The State Education Department
State Review Officer

No. 06-108







Application of the BOARD OF EDUCATION OF THE SOUTH HUNTINGTON UNION FREE SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability



Ingerman Smith, LLP, attorney for petitioner, Christopher Venator, Esq., of counsel




            Petitioner, the Board of Education of the South Huntington Union Free School District (district), appeals from the decision of an impartial hearing officer which determined that the educational programs recommended by its Committee on Special Education (CSE) for respondent's daughter for the 2004-05 and 2005-06 school years were not appropriate and ordered petitioner to provide private tutorial services to respondent's daughter.  The appeal must be sustained in part.


            At the commencement of the impartial hearing on March 17, 2006, the student was 18 years old and receiving home schooling provided by respondent (Tr. pp. 1, 502, 599-600; Parent Ex. H at p. 1).  The student has cerebral palsy and cognitive abilities in the extremely low range (Tr. pp. 100, 660; Dist. Ex. 9 at p. 2).  She has difficulties in the areas of attention, working memory, and integrative skills, and has performed far below grade level in all academic areas (Dist. Ex. 9 at p. 5).  Her phonological decoding skills are at the pre-kindergarten level (id.).  In addition, the student exhibits difficulties with gross and fine motor functioning, as well as with speech articulation (id.).  The student's eligibility for special education programs and services as a student with multiple disabilities (Parent Ex. H at p. 1) is not in dispute in this appeal (see 8 NYCRR 200.1[zz][8]).


            The student entered petitioner's district in 2002-03, when she was in the eighth grade (Dist. Ex. 3 at p. 1; Parent Ex. E at p. 3).  An October 3, 2002 CSE (Parent Ex. E) recommended that the student be placed in a 15:1+1 program with a regular education curriculum (Tr. p. 38; Parent Ex. E) for students who would receive a Regents diploma (Tr. p. 47).  The bases for this recommendation were respondent's preference to have her daughter placed in a mainstream setting with her peers (Tr. p. 38) and petitioner's inability to provide a life skills program for the student until she entered high school in the ninth grade (Tr. pp. 20-21, 40).  The student was provided with a one-to-one paraprofessional who worked with her on a modified curriculum focusing on basic skills (Tr. pp. 38-39).


            A June 17, 2003 CSE recommended that the student attend an 8:1+1 life skills program for ninth grade during the 2003-04 school year (Tr. p. 40; Parent Ex. F).  The recommended program included a half day with petitioner's special education teacher providing basic reading skills instruction (Tr. p. 42), and a half-day program with a vocational rehabilitation therapist from the South Oaks Hospital and Rehabilitation Center providing prevocational skill instruction (Tr. p. 41).  Respondent disagreed with the recommended program and initiated an impartial hearing (Tr. p. 43).1


            On June 23, 2004, the CSE convened to develop the student's individualized education program (IEP) for her tenth grade 2004-05 school year (Parent Ex. G at p. 1).  In addition to respondent and a parent member, attendees included the CSE chairperson, the school psychologist, two special education teachers, and the department chairperson of special education (Parent Ex. G at pp. 5, 10).  The physical education teacher participated by telephone (Parent Ex. G at p. 10).  Petitioner's June 23, 2004 CSE recommended that the student be placed in petitioner's high school in a self-contained Life Skills Vocational Program (LSVP) 8:1+1 class, outside of the general education environment (Parent Ex. G at p. 1).  The recommended program included five 40-minute periods each per week for LSVP English, LSVP math, LSVP reading skills, and LSVP vocational education (Parent Ex. G at pp. 1-2).  In addition, the June 23, 2004 CSE recommended group counseling one time per week for 40 minutes, as well as parent counseling and training in a group, five times a year, for 60-minute sessions (id.).


            The June 23, 2004 CSE also recommended exemption from the foreign language requirement, a high school IEP diploma, transportation on a mini-bus/van, and a full-time aide for monitoring and assistance (Parent Ex. G at p. 1).  Recommended supplementary aids and services included the use of a calculator, access to a computer in the classroom for writing assignments, related services, and a class paraprofessional in the special education classroom (Parent Ex. G at p. 2).  Recommended test accommodations included the recording of answers in any manner, the use of a word processor for essays only, and the use of a scientific calculator (Parent Ex. G at pp. 3, 5), as well as flexible seating, the administration of tests in a small group in a separate location, the simplification of language in directions, the reading of tests, the use of an arithmetic table, and extended time (1.5) (Parent Ex. G at p. 3).  The June 23, 2004 CSE recommended that the student participate in the general education setting for lunch and adaptive physical education (Parent Ex. G at p. 2).  Projected long-term post-secondary adult "outcomes" were included on the IEP for community living, employment/post-school activities, instruction, and daily living skills, as was the provision of a vocational evaluation (Parent Ex. G at pp. 5-6).  Goals addressed reading, personal organization, and self-help skills (Parent Ex. G at pp. 6-9). 


            The student was home schooled for the 2004-05 school year (Tr. pp. 593-94).  On October 20, 2004, petitioner noted in a letter to respondent that it sent her information regarding New York State Education Department requirements pertaining to home schooling (Parent Ex. Q).  In the letter, petitioner indicated that respondent's home schooling plan needed to include clear information about curriculum scope and time line (Parent Ex. Q).  Petitioner further indicated that it would provide speech therapy and, upon respondent's presentation of medical prescriptions, occupational therapy and physical therapy (id.).  Petitioner received the student's individualized home instruction plan on April 29, 2005 (Parent Ex. BB).


            Respondent testified that during the 2004-05 school year she obtained private multi-sensory reading instruction for her daughter (Tr. pp. 595-98).  Respondent further testified that the private reading specialist recommended more reading instruction than the four hours of instruction that she provided the student at that time (Tr. p. 597).


            The CSE convened on August 31, 2005 to develop an IEP for the student's 2005-06 11th grade school year (Parent Ex. H).  Attendees included the CSE chairperson, who also signed in as the psychologist, the special education teacher, the general education teacher, the special education department chairperson, and respondent (Parent Ex. H at pp. 4, 9).  Respondent signed a waiver authorizing the August 31, 2005 CSE to convene without a parent member (Parent Ex. H at p. 9).  Program recommendations were identical to those recommended on the 2004-05 IEP, except to the extent that a shared aide across all environments, with a student-to-staff ratio of 2:1, was added (Parent Ex. H at pp. 1-2), and that no counseling or special transportation were recommended (Parent Ex. H at p. 1).  A level two vocational assessment was recommended for the student to explore a variety of realistic career and employment options and to determine the student's vocational strengths, weaknesses, and interests (Parent Ex. H at pp. 4-5).  In addition, occupational therapy, physical therapy, speech, and assistive technology assessments were recommended (Parent Ex. H at p. 4). 


            The August 31, 2005 IEP indicated that respondent was not in agreement with the CSE's recommendation for the 8:1+1 program  for the student's 11th grade year  and that respondent would "continue to explore a private or home school program" (Parent Ex. H at pp. 1, 4).  The August 31, 2005 IEP indicated that, if the student attended a private school, petitioner would provide resource room, occupational therapy, and physical therapy for the student (id.).  Recommended goals were the same as those recommended in the June 23, 2004 IEP (Parent Exs. G at pp. 6-9; H at pp. 5-8).


            On September 16, 2005, respondent brought her daughter to Lindamood-Bell for a "learning potential" evaluation, which involved administration of various diagnostic instruments (Parent Ex. EE).  Tests administered included the Peabody Picture Vocabulary Test - III (PPVT-III), which resulted in a standard score (SS) (and percentile) of 77 (6) (Parent Ex. EE at p. 1).  Administration of the word opposites subtest of the Detroit Tests of Learning Aptitude - A (DTLA-A) yielded a SS of 2 (< 1) (id.).  On the verbal absurdities subtest of the Detroit Tests of Learning Aptitude, the student's score yielded a mental age of 5-6 (id.).  Administration of the oral directions subtest of the Detroit Tests of Learning Aptitude - 2 yielded a SS of 4 (2) (id.).  Administration of the word attack subtest of the Woodcock Reading Mastery Test - Revised NU yielded a SS of 49 (0.1) (id.).  Administration of the Slosson Oral Reading Test - Revised 3 yielded a SS of 36 (<1) (Parent Ex. EE at p. 2).  On the Wide Range Achievement Test - 3, the student achieved a SS of 55 (0.3) on the reading subtest, a SS of 58 (0.6) on the spelling subtest, and a SS of 49 (0.06) on the arithmetic subtest (id.).  Administration of the Gray Oral Reading Test - 4 yielded standard scores of 1 (<1) for rate, accuracy, and fluency, and a SS of 3 (2.7) for comprehension (id.).  Administration of the Lindamood-Bell Conceptualization Test - 3 yielded a SS of 55 (<1) (id.).  The Lindamood-Bell evaluator recommended that the student receive 240 hours of intensive sensory-cognitive instruction four hours daily, five days per week, for twelve weeks (Parent Ex. EE at p. 3).


            By letter dated September 28, 2005, respondent again rejected the program  recommended by the August 31, 2005 CSE (Parent Ex. A).  Respondent claimed that the proposed IEP did not accurately reflect an individualized plan that met her daughter's needs, and that it failed to provide her daughter with appropriate special education accommodations and services that would facilitate learning in the least restrictive environment (LRE).  Respondent requested that petitioner pay for an independent neuropsychological evaluation, and an independent "audio" evaluation of its choice.  She also requested the provision of physical therapy, occupational therapy, assistive technology, daily reading tutorials, and accommodations for her daughter.  In addition, respondent sought her daughter's enrollment in the Board of Cooperative Educational Services (BOCES) veterinarian assistant or equestrian studies program with accommodations and support, and an expedited CSE meeting, pending the results of the independent evaluations.


            On October 12, 2005, the CSE reconvened, approved a neuropsychological evaluation for the student, and acknowledged respondent's request for initiation of an application to the BOCES half-day program at the vocational school (veterinarian) or the half-day program at Thomas School of Horsemanship (Parent Ex. U).  On October 19, 2005, petitioner submitted an application for either the equestrian or veterinarian assistant program at Manor Plains High School (Parent Ex. V at p. 1).  A memorandum dated November 27, 2005 indicated that the student was accepted to the afternoon Wilson Tech Equestrian Program (Wilson Tech) (Parent Ex. V at p. 2; Dist. Ex. 6).  The student attended the program for approximately one month (Tr. p. 301).  The student's teacher reportedly described the student as not benefiting from placement at Wilson Tech because it was a mainstream program with academic demands that superseded the student's abilities (Dist. Ex. 10).  In addition, the student's teacher reportedly opined that the student's participation in the program would not provide her with appropriate vocational training, as she was not benefiting from the vocational aspect of the program (id.).  In addition, the teacher was concerned about the student's physical safety with respect to the grounds and the horses (id.).  Respondent and the student visited other programs at Manor Plains High School, but the student did not demonstrate interest in any self-contained program that petitioner believed might be appropriate for her (id.).  By letter dated December 7, 2005, the Manor Plains High School principal stated that, "If modifications were made to the program for [the student], the tasks that [the student] would be capable of performing, even with assistance, would be so limited as to make it difficult to fill her day with meaningful instruction and subsequent employment at this time" (Dist. Ex. 11 at p. 2). 


            On December 7, 2005, petitioner invited respondent to a CSE meeting that was scheduled to convene on December 15, 2005 to discuss the student's educational needs (Dist. Ex. 16).  In a memorandum to the director of special education dated December 15, 2005, petitioner's coordinator of student services indicated that one day earlier respondent requested that the CSE meeting be cancelled (Dist. Ex. 18).  The CSE meeting was rescheduled two more times in January 2006, but both meetings were cancelled because respondent was not available (Dist. Exs. 17 at pp. 1-2; 19).


            Results of an occupational therapy evaluation conducted on October 28, 2005 noted difficulties in school-related tasks requiring visual motor development and task organization (Dist. Ex. 7 at p. 4).  Although test scores were below average, the student was described by the occupational therapist as able to participate and complete perceptual motor tasks, such as copying from near and far points (id.).  Difficulties in copying from a near point were attributed to the student's decreased spelling abilities (id.).  Written organization, letter formation, and size and spacing of letters and words were described as appropriate (id.).  While keyboarding programs were suggested for the student, occupational therapy services were not recommended (Dist. Ex. 7 at p. 5).


            An undated physical therapy evaluation report indicated that the student's functional status was dependent on fatigue and pain levels (Dist. Ex. 8 at p. 1).  Deficits in her core strength, as well as her poor balance and equilibrium, affected the student's endurance and safety within the school environment (Dist. Ex. 8 at p. 2).  The evaluation report recommended that the student be placed in the front of the classroom for visual assistance (id.).  Additional recommendations included the reduction of physical demands in the environment, such as the use of an elevator to decrease the student's need to use the stairs, as well as the provision of adaptive physical education to enhance balance and core strength (id.).  Consultation with classroom teachers was recommended to determine the student's fatigue levels during the course of the day and to make adjustments where possible (id.).  The evaluator recommended individual physical therapy and push-in services to adaptive physical education one time per week (id.).  Suggested goals and objectives pertained to refining balance and equilibrium responses, increasing strength and endurance, and improving ambulation skills to maximize school performance (id.).


            By December 15, 2005, the occupational therapy and physical therapy evaluation reports were ready for review (Dist. Ex. 18).  The results of the independent neuropsychological evaluation that had been approved at the August 31, 2005 CSE meeting were not yet available because of delays in testing, reportedly caused by the parent missing some appointments. 


            The independent neuropsychological evaluation was conducted on November 11, 2005, November 28, 2005, and December 12, 2005 (Dist. Ex. 9 at p. 1).  Formal testing indicated overall cognitive abilities within the mildly deficient range of functioning (Dist. Ex. 9 at p. 5).  Simpler skills in both the verbal and nonverbal domains were identified as relative strengths, with scores generally in the borderline deficient range (id.).  Difficulty was noted in attention/working memory, and integrative skills.  Academic skills were far below grade level, with decoding skills identified as particularly difficult for the student, as her phonological decoding skills were at the pre-kindergarten level (id.).  Problems were noted in the areas of gross and fine motor skills, and speech articulation (id.).  Test results were described as generally consistent with prior findings that had reported the student's cognitive functioning to be deficient and her academic skills to be far below grade level (id.). 


            The neuropsychological evaluation report indicated that the student would most likely have difficulty with basic academic skills, reading, fine motor skills, performing consistently, processing speed, learning new material, problem solving, and integrating material (Dist. Ex. 9 at pp. 6-7).  The evaluator recommended that the student receive related services, such as speech and language therapy, occupational therapy, and physical therapy, as well as life skills training (Dist. Ex. 9 at p. 6).  The evaluator also recommended that the student have opportunities to be with typically developing peers, and that classroom curriculum focus on basic academic skills, particularly in the areas of reading, spelling, writing, and basic mathematics, to increase functional literacy skills (id.).  The evaluator recommended that academic material be taught in small increments at a pace appropriate for the student (id.).  In addition, the evaluator recommended that consistent one-to-one services that focus on building basic reading skills be implemented for at least two hours per day (id.). 


            By letter dated February 3, 2006, respondent rejected the recommendations made by petitioner's CSE, and requested an impartial hearing (Dist. Ex. 13).  Respondent asserted that petitioner had "grossly" failed to establish a meaningful educational program in the LRE for her daughter (Dist. Ex. 13 at p. 3).  Without identifying the IEPs at issue, respondent argued that her daughter's IEPs were consistently deficient and ineffective, and claimed that her IEPs did not have meaningful and quantifiable short-term goals and/or any longtime strategies (id.).  Respondent alleged that her daughter's IEPs were not uniquely developed to afford her daughter any meaningful, educational, social, and emotional accomplishments (id.).  Respondent asserted that petitioner failed to provide her daughter accommodations, as well as failed to teach her to read and to provide her access to the Lindamood-Bell intensive reading program (id.).


            An impartial hearing convened on March 17, 2006 and ended on June 14, 2006, after seven days of hearings.  By decision dated July 12, 2006, the impartial hearing officer noted that the June 23, 2004 IEP included the same goals as the IEP from the previous year and that the August 31, 2005 IEP was almost identical to the June 23, 2004 IEP (IHO Decision, p. 12).  The impartial hearing officer found that petitioner failed to offer the student a free appropriate public education (FAPE)2 for the 2004-05 and 2005-06 school years because the June 23, 2004 and August 31, 2005 IEPs did not address the student's needs in the areas of math and reading, included inappropriate goals and objectives, and failed to indicate the provision of related services (id.).  He noted that the student demonstrated needs in the areas of vocational training, life skills training, speech-language, occupational therapy, and physical therapy, and preferred information embedded in concrete, real life situations, learning best when the goal included self-motivation that she understood in a desirable social context (Dist. Ex. 2; IHO Decision, p. 14).  The impartial hearing officer also concluded that the mainstream program requested by respondent was inappropriate for the student (IHO Decision, pp. 14-15).  Relying in part upon the independent neuropsychological report, which recommended consistent one-to-one services that focused on building basic reading skills in the form of tutoring two hours per day, the impartial hearing officer found the student to be entitled to compensatory services based on petitioner's failure to provide her with appropriate reading instruction (IHO Decision, p. 13).  The impartial hearing officer ordered that the student's program include Lindamood-Bell tutoring for four hours per day, five days per week, for a period of 12 weeks at petitioner's expense, and transportation to and from the program (IHO Decision, p. 15).  He further found that the student "needs life skills training" and ordered petitioner's CSE to reconvene to develop an appropriate half-day program, to complement the Lindamood-Bell tutoring, in consultation with respondent (id.).  The impartial hearing officer directed petitioner's CSE to consider the student's interests and needs, and to incorporate opportunities for contact between the student and her typically developing peers (id.).


            On appeal, petitioner asserts that the impartial hearing officer improperly invalidated the student's 2004-05 and 2005-06 IEPs and improperly determined that petitioner failed to offer the student a FAPE.  In addition, petitioner argues that the impartial hearing officer erred in finding that respondent met her burden of persuasion in establishing that Lindamood-Bell was an appropriate program.  Petitioner requests that the impartial hearing officer's order directing it to provide the student with instruction at, and transportation to, the Lindamood-Bell program be vacated, and that the State Review Officer find that it offered the student an appropriate placement. 


            Respondent requests affirmance of the impartial hearing officer's order directing petitioner to provide Lindamood-Bell services to her daughter for 20 hours per week for 12 weeks, continuation of petitioner's provision of Lindamood-Bell services to her daughter "until she reaches her full learning potential," tutoring, transportation to and from Lindamood-Bell, pendency placement at Lindamood-Bell, and compensatory education.


            A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)3 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]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][d]; 34 C.F.R. § 300.17;4 see 20 U.S.C. § 1414[d]; 34 C.F.R. §§ 300.22, 300.320).  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 (Rowley, 458 U.S. at 206-07).  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114[a]; 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).  Both the Supreme Court and the Second Circuit have noted that the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189).  Thus, a school satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  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, 142 F.3d at 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]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).


            The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must 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]).  School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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 to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).


            Petitioner asserts that the impartial hearing officer improperly invalidated the student's IEPs for the 2004-05 and 2005-06 school years based on the continuation of the same goals on both IEPs, the absence of math goals, the inclusion of incomplete goals, and petitioner's failure to provide the related services indicated on the student's IEP.  I have reviewed the June 23, 2004 and August 31, 2005 IEPs (Parent Exs. G, H) and I find them to be defective.


            The June 23, 2004 IEP reflected the results of the student's evaluations and the student's present levels of performance in each domain, but the description of the student's present levels of performance in the academic domain is insufficient because it contains no reference to her difficulties with reading, despite test scores indicating a need in this area and goals and objectives for reading decoding (Parent Ex. G at pp. 4-5) (20 U.S.C. § 1414 [d][1][A]; 34 C.F.R. § 300.320[a]).  The June 23, 2004 IEP identified the student's need to generalize skills in writing, basic concepts, expression of wants and needs, and gross and fine motor skills, and her need to increase her attention span, but the IEP contains no goals or objectives for these areas of need (Parent Ex. G at pp. 4-5).  Counseling goals were not included in the June 23, 2004 IEP, although counseling was recommended as a related service. 


            The August 31, 2005 IEP is essentially identical to the June 23, 2004 IEP and, at a minimum, is deficient for the same reasons as discussed above (Parent Ex. H).  As set forth above, the June 23, 2004 and August 31, 2005 IEPs were not reasonably calculated to confer educational benefit to the student for the 2004-05 and 2005-06 school years.  I agree with the impartial hearing officer, and I find that the student was denied a FAPE for the 2004-05 and 2005-06 school years.


            With respect to the relief arising from the original compensatory education services claim, a review of the record reveals that respondent's primary concern herein is with the denial of a FAPE during a time period in which private reading instruction was provided.  To the extent that respondent's daughter received privately obtained reading instruction to address decoding needs and was home schooled during the period in question, the record does not provide sufficient information to determine what additional services are warranted5 (Application of the Bd. of Educ., Appeal No. 06-080).  I note again that respondent does not seek reimbursement for any privately obtained services.


            I concur with the impartial hearing officer's determination that the 15:1+1 program sought by respondent is not appropriate.  I also concur with the impartial hearing officer that petitioner should offer to provide life skills training and individual one-to-one instruction in reading.  I do not concur with the impartial hearing officer's conclusion that the reading instruction must be provided through the Lindamood-Bell program at district expense.  I will, however, direct petitioner's CSE to reconvene to recommend an appropriate program for the student which combines the 8:1+1 life skills program and vocational training, as well as district provided direct one-to-one reading instruction as recommended in the independent neuropsychological evaluation report  (Dist. Ex. 9 at p. 6) and appropriate related services.


            With respect to respondent's request for pendency placement at Lindamood-Bell, I find that this issue is beyond the scope of my review because it was not raised below (Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024).  In addition, I encourage the CSE upon remand to ensure that the student's IEP transition services comply with federal and state regulations (34 C.F.R. §§ 300.43, 300.320[b]; 8 NYCRR 200.4[d][2][ix]).


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




            IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent that it ordered petitioner to provide the Lindamood-Bell program to respondent's daughter for a 12-week period at public expense; and


            IT IS FURTHER ORDERED that within 30 days of the date of this decision, unless the parties otherwise agree, the CSE shall reconvene and recommend for respondent's daughter an appropriate life skills and vocational program, including an individualized reading program consistent with the November/December 2005 neuropsychological evaluation report, and appropriate related services.




Albany, New York




December 7, 2006





1 The previous impartial hearing involving the 2003-04 school year is not at issue in the instant case.  I note, however, that during that prior impartial hearing, petitioner's witnesses testified that the student's eighth grade placement in the 15:1+1 program for the 2002-03 school year was inappropriate (Dist. Ex. 3 at p. 3).  Moreover, the student remained in petitioner's 15:1+1 program for the 2003-04 ninth grade school year pursuant to pendency and parental request (Tr. p. 50; Dist. Ex. 3 at pp. 3-4).  On August 11, 2004, the impartial hearing officer decided that the 8:1+1 life skills program recommended by petitioner for the student for the 2003-04 school year was appropriate (Dist. Ex. 3). 


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).


3 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.]).  Some of the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments.  Therefore, at times the new provisions of the IDEA apply.  Citations contained in this decision are to IDEA 2004, unless otherwise specified.


4 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.


5 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.