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The State Education Department
State Review Officer

No. 06-112

 

 

 

   

 

 

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 Arlington Central School District

 

 

Appearances:

Geraci & Associates, attorneys for petitioners, Linda A. Geraci, of counsel

 

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for respondent, Vanessa M. Gronbach, of counsel

 

 

DECISION

            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 Kildonan School (Kildonan) for the 2005-06 school year.  The appeal must be dismissed.

 

            At the time of the impartial hearing, the child was eight years old and attending second grade at Kildonan (Tr. p. 381).  Kildonan is a private co-educational day and boarding school serving students in grades 2 through 12 with language based learning disorders and/or dyslexia (Tr. p. 754).  The Commissioner of Education has not approved Kildonan as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The child's eligibility for special education programs and services as a child with a learning disability (LD) is not in dispute in this appeal (8 NYCRR 200.1[zz][6]).

 

            Both petitioners and respondent attached additional documentary evidence to their pleadings for consideration in this appeal.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-086; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  Although the additional documents were not available at the time of the impartial hearing, I find that the documents are not necessary for my decision, as set forth in detail below, and I therefore decline to consider them.

 

            Petitioners' son attended preschool when he was two years old (Tr. p. 382).  At that time, petitioners became concerned about his development because he was not talking (id.).  Petitioners allowed a graduate student to evaluate their son while he was attending preschool (Tr. p. 383).  The evaluation indicated that the child could not take direction and could not follow directions, and the graduate student recommended that petitioners contact the school district (id.).  Petitioners referred their son to the Committee on Preschool Special Education (CPSE) in 2001 when he was three years old (Tr. pp. 383-84, 456-57).  The child's mother testified that he did not know his colors, he would not write his name, and all he wanted to do in preschool was work on floor puzzles (Tr. p. 385). 

 

            According to petitioners, the CPSE conducted a "whole battery of tests," including psychological and educational evaluations (Tr. p. 384).  At the CPSE meeting to review the test results and evaluations, petitioners notified the committee that they intended to enroll their son in two years of kindergarten -- the first year of kindergarten would be in a private school that offered a full-day program, and then the child would attend respondent's kindergarten program, which offered a half-day program (Tr. pp. 379-80, 384-87, 457-58).  Petitioners also would enroll their son in a half-day program when he attended respondent's kindergarten, to provide him with a full-day program (Tr. pp. 384-85).  The CPSE did not classify the child at that time as a preschool child with a disability (Tr. p. 384; see 8 NYCRR 200.1[mm]).

 

            After completing one year of kindergarten at private school, the child entered the respondent's kindergarten program in the 2003-04 school year, and petitioners communicated their concerns about their son to his teacher (Tr. pp. 386-90).  Petitioners requested that their son be referred to respondent's Committee on Special Education (CSE) on February 17, 2004, and respondent's school psychologist forwarded the request to the CSE on February 18, 2004 (Tr. p. 390; Dist. Ex. 39 at pp. 1-2; see Dist. Ex. 37; Dist. Ex. 38 at pp. 1-3; Dist. Ex. 39). 

 

            Respondent initiated the evaluation process on March 8, 2004, and administered the Woodcock Johnson-III Tests of Achievement (WJ-III) test to the child (Parent Ex. K at pp. 7-9).  Respondent's school psychologist conducted further testing on March 22, 2004, and administered the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) and the Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI) (Parent Ex. K at pp. 1-6).  Overall, respondent's psychological evaluation report noted that the child's cognitive ability was in the average range of intellectual functioning, noting that the WISC-III yielded the following results:  full scale IQ score of 107 (average range); performance IQ score of 115 (prorated score; high average range); and verbal IQ score of 99 (average range) (Parent Ex. K at pp. 1-2).  The results of achievement testing revealed weaknesses in the child's ability to identify letters and to recall letter formations and letter sounds (Parent Ex. K at pp. 7, 8).  The child's VMI results indicated he had age appropriate visual motor skills that did not interfere with his ability to learn (Parent Ex. K at p. 2).  Based upon the test results, respondent's school psychologist recommended a "comprehensive speech/language" evaluation to "determine if auditory processing" impacted the child's ability to learn (Parent Ex. K at p. 3).  On March 12, 2004, respondent conducted a speech language evaluation of the child, which revealed mild receptive and expressive language delays (Parent Ex. Q). 

 

            The CSE convened on April 19, 2004 to conduct the initial referral review and to prepare an individualized education program (IEP) for the child for the remainder of the 2003-04 school year (Tr. p. 390; Parent Ex. C at p. 1; Dist. Ex. 34 at p. 1).  After reviewing the evaluations, the CSE classified the child as speech or language impaired and recommended daily resource room (non-integrated) for 30 minutes per session in a 5:1 setting and speech language therapy, two sessions per week for 30 minutes per session in a 5:1 setting, for the remainder of the 2003-04 school year (Tr. p. 390; Parent Ex. C at pp. 1-4; Dist. Ex. 34 at p. 1; see 8 NYCRR 200.1[zz][11]).

 

            At the April 19, 2004 meeting, the CSE also developed an IEP for the child for the 2004-05 school year (Parent Ex. D at p. 1; Dist. Ex. 34 at p. 1).  The child's kindergarten teacher reported continuing problems regarding the child's ability to identify and write letters, as well as his socialization skills (Tr. pp. 391-92).  For the child's first grade school year in 2004-05, the CSE recommended twice daily resource room (non-integrated) for 30 minutes per session in a 5:1 setting, twice daily resource room (integrated) for 30 minutes per session in a 5:1 setting, and speech language therapy two times per week for 30 minutes per session in a 5:1 setting (Parent Ex. D at pp. 1, 3-4; Dist. Ex. 34 at p. 1).  Respondent noted in the IEP that the CSE would reconvene to discuss the possibility of summer services (Dist. Ex. 34 at p. 1). 

 

            On June 17, 2004, the CSE convened to conduct the child's annual review for the 2004-05 school year (Parent Ex. E at p. 1; Dist. Ex. 34 at p. 1).  The IEP notes indicated that the child made progress with the special education programs and services during the remainder of the 2003-04 school year, but continued to require the special education supports of speech language therapy and resource room (Parent Ex. E at p. 3; Parent Ex. X at pp. 1-3).  The CSE continued the child's classification as speech or language impaired and recommended daily resource room (non-integrated) for 30 minutes per session in a 5:1 setting, daily resource room (integrated) for 30 minutes per session in a 5:1 setting, and speech language therapy two times per week for 30 minutes per session in a 5:1 setting (Parent Ex. E at p. 1; Dist. Ex. 34 at p. 1).  The CSE added a second reading goal with three corresponding objectives and a writing goal with two corresponding objectives to the child's 2004-05 IEP (compare Parent Ex. D at pp. 3-4, with, Parent Ex. E at pp. 3-4).  The CSE did not recommend summer services for the summer of 2004 because they had no evidence of regression at that time (Tr. p. 392; Dist. Ex. 34 at p. 1).

 

            The record documents that during first grade the child continued to demonstrate a significant delay with acquiring beginning reading skills (Dist. Ex. 22; see Parent Exs. V, W, Y, Z, II).  In October 2004, respondent reduced the child's homework requirements (Tr. p. 493).  In November 2004, the child's special education teacher generated a progress report, which outlined the child's goals for reading, writing, and math, and identified the materials and strategies that she would use to address the child's academic needs (Tr. p. 77; Dist. Ex. 25).  The parent denied receiving the report (Tr. p. 402).  By email dated January 10, 2005, petitioners advised the child's first grade teacher that he continued to struggle with spelling and complained that he had no friends (Dist. Ex. 43 at p. 1).  On February 23, 2005, petitioners contacted respondent and requested that their son "undergo further testing to diagnose dyslexia as soon as possible" (Parent Ex. JJ at p. 3).  Petitioners opined that the child did not fit the classification of speech or language impaired and asserted that the child's classification needed to be changed in order for him to obtain the appropriate services (id.).

 

            The CSE convened on March 4, 2005, for a program review (Parent Ex. F; Dist. Ex. 34 at p. 2).  In addition to noting the child's continued reading difficulties, the IEP indicated that the child's attention and focus impacted his ability to learn (Parent Ex. F at p. 4).  The IEP further indicated that the child sometimes had difficulty with math computation (id.).  The CSE notes indicated that petitioners had obtained a neurological evaluation by a private physician, but were "frustrated" with the appointment and did not have a report to provide to the CSE (Dist. Ex. 34 at p. 2). 

 

            Based upon the discussion, the CSE recommended that the child receive more direct instruction in reading and changed the child's daily 30 minute resource room (integrated) to a daily special class for reading (non-integrated) for 60 minutes per session in a 15:1 setting to commence on March 7, 2005 (Tr. pp. 95, 141-42, 463, 709, 737-38; Parent Ex. F at pp. 1, 4).  The CSE added more objectives related to word recognition and decoding to the child's IEP (Tr. pp. 144, 464-65, 909; compare Parent Ex. E at pp. 3-4, with, Parent Ex. F at pp. 4-5).  The CSE also incorporated additional program modifications, accommodations, supplementary aids and services to address the child's needs for refocusing, redirection, and visual supports (Tr. p. 464; Parent Ex. F at p. 1).  The CSE changed the child's classification to LD and recommended updated testing to further explore the child's reading difficulties (Tr. pp. 141, 153-54, 403-05, 701, 709, 737, 744-49, 906-07; Parent Ex. F at p. 4; Dist. Ex. 34 at p. 2).  The CSE recommended an occupational therapy screening to assess the child's motor skills (Parent Ex. F at p. 4). 

 

            Respondent's school psychologist conducted testing in March 2005 to update the child's evaluations and to further assess his cognitive abilities (Parent Ex. L at pp. 1-3).  Based upon a comparison of the child's March 2004 WISC-III scores and his performance on selected subtests of the Children's Memory Scale (CMS) in March 2005, respondent's school psychologist suggested that it was likely the child had difficulty organizing, processing, and holding verbal information in memory (Parent Ex. L at p. 2).  She indicated that the CMS results revealed the child's greatest weakness to be in the areas of attention and concentration (id.).  The results of the CMS, along with the child's performance on the digit span and arithmetic subtests of the WISC-III, led the psychologist to recommend additional testing of the child's attending abilities (id.).

 

            Respondent's school psychologist also administered selected subtests of a developmental neurological assessment (NEPSY) and noted that the child's results, when coupled with his performance on the Bender Gestalt, revealed that the child possessed better-developed visual spatial skills, with significant weaknesses in language and verbal memory (Parent Ex. L at p. 2).  The psychologist opined that the child would benefit from a structured sequential approach to reading and would also benefit if new auditory learning was paired with visual presentations (Parent Ex. L at p. 3).  She also suggested chunking information into smaller segments with a review of the material as a useful approach to instruction of language based tasks (id.). 

 

            On April 6, 2005, the child's first grade special education teacher administered the WJ-III Tests of Achievement to the child to re-evaluate his progress and to identify areas of academic strengths and weaknesses (Tr. pp. 95-98; Parent Ex. M at p. 1; Parent Ex. OOO).  The child's performance revealed strengths in math calculation, math fluency, and recalling details of stories (Parent Ex. M at pp. 1, 3).  In addition, the child's performance on measures of written expression and phoneme/grapheme knowledge were commensurate with that of children his age (Parent Ex. M at p. 2).  The special education teacher noted that the child's scores reflected his ability to use sound generalizations with common letter patterns when reading and spelling simple phonetic words in isolation (id.).  She also reported that during testing, the child could read and spell consonant-vowel-consonant patterns, which had also been observed during the child's direct reading instruction lessons (id.).  Although the child was able to convey his ideas in writing with success, the teacher noted that he had some difficulty writing simple sentences with automaticity (id.).

 

            According to the special education teacher, the subtests measuring letter/word identification, passage comprehension, and quantitative concepts demonstrated the child's areas of greatest weakness (Parent Ex. M at pp. 2, 3).  She reported that on the letter/word identification subtest, the child identified letter names of several upper and lower case letters, but struggled with words that were not part of his sight word vocabulary (Parent Ex. M at p. 2).  She also noted that the child had not yet developed automatic word identification skills and when asked to read words that were not phonetic, the child was often unwilling to try, observably frustrated, and afraid to risk making an error (id.).  Testing revealed that the child could identify many phonetic words accurately with increased time (id.).  On the sound awareness subtest, the child performed well on tasks that required him to rhyme words in and out of context, but had difficulty manipulating sounds in words (id.).  On the spelling subtest, the child spelled words with regular letter-to-sound correspondence more accurately than words that required the memorization of visual features (id.).  She concluded that the child would benefit from continued support through a daily special class reading program for 60 minutes per session, which included multisensory activities and other activities to build his sight word vocabulary to a more automatic level (id.).

 

            The child performed poorly on the quantitative concepts subtest of the WJ-III, which the teacher attempted to validate by administering the Key Math Assessment (Key Math) to the child (Parent Ex. M at p. 2).  The child's performance on the Key Math noted no specific strengths or weaknesses relative to the performance of his peers (Parent Ex. M at pp. 2, 5-9).  However, the child did have some difficulty with place-value concepts, interpreting data on a chart, and solving routine word problems read to him (Parent Ex. M at p. 2).  Based on the results of math testing, the teacher opined that the child would benefit from the review of concepts previously introduced and using manipulative and pictorial models to reinforce concepts (id.).  The teacher further recommended classroom supports to review newly introduced math concepts, visual cues to accompany auditory directions, refocusing techniques to help the child focus in class, and techniques to build the child's social/ emotional abilities to address his level of frustration (id.).

 

            In addition to the psychological evaluations conducted by respondent, petitioners contracted with a private psychologist to review their son's educational file and to diagnose the child based on testing conducted by respondent (Tr. pp. 406-07; see Parent Ex. N at p. 1).  In a letter dated April 12, 2005, the private psychologist stated that the child met the definition of dyslexia (Tr. p. 407; Parent Ex. N at p. 1; Dist. Ex. 34).  According to the private psychologist, the child demonstrated significant deficits in memory and language processing (Parent Ex. N at p. 1).  She noted that the child's below average scores on the CMS subtests indicated that he would have difficulty taking in information in a regular classroom environment (id.).  In addition to describing the child's listening comprehension as "at risk," the private psychologist noted that the child's poor score on the word pairs subtest of the CMS indicated that paired associate learning was exceptionally difficult for the child (Parent Ex. N at p. 1).  She stated that paired associate learning was an important aspect of memory involved in learning pairs of data, such as math facts, sight word vocabulary, lists of state capitals, or history dates or events, and that it was an essential skill for new learning (id.). 

 

            The private psychologist supported the CSE's recommendation to provide the child with 60 minutes of daily reading instruction using a multisensory approach to address both phonological awareness and fluency training (Parent Ex. N at p. 2).  She characterized this as an appropriate intervention, but opined that the child's IEP did not fully address the child's needs during the rest of the school day (id.).  She noted that it would be unlikely that the child would be able to keep up in the regular class without considerable support (id.).  Among other things, the psychologist recommended a small class setting for all major subjects and a 12-month program (id.).  The psychologist concluded that the child should be reevaluated at the end of second grade and if he had not made significant progress, then "strong consideration" should be given to placing the child in a special education school for language/reading disabled children (Parent Ex. N at p. 3).

 

            The CSE convened on April 18, 2005 to conduct a program review (Parent Ex. G at pp. 1-2; Dist. Exs. 15-16; Dist. Ex. 34 at pp. 2, 3).  The CSE generated an IEP that contained the results of updated testing completed by the school psychologist and the child's special education teacher (Parent Ex. G at pp. 4-5).  The IEP noted the child's reading difficulties, as well as his difficulties with memory, attention, and concentration (Parent Ex. G at pp. 5-6).  Based on input from the child's teachers, the CSE determined that the child was making progress (Parent Ex. G at p. 6).  The IEP noted that the child was working at a pre-primer instructional level in reading and his sight word vocabulary had increased (id.).  Although the child's math skills were described as "average" with respect to the rest of the class, the IEP indicated that the child had difficulty with numbers greater than ten, used a number line on his desk as a visual cue, and could verbalize answers greater than ten but had difficulty writing them (id.).  The child reportedly had difficulty doing homework (id.).  An April 2005 progress report indicated that the child made satisfactory progress or made some progress toward most of the IEP objectives (Parent Ex. AA).

 

            Committee meeting minutes indicated that the CSE reviewed the report from petitioners' private psychologist (Tr. pp. 408, 409, 704, 863; Parent Ex. G at p. 6).  The committee disagreed with the private psychologist's recommendation for small class placement for all academic subjects (Tr. pp. 414, 669-71, 863, 877).  The committee agreed that the child's then current reading class was appropriate (Parent Ex. G at p. 6).  Based upon a review of the updated testing and evaluations, the CSE recommended that the child continue to attend a daily special class (non-integrated) for reading for 60 minutes per session in a 15:1 setting (Parent Ex. G at p. 2).  The CSE maintained the child's recommended speech language therapy at two sessions per week for 30 minutes per session in a 5:1 setting and continued the daily resource room (non-integrated) for 30 minutes per session in a 5:1 setting for support in math (Parent Ex. G at pp. 1, 6; see Tr. pp. 143-44, 154, 409-10; Parent Ex. MM at p. 2).

 

            The CSE recommended additional program modifications, accommodations, supplementary aids and services for the child, including additional time to complete tasks, checking for understanding, and preferential seating (Parent Ex. G at p. 3).  The CSE recommended the following testing accommodations:  questions read and explained, flexible setting, and extended time (1.5) (id.).  Based on the results of the occupational therapy screening, the CSE recommended an occupational therapy evaluation to further assess the child's motor and sensory issues (Parent Ex. G at pp. 5, 6; Dist. Ex. 21).  The CSE also recommended an audiological and auditory processing evaluation to assess the child's auditory processing abilities and a social work screening to assess his need for individual counseling (Parent Ex. G at pp. 4, 6; see Dist. Exs. 13, 14).  The IEP stated that "the question of ADD" needed to be further explored by the child's family physician (Parent Ex. G at p. 4).  The CSE incorporated many of the private psychologist's recommendations into the child's 2004-05 IEP (compare Parent Ex. N at pp. 2-3, with, Parent Ex. G).

 

            On April 21 and May 12, 2005, respondent's social worker conducted the social work screening recommended by the CSE to determine whether the child required individual counseling (Dist. Ex. 8 at p. 1).  The school social worker observed the child at recess and also met with him individually as part of the screening (id.).  The social worker noted that, except for one confrontational incident, the child had very little social interactions during the observed recess (id.).  The social worker, who had previously provided social skills training to the child's whole class, noted that although the child demonstrated varying levels of impatience and distractibility in the larger class setting, these behaviors were not evident in his one-to-one meeting with the child (id.).  The social worker recommended that the child receive individual counseling to address weaknesses in socialization (Dist. Ex. 8 at pp. 1-2). 

 

            On May 6, 2005, respondent's occupational therapist evaluated the child (Dist. Ex. 11 at p. 2).  On the Wide Range Assessment of Visual Motor Abilities, the child scored in the high average range on measures of visual motor, visual spatial, and fine motor abilities (Dist. Ex. 11 at pp. 4-5).  The child's performance on the Evaluation Tool of Children's Handwriting revealed significant legibility difficulties and handwriting speeds below grade level expectations (Dist. Ex. 11 at pp. 3-5).  The child's overall score on the short form of the Sensory Profile placed him in the below average range with results indicating that the child experienced some degree of difficulty processing tactile, auditory, and visual information (Dist. Ex. 11 at pp. 4-5).  The evaluator noted that the child had difficulty on motor planning tasks; specifically, his responses were slow, he required visual and tactile cues, and at times he was unable to correct incorrect responses when given clues (Dist. Ex. 11 at pp. 3, 5).  The evaluator recommended individual occupational therapy services twice weekly and further assessment of the child's sensory processing issues (Dist. Ex. 11 at p. 5).  A physiatrist later recommended that the child receive individual occupational therapy for one session per week and group occupational therapy for one session per week (Dist. Ex. 1 at p. 5; Dist. Ex. 10).  Respondent's occupational therapist revised her recommendations accordingly (Dist. Ex. 9).

 

            The child underwent an audiological evaluation and an auditory processing screening on May 24, 2005 (Parent Ex. T at p. 1).  Audiological testing revealed that the child's hearing was within normal limits bilaterally (id.).  The auditory processing screening revealed that the child performed in the expected range for his age (Parent Ex. T at p. 2). 

 

            Respondent's speech language therapist prepared a speech language annual review report dated May 24, 2005 (Tr. pp. 939-40; Parent Ex. S).  The therapist reported that the student made "nice improvement" in his language skills, that he required less redirection to attend to language tasks and now he rarely did, and that the child's turn taking improved and he now raised his hand to respond, rather than calling out answers (Parent Ex. S at p. 2).  The therapist further reported that the child exhibited appropriate attention to task within the small group therapy setting (id.).  According to the therapist, the child learned strategies to assist in recalling oral information and used these strategies spontaneously, such as asking for clarification or asking for information to be repeated (id.).  The therapist stated that the child required a lot of repetition to learn new concepts and vocabulary, and that information presented orally became more difficult for the child to understand as it increased in length (id.).  The therapist reported that she broke information down or repeated information to facilitate the child's processing, and during oral expressive tasks the child sometimes required models to expand utterances and use appropriate word order (id.).  The therapist recommended that the child continue to receive speech language therapy twice weekly for 30 minutes in a group (Tr. p. 935; Parent Ex. S at p. 2).  She also recommended summer speech language services at a frequency of one session per week for 30 minutes per session to avoid significant regression (Parent Ex. S at p. 2).

 

            Respondent's CSE met on May 27, 2005, to conduct a program review based upon updated evaluations and to conduct the child's annual review for 2005-06 (Tr. pp. 697-701; Parent Exs. I, J, J1 [tape recording]); Dist. Ex. 5 at pp. 1, 5; see Dist. Exs. 6, 7, 34).  The child's first grade teacher reported that the child made progress during the 2004-05 school year, but petitioners questioned the teacher's report of progress (Dist. Ex. 5 at p. 5; see Dist. Ex. 7 at pp. 2-3).  The IEP described the child's math skills as "good" (Dist. Ex. 5 at p. 5).  With respect to reading, the IEP indicated that the child read independently at a level seven and read instructionally at a level nine (see Tr. pp. 112-13; Dist. Ex. 5 at p. 5).  The child's first grade teacher reported that at the completion of first grade a child typically reads at a level 16 (Dist. Ex. 5 at p. 5).  On the Anchor List of high frequency/sight words, the child could read 14 words as compared to 22 words for other first graders (id.).  The IEP noted that the child's spelling skills improved; it also indicated that the child received a multisensory approach to reading instruction (id.).  At the meeting, petitioners specifically requested that the child receive the Orton-Gillingham methodology of reading instruction, which is a multisensory approach to reading and language arts that employs a structured, sequential, phonetically based technique to use with children who have language based learning disabilities (Tr. pp. 673, 739; Parent Exs. J, J1 [tape recording]).

 

            According to the IEP, the child demonstrated the need to control the situation during unstructured social situations (Dist. Ex. 5 at p. 5).  The CSE reviewed the results of the occupational therapy evaluation, the audiological and auditory processing screening, and the social work screening; the CSE added occupational therapy twice weekly to the child's IEP for the remainder of the 2004-05 school year (Tr. p. 697; Dist. Ex. 5 at p. 1).  The CSE also approved the child to receive extended school year services consisting of special education itinerant teacher (SEIT) services individually five times per week for 60 minutes per session, group speech language therapy once weekly for 30 minutes per session, and occupational therapy once weekly for 30 minutes per session (Tr. pp. 432, 713; Parent Ex. I at pp. 1-2; Dist. Ex. 7 at p. 1).  The IEP indicated that the child's summer reading instruction program would be a multisensory approach (Tr. pp. 440, 739-40; Parent Ex. I at p. 6). 

 

            For the 2005-06 school year, the CSE recommended the following special education program and related services:  a daily special class for language arts (non-integrated), 60 minutes per session in a 15:1 setting; a daily resource room (non-integrated) for math, 30 minutes per session in a 5:1 setting; speech language therapy (non-integrated) twice weekly for 30 minutes per session in a 5:1 setting; individual occupational therapy once weekly for 30 minutes per session; occupational therapy (non-integrated) once weekly for 30 minutes per session in a 5:1 setting; and individual counseling once weekly for 30 minutes per session (Tr. pp. 989-90; Parent Ex. I at p. 1; see Tr. pp. 417-18).  The CSE included goals and objectives for reading, writing, mathematics, speech language, social/ emotional/ behavioral, and motor development (Parent Ex. I at pp. 6-9). 

 

            Following the CSE meeting, petitioners e-mailed respondent's school principal on May 31, 2005, stating that she and her husband believed the child's reading level to be lower than that discussed at the meeting (Parent Ex. DDD at p. 2).  Petitioners reported that they disagreed with the CSE's recommendations because they felt the child should have extra help for every subject in second grade (Tr. p. 419).

 

            By memorandum dated June 1, 2005, petitioners advised the CSE that they disagreed with statements contained in the April 18, 2005 IEP and questioned the lack of a dyslexia diagnosis on the IEP (Parent Ex. OO at pp. 1-2; Dist. Ex. 45).  Respondent addressed petitioners' concerns by letter dated June 21, 2005 (Parent Ex. PP at pp. 1-3).  By e-mail dated July 11, 2005, respondent advised petitioners of the child's special education teacher for the 2005-06 school year and that the teacher had training in the Orton-Gillingham method of reading instruction (Parent Ex. CCC). 

 

            In early July 2005, petitioners obtained a private psychological evaluation of the child (Tr. pp. 232-33, 310, 440-42, 470; Parent Ex. P at p. 1).  The private psychologist administered the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), which yielded scaled scores for verbal comprehension, perceptual reasoning, working memory,  processing speed, and a full scale score (Parent Ex. P at p. 3).  The evaluator noted a "highly significant disparity" between the child's verbal abilities and his capacity to organize his perceptual environment (id.).  He also noted the child's diminished capacity to hold auditory information in short term memory and manipulate it for problem solving purposes, as well as a lowered capacity to process visual information at a rapid pace (Parent Ex. P at pp. 3-4).

 

            The private psychologist also administered the CMS to assess the child's memory (Parent Ex. P. at pp. 4-5).  The child's verbal memory capacity was weaker than his visual memory capacity; however, after a period of delay the child's recall of visual material decreased as well (id.).  In regard to executive functioning, the evaluator reported that the child demonstrated an average capacity to plan an effective approach to tasks at hand, inhibit automatic or previously learned responses when necessary, attend to designated stimuli, and remain relatively flexible in his thinking (Parent Ex. P at p. 5).  The evaluator noted, however, that the child's performance varied significantly when language was required to communicate information regarding the child's visual spatial environment (id.).

 

            According to the evaluator, the child struggled to maintain his attention over an extended period of time, particularly when the material was of little intrinsic value (Parent Ex. P at p. 6).  The evaluator described the child as more inattentive than impulsive (id.).  In addition, the psychologist reported the child's reading difficulties as consistent with the child's significantly impaired phonological processing (id.).  The child's performance on the Lindamood Auditory Conceptualization Test revealed that the child had difficulty differentiating sounds, identifying the correct number of sounds, and identifying the sequence of sounds (Parent Ex. P at pp. 6-7).  The evaluator noted that the child had difficulty identifying words for particular objects, as measured by the One-Word Picture Vocabulary Test (Parent Ex. P at p. 7).  Further testing indicated that the speed with which the child generated language was also severely impaired (id.).  According to the evaluator, the child demonstrated a deficit in his capacity to translate visual/spatial characteristics into a linguistic framework (id.).  Based on the child's performance on the Wechsler Individual Achievement Test-Second Edition (WIAT-II), the psychologist concluded that the child was falling behind in his achievement (Parent Ex. P at p. 8).  The psychologist reported that while the child could identify many letters and letter sounds, he was still prone to error, that the child's ability to identify beginning and ending sounds was inconsistent, and that his knowledge of digraphs was vulnerable (id.).  The psychologist reported that during reading tests the child demonstrated little correspondence between his oral construction of a word and its phonological equivalent (id.).  The psychologist noted that in most instances the child could identify the initial sounds of words but was largely unable to decode written text except for a few sight words (id.).  In addition, the child was prone to miswrite numbers (Parent Ex. P at p. 9).  The psychologist reported that mathematical reasoning was the child's strong point (id.).  Based on projective testing, the psychologist opined that the child questioned the strength and integrity of his own innate or constitutional capacities; that he felt a sense of hurt and trampled down by daily experiences; and that the child felt there were obstacles blocking him from getting what he needed (Tr. pp. 265-68, 324-26, 328-36; Parent P at p. 9).  He suggested that the child may be faced with a lingering fear that he may be overwhelmed by others' expectations (Parent Ex. P at p. 9-10).

 

            The evaluator concluded that the child possessed average intellectual ability with significant deficits in decoding, reading speed, reading comprehension, and spelling, which was consistent with a developmental language disorder (Parent Ex. P at p. 10).  In addition, the psychologist noted that the child demonstrated impairments in memory and executive functioning (id.).  The psychologist concluded that the child was in need of a specialized learning environment and would need intensive instruction from an experienced reading teacher who possesses specialized instruction in the most current remedial methods (Parent Ex. P at pp. 10-11).  He further opined that remediation of the child's reading disorder would require the integration of specialized reading instruction into the child's other classroom activities (Parent Ex. P at p. 11).  The psychologist also opined that it was crucial that the child be placed in an educational environment that was able to accommodate the rate at which information is presented and where the peer population mirrored the child's individual strength and weaknesses (Parent Ex. P at p. 13).  Petitioners received the private psychologist's report in October 2005; thus, respondent's CSE did not have the report available at the time of the May 27, 2005 CSE meeting (Tr. p. 498).  Petitioners provided Kildonan with a copy of the evaluation report in October or November 2005 (Tr. p. 443).  Petitioners did not provide a copy of the evaluation report to the CSE or request an additional CSE meeting following the evaluation (Tr. p. 482).

 

            By letter dated August 15, 2005, petitioners advised respondent that they rejected the 2005-06 IEP because it did not meet the child's needs (Tr. pp. 446-47, 1047; Parent Ex. CC).  In addition, petitioners notified respondent that they intended to enroll the child at Kildonan, and if he demonstrated educational progress at Kildonan they would seek tuition reimbursement and all other related expenses (id.).

 

            By letter dated December 5, 2005, petitioners requested an impartial hearing alleging that respondent's 2005-06 IEP failed to provide their son with peer-reviewed research-based reading instruction; that the IEP failed to include a statement of peer-reviewed research-based special education programs, related services, and supplementary aids and services; that the recommended program was not reasonably calculated to allow their son to make meaningful progress; and that the CSE failed to consider placing their son in a school specializing in the education of students with learning disabilities (Parent Ex. A at p. 2).  Petitioners requested to be reimbursed for the costs of their son's tuition at Kildonan for the 2005-06 school year (id.).

 

            The impartial hearing concluded in May 2006, after six days of testimony (Tr. p. 916).  Petitioners presented several witnesses and documentary evidence (Tr. pp. 31-173, 183-344, 356-506, 517-675, 689-912, 1044-49; Parent Exs. A-Z, AA-QQ, BBB-QQQ, and J1 [tape recording]).  Respondent also presented witnesses and documentary evidence (Tr. pp. 920-1044; Dist. Exs. 1-43, 45). 

 

            Among the documents presented at the impartial hearing, respondent submitted the child's first grade end of the year report card for the 2004-05 school year into evidence, which demonstrated the child's proficiency in math computation, science/health, and social studies (Dist Ex. 2).  It noted that the child was approaching proficiency in both reading and writing (id.).  At that time, the child's weakest area appeared to be in word recognition (Dist. Ex. 2 at p. 1).  Respondent also submitted the child's June 2005 IEP progress report into evidence, which indicated that the child completed his IEP objectives related to identifying and naming uppercase and lowercase letters, and recognizing and identifying each consonant by sound (Dist. Ex. 3 at p. 2).  The IEP progress report also indicated that the child completed a mathematics objective related to using manipulatives to demonstrate understanding of basic mathematical concepts (Dist. Ex. 3 at p. 3).  According to the report, the child was progressing satisfactorily on objectives related to decoding consonant digraphs, decoding short vowels sounds, decoding sentences, using capital letters at the beginning of a sentence, identifying and using basic vocabulary words related to mathematical concepts, demonstrating an understanding of money concepts, following multi-step oral directions involving linguistic concepts, retaining the sequence within verbally presented sentences, comprehending information from verbally presented sentences, and sequencing words to formulate grammatically correct sentences (Dist. Ex. 3 at pp. 2-4).  The child made some progress on objectives related to recognizing high frequency sight words, producing short vowel sounds, spelling basic sight words, and utilizing word retrieval strategies (id.).  Two of the IEP objectives were marked as discontinued (Dist. Ex. 3 at p. 3).

 

            Respondent also submitted progress notes into evidence from the child's 2005 summer program (Parent Ex. BB).  The progress notes indicated that the child made a significant amount of progress using the Edmark Reading Program (Tr. pp. 191-94, 211-12, 216-17; Parent Ex. BB at p. 3).  According to the child's SEIT, the child could name 80 percent of consonant sounds, 18 percent of vowel sounds, 11 percent of digraphs, and 6 percent of welded sounds upon his initial assessment at the beginning of the summer program (Parent Ex. BB at p. 6).  In addition, the child could identify seven sight words correctly from the Dolch list (id.).  At the end of the summer program, the child could correctly identify long and short vowels sounds with 90 percent accuracy, digraph sounds with 85 percent accuracy, and welded sounds with 85 percent accuracy (Parent Ex. BB at p. 3).  The child's sight word vocabulary increased from 7 words to 43 words (Tr. p. 209; Parent Ex. BB at p. 3).  The teacher reported that as a result of instruction the child began to exhibit some active reading skills, including rereading for understanding, asking questions for clarification, and making predictions (Parent Ex. BB at p. 4).  She noted that the child's self-confidence, intrinsic motivation and reading fluency had all increased (id.).

 

            Petitioners testified that the child improved in some areas in the spring of 2005 and that he also made gains during the summer 2005 session (Tr. p. 482; see Parent Ex. KK).

 

            The impartial hearing officer's decision, dated August 21, 2006, denied petitioners' request to be reimbursed for the costs of their son's tuition at Kildonan for the 2005-06 school year (IHO Decision, pp. 9-12).  The impartial hearing officer determined that respondent offered the child a free appropriate public education (FAPE) for the 2005-06 school year, noting that the May 27, 2005 IEP addressed the child's areas of need with goals for word recognition, decoding skills, reading comprehension skills, writing and spelling skills, as well as mathematics, speech language deficits, social /emotional concerns, and fine motor deficits (IHO Decision, p. 10).  The impartial hearing officer also noted that the IEP appropriately set forth the child's present levels of performance and that the proffered placement in respondent's regular education classroom with special education supports and related services met the child's areas of needs in the least restrictive environment (LRE) (id.).  In addition, the impartial hearing officer concluded that respondent's CSE incorporated the suggestions set forth in petitioners' private evaluator's report, which supported the CSE's recommendation to provide the child with one "hour daily of continued reading support using a multi-sensory approach, to address both phonological awareness and fluency training" (IHO Decision, p. 11).  The impartial hearing officer concluded that the 2005-06 IEP appropriately addressed the child's educational needs and that the proposed special education programs and related services resulted in an educational program that was reasonably calculated to enable the child to receive educational benefits (id.). 

 

            On appeal, petitioners contend that the impartial hearing officer erred when he denied their request to be reimbursed for the costs of their son's tuition at Kildonan for the 2005-06 school year because his decision was not supported by substantial evidence and he failed to support his factual findings and legal conclusions with references to the record.  Petitioners assert that the impartial hearing officer ignored testimony and documentary evidence supporting the child's need for small class instruction in all subject areas, the severe nature of the child's disability, the impact of the child's memory impairment on his ability to learn, and that respondent's 2005-06 IEP was substantially similar to the 2004-05 IEP, which produced minimal to no progress during the 2004-05 school year.  Petitioners also questioned the impartial hearing officer's determination that respondent's special education reading teacher was appropriately qualified to instruct the child and whether her method of reading instruction was based upon peer-reviewed research.

 

            Respondent requests that the impartial hearing officer's decision be upheld in its entirety and that petitioners' appeal be dismissed.

 

            A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487)1 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, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [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[8][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 least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a][1]).  

 

            A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

 

            The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (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]). 

 

            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 the IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [internal citation omitted]; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Thus, a state 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).

 

            Similarly, 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]; see Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  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]).  Accordingly, petitioners, as the party seeking relief at the impartial hearing, have the burden of persuasion.

 

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

            Based upon a review of the record, I concur with the impartial hearing officer's determination that respondent offered the child a FAPE for the 2005-06 school year, that the 2005-06 IEP identified the child's special education needs and properly addressed those needs, and that the special education programs and related services recommended in the 2005-06 IEP provided personalized instruction with sufficient support services to permit the child to benefit educationally in the LRE (see IHO Decision, pp. 10-11).  In addition, I find that the impartial hearing officer's determination was thorough, that his factual findings and legal conclusions were amply supported by the testimonial and documentary evidence, and that he accurately construed and characterized the testimony and documentary evidence introduced regarding whether the child needed small class instruction in all subject areas, the severity of the child's disability, and the impact of the child's memory impairment on his ability to learn.

 

            The record indicates that the child possessed average intellectual ability with a significant discrepancy between his verbal and non-verbal intellectual abilities, with his non-verbal abilities being stronger (Parent Ex. K at p. 2; Parent Ex. P at pp. 3, 10).  The record demonstrates that the child's weaknesses in language memory, verbal memory and executive functioning impacted his ability to attend (Parent Ex. L at p. 2; Parent Ex. P at pp. 3, 4, 6).  The child exhibited processing delays and difficulty responding to auditory and visual material in a timely manner (Parent Ex. P at pp. 6, 10).  The record documents the child's additional weaknesses in word identification skills, receptive language abilities, linguistic fluency, and writing fluency (Parent Ex. L at p. 2; Parent Ex. M at p. 2; Parent Ex. P at pp. 2, 7, 10; Parent Ex. S at p. 2). 

 

            In addition, the record indicates that the child performed inconsistently on standardized tests for decoding, although the child could consistently associate some letters with letter sounds and he could phonetically decode regular words better than he could recall sight words (Tr. pp. 198-99, 213; Parent Ex. M at p. 2; Parent Ex. P. at p. 8).  The record notes that the child had difficulty identifying the sequence of sounds, as well as with other aspects of phonological awareness, such as segmenting and blending, and that the child's ability to spell was impaired (Tr. pp. 213-14; Parent Ex. P at pp. 6-8).  According to the child's regular education first grade teacher, the child exhibited grade level math skills (Tr. p. 981; see Parent Ex. 2).  Respondent's supervisor of special education testified that the child's math needs related primarily to the language aspect of problem solving (Tr. pp. 883-84).

 

            In regard to motor development, the record indicates that the child demonstrated motor planning and sensory processing deficits (Dist. Ex. 11 at pp. 3-5).  An assessment of the child's handwriting revealed significant legibility difficulties and handwriting speeds below grade level expectations (id.).  The record also notes that the child exhibited some social difficulties in the school setting (Tr. pp. 146-47, 700, 718-19, 971-75, 1002-03; Dist. Ex. 8).

 

            The 2005-06 IEP developed at the May 27, 2005 CSE meeting contained special education program and service recommendations, as well as program modifications, accommodations, supplementary aids and services, that were designed to address the child's identified needs and to provide him with educational benefit.  Specifically, the IEP goals and objectives targeted the child's deficit areas.  To address the child's identified weaknesses in decoding and reading comprehension, the IEP provided the child with his primary reading instruction in a daily special class for language arts for 60 minutes per session in a 15:1 setting (Tr. p. 717; Parent Ex. I at pp. 1, 3-4).  Significantly, the record reveals that the child's reading instruction would occur in a group setting with one other child (Tr. pp. 364; 548-49).  Petitioners testified that although the ratios were not discussed at the May 27, 2005 CSE meeting, they assumed that the child would receive instruction as in the previous year in a group with five other boys (Tr. pp. 371-72, 418, 444).  In addition, the 2005-06 IEP includes goals and objectives relative to improving the child's word recognition, decoding, and comprehension skills (Parent Ex. I at pp. 6, 7). 

 

            To address the child's identified writing deficits, the IEP contained a goal and objectives related to spelling and sentence writing, as well as a goal and objective related to improving handwriting (Parent Ex. I at pp. 7, 9).  Similar to the child's reading weaknesses, the child's weaknesses in writing would be addressed in the special class for language arts (Tr. p. 717).  The CSE also recommended a resource room for 30 minutes per session to supplement and reinforce math concepts presented during classroom activities (Tr. pp. 593-4, 714-15; Parent Ex. I at p. 1). The IEP included math objectives related to identifying and using vocabulary words related to mathematical concepts and computational and problem solving concepts (Parent Ex. I at p. 7). The record reveals that the child would have received supplemental math instruction either individually or in a group of three students (Tr. pp. 366, 549).

 

            The May 27, 2005 IEP also contained recommendations for related services (Parent Ex. I at p. 1).  The CSE recommended twice weekly speech therapy groups to address the child's mild expressive and receptive language delays (Tr. p. 721; Parent Ex. I at p. 1).  This recommendation mirrored that of the speech therapist, who worked with the student during the 2004-05 school year and reported that the child progressed given that level of service (Tr. p. 945).  The child's IEP included speech language objectives related to both expressive and receptive language and targeted the child's weaknesses in auditory memory and verbal fluency (Parent Ex. I at pp. 7, 8).  To address the child's motor planning and sensory needs, the IEP recommended occupational therapy both individually and in a group setting (Tr. p. 719-20; Parent Ex. I at p. 1).  This recommendation was consistent with that of the physiatrist (Dist. Ex. 1 at p. 5).  The IEP included goals and objectives related to improving visual motor coordination and visual perceptual skills, as well as sensory processing skills (Parent Ex. I at p. 8).  The IEP further indicated that an additional sensory processing evaluation would be completed during the 2005-06 school year (Parent Ex. I at p. 1).

           

            Based on the results of a social work screening, the CSE recommended individual counseling once weekly for 30 minutes per session to address the child's social interactions (Tr. pp. 717-19; Parent Ex. I at pp. 1, 6).  The May 27, 2005 IEP also included objectives related to improving the child's self-awareness, self-concept and social skills (Parent Ex. I at p. 8).

 

            The IEP also provided small group instruction to the child for both reading and math (Parent Ex. I at p. 1).  The child's first grade report card indicated that he was proficient in science and social studies (Dist. Ex. 2).  Respondent's staff opined that a self-contained class would be too restrictive for the child, who required exposure to the general education curriculum and non-disabled peers (Tr. p. 870; see Tr. pp. 730-31, 988).  The IEP provided for additional support in the regular education class in the form of program modifications/ accommodations/ supplementary aids and services designed to address the child's memory, attending, and processing weaknesses (Parent Ex. I at pp. 2-3).  These accommodations, supports, and services included breaking down the child's assignments into smaller segments, refocusing and redirecting the child, providing the child with visual supports when giving auditory information, allowing the child additional time to complete tasks, checking with the child for understanding, and providing the child with preferential seating (Parent Ex. I at p. 2).  The record indicates that the child's special education teacher would be in his regular education classroom each day providing direct consultant teacher services to other students (Tr. p. 595).  Although the child was not recommended for consultant teacher services, the teacher testified that she would assist the child in the regular education classroom if needed and refer him to the pupil review team if she found he required additional help (Tr. p. 595; see Tr. pp. 871-72).  To further address the child's needs, the recommended IEP contained testing accommodations, which would allow the child extended time (1.5) to complete testing, a flexible setting if necessary, and questions read and explained (Parent Ex. I at p. 2). 

 

            In addition, the IEP indicated that the child already received a multisensory approach to reading and that a multisensory approach would be used during the child's ESY program (Parent Ex. I at p. 6; see Tr. pp. 874-75).  The special education reading teacher assigned to instruct the child in the 2005-06 school year testified that she was certified as both a special education and general education teacher, and that she had 30 hours of training in Orton-Gillingham, as well as training in other multisensory approaches to reading instruction (Tr. pp. 518, 526-28, 532-33).  The teacher identified both multisensory and sight word programs that she intended to use to teach reading to the child (Tr. p. 525).  The teacher testified convincingly, and at great length, as to how she would address each one of the child's reading, writing, and math objectives listed on his IEP (Tr. pp. 522-76).

 

            Based upon the information before me, I find that the May 27, 2005 IEP, at the time it was formulated, was reasonably calculated to enable the child to receive educational benefit (Viola, 414 F. Supp. 2d at 382 [citing to J.R. v. Bd. of Educ. of the City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 n.13 [S.D.N.Y. 2004]; Application of a Child with a Disability, Appeal No. 06-071; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 05-021).  As noted above, therefore, I concur with the impartial hearing officer that respondent offered the child an appropriate program for the 2005-06 school year.  Having determined that the child was not denied a FAPE for the 2005-06 school year, it is not necessary to consider the appropriateness of the program petitioners obtained for their son or whether the equities support their claim for tuition reimbursement (see Voluntown, 226 F.3d at 66).

I have considered petitioners' remaining contentions and I find them without merit. 

THE APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

November 16, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the IDEA, which became effective on July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647 [2004]).  Since the underlying events at issue in this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of IDEA 2004 do not apply and citations contained in this decision are to the statute, as it existed prior to the 2004 amendments, unless otherwise specified.  In this case, petitioners' challenges to the appropriateness of the May 27, 2005 IEP for the 2005-06 school year included claims in their impartial hearing request that the IEP failed to provide their son with peer-reviewed research based reading instruction and that the IEP failed to include a statement of peer-reviewed research based special education programs, related services, and supplementary aids and services (Parent Ex. A at p. 2).  This portion of petitioners' claim must fail, in part, because the 2005-06 IEP was developed prior to the effective date of the 2004 IDEA amendments (July 1, 2005), and in part, because the evidence in the record sufficiently supports the conclusion that respondent's 2005-06 IEP offered the child a FAPE for the 2005-06 school year.  In addition, even if the 2004 amendments did apply to the preparation of the child's 2005-06 IEP, I note that the commentary to the newly effective Federal Regulation implementing the 2004 IDEA discusses the lack of a definition for "peer-reviewed research" and notes specifically that

 

there is nothing in the Act to suggest that the failure of a public agency to provide services based on peer-reviewed research would automatically result in a denial of FAPE.  The final decision about the special education and related services, and supplementary aids and services that are to be provided to a child must be made by the child's IEP Team based on the child's individual needs

 

(34 C.F.R. Parts 300 and 301, Analysis of Comments and Changes, 71 Fed. Reg. 46664-65 [Aug. 14, 2006]).  Furthermore, the commentary reiterates that "[t]here is nothing in the Act that requires an IEP to include specific instructional methodologies" (34 C.F.R. Parts 300 and 301, Analysis of Comments and Changes, 71 Fed. Reg. 46665 [Aug. 14, 2006]).

 

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[8]; see 34 C.F.R. § 300.13; 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, 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 the 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.