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

No. 06-075  

 

 

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

 

 

Appearances:
Ingerman Smith, LLP, attorney for respondent, Emily Lucas, Esq., of counsel

 

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which determined that respondent's Committee on Preschool Special Education (CPSE) properly declassified petitioners' daughter, and denied their request for reimbursement for the services provided by a private "educational therapist" that they obtained for their daughter during the 2003-04, 2004-05, and 2005-06, school years.  The Board of Education cross-appeals from those parts of the hearing officer's determination that applied a two-year statute of limitations to petitioners' claims and that part that found respondent failed to adequately evaluate petitioners' daughter in 2005-06 in all areas of suspected disability and ordered the district to pay for an independent educational evaluation (IEE) specifically to assess the child's written expression.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

            At the time of the district's request for an impartial hearing on February 1, 2006 and petitioners' request for an impartial hearing on February 17, 2006 (see IHO Decision at pp. 2-3, 34; Pet. at p. 1; Ans. at 1), petitioners' daughter was seven years old and attending first grade regular education classes at St. Augustine's, a private parochial school in respondent's district (see Dist. Ex. 9 at p. 2; Tr. p. 6).

In early 2003, when petitioners' daughter was four years old, her parents noticed she "could not learn the alphabet" and "wrote everything in mirror image" (Tr. p. 528).  Because of a concern that their daughter used immature grammar and had difficulty using pronouns correctly, petitioners referred their daughter to respondent's CPSE sometime in late spring 2003 (see Parent Ex. D at pp. 3-4).  Petitioners also enrolled their daughter in a preschool program at St. Augustine's for the following 2003-04 school year (Dist Ex. 9 at p. 2; see Parent Ex. D at pp. 4, 15).

During summer 2003, respondent arranged for a series of evaluations for the child, including a social history, a psychological evaluation, an educational evaluation, and a speech-language evaluation (Parent Ex. D).  The speech-language evaluation included administration of the Preschool Language Scale-Fourth Edition (PLS-4), which yielded a receptive language standard score of 108 and an expressive language score of 105 (Parent Ex. D at p. 16).  The speech-language evaluation report stated that there was significant variability in the clarity and quality of the child's expressive language skills; however, the evaluator noted this difficulty was not reflected in the child's performance on the expressive language portion of the PLS-4 (Parent Ex. D at p. 18).  The child achieved a standard score of 98 on the Goldman-Fristoe Test of Articulation-Second Edition (GFTA-2), although the speech-language pathologist observed that the child demonstrated a variable articulation pattern (Parent Ex. D at pp. 16-17).  She concluded by noting that in spite of difficulties in some areas, the child possessed adequately developed oral language skills to score well within the expected range on articulation and language measures at the time, but could be at risk for having difficulty once language progresses beyond the oral stage (Parent Ex. D at p. 18).  She noted that eligibility of services was to be determined by the CPSE, and recommended some informal strategies for petitioners to use at home (Parent Ex. D at p. 19).  The psychological evaluation included administration of the Stanford-Binet Intelligence Scale-Fourth Edition (Stanford-Binet-4), to the child that yielded a test composite standard age score of 102 (Average) (Parent Ex. D at p. 6).  The psychologist concluded that the child exhibited average cognitive abilities but with a significant discrepancy between her verbal and nonverbal comprehension abilities, and noted difficulty in the area of visual perceptual skills (Parent Ex. D at p. 9).  Articulation errors, immature grammar and the incorrect use of pronouns were also noted (id.).  An educational evaluation of the child was recommended to further assess her areas of weakness identified by the cognitive evaluation and was completed by a special education teacher (Parent Ex. D at pp. 9, 12-14).  Administration of the Hawaii Early Learning Profile (HELP) to the child assessed her skills in six domains (Parent Ex. D at pp. 12-13).  The child did not exhibit delays in the gross motor, fine motor, social-emotional and self-help domains (id.).  The special education teacher reported the child exhibited "at most" a three-month delay in her cognitive abilities, and that her expressive language skills were "significantly delayed" (Parent Ex. D at p. 14).  The educational evaluation report stated that the child demonstrated delays in auditory memory and auditory processing skills (Parent Ex. D at pp. 13, 14).  The special education teacher opined that the child would benefit from speech-language therapy to address her articulation deficits, poor sentence structure and word retrieval difficulties (Parent Ex. D at p. 14).  She also suggested consideration of special education services to address the child's auditory memory and processing delays (id.).

On September 17, 2003, the CPSE classified petitioners' daughter as a preschool student with a disability due to "word retrieval and language processing delays" (Dist. Ex. 19 at p. 3) and developed a preschool individualized education program (IEP) for her for the 2003-04 school year, which provided her with individual speech-language services twice per week for 30 minutes in the home and a 30 minute speech-language consultation once per month in the home (Dist. Ex. 19).  The preschool IEP noted that the child had "a significant delay in speech skills, language skills, which inhibits participation in age appropriate activities" and that she needed improvement in speech articulation and required refocusing and redirection (Dist. Ex. 19 at pp. 1-2).  The preschool IEP included one annual goal and five short-term objectives to address the child's deficits in articulation and phonological speech skills (id. at p. 4).  For the 2003-04 school year, petitioners' daughter attended preschool at St. Augustine's and a preschool speech-language pathologist provided the speech-language services in petitioners' home (see Dist. Ex. 9 at p. 2; Dist. Ex. 26).

Monthly progress notes by the preschool speech-language pathologist providing the child's IEP services for the 2003-04 school year indicated that the child made "steady progress" toward her IEP articulation goals and objectives throughout the year (Dist. Ex. 26 at pp. 2, 4, 6, 8, 10, 12, 14), and noted that by February 2004 the parent had noticed a "significant improvement outside of therapy sessions" (Dist. Ex. 26 at p. 10).  Starting in November 2003 and continuing through the 2003-04 school year, the parents also began providing the child with an additional one hour per week of private educational services which focused on teaching the child auditory discrimination strategies and using manipulatives and compensatory strategies to assist her in reading and learning the alphabet (Parent Exs. E, H; Tr. pp. 143-46, 149-50, 165-66).  The private educational therapist focused primarily on the child's pre-reading and phonemic awareness skills using a multisensory approach (Tr. pp. 143-46, 149).  The private educational therapist stated she worked to keep the child "at least six months, if not more, ahead of the class" (Tr. p. 145; see Tr. p. 180).  She described the services she provided to petitioners' daughter as "remediation" (Tr. p. 171).  These private educational services continued for the next several years (see Parent Ex. H; Tr. pp. 146, 159-60). 

In her year-end May 2004 progress report, the preschool speech-language pathologist noted that by the end of the school year petitioners' daughter exhibited the ability to carry over target sounds into spontaneous conversation and had succeeded in almost eliminating the use of the developmental phonological process of palatal fronting in conversational speech, and estimated that her connected speech was intelligible to an unfamiliar listener 95-100 per cent of the time (Parent Ex. D at p. 20).  Administration of the Preschool Language Scale-Third Edition (PLS-3) to the child yielded a receptive language standard score of 103 and an expressive language score of 104 (Parent Ex. D at p. 20); however, the preschool speech-language pathologist noted that the child appeared to have difficulty with word retrieval and often substituted a word of similar meaning when unable to produce a specific word (id.).  The preschool speech-language pathologist also administered the Test of Auditory Processing Skills-Revised (TAPS-R) to assess the child's auditory processing skills (Dist. Ex. 24) and found that the child scored below age level on four out of seven subtests (see Parent Ex. D at p. 20).  She concluded that the child's receptive and expressive language skills were both age-appropriate, but because the child was still having some relative difficulty with word retrieval and auditory-perceptual skills, she recommended that petitioners' daughter continue to receive "remediation" (Parent Ex. D at p. 21). 

            Prior to the child's exit from preschool, on June 1, 2004 respondent's CPSE met for an annual review to discuss the child's transition into kindergarten for the upcoming 2004-05 school year and to ascertain the child's need for continued special education services (Tr. p. 474; Dist. Ex. 20).1  The child's parent was present at the meeting, as were the child's preschool speech-language pathologist, her preschool teacher, a regular education teacher, the chairperson, the school psychologist and an additional speech-language pathologist from the district (see Dist. Ex. 20).  The CPSE reviewed and discussed the child's preschool speech-language pathologist's progress reports (Dist. Ex. 26; Parent Ex. D at pp. 20-21), results from the recently administered PLS-3 and TAPS-R (see Parent Ex. 20), a recent classroom observation, an audiological evaluation, and results from the child's 2003 evaluations (see Dist. Ex. 20; Tr. pp. 398-400, see also Tr. pp. 466-67).  The child's preschool teacher reported that in preschool the child had become more confident in her use of language and had taken on a leadership role with peers and generated new ideas, while remaining somewhat more timid with adults (see Dist. Ex. 20 at p. 1).  Respondent's speech-language pathologist reviewed the child's TAPS-R scores and commented that when the child's age equivalent scores were converted into standard scores and percentiles, her scores were average, and that, based on this and the year-end speech-language report, the child no longer qualified for special education services (Tr. pp. 398-402).  The CPSE concluded that the child could be declassified (Dist. Ex. 20).  As a transition support service, the CPSE recommended a consultation between the child's preschool speech-language pathologist and her kindergarten teacher for the following school year (Dist. Ex. 20).  A notice of Committee Recommendation for Declassification was sent to petitioners on June 3, 2004 (Dist. Ex. 20 at p. 3).

For the 2004-05 school year, the child attended regular education kindergarten classes at St. Augustine's (see Dist. Ex. 22).  The child's grades in kindergarten, as noted on her report card, revealed "very good progress" in the majority of areas, including auditory development and language development, with "satisfactory progress" noted in the remainder of areas; no areas were noted as needing improvement (Dist. Ex. 22).  Teacher comments related that the child was "progressing nicely; good effort" (Dist. Ex. 22).  The child's mother noted that the child was still sometimes "writing backwards," but overall thought the child was "doing fine" academically in kindergarten, which she attributed to the extra help the child was receiving from the private educational therapist one hour per week (Tr. p. 534). 

For the 2005-06 school year, petitioners' daughter was enrolled in regular education classes in the first grade at St. Augustine's (see Dist. Ex. 8).  The child's first quarter report card consisted of all A+s and A's, with one B+ in penmanship (Dist. Ex. 8).  Teacher comments indicated that petitioners' daughter was "off to a great start" (Dist. Ex. 8; see Tr. pp. 488-89).  In November 2005, due to their continuing concerns over their daughter's auditory processing and expressive language skills, petitioners referred their daughter to the CSE for evaluation (Dist. Exs. 1-6; see Tr. pp. 9-10, 27).  In their referral letter, petitioners specifically noted as areas of concern their daughter's low scores on four out of seven of the subtests of the 2004 TAPS-R, her score on the Abstract/Visual Reasoning portion of the Stanford-Binet-4, as well as her difficulties with syntax, auditory memory, auditory processing, accessing words and phonemes and sequencing phonemes, and what they described as a "significant delay in expressive language" (Dist. Ex. 1).  The district conducted a series of evaluations of the child in December 2005 and January 2006 to determine whether the child was classifiable as a child with a disability and eligible for special education services; these evaluations included a social history (Dist. Ex. 9), a speech-language evaluation (Dist. Ex. 10), an educational evaluation (Dist. Ex. 11), a psychological evaluation (Dist. Ex. 13), a teacher checklist (see Dist. Ex. 10 at p. 5), a teacher report (Dist. Ex. 14), and a classroom observation (Dist. Ex. 12). 

In December 2005, a speech-language evaluation was conducted (Dist. Ex. 10).  As part of the speech-language evaluation, the district's speech-language pathologist administered three standardized tests: the Expressive One Word Picture Vocabulary Test (EOWPVT) and the Test of Language Development Primary (TOLD P:3) to measure the child's word retrieval as well as expressive and receptive language skills (see Tr. pp. 198-99, 204), and the Test of Auditory Perceptual Skills-3 (TAPS-3) to measure processing of auditory information (see Dist. Ex. 10; Tr. p. 206).  The child achieved a spoken language quotient standard score of 105 and a listening quotient of 115 on the TOLD-P:3 (Dist. Ex. 10 at p. 2).  The child's subtest scores on the TAPS-3 were in the average to high average range, with an overall standard score of 112, a phonologic score of 119, a memory score of 103 and a cohesion score of 120; a relative weakness identified in word memory was still within the average range (Dist. Ex. 10 at pp. 2-4; Tr. p. 211).  Administration of the EOWPVT yielded a standard score of 92 (Dist. Ex. 10 at p. 2).  In addition, the speech-language pathologist collected a language sample of the child and determined that her mean length of utterance (MLU) was appropriate for her age (Dist. Ex. 10 at p. 3, see Tr. pp. 184-87; see Dist. Ex. 21), and that her use of spontaneous language was generally within normal limits (Dist Ex. 21; Tr. pp. 187-88).  The evaluator found that the child's articulation skills, parameters of voice and fluency skills were all within normal limits (Dist. Ex. 10 at p. 3).  The speech-language pathologist concluded that the child performed in the average to above average range on all assessments administered (Dist. Ex. 10 at p. 5).  Her evaluation report stated that while still within normal limits, the child exhibited weaker skills in grammar and word retrieval (id.).  Regarding the child's word retrieval abilities, the speech-language pathologist noted that at times the child responded that she did not know an answer, when all that was needed was a cue or time to formulate her response (id.).  The speech-language pathologist recommended that the child "remain in her classroom for learning since a classifiable disability is not demonstrated" (id.).  The evaluation report contained a number of strategies to address the child's language weaknesses, to be implemented at home and in school (Dist. Ex. 10 at pp. 5-6).

The child's educational evaluation was conducted in January 2006 by one of respondent's school psychologists, and included administration of the Woodcock-Johnson III Tests of Achievement (WJ III), two oral language subtests of the Wechsler Individual Achievement Test – Second Edition (WIAT II), and five early literacy Curriculum-Based Measurements (CBMs) (Dist. Ex. 11).  Petitioners' daughter's scores on the WJ III subtests measuring reading, math, picture vocabulary and were all in the average range, and her word attack subtest score was in the high average range (Dist. Ex. 11 at p. 1).  On the WIAT II, the child's standard scores for the listening comprehension (115) and oral expression (106) subtests yielded a composite oral language standard score (112) in the high average range (Dist. Ex. 11 at p. 2).  In addition, the child achieved scores in the "instructional" range (scores between the 25th and 75th percentile) on four of five CBMs of reading that compared the child's level of achievement to peers in the district (Dist. Ex. 11 at p. 3).  The school psychologist concluded that petitioners' daughter placed in the average to high average range on all subtests that measured her academic skills and that she demonstrated skills similar to peers in all areas of reading and language development as well as math operations and applications. (Dist. Ex. 11 at pp. 3-4, 5).  He reported the child performed slightly lower than peers in quickly saying letter sounds on one CBM, for which he recommended additional practice (id.).

Also in January 2006 a psychological evaluation of the child was conducted and involved administration of the Wechsler Preschool and Primary Scale of Intelligence – Third Edition (WPPSI-III), which yielded a verbal IQ score of 110 (Average), a performance IQ score of 112 (High Average), and a full scale IQ score of 115 (High Average) (Dist. Ex. 13 at pp. 2, 3).  Her processing speed ability was in the average range (Dist. Ex. 13 at pp. 3, 4; Tr. pp. 297, 301).  The child's scaled scores on all subtests of the WPPSI-III were in the average to high average range (Dist. Ex. 13 at pp. 2-4).  The school psychologist reported that the child required a five-second "think time" pause in order to provide a verbal response, after which the child provided a grammatically correct response (Dist. Ex. 13 at p. 2; Tr. p. 296); the school psychologist attributed this to the fact that the child really wanted to perform well and give the appropriate response (Tr. p. 296).  Petitioners' daughter was described by the school psychologist as a child who was pleasant and "somewhat shy," but comfortable and eager to work, who did not initiate conversation but responded appropriately to questions when asked and maintained a good level of concentration, preserving on the more difficult items (Dist. Ex. 13 at p. 2; see Tr. pp. 295-98).  The psychological evaluation report stated that the results of this evaluation were similar to the results of the cognitive evaluation of the child conducted in 2003, with the exception that the current evaluation indicated higher functioning in the area of visual spatial skills (Dist. Ex. 13 at p. 3).  The school psychologist determined that the results revealed that petitioners' daughter was "a student with average verbal skills, high average performance skills, average processing speed abilities, and high average cognitive abilities" (Dist. Ex. 13 at p. 3).  The test results showed no indication to the school psychologist that the child exhibited a speech or language impairment (Tr. p. 308).

The school psychologist conducted a classroom observation of the child on January 11, 2006 (Dist. Ex. 12).  The evaluator noted that the child kept up with the class in reading a passage and appeared to comprehend the material (Tr. p. 299).  The evaluator noted that while the child took some time in responding to questions, she gave the appropriate responses (Dist. Ex. 12 at p. 2; see Tr. pp. 299-300).  The evaluator assessed the child in areas of social-emotional, management, and behavioral characteristics and found the child exhibited no evidence of any difficulties in these areas in the classroom (Dist. Ex. 12).  A report from the child's first grade teacher described the child as happy and comfortable in class and as getting along well with her peers, although a little shy (Dist. Ex. 14).  She noted that the child seemed to take more time to process questions, but seemed to understand the concepts in all subject areas and was a conscientious worker (id.; see Tr. pp. 488-493). 

The CSE convened on January 24, 2006 to review the results of the evaluations and to determine if the child was eligible for special education services (Dist. Ex. 7).  Petitioners were present at the meeting (id.), shared a list of their concerns (Tr. p. 310; see Dist. Ex. 23), and provided a recent assessment summary report dated January 20, 2006 from the child's private educational therapist, which was reviewed by the other members of the CSE (see Dist. Ex. 16; Tr. p. 35).  The report noted that the child's strengths were in the areas of short-term memory and comprehension, blending of phonological sounds, and motor skills (Dist. Ex. 16).  The private educational therapist reported that the child demonstrated weaknesses in the areas of abstract reasoning, visual reasoning and "quick responses to oral questioning" (id.).  The summary report contained numerous management strategies to assist the child, such as allowing extra time to answer a question and repeating directions (id.).  The educational therapist administered a "profile" to the child, which categorized her as a "non-traditional" learner, and suggested a variety of multisensory teaching methods and learning strategies (id.).

At the CSE meeting, petitioners' raised several concerns regarding the district's evaluations (see Tr. pp. 310-318; Dist. Ex. 23).  Petitioners pointed to their daughter's percentile rank on one subtest of the EOWPVT, her low score for quickly saying letter sounds on one of the CBMs, as well as the discrepancy between her standard scores on the reading fluency (93) (Average) and math fluency (91) (Average) subtests of the WJ III in relation to her full scale IQ score of 115 (High Average), as evidence that their daughter had a disability (see Dist. Ex. 23).  These subtest scores were discussed and explained by the school psychologist as being within normal limits when viewed in relation to the rest of the child's scores and her actual performance in the classroom (Tr. pp. 312-17; see Tr. pp. 41-43).  In reference to petitioners' concern in their referral letter about their daughter's low scores on certain subtests in the May 2004 administration of the TAPS-R, the district's speech-language pathologist explained that the child appeared to score low in four out of seven subtests of the TAPS-R because the evaluator used a less precise measure of age equivalents to score the test, rather than the more generally accepted measure of standard scores used at the State level and by the district (Tr. pp. 217-18; see Tr. pp. 398-402).  She explained that when the TAPS-R results were reported as standard scores, petitioners' daughter's scores on those subtests were in the average range (Tr. p. 402).  On the more recent December 2005 administration of the TAPS-3, the child's subtest scores were in the average to high average range, with an overall standard score of 112 (Dist. Ex. 10 at pp. 2, 4-5; Tr. p. 119).  The CSE chairperson and the district's speech-language pathologist pointed to the lack of any sign of a negative impact on the child's educational performance at school (Tr. pp. 37, 190, 194, 218), noting that her most recent report card contained all A's and A+s with one B+ (Dist. Ex. 8).  The IEP comment section indicated that the child's first grade teacher reported to the CSE that the child was "respectful, cooperative" and that she was making good academic progress (Dist. Ex. 7 at p. 1).  The teacher also reportedly noted, in relation to the child's expressive language skills, it took the child longer to respond to questions, but when given time she would most often respond correctly (id.).  Respondent's speech-language pathologist and school psychologist stated that they had observed that the child sometimes took a few seconds to respond during testing, but that it was within normal limits and they attributed it to the child being conscientious and a bit shy (Tr. pp. 220, 295-98). 

After reviewing and discussing the evaluative data, including the speech-language evaluation report (Dist. Ex. 10), the psychological evaluation report (Dist. Ex. 13), the educational evaluation report (Dist. Ex. 11), the private educational therapist's report (Dist. Ex. 16), the social history (Dist. Ex. 9), the classroom observation (Dist. Ex. 12), the child's teacher's written report and verbal comments (Dist. Ex. 14), the child's report card (Dist. Ex. 8), and a recent physical evaluation report (Dist. Ex. 15) (see Dist. Ex. 7 at p.2; Tr. pp. 26-43, 219), the CSE determined that petitioners' daughter was not eligible for special education services (Dist. Ex. 7).  Respondent's speech-language pathologist provided petitioners with materials designed to improve skills in the child's areas of relative weakness, and encouraged petitioners to contact her for additional consultation as needed (Dist. Ex. 7 at p. 1).  Petitioners disagreed with the district's evaluations, and the next day requested an IEE at the district's expense (see Dist. Exs. 17, 18). 

On February 1, 2006 respondent requested an impartial hearing to defend its evaluations (see IHO Decision at pp. 2-3; Ans. 1).  A resolution session was held on February 17, 2006, after which petitioners filed their own request for a due process hearing, challenging the CPSE's declassification of their daughter in 2004, and also challenging the appropriateness of respondent's 2005-06 evaluations and requesting an IEE (see IHO Decision at pp. 2-3, 34; Pet. at p. 1; Ans. 1).  A resolution session was held on the parents' impartial hearing request on March 1, 2006, wherein the parties agreed to consolidate both hearing requests into the same impartial hearing (Tr. p. 3; IHO Decision, p. 2; see also IHO Ex II).  A prehearing conference was held on March 15, 2006 (IHO Ex. II; see Tr. p. 5).  The impartial hearing was held on March 17, 2006 and April 28, 2006.  Petitioners were not represented by an attorney at the hearing (see Tr. p. 5).  At the end of the impartial hearing, extensions were granted to submit briefs, and a decision was rendered on June 19, 2006 (see IHO Decision).

In her decision, the impartial hearing officer applied the IDEA's two-year statute of limitations and found that respondent conducted proper evaluative testing prior to declassifying the child in June 2004, and she denied petitioners' request for reimbursement for private educational therapist's services for the child for the 2003-04, 2004-05, and 2005-06 school years.  In addition, the impartial hearing officer found that respondent's 2005-06 educational evaluation of the child was inappropriate, but only insofar as it lacked an evaluation of the child's written expression skills and ability, and ordered the district to pay for the cost of an independent evaluation for the child in the area of written expression.  Petitioners timely submit a pro se petition appealing the determination of the impartial hearing officer, objecting to her finding that their daughter was properly declassified and objecting to her order limiting the scope of the IEE to an evaluation of written expression.  Petitioners raise on appeal several alleged procedural violations in their daughter's declassification process that were not raised in their original due process hearing request nor sufficiently raised at the hearing itself.  Petitioners seek reimbursement for their daughter's private educational services, a "full" IEE, attorney's fees, and "disciplinary action" against both the impartial hearing officer for alleged bias and respondent for allegedly failing to comply with the IDEA.  Respondent cross-appeals to the extent that the impartial hearing officer's decision found that respondent did not assess the child in all areas of suspected disability and ordered it to pay for the costs of an IEE for petitioners' daughter in the area of written expression, and to the extent that the impartial hearing officer found petitioners' claim regarding the child's 2004 declassification was timely.2 

            Petitioners' claims relate to two separate events: (1) the CPSE's declassification of their daughter in June 2004, and (2) the appropriateness of the CSE's evaluations of their daughter upon a subsequent referral in 2005-06.  I will first address respondent's cross-appeal on the applicable statute of limitations to determine whether petitioners' declassification claim was timely raised.  Respondent contends that petitioners' claims regarding the 2004 declassification are barred by the one-year common law most analogous statute of limitations (see Application of a Child with a Disability, Appeal No. 02-119).  Respondent attempts to base the applicable statute of limitations analysis on the analysis operating at the date petitioners' claim accrued, on or about June 2004, rather than the date of the due process hearing request.  Respondent is incorrect.  Petitioners requested an impartial hearing on or about February 17, 2006 (see IHO Decision, p. 2; Pet. at p. 1; Ans. 1), hence the new amendments to the IDEA, which became effective July 1, 2005, are applicable to their claim (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004] [codified as amended at 20 U.S.C. 1400-1482).  IDEA 2004 requires that, unless a state chooses to set a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation (20 U.S.C. 1415[f][3][C]; see also 20 U.S.C. 1415[b][6][B]; N.Y. Educ. Law 4404[1][a]).  In the instant case, the child's declassification occurred in June 2004, and petitioners requested a hearing in February 2006, which fell within the now applicable two-year statute of limitations period set by federal law.  In the absence of any State statute or regulation to the contrary, I must apply the federal two-year statute of limitations and find petitioners' claim regarding the child's declassification in 2004 to be timely.

            The next issue that must be determined is the scope of petitioners' claim.  Respondent contends that the scope of petitioners' claim relating to the child's declassification must be limited to the issues raised in their due process hearing request, and that all other alleged procedural violations surrounding the child's 2004 declassification subsequently raised by petitioners are barred.  Under the new amendments to the IDEA, the party requesting an impartial hearing may not raise issues at the impartial due process hearing that were not raised in their original due process request unless the original request is amended prior to the hearing (20 U.S.C. 1415[c][2][E]), or the other party otherwise agrees (20 U.S.C. 1415[f][3][B]).  The Senate Report pertaining to this new amendment to the IDEA noted that "The purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint" (S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint", [November 3, 2003]).  The Senate Committee reiterated that they assumed with the earlier 1997 amendments' notice requirement that it "would give school districts adequate notice to be able to defend their actions at due process hearings, or even to resolve the dispute without having to go to due process" (id.).

In the instant case, petitioners' due process request was unfortunately not entered into the record as evidence so I am unable to make an independent review of it.  The record, however, does reveal the following.  The impartial hearing officer noted in her decision that in petitioners' hearing request, the "sole issue" indicated as the basis for objecting to the declassification of their child was the district's alleged failure to conduct sufficient testing prior to the declassification (IHO Decision, at p. 34).  Petitioner began the first day of the hearing by stating her declassification issue succinctly as "That one is very simple…I will prove that [the district] declassified [the child] at the end of preK without properly testing her" (Tr. p. 10).  In addition, an examination of the testimony from the hearing reveals that the additional procedural issues surrounding the declassification were largely raised by petitioners for the first time in their closing brief, and again in their petition and memorandum of law on appeal,3 and were not raised in any detail at the hearing below.  Under the circumstances, the opposing party had no notice or opportunity to either cross-examine witnesses or produce evidence during the hearing to refute petitioners' other procedural allegations involving the declassification process, and there is no record upon which to determine the validity of petitioners' additional belatedly raised alleged procedural violations.   A State Review Officer will not render a determination on an issue that not been raised at a hearing (Application of a Child with a Disability, Appeal No. 00-068Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 97-58; Application of a Child with a Disability, Appeal No. 93-36).  Moreover, petitioners' opening paragraph in their petition plainly states, "Two issues were addressed at [the] impartial hearing.  The first was that [the child] was improperly declassified because she was not given appropriate testing to support the declassification and the second was that [the child] was not given adequate testing by [the district] to determine her learning disabilities and therefore the [IEE] should be paid for by [the district]" (Pet. at p.1).  Likewise, petitioners' Memorandum of Law on appeal states that "[Petitioners] cannot emphasize enough that the purpose of this impartial hearing ...is merely to demonstrate whether additional testing is warranted under all the circumstances so a proper determination can be made" (Pet. Mem. of Law, at p. 4).  In light of these facts, I find that petitioners' claims are limited in this instance to whether the district conducted appropriate testing prior to the child's 2004 declassification, and upon re-referral, whether the district's 2005-06 evaluations appropriately evaluated the child in all areas of suspected disability.

            A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1482)4 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (Frank G. v. Bd. of Educ., ___ F.3d ___, ___, 2006 WL 2077009, at * 13 [2d Cir. July 27, 2006]; see Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 [1982]; 20 U.S.C. 1400[d][1][A]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written individualized education program (IEP) (20 U.S.C. 1401[9][D]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]; 34 C.F.R. 300.347).5  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 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993].  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. 1412 (a) (10)(C)(ii); 34 C.F.R. 300.403).

The IDEA requires a board of education to evaluate a child before determining that that child is no longer a child with a disability (20 U.S.C. 1414[c][5]; 34 C.F.R. 300.534 [c][1]; 8 NYCRR 200.4[c][3]).  As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (20 U.S.C. 1414[c][1][A]; 34 C.F.R. 300.533[a][1]; 8 NYCRR 200.4[b][5][i]; see also 8 NYCRR 200.4[b][4]).  On the basis of that review and input from the child's parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (20 U.S.C. 1414 [c][1][B]; 34 C.F.R. 300.533[a][2]; 8 NYCRR 200.4[b][5][ii]).  If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, it shall notify the child's parents of that determination and the reasons for such determination, and also must inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability (20 U.S.C. 1414 [c][4][A]; 34 C.F.R. 300.533[d]; 8 NYCRR 200.4[b][5][iv]; see also 8 NYCRR 200.5[a][5][i]).  A group of qualified professionals and the parent of the child must determine whether the child continues to be a child with a disability eligible for services (20 U.S.C. 1414[b][4][A]; 34 C.F.R. 300.534[a][1]; see also 8 NYCRR 200.4[b][5][ii]).  Additionally, once the CSE determines that the student no longer needs special education services, it must consider and include in its recommendation any declassification support services that the student requires prior to placing the student in a full-time regular education program (8 NYCRR 200.4 [d][1][iii]; see 8 NYCRR 100.1[q]).

            Limiting petitioners' claims to the sufficiency of the district's evaluations prior to the June 2004 declassification as discussed supra, I find that respondent conducted appropriate testing upon which to base its decision to declassify petitioners' daughter.  The CPSE included a group of qualified professionals knowledgeable about such testing, including the CPSE Chairperson, the school psychologist, the child's preschool speech-language pathologist, the district's speech-language pathologist, the child's preschool teacher, a regular education teacher, and the parent (Dist. Ex. 20).  The child was originally classified as a preschool child with a disability due to "word retrieval and language processing delays" (Dist. Ex. 19 at p. 3), and the "need [for] improvement in speech articulation" (Dist. Ex. 19 at pp. 1-2, 4).  The CPSE relied on a variety of objective and subjective assessments including the preschool speech-language pathologist's monthly reports of the child's progress during the 2003-04 school year (Dist. Ex. 26), her May 2004 year-end report, which included results of standardized testing in language and auditory perception and a subjective assessment of the child's articulation skills (Parent Ex. D at pp. 20-21), reports from the child's preschool teacher (Dist. Ex. 20 at p. 1), as well as a recent classroom observation, a recent audiological evaluation, and the psychological and educational evaluations from the prior summer (see Dist. Ex. 20 at pp. 1-2).

Results of the evaluations showed that petitioners' daughter had demonstrated improvement in the areas of need that had led to her initial classification.  The preschool speech-language pathologist's monthly reports indicated that the child had made "steady progress" toward her IEP articulation objectives throughout the year (Dist. Ex. 26).  As noted, her year-end report indicated that by the end of the school year petitioners' daughter exhibited the ability to carry over target sounds into spontaneous conversation, had succeeded in almost eliminating the use of the developmental phonological process of palatal fronting in conversational speech, and that her connected speech was intelligible to an unfamiliar listener 95-100 per cent of the time (Parent Ex. D at p. 20).  Upon administration of the PLS-3 at the end of the school year, the child continued to score in the average range on both receptive and expressive language subtests (Parent Ex. D at pp. 20-21).  Although petitioners point to the fact that the child appeared to have scored low on four out of seven subtests of the TAPS-R, respondent's speech-language pathologist adequately explained that the child's low scores were due to the fact that the evaluator used subjective age equivalents to measure test scores, instead of the more accepted method of standard scores (Tr. pp. 399-402).  When the child's scores were converted to standard scores, the child's scores indicated performance within the average range (Tr. p. 402).  Although the preschool speech-language pathologist's report suggested that the child still had some difficulties with word retrieval as evidenced by her "difficulty with immediate recall" (see Parent Ex. D at p. 21), the record reflects that the preschool speech-language pathologist did not indicate in her summary reports during the year that this was a problem or area of need for therapy (see Dist. Ex. 26); moreover, there was no evidence in the record that this was affecting the child's educational performance in the classroom so as to require special education services in order for the child to receive educational benefit (see 8 NYCRR 200.1[zz][11]).  In fact, the child's preschool teacher stated that by the end of the year the child had become "more confident with her use of language" in the classroom (Dist. Ex. 20 at p. 1).  Although the preschool speech-language pathologist recommended "remediation" to address the child's remaining needs, she did not specifically recommend it take the form of special education or related services (Parent Ex. D at p. 21).  Respondent's director of pupil personnel services testified that in the context of the other information before the CPSE, the scores reported by the preschool speech-language pathologist suggested that the child's speech-language skills were commensurate with her age (Tr. p. 443).  She opined it was "inappropriate" if the intent of the preschool speech-language pathologist's recommendation was to classify the child based on one test result (Tr. pp. 443-44).  Based upon this record, I find that the CPSE had sufficient evaluative information to appropriately declassify petitioners' daughter.6

            Having found that the district properly declassified petitioners' daughter in 2004, it follows that the district had no obligation to devise an IEP or provide the child with special education services, and I need not reach the issue of whether or not the services provided by the private educational therapist obtained by petitioners for their daughter in 2003-04, 2004-05, and 2005-06 were appropriate; petitioners are not entitled to reimbursement for those services because of the declassification determination, and the necessary inquiry is at an end (see Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 134 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058). 

Petitioners' second claim relates to the appropriateness of the district's 2005-06 evaluation of their daughter, and petitioners' request for a complete multidisciplinary IEE at the district's expense.  A parent may request an IEE at pubic expense "if the parent disagrees with an evaluation obtained by the [district]" (34 C.F.R. 300.502[b][1]; see 20 U.S.C. 1415[b][1]; 8 NYCRR 200.5[g]).  An "independent educational evaluation" is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 C.F.R. 300.502[a][3][i]; see 8 NYCRR 200.1 [z]).  Once an IEE at public expense is requested, the district must, without unnecessary delay, either ensure that an IEE is provided at public expense, or initiate an impartial hearing to demonstrate the appropriateness of its own evaluation (34 C.F.R. 300.502[b][2]; 8 NYCRR 200.5[g][1][iv]).  If the district chooses to initiate a hearing to defend its evaluation and an impartial hearing officer ultimately finds that the district's evaluation was appropriate, the district is not obligated to pay for the costs of a privately obtained IEE (34 C.F.R. 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). 

When a CSE receives a referral of a child suspected of having a disability, it must conduct an initial evaluation consisting of at least a physical examination, an individual psychological evaluation (unless a school psychologist assesses the child and determines an evaluation is unnecessary), a social history, a classroom observation, and any other appropriate assessments or evaluations (8 NYCRR 200.4 [b][1]; see 34 C.F.R. 300.532, 300.533).  The child must be assessed in all areas related to the suspected disability (20 U.S.C. 1414[b][3][B]; 34 C.F.R. 300.532[g]; 8 NYCRR 200.4[6][i][d][vii]), including if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities (34 C.F.R. 300.532[g]; 8 NYCRR 200.4[6][i][d][vii]).  The evaluation must be sufficiently comprehensive to identify all of the child's special education needs, whether or not commonly linked to the disability category in which the child has been identified (34 C.F.R. 300.532[h]; 8 NYCRR 200.4[b][6][d][ix]).  The federal and State regulations do not prescribe a particular format for any evaluation or examination.  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).  The CSE shall review existing evaluative data on the child, including information provided by the parents, current classroom tests and teacher or therapist reports, and based on that review and input from the parents, determine if any additional information is necessary, and if not shall then determine whether or not the child needs special education and related services (20 U.S.C. 1414[c][1]; see 34 C.F.R. 300.533; 8 NYCRR 200.4[b][5]).

In the instant case, petitioners' November 5, 2005 referral letter requested that the CSE evaluate their daughter, specifically in the area of speech-language skills (Dist. Ex. 1).  In the letter, petitioners expressed specific concerns over their daughter's low scores in four out of seven subtests of the TAPS-R administered in May 2004 (id.; see Parent Ex. D at p. 20; Dist. Ex. 24), their daughter's low scores on the Abstract/Visual Reasoning portion of the Stanford-Binet-4 administered in August 2003 (Dist. Ex. 1; see Parent Ex. D at p. 6), as well as her difficulties with syntax, auditory memory, auditory processing, accessing words and phonemes and sequencing phonemes (Dist. Ex. 1; see Parent Ex. D at p. 18).  Lastly, petitioners' reiterated the statement in their child's August 2003 educational evaluation that found that their daughter had a "significant delay in expressive language" (Dist. Ex. 1; see Parent Ex. D at p. 14).  In petitioners' February 1, 2006 letter, objecting to the district's evaluations and requesting an IEE, petitioners' raised concerns over their daughter's reading fluency and math fluency scores (Dist. Ex. 18).

In response to petitioners' referral letter, the record reflects that the district conducted or obtained all evaluations necessary pursuant to 8 NYCRR 200.4[b], including a physical examination (Dist. Ex. 15), a psychological evaluation (Dist. Ex. 13), a social history (Dist. Ex. 9), an observation of the student in her current educational placement (Dist. Ex. 12), and other appropriate assessments, which included a speech-language evaluation (Dist. Ex. 10), an educational evaluation (Dist. Ex. 11), and a report from the child's current classroom teacher (Dist. Ex. 14).  Prior to conducting the assessments, the evaluators read petitioners' referral letter and identified areas of concern for testing (Tr. pp. 189, 214-15 [speech-language pathologist]; pp.330-33, 353 [school psychologist/educational evaluator]; p. 293 [school psychologist/psychological evaluator]).  The psychological, educational, and speech-language evaluations were conducted with commonly used standardized tests (see Dist. Exs. 10, 11, 13).  The school psychologist testified that she administered subtests to the child that assessed her in the areas of processing speed, fluency, expressive language, word retrieval, vocabulary, word reasoning, fine motor skills, and abstract reasoning, and that the child performed in the average to above average range (Tr. pp. 301-07).  The record reflects that the educational and speech-language evaluations conducted by respondent's school psychologist and speech-language pathologist, respectively, assessed the child in areas of concern specified by petitioners, including word attack, grammar, decoding, phonological segmentation, word memory, oral expression, auditory processing, reading comprehension, word retrieval and fluency (Tr. pp. 188, 197-216, 331-53; Dist. Exs. 10, 11).  Although math was not a concern, the educational evaluation included math subtests to provide a broader range of results (Tr. pp. 332-33; Dist. Ex. 11).  In addition, the educational evaluation also used CBMs to provide the CSE with additional information regarding the child's reading skills compared to local peers (see Dist. Ex. 11).  The CSE made its determination based on a proper variety of assessments, with input from the parent and a report from the child's private educational therapist (see Dist. Exs. 7, 16, 23; Tr. pp. 27, 310).

Turning specifically to petitioners' referral letter, notably two of the three evaluation results cited by petitioners as cause for concern (i.e., the child's low score on one portion of the 2003 administration of the Stanford-Binet-4 and the comments from the child's 2003 educational evaluation report) were obtained from evaluations administered prior to the child's classification as a preschool child with a disability and prior to her receipt of one year of speech-language services from the district (see Dist. Ex. 26).  In the intervening two years since those evaluations and preschool speech-language services, the child had performed well in school, receiving high grades in all her subjects in both kindergarten and first grade (see Dist. Exs. 8, 22).  Her first grade teacher reported that, although it took petitioners' daughter a few seconds to answer questions, she appeared to understand the concepts taught in all subject areas, was very conscientious, got along well with her peers, and was making good academic progress (Dist. Exs. 14, 7).  The child's private educational therapist agreed that the child was doing "extremely well in school" (Tr. p. 179), and petitioners' expert agreed that the child's grades were "excellent" (Tr. p. 135).

As a result of the referral, upon administration of the psychological evaluation in 2006, the school psychologist reported the child's verbal IQ score of 110 (Average), performance IQ score of 112 (High Average), processing speed quotient of 110 (Average), and cognitive full scale IQ score of 115 (High Average), and noted that since the prior 2003 psychological assessment, the child's visual spatial skills scores had improved (Dist. Ex. 13 at p. 3).  The school psychologist reported that the child's performance yielded scores in the average to above average range in all subtests (Dist. Ex. 13 at pp. 2-3).  In response to petitioners' focus on a low score on a portion of the Stanford-Binet-4 administered in 2003, the school psychologist testified that 99.9 per cent of children who take standardized tests show some "scatter" among scores because all children have relative strengths and weaknesses, but when petitioners' daughter's test results are taken as a whole, the scores do not show any major discrepancies and in fact show she is performing overall in the average to above average range in cognitive functioning when compared to her peers (Tr. pp. 307-308, 314-15; see Dist. Ex. 13).  The district's school psychologist agreed, stating that he would not base instructional decisions on a relatively lower yet normal score in one small area of reading if overall reading scores were in the average to strong range (Tr. p. 379).  The director of pupil personnel services also testified that because students have relative strengths and weaknesses, the totality of the interdisciplinary evaluations are considered, as well as the child's overall functioning in the classroom, to see if there is any effect on their educational performance, and it would be "grossly inappropriate" to classify a child based on a lower score on one subtest of one instrument administered on one given day (Tr. pp. 441-42). 

On the 2006 educational evaluation, the child's scores on all subtests of the WJ III administered (including letter-word identification, passage comprehension, calculation, applied problems, word attack, picture vocabulary, and spelling) and WIAT II (oral language, listening comprehension, oral expression) ranged from average to high average (Dist. Ex. 11).  The child's reading fluency and math fluency scores were both average, as measured by the WJ III and CBMs (id.; Tr. pp. 347-48).  In response to petitioners' concerns that their daughter may be prone to dyslexia, the school psychologist testified that the subtests he administered from the WJ III would have addressed that area and that the child's scores on those subtests did not show a cause for concern (Tr. p. 387).  In addition, the school psychologist noted that the child demonstrated skills similar to peers in reading and language development, including the specific skills of decoding, reading comprehension, vocabulary usage, listening comprehension, oral comprehension, and spelling, and that in math she demonstrated skills similar to her peers in operations and applications (Dist. Ex. 11 at p. 3; see Tr. pp. 313-53).

Likewise, on three different standardized tests administered as part of the December 2005 speech-language evaluation the child achieved scores in the average to above average range on all presented speech-language assessments (Dist. Ex. 10 at p. 5).  The speech-language pathologist testified that she deliberately tested in the areas of concern expressed by the mother, i.e., syntax, word retrieval, auditory memory, auditory processing and accessing words and phonemes, and found no evidence of a disability (Tr. pp. 214-15, 218, 221-25).  The speech-language pathologist recommended that petitioners' daughter remain in her classroom for learning "since a classifiable disability is not demonstrated" and recommended strategies that could be used at home (Dist. Ex. 10 at pp. 5-6).  As for petitioners' concerns over the child's low scores on some of the subtests on the May 2004 administration of the TAPS-R, two of the district's speech-language pathologists and the district's director of pupil personnel services all testified at the hearing that the evaluator's scoring of the TAPS-R in 2004 was based on the subjective method of age equivalents, rather than the more commonly accepted method in the district of using standard scores (Tr. pp. 217-18, 398-402, 404-05; see Tr. pp. 460-63), and that when the 2004 TAPS-R results were translated into standard scores, the child's scores were all within the average range (Tr. pp. 398, 402).  Further, upon the more recent administration of the TAPS-3 in December 2005, the child achieved scores in the average to above average range on all subtests (see Dist. Ex. 10 at pp. 2, 4; Tr. pp. 208-14), indicating no sign of a disability.  Petitioners' expert agreed that the child's scores on the December 2005 TAPS-3 were "very strong" (Tr. p. 125). 

I concur with the petitioners' expert (Tr. p. 136) and the impartial hearing officer's finding that the evaluative data in the record, particularly the results of the recent speech-language evaluation (Dist. Ex. 10), the psychological evaluation (Dist. Ex. 13), and the educational evaluation (Dist. Ex. 11) are comprehensive and appropriate in assessing the child in the majority of her suspected areas of disability and that these evaluations need not be repeated in a privately obtained IEE (IHO Decision, pp. 52-53).  Nevertheless, I also concur with the impartial hearing officer's finding that the district's evaluations did not evaluate the child in all areas of suspected disability as required under the IDEA (20 U.S.C. 1414[b][3][B]; 34 CFR 300.532[g]; 8 NYCRR 200.4[6][i][d][vii]), specifically in that the child's writing abilities were not sufficiently evaluated.  Although respondent pointed to its evaluations that measured the child's expressive language skills, asserted that none of the evaluators or the child's teacher reported a concern with the child's writing ability, and specific subtests of respondent's psychological and educational evaluation assessed her paper/pencil abilities and fine motor skills for writing, (Ans. 38, 39), I find that these did not specifically evaluate her written language ability.  Petitioners' referral letter identified expressive language, which broadly includes both oral and written expression, as one of their key areas of concern for their daughter (see Dist. Ex. 1).  The speech-language pathologist who conducted the child's preschool evaluation opined that the child could be at risk for having difficulty once language progressed beyond the oral stage and language knowledge would be used as the basis from which to acquire literacy skills (Parent Ex. D at p. 18).  In addition, the child's private educational therapist testified that writing was "extremely difficult" for the child (Tr. p. 150), that she had "serious issues with writing" (Tr. p. 179), and that it was an area of concern (Tr. pp. 150-53).  The private psychologist hired by petitioners to review the child's records also testified that "often children with expressive language difficulties have a great deal of difficulty with writing," and that she saw that as an area of concern for petitioners' daughter, and that respondent's assessments failed to evaluate the child's written expression (Tr. pp. 96, 119-20, 135).  The child's mother had also expressed concerns with the child's writing ability (Tr. pp. 519, 178).  These statements indicate that written language was an area of suspected disability for the child, yet the record contains no test or subtest that specifically evaluated the child's skill in this area.  For these reasons, I concur with that portion of the impartial hearing officer's decision that ordered an evaluation of the child's writing abilities, including written language skills.  However, respondent should first conduct this evaluation.  If petitioner disagrees with the resulting evaluation, she may assert her right to request an IEE of  the child's writing abilities, including written language skills at public expense.

As for petitioners' request for attorney's fees and other expenses incident to this proceeding, the IDEA does not authorize an administrative officer to award costs or attorney's fees to a parent of a child with a disability who prevails in his or her claim; a parent's entitlement, if any, to costs must be determined by a court of competent jurisdiction (see 20 U.S.C. 1415[i][3][B]; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 [2d Cir. 2005]; Application of a Child with a Disability, Appeal No. 05-128; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 01-011).

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED, that the decision of the impartial hearing officer is annulled to the extent that it ordered that an IEE be conducted of the child's writing abilities, including written language skills, and

            IT IS FURTHER ORDERED unless the parties otherwise agree, that respondent shall conduct an evaluation of the child's writing abilities, including written language skills and convene a CSE to consider the results of the evaluation within 30 days of the date of this decision.

 

Dated:

Albany, New York

 

__________________________

 

August 29, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 The document states that respondent's CSE convened; however, the June 2004 meeting was characterized by respondent's director as a CPSE annual review of a student who is aging out of CPSE (Tr. p. 474).

 

2 By letter dated July 28, 2006, respondent asserts it was not served with petitioners' Memorandum of Law and requests that I decline to accept it (Letter dated 7/28/06 from Resp.'s Attorney to Office of State Review).  In light of the fact that petitioners are acting pro se, their appellate brief appears to be very similar to their closing brief submitted at the conclusion of the impartial hearing, and I am limiting my review of petitioners' Memorandum of Law to only issues sufficiently raised below at the impartial hearing (see note 4, supra; see also Application of a Child with a Disability, Appeal No. 94-14), I will accept petitioners' Memorandum of Law for the limited purpose stated. 

 

3 Petitioners raised the following additional alleged procedural violations surrounding their child's declassification in their petition and memorandum of law: (1) the absence of additional parent member at the CPSE, (2) the CPSE's alleged failure to seek input from the parents, (3) the CPSE's alleged failure to officially notify the parents of the declassification determination and that additional data was not necessary, (4) the CPSE's alleged failure to inform petitioners of their right to request an IEE if they disagreed with the declassification evaluations, (5) the CPSE's alleged failure to consider all of the report of child's private educational therapist before declassifying her, and (6) the CPSE's alleged failure to provide adequate declassification support services (see Pet.; Pet.'s Memo. of Law, at pp. 1-3. 16-17).  Petitioners claim they had no way of knowing of these procedural rights without an attorney, but they do admit in their petition several times to receiving the VESID Booklet, "Special Education in New York State for Children ages 3-21 - A Parent's Guide" (Pet. at pp. 2, 8), which mentions all of these issues except the declassification support services.  (I note that the IEP that declassified the child provided teacher consultation as a support service [see Dist. Ex. 20]).  In addition, although not in the record, letters from the district to the parents indicate that petitioners signed a statement affirming that they were also provided with the Procedural Safeguards Notice informing them of their legal rights (see Dist. Ex. 2 at p. 2; Dist. Ex. 3).  None of these issues were raised at the hearing, with the exception of one question on the presence of an additional parent member at a CSE meeting (Tr. p. 475), and a few questions as to whether a witness knew if the declassification consultant services on the IEP were ever provided, which the witness did not know (Tr. pp. 444-47). 

 

4 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004] [codified as amended at 20 U.S.C. 1400, et. seq.]).  Since most of the underlying events in this appeal occurred subsequent to that date, all references to the IDEA used herein refer to the newly amended provisions of the IDEA, unless otherwise specified (see Application of the Bd. of Educ., Appeal No. 06-009).

 

5 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(9)

 

6 I note that the record reveals that the child did very well in kindergarten the year following her declassification with no special education or related services, achieving ratings of "very good progress" in virtually all areas, including auditory and language development (Dist. Ex. 22).