The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Arlington Central School District
Linda A. Geraci, Esq., attorney for petitioners
Kuntz, Spagnuolo, Scapoli, & Schiro, P.C., attorney for respondent, Vanessa M. Gronbach, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer that denied their request to be reimbursed for their son's tuition at the Oakwood Friends School (Oakwood) for the 2004-05 and 2005-06 school years. Petitioners also seek an order directing respondent to provide additional services in the form of tutoring to remedy the services that it failed to provide during the 1999-2000 through the 2003-04 school years. The appeal must be dismissed.
Before I address the merits of this appeal, I must first consider a procedural issue. Respondent has attached the following documents to the answer that were not introduced into evidence at the impartial hearing: 1) the student's end of year grade report from his 2005-06 school year at Oakwood, dated June 26, 2006; and 2) the student's June 2006 progress reports from Oakwood. Generally, documentary evidence not presented at an impartial 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 impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-046; 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 March 20, 2006, and neither of the aforementioned documents existed at the time of the impartial hearing. I note that petitioners did not submit a reply pursuant to 8 NYCRR 279.6 objecting to the submission of the additional documentary evidence served with the answer. Under the circumstances presented herein, I will accept the additional evidence, because petitioners did not object to its submission and consideration.
At the time of the impartial hearing, the student was 17 years old and enrolled in the tenth grade at Oakwood (Tr. p. 553). Oakwood is a private college, preparatory school that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). The student's eligibility for special education services as a student with a learning disability is not in dispute in this proceeding (8 NYCRR 200.1[zz]).
The student has identified weaknesses in processing verbal information, as well as difficulties with math computation and concepts and written expression (Dist. Ex. 1 at p. 4). The student's kindergarten teacher recommended that he repeat the year; however, petitioners did not agree with that recommendation and he progressed to first grade in respondent's district (Tr. p. 554). Early in his first grade year, in light of his performance in Spelling, Reading and Math, the student's teacher proposed that he repeat the first grade, noting that he required redirection and refocusing (Tr. p. 556). The student repeated the first grade in respondent's district (id.).
During the 1999-2000 school year, while the student was attending fifth grade in public school in respondent's district, the student's classroom teacher advised petitioners that he was experiencing difficulty completing his homework, staying on task and that he was easily distracted (Tr. pp. 558-59). Petitioners inquired about academic testing, and the student was subsequently referred to respondent's school psychologist for an evaluation (Tr. pp. 559-60). On November 10, 1999, the school psychologist administered the Attention Deficit Disorder Evaluation Scales (ADDES), for which petitioners and the student's fifth grade teacher completed rating forms based on their observations of him at school and at home (Parent Ex. A; Dist. Exs. 43, 44). Results of both the home and school versions of the ADDES indicated that the student functioned within the average range on the Hyperactive-Impulsive subscales (Parent Ex. A at p. 2). The school psychologist noted that, while the student's inattention subscale score (50) was in the average range on the school version of the ADDES, he appeared to be at risk of an attention deficit disorder without hyperactivity, based on both home and school reports of inattention, distractibility, his failure to listen to verbal directions, poor concentration, short attention span, poor short-term memory, and disorganization (id.). During a classroom observation, the school psychologist noted that the student often needed refocusing to attend to relevant information when solving math problems (Parent Ex. A at p. 1). She also observed that while working independently in his seat in Math, the student's errors appeared to be related to a failure to attend to details (id.).
Respondent's school psychologist reported that the results of the ADDES did not warrant a referral to respondent's Committee on Special Education (CSE) (Tr. p. 1223). She reportedly advised the student's mother that the results of the examination did not raise any "areas of concern" (Tr. pp. 561-62). Nevertheless, the school psychologist suggested a pediatric consultation in order to rule out medical factors, in addition to behavior management strategies to address the negative effect of the student's attention difficulties upon his classroom performance (Parent Ex. A at p. 2). She also indicated that she was available for consultation (id.). The school psychologist's report indicates that a copy of the ADDES examination results were delivered to petitioners and the student's classroom teacher and placed in his academic file (Parent Ex. A at p. 2). Petitioners claim that they were unaware that this report existed until September 15, 2005, when petitioner mother reviewed her son's academic record while preparing for the impartial hearing (Tr. pp. 561-62).
Petitioner mother reported that the student's performance in sixth and seventh grades fluctuated (Tr. p. 573). A final report from the student's sixth grade year (2000-01 school year) indicates that he passed all of his subjects (Dist. Ex. 41). Three of his teachers described him as "courteous and well-behaved" (id.). His English teacher commented on the student's inadequate preparation for tests and quizzes, and further noted that he was not working up to his ability (id.). The student's Math instructor observed that he "shows effort when doing work" (id.). In seventh grade (2001-02 school year), a final grade report reflects that the student passed all of his subjects except Science (Dist. Ex. 40). His Science and Social Studies instructors stated that he "was not working up to his ability" (id.). The student's Spanish and Art teachers also noted inadequate preparation for tests and quizzes (id.).
During the 2002-03 school year, the student was a general education student attending an eighth grade inclusion class in public school in respondent's district. By letter dated October 21, 2002, petitioners requested a review by respondent's Pupil Review Team (PRT) (Parent Ex. B; Dist. Ex. 50). On November 21, 2002, petitioners consented to have their son evaluated by the school psychologist, and received a copy of a statement of their due process rights (Dist. Ex. 51).
On a December 10, 2002 administration of the Wechsler Individual Achievement Test II (WIAT-II), the student achieved standard (and percentile) scores of 98 (34) in basic reading, 97 (46) in reading comprehension, 89 (23) in math reasoning, 77 (6) in math computation, 94 (34) in spelling, 89 (23) in written expression, 89 (23) in total written language, and 94 (34) in listening comprehension (Dist. Ex. 28 at p. 2). A psychological evaluation conducted in preparation for the initial CSE review included a January 2003 administration of the Wechsler Intelligence Scale for Children-III (WISC-III), which yielded a verbal IQ score of 94 (34th percentile), a performance IQ score of 96 (39th percentile) and a full scale IQ score of 95 (37th percentile) (id.). The student's perceptual organization index score of 97 on the WISC-III was at the 42nd percentile and his freedom from distractibility index score of 98 was at the 45th percentile (id.).
On March 5, 2003, during the student's eighth grade year, the CSE convened for an initial referral (Dist. Ex. 28). The CSE classified him as a student with a learning disability and recommended placement in 15:1 special education inclusion classes for English, Math, Science and study skills for the remainder of the 2002-03 school year (Dist. Ex. 28 at p. 1). The student was exempted from the foreign language requirement because of his educational difficulties (id.). Recommended program modifications included reteaching of materials and provision of class notes (id.). The student was afforded the following testing modifications: extended time (1.5), directions read/explained, and the use of a calculator (id.). The individualized education program (IEP) generated as a result of this meeting also contained goals and objectives related to study skills, writing, and mathematics (Dist. Ex. 28 at pp. 3-4). Petitioners did not object to this program (Tr. p. 597).
Respondent's CSE reconvened on May 5, 2003 for the student's annual review and to develop his program for the 2003-04 school year (ninth grade) (Dist. Ex. 23). The CSE recommended that he receive resource room services 44 minutes per day in a group of five (Dist. Ex. 23 at p. 1). Testing accommodations included extended time (1.5), directions read/explained and the use of a calculator (id.). Recommended program modifications included reteaching of materials (id.). The May 2003 IEP contained goals and objectives relating to study skills and mathematics (Dist. Ex. 23 at p. 3).
The student's final grade report for the 2002-03 school year reveals that he failed Social Studies and Science, but that he achieved passing grades in all other subjects (Dist. Ex. 39). The final grade report also reflects a number of absences from school, and further indicates that three absences were deemed to be "illegal."
In an October 2003 progress report, the student's resource room instructor reported that while the student was "doing satisfactory work," he often "rushes, just to finish" (Dist. Ex. 38 at p. 1). In addition, his Global History instructor noted that the student had not completed his assignments (id.). On November 12, 2003, the CSE met for a program review, at which time it was reported that the student was doing well in his academic classes with resource room support and recommended that he continue with this program (Dist. Ex. 19 at pp. 1, 3).
Petitioner father reported that, during the 2003-04 school year, he communicated regularly with his son's teachers via phone and e-mail, in order to assist with his son's homework needs (Tr. pp. 1080-81; see Dist. Exs. 52, 53). A November 14, 2003 e-mail from the student's resource room instructor to petitioner father reveals that the student was not completing his homework and that he was setting forth little effort (Dist. Ex. 52 at p. 1). By e-mail dated November 20, 2003, the student's resource room instructor advised petitioner father that the student was "evasive concerning the completion of homework" (Dist. Ex. 52 at p. 2). He also sought petitioner father's assistance in checking the student's assignment notebook (id.). In a December 2003 progress report, the student's resource room instructor described him as a "pleasure to have in class," and further noted that his effort had improved (Dist. Ex. 38 at p. 2). However, his English, Global History I, Math, and Biology teachers stated that he was missing his assignments (id.). Additionally, his Communications teacher stated that, despite meeting expectations, the student did not complete a major project (id.).
On May 1, 2004, readministration of the WIAT-II yielded standard (and percentile) scores of 104 (61) in word reading, 94 (34) in reading comprehension, 98 (45) in numerical operations, 106 (66) in math reasoning, 94 (34) in spelling and 75 (5) in written expression (Dist. Ex. 15 at p. 2). The student achieved composite (and percentile) scores of 97 (42) in reading and 101(53) in mathematics (id.).
On May 13, 2004, the CSE subcommittee convened for an annual review and prepared the student's 2004-05 IEP for his tenth grade year (Dist. Ex. 15). Petitioners participated in this meeting (id.). The proposed IEP recommended that the student receive resource room services daily in a group of five for 40 minutes (Dist. Ex. 15 at p. 1). The student was afforded the following testing accommodations: extended time (1.5), directions read/explained, use of a calculator, and administration of exams in a special location (id.). Recommended program modifications included: reteaching of materials, refocusing and redirection (Dist. Ex. 15 at pp. 1-2). Goals and objectives were also developed to address math, writing and study skills (Dist. Ex. 15 at pp. 3-4). Petitioners did not object to the proposed program during the meeting, nor did they request an additional CSE meeting (Tr. pp. 70-71).
In June 2004, the student's final ninth grade report card for the 2003-04 school year indicated that he had achieved passing grades in English (65), Biology (68) and Introduction to the Internet (75), but he received failing grades in Global History (51), Math (55) and Communications (54) (Dist. Ex. 37). His resource room instructor noted erratic or inconsistent effort (id.). His English teacher commented that the student's absenteeism limited his progress, and also remarked that he had shown more effort in the past (id.). The student achieved a passing grade of 72 on the Regent's Competency Test (RCT) in Math, but his score on the Science RCT was a 49 (id.). Report card comments from the student's teachers throughout the year indicated that he had not completed assignments, missed science labs, and that he failed to turn in projects (see Dist. Ex. 38).
On June 27, 2004, petitioners completed the application for Oakwood (Parent Ex. FF). A July 10, 2004 note from an Oakwood employee to the Admissions Director at Oakwood described the student as "a risky candidate," and indicated that it was likely that he did not have the skills or motivation to handle the curriculum (Dist. Ex. 55). On July 13, 2004, Oakwood accepted the student into the program, contingent upon his retention in the ninth grade and enrollment in the Academic Support Center, a program designed to assist students with learning disabilities (Dist. Ex. 54; see Tr. p. 771).
In September 2004, the student entered the ninth grade at Oakwood (see Dist. Ex. 54). October 2004 Academic Structured Feedback Reports from Oakwood indicate that he had problems with his production of work similar to those he experienced while he was a student in respondent's district (Parent Ex. E). His Critical Thinking teacher reported that the student had failed to complete two project assignments resulting in a midterm grade of 50 (Parent Ex. E at p.1). His English teacher indicated that because the student had failed to turn in any assignments, his average would be a D (id.). In Physics, his instructor commented that the student was not keeping up with his work (Parent Ex. E at p. 2). His Spanish teacher stated that the student was doing his homework and that he worked well in class (Parent Ex. E at p. 3). He earned a B in Spanish, despite failing the only test (id.).
The student's November 20, 2004 grades indicated improved performance. In Visual Arts, he earned an A (Parent Ex. H at p. 1). In Physics, he achieved a C, and the teacher commented on his improvement in the second term, stating that he was organized, completed all assignments on time, used study halls for help and work, and demonstrated good effort (Parent Ex. H at p. 2). In Algebra, the student earned a B-, and his teacher indicated that during this term, he was focused, completed all assignments on time, and that he took initiative (id.). His Algebra teacher added that he was impressed with the student's work (id.). In Spanish, he received a C, with teacher comments indicating that he worked hard, paid close attention in class, participated when asked, and had a pleasant demeanor (Parent Ex. H at p. 3). In World History, he received a C- (id.). The student's World History teacher reported that he needed better exam preparation, and although he had been working consistently, his homework dropped off at the end (id.). In Critical Thinking, the student received a "Pass," (Parent Ex. H at p. 4). His Critical Thinking teacher commented that the student worked hard at the end of the semester and satisfactorily completed his assignments (id.).
A March 2005 end of term report indicated that the student earned the following grades: D, Spanish; D+, English; B, Music; B-, Physics; C, Algebra I; F, World History; Pass, Critical Thinking; Pass, Learning Skills (Parent Ex. N). His Spanish teacher noted that four out of five homework assignments were late (Parent Ex. N at p. 1). She commented that the student was completely capable of doing the class work, but that he has not used that ability (id.). His English teacher commented that the student's reading quiz grades were low, he was not doing his homework, and that his class participation was poor (id.). The student's English teacher also described him as having "a lot of potential," but he also recognized that the student "needs to apply himself" (id.). In Music, his teacher stated that the student contributed to class discussions, and that he would have received an A, but he failed to hand in a paper (Parent Ex. N at p. 2). The student's Physics teacher remarked that he demonstrated a strong, focused effort, having completed his assignments, and participated in class discussions (id.). His Algebra I teacher recommended that the student meet with him before the homework is due, for review and preparation for tests (Parent Ex. N at p. 3). The student's World History teacher commented that the student was unprepared for his exams (id.). He added that the student did not correct all of his exams for extra credit when offered the opportunity to do so (id.). His Learning Skills teacher recognized that the student had an aptitude for Math and Science, however, he struggled with reading comprehension and written essays (Parent Ex. N at p. 4). Although she enjoyed having him in her class, the Learning Skills teacher also noted that the student must be more proactive next term in order to stay ahead of his assignments (id.).
In June of 2005, toward the end of the student's ninth grade year at Oakwood, when he was 16 years, 11 months old, respondent conducted an evaluation using the Woodcock-Johnson Tests of Achievement-III (W-J-III) (Dist. Ex. 9). Subtest scores identified continued weakness in math calculation (SS 74; 4th percentile) and math fluency (SS 87; 19th percentile), reading fluency (SS 85; 16th percentile), word attack (SS 88; 20th percentile), writing fluency (SS 89; 23rd percentile) and writing samples (SS 82; 11th percentile).
On July 28, 2005, respondent's CSE subcommittee met for the student's annual review (Parent Ex. Q; Dist. Exs. 1, 2). For the 2005-06 school year, when the student was to be in tenth grade, the CSE recommended that he receive consultant teacher services in an integrated classroom for English, Global Studies and Math and also receive direct/indirect consultation services from a consultant teacher 2.5 times per week for 45 minutes (Dist. Ex. 1 at p. 2; Dist. Ex. 2 at p. 2; Parent Ex. Q at p. 1). Resource room was also recommended on a daily basis in a group of five for 42 minutes and individual counseling was recommended for 40 minutes on a bi-weekly basis (id.). It was also recommended that the student attend a Foundations of Reading Class and be provided various testing accommodations and program modifications (Dist. Ex. 1 at pp. 2-4; Dist. Ex. 2 at pp. 2-4; Parent Ex. Q at pp. 1-3). Goals and objectives were developed to address study skills, reading, writing, mathematics, social/emotional/behavioral needs and career and vocational activities (Dist. Ex. 1 at pp. 6-7; Dist. Ex. 2 at pp. 6-7; Parent Ex. Q at pp. 5-6). In making its recommendations, respondent's CSE considered recent evaluations, teacher reports and report cards from Oakwood, input from the student's Learning Skills teacher at Oakwood, input from respondent's staff and input from petitioners, who informed the sub-CSE during the meeting that they planned to send their son to Oakwood for the 2005-06 school year (Dist. Ex. 1 at p. 5; Dist. Ex. 2 at p. 5; Parent Ex. Q at p. 4; Tr. p. 99).
By letter dated August 3, 2005 to respondent's CSE, petitioners requested an impartial hearing (IHO Ex. 11). They contended that the program that was proposed for the 2005-06 school year was not appropriate for their son, and advised respondent's CSE that they would be seeking tuition reimbursement for Oakwood for the 2004-05 and 2005-06 school years.
On August 8, 2006, the IEP generated as a result of the July 2005 meeting was delivered to petitioners (Dist. Ex. 4). After clerical corrections were made, respondent delivered a final copy of the 2005-06 IEP to petitioners on October 18, 2005 (compare Dist. Ex. 27, with, Dist. Ex. 1; Tr. pp. 81-82).1
By letter dated October 24, 2005, through their attorney, petitioners amended their due process request for an impartial hearing (IHO Ex. 2). They asserted that respondent failed to offer their son a free appropriate public education (FAPE) during the 2004-05 and 2005-06 school years and requested tuition reimbursement and related costs for his attendance at Oakwood. Furthermore, petitioners contended that respondent violated its child find obligation under the Individuals with Disabilities Education Improvement Act (IDEA) during the school years of 1999-2000 through the 2003-04 school years and included a claim for compensatory education in the form of additional services.
Petitioners arranged for a private psychological evaluation of the student, which was conducted over a period of five days in November 2005 (Parent Ex. Z). At the time of the evaluation, the student was in the tenth grade and in his second year at Oakwood. Administration of the Wechsler Adult Intelligence Scale - III (WAIS-III) yielded a verbal IQ score of 82, a performance IQ score of 106, and a full scale IQ score of 91, and yielded index scores in the low average range on measures of verbal comprehension, working memory and processing speed (Parent Ex. Z at p. 4). On subtests of the WIAT-II, the student achieved standard scores of 98 in word reading, 105 in pseudoword decoding, 102 in reading comprehension, 98 in spelling, 73 in numerical operations and 100 in math reasoning (Parent Ex. Z at p. 10). Additional testing identified significant deficits in understanding abstract and figurative language, processing auditory/sequential information and speed and consistency of response to auditory information (Parent Ex. Z at p. 13). The evaluator offered a diagnosis of a developmentally-based language disorder and recommended that the student have unlimited time for test taking, a specialized location for exams, repetition of instructions with instructions presented both orally and in writing, testing using multiple choice questions instead of essays, presentation of material in multiple modalities, and waiver of the foreign language requirement (Parent Ex. Z at pp. 13-15). He did not diagnose the student with attention deficit hyperactivity disorder (ADHD) (Tr. p. 1005).
An impartial hearing took place on November 21, 2005 and after seven days of testimony, concluded on March 20, 2006. The impartial hearing officer rendered a decision on June 8, 2006, in which she denied petitioners' claims for tuition reimbursement for Oakwood for the 2004-05 and 2005-06 school years. The impartial hearing officer determined that respondent's 2004-05 proposed program was "barely adequate," and also concluded that petitioners did not establish that their son's placement at Oakwood for the 2004-05 school year appropriately met his special education needs (IHO Decision, p. 31). She further noted that petitioners failed to show that equitable considerations weighed in their favor and found that they failed in their obligation to inform respondent of their decision to enroll their son at Oakwood (IHO Decision, pp. 31-32). With regard to the 2005-06 school year, the impartial hearing officer held that respondent's proposed program for the 2005-06 school year was "adequate" and reasonably calculated to confer an educational benefit to the student (IHO Decision, p. 34). Accordingly, she denied petitioners' claims for tuition reimbursement for the 2004-05 and 2005-06 school years.
The impartial hearing officer also addressed petitioners' claims that respondent violated its obligation under the child find provisions of the IDEA, from the 1999-2000 through the 2001-02 school years, thereby warranting the remedy of compensatory education and/or additional services in the form of remedial tutoring.2 She determined that petitioners did not establish that respondent had a reason to suspect that special education services were required to address the student's special education needs and found that respondent did not violate its duty to fulfill its child find obligations (IHO Decision, p. 25). Accordingly, she denied petitioners' claim for additional services.
Lastly, the impartial hearing officer also considered petitioners' contention that they were denied their due process rights during the impartial hearing, after she ruled that petitioner father must leave the impartial hearing during a portion of petitioner mother's testimony, in light of respondent's counsel's intention to call him as a rebuttal witness (IHO Decision, pp. 34-35). She concluded that, because petitioner mother and counsel for petitioners were present throughout the impartial hearing, petitioners' due process rights to participate fully in the impartial hearing were not violated (id.). Moreover, the impartial hearing officer further found that petitioner father had full access to the record (id.).
On appeal, petitioners request that the impartial hearing officer's decision be annulled, and further request tuition reimbursement for Oakwood for the 2004-05 and 2005-06 school years. Specifically, they contend that the 2004-05 IEP was not appropriate to meet their son's special education needs, because the 2004-05 IEP: 1) failed to adequately describe their son's deficits in language processing, verbal and visual processing speed; 2) the goals listed in the 2004-05 IEP failed to contain interim benchmarks for each objective; and 3) the resource room program was inadequate. Petitioners also assert that the 2005-06 IEP was substantively deficient. In addition, petitioners argue that Oakwood was appropriate to meet their son's needs and that equitable considerations favor an award of tuition reimbursement. Petitioners also assert that they are entitled to an award of compensatory education, because respondent violated its obligation under the child find provisions of the IDEA, resulting in a denial of a FAPE during the 1999-2000 through the 2003-04 school years. Lastly, they contend that the impartial hearing officer impermissibly excluded petitioner father from a portion of the impartial hearing, thereby resulting in a denial of their due process rights. Respondent requests that the impartial hearing officer's decision be upheld in its entirety.
A central purpose of the IDEA3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ; 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 written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).4 "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532). 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 parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 . 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; see 20 U.S.C. § 1412 [a][C][ii]). With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][C][iii]; see Frank G. at * 17 ; Mrs. C. v. Voluntown, 226 F.3d 60, 66 n. 9 [2d Cir. 2000]).
The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. 226 F.3d at 66). 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 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 200.5[i]). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][E][iii]). 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 IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (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 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).
I will initially address the 2004-05 IEP. Although the impartial hearing officer concluded that the 2004-05 IEP was "barely adequate," she failed to articulate a basis for her opinion, as she did not address petitioners' contentions with regard to the 2004-05 IEP (IHO Decision, p. 31). I have thoroughly reviewed the 2004-05 IEP and I find that it was tailored to meet the student's special education needs.
Petitioners argue that the 2004-05 IEP is inadequate because it failed to adequately describe the student's deficits. The record reveals that the 2004-05 IEP identified the student's special education needs and addressed them. A review of the record indicates that the student has identified deficits in written language, organization and attention that affect his ability to complete assignments, and has a history of difficulty with math (Dist Ex. 28 at p. 2; Parent Ex. A; Tr. p. 270). The 2004-05 IEP noted math and writing weaknesses and elaborated on the student's difficulties by indicating that his difficulties emanated, in part, from "weaknesses in processing verbal information" which affect the student's progress in the general education curriculum (Dist. Ex. 15 at p. 2). The 2004-05 IEP expanded upon and clarified this description by describing his needs in the academic domain, noting that petitioners' son had difficulty processing large amounts of information and developing ideas for written assignments, and that he was sometimes reluctant to participate in class, which caused him to fall behind and affected his retention of information (id.).
To support the 2004-05 IEP's description of the student's special education needs, results of a WIAT administered on May 1, 2004 are listed on the 2004-05 IEP, as are results of a January 7, 2003 WISC-III (Dist. Ex. 15 at pp. 2-3). WISC-III results include the student's perceptual organization and freedom from distractibility scores, which were at the 42nd and 45th percentile, respectively (Dist. Ex. 15 at p. 3). With the exception of his written expression subtest score of 75 (fifth percentile), I note that the student's WIAT-II scores are commensurate with his scores achieved on the WISC-III (Dist. Ex. 15 at pp. 2-3).
In the social/emotional domain, the 2004-05 IEP described the student as "generally a nice and well-behaved student," whose abilities were within age-appropriate expectations and did not require special education services in this particular area (Dist. Ex. 15 at p. 3). Nevertheless, a review of the 2004-05 IEP reveals that the student had, on occasion, come to school with a "sullen attitude" (id.). The 2004-05 IEP also indicated that he needed assistance to manage, was "easily bored" and required constant "stimulation" (id.). While I find that these concerns do not rise to the level of requiring special education services and are in fact, not atypical of students at this age, I note that it was helpful to include this information on the IEP, although not required, as a cue to the student's teachers and as a means of tracking his progress in this particular domain.
In the management domain, the record shows that the student became unorganized and the 2004-05 IEP described the interventions recommended to address this concern, specifically, monthly monitoring of work behaviors in general education classes, additional time to complete classroom assignments, and teacher redirection to stay on task (Dist. Ex. 15 at p. 3). The 2004-05 IEP also noted that the student required tasks broken into small steps and reteaching of new material (id.).
Petitioners also argue that the goals enumerated in the 2004-05 IEP failed to contain interim benchmarks for each objective. The record reveals that the 2004-05 IEP expanded upon the above-description of the student's difficulty with organization by noting that he required special education intervention to address weaknesses in organizational skills and included study skills goals and objectives addressing attention and organization (Dist. Ex. 15 at pp. 3-4). A writing goal included objectives to address organization and development of topics (Dist. Ex. 15 at p. 4). The student's 2003-04 IEP did not include writing goals, but this goal was added based upon the recommendation of his resource room teacher from the 2003-04 school year, who testified that he recommended a writing goal after having identified written language as an area of need when assisting the student with his assignments (Tr. pp. 288, 351). The 2004-05 IEP also included a math goal with objectives to address the student's identified deficits in computation (Dist. Ex. 15 at p 4).
The 2004-05 IEP also included one career/vocational goal addressing the student's need to explore careers and express vocational interests (Dist. Ex. 15 at p. 4). While the record is not clear as to whether this goal was discussed at the CSE meeting, the student's 2003-04 resource room teacher testified that he had discussed this vocational goal with petitioners at a parents' conference before the May 2004 annual review (Tr. p. 358). The record also shows that the student's resource room teacher also had discussions with the student pursuant to that goal prior to recommending that it be included on the 2004-05 IEP (Tr. pp. 289-90).
Petitioners further contend that the 2004-05 IEP did not contain a measure to assess the student's progress towards mastering the enumerated goals. The record does not afford a basis for this assertion. Rather, the record reflects that all of the student's objectives listed on the 2004-05 IEP include criteria for determining progress in the form of percent of mastery and specify means by which mastery is to be evaluated (Dist. Ex. 15 at pp. 3-4). Means of evaluations include recorded observations, portfolio materials and informal interview (id.). I note, as did petitioners, that a target date of June 15 is listed for all of the objectives on the IEP, which would not have allowed for assessment and reporting of progress during the school year. Despite petitioners' assertion that the 2004-05 IEP did not provide a measure of the student's progress, the record indicates that the teacher who provided resource room services to the student during the 2003-04 school year testified that progress reports on goals and objectives were sent to parents on a quarterly basis (Tr. p. 284) and that this deficiency is corrected in subsequent IEPs (see Dist. Exs. 1-2; Parent Ex. Q).
The record also shows that in addition to goals and objectives, the student's 2004-05 IEP recommended testing accommodations of extended time (time and one-half) and testing in an alterative setting if needed (Dist. Ex. 15 at p. 1). Directions were to be read and explained, which the 2004-05 IEP noted is an accommodation required to address his processing delays (id.). Use of a calculator was recommended, as the 2004-05 IEP noted that this was required to accommodate the student's deficits in computation, and testing in a special location for unit, final, and State exams was recommended to reduce distractions (id.). Accordingly, I find that the recommended testing accommodations addressed the student's identified areas of deficit, attention, processing and math as these deficits affected testing situations.
In addition to testing accommodations, the 2004-05 IEP offered program modifications that included descriptions of the needs that required each modification (Dist. Ex. 15 at p. 2). Reteaching was recommended because the student's processing delays required more instruction, as the record shows that he generally does not master new information the first time it is taught (id.). Refocusing and redirection were also recommended because the student regularly daydreams in class (id.). With respect to the comment regarding his daydreaming, the recommended accommodation would alert teachers to the fact that, while this student may not appear inattentive because he is sitting quietly in his seat, it is important to ensure that he is focused upon instruction.
Lastly, petitioners contend that the student's proposed program for the 2004-05 school year was "woefully inadequate," given his poor performance during the prior school year. For the 2004-05 school year, the May 2004 CSE recommended that the student continue to receive resource room services 40 minutes per day (Dist. Ex. 15 at p. 1). The teacher who provided resource room services to the student during the 2003-04 school year testified regarding services provided during that school year, explaining how he assisted the student with completion of assignments and preparation for tests and describing techniques he used to provide instruction in writing (Tr. pp. 275, 278-81). The resource room teacher also described how he addressed the student's organization needs and test accommodations (Tr. pp. 270, 273), as well as how he communicated with the student's general education teachers beyond the student's 40-minute resource room period to facilitate academic success (Tr. pp. 271-73).
While the student's grades did not reflect successful academic performance during the 2003-04 school year, the student's resource room teacher testified that the student made some progress, but that his progress was variable (Tr. pp. 272-74, 276). The resource room teacher opined that the student's progress was related to the completion of assignments, and noted that his "scores went up" and his general education teachers reported improvement when the student completed assigned work (Tr. pp. 292, 321). The resource room teacher also testified that the student had made progress towards his IEP goals and objectives during the third quarter of the 2003-04 school year when he had stayed for extra homework help, and noted that homework was part of reteaching the student (Tr. pp. 284, 334). Regarding progress, the record reflects that the student's May 1, 2004 WIAT-II scores indicate that, despite the student's poor report card grades, he made progress in the area of math computation, as his WIAT-II subtest standard score of 98 for numerical operations was at the 45th percentile and represents a significant increase when compared to his standard score of 77 (sixth percentile) on the math computation subtest of the WIAT-II administered in December 2002 (Dist Ex. 28 at p. 2). Finally, I note that petitioners were present when the 2004-05 IEP was developed and did not object to the level of services recommended (Tr. pp. 167-68, 290).
Based on the foregoing, I find that the record demonstrates that respondent afforded petitioners meaningful parental participation in formulating the 2004-05 IEP and further find that because the 2004-05 IEP was reasonably calculated to enable the student to receive educational benefit, petitioners' son was offered a FAPE for the 2004-05 school year (see Cerra, at 194-95).
I now turn to petitioners' claims with respect to the 2005-06 IEP. Petitioners assert that the present levels of performance listed on the 2005-06 IEP inaccurately and incompletely reflect his areas of deficit. The record indicates that in the description of the student's present performance levels, in a statement describing how his disability affects his involvement and progress in the general education curriculum, the 2005-06 IEP again noted that he has "weaknesses in processing verbal information, as well as difficulties with math computation and concepts, and written expression that affect his progress in the general education curriculum" (Dist. Ex. 1 at p. 4; Dist. Ex. 2 at p. 4; Parent Ex. Q at p. 3). The 2005-06 IEP again expanded upon and clarified this information by describing the student's needs in the academic domain, noting that he has difficulty processing large amounts of information, has difficulty developing ideas for written assignments, and has difficulty with math computation and concepts (id.). Updated standardized test scores were included on the 2005-06 IEP (see Dist. Exs. 1, 2; Parent Ex. Q). Specifically, results of the administration of the Woodcock-Johnson Tests of Achievement conducted in June 2005 were included on the document, and results of a May 2004 administration of the WIAT were maintained, allowing for review and comparison of scores before and after the student had completed his first year at Oakwood (Dist. Ex. 1 at p. 4; Dist. Ex. 2 p. 4; Parent Ex. Q at p. 4).
In order to address these needs, the 2005-06 IEP noted that the student required tasks broken into small steps and reteaching of new material. Additionally, as in the 2004-05 IEP, the 2005-06 IEP noted that the student required special education intervention to address weaknesses in written expression and organizational skills. Consistent with results of the June 2005 administration of the Woodcock-Johnson Tests of Achievement, which identified regression in reading and math when compared to the results of the WIAT administered in May 2004, the 2005-06 IEP also included a statement indicating that the student now required intervention in reading and math (Dist. Ex. 1 at p. 4; Dist. Ex. 2 at p. 4; Parent Ex. Q p. 3). The 2005-06 IEP included goals and objectives addressing each of these identified areas of need (Dist. Ex. 1 at pp. 6-7; Dist. Ex. 2 at pp. 6-7; Parent Ex. Q at pp. 5-6). To ensure implementation of the 2005-06 IEP, the record shows that the July 2005 CSE recommended that the student receive consultant teacher services in English, Global Studies and Math in an integrated program offering special education assistance in general education, with direct instruction from a general education teacher and the services of a special education teacher who would provide compensatory strategies and support (Dist. Ex. 1 at pp. 2, 7; Dist. Ex. 2 at pp. 2, 7; Parent Ex. Q at pp. 1, 6). Remedial reading support from a reading specialist was also recommended to address reading deficits (Dist. Ex. 1 at pp. 2, 6; Dist. Ex. 2 at pp. 2, 6; Parent Ex. Q at pp. 1, 5). Lastly, resource room services were recommended to assist the student with planning and organizing and indirect and direct services of a consultant teacher were recommended to monitor his progress (Dist. Ex. 1 at pp. 2, 7; Dist. Ex. 2 at pp. 2, 7; Parent Ex. Q at pp. 1, 6).
The record also reveals that program modifications of reteaching, refocusing and redirection were duplicated from the 2004-05 IEP and rationales related to the student's needs which were to be addressed by these modifications were again articulated (Dist. Exs. 1 at p. 3, 2 at p. 3; Parent Ex. Q at p. 2). Access to a computer was added to the recommended program modifications, as was access to books on tape in order to address recently identified reading problems (id.). Recommended testing accommodations included an increase of extended time from time and one-half to double time in an alternative setting if needed, and a recommendation of a flexible setting to reduce distraction was expanded to all tests and not just specific exams (id.). As in the 2004-05 IEP, I find that the recommendations, modifications and accommodations proposed for the 2005-06 school year appropriately addressed the student's three identified areas of deficit - attention, processing and math.
In the social/emotional domain, the 2005-06 IEP described the student as able to interact appropriately with peers and adults, but that he had difficulty functioning in large group settings, which could cause him to encounter academic difficulties, and that he also had difficulty adjusting to new transitions (Dist. Ex. 1 at p. 4; Dist. Ex. 2 at p. 4; Parent Ex. Q at p. 3). In order to assist the student with these areas of need, the record shows that bi-weekly counseling was recommended as a related service in order to improve his self-awareness and self-concept and to assist in developing his ability to seek appropriate assistance (Dist. Ex. 1 at p. 5; Dist. Ex. 2 at p. 4; Parent Ex. Q at p. 4). A counseling goal listed on the 2005-06 IEP had objectives addressing these two areas (Dist. Ex. 1 at p. 7; Dist. Ex. 2 at p. 7; Parent Ex. Q at p. 6).
Petitioners also claim that the nature and frequency of the consultant teacher services was insufficient to assist the student with processing information in his regular classes. The record fails to support this assertion. Rather, the record indicates that the special education teacher who would have provided services to the student during the 2005-06 school year testified regarding how the recommended consultant teacher model would have been implemented (Tr. pp. 400-01, 407-08). She described in detail how each of the student's areas of need would have been addressed (Tr. pp. 417-22). The special education teacher also provided detailed explanations of how each of the student's goals would have been implemented, offering examples of specific strategies used (Tr. pp. 424-28). She described the recommended resource room services and explained how she communicated with general education teachers who provided instruction to the students in her class and coordinated homework assignments with these teachers, and she also described the recommended Foundations of Reading course (Tr. pp. 410-11, 428-29). Finally, she indicated how she communicates with the reading specialist who teaches that course. (Tr. pp. 450-51).
Lastly, petitioners assert that the resource room proposed in the 2005-06 IEP was not composed of students whose needs were similar to those of their son. Despite petitioners' contention, the record shows that the special education teacher who would have provided services to the student during the 2005-06 school year described the four students in the resource room to which petitioners' son would have been assigned (Tr. p. 402). She opined that, based upon her review of the student's 2005-06 IEP, their needs were similar to his special education needs (Tr. pp. 413-14).
Under the circumstances, I conclude that the record amply demonstrates that program recommended in the 2005-06 IEP was reasonably calculated to enable the student to receive educational benefit. Accordingly, I find that petitioners' son was offered a FAPE for the 2005-06 school year.
Having determined that the challenged IEPs adequately offered a FAPE to petitioners' son for the 2004-05 and 2005-06 school years, I need not reach the issue of whether or not Oakwood was appropriate; petitioners are not entitled to reimbursement at Oakwood for the 2004-05 and 2005-06 school years, and the necessary inquiry is at an end (Voluntown, 226 F.3d at 66; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).
I must now address petitioners' claims that respondent failed to identify, evaluate and provide an appropriate program for the student during the 1999-2000 through the 2003-04 school years, thereby violating its child find obligations under the IDEA. Petitioners claim that an award of compensatory education in the form of additional services consisting of tutoring is warranted in order to remedy a gross procedural violation of the IDEA, subsequently resulting in a denial of FAPE to the student during the school years in question.
With respect to petitioners' child find claims, the IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.125[a][i]; 8 NYCRR 200.2[a]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n. 13 [N.D.N.Y. 2004]). The child find requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125[a][ii]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41).
The impartial hearing officer concluded that the record did not support a finding that respondent violated its child find obligations (IHO Decision, p. 25). She further determined that respondent had no reason to suspect that the student was learning disabled. I concur. First, petitioners assert that, in light of the results of the ADDES administered in November 1999 and years of academic struggle together with the student's retention in first grade, a referral to the CSE was warranted. The results of the ADDES report did not reveal a disability, nor was the report conclusive for a diagnosis of ADHD (Parent Ex. A; Tr. p. 1221). The school psychologist who conducted the assessment reported that the results of the examination did not raise any concerns (Tr. pp. 561-62). Furthermore, although the school psychologist indicated that there were concerns about the student's attention, a CSE referral was not warranted at that time because his inattention subscale score on the school version of the ADDES fell within the average range (Tr. p. 1223). I have reviewed the impartial hearing record along with petitioners' claims regarding respondent's alleged failure to evaluate and provide special education services to their son during the 1999-2000 through the 2003-04 school years and find this contention to be without merit. Moreover, any claim that arose prior to two years before petitioners' October 24, 2005 impartial hearing request is barred as untimely by application of the two-year statute of limitations in effect at the time of petitioners' impartial hearing request (20 U.S.C. §1415(f)(3)(C); see Application of a Child with a Disability, Appeal No. 06-075; Application of a Child with a Disability, Appeal No. 05-106).
Petitioners also assert that respondent exacerbated its failure to comply with its child find duties, because respondent failed to furnish them with a copy of the November 1999 report. Petitioner mother claims that she first saw the November 1999 report in September 2005, while preparing for her son's impartial hearing (Tr. p. 562). After a review of the record, I agree with the impartial hearing officer's finding that the record does not support the conclusion that respondent failed to provide petitioners with a copy of the November 1999 report. Notwithstanding petitioner mother's testimony that she did not see the report until September 2005, and therefore, she was unaware of its existence, the report indicates that petitioners were copied on the report (Parent Ex. A at p. 2). The record does not indicate that respondent failed to mail a copy of the report to petitioners. Based on the foregoing, the record does not support petitioners' contention that they were not provided a copy of the ADDES results until September 2005.
I have considered petitioners' remaining contentions, including their assertion that they were denied their due process rights at the impartial hearing, and find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
September 13, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 Petitioners assert that respondent made clerical corrections to the 2005-06 IEP in order to strengthen its position at the impartial hearing, however they did not present evidence to support this proposition. After an independent review of the record, I find that the record does not afford a basis for this assertion, and this argument is without merit.
2 Pursuant to petitioners' impartial hearing request, petitioners requested additional services in the form of individual remedial tutoring during the period of the1999-2000 through the 2003-04 school years (see IHO Ex. 2). I also note that the Petition and Answer both reference the period of 1999-2000 through the 2003-04 school years, accordingly, I will consider petitioners' claims with respect to those school years (see Petition ¶ 26; Answer, p. 6).
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 Improvement Act of 2004 [IDEA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute, as it existed prior to the 2004 amendments. The relevant events with respect to 2004-05 IEP in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply to the development of the 2004-05 IEP. However, the IDEA was amended effective July 1, 2005 (see Pub. L. No. 108-446, 118 Stat. 2647 [H.R. 1350] [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since the underlying events with respect to the development and formulation of the 2005-06 IEP occurred subsequent to that date, all references to the IDEA used herein refer to the newly amended provisions of the IDEA 2004, unless otherwise specified.