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The State Education Department
State Review Officer

No. 06-138

 

  

 

 

 

 

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 Cold Spring Harbor Central School District

 

 

Appearances:
Neal H. Rosenberg, Esq., attorney for petitioners

 

Ehrlich, Frazer & Feldman, attorney for respondent, Laura A. Ferrugiari, Esq., of counsel

 

 

DECISION

Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's residential tuition costs at the Rectory School (Rectory) for the 2005-06 school year.  The Board of Education cross-appeals from the impartial hearing officer's determination that it failed to demonstrate that it had offered to provide an appropriate educational program to the student for that year.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

 

            Preliminarily, I will address a procedural issue raised by respondent in its answer to the petition.  Respondent asserts that the petition fails to state a claim upon which relief may be granted.  The Regulations of the Commissioner of Education require the petition for review to clearly indicate the reasons for challenging the impartial hearing officer's decision, identifying the findings, conclusions and orders to which exceptions are taken, and to briefly indicate what relief should be granted by the State Review Officer to the petitioner (8 NYCRR 279.4[a]).  Although petitioners' allegations could have been articulated in a more precise manner, the allegations are not so ambiguous as to preclude respondent from effectively formulating a responsive answer (see Application of a Child with a Disability, Appeal No. 06-097; Application of a Child with a Disability, Appeal No. 06-096).  I disagree with respondent's allegation and I will address the petition for review on the merits (Application of the New York City Dept. of Educ., Appeal No. 05-074).

At the commencement of the impartial hearing on April 25, 2006, the student was 12 years old and attending fifth grade at Rectory (Tr. pp. 374, 421, 423-24; Dist. Exs. 1 at p. 1; 4 at p. 1) as a boarding student (Tr. pp. 222-23, 438).  Rectory is an independent boys' boarding school in Connecticut, with a daytime student population which includes boys and girls (Tr. pp. 371, 410).  It provides general education (Tr. p. 409) to approximately 178 students, of which approximately 110 are boarding students (Tr. pp. 371-72).  The junior boarding school at Rectory includes grades five through nine (Tr. p. 372).  The Commissioner of Education has not approved Rectory as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). 

 

            In addition to demonstrating speech-language delays (Dist. Exs. 4 at p. 4; 10 at p. 6), the student exhibits weaknesses in reading and writing (Dist. Ex. 2 at p. 1), and has attentional (Dist. Exs. 3 at p. 5; 8 at p. 1) and social-emotional deficits (Dist. Exs. 3 at p. 2; 8 at p. 1).  He has also demonstrated tangential thought patterns and verbalizations (Dist. Ex. 10 at pp. 1, 2).  The student's eligibility for special education programs and services as a student having a speech or language impairment (8 NYCRR 200.1[zz][11]) is not in dispute in this appeal (Tr. pp. 190, 298).

 

An initial evaluation in September 1998, when the student was four years old, identified severe receptive and expressive language difficulties (Dist. Ex. 10 at p. 1).  After the initial evaluation, respondent placed the student in a special class and provided him with speech-language and counseling services (id.).  Subsequent to attending kindergarten in respondent's primary school, the student attended an "Alternate Learning Class" in a Board of Cooperative Educational Services program for first and second grades (id.).  For his third grade year, the student returned to an elementary school in respondent's district, where he was placed in a self-contained special education class for academic subjects and continued to receive speech-language and counseling services (id.).  His educational support remained the same for fourth grade, during the 2003-04 school year (id.).

 

As a result of a referral made to the school psychologist by the student's special education support providers, a psychological evaluation took place over three testing dates in May and June 2004 (Dist. Ex. 10 at p. 1).  The student's cognitive ability was assessed using the Wechsler Intelligence Scale for Children-Fourth Edition (WISC - IV) (Dist. Ex. 10 at p. 4).   He obtained a full scale score (and percentile) of 76 (5), which is in the borderline range of intellectual functioning (id.).  The student's verbal comprehension score was 83 (13), which is in the low average range, and his working memory score was 68 (2), which is in the extremely low range (id.).  The student's perceptual reasoning score was 108 (70), which placed him at the higher end of the average range (Dist. Ex. 10 at pp. 3-4).  The processing speed portion of the evaluation yielded a score of 56 (0.2), which is in the extremely low range (Dist. Ex. 10 at pp. 3-4).  Respondent's school psychologist concluded that, when comparing intellectual ability assessments, the student's May/June 2004 WISC - IV test scores were consistent with those from the January 2002 administration of the WISC - III (Dist. Ex. 10 at p. 4).

 

Respondent's school psychologist noted that the student had severe language deficits which affected his ability to organize his thoughts to formulate language and had word retrieval weaknesses (Dist. Ex. 10 at p. 6).  His difficulties were further complicated by highly tangential thought patterns, severe inattention, and weakened problem solving skills (id.)  She indicated that the student's difficulty learning and retaining concepts in the classroom greatly affected his self-esteem (id.).  Areas of relative strength included visual-motor coordination, fluid non-verbal reasoning, visual organization, and visual memory (id.).  Areas of severe difficulty included short-term auditory memory, which increased with the complexity of the tasks, and psychomotor speed, which affected his ability to produce written work (id.).  Respondent's school psychologist also noted a "great deal" of negative self-talk and social-emotional deficits (Dist. Ex. 10 at p. 5)

 

Respondent also conducted an educational evaluation from May to June 2004 (Dist. Ex. 3).  Administration of the Woodcock Johnson - III Tests of Achievement (WJ-III) in reading yielded standard (and percentile) scores of 83 (13) in letter word recognition, 73 (3) in passage comprehension, 97 (43) in word attack, 61 (0.5) in reading fluency, and 86 (18) in reading vocabulary (Dist. Ex. 3 at p. 1).  With the exception of the word attack score, all of these standard scores are in the below average range (id.).  On the written language subtest of the WJ-III, the student achieved standard scores of 79 (9) in spelling, 87 (20) in writing samples, and 72 (3) in writing fluency (id.).  All of these scores are in the below average range (id.).  On the mathematics subtest of the WJ-III, the student achieved standard scores of 114 (83) in calculation, 88 (20) in applied problems, 74 (4) in math fluency, and 91 (28) in quantitative concepts (id.).  The student's scores in the areas of applied problems and math fluency are in the below average range, with calculation in the above average range and quantitative concepts in the average range (id.).

 

The evaluator noted that as tasks became more difficult, the student tended to become more distracted by his thoughts and feelings (Dist. Ex. 3 at p. 2).  She reported that the student's approach to learning appeared to be quite rigid and perfectionistic, and that he performed better when there was no time limit (id.).  The discrepancy between the student's knowledge of the basic facts and his ability to apply that knowledge was quite significant, and most notable in mathematics (id.).  She also reported significant attentional concerns and a low tolerance of frustration, which negatively affected the student's acquisition of skills in all academic areas (Dist. Ex. 3 at p. 5).

 

As part of respondent's May/June 2004 educational evaluation, the student was also administered the Qualitative Reading Inventory - Third Edition in order to assess his reading abilities on longer passages (Dist. Ex. 3 at p. 3).  His instructional level in this area ranged between the pre-primer and primer levels (id.).  Comprehension of the material was at the primer level (id.).  The evaluator noted that difficulty with decoding and fluency also tended to have a negative impact upon the student's ability to comprehend materials (id.).   

 

On June 9, 2004, respondent's Committee on Special Education (CSE) met for the student's "Reevaluation Review" (Parent Ex. A at p. 1).  The individualized education program (IEP) that resulted from the June 9, 2004 CSE meeting recommended a special class for three hours and 15 minutes per day, with a 12:1+1 student-teacher ratio in the areas of English language arts and mathematics (Parent Ex. A at pp. 1, 2).  It also recommended counseling one time per week for 30 minutes, individual speech-language therapy for 30-minute sessions two times per week, and small group speech-language therapy for 30-minute sessions two times per week (Parent Ex. A at p. 1).  A behavioral consultant was available one hour a week (id.).  Petitioners' son received these services during the 2004-05 school year (Tr. pp. 26-33).  

 

The WJ-III was again administered to the student on March 21, 2005, when he was in the seventh month of his fifth grade year in respondent's program (Dist. Ex. 2).  The student's total achievement standard score of 79 was an increase from his score of 72 when the test was administered in June 2004 (Dist. Ex. 2. pp 1-2).  His broad reading cluster score increased from 69 to 78, and his subtest scores in reading increased from 83 to 92 in letter-word identification, from 61 to 72 in reading fluency, and from 73 to 75 in passage comprehension (id.).  The student's broad written language cluster standard score increased from 75 to 79 and his written expression cluster standard score increased from 75 to 79, with subtest score increases of 79 to 81 in spelling, 72 to 75 in writing fluency, and 87 to 91 for his writing samples (id.).  His broad math cluster standard score increased from 94 to 95 (id.).  Math subtest scores included a decrease in his calculation score from 114 (83rd percentile) to 107 (68th percentile), both well above the average range (id.).  The student's standard score in math fluency increased from 74 to 91, and his applied problems score of 88 on the applied problems subtest remained the same, indicating a year's progress (id.).

 

On April 28, 2005, respondent's CSE met to conduct the student's annual review and develop an IEP for the 2005-06 school year (Dist. Ex. 1 at p. 1).   The CSE reviewed the results of the March 21, 2005 WJ-III as well as the results of a March 23, 2005 speech and language evaluation, a classroom teacher report, a 2004-05 IEP progress report, the student's 2004-05 report card, and other evaluative data (Dist. Ex. 1 at p. 5).  The student's regular education teacher, special education teacher, speech therapist and psychologist were present at the meeting and each reported progress in both the academic and social/emotional domains (id.).  Comments from the meeting note that CSE members, including petitioner, agreed that the student had benefited from the program provided in 2004-05 (id.). The IEP generated from the April 28, 2005 CSE meeting recommended a consultant teacher for the sixth grade regular education classroom for 40 minutes per day (id.).  Consultant teacher services were also recommended for 40 minutes per day for mathematics in a 12:1 setting, in addition to 5:1 resource room services for 40 minutes per day (id.).  Counseling and speech-language services remained unchanged from those recommended in the June 9, 2004 IEP (id.).

 

The student's mother participated in the April 28, 2005 CSE meeting and did not object to respondent's recommended 2005-06 program or ask for additional services (Tr. p. 209). The comments section to the April 28, 2005 IEP reflects that the student's mother was in agreement with the recommended program (Dist. Ex. 1 at p. 5).  The IEP also recommended that, to address his processing and skill deficits, the student receive program modifications of additional time to complete tasks, monitoring for understanding at the start of assignments and when new concepts are introduced, a modified curriculum, preferential seating to allow for easy access to verbal and non-verbal prompts from the teacher, refocusing and redirection during both individual and group instruction, and a shared classroom aide to monitor and facilitate attention and work production (Dist. Ex. 1 at p. 2).

 

            On June 16, 2005, the student's mother met with respondent's director of special education to discuss her son's IEP for the 2005-06 school year (Tr. pp. 454, 464).  At the meeting, the student's mother informed the director of special education that she objected to comments on the April 28, 2005 IEP which stated that, "parent notes overall marked improvement" (Tr. p. 454).  The student's mother informed the director of special education that her son would be attending a summer session at Rectory (Tr. p. 464).

 

            By letter dated August 26, 2005 to respondent's director of special education, petitioners advised respondent that, in reference to their June 16, 2005 meeting, they still had not heard from the "team" to schedule a meeting to review their son's "IEP programming" or to discuss other options for the 2005-06 school year (Parent Ex. B).  Petitioners also informed respondent that they had placed their son at Rectory for summer 2005 (id.).  Petitioners indicated that they would be continuing their son's education at Rectory for the 2005-06 school year because he had "done so well" in its structured environment and small classes (id.).  In their letter, petitioners also indicated their "concern and discontent" with the "current track of programming" for their son at respondent's elementary school, and with respondent's lack of response for their son's needs "for this school year" (id.).  In addition, petitioners advised respondent that they had retained counsel to seek tuition reimbursement on their behalf (id.).

 

            In response to petitioners' August 26, 2005 letter, respondent's newly hired director of special education reportedly contacted the student's mother in an effort to learn more about her son and the reason for his placement (Tr. pp. 299-300).1 On September 22, 2005, the CSE reconvened to conduct a program review (Dist. Ex. 4 at p. 1).  Comments from the September 22, 2005 meeting note that regarding the 2004-05 school year the student's school psychologist and social worker reported that the student's social skills had improved and he socialized and communicated with ease (Dist. Ex. 4 at p. 5).  Petitioners' son was liked by students in his class, and the students were sensitive to his needs and very supportive of him (id.).  Behaviorally, the student was able to demonstrate an ability to accept suggestions and act upon them, self-regulating of negative behaviors had improved, and episodes of frustration and self-hitting were no longer exhibited (id.).  Academic improvement in writing and social studies was reported by his classroom teacher, who also reported that the student's ability to work on group projects had improved (id.).  The September 22, 2005 CSE agreed that the program offered to the student at the April 28, 2005 CSE meeting was appropriate for him (id.).

 

            By letter dated September 27, 2005 to respondent's director of special education, petitioners' counsel reiterated their request for tuition reimbursement for the cost of their son's unilateral placement at Rectory for the 2005-06 school year (IHO Ex. ii).  In the letter, petitioners, without providing specifics, claimed that respondent's recommended 2005-06 placement did not appropriately address their son's educational needs because  it was "based on an invalid and inappropriate" IEP (id.).  In the letter petitioners also noted that the student required a smaller and more structured environment than that offered by the CSE (id.).

 

            By letter dated November 8, 2005, petitioners clarified their request for an impartial hearing (IHO Ex. iv).  Petitioners contended that their son made no progress in respondent's educational program, and asserted that respondent's recommended educational program would not provide an appropriate opportunity for their son to progress (id.).  In addition, petitioners noted that the IEP generated from the September 22, 2005 CSE meeting was "virtually identical to the April 28, 2005 IEP . . . with the level of small group and individual special education instruction reduced from that of the prior year" (id.).  Petitioners also indicated that their son's evaluation showed significant delays in reading and language development (id.).  Petitioners concluded by noting that it was necessary to seek a more intensive program which extended beyond the conventional school day (id.).

 

            An impartial hearing convened on April 25, 2006 and ended on August 16, 2006, after three days of testimony.  By decision dated November 7, 2005, the impartial hearing officer found that respondent failed to offer the student a free appropriate public education (FAPE)2 for the 2005-06 school year (IHO Decision, p. 17).   She noted that there was much confusion about the exact amount of services the student would receive, with services ranging from 80 minutes to two hours, but all agreed that it was a reduction from the services provided during the prior year (id.).  She noted that the student benefited from a smaller, more structured environment and continued to require the individualization of interaction and instruction (Dist. Ex. 3 at p. 5; IHO Decision, p. 18).  The impartial hearing officer further noted that other options, either more or less restrictive, were not discussed at the April 28, 2005 or September 22, 2005 CSE meetings (IHO Decision, p. 19). 

 

            With respect to the services offered to petitioners' son, the impartial hearing officer reviewed the special education teacher's testimony that the student would have been provided with more individual attention than was stated on the IEP, and noted that it was not communicated to petitioners (IHO Decision, pp. 17-18).  The impartial hearing officer determined that the presence of a shared aide would have provided less, rather than more, individualized attention for the student (IHO Decision, p. 19).  She noted that the student's report card showed small gains, but determined that this degree of progress could not justify his participation in a mainstream sixth grade class with reduced direct services (id.).  Based on the above, the impartial hearing officer found that respondent did not offer an appropriate program to petitioners' son (id.).

 

            In addition, the impartial hearing officer found that petitioners failed to sustain their burden to show that Rectory provided an appropriate program and services to their son for the 2005-06 school year (IHO Decision, p. 19).   She noted that Rectory did not provide services that addressed the student's speech-language and counseling needs (IHO Decision, pp. 19-20).  The impartial hearing officer relied on testimony from respondent's school psychologist attributing the decrease in the student's speech-language scores in June 2006 to be indicative of his need for speech-language services (IHO Decision, p. 20).

 

Although the impartial hearing officer noted that a discussion of equitable considerations was moot, she stated that petitioners cooperated with respondent and found that petitioners complied with applicable notice requirements (IHO Decision, p. 22).  The impartial hearing officer concluded by denying petitioners' request for tuition reimbursement for educational costs incurred at Rectory for the 2005-06 school year and for summer 2005 (IHO Decision, p. 23).

 

            On appeal, petitioners assert that the impartial hearing officer erred when she determined that petitioners' unilateral placement of their son at Rectory for the 2005-06 school year was inappropriate.  Respondent answers the petition by asserting that the impartial hearing officer correctly held that petitioners' unilateral placement at Rectory was inappropriate, based upon findings that counseling and speech-language services were absent from the student's program, the individualized program at Rectory was too restrictive, and the student's need for a residential placement was not established.  In its cross-appeal, respondent asserts that the impartial hearing officer erred when she found that respondent did not provide the student with an appropriate program and denied the student a FAPE, and further asserts that equitable considerations do not weigh in favor of petitioners.  In their answer to respondent's cross-appeal, petitioners assert that the impartial hearing officer properly determined that their son was denied a FAPE based on respondent's reduction of special education services to their son and its failure to provide their son an adequate program.  Petitioners allege that respondent did not provide an appropriate IEP to their son and failed to consider a more restrictive program. 

 

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 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 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, 300.320).4  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.; 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]).

 

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, is 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, petitioner, as the party seeking relief at the impartial hearing, has 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).

 

            Initially, I will address respondent's cross-appeal.  Respondent asserts that the impartial hearing officer erred when she found that it denied petitioners' son a FAPE for the 2005-06 school year.  More specifically, respondent alleges that, as compared to the 2004-05 IEP (Parent Ex. A), the decreased special education services which were offered to the student on his April 28, 2005 and September 22, 2005 IEPs were compensated for by the provision of a shared aide and increased classroom time from the special education teacher.  Respondent also argues that its recommended program was the student's LRE because it offered him an appropriate balance between mainstream general education and special education services.

 

In their answer to respondent's cross-appeal, petitioners assert that respondent's recommended program was inappropriate because of its decreased special education services and lack of intensive individualized support.  Petitioners further allege that the September 22, 2005   IEP does not reflect an increase in special education services despite the special education teacher's testimony that she would have provided increased services, nor does it provide for a shared aide for the student.  In addition to claiming that their son's progress during the 2004-05 school year was very limited, petitioners contend that respondent's CSE failed to discuss their son's need for a more restrictive setting.  The impartial hearing officer did not find, nor does petitioner claim that procedural violations occurred in the formulation of the IEP (see IHO Decision; Response to Cross-Appeal ¶ 2).

 

The first substantive issue before me is whether respondent's April 28, 2005 IEP offered petitioners' son a program which was reasonably calculated to enable him to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).5  I conclude that petitioner's son was offered a FAPE.

 

Respondent's May/June 2004 educational evaluation report indicated that petitioners' son continued to require individualized instruction when new concepts were introduced, particularly in the area of language arts (Dist. Ex. 3 at p. 4).  The student's severe language deficits affected his ability to organize his thoughts to formulate language (Dist. Exs. 3 at p. 4; 10 at p. 6), and, as indicated in the May/June 2004 psychological evaluation report, his difficulties were further complicated by highly tangential thought patterns, severe inattention, and weakened problem solving skills (Dist. Ex. 10 at p. 6).   Petitioners' son displayed tremendous difficulty maintaining attention and concentration for "even minimal" amounts of time (Dist. Exs. 3 at p. 5; 10 at pp. 5-6) and demonstrated a low frustration tolerance which had negatively affected his acquisition of skills in all academic areas (Dist. Ex. 3 at p. 5).   He had difficulty learning and retaining concepts taught in the classroom, and this greatly affected his self-esteem (Dist. Ex. 10). 

 

Respondent's June 9, 2004 CSE recommended and provided a special class for three hours and 15 minutes per day, with a 12:1+1 student-teacher ratio in the areas of English language arts and mathematics (Tr. pp. 26-33; Parent Ex. A at pp. 1, 2).  It also recommended counseling once a week for 30 minutes, individual speech-language therapy for 30-minute sessions twice a week, and small group speech-language therapy for 30-minute sessions twice a week (Parent Ex. A at p. 1).  In addition, a behavioral consultant was recommended one hour per week (id.).  The IEP also recommended various program modifications to address the student's processing and skill deficits, including a shared classroom aide to monitor and facilitate attention and work production (Dist. Ex. 4 at p. 2).

 

A comparison of administrations of the WJ-III during June 2004 and March 2005 indicates that the student's standard scores demonstrated progress in every identified area of need and his total achievement standard score increased from 72 to 79 (Dist. Ex.  2 at pp. 1-2).   His broad reading cluster score increased from 69 to 78, and his subtest scores in reading increased from 83 to 92 in letter-word identification, from 61 to 72 in reading fluency, and from 73 to 75 in passage comprehension (id.).  The student's broad written language cluster standard score increased from 75 to 79 and his written expression cluster standard score increased from 75 to 79, with subtest score increases of 79 to 81 in spelling, 72 to 75 in writing fluency, and 87 to 91 for his writing samples (id.).  His broad math cluster standard score also increased from 94 to 95 (id.).  Although the student's math calculation subtest scores decreased from 114 (83rd percentile) to 107 (68th percentile), both scores were well above the average range (id.).  However, given the effects of the student's severe language deficits, his difficultly organizing his thoughts, his severe inattention, his weak problem solving skills, and his difficulty learning and retaining concepts in the classroom, the increase in his standard score in math fluency from 74 to 91 and the fact that his applied problems score of 88 on the applied problems subtest remained the same, indicating a year's progress, are significant (Dist. Exs. 2 at pp. 1-2; 10 at p. 6). 

 

Additionally, with respect to the student's progress during the 2004-05 school year, I will not review the third trimester of the 2004-05 IEP Progress Report (Progress Report) because it was not before the April 28, 2005 CSE (Tr. p. 109; Dist. Exs. 1 at 5; 5).  Nor will I review the third trimester of the student's report card (Dist. Ex. 6).  Rather, I will focus on the student's progress during the second trimester of the 2004-05 school year. 

 

The second trimester portion of the student's 2004-05 report card indicated that he generally received grades ranging from "2-" to "3+" in his academic subjects, which demonstrated that his performance was developing with teacher guidance or that he had demonstrated growth and strove to perform with confidence, consistence, and independence (Dist. Ex. 6).  The student experienced difficulty meeting expectations (grade of "1") in the areas of "performs independently," "generates ideas for writing," and social studies participation and research skill application, but performed with confidence, consistency, and independence (grade of "4") when completing assigned homework (id.).

 

            The Progress Report indicated the student's demonstrated progress towards IEP goals and objectives addressing his deficits in study skills, reading, writing, math, speech-language, and in social-emotional-behavioral performance (Dist. Ex. 5).  During the second trimester, two math objectives were completed (Dist. Ex. 5 at p. 4).  He made limited progress in five areas (Dist. Ex. 5 at pp. 3, 4, 5, 6).  In the remaining 43 areas of reported progress during the second trimester, the Progress Report noted that the student benefited from peer and teacher prompts in order to follow and complete multistep directions (Dist. Ex. 5 at p. 2) and make appropriate inferential connections to a given story when assistance is given using verbal and visual prompts (Dist. Ex. 5 at p. 3).  Improvement was noted in auditory attention to tasks within the small group and 1:1 setting, and progress was noted within the structured therapy context (Dist. Ex. 5 at p. 5).  Additional comments on the report noted that petitioners' son required repetition and chunking of directives for greater retention and processing, and that understanding and use of heteronyms, homonyms, and multiple meaning words had been introduced within the "1:1 context" (id.).  As the student improved his ability to attend to task and self-monitor verbalizations, he reportedly demonstrated greater availability to address syntactic forms with structured contexts (Dist. Ex. 5 at p. 6).  He was also noted to respond positively to reinforcement of on-topic comments and initiations of conversation (id.).  In addition, petitioners' son reportedly benefited from verbal and visual cues to identify relevant information in sentences and prompting to improve self-monitoring of irrelevant comments during verbal exchanges (id.).  Improvement with respect to his ability to express personal feelings was noted within structured 1:1 contexts (Dist. Ex. 5 at p. 7).  Improvement with sustaining attention was also reported (id.).  The student's special education teacher testified that, given his deficits, the student demonstrated satisfactory improvement toward his goals in all academic areas (Tr. p. 64).

 

The record demonstrates that respondent offered an educational program for the 2005-06 school year that was based upon the successful 2004-05 school year.  Respondent's June 2004 educational evaluation report concluded that the student benefited from a smaller, more structured environment with clear expectations and opportunities for success (Dist. Ex. 3 at p. 5).  The 2004-05 program offered by respondent provided a small, structured environment through its special education consultant teacher and resource room services (Dist. Ex 1 at p. 1).  Reading, math, and reteaching of mainstream instruction were provided in a small group environment (Tr. p. 149).  Testing accommodations were also provided in the special education teacher's room (Tr. p. 147).

 

With regard to classroom instruction and pull-out instructional settings, the student was provided with support by either the special education teacher (Tr. pp. 147-48), speech-language teacher (id.) or the aide (Tr. p. 147).  In conjunction with the mainstream social studies instruction, the special education teacher provided reteaching and review (id.).  Petitioners' son also received the support of an aide when he was in the mainstream, and when he attended social studies in a mainstream setting he received a modified curriculum (id.). 

 

Respondent's April 28, 2005 IEP recommended a consultant teacher for the regular education classroom for 40 minutes per day (Dist. Ex. 1 at p. 1).   Consultant teacher services for mathematics in a 12:1 setting were recommended for 40 minutes per day, in addition to 5:1 resource room services for 40 minutes per day (id.).  Counseling and speech-language services remained unchanged from those recommended in the June 9, 2004 IEP (id.). 

 

Respondent's director of special education testified that the two IEPs were very similar with respect to the provision a teacher in the classroom and special class or resource room services (Tr. p. 305).  He further testified that the IEPs differed in the way in which the services were "designated" on the IEPs, rather in the actual recommendation of services (id.).  However, respondent's staff agreed that there was a reduction in special education services (IHO Decision, p. 17; Tr. p. 165), although there was contradictory testimony regarding the level of diminution (IHO Decision, p. 17; Tr. pp. 163-64, 240-41). 

 

            The special education teacher and the school psychologist testified that the purpose of the reduction in services was to increase the student's mainstream experience, supported by the provision of a shared aide (Tr. pp. 124-25, 260).  The special education teacher further testified that respondent's recommended 2005-06 program was developed to improve the student's work study habits and social skills, increase his exposure to the curriculum, and decrease the number of class interruptions in his school day (Tr. pp. 148-49).  Moreover, the special education teacher testified that respondent's 2005-06 program would have been implemented such that there would have been more individual attention provided to the student than was stated on the IEP (Tr. p. 167).  She also testified that during the 2004-05 school year the student had made steady progress in reading, vocabulary, and written language (Tr. p. 59) and made progress throughout the school year in working toward his academic goals (Tr. p. 60).

 

In addition, respondent's school psychologist testified that the recommended small structured setting would provide the modifications that the student needed and opportunities for him to be successful (Tr. p. 224).  She also testified that toward the middle of the 2004-05 school year, the student's negative self-talk decreased and he was willing to attempt tasks (Tr. p.  202).  She further testified that the April 28, 2005 CSE was pleased with the progress that the student had made and was anticipating continuing his program (Tr. p. 204).

 

I find the testimony of the special education teacher and the school psychologist persuasive.  I note that they authored the May/June 2004 educational evaluation report (Dist. Ex. 3) and the May/June 2004 psychological evaluation report (Dist. Ex. 10), respectively, and both attended the April 28, 2005 CSE meeting. In addition they were both familiar with the child. Respondent's school psychologist first worked with the student when he returned to the district in third grade (Tr. p. 186).  In third, fourth, and fifth grades, she worked with petitioners' son on his socialization skills (Tr. pp. 186-88).  Respondent's special education teacher first became familiar with petitioners' son when he was assigned to her caseload in fourth grade, during the 2003-04 school year (Tr. p. 17).  She was also his special education teacher in fifth grade (id.). 

 

I note that the April 28, 2005 recommended program was based in substantial part on the student's 2004-05 IEP, and it continued consultant teacher and behavioral consultant services, counseling, speech-language services, and the services of a shared aide (Dist. Ex. 1 at pp. 1, 2; Parent Ex. A at pp. 1, 2).  For the 2005-06 school year, the April 28, 2005 CSE recommended the same amount of services in speech-language and counseling, his "main areas of need" (Dist. Ex. 1 at 1, Parent A at p. 1).  In addition, he continued to have a modified curriculum for reading and math (Tr. p. 124).

 

Moreover, no one, other than the student's mother (Tr. p. 429; Parent Ex. B), testified that the April 28, 2005 IEP was inappropriate.  Respondent's staff agreed that the April 28, 2005 IEP was appropriate for petitioners' son (Tr. pp. 84, 230, 335).  Respondent's special education teacher testified that the recommended program would offer a balance of small group instruction, and mainstream instruction supported by an aide (Tr. p. 84).  She further stated that he would be exposed to the general curriculum and could work on his social skills in the mainstream (id.).  Respondent's school psychologist also testified that the recommended program was appropriate (Tr. p. 230).  She stated that the program recommended for petitioners' son for the 2005-06 school year would have provided him an opportunity to experience the sixth grade curriculum but receive the modifications necessary to experience success (Tr. p. 235).  Respondent's school psychologist further testified that the student would have had access to his peers for social training (id.).  Respondent's director of special education also testified that the recommended program was appropriate (Tr. p. 335).  He stated that the supports in the areas of socialization and speech-language would help the student to improve (Tr. p. 336).

 

            Based upon the information before me, I find that respondent's April 28, 2005 IEP, at the time it was formulated, was reasonably calculated to enable petitioners' son to receive educational benefit during the 2005-06 school year (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]; see Cerra, 427 F.3d at 195; see also Mrs. B., 103 F.3d at 1120; Application of a Child with a Disability, Appeal No. 06-116; Application of a Child with a Disability, Appeal No. 06-112; 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). 

 

In disagreeing with the impartial hearing officer's conclusion that respondent failed to offer the student a FAPE for the 2005-06 school year, I note that her determination that the student only made small gains during the 2004-05 school year is not supported by the record.  Standardized test scores, reports describing the student's progress on his IEP goals and objectives, and reports from staff who worked directly with the student on a day-to-day basis suggest that the student made significant gains, especially given the intensity of his needs.  The impartial hearing officer disregarded the student's documented progress, focusing instead upon the student's needs as articulated in the May/June 2004 educational evaluation report by the special education teacher.  The impartial hearing officer credited the special education teacher's description of the student's needs, but failed to credit the teacher's agreement at the April 28, 2005 CSE meeting that the recommended IEP would have addressed those needs (Dist. Ex. 3 at p. 5) and her testimony that respondent's offered program for 2005-06 was appropriate.  The impartial hearing officer further erred in concluding that the lack of specificity in describing some of the services on the IEP as they were to be delivered in the classroom rose to the level of a denial of FAPE.  The program recommended by the CSE for 2005-06 reflects the committee's careful consideration of test results and progress reports in developing a comprehensive program which would provide the student with supports and services designed to ensure his continued progress within a mainstream environment.

 

Although I have concluded that respondent's recommended program was reasonably calculated to enable petitioners' son to receive educational benefit during the 2005-06 school year, I have also considered the appropriateness of the program offered to petitioners' son by Rectory.  With respect to the second criterion of the Burlington analysis, I must consider whether petitioners satisfied their burden of proving that Rectory was appropriate to meet their son's special education needs for the 2005-06 school year (Burlington, 471 U.S. 359; Frank G., 459 F.3d at 363).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that "the private education services obtained by the parents were appropriate to the child's needs" (Walczak, 142 F.3d at 129; see also Frank G., 459 F.3d at 363; Cerra, 427 F.3d at 192). Parents are not held as strictly to the standard of placement in the LRE as school districts are; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ, 231 F.3d at 105).

 

            Petitioners assert that Rectory provided their son with an educational program which met his needs and resulted in a demonstration of significant academic, social, and emotional progress.  Respondent alleges that the services provided by Rectory were not appropriate because counseling and speech-language services were absent from the student's program, the individualized program at Rectory was too restrictive, and the student's need for a residential placement was not established.  I concur with the impartial hearing officer's determination that petitioners failed to sustain their burden to show that Rectory provided an appropriate program and services to their son for the 2005-06 school year (IHO Decision, p. 19).

 

            The record shows that petitioners' son has severe receptive and expressive language difficulties (Dist. 10 at p. 1) and exhibits deficits in reading and written language (Dist. Ex. 2 at p. 1).  In the May/June 2004 educational evaluation report, respondent's evaluator determined that the student's academic and language concerns affected the rate and amount of information he could process at any one time, and that he functioned better when learning was broken down into smaller, manageable parts (Dist. Ex. 3 at p. 4).  He needed greater independence with the writing process, as his rate of grapho-motor output was extremely slow (Dist. Ex. 3 at p. 5).  The evaluator noted that the student had significant attentional concerns and a very low frustration tolerance, which negatively affected his acquisition of skills in all academic areas (id.).

 

During the May/June 2004 psychological evaluation, the evaluator noted, among other things, that the student's verbalizations were tangential and unrelated to the tasks at hand (Dist. Ex. 10 at p. 2).  Despite redirections, the evaluator noted that, at times, the student's responses were disorganized and incoherent (id.).  The student was vulnerable and had a fragile sense of self (Dist. Ex. 10 at p. 5).  He demonstrated a "great deal" of negative self-talk, despite efforts in the classroom and in counseling to redirect those comments (id.).  While he understood the difference between right and wrong, the student had difficulty reading social cues, displayed limited problem solving abilities, and easily became frustrated, all of which negatively affected his ability to interact with his peers (id.).

 

            Petitioners placed their son at Rectory for the 2005-06 school year (Tr. p. 450; Parent Ex. B).  During that school year, petitioners' son received instruction in science, math, recess, chorus, English, band, outdoor adventures, history, and art (Tr. p. 376), typically in groups of eight to ten students (Tr. p. 373).  In addition, he received individualized instruction in English, reading and history (Tr. p. 377).  He also attended a daily "individualized instruction" program with an identified faculty member (Tr. p. 375; Parent Ex. C at p. 3).  After school, petitioner's son participated in a one-hour tutoring program for students who need assistance with their homework skills (Tr. pp. 383-84).  For two hours after dinner the student attended a structured study hall program that was staffed with faculty members to provide assistance with the acquisition of study skills (Tr. pp. 385, 393).  

 

Rectory provides general education instruction (Tr. p. 409).  It is not a special education school (id.).  Although Rectory attempted to address the student's language processing deficits  through its individualized instruction program (Tr. p. 413), Rectory did not provide speech-language services to the student (Tr. pp. 413-14, 416).  I note that testing conducted in June 2006, after the student completed his school year at Rectory, yielded decreased standard scores in all subtests related to his areas of need, with the exception of passage comprehension and writing samples, which remained the same, as did the student's broad reading composite score (Dist. Exs. 2 at p. 1; 13 at p. 2).  The student's math calculation skills cluster standard score, which measured an area of strength for the student, decreased from 102 to 100 (id.).  His subtest standard score in math fluency decreased from 91 to 85 and his applied problems subtest standard score decreased from 91 to 82 (id.).  These scores, reflective of the student's needs in his area of strength, compare unfavorably to results obtained while the student attended respondent's program in 2004-05, when his standard score in math fluency increased from 74 to 91, and his applied problems score of 88 on the applied problems subtest remained the same, indicating a year's progress (id.). 

 

Respondent's school psychologist, who conducted the May/June 2004 psychological evaluation, testified that the decreases in the student's language skills spoke to the fact that he needed speech-language services(Tr. p. 234).  She also testified that,in addition, despite the availability of an independent psychologist, Rectory did not address the student's social-emotional deficits (Tr. pp. 267, 416), as noted in her May/June 2004 evaluation (Dist. Ex. 10 at p. 5).   I also note that Rectory's Assistant Headmaster testified that at Rectory "everything was done and it was done to the best of our ability.  And I think that he improved by it.  But I don't think that we are capable of going further with him.  I think he needs more than what we can supply for him" (Tr. p. 416; Dist. Ex. 12).  I agree with the impartial hearing officer's determination that Rectory did not offer petitioners' son an appropriate program.

 

Moreover, I also agree with the impartial hearing officer's determination that petitioners failed to demonstrate that their son needed a residential setting to benefit from his educational program.  A residential placement is one of the most restrictive educational placements available for a student (Application of a Child with a Disability, Appeal No. 06-024; Application of a Child with a Disability, Appeal No. 03-066; Application of the Bd. of Educ., Appeal No. 01-091) and is not appropriate unless it is required for a student to benefit from his or her educational program (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 03-066; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-051; Application of a Child with a Disability, Appeal No. 01-083).

 

            The record shows that the student did not display disruptive behavior at respondent's elementary school (Tr. pp. 73-77; Dist. Ex. 8) (see Application of a Child with a Disability, Appeal No. 06-024).  In fact, to the contrary, the special education teacher characterized petitioners' son as a very likable, friendly, creative child who has wonderful artistic abilities (Tr. p. 18).  The record also reveals that neither the April 28, 2005 CSE nor the September 22, 2005 CSE recommended a residential setting (Tr. p. 223).  As discussed above, the special education teacher who evaluated the student during the 2004-05 school year (Tr. p. 17) stated that the student benefited from a smaller, more structured environment with clear expectations and opportunities for success, but she did not recommend a residential placement for the 2005-06 school year (Dist. Ex. 3).  Nor did respondent's school psychologist recommend a residential placement for the student's 2005-06 school year (Dist. Ex. 10).  Although the Assistant Headmaster of Academics and Admissions (Assistant Headmaster) at Rectory testified that, absent speech-language and psychological services, Rectory was an appropriate setting for petitioners' son during the 2005-06 school year (Tr. p. 416), I note that the record does not include evaluative information provided by petitioners which supports their son's need for a residential placement.  Under the circumstances presented here, I concur with the impartial hearing officer and find that the student did not require a residential placement during the 2005-06 school year.

 

            The student's progress reports from Rectory are consistent with the Assistant Headmaster's assertion that the one-on-one instruction provided to the student at Rectory yielded academic progress (Parent Ex. C.).  However, this assertion is not supported by standardized test results (Dist. Exs. 1 at p. 1; 13 at p. 2).  Moreover, the student's educational and psychological evaluation reports do not recommend the student's placement in a one-on-one setting (Dist. Exs. 3; 10).  Nonetheless, during the student's school day, a minimum of four class periods were held in a one-on-one setting with a faculty member (Tr. pp. 377, 398; Parent Ex. C at p. 3).  In addition, petitioners' son attended a tutoring program for one hour after school (Tr. pp. 383-84) and a structured study hall for two hours in the evening (Tr. pp. 385, 393).  I agree with the impartial hearing officer and I find that the record does not support the student's placement in either a residential setting (Mrs. B., 103 F.3d at 1121-22) or the delivery of instructional services to the student in a one-on-one setting for such a significant portion of his school day (Rafferty, 315 F.3d at 26, 27; M.S., 231 F.3d at 105).

 

Based upon the foregoing, the program that petitioners unilaterally selected for their son for the 2005-06 school year at Rectory was not appropriate to address his special education needs, as established by the record.  I find that petitioners have not met their burden of proof with regard to the second criterion for an award of tuition reimbursement (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 06-055; Application of a Child with a Disability, Appeal No. 06-014).  Therefore, I need not reach respondent's allegation regarding petitioners' alleged failure to comply with applicable notice requirements,  and whether equitable considerations support petitioners' claim for reimbursement, the third criterion of the Burlington analysis (Application of a Child with a Disability, Appeal No. 06-055; Application of a Child with a Disability, Appeal No. 05-119).  Accordingly, I concur with the impartial hearing officer's denial of residential tuition reimbursement expenses for the student's 2005-06 school year.

 

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

 

THE APPEAL IS DISMISSED.

 

THE CROSS-APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that she determined that respondent had not offered petitioners' son a FAPE for the 2005-06 school year.  

 

 

Dated:

Albany, New York

 

__________________________

 

February 2, 2007

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 Respondent's director of special education was reportedly replaced in mid August 2005 (Tr. pp. 299-300).

 

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).

 

3 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647).  The relevant events in the instant appeal relating to the development of the April 28, 2005 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 IEP. Regarding the due process hearing request and the impartial hearing, the newly amended provisions of IDEA 2004 apply because the due process hearing request was made on August 26, 2005 and the impartial hearing occurred on April 25, 2006.

 

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

 

5 I note that while the impartial hearing officer reviewed both IEPs, the April 28, 2005 IEP was the IEP in existence at the time petitioners notified respondent of their intent to enroll their son at Rectory at public expense (Dist. Ex. 1; Parent Ex. B).