that by the end of the school year, the student was able to write a simple basic paragraph independently (Tr. pp. 486-87) and to produce a lengthy written document, with teacher support using software or graphic organizers (Tr. p. 486).  She also stated that, when provided with graph paper, the student was able to complete algorithms in a much more appropriate way than she did at the beginning of the school year (Tr. pp. 485-86).

 

The private psychologist stated that the student's progress was below expectations based on the student's verbal intelligence, and this was part of the standard of the diagnosis of "learning disabilities" (Tr. p. 1017).  A review of the record regarding the student's progress in light of her learning disability leads me to conclude that the student made meaningful progress as a result of the special education services provided to her by respondent and that the student was not denied a FAPE for the 2003-04 school year.  As discussed above, the record before me does not support a finding that the student was denied a FAPE for the 2003-04 or 2004-05 school years.  Under the circumstances, I agree with the impartial hearing officer and I find that there is no basis for an award of additional services to the student based on the programs offered to the student for the 2003-04 and 2004-05 school years.

 

I have considered petitioners' remaining contentions and I find them to be without merit.

 

THE APPEAL IS DISMISSED.

 

THE CROSS-APPEAL IS DISMISSED.

 

Dated: Albany, New York   __________________________
  September  6, 2006   PAUL F. KELLY
STATE REVIEW OFFICER

 

 

 

1 As the claims are framed by petitioners, they apparently requested tuition reimbursement for the 2005-06, not based upon an alleged failure of their daughter being offered an appropriate program for the 2005-06 school year, but as a remedy for alleged inappropriate programming during the 2003-04 and 2004-05 school years (Dist. Ex. 4 at p. 1).  Petitioners do not contest the program offered by respondent for the 2005-06 school year (id.).

 

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

 

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).

 

4  The fact that an expert hired by petitioners recommended programming different from the program recommended by the CSE does not mean that the CSE's recommendation was inappropriate (see e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]; see also Pascoe v. Washingtonville Cent. Sch. Dist., ___ F. Supp. 2d ___, 1998 WL 684583 at *6 [S.D.N.Y. Sept. 29, 1998]; Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]).  Where the IEP is reasonably calculated to confer educational benefit, the existence of other contrary recommendations do not mandate a different recommendation by the CSE (see Watson, 325 F. Supp. 2d at 145; Application of the Bd. of Educ., Appeal No. 06-052).  Additionally, the IDEA does not require states to develop IEPs that "maximize the potential of handicapped children" (Rowley, 458 U.S. at 197 n.21, 199).  What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Tucker, 873 F.2d at 567 [internal citation omitted]; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).