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

No. 06-106

 

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

 

 

 

Appearances:

Legal Services for Children, Inc., attorney for petitioner, Christina E. Clayton, Esq., of counsel

           

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Abigail Goldenberg, Esq., of counsel

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer, which found that respondent offered an appropriate educational program to petitioner's daughter for the 2006-07 school year and denied petitioner's request for funding of her daughter's tuition costs at Winston Preparatory School (Winston) for the 2006-07 school year.  The appeal must be dismissed.

 

            At the time of the impartial hearing on July 25, 2006, petitioner's daughter was 11 years old and had just completed the fifth grade at respondent's P.S. 232 (Tr. p. 115; Joint Ex. A at p. 1).  The student's eligibility for special education programs and classification as a student with a learning disability are not in dispute (8 NYCRR 200.1[zz][6]).

 

            The student previously attended a private parochial school for both prekindergarten and kindergarten (Parent Ex. C at p. 2).  In kindergarten (2000-01), the student had difficulty identifying letters and familiar words and, as a result, petitioner requested that the student be evaluated by respondent (Tr. pp. 152-53).  An evaluation reportedly took place and the student was found to have weaknesses in decoding and expressive language (Tr. pp. 153-54).  The student transferred to P.S. 232 for her first grade year (2001-02) (Tr. p. 154;  Parent Ex. C at p. 2), where she received remedial help in reading.  Notwithstanding the remedial help, she continued to experience difficulty with word analysis skills in reading and delays in spelling (Parent Ex. C at p. 2; Tr. p. 155).

 

In second grade (2002-03), the student was referred for an evaluation due to reading and spelling difficulties (Parent Ex. C at p. 2; Joint Ex. D at p. 1).  Administration of the Wechsler Intelligence Scale for Children - Third Edition (WISC-III) in January 2003 yielded the following standard scores: verbal IQ score 95, performance IQ score 106, and full scale IQ score 100 (Parent Ex. C at p. 2).  The student's performance placed her in the "Average" range of intelligence; however, according to the evaluating psychologist, the student's uneven test scores revealed a potential for higher functioning (id.).

 

The results of educational testing in January 2003 revealed that the student's reading skills were on a beginning first grade level (id.).  Weaknesses were noted in the student's basic reading skills, phonics/decoding skills, knowledge of phoneme-grapheme relationships, spelling, and written expression (id.; Joint Ex. D at p. 2).  The student's math skills were reported to be a relative strength (Parent Ex. C at p. 2).  As a result of the evaluation, respondent's Committee on Special Education (CSE) classified the student on January 24, 2003 as having a learning disability (Parent Ex. H at p. 1).  The CSE recommended direct special education teacher support services (SETSS) for the student in a group of 8:1 (id.); however, the recommended frequency of SETSS is not clear from the record.

 

When the student was in third grade (2003-04), the SETSS teacher reported that the student continued to struggle with reading, despite interventions (Parent Ex. C at pp. 1, 8).  Both the student's classroom and SETSS teachers reported that the student's reading and spelling skills were at a first grade level and noted problems with the student's written expression (id. at p. 3).

 

In December 2003, the school psychologist assessed the student's academic achievement using the Wechsler Individual Achievement Test - Second Edition (WIAT-II) (id. at p. 4).  In January 2004, the CSE reconvened to review the evaluation and develop an individualized education program (IEP) for the 2004-05 school year (Parent Ex. G at p. 3).  The resulting January 2004 IEP indicated that the student's reading ability was an area of significant concern, specifically that the student's phoneme-grapheme relationships were poor, that she struggled to decode words, and that her poor decoding ability had a serious impact on her reading comprehension (id.).  The January 2004 IEP further indicated that the student's writing skills were weak and that she wrote very slowly with many spelling and punctuation errors (id.).  The CSE recommended an increase in the student's SETSS from five to eight sessions per week, in a group of 8:1 (id. at p. 2).

 

In the fourth grade (2004-05), the student's reading skills reportedly improved slightly with the increase in SETSS frequency; however, she began to fail classes from which she was repeatedly removed for services (Tr. p. 158).  Respondent's staff recommended that the number of SETSS sessions be reduced because the student was in danger of being held back (id.).

 

The CSE convened on January 16, 2005 for the student's annual review (Parent Ex. F at p. 1).  The IEP developed by the CSE noted that the student's decoding skills had improved (id. at p. 3).  However, the January 2005 IEP stated that her reading comprehension remained poor and the student's written expression and reading skills remained areas of concern (id.).  The IEP included goals and objectives related to improving the student's reading comprehension and reading skills, and improving her expressive writing skills (id. at pp. 6, 7).  The CSE recommended that the student's SETSS be reduced to five sessions per week (id. at p. 5).  The student's classification and test modifications remained the same (id. at pp. 1, 10).

 

A CSE meeting was reportedly held on January 5, 2006 (Joint Ex. E at p. 2; Tr. pp. 51, 162), and a referral for an assistive technology evaluation was made at approximately the same time (Tr. pp. 161-62; Joint Ex. E at p. 1; Dist. Ex. 6).1  An assistive technology evaluation was performed on March 21, 2006 (Joint Ex. E).  Although the evaluators opined that assistive technology for reading was not warranted (id. at p. 5), a laptop computer was recommended to assist the student with her writing (id. at p. 4).  The evaluation report also recommended a word processing program having visual cues for spelling and grammar errors, and a screen reading program with a talking, phonetically based spell checker and homonym identifier (id.). 

 

A psychoeducational evaluation was conducted over two days in April 2006 (Joint Ex. D).  The evaluator administered a series of test from the Woodcock-Johnson III Tests of Achievement to measure the student's academic functioning (id. at p. 3).  The student obtained a Broad Reading standard score of 74 (4th percentile, 2.5 grade equivalent) indicating overall low reading skills (id.; Tr. pp. 19-20).  According to the evaluator, the student appeared to have significant difficulty with phonological awareness and her sight word vocabulary was limited (Joint Ex. D at p. 3).  The student's reading fluency was in the low range and her ability to read and comprehend what she read was also low for her age and grade (id. at pp. 3, 7; Tr. p. 20).  Math was an area of relative strength, with the student obtaining a Broad Math standard score of 101 (54th percentile, 5.8 grade equivalent) (Joint Ex. D at pp. 4, 7; Tr. pp. 20-21). However, the student's math fluency was in the low average range (Joint Ex. D at pp. 4, 8; Tr. p. 21).  The student's writing skills were characterized as variable (Broad Written Language standard score 89 [24th percentile, 4.2 grade equivalent]).  The student demonstrated strength in her ability to produce meaningful sentences in response to a variety of tasks, when spelling errors were not taken into account (Joint Ex. D at p. 4).  However the student's writing fluency and spelling were in the low average range (Joint Ex. D at p. 4).  According to the evaluator, the student continued to present the same pattern of difficulty as she had previously demonstrated, specifically low performance in reading decoding, reading comprehension, and reading fluency; low average performance in spelling, writing fluency, and math fluency, and average ability in math computations and math reasoning (id. at p. 5).  The evaluator noted that the student had shown substantial improvement in word attack skills, which were now in the average range, and in written expression, which was now in the high average range (id.).  The evaluator stated that the student continued to require remediation in the areas of reading and spelling and that the student was making slow steady progress, as expected (id.).

 

Upon petitioner's request, the CSE convened again on April 10, 2006 for an educational planning conference (Joint Exs. A at p. 1, D; Tr. pp. 33-36, 72-73, 129-30, 172-73).  The April 2006 IEP reflected the results of the psychoeducational evaluation (Joint Ex. A at pp. 3, 4), as well as the March 2006 assistive technology evaluation (id. at p. 5).  The CSE recommended that the student's classification remain the same but that the student's program be changed to four periods of SETSS direct instruction per week in a group of 8:1 and one period per week in a group of 3:1 (id. at pp. 1, 10; Tr. pp. 23, 58, 117).  The CSE also recommended that assistive technology devices be added to the student's IEP (Joint Ex. A at p. 2; see also Joint Ex. A at p. 9; Tr. p. 69).  The student's April 2006 IEP contains goals and objectives related to improving expressive writing skills, reading comprehension, reading skills, word analysis and word recognition skills (Joint Ex. A at pp. 6-8).  The April 2006 IEP also indicates that collaborative team teaching was considered but rejected as too restrictive (id. at p. 11; Tr. pp. 27-28, 127-28).  The student's testing modifications remained the same as in previous IEPs (Joint Ex. A at p. 12).  CSE meeting minutes indicate that the student had been accepted at Winston (see Parent Ex. A) and petitioner wanted respondent to pay for the student's tuition at the private school (Dist. Ex. 2).  Winston has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).

 

By letter dated June 8, 2006, petitioner, through her attorney, requested an impartial hearing (IHO Ex. I).  Petitioner asserted that the student's April 2006 IEP was not designed to offer the student an appropriate education (id.).  Specifically, petitioner claimed that the goals and objectives did not help the classroom teacher give the proper support to the student and that the recommended placement would not provide the student with an appropriate education (id.).  Petitioner noted that her daughter had been accepted by Winston, and that Winston would be an appropriate placement for the student (id.).  Petitioner requested that respondent pay the student's tuition for the 2006-07 school year (id.).  Petitioner waived the resolution meeting (id. at p. 2).

 

At the hearing, petitioner asserted that respondent failed to offer her daughter a free appropriate public education (FAPE) for the 2006-07 school year based upon the petitioner's lack of participation in the development of the goals in the April 2006 IEP (Tr. pp. 162-63), the similarity of the April 2006 goals to those in the student's prior IEP (Tr. pp. 49, 146) and the inappropriateness of the program recommended by the CSE (Tr. pp. 146, 164).  Specifically, petitioner asserted that a general education classroom with SETSS was not appropriate because the student had not made adequate progress in a similar program in the past (Tr. pp. 164, 167).  Petitioner asserted that Winston was an appropriate placement and requested tuition for Winston for the 2006-07 school year (Tr. pp. 164-68).  Respondent asserted that the goals on the April 2006 IEP were sufficient and that petitioner had the opportunity to participate in developing the goals (Tr. pp. 73, 93, 130).  Respondent also asserted that the student was making steady improvement (Tr. pp. 71, 116) and, therefore, the recommendation in the April 2006 IEP for the 2006-07 school year was appropriate.

 

            By decision dated August 15, 2006, the impartial hearing officer determined that there was no testimony indicating that the parents had been deprived of the opportunity to discuss the development of IEP goals for the student (IHO Decision, p. 5).  The impartial hearing officer determined that some of the goals in the April 2006 IEP were the same as those set forth in the 2005-06 IEP and that other goals were changed in terms of the percentages of accuracy that must be achieved by the student (id. at pp. 3-4).  The impartial hearing officer concluded that having similar goals on both IEPs did not render them inappropriate or indicate that the student has not made progress (id. at p. 4), and she also noted that there was no evidence "indicating that there was any significant area of need which was not covered or that the goals were otherwise deficient" (id. at p. 4).

 

With regard to the student's progress in the 2005-06 school year, the impartial hearing officer found that the student was reading at a third grade level in the beginning of the school year and that her reading improved overall by at least one half year to a high third grade reading level, but perhaps less than one half year with regard to spelling and decoding (id. at p. 7).  The impartial hearing officer concluded that all of the evidence pointed to the student's steady improvement in all areas of difficulty and that she made slow progress due to the services that were provided by respondent to improve her reading and writing (IHO Decision, p. 8).  Among other things, the impartial hearing officer noted that the student's general education teacher felt that the April 2006 IEP was appropriate and also that the student's SETSS teacher testified that the student had made significant progress in reading and writing since the third grade (id. at p. 6).  The impartial hearing officer further noted that the April 2006 IEP provided for an increase in services since January 2005 (id. at p. 7).  Denying petitioner's request that she order respondent to make tuition payments to Winston on behalf of the student, the impartial hearing officer found that this evidence demonstrated that the student was offered an appropriate placement in the least restrictive environment (LRE) (id. at p. 8).

 

            On appeal, petitioner asserts that the impartial hearing officer erred in determining that respondent is not required to pay the student's tuition to Winston.  Petitioner requests reversal of the impartial hearing officer's determination upon grounds that respondent failed to offer the student a FAPE because she was not given an opportunity at the CSE meeting to meaningfully participate in the formulation of goals and objectives in the April 2006 IEP, the IEP was not reasonably calculated to offer the student with educational benefit, and the goals and objectives lacked a starting point from which to measure the student's progress.  Petitioner further argues that Winston is an appropriate placement for the student and that the equities favor petitioner.  Petitioner also requests an order directing respondent to pay the student's tuition costs at Winston for the 2006-07 school year.

 

Respondent contends that the impartial hearing officer's decision should be affirmed because the April 2006 IEP is reasonably calculated to enable the student to receive educational benefits.  Respondent further argues that the goals and objectives contained in the April 2006 IEP are procedurally valid and substantively sufficient.  Additionally, respondent asserts that petitioner failed to demonstrate that Winston would be an appropriate placement for the student or that the equities favor petitioner.

 

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 546 U.S. 49, ___ 126 S. Ct. 528, 531 [2005]); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 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. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).2,3  The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).

 

A FAPE is offered to a student, when the board of education (a) complied 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 (Rowley, 458 U.S. at 206, 207 [1982]).  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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak v. Fla. Union Free Sch. Dist., 142 F. 3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; Walczak, 142 F.3d at 132).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 546 U.S. at___, 126 S. Ct. at 537).

 

School districts are required to comply with all IDEA procedures; however, not all procedural errors render an IEP legally inadequate (Grim, 346 F.3d at 381).  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[j][4][ii]).

 

            Regarding the appropriateness of the April 2006 IEP, I find that petitioner has not met her burden of persuasion with regard to either her procedural or substantive claims.  First, no evidence was adduced at the hearing indicating that petitioner was precluded from raising any concern she may have had with the goals contained in the April 2006 IEP.  Although draft goals were prepared in advance of the meeting (Tr. p. 74), and the witnesses' recollections with respect to the depth of discussion regarding goals and objectives differed (Tr. pp. 36, 72-73, 130-31, 134, 163-64, 173), there is not sufficient evidence in the record to demonstrate that petitioner was prevented from raising her concerns about the goals in a way that significantly impeded her meaningful participation in the formulation of the IEP.  It is not impermissible for school district personnel to draft goals prior to a CSE meeting (Application of a Child with a Disability, Appeal No. 05-087; Application of a Child with a Disability, Appeal No. 02-029; Application of a Child with a Disability, Appeal No. 01-073; see also Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; W.S. ex rel. C.S. v. Rye City Sch. Dist., 2006 WL 2771867 at *12 [S.D.N.Y. 2006] [a school district should not be precluded from suggesting an outcome at a CSE meeting]).  The evidence in the record shows that that petitioner was significantly involved in the discussions at the April 10, 2006 CSE meeting (Tr. pp. 17, 27-28, 127, 34-36, 59-61, 72-73, 130-32, 134, 163, 176-77; Dist. Ex. 2; see Cerra, 427 F.3d at 193).  Although the goals could have been more specific, I also concur with the impartial hearing officer's determination that the goals were sufficient because they addressed each of the student's individual needs and would have made her general education teacher aware of the need for and areas of remediation (IHO Decision, pp. 4-5; Tr. pp. 67, 81, 88).  Consequently, I find that the hearing officer was correct in determining that there was no procedural flaw regarding petitioner's participation in the development of the April 2006 IEP.

 

Turning to petitioner's substantive claim that the April 2006 IEP was not reasonably calculated to provide educational benefit, I cannot conclude, upon my review of the record, that the April 2006 IEP was unlikely to produce progress or was likely to result in nothing more than trivial advancement.  During the 2005-06 school year, the student received SETSS five times per week in a group of 8:1 in a separate location (Parent Ex. F at p. 1).  Her January 2005 IEP contained goals and objectives related to improving reading skills, improving reading comprehension, and improving expressive writing skills (Parent Ex. F at pp. 6, 7).  The student's special education teacher reported that she addressed the student's deficits in reading comprehension by working with the student on active reading techniques such as rereading difficult points and thinking about what had been read, studying illustrations, highlighting, underlining, and writing comments (Tr. p. 66).  The teacher noted that such strategies had worked for the student (id.).  The special education teacher indicated that she also used graphic organizers with the student (id.).  The teacher further reported that the student had "flourished" using a "graph analysis" strategy to assist with word attack (id.).4  She indicated that the use of a multisensory approach had been successful with the student and recommended the employment of multi-modality cues during the 2005-06 school year (Joint Ex. A at p. 3; Tr. pp. 67-68).

 

Regarding the student's current educational needs, recent evaluative reports indicated that the student has significant deficits in reading, spelling, and written language (Dist. Exs. 4, 5; Joint Ex. A at p. 3; Joint Ex. D; Tr. p. 115).  With respect to reading, the student demonstrates deficits in phonological awareness and her sight word vocabulary is limited (Joint Ex. D at p. 3).  The student also exhibits weaknesses in reading fluency and reading comprehension (id. at pp. 3, 7; Tr. p. 20), and in her writing the student demonstrates difficulties with spelling and writing fluency (Joint Ex. D at p. 4).  While the student's math skills are close to grade level (Tr. pp. 32, 125), she demonstrates relative weaknesses in math fluency (Joint Ex. D at pp. 4, 5; Tr. p. 21) and requires support when reading word problems (Dist. Ex. 5 at p. 1; Tr. pp. 60, 125).

 

After psychoeducational and assistive technology evaluations were conducted, the CSE met on April 10, 2006 and modified the student's special education services in an attempt to address her ongoing needs in reading, writing, and spelling (Joint Ex. D; Dist. Ex. 2).  The student's SETSS services were changed from five periods per week in a group of 8:1 to four periods per week of direct SETSS instruction in a group of 8:1 and one period per week of direct SETSS instruction in a group of 3:1 (Joint Ex. A at p. 1).  The school psychologist indicated that the purpose of the smaller group is to work on phonics (Tr. p. 23), and the student's teachers stated that the smaller group would allow the student to "work on her real weaknesses such as objective [sic] and expressive language," spelling, and sight vocabulary (Tr. p. 58), and would provide the student with a little more individual assistance and build her self-confidence (Tr. p. 117).  Additionally, a goal and several objectives related to improving word analysis and word recognition skills were added to the student's April 2006 IEP (Joint Ex. A at p. 8), and assistive technology devices, as recommended in the March 2006 assistive technology evaluation report, were also added to the student's April 2006 IEP to assist the student with completing written work with increased independence (id. at pp. 5, 9; see also Joint Ex. E).

 

These modifications appear to be reasonably calculated to provide the student with educational benefits.  The record reveals that previous IEPs with similar goals resulted in the student deriving an educational benefit.  Specifically, with regard to writing, the special education teacher reported that the student could write a sentence in the 2005-06 school year, whereas in the previous school year she had difficulty writing a sentence (Tr. p. 101).  The teacher also stated that the student could now write a paragraph and that her spelling was improving (id.).

 

The student's regular education teacher reported that as the 2005-06 school year progressed the student's written sentences became more complex (Tr. p. 116).  The teacher's testimony regarding the student's writing abilities is consistent with standardized testing performed by the school psychologist in April 2006, during which the student performed in the high average range on a measure of written expression (id.; Joint Ex. A at p. 3; Joint Ex. D at p. 4).  At the time, the psychologist reported that the student demonstrated strength in her ability to produce meaningful sentences in response to a variety of tasks, when spelling errors were not taken into account (Joint Ex. D at p. 4).

 

With regard to reading comprehension, the special education teacher reported that the student was "more comfortable with the text and she knows to look for specific things that should help her" (Tr. p. 62).  The regular education teacher reported that the student's ability to answer questions explicitly stated in a reading passage had improved (Tr. pp. 120-21).  She also noted that the student's spelling had improved (Tr. p. 124) and that her sight word vocabulary grew from the beginning to the end of the school year (Tr. p. 135).  The regular education teacher testified that between third and fifth grade the student had moved from struggling to decode an individual word to reading passages (Tr. p. 125).  As measured in her April 2006 standardized testing, the student's word attack skills fell in the average range (Joint Ex. D at pp. 5, 7).  Upon review of the record as a whole, I conclude that petitioner failed to establish that the April 2006 IEP was not reasonably calculated to enable the child to receive educational benefits.  Accordingly, her claim that respondent failed to offer the student a FAPE for the 2006-07 school year must fail.5

 

In conclusion, I further note that the content of the student's SETSS instruction, including the particular skills addressed, are not fully described in the record.  The school psychologist who evaluated the student suggested that the student needs to improve her phonemic awareness, perhaps by learning to identify initial, final, and medial sounds of words, and by identifying the number of syllables and segmenting words (Joint Ex. D at p. 6).  The student is entering sixth grade and her content area classes are likely to include the introduction of many new vocabulary words and require a significant amount of reading.  I encourage respondent to consider obtaining a comprehensive reading evaluation to assist the student's teachers with further pinpointing the student's reading difficulties and with planning daily instruction.

 

Accordingly, I find that the evidence in the hearing record does not establish that respondent offered the student an inappropriate program for the 2006-2007 school year.  Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Winston was an appropriate placement (Comm. of Burlington v. Dep't of Educ., 471 US 359, 370 [1985]).

 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

November 15, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 The IEP that was reportedly developed by the CSE in January 2006 was not made part of the record.

 

2 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]; see 34 C.F.R. § 300.17; see also 20 U.S.C. § 1414[d]).

 

3 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 (IDEA), as amended by the IDEA 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.

 

4 The transcript indicates that the student's special education teacher was employing "graph analysis" as a word attack strategy (Tr. p. 66).  Based upon context, it appears the teacher may have indicated that she was using "grapheme analysis," which would be an appropriate component of instruction for this student.

 

5 Even if I had concluded that respondent had not satisfied its obligation to offer a FAPE, petitioner's request that respondent pay the tuition costs for the student at Winston would nevertheless fail.  An order for a district to pay tuition costs at an unapproved placement is appropriate as an equitable remedy to reimburse parents once they have enrolled the student in the placement obtained and paid for appropriate services (20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148[c]; see generally Burlington, 471 U.S. 359; Florence County Sch. Dist Four v. Carter, 510 U.S. 7 [1993]; A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 [E.D.N.Y. 2002]; Application of a Child with a Disability, Appeal No. 06-035; Application of the Bd. of Educ., Appeal No. 04-037).  Here, it is undisputed that petitioner has not enrolled the student at Winston and that she has not incurred out-of-pocket expenses to cover tuition (id.).  Moreover, the impartial hearing took place on July 2006 prior to any enrollment in private school.  The record does not reflect that the student could not be educated in a public school.  Had there been deficiencies in the student's offered IEP, the appropriate remedy here would have been to direct respondent to correct the deficiencies by convening a CSE meeting and revising the IEP pertaining to the public school placement.