NYSED/SUNY LOGO
The State Education Department
State Review Officer

 

No. 06-098

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE CROWN POINT CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorney for petitioner, Susan T. Johns, Esq., of counsel 

 

Law Office of Andrew K. Cuddy, attorney for respondent, Andrew K. Cuddy, Esq., of counsel

DECISION

Petitioner, the Board of Education of Crown Point Central School District, appeals from a portion of a decision of an impartial hearing officer to the extent that it determined that petitioner failed to provide special educational math services or an independent educational evaluation in math for respondents' son during the 2005-06 school year, and that petitioner failed to implement a prior impartial hearing officer's decision relative to implementing a reading methodology.  The appeal must be sustained in part. 

 

First, I must address two procedural issues.  Respondent submitted an answer to the petition and although not labeled a "cross-appeal," it contained references in the opening paragraph and ending paragraph to the fact that it was a "cross-petition" and "cross-appeal," respectively.  Respondent did not set forth any allegations in support of a cross-appeal (8 NYCRR 279.4), but did submit additional documentation with her answer.  Petitioner submitted a reply objecting to the additional documents on the grounds that they had no relevance to the issues on appeal.  Because of the form of the pleading it is not clear that it was intended to be a cross-appeal. I find that respondent did not submit a cross-appeal given the failure to raise any allegations in the answer in support of a cross-appeal.  Even if the answering document submitted by respondent is a cross-appeal, it must be dismissed because it did not comply with the requirements of 8 NYCRR 279.4.  Additionally, I decline to consider the additional documentation submitted with respondent's answer because it is not necessary in order to decide the appeal.  The documents annexed to the answer consisted of two evaluation reports regarding the student:  a literacy evaluation report and an independent neuropsychological evaluation report.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080).   Here, petitioner has objected to the additional documentation on the basis that the documents are not necessary for a State Review Officer to render a decision.  I concur that the documents are not necessary for my decision, and I therefore decline to consider them.   

At the conclusion of the impartial hearing in May 2006, the student was 16 years old and was attending tenth grade general education classes at petitioner's high school.  The student is classified as a student with a learning disability and his classification and eligibility for special education services are not in dispute on appeal (8 NYCRR 200.1[zz][6]). 

 

The student was first referred to petitioner's Committee on Special Education (CSE) in 1998, after experiencing academic difficulties in a second grade general education setting (Dist. Ex. 8 at pp. 7, 8).  Following an evaluation (Dist. Ex. 1), the student was classified as learning disabled and placed in a 12:1+1 special class for reading and written language, eighty minutes per day (Dist. Ex. 8 at p. 8).  In the individualized educational programs (IEPs) for all subsequent school years, the student's educational program provided for special education services for reading and written language (id.).  Between March 2003 and March 2005, the student's academic achievement was assessed annually using the Peabody Individual Achievement Test-Revised (PIAT-R) and the Peabody Individual Achievement Test- Revised/Normative Update (PIAT-R/NU) (Dist. Ex. 6).  Each administration of the test revealed weaknesses in the student's reading and spelling skills (Dist. Ex. 6 at pp. 1, 5, 6).  The student's mother was concerned over his lack of academic progress and following the completion of seventh grade sought remedial services from the Sylvan Learning Center (Sylvan) (Dist. Ex. 8 at pp. 8, 11).  From August 2003 until October 2004 the student participated in an after school educational program at Sylvan aimed at addressing his needs in reading and reading comprehension (Dist. Ex. 8 at p. 8; see also Dist. Ex. 5 at p. 1).

 

In May 2004, the student was referred for a literacy evaluation at the request of his parents, who were concerned about his progress in reading and writing   (Dist. Ex. 5 at p. 1).  Numerous tests were administered in an attempt to assess the student's reading and writing skills (Dist. Ex. 5).  The evaluation, conducted by the Stern Center, revealed weaknesses in the student's phonological processing, specifically related to phoneme segmentation, auditory short-term memory, working memory, and rapid naming skills (Dist. Ex. 5 at p. 3).  The evaluator opined that these weaknesses would adversely impact the student's reading, decoding and spelling skills (Dist. Ex. 5 at p. 3).  The student's rate, accuracy, and reading fluency were all judged to be deficient (Dist Ex. 5 at pp. 4, 5).  Assessment of the student's spelling skills revealed a lack of mastery of basic sound symbol correspondences, as well as weak understanding of spelling generalizations (Dist. Ex. 5 at p. 5).  The evaluator described the student's writing as simplistic, with poor sentence structure (Dist. Ex. 5 at p. 6). She noted that although attentional difficulties were present the student did not present as a classic student with "AD/HD" (Dist. Ex. 5 at p. 7).  The evaluator concluded that the provision of explicit, systematic instruction in decoding, preferably using a synthetic phonics program, linking reading and spelling, with fluency training embedded daily, was of primary importance to the student's progress (Dist. Ex. 5 at p. 6).  She further stated that the student needed to develop sentence and paragraph writing strategies through instruction and practice (Dist. Ex. 5 at p. 7).  The evaluator opined that the student required individualized instruction with a professional trained in the Orton-Gillingham, Wilson, or Project Read approach to reading and spelling, supplemented with reading speed training for fluency, and intensive work in orthographic memory (id.).  The results of the Stern Center literacy evaluation report were shared with petitioner's CSE in October 2004 (Dist. Ex. 8 at p. 21).

 

At the request of the student's parents, the student was evaluated by petitioner's psychologist in September 2004 (Dist. Ex. 4 at p. 1).  Administration of the Wechsler Intelligence Scale for Children – Third Edition (WISC-III) yielded the following standard scores and classifications: verbal IQ score 93 (Average), performance IQ score 81 (Low Average), and full scale IQ score 86 (Low Average) (id.).  The student's performance on the Children's Memory Scale resulted in index scores in the Low Average (visual immediate, verbal delayed, learning, delayed recognition), Borderline (verbal immediate, attention/concentration) and Extremely Low (visual delayed, general memory) ranges (Dist. Ex. 4 at pp. 1-2, 4).  The evaluator reported that there were indications of attentional difficulties throughout the student's academic history (Dist. Ex. 4 at p. 4).  She opined that it was essential that the student's parents have him assessed for attentional problems (Dist. Ex. 4 at p. 4; see also Tr. pp. 92-93, 149-150).

 

The CSE met on March 18, 2005 to conduct the student's annual review and prepare the student's IEP for the 2005-06 school year (Dist. Ex. 8 at p. 9).  The CSE recommended that the student receive two hours of consultant teacher services per week and resource room for forty minutes daily (Dist. Ex. 8 at p. 18).

 

On June 29, 2005 respondent requested a due process hearing (Dist. Ex. 8 at p. 2).  The request stemmed from respondent's disagreement with evaluations used by the CSE and disagreement with the program and placement recommended for the student for the 2005-06 school year (Dist. Ex. 8 at pp. 2, 3).  Respondent sought reimbursement for the Stern Center literacy evaluation (Dist. Ex. 8 at pp. 3, 13-16), as well as reimbursement for supplemental instructional services obtained through the Sylvan Learning Center (Dist. Ex. 8 at pp. 3, 10-12).  An impartial hearing commenced on August 24, 2005 and lasted four days, ending on September 19, 2005  (Hearing 1) (Dist. Ex. 8 at p. 4).

 

The student began experiencing academic difficulty early in the 2005-06 school year (tenth grade).  A progress report generated on October 6, 2005 revealed that the student was failing both English and Mathematics (Dist. Ex. 19; Parent Ex. 24).  Respondent requested that petitioner administer additional achievement, reading, and spelling evaluations to her son (Parent Ex. 57).  In addition, by letter dated October 22, 2005, respondent requested independent neuropsychological and behavioral optometry evaluations (Parent Ex. 53).  She also requested that a central auditory processing evaluation be conducted by petitioner or by an approved independent provider (id.).  Petitioner agreed to fund evaluations requested (Dist. Ex. 14; Tr. pp. 151-52; see also Parent Ex. 41; Dist. Ex. 13).

 

On November 7, 2005 the impartial hearing officer from the initial hearing (Hearing 1) issued a decision (Dist. Ex. 8).  He determined that the special education program recommended by the CSE for the student for the 2005-06 school year was insufficient in addressing the student's special education needs (Dist. Ex. 8 at p. 22).  As such, he annulled a March 18, 2005 IEP and adopted the determination of the Stern Center evaluator that the student required explicit, systematic instruction in decoding, preferably using a synthetic phonic program, such as Orton-Gillingham, Wilson, or Project Read, to address the student's reading deficits (id.).  The impartial hearing officer ordered the CSE to reconvene and prepare a new IEP that incorporated one of the methodologies recommended by the Stern Center into the student's special education program (id.).  He noted that "if [the] District does not currently employ certified staff competent to provide such services to Student, it must either retain new personnel competent to provide such or immediately take steps to have current personnel trained in such methodology" (id.).  The impartial hearing officer also ordered that the student be provided with the specialized training for at least one hour daily (id.).  Neither party appealed the November 7, 2005 decision.

 

The student continued to struggle academically, receiving failing grades in English and Mathematics (Dist. Ex. 7 at p. 3; Parent Ex. 23).  By letter to the school psychologist dated November 21, 2005 the student's mother opined that the student's math deficits were due to his learning disability and requested a mathematics evaluation of her son (Parent Ex. 49).  On November 29, 2005 the student's math skills were assessed using the PIAT-R/NU (Dist. Ex. 6 at p. 9).  The student received a standard score of 88 (21st percentile) on the mathematics subtest, which is in the average range (Dist. Ex. 6 at p. 9; Tr. pp. 150-51).

 

The CSE reconvened on November 30, 2005 to develop a new IEP for the student, in accordance with the impartial hearing officer's order from Hearing 1 (Dist. Ex. 9; see Parent Ex. 3).  The resultant November 30, 2005 IEP is the IEP that was at issue at the impartial hearing that is the basis for the present appeal.  The IEP indicated that the student's total reading skills were more than two years below grade level and that his word decoding skills were weaker than his reading comprehension skills (Dist. Ex. 9 at p. 3).  The IEP further indicated that the student's spelling skills and grammar were below grade level (id.).  Problems with homework completion and attending were noted (id.).  The IEP indicated that the student was capable of doing assigned math work and that he benefited from going to math class for additional help during activity periods (id.).  The student was classified as having a learning disability (id. at p. 1).  The CSE recommended that the student receive consultant teacher services two hours per week, resource room five times per week for forty minutes, 1:1 reading instruction five times per week for sixty minutes, and academic counseling once weekly for thirty minutes (Dist. Ex. 9 at p. 6; see also Parent Exs. 4, 5).  The student's IEP contained goals and objectives related to completing assignments with the use of a daily planner, developing more confidence in the area of self-advocacy, completing steps one through four of the Wilson Reading System, writing a paragraph containing related sentences, and demonstrating one year's growth in reading as measured by a standardized reading test (Dist. Ex. 9 at pp. 10-12; see also Tr. pp. 259-62, 272).  The CSE determined that the student would be instructed in reading using the Wilson Reading System (Wilson) (Tr. pp. 62, 106, 193-94, 197, 257-58).

 

By due process complaint notice dated March 13, 2006, respondent requested an impartial hearing (Dist. Ex. 21 at p. 1).  Respondent asserted that petitioner failed to develop an appropriate IEP and to provide a free appropriate public education (FAPE) to the student for the 2005-06 school year, failed to provide an appropriate reading program, failed to provide appropriate accommodations and modifications, failed to provide appropriate services to address the student's dysgraphia, failed to provide an adequate transition plan, failed to provide appropriate specialized math instruction, failed to grant an independent educational evaluation (IEE) request of respondent, or in the alternative, initiate a hearing to defend its own evaluation, and failed to implement the impartial hearing officer decision dated November 7, 2005 (Dist. Ex. 21). 

 

In an April 6, 2006 response to respondent's request for an impartial hearing, petitioner denied respondent's claims and asserted that the student's November 30, 2005 IEP was appropriate and was prepared pursuant to the impartial hearing officer's order from Hearing 1 (Dist. Ex. 23).  Petitioner asserted that it was providing the student with an appropriate reading program, that the student had not been diagnosed with dysgraphia, and that there was no reason to suspect that the student had a math learning disability.  Further, petitioner denied that the transition plan on the student's IEP was inadequate (Dist. Ex. 23 at p. 2).  Petitioner indicated that it had agreed to fund an independent math evaluation and noted that upon completion of that evaluation the CSE would determine if the student had special education needs related to math (id.).  The letter also indicated that petitioner had approved an independent neuropsychological evaluation in November 2005, which had yet to be received by the district (id.).

 

            The impartial hearing that is the basis for this appeal commenced on April 27, 2006 and concluded on May 25, 2006, after three days of testimony.  At the impartial hearing, respondent asserted that the student was denied a FAPE for the 2005-06 school year due to respondent's lack of a transition plan for the student, respondent's failure to address the student's dysgraphia, failure to provide special education in math, failure to grant an independent educational evaluation in math and its provision of inappropriate resource room services.  Respondent also asserted that the student was improperly excluded from extracurricular activities based on low grades, and that petitioner had failed to implement the impartial hearing officer's decision from Hearing 1, dated November 7, 2005.  Petitioner conceded that a transition plan was lacking and agreed to an independent educational evaluation of the student in math, but denied respondent's other assertions and noted that the student's exclusion from extracurricular activities was not within the impartial hearing officer's jurisdiction.

 

            In a decision dated August 3, 2006, the impartial hearing officer held that the November 30, 2005 IEP failed to offer the student a FAPE because it failed to provide an appropriate transition plan and to identify the student's math weakness.  Moreover, the impartial hearing officer found that the IEP failed to implement the impartial hearing officer order from Hearing 1 dated November 7, 2005 regarding implementing a reading methodology because petitioner's reading teacher was not appropriately certified.  The impartial hearing officer also ordered a math evaluation and ordered the CSE to reconvene within 30 days to address their noted areas of failure.

 

            Petitioner appeals and asserts that the impartial hearing officer erred in finding that it had failed to identify a math weakness of the student because at the time of the impartial hearing officer's decision, it had already agreed to pay for a neuropsychological evaluation and a math evaluation by the Stern Center, as respondent had requested.  Petitioner argues that the student had average math scores, consistent with his cognitive ability.  Second, petitioner asserts that the impartial hearing officer also erred in finding that it had violated the impartial hearing officer's November 7, 2005 decision from Hearing 1.  Specifically, petitioner asserts that the impartial hearing officer's decision dated November 7, 2005 from Hearing 1 did not require a Wilson certified teacher, but just a certified teacher who is competent to provide Wilson.  Petitioner requests partial annulment of the impartial hearing officer's August 3, 2006 order to the extent the impartial hearing officer found the student's November 30, 2005 IEP deficient for failure to address the student's math needs and found a violation by petitioner of the impartial hearing officer's order relating to reading methodology.  Respondent submitted an answer, denying petitioner's assertions and requesting additional documents to be entered into evidence, as detailed above.  Petitioner replied and objected to the additional documents being considered, as also set forth above.

 

            First, regarding the impartial hearing officer's determination that petitioner had failed to properly evaluate the student in math during the 2005-06 school year, I note that the parties had agreed for a math evaluation to be performed at the Stern Center, as specifically requested by respondent (Dist. Ex. 15; Tr. pp. 314-15).  At the time of the impartial hearing officer's decision, the parties were awaiting the results of the math evaluation for which petitioner had already agreed to pay (Tr. pp. 314-15).  A review of the pleadings submitted on this appeal indicates that the math evaluation has been completed (Pet. ¶ 29; Ans. ¶ 29).  To the extent the impartial hearing officer held that the student needed to be evaluated for a math disability, it appears that this has been completed (id.). 

 

To the extent petitioner seeks to challenge the impartial hearing officer's finding with respect to whether petitioner properly evaluated the student in math during the 2005-06 school year, I decline to address such issue because it would not have any actual effect on the parties as the 2005-06 school year has concluded.  The dispute between the parties in an appeal must at all stages be "real and live" and not "academic," or it risks becoming moot (see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]).  In general, appeals dealing with issues such as appropriateness of related services, desired changes in IEPs, specific placements, and implementation disputes are moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027).  The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 – 1482) requires a CSE to review and if necessary revise a student's IEP at least annually (see 20 U.S.C. § 1414[d][4][A][i]; 34 C.F.R. §300.323[a] [formerly §300.343[c][1]]),1 and each new IEP supersedes the prior IEP in addressing the child's needs (see Application of a Child with a Disability, Appeal No. 06-027; Application of the Bd. of Educ., Appeal No. 05-063); hence, administrative decisions rendered concerning school years since expired may no longer appropriately address the current needs of the student (Application of a Child with a Disability, Appeal No. 04-007).  A claim may not be moot, however, despite the end of a school year for which the child's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318 [1988]; Lillbask, 397 F.3d at 84-85; Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 04-038).  Under the circumstances of this case, a decision regarding whether or not the impartial hearing officer erred in concluding that petitioner had failed to identify the student's weakness in math will not have any effect on the parties because the 2005-06 school year has concluded and a math evaluation has been recently performed. 

 

Regarding petitioner's appeal of the impartial hearing officer's determination that petitioner failed to implement the impartial hearing officer's decision from Hearing 1, I find that the impartial hearing officer improperly considered this issue because it involved the enforcement of a favorable final prior order by an impartial hearing officer (see Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No., 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4; see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [stating proposition that impartial hearing officers have no enforcement mechanism of their own]).  The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dep't., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004).  The impartial hearing officer improperly considered this issue and should have declined to make a determination on it.  I therefore annul the impartial hearing officer's decision to the extent that he found that petitioner "failed to implement the order made November 7, 2005 relative to implementing a reading methodology" (IHO Decision, p. 7).2

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

            IT IS ORDERED that the impartial hearing officer's August 3, 2006 decision is annulled to the extent that he determined that petitioner "failed to implement the order made November 7, 2005 relative to implementing a reading methodology."

           

Dated:

Albany, New York

 

__________________________

 

October 20, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations.  However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.

 

2 I note that the impartial hearing officer, in finding that petitioner had failed to implement the prior impartial hearing officer decision, appeared to base this finding on the fact that petitioner's certified reading teacher was not certified in the Wilson program (IHO Decision, p. 6).  However, the plain wording of the November 7, 2005 impartial hearing officer decision did not require petitioner to secure a teacher certified in the Wilson program (Dist. Ex. 8 at p. 22) ("In order to fulfill its obligation to [the] Student to provide a free, appropriate public education, the District's Committee must reconvene and prepare a new IEP that specifically incorporates one such methodology into [the] Student's special education program.  If [the] District does not currently employ certified staff competent to provide such services to [the] Student, it must either retain new personnel competent to provide such or immediately take steps to have current personnel trained in such methodology.").