The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pelham Union Free School District
Mayerson & Associates, attorney for petitioners, Gary S. Mayerson, Esq., of counsel
Keane & Beane, P.C., attorney for respondent, Stephanie M. Roebuck, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Windward School (Windward) for the 2004-05 and 2005-06 school years and denied their request to be reimbursed for their son's transportation costs to and from Windward for the 2004-05 and 2005-06 school years. The petition must be dismissed.
At the commencement of the impartial hearing on November 2, 2005, the student was eleven years old and attending fifth grade at Windward (Nov. 2, 2005 Tr. p. 1; Dec. 14, 2005 Tr. p. 25; Dist. Ex. 25 at p. 1). Petitioners unilaterally enrolled the student at Windward for the 2004-05 (fourth grade) and 2005-06 (fifth grade) school years (Dist. Ex. 13; see Parent Ex. B). Windward is a private school that specializes in the education of children with learning disabilities (Parent Ex. M at p. 6). The Commissioner of Education has not approved Windward as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]; Dec. 14, 2005 Tr. pp. 146-47). The student's eligibility for special education as a student with a learning disability is not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
Petitioners' son attended respondent's schools for five years from kindergarten through third grade (see Parent Ex. M at p. 1; April 7, 2006 Tr. p. 8). Respondent initially evaluated the student during his kindergarten year in spring 2000 (see Dist. Ex. 7 at p. 1). Initial evaluation results indicated a significant language based learning difficulty, with the student demonstrating weaknesses in word retrieval, organization of expressive language and auditory processing (see id.). For the 2000-01 school year, the student repeated kindergarten and respondent's Committee on Special Education (CSE) classified the student as a student with a learning disability (Feb. 27, 2006 Tr. p. 194). During the 2001-02 (first grade) and 2002-03 (second grade) school years, the student received resource room services for three hours a week and group speech language therapy two times a week for thirty minute sessions (Feb. 28, 2006 Tr. pp. 534, 592-93, 599; Dist. Ex. 26 at p. 2).
Upon the student's completion of second grade, respondent's school psychologist conducted a psychological evaluation in June and July 2003 as part of the student's triennial review (Dist. Ex. 7; see Feb. 27, 2006 Tr. pp. 359-74, 393-95). Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 94 (34th percentile), a performance IQ score of 113 (81st percentile), and a full scale IQ score of 104 (61st percentile), which placed the student in the average range of overall intellectual ability (Dist. Ex. 7 at p. 2). The student's subtest scores within the verbal domain of the WISC-III ranged from below average to average (id.). Within the performance domain of the WISC-III, the student's subtest scores ranged from deficient to very superior (id. at p. 3). The student showed significant strengths on constructional tasks involving the analysis and synthesis of visually presented material (id.). In contrast, he demonstrated weaknesses in both auditory processing and in expressive language (id. at p. 5). The school psychologist noted that the student exhibited visible frustration when attempting to answer questions that he found difficult, and that he verbalized sadness about his academic weaknesses and small stature (id. at pp. 2-5). The evaluator opined that projective data and rating scales suggested that the student's self-esteem was suffering from his perceived lack of competence in academics and social settings (id. at p. 5).
As part of the triennial review, respondent also conducted an educational evaluation of the student over the course of two sessions that concluded in September 2003 (Dist. Ex. 8). The evaluator noted that the student's reading was characterized by slow, hesitant and dysfluent decoding with many errors (id. at pp. 2-3, 5). She opined that the student's difficulty with decoding compromised his reading comprehension skills and that his weak memory for sight words precluded him from reading more fluently (id.). In the area of expressive writing, the student demonstrated difficulty sounding out words for spelling, suggesting poor auditory discrimination and weak phonemic awareness skills (id. at p. 4). His writing was brief and simple, and the evaluator opined that his visual perceptual weakness prevented him from attending to the visual details of his writing (id.). In math, the student's ability to problem solve was strong, indicating good reasoning ability (id. at pp. 3, 5). He demonstrated an understanding of basic math skills; however, he confused operation signs and made careless calculation errors (id. at p. 3). The evaluator made a number of recommendations for improving the student's reading, expressive writing, and spelling skills (id. at pp. 5-6).
The Clinical Evaluation of Language Fundamentals-Third Edition (CELF-3) was administered to the student during a speech and language evaluation conducted in October 2003 as part of the triennial evaluation and yielded a receptive language score of 102 and an expressive language score of 94 (Dist. Ex. 9 at p. 1). While the student's overall receptive and expressive language skills were both within normal limits, the speech/language pathologist noted that the student demonstrated weaknesses in comprehending part/whole relationships and words of the same semantic class (id. at p. 2). He showed difficulty recalling sentences that were presented auditorily and his ability to recall sentences decreased as sentences increased in length and complexity (id.). The speech/language pathologist concluded that the student's reduced memory abilities affected his ability to process language (id. at p. 3). She recommended that the student continue to receive speech and language therapy (id.).
Respondent's CSE convened on October 29, 2003 to develop the student's individualized education program (IEP) for his third grade 2003-04 school year (Dist. Ex. 2). The student was reported to continue "to struggle with the most basic reading and writing skills" (id. at p. 4). The resultant IEP noted that the student has significant difficulties with short and long term memory, auditory processing, decoding skills, and verbal and written expression (id. at pp. 3-4). The CSE recommended increasing the student's resource room services to six hours per week and recommended that the student continue to receive speech language therapy (id. at p. 1; Feb. 27, 2006 Tr. pp. 197-98, 337-38).
By letter dated February 29, 2004, petitioners advised respondent that they considered the student's current educational services to be inadequate (Dist. Ex. 3). Petitioners expressed concerns about the student's difficulties in reading and writing and questioned the student's reported progress (id. at p. 2). By letter dated March 11, 2004, respondent stated that it considered the student's program and services to be appropriate (Dist. Ex. 4). A teacher report dated May 12, 2004 indicated that the student did not have the appropriate academic skills to independently complete third grade assignments and class work (Dist. Ex. 11).
On May 27, 2004, respondent's CSE convened for the student's annual review and to develop the student's IEP for his fourth grade 2004-05 school year, which is one of the IEPs in dispute in the present appeal (Dist. Ex. 6). The CSE recommended special class Language Arts, Reading, Math and Social Studies with a 12:1+1 staffing ratio, and inclusion Science (id. at p. 2). The CSE recommended that the student receive door-to-door transportation and the related service of group speech and language therapy twice a week for thirty minute sessions (id.). The recommended 12:1+1 class was located in a different elementary school building than the elementary school that the student previously attended (compare Dist. Ex. 2 at p. 1, with Dist. Ex. 6 at p. 2).
The resultant IEP noted that the recommended program for the 2004-05 school year was intended to offer the student a slower pace, an opportunity to work on decoding skills throughout the day, an opportunity to maximize his learning, and an opportunity to lessen his frustration (Dist. Ex. 6 at p. 5). The IEP also noted that the student "needs a multi-sensory approach to reading with visual cues" (id. at p. 2). The IEP contained testing accommodations, including extended time, special location, waiver of spelling requirements, and directions read/explained, and program modifications such as refocusing and redirection, reteaching of materials, repetition of directions, and additional time to complete tasks (id. at pp. 2-3).
By letter dated July 30, 2004, petitioners notified respondent that they would be unilaterally placing the student at Windward for the 2004-05 school year due to respondent's alleged failure to recommend an appropriate placement and program for the student and that they would be seeking reimbursement for the student's tuition costs at Windward and the cost of transportation (Dist. Ex. 13). Petitioners did not request an impartial hearing in their July 30, 2004 letter.
On or about June 21, 2005, a CSE subcommittee met to discuss the student's IEP for the 2005-06 school year (Feb. 27, 2006 Tr. pp. 217-19; see Dist. Ex. 17). At the meeting, the participants discussed their need for more information about the student's current functioning levels and respondent requested permission from petitioners to reevaluate the student (Feb. 27, 2006 Tr. pp. 217-19; Dist. Ex. 17). The student's mother indicated at the meeting that she had a progress report from Windward regarding the student's 2004-05 school year and that she would make it available to the CSE before the next CSE meeting (Feb. 27, 2006 Tr. pp. 217-20). The CSE subcommittee did not develop an IEP at the June 20, 2005 meeting; however, petitioners' letter to respondent dated June 28, 2005, in which they consented to a reevaluation of the student, alleges that the subcommittee recommended two placement options before any evaluations took place (Dist. Ex. 17).
Respondent conducted a psychological evaluation of the student over the course of two sessions that ended in early July 2005 as part of its reevaluation (Dist. Ex. 21; see Feb. 27, 2006 Tr. pp. 374-388, 399-01). Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension index score of 98 (45th percentile), a perceptual reasoning index score of 121 (92nd percentile), a working memory index score of 97 (42nd percentile), a processing speed index score of 80 (9th percentile), and a full scale IQ score of 93 (32nd percentile) (Dist. Ex. 21 at pp. 2, 3). Although the student's full scale IQ score placed him in the average range of intellectual ability, the school psychologist reported that it was not a meaningful description of his intellectual abilities because of the great variability between the different component scores (id. at p. 2). The school psychologist concluded that the student's current intellectual testing results were similar to those obtained in 2003 (id. at p. 5). She noted that the student had made "steady progress" in his reading and writing skills (id. at p. 1); however, he continued to demonstrate weaknesses in organizing and presenting ideas, remembering directions, and processing (id. at pp. 1, 3, 5). The school psychologist made a number of recommendations, including that the student receive testing accommodations and program modifications (id. at p. 5).
An educational reevaluation was conducted on July 25, 2005 (Dist. Ex. 20 at p. 1; see Feb. 28, 2006 Tr. pp. 472-76, 518-20). The evaluator administered a series of tests from the Woodcock-Johnson Tests of Achievement-Third Edition (W-J-III) that were scored by grade-level norms in order to measure the student's academic functioning (Dist. Ex. 20 at p. 2). The student achieved standard scores of 92 (31st percentile) in letter-word identification; 97 (41st percentile) in word attack; 90 (25th percentile) in reading fluency; 106 (65th percentile) in reading vocabulary; 93 (33rd percentile) in passage comprehension; 87 (18th percentile) in spelling; 100 (50th percentile) in editing; 105 (63rd percentile) in writing samples; 100 (49th percentile) in calculation; and 99 (48th percentile) in applied problems (id. at pp. 2-3). The evaluator opined that the student's lack of fluency and difficulty in decoding compromises his reading comprehension skills (id. at pp. 2, 3; Feb. 28, 2006 Tr. p. 486). In the area of writing, the student is able to construct a sentence "fairly well"; however, the evaluator noted that the student's spelling is "sometimes way off" and that he exhibits difficulty segmenting the word he hears into its component sounds (Dist. Ex. 20 at p. 3). According to the evaluator, the student has "mastered" long number operations except long division (id.). The evaluator noted that the student made some computational errors when attempting to perform mathematical word problems in his head (id. at pp. 3-4).
By letter dated July 8, 2005, petitioners, through their attorneys, requested an impartial hearing, stating that they objected to the program and services recommended for their son for the 2004-05 and 2005-06 school years, and requesting reimbursement for the student's tuition and transportation costs at Windward for both the 2004-05 and 2005-06 school years (Dist. Ex. 18).
The CSE convened on July 27, 2005 (Dist. Ex. 16). For the upcoming 2005-06 school year the CSE recommended that for fifth grade the student participate in special class Language Arts, Reading, Math and Social Studies with a 12:1+1 staffing ratio, and that the student participate in inclusion Science (id. at p. 1). The proposed program was located at the same elementary school recommended to the student for the 2004-05 school year (id.; see Dist. Ex. 6 at p. 2). Door-to-door transportation and the related service of group speech and language therapy twice a week for thirty-minute sessions were also recommended (Dist. Ex. 16 at p. 1). The resultant IEP,1 the second IEP in dispute in this appeal, provided the student with annual goals and objectives to improve the student's performance in the areas of study skills, reading, writing, and speech and language (id. at pp. 5-7). It also contained testing accommodations and modifications (id. at pp. 1-2).
Pursuant to respondent's request made by letter dated July 11, 2005 that petitioners file a due process complaint notice (see Dist. Ex. 19), petitioners filed an amended demand for due process on or about August 24, 2005 (Dist. Ex. 22). The August 24, 2005 due process complaint notice alleges that respondent failed to offer the student a free appropriate public education (FAPE) for both the 2004-05 and 2005-06 school years (Dist. Ex. 22 at p. 2). Specifically, petitioners asserted that respondent failed to sufficiently assess the student's present levels of performance; provided intervention services in an insufficient and stigmatizing manner; failed to develop a program tailored to the student's individual needs; engaged in impermissible predetermination; and developed inappropriate goals and objectives on the student's IEP that are ambiguous and not objectively measurable (id. at p. 2).
The impartial hearing occurred over the course of six hearing dates, commencing on November 2, 2005 and concluding on April 7, 2006. At the hearing, petitioners asserted that the goals and objectives contained in the IEPs were not appropriate to meet the student's needs, were repeated year after year, were ambiguous, and were not objectively measurable. They alleged that respondent's CSE engaged in impermissible predetermination, and denied petitioners from meaningfully participating in the development of their son's IEPs. Petitioners asserted that the recommended placement for both the 2004-05 and 2005-06 school years was inappropriate to meet the student's needs. Petitioners also asserted that Windward was appropriate to meet the student's needs and that the student made progress at Windward. Respondent asserted at the impartial hearing that it had offered the student a FAPE in the least restrictive environment (LRE) for both school years in question, that Windward was an inappropriate placement, and that the equities did not favor petitioners because petitioners went into the 2005-06 CSE meeting with the intention of keeping the student at Windward and petitioners delayed bringing their claim for tuition reimbursement for the 2004-05 school year.
In a decision dated July 7, 2006, the impartial hearing officer found that petitioners failed to meet their burden of proving the inappropriateness of respondent's programs for the 2004-05 and 2005-06 school years and denied petitioners' request for reimbursement for the student's tuition and transportation costs at Windward for both the 2004-05 and 2005-06 school years (IHO Decision, pp. 27-30).
Petitioners originally filed a verified petition for review with the Office of State Review on August 25, 2006 seeking reversal of the impartial hearing officer's July 7, 2006 decision. The petition was dismissed without prejudice, with leave to file an amended verified petition on respondent (Application of a Child with a Disability, Appeal No. 06-096).
Petitioners filed an Amended Verified Petition with the Office of State Review on September 28, 2006, asserting that the impartial hearing officer's July 7, 2006 decision should be reversed and arguing that they established that respondent failed to offer the student a FAPE for the 2004-05 and 2005-06 school years. Specifically, petitioners assert that the evidence adduced at the hearing and admissions by respondent's witnesses demonstrated for both school years in question that the student's goals were repeated from prior years, were ambiguous and were not objectively measurable; that respondent's CSE engaged in impermissible predetermination and deprived petitioners the opportunity for meaningful participation in the development of the student's IEPs; and that the IEPs failed to accurately describe the student's present levels of performance. Petitioners also assert that they demonstrated the appropriateness of Windward through the testimony of their privately obtained educational witness and through evidence indicating that the student made progress at Windward. Respondent filed a Verified Answer on November 9, 2006 requesting that the impartial hearing officer's decision be upheld in its entirety, and raising an affirmative defense that petitioners failed to personally serve the amended petition on respondent.
Initially, I will address the affirmative defense of improper service raised by respondent. Pursuant to the Regulations of the Commissioner of Education, a party bringing an appeal to the State Review Officer must personally serve a copy of the petition upon the respondent (8 NYCRR 275.8, 279.1[a]; Application of the Bd. of Educ., Appeal No. 01-048). The Commissioner's regulations also require that proof of service be filed with the Office of State Review (8 NYCRR 279.4[a]). Here, the affidavit of service filed with petitioners' amended petition makes no reference to service of the amended petition, and merely indicates that petitioners' memorandum of law was served by mail on respondent's attorneys. Petitioners did not file a reply pursuant to 8 NYCRR 279.6 responding to respondent's procedural defense of improper service of the amended petition, nor did they attempt to refute respondent's claim that its attorney did not agree to accept service on behalf of respondent. Petitioners do not offer any explanation for their failure to personally serve the amended petition on respondent. Based upon the information before me, I am compelled to find that respondent's attorneys did not agree to accept service for respondent. Petitioners did not seek permission to use an alternative method of service, and petitioners have not filed proof of service of the amended petition or offered any explanation for their failure to personally serve the petition as prescribed by the Commissioner's regulations. The failure to comply with the practice requirements of Part 279 of the state regulations may result in the dismissal of a petition for review by a State Review Officer (see, e.g., Application of the Dep't. of Educ., Appeal No. 05-082; Application of the Bd. of Educ., Appeal No. 01-048; see also 8 NYCRR 279.8[a], 279.13). Under the circumstances, I will dismiss the appeal for failure to personally serve the amended petition upon respondent.
Despite dismissing the amended petition for improper service, I have reviewed the merits of petitioners' appeal and, as set forth below, I concur with the impartial hearing officer's determinations that petitioners did not demonstrate the inappropriateness of respondent's programs for the 2004-05 and 2005-06 school years. Therefore, neither tuition reimbursement nor reimbursement for transportation expenses are warranted.
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ; see Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F.3d 356 [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[D]; 34 C.F.R. § 300.17;3 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532). The federal and state statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (see Schaffer, 126 S.Ct. at 532; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]).
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; Cerra, 427 F.3d at 192). 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][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][E][ii]; see 34 C.F.R. § 300.513[a]). Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][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 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, 346 F.3d at 379; Walczak, 142 F.3d at 132). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. §§ 300.114, 300.116; 8 NYCRR 200.6[a]). 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]).
After reviewing both of the student's IEPs in the instant case, I find that they were appropriately formulated and they accurately reflected the results of then current evaluations, properly identified the student's needs, and were reasonably calculated to enable the student to receive educational benefit.
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 06-005; 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). Prior to the effective date of the IDEA 2004 amendments, IDEA required that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (20 U.S.C. § 1414[d][A][i]). Interpretative guidance to the regulations in effect at the time that the CSE developed the May 27, 2004 IEP noted that school districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
The 1997 IDEA also required an IEP to include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (20 U.S.C. § 1414[d][A][ii]). In addition, an IEP at the time that the CSE developed the May 27, 2004 IEP had to describe how the student's progress towards the annual goals would be measured and how the student's parents would be regularly informed of such progress (20 U.S.C. § 1414[d][A][viii]).
Psychological testing conducted in June and July 2003 as part of a triennial review indicated that the student's cognitive abilities are overall in the average range, with verbal abilities in the lower end of the average range and nonverbal abilities in the high average range (Dist. Ex. 7 at pp. 1, 2). Educational testing, also conducted in 2003, identified deficits in the student's auditory processing, verbal expression and memory, reading, writing and spelling (Dist. Ex. 8 at p. 5). Difficulties in reading at that time were characterized by slow and dysfluent decoding, weak acquisition of a sight word vocabulary, and good phonemic knowledge of sounds in isolation but poor application of these skills (id.). Specific weakness was reported in reading decoding (id.). Reading comprehension was described as "compromised" because of the energy that the student put into decoding (id.). Auditory discrimination weakness was evident in reading and spelling tasks (id.). Visual-motor and visual perceptual weaknesses made copying and writing tasks difficult for the student (id.). The student's math skills were described as much stronger than reading (id.). The student's ability to problem solve was strong, revealing good reasoning ability (id.). He needed to be more attentive to visual details to reduce careless calculation errors (id.).
The May 27, 2004 IEP contains details of standardized test scores, including results from a February 2004 administration of subtests of the Stanford Diagnostic Reading Test, a March 2004 administration of the Stanford Diagnostic Math Test, and a September 2003 administration of the W-J-III (Dist. Ex. 6 at p. 4). Supplementing these test scores, the IEP contains detailed descriptions and explanations of the student's performance on standardized tests of reading, math, writing, and speech and language, and indicates the student's difficulties within each area of need (id. at pp. 3-4). These test scores and descriptions of the student's learning style and continued areas of difficulty provided detail for service providers to assist the student in the academic domain and are supplemented by a list of testing modifications and classroom accommodations (id. at pp. 2-3) that are consistent with the suggestions included in the educational evaluation conducted in September 2003 (see Dist. Ex. 8 at pp. 5-6).
The May 27, 2004 IEP indicates that although the student made gains in decoding and comprehension skills when he was in third grade, at the time of the CSE meeting there were continued concerns about the pervasiveness and severity of his language based learning disability (Dist. Ex. 6 at p. 5). His difficulties in auditory memory made it difficult for him to process and understand directions and group discussions (id.). Word-finding difficulties and weaknesses in organizing and expressing his thoughts made it difficult for the student to express what he did know (id.). Subsequently, despite his hard work, the student struggled with the most basic reading and writing skills, including phonemic decoding skills to decode familiar words (id.). The IEP also indicates that the student required a highly structured reading program where information is repeated, as well as teacher support to begin tasks and follow through with activities (id.). Testimony by respondent's resource room teacher indicates that respondent offered multi-sensory reading instruction with Orton-Gillingham as well as other methodologies (Feb. 28, 2006 Tr. pp. 593, 608).
Regarding the student's social development needs, the May 27, 2004 IEP offers anecdotal descriptions of the student, indicating that he was kind and friendly, and that his difficulties in both receptive and expressive language contributed to social difficulties and low self-esteem (Dist. Ex. 6 at p. 5). In the physical domain, the May 27, 2004 IEP indicates that the student's fine motor and gross motor development are age appropriate, and that his vision and hearing are normal (id.). Regarding the management domain, the student required one-to-one support and assistance for tasks involving reading and writing (id.).
After review of the information in the May 27, 2004 IEP documenting in detail the student's needs and means by which these needs are successfully addressed, I conclude that the May 27, 2004 IEP provided extensive information to service providers who would have implemented the IEP goals and objectives. Likewise, the modifications and accommodations, and goals and objectives, were designed to target the student's identified needs in organization, study skills, and learning strategies, writing, and speech and language skills specific to speaking and listening for information, understanding, expression, and social interaction, and are consistent with the student's present levels of performance as described in the May 27, 2004 IEP, evaluation reports, and third grade progress reports (see Dist. Exs. 5 at pp. 2-5; 7 at pp. 5-6; 8 at pp. 5-6; 9 at pp. 1-3; 10 at p. 1). Petitioners dispute whether the goals were objectively measurable and I note that all goals for study skills, reading, writing, and speech and language were clarified by appropriate and measurable objectives (Dist. Ex. 6 at pp. 6-7). Based on the analysis as described above, and under the circumstances of this case, I conclude that, at the time it was developed, the May 27, 2004 IEP was reasonably calculated to provide educational benefit to the student and afforded him a FAPE.
Regarding the appropriateness of the July 27, 2005 IEP (see Dist. Ex. 16), which was later amended on August 17, 2005 to correct a typographical error (see Dist. Ex. 25), I note that the amended IDEA, effective July 1, 2005, requires the IEP team to consider: "(i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child" (20 U.S.C. § 1414[d]A]). The IDEA requires that an IEP include a statement of the child's present levels of academic achievement and functional performance, including a description of how the child's disability affects his or her involvement and progress in the general curriculum; and for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities (20 U.S.C. § 1414[d][A][i]; 34 C.F.R. § 300.320[a]; see also 8 NYCRR 200.4[d][i]). An IEP must also include measurable annual goals, including academic and functional goals, designed to meet the child's needs arising from his or her disability to enable the child to be involved in and progress in the general curriculum, and meeting the child's other educational needs arising from the disability (20 U.S.C. § 1414[d][A][ii]; 34 C.F.R. § 300.320[a][i]); see 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the child's progress towards the annual goals will be measured and when periodic reports on the child's progress toward meeting the annual goals will be provided (20 U.S.C. § 1414[d][A][iii]; 34 C.F.R. § 300.329[a]; 8 NYCRR 200.4[d][iii][b],[c]).
I find that petitioners have not met their burden of persuasion with regard to either their procedural or substantive claims concerning the August 17, 2005 IEP. First, I find that the August 17, 2005 IEP accurately reflects the results of recent evaluations and properly identified the student's needs. Respondent's July 27, 2005 CSE met to review psychological and educational testing that had been recommended at a sub-CSE meeting on June 21, 2005 (Dist. Ex. 25 at pp. 4-5). The IEP developed by the July 27, 2005 CSE included details of standardized test scores, including results from the WISC-IV administered in June 2005 and results of the July 2005 re-administration of the W-J-III (Dist. Ex. 25 at pp. 2-3). Supplementing these cognitive and educational test scores, the August 17, 2005 IEP contained detailed descriptions and explanations of the student's performance on standardized testing in reading, math, writing, and speech and language, and indicated the student's difficulties within each area of need (id. at p. 3). These test scores and descriptions of the student's learning style and continued areas of difficulty provided detail for service providers to assist the student in the academic domain and are supplemented by a list of testing modifications and classroom accommodations (id. at pp. 1-2).
Next I turn to petitioners' assertion that the recommended goals stagnated and were repeated year after year (Pet. ¶ 7). Descriptions of the student within the context of the social, physical, and management domains for the August 17, 2005 IEP were the same as for the May 27, 2004 IEP, as were the goals and objectives, and the placement recommendations (compare Dist. Ex. 6, with Dist. Ex. 25). The psychological reevaluation of the student that was conducted by respondent in June 2005 (Dist. Ex. 21) reflects results similar to those obtained two years earlier (Dist. Ex. 25 at p. 3), as well as his continued need for a multi-sensory approach to reading instruction (Dist. Ex. 25 at p. 1). Under these circumstances, I find that the goals and objectives set forth in the August 17, 2005 IEP were consistent with recent evaluative reports and with the student's needs.
The record reflects that respondent's service providers were familiar with the student and thoroughly understood his academic, physical, social, and management needs (Feb. 27, 2006 Tr. pp. 341-44, 352-53, 390-408; Feb. 28, 2006 Tr. pp. 592-96; March 27, 2006 Tr. p. 19, 51; Dist. Ex. 21 at pp. 1-2) and that although the student's difficulty with word retrieval was likely to be a lifelong concern, the student could be taught compensatory strategies and could be expected to progress (March 27, 2006 Tr. p. 9). At the time that the July 27, 2005 CSE convened, the goals and objectives included in the 2005-06 IEP (Dist Ex. 25 at pp. 5-7) continued to be appropriate for the student, especially in conjunction with the recommended modifications and accommodations that would be provided in the recommended 12:1+1 class (id. at pp. 1-2). Although not required by the IDEA, as amended, the short term objectives as written provide the requisite specificity to enable the student's teachers and petitioners to understand the expectations for the student with respect to each annual goal and what the student would be working on over the course of the school year (see W.S. ex rel. C.S. v. Rye City Sch. Dist., 2006 WL 2771867 [S.D.N.Y. 2006]; Application of the Bd. of Educ., Appeal No. 04-031; Application of a Child with a Disability, Appeal No. 03-102; Application of the Bd. of Educ., Appeal No. 02-025; Application of a Child with a Disability, Appeal No. 99-92). For these reasons, I conclude that the August 17, 2005 IEP included an appropriate statement of the student's present levels and measurable annual goals.
Finally, there is not sufficient evidence in the record to demonstrate that petitioners were precluded from meaningfully participating in the formulation of their son's IEP for the 2005-06 school year. 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]). As previously discussed, the record reveals that the CSE reviewed evaluative reports to determine the student's needs and develop goals to meet the student's needs. The record indicates that the student's mother participated in the July 27, 2005 CSE meeting and was present when the goals were developed (Dist. Ex. 25 at p. 4; Feb. 27, 2006 Tr. p. 308). There is no showing that any procedural error impeded petitioners from meaningfully participating in the formulation of their son's IEP (see Cerra, 427 F.3d at 194).
Accordingly, I concur with the impartial hearing officer that petitioners did not establish that respondent failed to offer the student an appropriate program for the 2004-05 and 2005-06 school years. Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Windward was an appropriate placement (Burlington, 471 U.S. at 370).
I have considered petitioners' remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
December 5, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 A typographical error was corrected on the July 27, 2005 IEP on August 17, 2005 (see Dist. Ex. 25 at p. 1).
2 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 ). The relevant events in the instant appeal relating to the development and substance of the May 27, 2004 IEP took place prior to the effective date of the 2004 amendments to the IDEA; therefore, the provisions of the IDEA 2004 do not apply to the development or substance of the May 27, 2004 IEP. Regarding the July 27, 2005 IEP, the newly amended provisions of IDEA 2004 apply because the relevant events took place after the July 1, 2005 enactment date. For convenience, citations in this decision are to the newly amended statute, unless otherwise noted.
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, 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.