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

No. 06-072



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 Board of Education of the Katonah Lewisboro School District




Shaw & Perelson, LLP, attorney for respondent, Michael K. Lambert, Esq., of counsel


            Petitioner appeals from the decision of an impartial hearing officer, which denied her request to be reimbursed for her daughter's residential tuition costs at the Kildonan School (Kildonan) for the 2005-06 school year.  The appeal must be dismissed.

            At the commencement of the impartial hearing on December 16, 2005, the student was 16 years old and attending Kildonan as a tenth grade residential student for the 2005-06 school year as a result of petitioner's unilateral placement (Tr. p. 965).  Kildonan is a private, co-educational, day and residential college preparatory school for students with dyslexia (Parent Ex. Q at p. 1).  The Commissioner of Education has not approved Kildonan as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The student's eligibility for special education as a student with a learning disability is not in dispute in this appeal (see Dist. Ex. 35 at p. 1; 8 NYCRR 200.1[zz][6]).

            The student entered respondent's elementary school for kindergarten (Dist. Ex. 5 at p. 1).  Before being classified as a student with a disability, she received services from respondent's reading specialist and additional reading tutoring once per week outside of school by a private tutor obtained by her parents while she attended first grade in 1996-97 (Dist. Ex. 2 at p. 4; Dist. Ex. 5 at p. 1; Dist. Ex. 10 at p. 1).  At the student's annual review at the end of first grade on June 4, 1997, respondent's Committee on Special Education (CSE) knew that a private neurologist had diagnosed the student with an attention deficit disorder (ADD) and they classified petitioner's daughter as a student with an other health impairment (OHI) (Dist. Ex. 8 at p. 2; Dist. Ex. 11 at pp. 1, 6; Dist. Ex. 23 at p. 3).  She began receiving special education services in second grade for skill development in reading and math, and for management needs (Dist. Ex. 11 at pp. 1, 6; Dist. Ex. 23 at p. 3).  Respondent's CSE re-classified petitioner's daughter as a student with a learning disability (LD) in 1998 near the conclusion of second grade (Dist. Ex. 14 at p. 1).

            For third grade, respondent's CSE recommended placement in respondent's regular education program with resource room for 3 and 3/4 hours weekly (Dist. Ex. 14 at p. 1).  Petitioner unilaterally enrolled the student at the Windward School (Windward) for third, fourth and fifth grades.  Windward is a private, co-educational school that specializes in the education of children with learning disabilities, who have average to above average intellectual ability (Dist. Ex. 28 at p. 1).  Petitioner did not request impartial due process hearings for the years that the student attended Windward.

            The record documents that various evaluations of the student since first grade described her as functioning within the average to high average range of cognitive ability (Dist. Ex. 2 at p. 1; Dist. Ex. 17 at p. 3; Dist. Ex. 23 at pp. 4, 7; Dist. Ex. 28 at p. 3; Parent Ex. D at pp. 3, 5).  Academically, the student demonstrated weaknesses in math calculation, reading decoding, written expression skills, homework production and inattention (Dist. Ex. 35 at p. 4).  The student demonstrated strengths in memory skills, connecting previously learned material to newly introduced material, her ability to work collaboratively with classmates, and her class participation in discussions (Dist. Ex. 35 at p. 4).  Despite the presence of some academic weaknesses, the record reflects that the student progressed from grade to grade, passing all of her courses while attending either private institutions or respondent's school district, including respondent's middle school and high school (Dist. Ex. 38 at pp. 1-4).

            The student returned to respondent's middle school for sixth grade in the 2001-02 school year, and she remained in respondent's district through the completion of ninth grade in 2004-05 (Dist. Ex. 28 at p. 1).  The record reflects that the student received direct instruction in reading using the Wilson Reading Program during middle school at respondent's district (Dist. Ex. 23 at p. 3). 

            During seventh grade in September 2002, petitioner arranged for a private neuropsychological evaluation to obtain further information as to the reasons behindregarding the student's "learning difficulties, her attention problems, and the role role of her socioemotional issuesissues  in on her overall functioning" (Dist. Ex. 23 at p. 1).  Specifically, petitioner sought a "more definitive diagnosis and a specific remedial plan" for her daughter (Dist. Ex. 23 at p. 1).  The evaluator administered selected subtests of the Differential Ability Scale (DAS), which yielded the following results:  a verbal composite standard score (SS) of 93 (32nd percentile); a spatial composite SS of 124 (Results of thea SS of 124 (95th percentile); and a nonverbal reasoning composite SS of 92 () Results of 92 (30th percentile) (Dist. Ex 23 at p. 4).)  The evaluation report indicatesevaluator reported that the student's overall cognitive ability was again seen to be largelyin the average range, and further noted that  that was conductedthe student's "superior visuo-spatial skills" considered to be offset her "clear residual language-based deficits" (Dist. Ex. 23 at p. 7).  The evaluator noted that the student's weaknesses in word finding, verbal conceptual skills, auditory working memory, and inferential comprehension affected her higher level processing (id.).  The report also stated, without meaningful clarification or explanation, that "[w]hile [the student's] history of special education has remediated most of her reading disorder, her writing and spelling abilities continue to be a problem" (id.).  In addition, the 2002 report described the student as having a mathematics disorder characterized by poor computation and quantitative reasoning skills (id). 

            With respect to the student's socioemotional functioning, the 2002 report documented that she regardingperformed well below average on subtests for sustained attention and response controls, which was consistent with behavioral rating measures of attention (id.).  The evaluator indicated that the range of personality and socioemotional measures used to evaluate the student indicated that she suffered from a "mixed depressive/anxiety disorder" and that she demonstrated symptoms "reflective of chronic sadness, irritability, and fatigue, with accompanying attentional and sleep (primary insomnia) disturbance" (Dist. Ex. 23 at pp. 6-7).The A AAA     Administration of Lewis's Thematic Interview rendered supporting evidence for the evaluator to conclude that the student struggled to "cope effectively" (Dist. Ex. 23 at p. 7).  The report reflected the evaluator's  concern about the student's depression and the opinion that the student would benefit from psychotherapy (Dist. Ex. 23 at p. 8).  

The evaluator recommended that,  the student receive in addition to the student's current services, the student should receive "learning specialist support three times weekly (two individual, one group) to teach compensatory processing techniques and remediate core academic areas" (id.).  The report documented several recommendations, modifications and strategies to address the student's educational needs, both in and out of the classroom, in order to improve the student's "comprehension, reading, writing, and math skills" and to assist the student in her academic areas and in information processing (Dist. Ex. 23 at pp. 8-13).  The evaluator also recommended medical follow-up regarding medication and continued psychotherapy for the student (Dist. Ex. 23 at p. 13).

            On May 25, 2004, respondent's CSE convened to conduct the student's annual review and to prepare her 2004-05 IEP for her ninth grade year at respondent's high school (Dist. Ex. 32).  The student's 2004-05 IEP documented results of the Wechsler Individual Achievement Test-II (WIAT-II), which respondent administered on March 23, 2004 (Dist. Ex. 32 at p. 3).  The following represents the student's WIAT-II subtest scores:  written expression, SS 96 (39th percentile); math reasoning, SS 87 (19th percentile); numerical operations, SS 77 (6th percentile); reading comprehension, SS 110 (75th percentile); and word reading, SS 92 (30th percentile) (id.).  The student's 2004-05 IEP noted progress on her goals and objectives (Dist. Ex. 36 at pp. 2-3; Dist. Ex. 39 at pp. 2-3).

            For the 2004-05 school year, respondent's CSE recommended consultant teacher direct services one time daily for 40 minutes in a special location to support English language arts, science, and social studies through the collaboration program (Dist. Ex. 32 at pp. 1, 3).  The collaboration program is geared towards students who are less independent and need more help than is offered in a resource room; the special education teacher attends the student's regular education English and global studies classes, and occasionally math and science, to offer support to the student in attending to task and in answering the student's questions (Tr. pp. 1016, 1023, 1025-26).  In the collaboration program, the student would also attend one period per day in a small group setting with the special education teacher for academic support and to reinforce what was learned in each academic class (Tr. pp. 1014-17).  The CSE also recommended that the student receive six weeks of transitional counseling, one time weekly for 30 minutes, as well as various test accommodations and program modifications, accommodations, and supplementary aids and services (Dist. Ex. 32 at pp. 1, 2).

Respondent re-administered the WIAT-II on January 30, 2005, which yielded the following results:  written expression, SS 96 (39th percentile); math reasoning, SS 88 (21st percentile); numerical operations, SS 75 (5th percentile); reading comprehension, SS 106 (66th percentile); and word reading, SS 87 (19th percentile) (Dist. 35 at p. 3).  The record reflects that a comparison between the results of the 2004 WIAT-II scores and the 2005 WIAT-II scores demonstrated that the student made one year's progress in one year's time (compare Dist. Ex. 32 at p. 3, with, Dist. 35 at p. 3).

In March 2005, petitioner engaged the services of a private social worker to provide psychotherapy to her daughter because she was having problems at home (Tr. p. 1344).  At that time, the student presented with sleep disturbances, academic and emotional anxiety, difficulty focusing in school, difficulty in completing assignments and a lot of communication problems at home, including hitting and yelling (Tr. pp. 1315-16, 1360).  The private social worker became aware of the student's stress at school within the first month of treatment, and she communicated with the student's teachers and respondent's social worker regarding this concern (Tr. p. 1316).  The consensus from school staff indicated that the student struggled academically because she was more socially focused, rather than academically focused, and that although she was capable, the student was not fully using her abilities at school (Tr. p. 1317).  The private social worker indicated that she dedicated about 1/4 of the student's therapy time to addressing school concerns and that she had no reports by teachers of aggression or yelling at school (Tr. p. 1362).  The private social worker also noted that the student's home and school behaviors were not "related to each other" and that the student "traditionally functioned well at school, she doesn't hit or yell at people. . . [The student] would decompensate when she went home . . . when she sat by herself to do homework she would unravel" (Tr. p. 1364).  The private social worker testified that in school, regardless of her struggles to do homework, the student would seek out her boyfriend rather than attend study hall and do homework (see Tr. p. 1365).

On April 21, 2005, respondent's Subcommittee on Special Education (sub-CSE) convened to conduct the student's annual review and to prepare her 2005-06 individualized education program (IEP) for the tenth grade (Dist. Ex. 35 at p. 1).  Comments on the student's IEP indicated that teacher reports described the student as respectful and friendly, with strengths in memory skills, connecting previously learned material to newly introduced material, her ability to work collaboratively with classmates, and her class participation in discussions (Dist. Ex. 35 at p. 4).  The IEP noted weaknesses in math calculation, decoding and written expression skills, and in homework production and inattention.  The teacher reports also noted frequent absences that affected school performance.

The IEP documented the following report card grades for the student's ninth grade third quarter: Regents English 9R, 65; Regents global studies 9R, 69; extended Regents math applications 1, 83; extended earth science R, 68; studio art, 73; concert choir, 96; and physical education, B  (Dist. Ex. 35 at p. 4; Dist. 38 at p. 4).  The IEP minutes reflected that at the time of the annual review, petitioner reported that the student attended counseling outside of school and she requested that the student receive in-school counseling (Dist. Ex. 35 at p. 4).  Petitioner also requested that the sub-CSE and to continue the student's LD classification. 

Respondent's assistant director of special services, who chaired both the 2004-05 and 2005-06 annual reviews, testified that the sub-CSE discussed the student's need for supports to meet her academic program and her need to improve her attendance and homework production (Tr. pp. 103, 106, 111).  Respondent's sub-CSE recommended placement at respondent's high school, where the student would participate in a "full regular education program" (Dist. Ex. 35 at pp. 1-2).  The sub-CSE recommended related services of direct consultant teacher services one time daily in a special location for 40 minutes to support English language arts, math, science and social studies.  The April 21, 2005 IEP noted that through the collaboration program and daily support services recommendations, the student would have access to a special education teacher or teaching assistant in English and global history classes, as well as a daily small group support period with the special education teacher (Dist. Ex. 35 at p. 1).  The sub-CSE also recommended individual counseling one time weekly for 40 minutes (id.). 

Recommended program modifications, accommodations, and supplementary aids and services on the 2005-06 IEP included:

chunk[ing] of assignments into smaller increments, use of [a] graphic organizer, supplemental oral presentations with visual cues, preferential seating, teacher cueing, extra time for written assignments (student may request an additional day to complete major projects and extended writing assignments), access to classnotes, homework content to be modified (quantity not content), modified classroom tests, and provide study guides

(Dist. Ex. 35 at pp. 1-2).

            The sub-CSE also recommended test accommodations of extended time (double), special location, questions read, use of calculator, word processor, spelling waived, and simplify language in directions (Dist. Ex. 35 at p. 2).  The sub-CSE recommended that the student be exempt from the foreign language requirement because her disability adversely affected her ability to learn a language (id.).  The sub-CSE also recommended that the student participate in the same State or local assessments that are administered to general education students (id.).  The 2005-06 IEP created by respondent's sub-CSE indicated that the student's skill development needs in reading, writing and study skills would be addressed through special education services (Dist. Ex. 35 at p. 3).

            Testimony by the assistant director of special services indicated that at the time of the April 2005 annual review, no one advocated for or suggested a special class for the student, nor was there any discussion regarding the student requiring a residential placement (Tr. p. 121).  The witness also testified that no one suggested or requested that additional evaluative information was necessary and petitioner did not introduce any private evaluation reports at the April 2005 annual review (Tr. p. 122).

The record reflects that petitioner submitted an application to Kildonan on April 8, 2005, two weeks prior to the student's annual review (Parent Ex. O at pp. 2-5).  Petitioner testified that she told the sub-CSE members that she was considering enrolling the student at Kildonan, but the 2005-06 IEP did not reflect that information (Tr. p. 795; see Dist. Ex. 35).  By letter dated May 4, 2005, Kildonan accepted the student for the 2005-06 school year (Parent's Ex. O at p. 6).  Petitioner paid a non-refundable deposit to Kildonan on May 9, 2005 (Parent's Ex. O at p. 7).  By letter dated May 31, 2005, petitioner advised respondent of her decision to enroll the student in Kildonan and of her intent to seek tuition reimbursement (Parent Ex. K). 

            In July 2005, approximately three months after the student's annual review, petitioner referred the student to the same neuropsychologist who evaluated her in 2002 for a re-evaluation to assess her progress and educational needs (Parent Ex. D at p. 1).

            Respondent's assistant director of special needs testified that she first became aware of petitioner's July 2005 private re-evaluation in October 2005, when petitioner filed her amended demand for an impartial hearing and attached the report to the demand (Tr. p. 131; see Parent Ex. MM at p. 1). 

            The evaluation report, dated August 15, 2005, indicated that the student's performance on a "measure of prorated administration of the Weschsler Intelligence Scale for Children-IV (WISC-IV) yielded an overall cognitive ability score" at the 71st percentile (Parent Ex. D at p. 3).  The report noted that this score was somewhat higher than her past performance measures of overall ability (Parent Ex. D at pp. 3, 5).

            Based on poor or lower than expected results on the Qualitative Reading Inventory-3 (QRI-3), the Test of Word Reading Efficiency (TOWRE), the Gray Silent Reading Test (GSRT), and the Test of Written Language (TOWL), the evaluator indicated that the student continued to demonstrate her long-standing language based learning disorder in reading and writing (Parent Ex. D at pp. 5-6).  In addition, the evaluator noted that the student continued to display "deficits in word finding and phonemic sequencing and vulnerability in her language processing" (Parent Ex. D at p. 6).  The evaluator also indicated that the student's "academic skills in the areas of reading speed and decoding reading have over time eroded her comprehension and many aspects of her writing skills are poor" (id.).  The evaluator further noted that the student continued to demonstrate poor computation and quantitative reasoning skills, she continued to have ADD, and her deficits in sustained attention and response controls continued to be significant and clearly interfered with her learning (id.).  The evaluator opined, however, that the student's depression had greatly lifted since the previous evaluation in 2002, and she was coping more effectively (id.).

            The evaluator recommended placement in "a substantially separate program for high school students with learning disorders" (Parent Ex. D at p. 6).  The report contained the names of various schools with intensive programs, including Kildonan, but the evaluator testified that he did not believe that the student required a residential placement when he wrote the evaluation report (Tr. p. 1500; Parent Ex. D at p. 6).  The evaluator recommended "a scientifically supported reading program (e.g., Orton-Gillingham)" should be used to address the student's "core deficits" (Parent Ex. D at p. 7).  He also recommended a follow-up psychiatric consultation to assess the student's medication regimen and modifications in school, including extended time (1.5), routine comprehension checks to help the student stay on task and assess the depth of her processing of information, preferential seating, use of a computer for written work, use of a calculator, and small group tutorials two times daily using a scientifically supported reading program to address her academic deficits (Parent Ex. D at pp. 6-7). 

            The evaluator expressed concern in his report that since his previous evaluation of the student in 2002, the student's "reading comprehension declined from its historical trajectory, and her reading decoding and speed have maintained the same trajectory (no improvement noted).  Similarly, her mathematical skills in the area of computational skills have also declined, while her quantitative skills have shown no change in trajectory" (Parent Ex. D at p. 6).  He explained that based upon the student's historical trajectory, she had not made academic progress and "past remediation efforts have been unsuccessful and the current need for intensive remedial services is paramount" (id.).

            Respondent finalized the student's 2005-06 IEP on August 4, 2005, and mailed it to petitioner prior to the start of the school year (Tr. pp. 224, 319; see Dist. Exs. 35, 35A).  Petitioner prepared an amended demand for an impartial hearing by letter dated October 17, 2005 (Parent Ex. MM at p. 1).

            The impartial hearing commenced on December 16, 2005, and continued for a total of eight days (Tr. pp. 1, 195, 451, 743, 986, 1309, 1620, 1771).  Petitioner called several witnesses to present her direct case, including petitioner - the student's parent - the student's private social worker and neuropsychologist, Kildonan's academic dean, respondent's special education teacher, and respondent's assistant director of special services (Tr. pp. 1-1781, 1946-1987).  Petitioner also presented documentary evidence (Parent Exs. A-MM).  Respondent presented one witness, the district's director of special services, and documentary evidence (Tr. pp. 1782-1945; Dist. Exs. 1-42).

In his testimony, Kildonan's academic dean described the student as being fairly independent in doing her work, but often needing assistance during the 2005-06 school year (see Tr. pp. 904-06).  He testified that the student told him that when she attended public school, she "used to be able to get away with not doing work or getting away with cutting a class or not going to a class" and she realized that she could not do that at Kildonan because it is a very small school with a lot of faculty (Tr. p. 909).  He further described the student as having difficulties with attending in class, fatigue, and socializing in class (Tr. pp. 946-47, 955).  The academic dean testified that the student's reading comprehension level was in the "high average range" and she possessed "solidly average" word attack skills consistent with her cognitive ability (Tr. pp. 923, 927).  The record reflects that math continued to be difficult for the student (Tr. p. 910; Parent Ex. O at p. 22).

The private social worker testified that the student's depression worsened after a few months at Kildonan (Tr. p. 1402).  By January 2006, she communicated with Kildonan's social worker, who reported that she saw the student once every other week, but would now see the student on a weekly basis (Tr. pp. 634-44, 1646).  In January 2006, the private social worker diagnosed the student with a major depressive disorder (Tr. p. 1423).  The private social worker testified that, similar to her experience in respondent's high school, the student reported problems with a boyfriend at Kildonan, and she complained that she did not have enough "down time" at Kildonan, and always needing to be accountable for her actions (Tr. pp. 1434, 1644).  The student complained to the private social worker that she could not handle the schedule, she did not like her teachers, and she had difficulty doing homework (Tr. pp. 1431-32, 1665-66).  The private social worker testified that the student reported feeling trapped at Kildonan, with no room to breathe, and that she told her mother she wanted to return to respondent's high school (Tr. p. 1644-45).

            At the time of the hearing, the record reflects that the student's primary needs at Kildonan were related to depression that stemmed from not wanting to be at Kildonan because it was too restrictive, from family conflict, from her need to complete homework, and from her ADD.  Evidence adduced at the impartial hearing indicated that the student had not taken medication for ADD or depression for at least three years (Tr. p. 529).  The record reflects that the Kildonan teachers' descriptions of the student were similar to reports from respondent's teachers when she attended respondent's schools: as being capable, but not always completing homework assignments and as needing to pay attention (see Dist. Ex. 38 at pp. 1-4; Dist. Ex. 42).

            The impartial hearing officer rendered his decision on June 12, 2006,1 denying petitioner's request for reimbursement for the costs of her daughter's tuition at Kildonan for 2005-06 because petitioner failed to prove that the placement and program offered by respondent for 2005-06 was not appropriate and because petitioner failed to show that Kildonan was an appropriate placement to meet the student's need (IHO Decision, p. 33).

            On appeal, petitioner alleges that the impartial hearing officer committed numerous errors in his decision, including the following: improperly making findings of fact and conclusions of law relating to a tuition reimbursement analysis; failing to properly analyze or incorporate testimonial and/or documentary evidence; improperly applying the law to the facts of the case; and in failing to assess and/or analyze both procedural and substantive violations in the preparation of the student's 2005-06 IEP as undermining the appropriateness of the IEP or the parent's ability to participate in the preparation of the IEP.  Petitioner also alleges that the impartial hearing officer improperly determined that the testimonial and/or documentary evidence was insufficient to meet her burden of proving the inappropriateness of respondent's 2005-06 IEP and that Kildonan was an appropriate placement.  Petitioner further alleges that the impartial hearing officer improperly concluded that respondent's recommended program for 2005-06 was appropriate, that Kildonan was an inappropriate placement, and in denying tuition reimbursement for the costs of her daughter's residential placement at Kildonan for the 2005-06 school year.2 

            Respondent asserts that petitioner's appeal should be dismissed, and the impartial hearing officer's decision should be affirmed in all respects.

            One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 – 1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 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).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, 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. at pp. 370-71).

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. 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]).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]).  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, 427 F.3d at 195, 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]).  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).

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. 06-059; 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).

In a thoughtful, accurate and thorough decision, the impartial hearing officer addressed petitioner's allegations in the October 17, 2005 amended hearing request that respondent failed to provide her daughter with a free appropriate public education (FAPE) and that the 2005-06 IEP continued that failure (IHO Decision, p. 2).  The decision captured the relevant facts and educational information provided by witnesses, set forth the appropriate law and analysis of a tuition reimbursement claim, and carefully applied the law to the facts of this case (IHO Decision, pp. 4-26).  The impartial hearing officer's decision specifically acknowledged and analyzed each of petitioner's factual assertions used to support her allegations (IHO Decision, pp. 2-3, 26-33).

            A thorough review of the record supports the impartial hearing officer's analysis and determination that the evidence, on balance, is insufficient to demonstrate that the student was not offered a FAPE.  The record supports the finding that the student's difficulties at home, her poor attendance, and her propensity to socialize at school contributed to the student's inability to complete homework.  The record supports the impartial hearing officer's conclusion that the student's performance deficits were due, in substantial part, to her emotional difficulties (see IHO Decision, p. 31).  In his decision, the impartial hearing officer noted that the Kildonan staff nurse had urged the student's mother to persuade her daughter to take her recommended medication to treat her ADHD and/or depression to assist focus and attention (IHO Decision, p. 32).  The record amply demonstrates that these same issues plagued the student when she attended Kildonan in the 2005-06 school year.

After review and consideration of the record, I concur with the impartial hearing officer's determination that respondent offered the student an appropriate program for 2005-06 that met her educational needs and afforded her meaningful educational benefit by recommending direct teacher consultation, counseling, modifications, accommodations and supports in the mainstream collaborative teaching program in the LRE.

The April 21, 2005 sub-CSE identified the student's present levels of performance and needs based upon timely evaluations and reports available to the sub-CSE at the time of the annual review meeting (Dist. Ex. 35 at pp. 3-4).  The IEP reflects areas of need, including study skills, reading decoding, written expression, math concepts, homework completion, and attendance (id.).  The IEP clarified goals through appropriate objectives that were behaviorally stated and measurable in the student's identified areas of need.  Specific to the social/emotional/behavioral area, the IEP addressed the student's feelings and behaviors, in addition to her anxiety in relation to competition in school and attendance (Dist. Ex. 35 at p. 6).  Study skills objectives addressed strategies to assist the student in organization so that she could complete her assignments, improve and maintain her attention for tasks, and manage stress factors as she would attempt to meet learning standards (Dist. Ex. 35 at p. 5).  Writing objectives addressed written language skills in an organized manner so that the student would become independent in producing an appropriate written product (id.).  The IEP also addressed the student's needs in mathematics, algebraic and geometric concepts, focusing on the language of math related to word problems and independence in solving math problems (Dist. Ex. 35 at pp. 5-6).

Respondent's special education teacher testified that although the student had difficulty decoding bigger words, she actually understood much of the material read by the class (Tr. p. 1053).  The IEP's reading objectives addressed the student's need to improve her decoding skills through tasks involving multisyllabic words, syllabification, and self-correction (Dist. Ex. 35 at p. 5). 

The sub-CSE recommended a collaborative teaching program for the student that addressed the student's needs within the regular mainstream environment (Dist. Ex. 35 at p. 1).  To assist the student in achieving the recommended goals and objectives, the sub-CSE recommended appropriate modifications and accommodations that were consistent with the private neuropsychologist's recommendations (Dist. Ex. 23 at pp. 8-13; Dist. Ex. 35 at pp. 1-2).

Although petitioner's testimony indicates that she received communication from the student's teachers that the student could be in danger of failing courses because she often failed to complete her homework, the student's report card for ninth grade reflects that she passed all of her courses, including Regents courses in English, global studies, and earth science despite absences ranging between 17 and 35 in some classes throughout the school year (Tr. pp. 835-36; Dist. Ex. 38 at p. 4).  The evidence documents that the student advanced from grade to grade another and received six high school credits in ninth grade (Dist. Ex. 38 at pp. 1-4). 

While the student did require intervention in reading decoding, that need was addressed by the sub-CSE in the reading goal and short-term objectives included in the IEP (Dist. Ex. 35 at p. 5).  I note that the student's ninth grade report cards and progress notes indicate that petitioner's daughter did not require 1:1 reading instruction in order to access the general curriculum and achieve educational benefit (Dist. Ex. 38 at pp. 1-4; Dist. Ex. 36 at pp. 2-3; Dist. Ex. 39 at pp. 2-3; Parent Ex. O at p. 19).

            I have considered petitioner's and respondent's remaining contentions and find them to be without merit.


Dated: Albany, New York   __________________________
  August 30, 2006   PAUL F. KELLY



1 It should be noted that the impartial hearing officer appears to have mistakenly dated the decision as June 12, 2004.  Neither party has raised this as a concern in this appeal.


2 To support her petition on appeal, petitioner requests that additional evidence attached to the petition be considered on review.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  In the instant case, the impartial hearing concluded on April 5, 2006, and the additional evidence petitioner seeks to now admit did not exist at the time of the impartial hearing.  Petitioner sought to have updated WIAT-II test scores admitted to the record following the conclusion of the impartial hearing; however, respondent objected and the impartial hearing officer declined to admit the additional test results.  Under the circumstances presented here, I, too, decline to accept the additional evidence because it would not alter the determination that petitioner failed to meet her burden of proving that the 2005-06 IEP was inappropriate to address her daughter's special education needs.


3 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647).  The relevant events in the instant appeal relating to the development and substance of the April 21, 2005 IEP took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply to the development or substance of the IEP unless otherwise specified.


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

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

(B)   meet the standards of the State educational agency;

(C)   include an appropriate preschool, elementary, or secondary school education in the State involved; and,

(D)   are provided in conformity with the individualized education program required under section 1414(d) of this title.

(20 U.S.C. 1401[8]; see 34 C.F.R. 300.13; 20 U.S.C. 1414[d]).