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

 

No. 06-080

 

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF OLEAN for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Hodgson Russ LLP, attorney for petitioner, Jeffrey J. Weiss, Esq., of counsel

Law Office of H. Jeffrey Marcus, attorney for respondents, H. Jeffrey Marcus, Esq., of counsel

 

DECISION

            Petitioner, the Board of Education of the City School District of the City of Olean (district), appeals from that portion of the decision of an impartial hearing officer which determined that it failed to offer an appropriate educational program to respondents' daughter and ordered it to reimburse respondents for the costs of private reading instruction obtained for the 2005-06 school year and for expenses of teaching materials in connection therewith.  Respondents cross-appeal from the portions of the impartial hearing officer's decision which denied their requests for transportation costs associated with the private reading instruction during the 2005-06 school year, and for additional services in reading during the 2006-07 school year.  The appeal must be sustained.  The cross-appeal must be dismissed.

            At the time of the impartial hearing in May 2006, respondents' daughter was 12 years old and attending fifth grade in petitioner's elementary school (Tr. pp. 392-93).  In addition to demonstrating varying degrees of emotional stability (Dist. Ex. 15 at pp. 1, 4, 6, 7), the student has severe reading deficits (Dist. Exs. 12 at p. 18; 19 at p. 2; 28).  The student's eligibility for special education programs and services as a student with multiple disabilities is not in dispute in this appeal (see 8 NYCRR 200.1[zz][8]).

            The student has had an extensive history of behavioral difficulties beginning at age two, and when she was five years old, evaluators at the SUNY at Buffalo School of Medicine and Biomedical Sciences reported then current diagnoses of attention deficit hyperactivity disorder (ADHD) and Pervasive Development Disorder, NOS (Parent Exs. E [6] at p. 2; E [9] at pp. 2-3; E [10] at pp. 1, 4).

            The student reportedly progressed well in all academic areas until January 2001, when her problem behaviors began to escalate and she would hit or kick her teachers, threaten to bite them, call them names, spit on other students, throw classroom objects and furniture, and antagonize other students (Parent Ex. E [6] at p. 7).  Classroom instruction was adjusted to try to accommodate her needs and she was provided with an individual aide, but the student often needed to be removed from the classroom and subsequently be taken home by respondent (id.).  As a result, the student was out of school for most of the third and fourth quarters of the 2000-01 school year and repeated the first grade the following school year (Tr. p. 620; Parent Ex. E [6] at p. 7). 

            The student was referred to petitioner's Committee on Special Education (CSE) in June 2001 and a psychological evaluation was conducted on July 7, 2001 (Parent Exs. D [52] at p. 2; E [6] at p. 1).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 104, a performance IQ score of 103, and a full scale IQ score of 104, placing the student in the average range of cognitive functioning (Parent Ex. E [6] at p. 4).  Results from administration of the Woodcock-Johnson Psychoeducational Battery-Revised (WJ-R) indicated average abilities in written language and low average abilities in reading and math, and the evaluator noted the student exhibited frustration during reading comprehension, spelling, and writing tasks (Parent Ex. E [6] at p. 8).  Responses from the student's teacher and aide on the academic and adaptive functioning scales of the Achenbach Child Behavior Checklist for Ages 4-18 (CBCL) resulted in clinically elevated scores (Parent Ex. E [6] at pp. 5-6). 

            Petitioner's CSE convened on July 25, 2001 and recommended the student be classified as a student with an emotional disturbance (ED) (Parent Ex. D [49] at p. 5).  The CSE recommended that for the 2001-02 school year, the student attend a Board of Cooperative Educational Services (BOCES) 8:1+1 self-contained program at petitioner's elementary school and participate in general education for music, art, physical education, and library, as well as receive speech-language therapy and counseling (Parent Exs. C [5] at pp. 1-2; D [49] at p. 5).  Petitioner's CSE convened on September 12, 2001 to add the services of an individual aide to the student's individualized education program (IEP) and on December 12, 2001 the CSE amended the student's IEP to include counseling in a small group one time per week (Parent Exs. D [38]; D [41]).

            During the 2001-02 school year, the student received instruction from petitioner's reading teacher and was privately enrolled in additional reading instruction at St. Bonaventure University Reading Center (Tr. pp. 332-33; Parent Ex. E [3] at p. 2). 

            Petitioner's CSE convened on March 22, 2002 for the student's annual review and to develop her IEP for the 2002-03 school year when she would be in the second grade (Parent Ex. C [4]).  The student was described as performing assignments independently, able to remain focused on tasks, having no difficulty understanding concepts, and having a multisensory learning style (Parent Ex. C [4] at p. 3).  The student's self-control was stated to be an area of concern, however, her social interaction with peers was improving and her adjustment to school was described as excellent (id.).  The March 22, 2002 CSE recommended the student remain in a BOCES 8:1+1 self-contained program at petitioner's elementary school with the services of an individual aide and receive counseling and speech-language therapy (Parent Ex. C [4] at p. 2).  The student would participate in general education at the teacher's discretion (id.).  The proposed IEP contained goals and corresponding objectives related to reading comprehension, word attack skills, written language skills, handwriting, and mathematics, as well as goals and objectives for the student's social-emotional and speech-language needs (Parent Ex. C [4] at pp. 5-7).  During her second grade year, the student received push-in services from petitioner's reading teacher and participated in the "reading intervention program" which she completed early in her third grade year (Tr. p. 336).

            Respondents had their daughter privately evaluated at the Reading and Learning Disorders Center on October 1, 2003 (Parent Ex. E [3]). At the time of the evaluation, the student was receiving push-in and pull-out reading services from petitioner's reading teacher (Tr. p. 240).  The private evaluator administered a test battery including portions of the Woodcock Reading Mastery Test-Revised (WRMT-R) (Form G, NU), the spelling test from the Kaufman Test of Educational Achievement (K-TEA), and the phonic patterns and contextual decoding skills tests from the Decoding Skills Test (DST) (Parent Ex. E [3] at p. 4).  The student exhibited deficiencies in her single word pronunciation and word attack skills, knowledge and use of phonics and word analysis, and sentence reading skills (Parent Ex. E [3] at p. 2).  She achieved standard (and percentile) scores of 80 (10) in the word attack, 85 (15) in the word identification, and 80 (10) in the passage comprehension subtests of the WRMT-R (Parent Ex. E [3] at p. 4).  The student attempted to decode words, but did not do so effectively and relied mostly on letter names (id.).  She also reverted to and relied on whole word guessing during the word identification tests (id.).  When interpreting passage meanings the student relied on whole word recall, picture cues, and anticipated language (Parent Ex. E [3] at p. 5). 

            On the K-TEA spelling test, the student achieved a standard score of 73, placing her below the 10th percentile for her grade (id.).  The evaluator also administered the Boston Naming Test (BNT), the digit span test from the WISC-III, a children's version of the Buschke Selective Reminding Test (BSRT), and the sentence repetition test from the Detroit Test of Learning Aptitude (DTLA) (Parent Ex. E [3] at p. 6).  On the BNT the student exhibited difficulty with word finding, as well as with organizing and/or recalling and sequencing sounds when pronouncing specific words (id.).  The student's scores on the digit span test from the WISC-III, as well as her scores on the BSRT and the sentence repetition test from the DTLA were in the below to low average range without prompting and in the low average to average range with prompting (id.).  The evaluator noted problems in the student's ability to retain information in memory over time and to sustain auditory attention (id.).  No language related learning problems were noted (id.).  The evaluator also administered a number of assessments to evaluate the student's nonverbal thinking and reasoning, perceptual integrity, and continuous performance and attention (Parent Ex. E [3] at p. 7).  No visual discrimination, visual processing, visual perceptual, or perceptual organization deficits were identified (id.).  The evaluator indicated that the student needed to participate in a multisensory phonics, spelling, and word learning program to improve her knowledge of names for words, word attack skills, sound-symbol associations, and the alphabetic orthography or structure of words (Parent Ex. E [3] at p. 8).  He recommended the use of deliberate word learning programs that were derivatives of the Gillingham-Stillman program and stated that the guidelines for teaching students with phonological word learning problems should be diligently followed (id.).  He also recommended the use of flash cards, controlled basal readers, and specific teaching techniques for spelling, as well as test modifications and accommodations for the student, including extended time, alternate test taking locations, tests read orally, and answers recorded for her when applicable (id.).

            A February 2004 IEP progress note indicated that the student made progress in all goal areas, was developing strategies for reading comprehension, was relating word families to her reading and decoding, was increasing sight word vocabulary and recognition, was using contextual tools to identify written language, and was "doing very well" in spelling (Parent Ex. G [5] at pp. 2-4).  She was spending most of her day in the general education classroom and generally interacted well with teachers and other students (Parent Ex. G [5] at pp. 1, 5). 

            A 2003-04 Title 1 progress report developed by petitioner's reading teacher indicated at the completion of the student's third grade year that she demonstrated progress in her reading skills and written expression (Parent Ex. H [1]).  The student had started to use word attack skills to sound out unfamiliar words, had started to write in complete sentences, and had increased her sight word vocabulary; however, she still read below grade level (id.).  On January 31, 2005 the student was administered the fourth grade New York Statewide Testing Program (NYSTP) English Language Arts (ELA) test, and achieved a reading score of 584 (Parent Ex. F [3] at p. 1).  This score placed her in level one of a four level test scoring rubric, and indicated that she demonstrated minimal understanding of written and oral text (id.).  The Woodcock-McGrew-Werder Mini-Battery of Achievement (MBA) was administered by the student's resource room teacher on March 10, 2005 (Parent Ex. F).  The student achieved a standard (and percentile) score of 84 (14) for basic skills, which was obtained from an average of her standard (and percentile) subtest scores of 86 (18) for reading, 79 (8) for writing, and 88 (21) for mathematics, and placed her in the low average range of performance (Parent Ex. F).  The 2004-05 IEP quarterly progress notes indicated the student demonstrated some progress in all IEP goal areas, but continued to demonstrate difficulty with the objective "applying effective reading skills to locate and gather required information" (Parent Exs. G; G [1]; G [2]).

            Petitioner's CSE convened on June 7, 2004 for the student's annual review and to develop her IEP for the 2004-05 school year when she would be in the fourth grade (Parent Exs. C [2]; D [22]).  The June 7, 2004 CSE meeting minutes reflected that respondent informed the CSE that the student's symptoms had met the criteria for a diagnosis of a bipolar disorder and that the student had received a private reading evaluation that recommended use of the Orton-Gillingham methodology (Parent Ex. D [22] at p. 2).  Present levels of performance indicated that the student performed classroom assignments with some assistance from her individual aide, had difficulty reading and was easily frustrated when presented with tasks that included reading material, but had good comprehension (Parent Ex. C [3] at p. 3).  Her math skills were reported to be at a second grade level and her reading skills at a first grade level as measured by an assessment identified in the record as the "Brigance" (Parent Ex. C [3] at pp. 3-4).  The student had improved in her relationships with peers and adults and initiated play activities with peers, but required support to interpret some interactions (Parent Ex. C [3] at p. 3).  She was participating in general education science and math classes (id.).  The CSE recommended for the 2004-05 school year the student participate in general education with the services of an individual aide for all academic areas and receive resource room support daily for 45 minutes, as well as counseling, extended time for testing, administration of tests in a small group, reading and clarification of test directions, no penalties for spelling or punctuation errors, and oral reading of tests not measuring reading comprehension (Parent Ex. C [3] at pp. 2-3).  The student would also receive push-in reading services from petitioner's reading teacher (Tr. p. 349).

            Petitioner conducted a psychological reevaluation of the student on May 18, 2005 as part of her triennial review and determined the results supported continued classification of the student as a student with an ED (Parent Exs. E [1]; E [2] at p. 2).

            A 2004-05 Title 1 progress report developed by petitioner's reading teacher indicated that at the completion of the student's fourth grade year she demonstrated progress in her reading skills and written expression and demonstrated satisfactory performance in her recognition of sight words and her application of listening skills (Parent Ex. H).  The student demonstrated limited comprehension when she was reading, however, she demonstrated good comprehension if she listened to someone reading.  Petitioner's reading teacher reported the student still read below grade level.

            Petitioner's CSE convened on June 1, 2005 for the student's triennial review and to develop her IEP for the 2005-06 school year when she would be in the fifth grade (Parent Exs. C; D [12]).  The June 1, 2005 CSE meeting minutes reflected that the student's mother expressed her concern regarding her daughter's inability to read and also reflected that the student's time in the resource room would be increased to 60 minutes for additional reading instruction (Parent Ex. D [12] at p. 3).  Present levels of performance indicated that the student had improved her skills in basic sentence writing, was "strong" in science and social studies, and completed her assignments with some assistance from her individual aide reading to her (Parent Ex. C at p. 3).  The student was easily frustrated with material or tasks involving reading (id.).  The student joined peer groups, but was very sensitive to teasing and continued to need support to interpret some interactions (id.).  Petitioner's CSE recommended that for the 2005-06 school year, the student participate in general education, with the services of an individual aide, for all academic areas and receive resource room support daily for 60 minutes, as well as counseling and extended time and alternate location for testing, reading and clarification of test directions, no penalties for spelling errors, and oral reading of tests not measuring reading comprehension (Parent Ex. C at p. 2). Respondents participated in the meeting (Parent Ex. C at p. 4).

            In September 2005 respondents had their daughter privately evaluated at the St. Thomas Reading Clinic resulting in a "diagnostic case study" report dated November 14, 2005 (Parent Ex. E).  At the time, the student was receiving reading instruction from petitioner's resource room and reading teachers (Tr. pp. 277-79, 312, 357).  The evaluator assessed the student's phonemic abilities through the administration of various reading and spelling tests including the Slosson Oral Reading Test-Revised (SORT-R), the Test of Word Reading Efficiency (TOWRE), the Gray Oral Reading Tests, the Gilmore Oral Reading Test (GORT), and the Phonological Awareness Test (PAT) (Parent Ex. (E) at p. 4).  She also administered the Woodcock-Johnson Tests of Cognitive Ability-Revised (WJ-R Cog) (Parent Ex. [E] at p. 11).  The evaluator reported that the student could hear rhyming sounds and was able to blend sounds she heard into words (Parent Ex. [E] at p. 18).  She generally heard the initial, medial, and final sounds in simple three-letter words, however, she demonstrated a weak ability to delete sounds from spoken words and provide the resultant word (id.).  The evaluator indicated that the student's poor short-term memory, working memory, and poor grasp of the phonemic principle made this task too difficult for her to execute (id.).  Although the student knew the sounds of many letters, she was generally unable to look at a printed word and pronounce it (id.).  The student exhibited deficits in her short term memory and rapid recall of words, as well as a tendency to scramble and reverse orthographic symbols (id.).  The evaluator described the student as a "nonreader" and indicated that she was "functioning at the first grade level for individual words and below the first grade level for ability to read in context" (id.).  The evaluator recommended that the Wilson or Gillingham-Stillman multisensory structured phonetic approach be used with the student and that she receive reading therapy four times per week, initially for one hour sessions and progressing to 90 minute sessions (Parent Ex. [E] at p. 19).  She also recommended the student be provided with a laptop computer, books on CD or tape, books in electronic format, software for expressive writing, as well as an occupational therapy evaluation (id.). The report disputed that the student had made progress in decoding skills through the educational program provided by petitioner (Tr. p. 559; Parent Ex. [E] at pp. 5, 6, 10, 18).

            The student began to receive private reading therapy from the evaluator at the St. Thomas Reading Clinic on October 7, 2005 (Parent Exs. L at p. 1;  K).  By memorandum dated October 8, 2005, the student's private reading therapist suggested petitioner suspend all reading instruction of the student, as well as the administration of spelling tests until further notice (Parent Ex. K).  She indicated that the student could continue with book reports however someone should read the books to her or she should listen to the books on tape (id.).  She requested that petitioner continue to provide the student with instruction in vocabulary and language development as well as listening skills and word pronunciation (id.).  Petitioner subsequently agreed to the evaluator's suggestions in October (Tr. pp. 112, 117). 

            Petitioner's CSE convened on December 14, 2005 at respondents' request (Parent Exs. D [3]; K).  The CSE meeting minutes reflect that information was shared by the CSE regarding reading intervention services provided to the student (Parent Ex. D [3] at pp. 1-2).  Respondents distributed to the CSE for the first time the November 14, 2005 private reading evaluation report they had obtained and noted to the CSE that the recommendations were nearly identical to recommendations they received from a previous private reading evaluation in October 2003 (id.).  Respondents informed the CSE they had obtained private "tutoring" in reading for the student and requested assistance from petitioner with the cost, as well as provision of the technology recommended by the private evaluator (Parent Ex. D [3] at p. 2).  The December 14, 2005 CSE minutes reflect that the CSE chairperson indicated that petitioner would not reimburse respondents for the tutoring they obtained for the student, however, it would provide the student with the recommended assistive technology (Parent Ex. D [3] at pp. 2-3).  At the CSE meeting respondents stated they did not want petitioner providing their daughter with reading instruction and the December 14, 2005 CSE subsequently recommended the student's IEP be modified to reflect suspension of all instruction in phonemic awareness, as well as suspension of spelling tests (Parent Exs. C at pp. 4-6;  D [3] at p. 3).

            By letter dated January 12, 2006, respondents requested an impartial hearing, generally alleging petitioner failed to provide their daughter with a free appropriate public education (FAPE)1 "for years" and alleged that the December 2005 IEP was inappropriate (Dist. Ex. 4  at p. 1).  In order to address their daughter's problems with orientation, respondents contended that she required an occupational therapy evaluation (Dist. Ex. 4 at p. 3).  Additional relief requested included the reimbursement for prior and ongoing private tutoring costs plus travel expenses (id.).  Respondents also requested the provision of an appropriate IEP, the suspension of petitioner's reading services until petitioner could provide an appropriate reading program for the student's needs, the provision of assistive technology which would include the student's own laptop computer equipped with appropriate software and hardware, and the payment of attorney fees (Dist. Ex. 4 at pp. 2, 3).  Petitioner responded by denying respondents' allegations and respondents' requested relief (Parent Ex. J [11]).  By letter dated February 13, 2006, respondents amended their impartial hearing request to add an assertion alleging petitioner's failure to consistently implement their daughter's IEP (Dist. Ex. 2 at p. 3).  In response, petitioner denied this allegation, asserting that it had generally implemented the student's IEP, including the requirement that tests were to be read to the student for exams that did not measure reading comprehension (Parent Ex. J [2] at p. 1).

            An impartial hearing convened on May 2, 2006 and concluded on May 11, 2006, after three days of hearings.  At the commencement of the impartial hearing, petitioner agreed to: conduct an occupational therapy evaluation, classify respondents' daughter as a student having multiple disabilities, and provide the student with additional assistive technology (Tr. pp. 23-25).  Respondents subsequently withdrew their claim alleging that petitioner failed to consistently implement their daughter's IEP (Tr. pp. 36-37). 

            By order dated June 1, 2006, the impartial hearing officer deemed respondents' allegation regarding petitioner's failure to implement the student's current IEP to be withdrawn (Pet. 17).  The order also directed petitioner to complete an occupational therapy evaluation of the student prior to the convening of a CSE meeting to develop a new IEP for the student for the 2006-07 school year.  Respondents were ordered to provide consent for the evaluation.  The impartial hearing officer also directed petitioner's CSE to modify the student's IEP to classify her as a student with multiple disabilities, and to include assistive technology which would provide the student access to a school computer equipped with the Kurzweil program and the Dragon Dictate voice-recognition program.  

            By decision dated June 22, 2006, the impartial hearing officer concluded that respondents had met their burden of showing that the services offered for instruction in decoding by petitioner for the 2005-06 school year were inadequate or inappropriate and that the student was denied a FAPE (IHO Decision, pp. 13-14).  He found that respondents had met their burden of showing that the services which they selected were appropriate (IHO Decision, pp. 14-15).  Finding that equitable considerations supported respondents' claim for reimbursement, the impartial hearing officer ordered petitioner to reimburse respondents for the private reading tutoring provided to the student for the 2005-06 school year and expenses for teaching materials in connection therewith (IHO Decision, pp. 16-17).  Respondents' requests for reimbursement of transportation expenses for private reading tutoring and for private reading tutoring as additional services to be provided during the 2006-07 school year were denied (IHO Decision, p. 17).

            On appeal, petitioner asserts the impartial hearing officer's decision should be reversed to the extent that it ordered petitioner to reimburse respondents for their daughter's private reading tutoring during the 2005-06 school year. Petitioner contends that it offered the student an appropriate educational program for the 2005-06 school year while acknowledging that it "should not have reduced the [s]tudent's reading services during the December 14, 2005 CSE meeting" and that instead it "should have increased and intensified the [s]tudent's reading services and made them more individualized" (Pet. 13).  Petitioner argues in the alternative that, if the student's December 14, 2005 IEP was inappropriate, such inappropriateness was the product of respondents' "demand" that petitioner cease to provide certain reading services and spelling tests, as well as delete the student's corresponding goal and objectives from her IEP.  Petitioner alleges that the private tutoring services in reading were not appropriate.  Petitioner also asserts that the impartial hearing officer erred by finding that the equities supported tuition reimbursement, and seeks reversal of the impartial hearing officer's order directing it to reimburse respondents for their daughter's private reading tutoring during the 2005-06 school year.

            By answer and cross-appeal, respondents seek dismissal of petitioner's appeal and an order directing petitioner to reimburse them for transportation costs associated with tutoring services in reading, and directing additional services provided by the private reading tutor for the 2006-07 school year.

            In its answer to respondent's cross-appeal, petitioner argues that the impartial hearing officer properly denied respondents' request for the reimbursement of transportation costs for the student's tutoring sessions in reading for the 2005-06 school year.  Petitioner further argues that the impartial hearing officer properly denied respondents' reimbursement for the cost of private tutoring services in reading for the 2006-07 school year.

            One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G., Bd. of Educ., ___ F.3d ___, 2006 WL 2077009, at * 13 [2d Cir. July 27, 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[9][D]; 34 C.F.R. 300.13). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 20 U.S.C. 1412 [a][10][C]).).  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]).  With respect to equitable considerations, the IDEA allows that 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][10][C][iii]; see Frank G., 2006 WL 2077009, 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 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; 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][3][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][3][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][3][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 student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

            Petitioner contends that it offered the student an appropriate educational program.  To support its position, petitioner asserts that steady progress by the student from 2002-03 to 2005-06 was reflected by test scores and teacher assessment.3  Petitioner argues that if the student's December 14, 2005 IEP is determined inappropriate, respondents' "demand" that petitioner cease to provide certain reading services and spelling tests, and modify her IEP accordingly resulted in the recommendation of an inappropriate program.

            Respondents requested that petitioner terminate decoding instruction and the provision of spelling tests through an October 8, 2005 letter from the student's private reading tutor to petitioner (Parent Ex. K [1]).  Respondent verbally made the same request.  In response to these requests, in October petitioner stopped providing decoding and spelling instruction to the student (Tr. pp. 112, 117).  Petitioner formalized the withdrawal of decoding instruction at the December 14, 2005 CSE meeting, again pursuant to parental request. The impartial hearing officer determined that the student was not offered decoding instruction adapted to her individualized needs because of the absence of decoding instruction and goals on the student's December 14, 2005 IEP.  I agree.

             Petitioner  has an affirmative obligation to offer the student a FAPE; Application of a Child with a Disability, Appeal No. 05-059; Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052; Application of the Bd. of Educ., Appeal No. 04-016).  Respondents' rejection of petitioner's reading program did not relieve the CSE of its obligation to recommend an appropriate program to the student (see Application of a Child with a Disability, Appeal No. 96-62).  Nor do I find persuasive petitioner's argument that its CSE did not have enough time to review the private reading tutor's evaluation at the December 14, 2005 CSE meeting in order to develop an appropriate IEP (Tr. p. 205; Parent Ex. C).

             Moreover, with respect to the sufficiency of the IEP developed at its December 14, 2005 meeting, the CSE's use of global statements such as "[the student's] comprehension is good" and "[the student] has some difficulty reading the material," does not provide a meaningful description of the student's abilities or needs, nor does it provide sufficient specificity regarding the deficits that need to be addressed.  The student's test scores listed on the December 14, 2005 IEP indicate she has needs in oral reading and word recognition; however, these needs are not specified in the present levels of performance on the December 14, 2005 IEP.

            The student's December 14, 2005 IEP contains goals and corresponding objectives related to reading comprehension and word attack skills identical to those seen on previous IEPs (Parent Ex. C [1] at pp. 5-6).  A review of the record shows that the goals and objectives related to reading comprehension and word attack skills on the student's IEPs from 2002 through 2005 (IEPs) are global and too vague to be measurable.  The IEPs contain an inadequate baseline from which to project goals and objectives and do not adequately describe the student's present levels of performance in reading.  More specifically, the reading goals included in the student's December 14, 2005 IEP are not measurable and are too vague to meet the requirements set forth in state and federal regulations (20 U.S.C. 1414[d][1][A][i][II]; 34 C.F.R. 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]).  For example, the goals state that the student "will increase reading comprehension" and "will increase word attack skills." The goals and objectives are general and do not reflect the student's present levels of performance.    Additionally, the record does not reflect that results of a comprehensive private evaluation obtained by respondents on October 1, 2003 (Parent Ex. E [3]) were considered by the CSE in the development of the student's December 14, 2005 IEP (20 U.S.C. 1414 [c][1][A][i]; 34 C.F.R. 300.533[a][1][i]; 200.5[g][1][v][a]; Application of a Child with a Disability, Appeal No. 05-126).  At the hearing respondent conceded that services should not have been reduced, that services should have been more individualized and "intensified," and that in light of the November 14, 2005 private report that the present levels of performance, needs statement, and goals and objectives should be updated (Tr. pp. 28-29, 194).  Based on the insufficiency of the December 14, 2005 IEP, I find that petitioner failed to offer an appropriate program individualized to meet the student's needs.    Moreover, I find that the withdrawal of decoding instruction in October 2005 also resulted in a program that was not designed to meet the student's individualized needs.

Having determined that respondent did not offer to provide a FAPE to the student during the 2005-06 school year, I must now consider whether respondents have met their burden of proving that the services provided by the private reading tutor were appropriate for their daughter (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education needs (Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 01-010). 

            Petitioner alleges that the evidence in the record establishes that the student's private tutoring services in reading significantly disrupted the student's overall educational program and that these services should not be considered appropriate.  I disagree with petitioner and concur with the impartial hearing officer's determination that respondents met their burden of establishing that the services provided by the private reading tutor were appropriate for the student. 

            The record shows that the student exhibits deficits in her ability to retain information in memory over time and to sustain auditory attention which has resulted in significant deficiencies in her word attack skills, knowledge and use of phonics, and sentence reading skills (Parent Exs. E at pp. 11, 18; E [3] at p. 3).  In October 2003 respondents had their daughter evaluated at the Reading and Learning Disorders Center (Parent Ex. E [3]).  The evaluator determined the student displayed the error patterns, skill deficiencies, and related processing problems of a "Specific Reading Disability (phonological dyslexia)" and indicated that the student needed to participate in a multisensory phonics, spelling, and word learning program to improve her knowledge of names for words, word attack skills, sound-symbol associations, and the alphabetic orthography or structure of words (Parent Ex. E[3] at pp. 2, 8).  He recommended the use of deliberate word learning programs that were derivatives of the Gillingham-Stillman program and stated that the guidelines for teaching students with phonological word learning problems should be diligently followed (Parent Ex. E [3] at p. 8).

            The student's private reading tutor, who also evaluated the student in September 2005, testified that the student was "severely dyslexic" based on her "extreme impairment with the three tasks on the [P]honological [A]wareness [T]est, her low level of reading to date, and the low level of her access to words," and following her evaluation of the student, the private reading tutor recommended the student be switched to one of the group of techniques that has been proven to be effective with dyslexics (Tr. pp. 465, 468).   She testified that these techniques were broadly labeled the Orton-Gillingham family, and stated that students "build up from sounds to words to sentences" for reading and spelling simultaneously with constant reinforcement of the "loop between reading and spelling" (Tr. p. 469).  The private reading tutor provided very detailed testimony regarding the step-by-step implementation of the program in a typical lesson for the student, indicating that she used the Wilson program with the student (Tr. pp. 472-78).  She also stated that she adapted the program to the student's emotional needs and testified that she has used more manipulatives in the lesson and more frequent changes of the activities when the student exhibited emotional difficulty (Tr. pp. 552-53).

            The private reading tutor testified that the student has progressed in her comprehension skills as measured by the Gray Oral Reading Tests, Form A (Tr. pp. 555-56).  In September 2005, the student achieved a grade equivalent score of 3.0 in comprehension and in May 2006 she achieved a grade equivalent score of 8.0 in comprehension (Tr. pp. 555-56; Parent Ex. E at p. 4).  The private reading tutor testified, however "that doesn't mean that she can read eighth grade level text" and indicated that she needed to start pronouncing a substantial number of words for the student at the third grade reading level (Tr. p. 556).  She further testified the student achieved a grade equivalent score of 2.1 in decoding as compared to September 2005 when she achieved a grade equivalent score of 1.6 (Tr. p. 555).

             I agree with the impartial hearing officer that respondents met their burden of establishing that the services provided by the private reading tutor were appropriate for the student.  In reaching this determination, the impartial hearing officer was persuaded by the private reading tutor's testimony regarding her teaching techniques (Tr. pp. 469-79) and the circumstances supporting her determination that the student's improvement was attributable to her private tutoring in reading (IHO Decision, pp. 14-15; Tr. pp. 555-58).  He stated that he was not persuaded that the suspension of petitioner's reading lessons and spelling tests at the urging of the private reading tutor were necessary to the success of the private reading tutor's program (IHO Decision, pp. 14-15).  However, the impartial hearing officer concluded that, from an evidentiary standpoint, these circumstances established that the student's measured improvement was attributable to the private tutoring and was not attributable to simultaneous effort by respondent (IHO Decision, pp. 14-15; Tr. pp. 555-58).

            Contrary to the impartial hearing officer's decision, I do not determine the degree to which the private reading tutor was responsible for the student's progress in reading comprehension.  I note that the focus of this appeal is on the student's decoding needs and instruction, and that the improvement of five grade levels in reading comprehension may have been influenced in part by the instruction provided to the student by petitioner in her other subject areas (Tr. pp. 557-59).  However, the record shows that, commencing October 2005, instruction in decoding skills was entirely provided to the student by the private reading tutor (Tr. pp. 112, 285-86, 363).  Consequently, I concur with the impartial hearing officer's finding that the progress the student made in the area of decoding, from 1.6 to 2.1, was due to the private reading tutor's instruction.  In light of the above, I find that the private instruction in reading obtained by respondents for their daughter was appropriate (see Frank G., 2006 WL 2077009,  at * 6 citing to 458 U.S. at 188-89).

>            Petitioner also asserts that respondents failed to establish the qualifications of the private reading instructor's assistant.  The private reading instructor testified that she has been training her assistant for seven years, the first five of which the private reading instructor directly supervised every lesson (Tr. p. 526).  The private reading instructor also testified that the assistant follows the lessons that she prescribes and communicates with her very frequently by telephone (id.).  The record also reflects that the private reading instructor, as opposed to her assistant, provided the majority of instruction.  As set forth above, the record shows that the private services obtained from this provider were appropriate.

The final criterion for an award of tuition reimbursement is that respondent's claim is supported by equitable considerations (Carmel Cent. Sch. Dist. v. V.P., 373 F.Supp.2d 402, 416 [S.D.N.Y. 2005], aff'd 2006 WL 2335140 [2d Cir. August 9, 2006]); Frank G., 2006 WL 2077009, at *5).  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C., 226 F.3d at 68; see Carter, 510 U.S. at 16 [noting that "Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).  Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]).  With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

            Petitioner asserts that the equities do not weigh in favor of respondents based on their uncooperative and unreasonable conduct, including respondents' "demand" that petitioner cease providing the student with certain educational services and delete certain of her IEP components, and respondents' failure to provide petitioner's personnel with the private reading tutor's November 2005 evaluation report prior to the December 14, 2005 CSE meeting.  In addition, petitioner claims that respondents' failure to cooperate with petitioner's request to have the private reading tutor provide recommendations to the student's teachers, and to train one of the student's teachers to implement the reading specialist's reading program, is indicative of respondents' lack of cooperation.

             At the December 14 2005 IEP meeting, after hearing parental concerns that petitioner was not providing appropriate instruction, but that the private reading instructor was providing appropriate instruction, petitioner's CSE chairperson reasonably and commendably asked if the private instructor would consult with and train petitioner's staff regarding the successful techniques and methods she used which the district could implement (Tr. pp. 128-29).  Respondents rejected petitioner's suggestion (Tr. p. 129).  I do find respondents' declination to allow petitioner to contact the private reading tutor regarding the provision of recommendations to the student's teachers, and the training of a teacher to implement the private reading tutor's reading program at the district to be evidence of a lack of cooperation by respondents.  Therefore, equitable considerations weigh in favor of petitioner and respondents are not entitled to reimbursement.   I note also that respondents' notice to petitioner of their intent to unilaterally obtain private services at public expense was provided at the December 14, 2005 CSE meeting.  Therefore, I find on this basis also that respondents are not equitably entitled to reimbursement for private educational services obtained prior to the provision of the December 14, 2005 notice (see 20 U.S.C. 1412 [a]10][C]).

            Upon the record before me, I find that the December 2005 IEP did not offer a FAPE to respondents' daughter, that the cessation of decoding instruction in October 2005 denied the student a FAPE, that the reading services obtained by respondents were appropriate, and that equitable considerations favor petitioners.  Accordingly, petitioner's appeal is sustained and respondent's reimbursement for reading services and request for transportation costs is denied.

            Finally, respondents argue that additional services should be provided to the student by the private reading tutor for the 2006-07 school year to remedy the "past long-term deprivation of FAPE."  However, respondents' cross-appeal fails, as did their due process complaint, to clearly establish the period for which they are asserting a denial of FAPE.  A review of the record reveals that respondents' primary concern dealt with the denial of a FAPE concurrent with the time that the private reading instruction was provided.  To the extent that respondents' daughter received appropriate, albeit privately obtained, reading instruction to address decoding needs during the 2005-06 school year, I decline to find a deprivation of educational services in the circumstances of this case that would require an award of additional services.4

            In conclusion I emphasize that respondents' daughter is entitled to a program of individualized instruction suited to meet her individual needs that is reasonably calculated to confer educational benefits.  The record reflects a commitment by petitioner to convene a CSE meeting to reconsider the privately obtained reading instructor's November 14, 2005 report and update the IEP (Tr. p. 28).  If petitioner has not done so already, it should do so quickly.  The record also reflects a willingness by petitioner to access training and information from the private reading instructor to assist in formulating an appropriate public education for respondents' daughter (Tr. pp. 128-29, 142).  I encourage petitioner to obtain any needed training or consultative services, from the private reading instructor or elsewhere, if it has not done so already, to assist in offering appropriate individualized instruction for this student.

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

THE APPEAL IS SUSTAINED.>

            THE CROSS-APPEAL IS DISMISSED.

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it ordered petitioners to reimburse respondents for the costs of private reading instruction obtained for the 2005-06 school year and for expenses of teaching materials in connection therewith.

Dated:

Albany, New York

 >

__________________________

 

September 18, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 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).

 

2 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 the underlying events in this appeal occurred subsequent to that date, all references to the IDEA refer to the newly amended provisions of the IDEA, unless otherwise specified.

 

3 The parties dispute the extent to which the student has demonstrated progress.  Petitioner submitted documentary evidence that suggests the student's decoding skills have improved.  Such documentary evidence consisted primarily of anecdotal records and did not contain results of any informal or formal measures such as teacher or diagnostic assessments, criterion referenced tests, or standardized tests.  Respondents assert that the record lacks objective evidence to support petitioner's claim of student progress.

 

State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047.>